The Protection of Non-Combatants During Armed Conflict and Safeguarding the Rights of Victims in Post-Conflict Society : Essays in Honour of the Life and Work of Joakim Dungel [1 ed.] 9789004236592, 9789004236585

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The Protection of Non-Combatants During Armed Conflict and Safeguarding the Rights of Victims in Post-Conflict Society

Photo of Joakim Dungel. With the kind permission of the Temporary International Presence in Hebron archives

The Protection of ­ Non-Combatants During Armed Conflict and Safeguarding the Rights of Victims in Post-Conflict Society Essays in Honour of the Life and Work of Joakim Dungel

Edited by

Philipp Ambach Frédéric Bostedt Grant Dawson Steve Kostas

leiden | boston

Library of Congress Cataloging-in-Publication Data The protection of non-combatants during armed conflict and safeguarding the rights of victims in post-conflict society : essays in honour of the life and work of Joakim Dungel / Edited by Philipp Ambach, Frédéric Bostedt, Grant Dawson, Steve Kostas.   pages cm  Includes bibliographical references and index.  ISBN 978-90-04-23658-5 (hardback : alk. paper) -- ISBN 978-90-04-23659-2 (e-book : alk. paper) 1. War (International law)--Protection of civilians. 2. Combatants and noncombatants (International law) 3. War victims--Legal status, laws, etc. 4. Humanitarian law. I. Dungel, Joakim, 1978-2011, honouree. II. Ambach, Philipp, editor.  KZ6515.P77 2015  341.6'7--dc23

2015009560

This publication has been typeset in the multilingual “Brill” typeface. With over 5,100 characters covering Latin, ipa, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities. For more information, please see www.brill.com/brill-typeface. isbn 978-90-04-23658-5 (hardback) isbn 978-90-04-23659-2 (e-book) Copyright 2015 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper.

Contents Foreword IX Acknowledgements XI About the Authors and Editors Xii Introduction 1

Part 1 Addresses from the Joakim Dungel Lectures in International Justice 1 An Analysis of Whether the Actions of the 7th Cavalry at Wounded Knee Creek on 29 December 1890 were Crimes under the Applicable Law of the Time 13 Grant Dawson 2 About Responsibility 34 Wolfgang Schomburg 3 Drones and the Law of Armed Conflict: The State of the Art 53 Gleider I. Hernández

Part 2 The Protection of Non-Combatants During Armed Conflict 4 Protecting Children in Armed Conflict through Complementary Processes of Political Engagement and International Criminal Law 71 David S. Koller 5 Target Practice: Do United Nations Sanctions Protect Civilians against Al-Qaida? 101 Leah Campbell 6 The United Nations in Afghanistan: Policy as Protection? 136 A. Niki Ganz

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A Deterrent Effect of Domestic German Prosecutions for Crimes Committed by German Military in Afghanistan? —Protecting Civilians from Inadvertent Attacks by Friendly Foreign Forces 166 Jan Nemitz

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Criminalising the Denial of a Fair Trial as a Crime against Humanity 200 Shannon Ghadiri

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The Place of International Criminal Law within the Context of International Humanitarian Law 231 Chris Black

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Disproportionate Attacks in International Criminal Law 261 Francesco Moneta

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Judicial ‘Law-Making’ in the Jurisprudence of the icty and ictr in Relation to Protecting Civilians from Mass Violence: How Can JudgeMade Law Be Brought into Coherence with the Doctrine of the Formal Sources of International Law? 297 Robert Heinsch

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The African Court on Human and Peoples’ Rights and the Use of Provisional Measures for the Protection of the Civilian Population in Armed Conflict Situations 331 Frédéric Bostedt

Part 3 Safeguarding the Rights of Victims in Post-Conflict Society 13

Promoting and Protecting the Long-term Needs of Victims of Armed Conflict: The Potential Role of National Human Rights Institutions 385 Kirsten Roberts

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La Reconnaissance du Bénéfice de l’Indemnisation aux Victimes de Violations des Droits de l’Homme par la Cour Internationale de Justice 428 David K. Nanopoulos

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15 The icc Reparations Scheme: Promise for Victims or Recipe for Failure?—A Critical Discussion of Joakim Dungel’s Unpublished Article ‘Reparations and the icc: Is the Court Ready for the Job?’ 455 Philipp Ambach Index 521

Foreword We are not sure Joakim would have approved of a book dedicated to his memory. However, we, his family, have proudly done so. Joakim is greatly missed by us and by his friends and colleagues. Apart from missing him as a person, we are also saddened that he was not able to continue his work within the field of international humanitarian law. This book continues that work, and we are therefore certain that, even if Joakim would not have approved of the dedication, he would definitely have approved of the publication, read it, and probably offered his own opinions on some of the conclusions drawn in the chapters. We cannot think of a more appropriate way of honouring a friend and colleague than to write and publish this book. The first and last articles furthermore constitute direct continuances of work commenced by Joakim that he was not able to finish and publish before his time ran out. Thanks to the devoted writing of the authors, this work is now finished and published—and to finish work, of whatever kind, was of great importance to Joakim, stemming all the way back to when he was a child. But the work on international humanitarian law and conflict continues. We sincerely hope that this book will be useful to dedicated practitioners and inspire them to continue their important work of applying the Rule of Law to protect and provide remedies to civilians exposed to atrocities. As an example of this dedication, we want to relate a conversation we had with Joakim before he left for Afghanistan. When asked if he did not consider it dangerous to work in such a turbulent environment, Joakim answered, ‘Of course it is. Attacks are more frequently being directed at civilians as opposed to military personnel because civilians cannot shoot back’. When we asked why he, himself, had to go there, Joakim answered, ‘Because that’s where I think I can make the most difference’. With that, the discussion ended. When seeing the horrific things people can do to each other, it is easy to feel anger, calling for knee-jerk reactions without taking into consideration the kind of society in which we want to live. A good society, a safe society, is underpinned by the Rule of Law, which is why we must not let our anger take over. Joakim used to say that he wanted to be an advocate, not an activist; only with well-founded arguments based on scientific and historical facts can we change and build a good and safe society. This book is an embodiment of such argumentation. Finally, dear Reader, may you never be exposed to crimes in general or to crimes against humanity in particular; but, if you are, or already have been, rest

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assured that there are people working hard to advocate your rights under the Rule of Law, very often without much consideration for their own safety. PeO Dungel Ulla Dungel Emilia Dungel Torsby and Belgrade on this 29th day of October 2014

Acknowledgements The editors would like to thank the Dungel Family for giving their blessing to this project. We also wish to express our gratitude to Laetitia Husson for her work on several of the chapters in this book. Lindy Melman of Brill Nijhoff Publishers deserves our gratitude for her support of this project, which she gave shortly after Joakim’s death. Bea Timmer, also at Brill Nijhoff, assisted us with aspects of the publishing process. Finally, the friends and colleagues of Joakim who contributed chapters are the ones who made this tribute to Joakim a reality.

About the Authors and Editors Philipp Ambach has worked in the Presidency of the icc as the President’s Special Assistant since December 2010. Before that, Mr. Ambach worked for more than three years as a legal officer in the Appeals Chamber of the icty, ictr, and Registry of the icty. He has been accepted at the Cologne Public Prosecutor’s Office prior to his employment with the icty. After finishing his law degree at the Humboldt-University of Berlin, Mr. Ambach served his Referendariat at the Regional Court of Düsseldorf. He holds a Ph.D. (Dr. jur.) in international criminal law from Free University of Berlin. Mr. Ambach has published a number of articles on various topics in the area of international criminal and ­humanitarian law and regularly gives guest lectures on icl/ihl topics at various educational institutions. Chris Black is a Legal Officer in the Pre-Trial Chamber of the Special Tribunal for Lebanon. Prior to joining the Tribunal, he worked as the icrc’s Regional Legal Adviser for Southern Africa and the Indian Ocean, and also as an icrc field delegate in South Sudan. Before joining the icrc, Mr. Black was an Associate Legal Officer in the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia. After qualifying as a solicitor in England, he practiced law in London and Paris with Herbert Smith, an English firm of solicitors. He obtained a post-graduate ‘dea’ in Public International Law from the Université de Paris 1—Panthéon-Sorbonne, and ba and llb Degrees from the University of Cape Town. Frédéric Bostedt has law degrees from Germany (Ass. jur., Munich), New Zealand (ll.m., Victoria University, Wellington), and France (Master, Droits de l’homme, Strasbourg) and holds a doctorate degree (Dr. jur.) from the University of Regensburg, Germany. He worked for the Appeals Chamber (as a fellow of the  International Bar Association) and for a Trial Chamber of the Inter­ national Tribunal for the former Yugoslavia in The Hague, as well as for the European Court of Human Rights in Strasbourg. He is currently employed at the European Patent Office in the Legal Research Service of the Boards of Appeal. Leah Campbell is an Associate Political Affairs Officer with the United Nations Department of Political Affairs in New York. Her focus is the Security Council, in particular

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threats to international peace and security caused by terrorist acts. Previously, Ms. Campbell worked in The Hague and Sarajevo on trials alleging genocide and crimes against humanity in the former Yugoslavia. Grant Dawson currently works as the Senior Legal Officer in the Office of the Legal Adviser of the Organisation for the Prohibition of Chemical Weapons. Previously, he served as a Legal Officer, the Deputy Chef de Cabinet, and the Acting Chef de Cabinet of the United Nations International Criminal Tribunal for the former Yugoslavia. He also has worked as an Assistant Attorney General, practiced commercial litigation in New York City, and served as a judicial law clerk on the u.s. Court of Appeals for the Armed Forces. A member of the bars of New York and Washington, dc, usa, Mr. Dawson earned his Juris Doctor from Georgetown University Law Centre, where he was a member of the Georgetown Journal of Legal Ethics, and earned his Bachelor of Arts in Classics at Columbia College. A. Niki Ganz is a Political Affairs Officer with the United Nations. She has worked for the un for over seven years, both in headquarters and in Sierra Leone, Lebanon, and Afghanistan. Ms. Ganz currently covers the Middle East for the Department of Political Affairs. She earned her J.D. at Fordham University School of Law and holds a b.a. from the University of California at Berkeley. Shannon Ghadiri is an Associate Legal Officer in chambers at the International Criminal Tribunal for the former Yugoslavia (icty). She received her law degree from Santa Clara University School of Law and an ll.m. from Leiden University. She is a member of the state bars of California and New York. Robert Heinsch is an Associate Professor of Public International Law at the Grotius Centre for International Legal Studies of Leiden University, and the Director of its regular ll.m. Programme in Public International Law. He is also the Programme Director of the Kalshoven-Gieskes Forum on International Humanitarian Law  at Leiden University. Furthermore, he holds the position of Federal Dissemination Officer for International Humanitarian Law in Germany, and is Member of the Presidency of the German Red Cross, as well as the National International Humanitarian Law Committee of the Federal Republic of Germany. Previously, he has worked as a Legal Advisor in the International Humanitarian Law Department of the Red Cross Headquarters in Berlin and as a Legal Officer in the Presidency of the International Criminal Court in The

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Hague. In addition, he has been a Senior Research Fellow at the Chair for International Law and European Law, Cologne University, and a Visiting Lecturer at Bochum University, respectively. Gleider I. Hernández is Senior Lecturer in Law at the University of Durham, United Kingdom, and a founding Deputy Director of the Durham Global Policy Institute. Previously, he served as Associate Legal Officer at the International Court of Justice, as Law Clerk to Vice-President Peter Tomka and Judge Bruno Simma, from 2007–2010. He took a D.Phil at Wadham College, Oxford, and read for an ll.m from the University of Leiden, and for bcl and ll.b degrees from McGill University. He is the author of The International Court of Justice and the Judicial Function (Oxford University Press, 2014). David Koller is a Legal Officer with the United Nations. He previously served as Special Assistant to the President of the International Criminal Court, Legal Officer in the Appeals Chamber of the International Criminal Court, and Advocacy Officer for the ngo Watchlist on Children and Armed Conflict. He earned his Juris Doctor from New York University School of Law and has published extensively in the areas of international legal theory, international criminal law, and international humanitarian law. Steve Kostas is a lawyer with the Open Society Justice Initiative’s litigation team. Mr. Kostas litigates cases across the Justice Initiative’s areas of work, focusing in part on seeking accountability for state crimes such as crimes against humanity and systematic torture. He previously worked at INTERIGHTS on counterterrorism and national security cases, where he investigated and litigated cases regarding extraordinary rendition. He was the senior legal officer in the appeals chamber and legal advisor to the President of the Special Court for Sierra Leone, and before that an associate legal officer to the President of the International Cri­ minal Tribunal for the Former Yugoslavia, and an International Bar Association Fellow in the appeals chamber of the International Criminal Tribunal for Rwanda. Francesco Moneta is a Legal Officer at the International Atomic Energy Agency. Prior to that, he worked as a Legal Officer at the Organisation for Security and Co-operation in Europe and at the International Criminal Tribunal for the former Yugoslavia.

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He holds a PhD in international law from the University of Florence and an advanced degree in law from the University of Pisa, Italy. David K. Nanopoulos is a legal officer in the Codification Division of the United Nations Office of Legal Affairs. He previously worked at the International Court of Justice as a legal officer and special assistant to the Registrar and at the International Criminal Tribunal for the former Yugoslavia. He also taught at the University of Paris Ouest Nanterre La Défense and at the University of Strasbourg. Jan Christoph Nemitz Dr. iur. (Freiburg i.Br., 2002), Ass. iur. (Konstanz, 1999), JM (Stockholm, 1996). He is working as a Legal Officer in the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia in The Hague, The Netherlands. He was a research assistant at the Max Planck Institute for Foreign and International Criminal Law in Freiburg im Breisgau, Germany (1999–2002). He  has been teaching classes on international criminal procedure at the Universities of Bonn, Münster, and Lund. He has given over 40 presentations on topics of international criminal law at international seminars and conferences, and he has published more than 30 publications in academic books and journals on various legal issues, including international criminal law and public international law. Kirsten Roberts BCL, M.Litt., is a PhD candidate and Dickson Poon Scholar at the Dickson Poon School of Law, King’s College London. From 2008–2013, she was Acting Deputy Chief Executive and Director of Research, Policy and Promotion of the Irish Human Rights Commission (ihrc), Ireland’s National Human Rights Institution (nhri) and from 2008–2011 she was also coordinator of the European Group of nhris. For the 2012/2013 academic year, she was a Visiting Researcher at Harvard Law School. Prior to joining the ihrc, Ms. Roberts worked as a legal officer in the icty. Her previous experience has included the Permanent Representation of Ireland to the Council of Europe, European Court of Human Rights, European Court of Justice, and Amnesty International. Wolfgang Schomburg was elected the first German Judge of the un Tribunal for the former Yugoslavia (icty) in The Hague, The Netherlands in 2001. He was elected Trial Chamber II’s Presiding Judge and assigned to the Appeals Chamber in 2003. As of 2003 he also served as a Judge in the Appeals Chamber of the un Tribunal for Rwanda

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(ictr) in Arusha, Tanzania, until 2008. He works as a lawyer Of-Counsel at fps Law, Berlin, and is an honorary and teaching Professor at Durham University since 2009. He holds a Doctor of Civil Law h.c. from Durham University and he has been awarded the German Great Cross of Merits. He has given many lectures and has held numerous seminars at Universities, Centers for vocational training for Judges, Prosecutors, Defense Counsel, and Police officers, as well as at courts throughout the world. He has published more than 130 publications, in particular in the field of criminal law. He is a Member of the board of directors at the International Organization for Criminal Law (aidp), the European Law Academy (era), the Max-Planck-Institute for foreign and international criminal law (mpi Freiburg), and the German Section of the Society for the United Nations (dgvn).

Introduction This book is, first and foremost, a book about protecting the innocent during and after war; secondarily, it is a labour in honour of the life and work of our friend and colleague, Joakim Dungel. And that order of priority is as Joakim would have wanted it. Shortly after Joakim’s death in Afghanistan in 2011, some of his friends and colleagues, together with Joakim’s sister, Emilia Dungel, helped institute the Joakim Dungel Lectures in International Justice, and the first session was held in the spring of 2012. In addition to this annual lecture series at Joakim’s undergraduate university of Göteborg, Sweden, we thought it would be fitting to publish essays on topics close to Joakim’s interests and concerns in a book in his honour. To us, the theme of the book was obvious, mirroring the subject that was of critical importance to Joakim and for which he ultimately gave his life. The first section of the book collects three of the most notable lectures from the annual lecture series. Included is a lecture from each of the annual programmes since 2012. The first of these lectures (the first chapter of the book) is the text of a lecture given by Grant Dawson at the Inaugural Joakim Dungel Lectures in International Justice at the University of Göteborg on 25 May 2012. The lecture— entitled ‘Tribute to Joakim Dungel’s Unfinished Work: Whether the Incident at Wounded Knee Creek on 29 December 1890 Was a Crime Under the Applicable Law of the Time’—is an attempt to complete a piece of Joakim’s unfinished scholarship. The chapter first sets the factual and historical stage for the events that unfolded on 29 December 1890 in present day South Dakota, whereby a number of Native Americans and members of the 7th Cavalry of the u.s. Army were killed. The relevant domestic and international law that applied to the situation is identified. This law is then applied to the facts of the incident, in order to ascertain whether any criminal liability could have been assigned to the actions of the 7th Cavalry, especially for the killing of women and children. The chapter concludes that incidents like Wounded Knee can serve as didactic tools to prevent such killings in the future. The second chapter reflects Wolfgang Schomburg’s commentary ‘On Responsibility’, which was presented during the 2013 Joakim Dungel Lectures in International Justice, in which Schomburg addresses several aspects of criminal responsibility in national and international law. He posits that, in national criminal law, individual criminal responsibility may be attached to a failure to act if there is a duty under the law to act such that omission is equated to committing a crime. The international law concept of the responsibility to

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004236592_002

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protect seeks to address the international community’s efforts to adequately prevent and punish genocide, war crimes, and crimes against humanity. The notion of transitional justice describes the idea of addressing, conceptualising, and clarifying the necessary steps to regain peace and to work on reconciliation. The chapter concludes by addressing the concept of command responsibility in international criminal law, in particular in light of the Orić case before the International Criminal Tribunal for the former Yugoslavia (icty). As an Associate Legal Officer at icty, Joakim closely supported Judge Schomburg during the appeal in the Orić case. Chapter 3 records Gleider Hernández’s presentation at the 2014 Joakim Dungel Lectures in International Justice. The use of drones (unmanned aerial vehicles) has raised a number of questions with respect to the application of principles relating to jus ad bellum and jus in bello. The author seeks to highlight some points about the efficacy and legality of such operations. He highlights a number of legal questions on which there appears to be consensus as to the legality or illegality of such operations, including the applicability of international human rights law, the organisation and intensity thresholds to be met, and the conduct of hostilities. He also illuminates many of the points on which there remains serious divergence of views: the thresholds to be met for the invocation of a right to self-defence, the geography of conflict, the standards through which to measure direct participation in hostilities, and the obligation to investigate. The second section of the book focuses on current issues regarding the protection of civilians during armed conflict. It includes essays of academic and practical significance, which are related to issues on which Joakim worked. These essays, written in Joakim’s honour by his friends and colleagues, reflect the breadth and depth of his interests. In Chapter 4, David Koller describes the development of international humanitarian law relating to children and the problems in the enforcement of that law. It traces the evolution of the Children and Armed Conflict agenda of the United Nations (un) and international criminal law as two new means to enforce international humanitarian law. The chapter examines the purported challenges arising at the intersection of the three paradigms of international humanitarian law, criminal accountability, and political engagement. It concludes that the purported conflict between political negotiations and criminal punishment is actually inherent in each paradigm and not a consequence of conflicting paradigms. However, other potential paradigmatic clashes may emerge if the processes of political engagement and criminal accountability are allowed to become unmoored from their international humanitarian law foundations.

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Leah Campbell, in the fifth chapter, explores the utility of the un Security Council’s imposition of targeted sanctions to address threats to international peace and security and examines the work of the Security Council’s Al-Qaida Sanctions Committee. She outlines the Committee’s procedural framework and explores the tension between these procedures and international human rights law. In particular, the chapter looks for a middle ground between the Committee’s pre-emptive targeting policy and fundamental due process rights. Finally, Campbell examines domestic implementation of Security Council targeted sanctions and the potential for measures to most effectively protect civilians against threats to international peace and security caused by terrorist acts. In Chapter 6, Niki Ganz explores the un’s efforts to coordinate the protection of civilians in Afghanistan, focusing on the challenges the un faces in implementing its mandate as shaped by the competing interests of both the Taliban and international military forces on the ground. Although the un is able to participate in the establishment of norms for the protection of civilians during peace keeping missions, the track record of success in protecting civilians from harm has been mixed, as evidenced by the metrics of civilian casualties. However, the un’s work in raising the awareness of this problem has been effective in reducing even more grievous injury to an already afflicted population. Chapter 7, by Jan Nemitz, emphasises the deterrent and educational effect of proper training for both military personnel and civilians in international humanitarian law and international criminal law, as part of the endeavour to prevent crimes during an armed conflict. The argument is advanced that such training should be undertaken with a close view to criminal prosecutions in both international and national courts and is an indispensable factor in any effort to strengthen the protection of civilians in armed conflict by way of deterrence and education. The chapter explores these principles in the specific context of domestic prosecution of German soldiers for alleged crimes in Afghanistan. Lessons are drawn from these cases in order to determine what has been done—and what has yet to be done—to prevent civilians from being victimised in the armed conflict in Afghanistan and elsewhere. In Chapter 8, Shannon Ghadiri examines whether the denial of a fair trial should be considered a crime against humanity. After a review of post-Second World War era cases dealing with the subject, she examines the application of human rights law regarding fair trial rights during national emergencies. Emphasis is placed on the fact that such derogations result in the right to a fair trial finding greater protection during times of war than during times of peace. In the ninth chapter, Chris Black offers a reflection on the proper place enjoyed by the concept of repression in the broader scheme of international

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Introduction

humanitarian law (ihl). He undertakes to demonstrate how ihl’s primary focus is to prevent violations rather than responding to them. He argues that it is only within the context of taking corrective (or possibly repressive) action in the event of serious violations of ihl that a potential criminal justice response arises. He then examines the inter-relationship of two different conceptions of ihl and cautions that excessive attention to international criminal prosecutions may undermine ihl’s preventative aims. Chapter 10, by Francesco Moneta, analyses the notion of disproportionate attack in international humanitarian law and international criminal law. It discusses how the icty and the International Criminal Court (icc) have grappled with the practical challenge of defining and applying the war crime of disproportionate attack. Special focus is devoted to questions of the existence of this crime in non-international conflict, of the constituent elements of such crime, and of the required balancing test between military advantage and injury to civilians. Moneta provides suggestions on how to address these questions and concludes that further attention to the notion of disproportionate attack from judicial authorities (especially the icc) is needed. In Chapter 11, Robert Heinsch examines the value of decisions of international criminal tribunals against the background of the legacy of the icty and the International Criminal Tribunal for Rwanda (ictr). Starting from the observation that both tribunals, during their 20 years of existence, have contributed considerably to the extension of the scope of legal protection of victims of mass atrocities, Heinsch looks at how this sometimes progressive jurisprudence can be harmonised with the assumption of article 38(1)(d) of the Statute of the International Court of Justice that decisions of international courts and tribunals can only be seen as subsidiary sources of international law. Discussing the current academic discourse on the normative value of decisions of international criminal courts, Heinsch comes to the conclusion that article 38(1)(d) is not fully reflective of the current reality of the status of sources of international law. The author suggests that the value of decisions of international tribunals should rather be seen as a quasi-formal source of international law, having the capacity not only to crystallize newlydeveloping customary international law, but also to create new rules of customary international law for the protection of victims of armed conflicts and mass atrocities. In Chapter 12, Frédéric Bostedt discusses the efforts of the African Court on Human and Peoples’ Rights in 2011 to protect Libyan persons demonstrating against the regime of Colonel Muamar Gadaffi. Holding that there existed a situation of extreme gravity and urgency, the African Court issued a provisional measure ordering Libya to stop these actions. Bostedt utilises this case

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as a starting point to analyse how and under what circumstances provisional measures by human rights courts can be used to protect civilians in the case of an armed conflict or similar emergency situations. He posits that human rights courts have generally developed an adequate procedure to quickly react to a situation and order provisional measures. The substantive requirements for ordering provisional measures do not appear to be high hurdles in a situation of armed conflict, and the requirements of gravity, urgency, and irreparable harm may even be presumed to exist in such situations. Although the scope of provisional measures makes them a suitable tool to protect civilians in armed conflict situations, their binding nature is no guarantee for compliance. The implementation of a provisional measure depends on the state concerned, and the political pressure by supervisory bodies is the only means available for compelling a state to comply. The third section of the book deals with the incipient and evolving system of transitional restorative justice for the victims of armed conflict. Chapter 13 contains an analysis of Kirsten Roberts on the long-term needs of victims of violations of international human rights law or international humanitarian law. These needs may last a lifetime and have consequences across multiple aspects of the victims’ lives. While these rights have been a growing focus of international law in recent years, the needs of victims of conflict are often a marginalised part of the discussion. Current international standards concentrate on issues of immediate justice solutions and justice-linked reparations and do not clearly provide for long-term holistic support. Roberts examines the current international standards and possible trends towards a more long-term focus for victims’ rights, using Northern Ireland as an example of what a domestic victim-support system can look like. This chapter contends that a holistic, long-term national-level approach is needed in order to fully support the needs of victims of conflict. David Nanopoulos, in Chapter 14, contends that the victims of armed conflict, who were traditionally seen in the past as mere objects of international law, have progressively become the direct beneficiary of this law. Influenced by the imperatives of human rights law, the law of state responsibility has affirmed this evolution, and the International Court of Justice has elaborated its actual content in recent jurisprudence. This evolution becomes particularly apparent in the disputes on compensation dealt with by the Court. In Chapter 15, Philipp Ambach argues that reparations for victims of atrocity crimes are at the very heart of an evolving system of transitional restorative justice. The reparation scheme established by the regulatory framework of the icc forms an essential part of the redress to victims of international crimes that goes beyond truth and accountability, in the form of restitution,

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compensation, and rehabilitation. This chapter examines the guiding principles of the icc’s reparation scheme and assesses the jurisprudence of the first reparations proceedings before the icc in the Lubanga case. The chapter addresses two distinct, yet interlinked, paradigms related to reparations before the icc, both of which entail challenges for the icc reparation scheme’s practical application. The first paradigm relates to the devastating effects on society resulting from the crimes within the icc’s jurisdiction. Drawing upon an unfinished law review article by Joakim, the author contends that tailoring appropriate reparations in such cases may require the icc to consider political issues alongside legal considerations. The second paradigm is connected to the fact that, while the conflict situations in which international crimes occur generally victimise a large number of people, icc reparations are limited to the victims of the crimes tried by the icc that result in a conviction. As a result, an icc reparations award may not be able to provide redress to all victims in a given conflict. After analysing these two paradigms and how they interact, Ambach explores how the icc’s reparation scheme has dealt with these challenges. Some recommendations are proposed regarding how to overcome these challenges. A common thread running through the chapters of this book is the very nature of international humanitarian law (ihl) itself—the notion that, although in some limited instances it may not be illegal to wage war, it is imperative to follow certain rules when engaged in an armed conflict. Modern ihl was initially concerned with the treatment of combatants wounded in battle, but quickly grew to encompass the protection of civilians during war. ihl, on the one hand, stipulates the means and methods of warfare between combatants of the parties to a conflict. On the other hand, it regulates which (groups of) persons have to be protected during armed hostilities; importantly, it prohibits the direct targeting of non-combatants and thus civilians.1 An attack cannot be indiscriminate (principle of distinction).2 One of the cornerstones of the rules of ihl is the rule of proportionality and its logical counterpart, military necessity. Essentially, in order to obtain a 1 First Additional Protocol, art. 51(2). See also International Committee of the Red Cross, Customary ihl Commentary, Cambridge University Press, Rule 1 (‘The parties to the conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians’.), available at: www.icrc .org/customary-ihl/eng/docs/v1_cha_chapter1_rule1. 2 An indiscriminate attack is characterised as one that is not directed at a specific military objective or one that employs a method of combat that cannot be directed at a specific military objective or distinguish between military and civilian objectives. Ibid.

Introduction

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necessary military objective, one is allowed to inflict civilian casualties, provided they are proportional to the military objective. In concrete terms, therefore, it is not necessarily illegal to kill a sleeping civilian in his or her bed, as long as the civilian was not directly targeted. But this is small comfort to the victims of lawful targeting decisions that inflict civilian casualties. The resolution of this dilemma requires an acknowledgement of different starting premises: the premise that a decision taken on grounds of military necessity may lawfully lead to civilian casualties, as opposed to the premise that civilians should not be killed during war.3 The reconciliation of these two baseline propositions is a central question that soldiers, lawyers, diplomats, activists, and politicians have been grappling with for decades. It is not only a legal question. It is also a moral one. Arguments can be spun to justify almost any act, but how can harming an innocent ever be adequately justified? Utilitarian solutions are not always satisfactory. Since the end of the Cold War, the beginnings of a global international criminal justice system have come into being. This is an important legal and moral event: the enforcement of ihl and human rights norms in a criminal context. International criminal law has taken up international legal norms and added a punitory bite to ihl’s normative bark. As stated by David Luban, there has been a ‘gestalt switch’ consistent with the ‘radical goal of [international criminal justice]’, which is ‘a moral transformation of how ordinary men and women regard political violence against civilians’.4 In this sense, the un ad hoc tribunals in particular have brought an objective normative element, and thus legal stability and certainty, to some ihl rules. While previously it was up to each warring party to decide whether its attack was directed against a legitimate target, it is now for an objective arbiter to decide whether this decision was correct. This is a question that concerned Joakim, as well as the authors of this book. It is also a question that will not be answered any time soon. Armed conflicts have plagued humanity from our very origin as a species. In modern times, the Cold War was waged between bipolar geo-political factions; and, although those factions did not end up unleashing their nuclear arsenals, hundreds of smaller conflicts were waged in order to maintain or alter the relative ‘balance’ of power. After the Cold War, conflicts have continued. Weak as well as failing states are now the main battle ground—and 3 See generally David Luban, ‘Military Necessity and the Cultures of Military Law’, Leiden Journal of International Law 26 (2013), 315. 4 David Luban, ‘After the Honeymoon, Reflections on the Current State of International Criminal Justice’, Journal of International Criminal Justice 11 (2013), 505, 509.

8

Introduction

increasingly elements of the Cold War bipolarity re-enter the scene. Efforts to regulate the use of force by having it subject to international legal norms is not the only means by which to achieve an improvement in the manner in which we wage war, but it is nevertheless an important tool. But there is a need to look beyond this concept, as several chapters in this book point out. International law must always be pursued hand-in-hand with a comprehensive and integrated approach to the complex and intractable problems that lead to war. Economics, public policy, education, the rule of law, human rights, and sustainable development must form part of the remedial array of solutions. One of the areas in which the efforts of the international community could be used to maximum effect is in assisting failing states. The same effort is required for states that emerge from a prolonged armed conflict and are in urgent need of help to establish a viable and stable post-conflict society. Such efforts encompass the establishment of basic human rights infrastructure, the restoration of environmental support systems, the eradication of poverty, the provision of universal primary school education, the strengthening of the rule of law (through bolstering police forces and court systems), and providing loan guarantees to encourage private investment.5 International and bilateral efforts to help failed and failing states must drill down to the roots of the problems and implement a conglomeration of international, regional, domestic, and local solutions. Helping such states and their populations would assist in averting wars before they happen (again), and thus would obviate the need to even apply international humanitarian law in relation to the protection of civilians. Joakim understood these complex and interlinked issues and shaped his professional life around addressing them. Through his work and his scholarship, he demonstrated the criticality of adopting a comprehensive approach to dealing with the consequences of armed conflict, as well as to its prevention. He was able to analyse detailed legal questions, while the same time remaining cognisant of the bigger picture.6 Joakim put his ideas into practice: he worked 5 See generally Lester R. Brown, World on the Edge: How to Prevent Environmental and Economic Collapse (2011). 6 For Joakim’s unpublished article on the icc and its reparation scheme, see Chapter 15 in this book. See also Joakim Dungel, Humanitarian Use of Force? The Right to Afford Humanitarian Assistance in Internal Armed Conflicts, Masters Thesis for the Masters of Law Program at the Department of Law, School of Economics and Commercial Law, Göteborg University, February 2004; Joakim Dungel, Command Responsibility in International Criminal Tribunals, Paper Presented at the National Consultative Summit on Extrajudicial Killings and Enforced Disappearances—Searching for Solutions, 16–17 July 2007, Manila; Joakim Dungel and Grant Dawson, ‘Compulsion of Information from States and Due Process in Cases Before the

Introduction

9

not only for the un ad hoc International Criminal Tribunals for the former Yugoslavia and Rwanda and the Special Court for Sierra Leone, but also for the Temporary International Presence in Hebron and the United Nations Assistance Mission in Afghanistan. He considered that working in international courts was an important part of protecting civilians during armed conflict, mainly through their normative force and deterrent effect of future crimes. But he also wanted to play an active, positive, and stabilising role in unfolding situations of war and instability in order to do his part to prevent further crimes. This was why he chose to work for the un as a human rights officer in Afghanistan. This book attempts to honour and affirm Joakim’s choice.

International Criminal Tribunal for the former Yugoslavia’, Leiden Journal of International Law 20 (2007), pp. 115–163; Joakim Dungel and Frédéric Bostedt, ‘The International Criminal Tribunal for the former Yugoslavia in 2007: Key Developments in International Humanitarian and Criminal Law’, Chinese Journal of International Law (2008), vol. 7, No. 2, 389–415; Joakim Dungel and Vincent Sautenet, ‘Recent Clarifications of Superior Responsibility by Inter­ national Criminal Tribunals’, The Global Community: Yearbook of International Law and Juris­ prudence (2008), issue 1, pp. 257–265; Joakim Dungel, ‘Defining Victims of Crimes Against Humanity: Martic and the International Criminal Court’, Leiden Journal of International Law 2009, 22(4), 727–752; Joakim Dungel and Shannon Ghadiri, ‘The Temporal Scope of Command Responsibility Revisited: Why Commanders Have a Duty to Prevent Crimes Committed After the Cessation of Effective Control’, 17 U.C. Davis J. Int’l L. & Policy 1 (2010–2011).

Part 1 Addresses from the Joakim Dungel Lectures in International Justice

∵

chapter 1

An Analysis of Whether the Actions of the 7th Cavalry at Wounded Knee Creek on 29 December 1890 were Crimes under the Applicable Law of the Time Grant Dawson* There’s things ‘alf in shadow and ‘alfway in light.1 1

Introductory Note

This chapter is an unabridged version of a paper that was delivered at the Inaugural Joakim Dungel Lectures in International Justice at the University of Gothenburg on 25 May 2012 in Gothenburg, Sweden, which was entitled ‘Tribute to Joakim Dungel’s Unfinished Work: Whether the Incident at Wounded Knee Creek on 29 December 1890 Was a Crime Under the Applicable Law of the Time’. In 2003, I began to explore the possibility of preparing a paper analysing the events at Wounded Knee Creek from an international law perspective. I prepared a detailed outline for a paper and conducted preliminary research to determine whether anything along these lines had been written before. Although there were historical treatments of the subject, there was little addressing it from a legal perspective, much less an international legal perspective. I shared my outline and research with Joakim Dungel—who was working with me at the time on the Slobodan Milošević trial at the United Nations International Criminal Tribunal for the former Yugoslavia (icty)—and asked

* The author sincerely expresses his gratitude to Tatjana Dawson, Guido Acquaviva, Hirad Abtahi, Allen Borrelli, Bayo Callender, Robert Weigel, and Bernadette Dawson for their comments. Ms Callender also provided research assistance for which the author is most grateful. The views expressed herein are those of the author alone and do not necessarily reflect the views of the Organisation for the Prohibition of Chemical Weapons. 1 A line from the song ‘Chim Chim Cher-ee’ from the 1964 musical motion picture Mary Poppins, written by Robert B. Sherman and Richard M. Sherman.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004236592_003

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him to co-author a paper with me. Joakim accepted my invitation and began to review the sources in the outline. Shortly afterwards, I decided to focus on other projects and gave my blessing to Joakim to pursue the paper without me. I never heard anything further from him on the subject, although we did go on to co-author an article on a different topic that was related to our work together on the icty Rules Committee. Years later, and shortly after Joakim’s death, I was sorting through some of Joakim’s boxes that he had stored in The Hague while he was in Afghanistan, in order to return his belongings to his family in Sweden. I came across a binder in which Joakim had collected his research on Wounded Knee. It was like finding buried treasure. Not only had Joakim methodically printed out all the sources I had discovered, but he also went further. Joakim had found and printed out dozens of factual and legal sources pertaining to the subject, copiously underlining the materials and providing comments in the margins. This chapter completes the work that Joakim and I started so many years ago, and draws upon Joakim’s analysis of the subject. 2

Facts of the Case

2.1 The Plains Wars The Native American Sioux people are comprised of the Dakota, the Nakota, and the Lakota. The Lakota are made up of seven tribes,2 and among these seven are the Oglala, Hunkpapa, and Miniconjou—all of which feature in the events that took place in 1890 at Wounded Knee Creek, which is located in the present-day state of South Dakota in the United States. As European-Americans began to encroach upon Lakota territory, the Lakota emigrated west from the Great Lakes region of North America to the Great Central Plains region of the continent. The famous American pioneers, Meriwether Lewis and William Clark, encountered the Lakota and were refused passage through their territory during their journey across the United States from 1804 to 1806. In the 1830s and 1840s, especially with the discovery of gold in California, more and more European-Americans migrated to the lands of the Native Americans, and conflicts emerged. The conflicts of the 19th century between the Native Americans who inhabited the Great Central Plains of North America and the United States forces are often referred to as the Plains Wars from about 1851 to

2 The seven tribes are the Sicangu, Oglala, Itazipco, Hunkpapa, Miniconjou, Sihasapa, and Oóhenuŋpa.

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1890. These wars were part of the American Indian Wars, which were fought over the course of 300 years. One of the episodes in the Plains Wars unfolded from 1865 to 1868 and was called Red Cloud’s War—also referred to as the Bozeman War or the Powder River War—which ended with the second Fort Laramie Treaty of 1868.3 In this treaty, the United States acknowledged the sovereignty of the Lakota people over the Great Plains in exchange for free passage on the Oregon Trail.4 Gold and silver were then discovered in the Black Hills in 1874, and the Black Hills Gold Rush was on. The United States did not enforce the treaty, and European-American settlers and gold prospectors systematically violated it. This led to Sioux attacks on the settlers and to the army being reinforced.5 The Great Sioux War was fought from 1876 to 1877 between the Sioux and the United States Army. Part of the strategy of the United States was to kill and drive to extinction all the buffalo in the region, upon which the Sioux depended for food. The Sioux were ultimately defeated, confined to specific areas designated by the United States Government—called reservations—and forced to accept food hand-outs.6 In 1877, by means of the Black Hills Act, the United States Congress confiscated the Black Hills portion of the 1868 Treaty Reservation—7.3 million acres—without the consent of three-fourths of the adult male Native Americans, as was required by the 1868 Treaty.7 An additional 9 million acres of the 1868 Treaty Reservation were acquired by an Act of Congress on 2 March 1889.8 In the words of historian Dee Brown, ‘[t]he Great Sioux Reservation was broken into small islands around which would rise the flood of white immigration’.9 The terms of the 1868 Treaty were systematically violated by the United States Congress and mismanaged by the Department of the Interior. The Lakota were not given the food rations that they were promised, and they were starving on the reservations to which they were confined. There were reports of women standing on food lines for days in the bitter winter cold, while the 3 D. Brown, Bury My Heart at Wounded Knee, An Indian History of the American West (1970) (hereinafter ‘Bury My Heart’), at 121–46. The page citations refer to the Vintage edition in 1991. 4 See www.archives.gov/education/lessons/sioux-treaty/#documents, accessed 7 January 2013 (containing a scanned copy of the original treaty). 5 Bury My Heart, supra note 3, at 276–9; United States v. Sioux Nation of Indians, 448 US, at 371, 376–8 (1980). 6 Bury My Heart, supra note 3, at 285–313. 7 See Bury My Heart, supra note 3, at 300–1, 416–17; Sioux Nation of Indians, 448 US at 383, note 14. 8 Bury My Heart, supra note 3, at 428–31. 9 Ibid., at 431.

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employees of the Department of the Interior waited inside to distribute the rations. The crops of both Native Americans and European-American settlers failed in the poor soil conditions of South Dakota. Even when the rations were distributed, they were only a fraction of what had been promised under the specific terms of the treaty.10 Over a century later, the United States Indian Claims Commission would rule that the Government had ‘acquired the Black Hills through a course of unfair and dishonourable dealing for which the Sioux were entitled to damages’ and awarded the Native Americans 17.5 million us dollars as compensation for the land that was taken from them. The us Court of Claims affirmed this decision, concluding: ‘A more ripe and rank case of dishonourable dealing will never, in all probability, be found in our history’. In later proceedings, the us Supreme Court affirmed a decision awarding the Sioux people 100 years of interest.11 2.2 Lead-up to the Incident In these desperate circumstances, in January 1889, a Paiute prophet from Nevada named ‘Wovoka’ rose to fame. He reported that he had a vision that the heralded second-coming of Jesus Christ was at hand. The Europeans would be driven from North America, the buffalo would return, and the Native Americans who had been killed would arise from the dead. But, in order for this deliverance to come to pass, Wovoka said that the Native Americans had to perform the Spirit Dance. The name of the dance was derived from the reanimation of the Native Americans’ ancestors and was mistranslated into English as ‘Ghost Dance’. A delegation of Sioux visited Wovoka in Nevada and brought the Ghost Dance back to the Dakotas in the fall of 1889. The new religious movement spread like wildfire and was called the ‘Messiah Craze’ by EuropeanAmericans. The leaders of the Sioux promised their people that, if they practiced the Ghost Dance, the Earth would be rejuvenated in the spring of 1891.12 The Lakota version of the Ghost Dance involved the belief that special shirts worn during the ceremony became bulletproof.13 Ignorance and sensational reporting by the media caused settlers to fear that the Ghost Dance was an indication that the Sioux were planning to go on 10 11 12

13

Sioux Nation of Indians, 448 US at 380 and note 11. Ibid., at 387–8, 424. R.E. Jensen, ‘Another Look at Wounded Knee’, in R.E. Jensen, R. Eli Paul, and J.E. Carter, Eyewitness at Wounded Knee (1991) (hereinafter ‘Eyewitness at Wounded Knee’), at 3. The page citations refer to the Bison Books first paperback printing in 2011. See Bury My Heart, supra note 3, at 431–5. Eyewitness at Wounded Knee, supra note 12, at 6, 10–11; Bury My Heart, supra note 3, at 434.

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the ‘warpath’.14 Moreover, since the end of the American Civil War in 1865, funding of the army had significantly decreased. Major General Nelson A. Miles—who was in charge of the United States army in the Dakotas—used the situation as an excuse to lobby for an increase in the number of army troops in the Dakotas. General Miles also criticised the Department of the Interior for its mismanagement of the reservations and advocated that the reservations should be placed under military control instead.15 With the Ghost Dance hysteria and with the influx of thousands of army troops into the Dakotas, the Lakota tribes were ordered to come into the headquarters of the Indian agencies and not allowed to leave without permission. Some small groups refused to comply with this order. One such group was Chief Sitting Bull’s group of Hunkpapa. On 15 December 1890, federal Indian police of the Department of the Interior attempted to arrest Sitting Bull at his home on the Standing Rock Reservation. Immediately prior to the arrest, us Indian Service Agent James McLaughlin gave a barrel of whiskey to the Indian agents. A fight erupted during the arrest, and Sitting Bull was killed, along with other Hunkpapa and six Indian policemen.16 About 200 members of the Hunkpapa fled the scene.17 On 23 December 1890, a group of Miniconjou, led by Spotted Elk (also known as ‘Big Foot’), left the Cheyenne River Indian Reservation to travel to the Pine Ridge Indian Reservation to join Red Cloud, the Chief of the Oglala, who had invited Spotted Elk to come to Pine Ridge in order to make peace overtures to the us forces.18 Among this group were 38 Hunkpapas who had fled the Standing Rock Reservation after Sitting Bull was killed; no more than 12 of them were men of fighting age.19 It is interesting to note that a member of Big Foot’s band reported that he was told by a local squatter on 23 December that the army intended to apprehend all the men (not the

14

15

16 17 18 19

See Eyewitness at Wounded Knee, supra note 12, at 6. See also R.A. Smith, Moon of Popping Trees, The Tragedy at Wounded Knee and the End of the Indian Wars (1975) (hereinafter ‘Moon of Popping Trees’), at 203. The page citations refer to the first Bison Books edition in 1981. Miles, in fact, was successful: in 1891 the management of the reservation system was taken away from the Ministry of the Interior and given to the army. W.S.E. Coleman, Voices of Wounded Knee (2000) (hereinafter ‘Voices of Wounded Knee’), at 370–1. Voices of Wounded Knee, supra note 15, at 197–224; Bury My Heart, supra note 3, at 437–8; Moon of Popping Trees, supra note 14, at 146–60. Bury My Heart, supra note 3, at 439; Moon of Popping Trees, supra note 14, at 161–2. See Voices of Wounded Knee, supra note 15, at 242–53. Voices of Wounded Knee, supra note 15, at 224.

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women) that night and transport them to Fort Meade and then to ‘an island in the ocean in the east’.20 On 23 December 1890, there were fewer than 700 Lakota not confined to the agency headquarters, one-third of whom where men of fighting age. In contrast, General Miles had assembled 8,000 army troops in the Dakotas, and there were 500 Lakota scouts working for the Bureau of Indians Affairs. 2.3 28 December 1890 On 28 December 1890, the group of Miniconjou and Hunkpapa—which numbered around 350 persons—was intercepted at Porcupine Butte in the Badlands of South Dakota by a detachment of the 7th Cavalry of the us Army, commanded by Major Samuel M. Whitside. Whitside was under the following written orders from General Miles, dated 27 December: [Y]ou must make every effort to find Big Foot and then move on him at once and with rapidity. There must be a solution reached at the earliest possible moment. Find his trail and follow, or find his hiding place and capture him. If he fights, destroy him.21 The 7th Cavalry detachment escorted the Native Americans about five miles to Wounded Knee Creek, where they camped for the night. Colonel James W. Forsyth—the commander of the 7th Cavalry—arrived later in the evening with the remainder of the 7th Cavalry, which was comprised of eight troops of cavalry, one company of scouts, and four pieces of light artillery. In total, there were at least 500 trained fighting men.22 Of the 350 Native Americans, about 120 were men of fighting age or boys. The Native Americans set up camp along a ravine that was to the west of Wounded Knee Creek, and the army set up their camp surrounding them. The army also deployed four rapid-fire Hotchkiss guns, aimed directly at the Lakota camp. Along with other supplies brought to the troops that night, a local merchant smuggled into the army camp a cask of whiskey. The officers and soldiers celebrated their victory over the Lakota and their capture of Spotted Elk.23 20 21 22

23

See Eyewitness at Wounded Knee, supra note 12, at 17–18; Bury My Heart, supra note 3, at 440. Voices of Wounded Knee, supra note 15, at 260. Voices of Wounded Knee, supra note 15, at 268; Bury My Heart, supra note 3, at 441. Rex Smith states that many of the men of the 7th Cavalry were inexperienced and had never been under fire. Moon of Popping Trees, supra note 14, at 181. See Voices of Wounded Knee, supra note 15, at 274.

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The man who was paid $25 to transport the whiskey later confessed to a priest that he felt guilty because, according to him, the soldiers were drunk the following morning.24 On the night of 28 December, some of the members of the 7th Cavalry tried to gain access to Spotted Elk, who had pneumonia and who spent the night in one of the medical tents of the army. But they were refused entry by the guards.25 Also during the night, officers and soldiers went to the tents of the Lakota and questioned them, trying to ascertain which of the group had fought at the Battle of the Little Bighorn in 1876, where the 7th Cavalry had been defeated by the Lakota, Northern Cheyenne, and Arapaho.26 It has been speculated by historians that the events of the following day were, in part, motivated by revenge for that defeat in 1876.27 2.4 29 December 1890 2.4.1 Note on Source Material Before turning to the specific events of 29 December, a note on source material is appropriate. William Coleman’s account of the events at Wounded Knee on 29 December in Voices of Wounded Knee directly reports the primary accounts of those who actually witnessed the events: the victims, the soldiers, and the civilian bystanders. Coleman juxtaposes contradictory accounts and generally allows the reader to decide for him- or herself which is more credible. Coleman’s work is therefore a chronological compilation of verbatim statements taken 24

25 26

27

Voices of Wounded Knee, supra note 15, at 273. Rex Smith reports that ‘[a]ccording to all reports, the celebration was neither lengthy nor particularly boisterous, and before long cavalry tents went dark as lanterns were extinguished’. Moon of Popping Trees, supra note 14, at 179. See Bury My Heart, supra note 3, at 441 (‘Forsyth and his officers settled down for the evening with a keg of whiskey to celebrate the capture of Big Foot’.). Voices of Wounded Knee, supra note 15, at 274; Moon of Popping Trees, supra note 14, at 178–9; Bury My Heart, supra note 3, at 440–1. Voices of Wounded Knee, supra note 15, at 274–5; Eyewitness at Wounded Knee, supra note 12, at 18 (quoting one of Spotted Elk’s band, who reported, ‘There was a great uneasiness among the Indians all night’.). Rex Smith does not mention such events and reports that ‘both soldiers and Indians slept peacefully’. Moon of Popping Trees, supra note 14, at 179. Nineteen officers and soldiers of the 7th Cavalry had fought in the Battle of the Little Bighorn. Voices of Wounded Knee, supra note 15, at 275, 278. See also Moon of Popping Trees, supra note 14, at 189 (‘There were some who claimed that the Seventh had been thirsting for revenge ever since [their defeat at the Battle of the Little Bighorn]’.); Eyewitness at Wounded Knee, supra note 12, at 85 (‘Several of [the 7th Cavalry’s] officers and men had fought at the Little Big Horn, and, because of this and romantic notions of fate and destiny, the myth of a “revenge” motive for its actions at Wounded Knee gained undue credibility’.).

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from the eyewitnesses to the events in question. Where the accounts differ materially, this is noted in the version of events in the following section. Rex Smith in Moon of Popping Trees, unlike William Coleman in Voices of Wounded Knee, does not directly report the primary sources and gives his own interpretation of events without accounting for the differing testimonies. In places, Smith’s integrated and un-footnoted narrative of the events is in direct contradiction to eyewitness testimony. Where Smith’s account is at odds with a primary source used by Coleman and where that primary source is credible, the primary source has been relied upon. This is indicated in footnotes, where appropriate. 2.4.2 Incident at Wounded Knee At daybreak on 29 December, Colonel Forsyth disposed his troops in close formation among the Lakota, within 300 yards of the council circle between the Lakota camp and the army camp. This was in contradiction to the explicit orders of General Miles that all troops should be positioned away from the captive population. Forsyth also arrayed his men in a circular formation around the council circle and the Lakota camp, essentially in two concentric circles.28 Forsyth, along with other members of the 7th Cavalry, went to the council circle and called the Lakota men to parley. After the Lakota arrived at the council circle, the troops interposed themselves between the Lakota men and their camp, where the women and children had remained.29 Forsyth demanded that the Lakota surrender their weapons, and several collections of weapons were conducted. Spotted Elk was brought to the council circle, and the negotiations between Forsyth and the Lakota continued. Some guns would be reluctantly surrendered, Forsyth would demand more, and several more would be surrendered. Forsyth finally demanded that all the weapons be surrendered, and Spotted Elk acquiesced. But the Lakota replied that all the guns had already 28

29

Voices of Wounded Knee, supra note 15, at 281; R. Eli Paul, ‘Your Country is Surrounded’, in Eyewitness at Wounded Knee, supra note 12, at 28. Rex Smith expresses the view that ‘the most positive thing that could be said for [Forsyth’s troop arrangement] was that it clearly demonstrated that (despite countless later accusations to the contrary) the army did not have the slightest intention of getting into a fight with the Indians that day at Wounded Knee’. Moon of Popping Trees, supra note 14, at 182. Smith’s speculative view discounts the possibility that Forsyth’s troop arrangement was due to either his incompetence or intoxication. The possibility that Forsyth was intoxicated is dealt with below. Voices of Wounded Knee, supra note 15, at 282–3; Moon of Popping Trees, supra note 14, at 182.

An Analysis of Wounded KNEE CREEK

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been surrendered. Forsyth then ordered his soldiers to search the camp for weapons. During the second search of the camp for weapons, the soldiers started to load their own weapons.30 According to one of the Lakota, Forsyth then ordered one of his men to order the Lakota—once they were fully disarmed—to stand right along the edge of the ravine, after which the soldiers would stand in front of them and point rifles at their foreheads as a form of penance for not surrendering their weapons earlier. Forsyth added to his order that his soldiers’ rifles would be unloaded.31 One of the Lakota reported that a soldier came to him and told him to get the women out of the camp because, in the soldier’s words, ‘I see we are going to have trouble. The colonel is half-shot’.32 At this point, about 69 guns had been surrendered, and there were about five or six guns left in the hands of the Lakota.33 There is a great deal of controversy over the details of how the first shots were fired. William Coleman, in his book Voices of Wounded Knee, juxtaposes the accounts of who fired first.34 Reading all of these accounts, side by side, it seems that the following is what happened. A Lakota medicine man began ostentatiously to dance around the council circle and to remind the Lakota men that their Ghost Shirts would protect them from gunfire. This created a lot of tension. At the same time, one of the soldiers tried to take the rifle of a young, deaf man, named ‘Black Coyote’. Black Coyote was reluctant to surrender his rifle, two other soldiers seized him from behind, a struggle ensued, and the rifle discharged into the air. At that very moment, the medicine man threw some dust into the air, and about three to five young men who had retained their weapons under blankets threw aside their blankets and aimed their rifles at one of the troops35 of the 7th Cavalry. One to two seconds passed. The accounts at this point are hopelessly contradictory, and we will never know who fired first, the 7th Cavalry or the Lakota. However, the 7th Cavalry’s fire killed half the Lakota men in the council circle in the first few seconds. In the next three to ten minutes, the Lakota who remained alive ran back to the camp to protect their families, retrieved their surrendered weapons from where they 30 31 32 33 34 35

Voices of Wounded Knee, supra note 15, at 282–7; Bury My Heart, supra note 3, at 442–4. Voices of Wounded Knee, supra note 15, at 292–3; Eyewitness at Wounded Knee, supra note 12, at 18. Voices of Wounded Knee, at 293. Ibid., at 294. Ibid., at 295–301. This was Troop K of the 7th Cavalry.

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had been collected in a pile and returned fire, or fought hand-to-hand with soldiers of the 7th Cavalry.36 Meanwhile, the army opened fire on the camp of women and children with the Hotchkiss guns. The women and children—and some of the surviving men and boys—fled to the west down the ravine behind the Lakota camp. About 25 to 30 men and boys—some of whom were wounded—tried to defend the fleeing women and children. However, they were severely outnumbered and outgunned. For a few minutes, they repelled the attack of the army while the women and children fled into the ravine. They then fell back into the ravine, covering the flight of the women and children.37 The army troops lined up on both banks of the ravine and shot the women and children from above.38 One of the officers wrote in later years: The surviving Indians now started to escape…The Hotchkiss guns were turned upon them and the battle became really a hunt on the part of the soldiers, the purpose being total extermination. All orders and tactics were abandoned, the object being solely to kill Indians, regardless of age or sex. The battle was ended only when not a live Indian was in sight.39 This went on for hours, well into the afternoon.40 Mothers who were fleeing while carrying their infants were killed. One journalist who contemporaneously witnessed the events reported: ‘The soldiers are shooting them down wherever found, no quarter given to anyone’.41 There were accounts of women 36

37

38

39

40 41

See Moon of Popping Trees, supra note 14, at 189–92; Voices of Wounded Knee, supra note 15, at 295–306; Eyewitness at Wounded Knee, supra note 12, at 19. There are differing opinions on whether the throwing of this dirt was a signal to attack or a prayer. Eyewitness at Wounded Knee, supra note 12, at 18–21. The plausibility of the view that the Lakota were orchestrating an attack on the army is dealt with below. Voices of Wounded Knee, supra note 15, at 311–12, 314; Bury My Heart, supra note 3, at 444. Cf. Moon of Popping Trees, supra note 14, at 191–4 (‘The Indians were pouring out a deadly fire [from their position in the ravine]’.); Eyewitness at Wounded Knee, supra note 12, at 20. Voices of Wounded Knee, supra note 15, at 315; Eyewitness at Wounded Knee, supra note 12, at 19. See Moon of Popping Trees, supra note 14, at 193–4 (‘If there actually ever were any justification for calling Wounded Knee a massacre, it is at this point that it occurred’.). Voices of Wounded Knee, supra note 15, at 309–10. See also Voices of Wounded Knee, at 317–18, 335 (in relation to the use of the Hotchkiss guns on the fleeing women and children); Moon of Popping Trees, supra note 14, at 193 (stating that the Hotchkiss guns were used against the Lakota in the ravine). Voices of Wounded Knee, supra note 15, at 310. Ibid., at 313.

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and children being summarily executed. Four infants were found dead, with crushed skulls. Soldiers told the women and children that, if they came out of the ravine, they would be safe; when they did so, they were shot. The dead bodies of women, children, and infants were found up to two miles away from the Lakota camp.42 The Acting Assistant Inspector General reported that he found in the brush the bodies of one woman, an eight-year-old girl, a seven-year-old girl, and a ten-year-old boy; each had received one execution-style gunshot, and each had powder burns on his or her body and clothing, indicating the close proximity of the gunshot.43 After the shooting started, a Lakota messenger immediately rode back to the Pine Ridge Indian Reservation to report what was happening at Wounded Knee Creek. When they learned the news, many of the Lakota left the agency and fled to the Badlands.44 A group of Oglala Lakota—many of them quite elderly—took up arms and immediately rode to Wounded Knee to mount a rescue. When they arrived in the early afternoon, the army attacked them. One of the Oglalas was killed, and two were wounded. The Oglalas retreated,45 but their arrival diverted the attention of some of the members of the army away from the ravine, giving the remainder of Spotted Elk’s group a better chance to flee. In addition, some of the Oglalas managed to get to the ravine; when they arrived there, some of the soldiers fled from their positions upon the banks of the ravine. The Oglalas then helped the survivors get to safety.46 After the wounded members of the 7th Cavalry were sent back to the Pine Ridge Indian Reservation, the army collected some of the wounded Lakota and transported them to the agency for treatment. The wounded consisted of women and children, most of whom died later.47 The debate over the death count continues to this day and will probably never be resolved.48 Some estimates are that 146 to 153 Lakota were killed, and 50 to 51 wounded. Of those killed, around 44 were women, and 18 were children. A person who personally buried the bodies counted 168 dead, three of whom were pregnant women.49 The Native American dead were buried in a 42 43 44 45 46 47 48 49

Ibid., at 317, 319–20. Voices of Wounded Knee, supra note 15, at 332. Ibid., at 333, 338; Moon of Popping Trees, supra note 14, at 197. Voices of Wounded Knee, supra note 15, at 333. Ibid., at 335. Ibid., at 337–8, 340; Bury My Heart, supra note 3, at 444–5. See Moon of Popping Trees, supra note 14, at 196; R.E. Jensen, ‘Big Foot’s Followers at Wounded Knee’, (1990) 71 Nebraska History, at 194–212. Voices of Wounded Knee, supra note 15, at 352.

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mass grave near the hill where the Hotchkiss guns were positioned. Survivors were found up to three days after the incident.50 Richard Jensen makes the point that the number of Lakota killed was undoubtedly higher than those interred in the mass grave because survivors and friends removed some of the dead and dying before the mass burial.51 There were 25 members of the 7th Cavalry who were killed, and 30 wounded. Some reports state that 39 were wounded, six of them fatally.52 2.5 Aftermath General Miles immediately relieved Colonel Forsyth of command and convened a military inquiry, which was held on 7 January 1891.53 This investigative inquiry was convened by Miles under Article 115 of the Articles of War of 1874,54 and its objective was to ascertain the facts of what had occurred. Only Forsyth’s officers were called to give testimony—no enlisted men. Two Lakota were allowed to give written statements. Two civilians, one of whom was employed by the army, gave evidence at the inquiry. None of the civilians who claimed that the soldiers and officers were drunk were called to testify.55 The officers repeatedly testified that they made every effort to avoid firing on women and children. The commander of the Hotchkiss guns even testified that the Lakota men must have killed their own women and children.56 50 51 52 53 54 55 56

Ibid., at 350–1. Jensen comments: ‘A total in excess of 250 is almost certain’. Eyewitness at Wounded Knee, supra note 12, at 20. Voices of Wounded Knee, supra note 15, at 354–7. Ibid., at 359–60. See www.loc.gov/rr/frd/Military_Law/pdf/A-W_book.pdf, accessed 4 May 2013. Voices of Wounded Knee, supra note 15, at 364–5. Ibid., at 360–2; see also ibid., at 297 (quoting Whitside’s testimony that the Lakota men directed their fire at army troops, behind whom was the Lakota camp), at 300–1 (quoting Wells and Lieutenant Nicholson saying the same). This interpretation is also shared by Rex Smith. Moon of Popping Trees, supra note 14, at 191 (‘With the troops deployed as they were, any bullets from B Troop volleys that failed to strike Indians flew in the direction of G Troop—three hundred fifty yards to the east and across the road. Likewise, when both B and K Troops were shooting at the Indians from certain angles, they were also shooting at each other. The Indians were in a similar situation at their location; any of the bullets that missed the soldiers sped directly into the Indian camp. Thus, it is probable that some of the army casualties were caused by the soldiers’ own guns, and that some of the Indian casualties among the women and children were caused by the Indians’ own guns’.). What Smith fails to acknowledge is that the Lakota had about five weapons, whereas the army had hundreds. Therefore, it is more statistically likely that any bullets that hit the Lakota camp at this point in the fighting were those of the 7th Cavalry, rather than of the Lakota men around the council circle.

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The testimony of the officers was in direct contradiction to the testimonies of the victims, who were extensively interviewed in subsequent years.57 The military inquiry exonerated Colonel Forsyth of any responsibility.58 The us Secretary of War approved the decision and reinstated Forsyth as the commander of the 7th Cavalry. Forsyth was later promoted to Brigadier General and then Major General.59 Twenty medals of honour were awarded to members of the 7th Cavalry for their actions at Wounded Knee. Two of these medals appear to have been specifically awarded for the events occurring in the ravine. John O’Sullivan, a Private from Texas, was commended for ‘[g]allantry in a long chase after Indians’. And John C. Gresham, a First Lieutenant from Virginia, was awarded the medal of honour because he ‘[v]oluntarily led a party into a ravine to dislodge Sioux Indians concealed therein’. The medals of honour awarded to the 7th Cavalry have never been rescinded, despite Native American campaigns urging that the medals be withdrawn. 3

Ascertainment of the Relevant Law

In order to analyse the legality of the actions of the 7th Cavalry during the events of 29 December 1890 at Wounded Knee Creek, it must be ascertained what law applied to this situation. The most prominent code of applicable law in armed conflict at the time was the Lieber Code, a set of rules governing the conduct of war codified by President Lincoln in 1863 during the American Civil War. It was the first attempt to create a comprehensive legal code for the humanitarian conduct of war on land and was named after the Prussian immigrant and Professor Francis Lieber of Columbia College, who prepared it on Lincoln’s initiative. John Fabian Witt, in his recent book entitled, The Laws of War in American History, Lincoln’s Code,

57

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Rex Smith comments as follows: ‘In the subsequent intensive investigation, the court amassed a body of evidence too impressive to be ignored by any objective historian’. Moon of Popping Trees, supra note 14, at 202. What Smith fails to consider here is that more evidence does not always mean reliable evidence. Put simply, the officers who testified had a strong motive to cover up any wrongdoing on the part of the army. And the fact that the victims were not called to testify sheds doubt upon Smith’s ‘body of evidence too impressive to be ignored’. Also curious is Smith’s accusation that anyone who disagrees with his assessment is not ‘objective’. He seems not to allow for differing views on the subject, which itself demonstrates his own lack of objectivity. Voices of Wounded Knee, supra note 15, at 364. Ibid., at 378; Moon of Popping Trees, supra note 14, at 203.

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describes the Lieber Code as ‘the foundation of the modern laws of war’.60 According to the International Committee of the Red Cross, the Code was only binding upon the forces of the United States, but corresponded to a great extent to the laws and customs of war existing at that time. In addition, the Lieber Code had an influence upon other efforts to codify the laws of war by other states, was the basis for a proposed international convention on the laws of war presented to the Brussels Conference in 1874, and motivated the adoption of the Hague Conventions regarding land warfare of 1899 and 1907.61 It is important to note that the Lieber Code was no toothless tiger, nor was it an aspirational set of norms that was never applied. It was a working penal statute with criminal sanctions for violations of the rules contained therein, including the death penalty for some infractions. Several officers of the Confederate southern states were tried under the Code after the American Civil War.62 The most notorious of these was the trial in 1865 of Captain Henry Wirz, a commander of a Confederate prison camp. He was put on trial for torturing, starving, and murdering prisoners of war; he was convicted and executed for ‘conspiracy to destroy prisoners’ lives in violation of the laws and customs of war’ and ‘murder in violation of the laws and customs of war’.63 While the Lieber Code was ostensibly meant to apply to international conflicts between what, at the time, were defined ‘civilized peoples’,64 there may 60 J.F. Witt, The Laws of War in American History, Lincoln’s Code (2012), at 3. 61 See International Committee of the Red Cross, www.icrc.org/ihl.nsf/INTRO/ 110?OpenDocument, accessed 7 January 2013. See also Instructions for the Government of Armies of the United States in the Field, prepared by Francis Lieber, Originally Issued as General Orders No. 100 by the Adjutant General’s Office of the Union Army in 1863. O. Bring, International Criminal Law in Historical Perspective, Comments and Materials (2001) (hereinafter ‘International Criminal Law in Historical Perspective’), at 12. 62 International Criminal Law in Historical Perspective, at 12. 63 See generally L.L. Laska and J.M. Smith, ‘Hell and the Devil: Andersonville and the Trial of Captain Henry Wirz, C.S.A., 1865’, (1975) 68 Military Law Review; International Criminal Law in Historical Perspective, at 12. 64 Lieber Code, Arts. 24 (‘The almost universal rule in remote times was, and continues to be with barbarous armies, that the private individual of the hostile country is destined to suffer every privation of liberty and protection, and every disruption of family ties. Protection was, and still is with uncivilized people, the exception’.), 25 (‘In modern regular wars of the Europeans, and their descendants in other portions of the globe, protection of the inoffensive citizen of the hostile country is the rule; privation and disturbance of private relations are the exceptions’.), 148 (‘The law of war does not allow proclaiming either an individual belonging to the hostile army, or a citizen, or a subject of the hostile government, an outlaw, who may be slain without trial by any captor, any more than the modern

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be doubt whether the United States would have considered the Native Americans to qualify as such. Nevertheless, application of the Code to the rebellious southern states in the American Civil War should lead to the conclusion that it also should have applied to other sovereigns that had entered into treaty relations with the United States Government—in other words, the Native Americans. In addition, the fact that the United States entered into treaty relations with the Native Americans should be considered evidence that they were regarded as ‘civilized peoples’. The other legal instrument applicable to the actions of the 7th Cavalry was the 1864 Convention for the Amelioration of the Condition of the Wounded in Armies in the Field. This first Geneva Convention, which eventually led to the four Geneva Conventions of 1949, was acceded to by the United States in 1882.65 The provisions of this treaty applied only to international armed conflicts, and not to internal ones. Although the United States, in acceding to this Convention, probably never intended that it would apply to the armed conflicts with the Native Americans, it is incontrovertible that the United States Government regarded the Native Americans as sovereign entities and entered into treaties with them that acknowledged their authority over vast swathes of territory. This is evidence that the American Indian Wars were international armed conflicts between sovereign nations to which the 1864 Treaty applied, from 1882 onwards.66

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law of peace allows such intentional outlawry; on the contrary, it abhors such outrage. The sternest retaliation should follow the murder committed in consequence of such proclamation, made by whatever authority. Civilized nations look with horror upon offers of rewards for the assassination of enemies as relapses into barbarism’.). See www.icrc .org/ihl.nsf/FULL/110?OpenDocument, accessed 7 January 2013. See www.icrc.org/ihl.nsf/WebSign?ReadForm&id=120&ps=P, accessed 7 January 2013. The Convention was significantly updated in 1906, 1929, and 1949. The 1868 Additional Articles Relating to the Condition of the Wounded in War were adopted at a Diplomatic Conference convened by the Swiss Federal Council in Geneva in order to clarify some provisions of the Geneva Convention of 1864 and, particularly, to extend to naval forces the advantages of this Convention, but never entered into force due to a lack of ratifications. See www.icrc.org/ihl.nsf/INTRO/125?OpenDocument, accessed 7 January 2013. Interestingly, the icrc website records the United States as the sole state party to the 1868 Additional Articles. See www.icrc.org/ihl.nsf/WebSign?ReadForm &id=125&ps=P, accessed 7 January 2013. The 1874 Project of an International Declaration Concerning the Laws and Customs of War contained provisions aimed at making war on land more humane and would have been relevant to actions of the us military in 1890, but was never ratified. See www.icrc.org/ihl.nsf/INTRO/135?OpenDocument, accessed 7 January 2013.

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Application of the Law to the Facts

The question then is whether the actions of the 7th Cavalry constituted violations of the Lieber Code and the first Geneva Convention. We therefore must closely analyse the events on 29 December 1890 at Wounded Knee Creek, which can be divided into two phases. The first phase was the fight around the council circle, which ended around three to ten minutes after the first shot was fired. The second phase encompassed the subsequent several hours, including the pursuit of the Lakota through the ravine. 4.1 Fighting around the Council Circle Regarding the fighting around the council circle in the first minutes, it is important to acknowledge that the group of Miniconjou and Hunkpapa were not engaged in combat activities against the United States. They had not taken up arms against anyone, neither European-American settlers in the region nor the army. They were people who were peacefully resisting being detained at the Indian agency headquarters. In respect of the Hunkpapa, they were people who had fled the arrest and subsequent killing of their leader, Sitting Bull, two weeks earlier. Moreover, the Native American men around the council circle were not a heavily armed war party seeking a fight, but rather displaced persons trying to safeguard their families. In fact, on the morning of 29 December, they had already surrendered and therefore were prisoners of the 7th Cavalry. Article 155 of the Lieber Code provides that ‘[a]ll enemies in regular war are divided into two general classes—that is to say, into combatants and non-combatants, or unarmed citizens of the hostile government’. The Miniconjou and Hunkpapa at Wounded Knee therefore were ‘non-combatants’. The Native American men had been almost completely disarmed by the 7th Cavalry when the shooting started. In fact, the proximate cause of conflict that morning was the insistence of Colonel Forsyth that the Lakota surrender all their weapons to the army. Under all the circumstances, especially considering that some of the officers and soldiers may have been intoxicated, it was reasonable that the Lakota were reluctant to disarm further and to leave themselves and their families at the complete mercy of the more numerous and much more heavily armed 7th Cavalry. But the fact remains that the 7th Cavalry was dealing with a group of people whom it had in its care, custody, and control, and whom it had just almost completely disarmed. Members of the army reported that the Lakota in the council circle started the firing, getting off at least 50 shots before the army was able to respond. These soldiers also reported that the Lakota directed their fire in the direction

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of their own camp, where the women and children were located.67 This account is not credible. The Sioux were known for not fighting with their families around.68 And they were surrounded, outnumbered, and outgunned. It is unlikely that they would initiate a fire-fight under these conditions and with their families so close by. Looking at it from another angle, if the Lakota had intended to attack the 7th Cavalry, why had they not done so much earlier when they still possessed the majority of their weapons, instead of waiting until they had surrendered all but about five of their guns? But the exact details of the first shots will forever remain debated by historians. Nevertheless, and even taking into account that the Native Americans had Winchester twelve-shot repeaters and the 7th Cavalry had single-shot Remingtons,69 the overwhelming majority of fire came from the army due to the simple fact that nearly all of the weapons of the Lakota had been surrendered. It is unlikely that the majority of casualties suffered by the army were inflicted by Lakota gunfire because the Lakota had very few weapons and because the disposition of the army troops made friendly fire casualties inevitable. Moreover, the 7th Cavalry should have ceased its fire after the opening minutes, as soon as the perceived source of danger had been disabled. There is therefore strong evidence that their failure to do so was a violation of Article 6 of the first Geneva Convention of 1864, which provided that ‘[w]ounded or sick combatants, to whatever nation they may belong, shall be collected and cared for’. 4.2 Pursuit through the Ravine We now turn to the events surrounding the remainder of the day at Wounded Knee, namely the pursuit through the ravine of the Lakota—both Miniconjou and Hunkpapa—who were not killed in the opening minutes of the shooting. Even if one disagrees that it was unlawful for the 7th Cavalry to fire upon the Lakota men around the council circle and that the members of the 7th Cavalry should have, at least, ceased their fire after the opening minutes, the events that followed may still be considered unlawful. There was no military objective or necessity in pursuing the women and children. Even if the 7th Cavalry were trying to overcome or dislodge the 25 to 30 Lakota who had fallen back to cover the retreat of their families, the response of the army was grossly disproportionate and indiscriminate. 67 68 69

Voices of Wounded Knee, supra note 15, at 300–1. According to William Coleman, ‘Lakota never fought with their families nearby unless they were attacked’. Voices of Wounded Knee, supra note 15, at 282. Moon of Popping Trees, supra note 14, at 181.

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The Lieber Code, at Article 14, states that ‘[m]ilitary necessity, as understood by modern civilized nations, consists in the necessity of those measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war’. Article 15 states that ‘[m]ilitary necessity admits of all direct destruction of life or limb of armed enemies, and of other persons whose destruction is incidentally unavoidable in the armed contests of the war’. Article 16 states that ‘[m]ilitary necessity does not admit of cruelty—that is, the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions’. Applying these definitions to the events of 29 December at Wounded Knee, the killings of the Lakota who fled the camp were avoidable and not connected to any military purpose. Put simply, any ‘fight’ was over in the first three to ten minutes. But the 7th Cavalry did not stop. After the conflict around the council circle, the 7th Cavalry intensified its fire and began to directly target the Lakota camp. The Hotchkiss guns opened fire directly upon the camp, where the women and children were located. The subjugation of 25 to 30 lightly armed men and boys—some of whom were wounded and who were covering the flight of women and children—cannot be considered to be a measure indispensable for securing the ends of war. And this conclusion applies a fortiori to shooting women trying to get themselves and their children out of harm’s way, keeping in mind again that Article 155 of the Lieber Code provided that ‘[a]ll enemies in regular war are divided into two general classes—that is to say, into combatants and non-combatants, or unarmed citizens of the hostile government’. The 7th Cavalry’s actions were therefore in violation of Articles 14 and 15 of the Lieber Code. The actions of the 7th Cavalry were also cruel within the meaning of Article 16 in that they inflicted suffering for the sake of suffering and not in connection with any military fight. The incident even may have qualified as a revenge killing, prohibited by Article 16, if it is accepted that members of the 7th Cavalry were influenced by their previous defeat at the Battle of the Little Bighorn in 1876. Finally, the killing of those who were fleeing, especially the women and children, were violations of Articles 23, 37, and 44 of the Lieber Code, which protected civilians against wanton violence, wounding, maiming, and killing.70 70

Lieber Code, Arts. 23 (‘Private citizens are no longer murdered, enslaved, or carried off to distant parts […]’.); 37 (‘The United States acknowledge and protect, in hostile countries occupied by them, religion and morality; strictly private property; the persons of the inhabitants, especially those of women; and the sacredness of domestic relations’.); 44 (prohibiting, under penalty of death, wanton violence against persons of an invaded country, pillaging and sacking, rape, wounding, maiming, and killing).

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4.3 Command Responsibility We finally come to the responsibility of Colonel James Forsyth for the actions of his troops. Although early indications of the doctrine of command responsibility can be seen in the writings of Sun Tzu and Hugo Grotius and in international instruments, such as the 1899 and 1907 Hague Conventions, the concept of criminal responsibility of a commander for the actions of those under his control did not come into full focus until the post-World War ii era.71 Nevertheless, the concept of command responsibility was already in existence in us law by the year 1890. The concept can be seen in the American Articles of War and in the Lieber Code itself. The Articles of War constituted the statutes governing military discipline and justice in the American armed services. They were adopted in 1775 at the outbreak of the Revolutionary War against England. They were revised in 1776 and several times thereafter and were in effect until 1950, at which time they were replaced by the Uniform Code of Military Justice. The Articles of War, as well as the Rules for the Regulation of the Navy of the United Colonies, were drafted by John Adams, who at the time was a representative from the state of Massachusetts and chair of the Naval Committee. Adams drew upon the codes regulating the Royal Navy and the British army.72 Article 9 of the Articles of War provided that a commander who refused to provide redress for the abuses of his troops upon the civilian population shall ‘be punished…as if he himself had committed the crimes’. Further, Article 71 of the Lieber Code prohibits a commander from ordering or encouraging a subordinate to wound or kill a disabled enemy. In addition, perhaps a more straightforward indication that command responsibility was applicable to Colonel Forsyth’s actions on 29 December is the very fact that he faced a military inquiry, not for his own personal actions of shooting anyone, but rather for the actions of those under his command. And the killing of the civilians was indeed a live issue during that inquiry, and not just the soldiers who may have been killed by their own forces. The modern doctrine of command responsibility holds that a commander may incur individual criminal responsibility for failing to take the necessary and reasonable measures either to prevent a subordinate from committing a crime or to punish a subordinate for having committed a crime. There must be a superior-subordinate relationship; the superior must have known or

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J. Dungel and S. Ghadiri, ‘The Temporal Scope of Command Responsibility Revisited: Why Commanders Have a Duty to Prevent Crimes Committed After the Cessation of Effective Control’, 17 U.C. Davis J. Int’l L. & Policy 1, 13–14 (2010–2011). J. O. Lurie, Arming Military Justice: Volume 1, The Origins of the United States Court of Military Appeals, 1775–1950 (1992), at 3–6.

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had reason to know that a crime was about to be, was being, or had been committed; and he must have failed to take necessary and reasonable measures to prevent or punish the conduct in question.73 This modern definition of the elements of command responsibility can help to frame an analysis of Colonel Forsyth’s potential responsibility for the events that unfolded at Wounded Knee. Colonel Forsyth was subjected to a military inquiry, at which his officers testified that they had scrupulously avoided civilian casualties during the incident. This was apparently accepted by the military inquiry. It may be said, then, that Forsyth did not have a duty to punish because no wrong doing was found. Forsyth’s lack of responsibility for failing to punish, however, would not necessarily preclude the responsibility of those higher up the chain of command if, for example, it were found that the inquiry was designed to shield Forsyth and the 7th Cavalry from responsibility. In addition, the duty of a commander is not only retrospective; it is also prospective. In this regard, there are indications that Forsyth failed to prevent the killings. At the very best, Forsyth tolerated the intoxication of his officers and soldiers during the night of 28 December. At worst, he himself participated in the revelries, as was indicated by one of his soldiers the following morning saying that Forsyth was ‘half shot’.74 Moreover, Forsyth ordered that the Lakota be lined up right along the edge of the ravine, after which the soldiers were to stand in front of them and point rifles, albeit unloaded, at their foreheads, as a form of penance for not surrendering their weapons earlier. The only reasonable inference is that Forsyth’s actions contributed to an undisciplined atmosphere among his troops, which in turn contributed to the disproportionate response of the 7th Cavalry after the shooting started. Finally, despite what seems to be a lack of evidence of a direct order to pursue and kill the Lakota as they fled down the ravine,75 Forsyth still had a duty to call for a 73

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Prosecutor v. Orić, Judgement, Case No. IT-03-68-A, 3 July 2008, at para. 18; Prosecutor v. Kordić and Čerkez, Judgement, Case No. IT-95-14/2-A, 17 December 2004, at paras. 827, 839; Prosecutor v. Aleksovski, Judgement, Case No. IT-95-14/1-A, 24 March 2000, at para. 72; see Prosecutor v. Gacumbtsi, Judgement, Case No. ICTR-2001-64-A, 7 July 2006, at para. 143. Voices of Wounded Knee, supra note 15, at 293. Regarding the lack of evidence of a direct order to pursue the fleeing Lakota, it should be noted that one soldier wrote later: ‘I…got my orders to mop up the ravine with troops K and E […]’. Voices of Wounded Knee, supra note 15, at 319. In respect of the opening volleys, there is evidence that Forsyth gave the order to open fire, but also that it was someone else who gave the order. In respect of the latter, Lieutenant Mann, on his deathbed, said it was he who gave the command to fire. Voices of Wounded Knee, supra note 15, at 298. Deathbed accounts are generally given a great deal of reliability as a matter of law.

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cease-fire after the opening minutes of the conflict, after it was clear that there was no military necessity involved in pressing the attack against the fleeing Lakota. Rex Smith in Moon of Popping Trees reports that, when the fighting had stopped, a mounted platoon that did not know the fighting was over killed a wounded Lakota man, to which Forsyth responded by screaming: ‘For God’s sake! Stop shooting at them’.76 Even if this were an accurate account, such an order would have been too little and too late to absolve Forsyth of responsibility for failing to prevent the killings. In light of the above, it is difficult to avoid the inference that Forsyth failed to prevent the unlawful killings, especially of the women and children who were fleeing down the ravine. 5 Conclusion Historian Rex Smith, at the end of his famous book, Moon of Popping Trees, calls Wounded Knee a ‘complex tragedy of errors’ and discourages efforts to assign blame for the deaths that occurred. According to him, ‘what’s done is done, and knowing the details won’t change it’.77 Such an attitude disregards the potential deterrent effect of a thorough understanding of past incidents of mass killings of non-combatants. The incident at Wounded Knee is an important lesson for the entire world. These types of events must be studied and analysed so that they do not happen again. They are didactic tools that we can fashion into preventive shields against new atrocities. The shame that surrounds Wounded Knee is one of the many small forces that can push us, as a society, towards endeavours such as training soldiers in proper rules of engagement, creating domestic military criminal justice systems that actually work, and advancing an international criminal justice system that makes military commanders think twice before allowing their subordinates to fire on persons not taking an active part in hostilities. 76 77

Moon of Popping Trees, supra note 14, at 195. Ibid., at 203.

chapter 2

About Responsibility Wolfgang Schomburg* The protection of civilians during armed conflicts—and safeguarding the rights of victims in a society after such an armed conflict—has ever since been part of concerns shared by human beings hoping and working for a better world. Joakim Dungel was one of them. It is a tragedy that he, when actually striving to serve best the interests of a better world, became the victim of people not caring about the rule of law and the integrity of human beings. He was deprived of his life and the possibility to continue his fruitful work as a highly distinguished legal advisor of the international community and in particular the United Nations. It is therefore our noble obligation to also dedicate our work to Joakim, the spirit being that ‘if you see a wrong, you must right it’.1 How best to protect individuals in armed conflicts by law? Prevention? Punishment? Public international law? Civil law? Criminal law? Is it grey theory? How can we dream that existing hard and soft law will be effectively enforced, when confronted day by day with ‘Realpolitik’? Against all odds and question marks, we have to continue to believe in the rule of law, we have to let a dream become true, step by step and with patience. It is my intention to draw a line basically from our individual responsibility in daily life and in domestic law via the ‘responsibility to protect’ all the way through to ‘transitional justice’. Finally, I shall address in more detail one of the most controversial issues in international criminal law, namely the concept of command responsibility, which is laid down, for example, in Article 7(3) of the icty Statute, which reads: The fact that any of the acts […] was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had * Prof. Dr. h.c. (uk) Wolfgang Schomburg served as the permanent German Judge from 2001–2008 at the ad-hoc un Tribunals for the Former Yugoslavia and Rwanda. This chapter is an amended and updated keynote, delivered by the author at the Joakim Dungel Lectures in International Justice organised in memoriam of Joakim Dungel, at Göteborg University, March 2013. 1 Prophet Mohammed, Hadith, in the translation of a poster provided by Prof. Cherif M. Bassiouni available at The International Human Rights Institute, DePaul University, Chicago.

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r­ easons to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.2 I have chosen this last topic for two reasons: First, I had the pleasure of working together with Joakim on drafting the Appeal Judgement of 3 July 2008 in the icty case of Prosecutor v. Orić3 for about one year. A relatively long period of time for a small document; but, exceptionally, we had the necessary time to prepare a short judgement and thus, hopefully, prepared an understandable and convincing document. We had sufficient time to focus on the main issues without forgetting to address the victims of the crimes. This was particularly important in the case at hand since the facts and the legal qualification as presented by the Prosecutor did not allow the Appeals Chamber to uphold the conviction entered by the Trial Chamber. The Orić case was primarily about responsibility. The responsibility of a superior to prevent the commission of crimes by subordinates or at least—in case a crime was committed—to bring a subordinate to justice. For a commander there exists a two-pronged duty either to prevent the crimes or to punish the crimes, which, by omission, amounts to two separate crimes committed by the superior himself—the superior as perpetrator behind the perpetrator. Second, one of the most relevant publications of Joakim Dungel was an important piece he co-authored with Shannon Ghadiri, entitled ‘The temporal scope of command responsibility revisited: Why commanders have a duty to prevent crimes committed after the cessation of effective control’.4 This, no doubt, is an article highly influenced by his work in the Orić5 appeal, reflecting numerous thoughts and concerns of Joakim on the limited scope of application of the underlying law in the jurisprudence of the icty. Concerns we shared when drafting this judgement. 2 International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, established by Security Council Resolution 827 (1993) of 25 May 1993. 3 Prosecutor v. Orić, Judgement, Case No. IT-03-68-A, Appeals Chamber, 3 July 2008; accessible on the icty website via ‘cases’. 4 J. Dungel and S. Ghadiri, ‘The Temporal Scope of Command Responsibility Revisited: Why Commanders Have a Duty to Prevent Crimes Committed after the Cessation of Effective Control (2010) 17 University of California Davis Journal of International Law & Policy 1; available at http://jilp.law.ucdavis.edu/issues/Volume%2017.1/1-40.pdf (last accessed March 2014). 5 Supra note 3.

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Moral and Social Responsibility: Obligation to Act

There is no need to go into an in-depth argument in order to prove the proposition that, whenever we see another human being in danger, we are under the moral and social responsibility to act: to prevent an individual from imminent danger and to assist where necessary and in as far as we are able. This obligation forms part of our existence as conscientious human beings. We are responsible ourselves for our acts and omissions. This is not the place to dwell about the obvious. 2 Individual Criminal Responsibility: Duty to Act in Domestic Criminal Law Even in times of peace, domestic criminal law in nearly all countries provides that an omission to act or to punish crimes already amounts to a punishable offence in itself. It is necessary to raise the awareness that, in times of armed conflicts or in post conflict justice, we definitively have to go beyond the existing international criminal law and its present interpretation. As a ‘prisoner of my own legal system’,6 I take the liberty to refer to German substantive criminal law. Section  13 of the Criminal Code (Strafgesetzbuch—StGB), entitled ‘Omissions’ reads: (1) Whosoever fails to avert a result which is an element of a criminal provision shall only be liable under this law if he is responsible under law to ensure that the result does not occur, and if the omission is equivalent to the realisation of the statutory elements of the offence through a positive act. (2) The sentence may be mitigated pursuant to Section 49(1). In other words, an omission can be equated with committing a crime, but if, and only if, there is a legal duty to act. Consequently, there is in theory not even a need for a specific provision on omission in relation to each duty to act. A possible conclusion is that, also in international criminal law, omissions contravening concrete duties to act provided for in the four Geneva Conventions and the two additional Protocols thereto are per se punishable as a form of ‘committing’. 6 The most used remark among judges before at least the un ad hoc Tribunals, its ‘copyright’ being in the possession of the highly distinguished and estimated Judge M. Shahabuddeen.

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But also specific omissions are described in further detail by domestic law, e.g., Section 323c StGB, entitled ‘Omission to effect an easy rescue’, reads: Whosoever does not render assistance during accidents or a common danger or emergency although it is necessary and can be expected of him under the circumstances, particularly if it is possible without substantial danger to himself and without violation of other important duties, shall be liable to imprisonment not exceeding one year or a fine. As a further example, see Section 138 StGB, which under the heading ‘Omission to bring planned offences to the attention of the authorities’ provides for the criminalisation of a failure to report to public authorities information that could avert certain crimes.7 We shall come back to this later when discussing command responsibility. 7 Section 138 Omission to bring planned offences to the attention of the authorities (extracts): (1) Whosoever has credible information about the planning or the commission of the following offences: 1. preparation of a war of aggression (Section 80); 2. high treason under sections 81 to 83 (1); 3. treason or an endangerment of peace…; 4. counterfeiting money or securities…or counterfeiting debit cards and blank euro cheque forms…; 5. murder under specific aggravating circumstances (Section 211), murder (Section 212), genocide…, a crime against humanity…, or a war crime…; 6. an offence against personal liberty in cases under Section  232 (3), (4), or (5), Section  233 (3), each to the extent it involves a felony, Section  234, Section  234a, Section 239a or Section 239b; 7. robbery or blackmail using force or threat to life and limb (sections 249 to 251 or Section 255); or 8. offences creating a danger to the public… at a time when the commission or result can still be averted, and fails to report it in time to the public authorities or the person threatened, shall be liable to imprisonment not exceeding five years or a fine. (2) Whosoever credibly learns 1. of the commission of an offence under Section 89a or 2. of the planning or commission of an offence under Section 129a, … at a time when the commission can still be averted, and fails to report it promptly to the public authorities, shall incur the same penalty. … (3) Whosoever by gross negligence fails to make a report although he has credible information about the planning or the commission of an unlawful act, shall be liable to imprisonment of not more than one year or a fine.

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Responsibility to Protect (R2P) under International Law

The responsibility to protect (R2P8) is a relatively new, though challenging, international security and human rights norm to address the international community’s failure to prevent (or at least stop) and punish genocide, war crimes, ethnic cleansing, and crimes against humanity,9 according to which also International Tribunals should play a substantive role. The responsibility to protect was recognised in 2005 by the United Nations General Assembly10 and endorsed the following year by the Security Council. It is still ‘soft law’; however, it might pave the way for an even higher level of responsibility to be enforced by the international community. At the same time, this concept runs the risk of being abused by countries, claiming that, by (militarily) intervening 8 9

10

Even though I do not like it, I have to refer to this fashionable acronym because it is generally used in the academic world, thus barring non-insiders from participation. See the International Coalition for the Responsibility to Protect, founded by a group of ngos to further the understanding of the norm and strengthen normative consensus for the Responsibility to Protect, available at www.responsibilitytoprotect.org (last accessed March 2014). General Assembly, Resolution 60/1, 16 September 2005, Responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity: ‘138. Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it. The international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability. 139. The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter 7, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. We stress the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law. We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out’.

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in another country, the only goal is to protect certain ethnicities (de facto: interests) abroad.11 It would be fundamentally wrong to believe that the responsibility to protect automatically results in military intervention. On the contrary, this responsibility has its origins in the social contract between citizens and their leaders, be it on the level of a community or a state or on a regional or even global level. Our representatives on all levels are elected and find their genuine legitimisation in the duty to protect all human beings on their respective territory. Applying means of criminal law is regarded as ultima ratio. Therefore the use of military force is to be seen as ultissima ratio only. Consequently it is the judiciary that can also contribute in a less intrusive way to this social imperative on a global level, and this is the next topic to which I will turn now. Individual criminal responsibility in general: Duty to act under already existing international law and jurisprudence in criminal matters. How can the judiciary’s responsibility to protect human beings become more deterrent than it is already today? It may be helpful to quote from the judgement of the icty Trial Chamber in the Stakić case:12 901. The Trial Chamber recalls that the International Tribunal was set up to counteract impunity and to ensure a fair trial for the alleged perpetrators of crimes falling within its jurisdiction. The Tribunal was established under Chapter VII of the United Nations Charter on the basis of the understanding that the search for the truth is an inalienable pre-requisite for peace. The Tribunal is mandated to determine the appropriate penalty, often in respect of persons who would never have expected to stand trial. While one goal of sentencing is the implementation of the principle of equality before the law, another is to prevent persons who find themselves in similar situations in the future from committing crimes. There­fore, general deterrence is substantially relevant to the case before this Chamber. 902. In the context of combating international crimes, deterrence refers to the attempt to integrate or to reintegrate those persons who believe themselves to be beyond the reach of international criminal law. Such persons must be warned that they have to respect the fundamental global norms of substantive criminal law or face not only prosecution but also sanctions imposed by international tribunals. In modern criminal law 11 12

In this context, the Ukraine/Russia crisis with respect to Crimea in 2014 comes to my mind. Prosecutor v. Stakić, Judgement, Case No. IT-97-24-T, Trial Chamber, 31 July 2003.

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this approach to general deterrence is more accurately described as deterrence aiming at reintegrating potential perpetrators into the global society. Or in the words of the Appeals Chamber in Krstić:13 Those responsible will bear this stigma, and it will serve as a warning to those who may in future contemplate the commission of such a heinous act. In addition to considering the issue of deterrence in the context of sentencing, it is also interesting to look at the modes of criminal liability which are a means of enhancing deterrence and prevention. The different ways in which the crime of genocide can be committed in the Genocide Convention is such an example, and the language of the Convention is repeated verbatim in the Statutes of the icty and ictr.14 In this regard, Article 3 of the Genocide Convention lists the categories of the crime of genocide in addition to perpetration as such: genocide; conspiracy to commit genocide; direct and public incitement to commit genocide; attempt to commit genocide; complicity in genocide. It thus can be seen that incomplete or inchoate offences are possible in the context of genocide and that no result or link between ‘direct and public incitement’ to commit genocide and the commission of genocide has to be shown or proven. These three categories enhance the preventive dimension of the Convention. Moreover, it is noteworthy that the most controversial of the categories, namely ‘direct and public incitement to commit genocide’ is restricted by two adjectives so as to limit possible conflicts with the protection of freedom of expression. I wonder, however, whether this alleged conflict indeed exists. The question rather is what shall prevail: the prohibition to glorify genocide or the unlimited freedom of expression? In my opinion the latter must yield. In Germany, Section 130 of the Criminal Code, under the heading ‘Incitement to hatred’, reads in its relevant part: Whosoever publicly or in a meeting approves of, denies or downplays an act committed under the rule of National Socialism of the kind indicated in section 6 (1) of the Code of International Criminal Law, in a manner

13 14

Prosecutor v. Krstić, Judgement, Case No. IT-98-33-A, Appeals Chamber, 19 April 2004. Convention on the Prevention and Punishment of the Crime of Genocide, adopted by Resolution 260 (III) A of the United Nations General Assembly on 9 December 1948.

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capable of disturbing the public peace shall be liable to imprisonment not exceeding five years or a fine.Whosoever publicly or in a meeting disturbs the public peace in a manner that violates the dignity of the victims by approving of, glorifying, or justifying National Socialist rule of arbitrary force shall be liable to imprisonment not exceeding three years or a fine… Similar provisions are to be found in the Criminal Code of Rwanda of 2012.15 These laws are an attempt to prevent a repetition of what happened in 1994. Article 132 sets forth detailed provisions that prohibit many different forms of genocide.16 Article 116 criminalises genocide denial.17 The text of these provisions is very detailed. Why these details? 15

16

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Official Gazette n° Special of 14 June 2012, Organic Law No 01/2012/OL of 02/05/2012 instituting the Criminal Code, available at http://www.ilo.org/dyn/natlex/docs/SERIAL/93714/ 109657/F1967095662/RWA-93714.pdf. It is noted that there exists a criminal law of 2013 specifically addressing genocide ideology offenses, entitled ‘crime of genocide ideology and other related offences’, Law N° 84/2013 of 11.09.2013, available at www.ilo.org/dyn/ natlex/docs/SERIAL/94191/110882/F-783402599/RWA-94191.pdf (last accessed March 2013). Article 132—Other acts punished as the crime of genocide, crimes against humanity and war crimes Without prejudice to other provisions of this Organic Law relating to attempt and criminal participation, the following acts shall be punished by penalties provided under this Chapter: 1. an order, even when not followed by the commission, to commit any of the crimes provided under this Organic Law; 2. a proposal or an offer to commit a crime and the acceptance of such a proposal or offer; 3. incitement, either by speech, image or writing, to commit such a crime, even when not followed by the commission; 4. conspiracy to commit a crime, even when not followed by the commission; 5. abetment to commit a crime, even when not followed by the commission; 6. the fact of knowing the existence of conspiracy to commit such an offence or that of acts which constitute the start of its commission and omitting to act as far as one is personally able to prevent its completion or put an end to it; 7. attempt to commit a crime. Article 116—Punishment of the crime of negationism and minimization of the genocide against the Tutsi Any person who publicly shows, by his/her words, writings, images, or by any other means, that he/she negates the genocide against the Tutsi, rudely minimizes it or attempts to justify or approve its grounds, or any person who hides or destroys its evidence shall be liable to a term of imprisonment of more than five (5) years to nine (9) years. If the crimes under Paragraph one of this Article are committed by an association or a political organization, its dissolution shall be pronounced.

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First, these examples show that lessons have been learned by those two countries, also when it comes to transitional justice.18 However, would these norms be in place had there not been the Nuremberg trials and the International Criminal Tribunal for Rwanda (ictr)?19 The second and primary reason is that these laws allow domestic and transnational courts to intervene by means of criminal law at an early point in time. The interpretation of the crime of incitement to commit genocide as foreseen in the Genocide Convention not only allows for but calls for such an early intervention. In my opinion, it was not only a mistake on the part of un not to militarily intervene in Rwanda when Lt. Gen. Romeo Dallaire (in particular on 10 January 1994 in his fax addressed to the un-Headquarters) and others called for help on the eve of the genocide,20 which effectively broke out on 6 April 1994. Would it not be a lesson to be learned to immediately bring to trial those directly and publicly inciting to commit genocide? Why wait until at least 800.000 human beings have been slaughtered? It is a question of enforcement of existing law. It is a question of willingness on the part of the community of nations. It is about the willingness to provide a permanent judicial intervention squad of highly experienced and well trained judges, always ready when the international community so wants. It would be wrong to address genocide alone. The close link to crimes against humanity has been shown several times. Thus, the attempt has to be mentioned to bring to life for the first time ever an ‘International Convention on the Prevention and Punishment of Crimes Against Humanity’21 by academia and civil society. It is interesting to note that Article 4 (2) (e) of this proposed Convention seeks to also punish the direct and public incitement of others to commit crimes against humanity, thus also calls for an early intervention by criminal law.

18 19

20 21

Cf. International Human Rights Law Institute, The Chicago Principles on Post-Conflict Justice (2001–2008). International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other serious Violations of International Humanitarian Law committed in the Territory of Rwanda and Rwandan Citizens responsible for such violations committed in the territory of neighbouring States between 1 January 1994 and 31 December 1994, established by Security Council Resolution 955 (1994) of 8 November 1994. Cf. R. Dallaire, Shaking hands with the devil, The failure of humanity in Rwanda (2004/ 2008). See Whitney R. Harris World Law Institute, Washington University School of Law, Crimes Against Humanity Initiative, Proposed International Convention on the Prevention and Punishment of Crimes Against Humanity (2010), amended as of February 2012, available at http://crimesagainsthumanity.wustl.edu/ (last accessed March 2014).

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The future What has to be done to make an independent judiciary one of the proactive global players mandated with this ‘responsibility to protect’? How can we achieve a more efficient law enforcement guarantying equality before the law for effectively everyone? One core challenge in this context is to accept that international tribunals can only investigate and hear cases against the most responsible perpetrators. As was shown in the cases before the icty and the ictr, as well as in Germany after the fall of the Berlin Wall,22 it is at times extremely difficult to bring to justice the highest in rank without building upon decisions against accused bearing less responsibility on the bottom of the hierarchy. Furthermore, the cultural background of the crimes committed has to be acknowledged; in particular, the members of the judiciary should be best placed to understand this inalienable link between culture and the concrete criminal behaviour. The term complementarity has to been seen in light of this experience. In terms of subsidiarity and with respect to cultural diversity, what can be done on a domestic level should be done before domestic courts; what can be done before (sub-) regional courts should be adjudicated on this level; and, primarily, where and when there is a judiciary willing and able to hear such cases independently and impartially, the power and responsibility to prevent and protect has to be vested or referred to it. This means, first of all, continuous capacity building on the domestic level. This also means filling the gap between domestic and global courts by establishing credible sub-regional courts, for example, an African Criminal Court and a European Criminal Court.23 The procedural law of regional courts has to be modelled as closely as possible on the law in place where the crimes have been committed. This is not only to avoid the clash of legal systems: a situation encountered by the former Yugoslavia and Rwanda in respect of the common law and civil law approaches. It serves also for a better ability, primarily for victims and surviving relatives, to follow the procedure before a court, and thus aims at a better understanding of its decisions also in terms of general deterrence and reconciliation. Finally, it is to come as close as possible to the truth, keeping in mind that there is never one truth only. This would lead to the final question of why 22

23

Prosecution of Regierungskriminalität in the former German Democratic Republic (gdr), starting with cases against those having killed in person at the dividing wall, turning to those higher ranking in police/military hierarchy and finally ending with the conviction of highest level politicians (Politbüro). I have no doubt that the consequence of such judicial hierarchy should also be an (often requested) immediate intervention and a less bureaucratic procedure. Justice belated is justice denied.

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physicians or priests, totally in violation of their professional goals, suddenly become perpetrators of genocide or other crimes against humanity. Answering the question ‘why?’ also in court, in the spirit of the work of Hannah Arendt, will bring us closer to truth, justice, and peace.24 Only then we will better understand how best to exercise our responsibility to protect, a duty obliging each of us individually.25 4

Transitional Justice

It has become an autonomous legal concept to try to resolve post-war problems under the term ‘transitional justice’. Despite my problems with the terminology (justice only transitional?), I accept the necessity of addressing, conceptualising, and clarifying the necessary steps to regain peace and to work on reconciliation, most importantly with a view to help victims and address their specific needs. This is particularly so because I see it as a fundamental and counterproductive decision in the Statute of the permanent International Criminal Court (icc) not to focus alone on individual guilt of alleged perpetrators. It means to overburden the already far too long proceedings with the duty to arbitrarily identify victim-witnesses, additionally making the procedure asymmetric because the alleged perpetrator is confronted not only with a prosecutor, historically representing also the interests of victims in court, but who may also be confronted with a representative of the victims and witnesses unit. The question of compensation, for example, should be left to other, predominantly domestic institutions or the international community and should be kept apart from legal exercises in criminal proceedings. Moreover, the historical evolution from criminal proceedings conducted by the harmed party and the invention of a public prosecutor’s office occurred for good reasons. Granting a victim the role of a party versus the alleged offender is a historical solution duplicating the role of the prosecutor and rendering criminal proceedings unfair if not impossible. Thus, if possible, the question of restoration should be resolved in different proceedings, be they of administrative or civil nature. In this context, it may be instructive to outline the main features and tasks of ‘transitional justice’ on a domestic level.

24 25

See the Talmudic principle: The world rests on three pillars: on truth, on justice, and on peace. (Avot 1:18). If you want peace, work for justice (Pope Paul VI).

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In general terms, as put by Richard Goldstone, ‘Each country facing a past of human rights violations has its own cultural and political history. Each has to find its own unique path to reconciliation and peace’.26 It is thus not a feature of this concept to impose any legal system from one country/region upon another on the occasion of ‘granting’ transitional justice. This holds true for substantive and procedural criminal law, both reflecting traditions and culture of a state that deserve to be maintained in as far as they are not in contrast to universally accepted general principles of law. In particular, criminal law has to be seen against the cultural backdrop of each state. Thus it is to maintain diversity based on the rule of law. ‘We are all equal—we are all different’.27 However, we are imbedded in a global society, which should guarantee general common minimum rules, such as the rights enshrined in the International Covenant on Civil and Political Rights (iccpr). Additionally, specific rules in our individual regional context have to be observed. Furthermore, the fair and proper administration of laws is the final goal in each state. In particular in times of fundamental changes in a civil society, it is for the independent judiciary to pave the way for tolerance and mutual respect based on the common grounds of the rule of law and order. The following points are some of the fundamental elements of post-conflict justice in countries emerging from long periods of authoritarian rule, which often must confront a legacy of gross human rights abuses or even, in whole or in part, the absence of an independent judiciary. They are taken from the ‘Chicago Principles on Post-Conflict Justice’, which present basic guidelines for designing and implementing policies to address past atrocities:28 Human suffering and the demand for justice Violations of human rights and humanitarian law produce complex harm, suffering, and loss, and states should address the demands for justice arising from these acts. 26

See Richard J. Goldstone’s comment to the book ‘Rethinking Transitions’, edited by G. Oré Aguilar and F. Gómez Isa (2011). Goldstone was a former Justice of the Constitutional Court of South Africa and former First Chief Prosecutor of the icty and ictr. 27 Former Leitmotiv of the Pan-European Council of Europe (encompassing 47 member States and about 30 states with guest/observer status), not to be confused with any institution of the European Union. 28 International Human Rights Law Institute, The Chicago Principles on Post-Conflict Justice (2001–2008). This project was done in co-operation inter alia with aidp, predominantly by its Honorary President and father of the main international Tribunals of today, Prof. M. Cherif Bassiouni.

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Grounding in international law International human rights and humanitarian law outline basic standards and key obligations that provide the foundation for efforts to combat impunity and support accountability for past violations. Accountability, peace, and democracy Peace, democracy, and political stability following conflict and authoritarian rule are served when states and societies address past violations. Context-specific strategies Specific strategies that address past violations should be designed and implemented with great sensitivity to social, cultural, historical, and political context. Interdisciplinary nature and long-term commitment Addressing past violations of human rights and humanitarian law is a complex, multi-faceted, interdisciplinary process that requires broad vision and long-term commitment. As a further point, a clear distinction has to be made between the application of crim inal law on the one hand and restorative justice on the other. Criminal justice must not be overburdened. In principle, alternative delinquency sanctions focus on repairing the harm done, meeting the victims’ needs, and holding offenders responsible for their actions. Confusing both procedures might result in a legal chaos. The principles of complementarity and subsidiarity serve best the interest of an effective criminal justice system and will only provide for justice seen to be done. First, what can be done on the level of a state concerned, has to be done at this level. If need be, the courts can be supported by judges from other states of the international community, preferably from neighbouring states or states of the same region. Second, if criminal justice cannot be arranged on the state level, regional courts should intervene. This, until now neglected, intermediate system between state and global courts is one way to better express sensitivity to local needs and engagement with the particular nature of the conflict. Already, this regional level may serve as a firm commitment to establishing domestic security if there is a safe environment relatively free from political instability, uncertainty, threat, corruption, and violence. Specific

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attention can also be given to any kind of abuse of economic, social, cultural, and religious rights in the region (e.g. Africa, Arab League, and Europe/EU). Third, a global criminal court applying criminal law as ultima ratio against the main alleged perpetrator is only the ultissima ratio when all attempts to bring justice on a domestic or regional level have failed and the crime has a dimension calling for measures to be taken by the global community. Granting a victim access to an independent judiciary, in particular independent from the executive and legislative power, is a prerequisite for a functioning state. The fundamental ingredients of an independent judiciary include transparent nomination, selection, and promotion of judges based on judicial qualification, personal integrity, and personal active and passive independence; non-interference with judicial decisions; appropriate budgetary support of the judiciary, at its best the right to self-administration of the budget; proactive protection of all members of the judiciary against any kind of influence from outside, including threats, pressure, and corruption; and dismissal of members of the judiciary only for reasons based in written law and in a transparent and fair procedure. No doubt, these ingredients of transitional justice, a relatively new and ambitious legal concept, have to be further developed, in particular when it comes to safeguarding the rights of victims in a society after an armed conflict. 5

Command Responsibility in International Law

One of the core advantages of the un ad hoc tribunals is having had carved in stone for the first time in a tribunal’s statute the principles of individual responsibility under international criminal law. The relevant norms of the icty Statute read as follows: Art. 7 Individual criminal responsibility 1.

2. 3.

A Person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime. The official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment. The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and

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the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof. 4. The fact that an accused person acted pursuant to an order of a Govern­ment or of a superior shall not relieve him of criminal responsibility, but may be considered in mitigation of punishment of the International Tribunal determines that justice so requires. For reasons given in the introduction, I will now focus on the principle of command responsibility in the context of the icty Appeals Chamber’s judgement in the Orić case. The events giving rise to the Orić case took place in the municipality of Srebrenica, in Bosnia and Herzegovina, and in its surrounding area, between June 1992 and March 1993. In its indictment, the Prosecution alleged that, between 24 September 1992 and 20 March 1993, members of the Military Police of the municipality of Srebrenica under the control of Naser Orić detained Serb individuals at the police station in Srebrenica, where a number of detainees were subjected to serious abuse and injury and some were beaten to death. The Prosecution charged Naser Orić with, inter alia, individual criminal responsibility under Article 7(3) of the Statute for murder and cruel treatment and for wanton destruction of cities, towns, or villages not justified by military necessity as violations of the laws or custom of war. In its Judgement of 30 June 2006, the Trial Chamber found that crimes of murder and cruel treatment were committed against Serbs detained in Srebrenica; the Military Police was responsible for the occurrence of all these crimes; and the Military Police was subordinated to Naser Orić, through the successive Chiefs of Staff of the Srebrenica Armed Forces. Naser Orić was found guilty pursuant to Articles 3 and 7(3) of the Statute for failing to discharge his duty as a superior to take necessary and reasonable measures to prevent the crimes of murder and cruel treatment committed against Serb detainees from 27 December 1992 to 20 March 1993. Because he was not found to have had effective control over the Military Police before this period, Naser Orić was not found responsible for the crimes perpetrated before he had effective control over the Military Police. Naser Orić was sentenced to two years of imprisonment. On the issue of command responsibility, the Orić Trial Chamber was explicitly of the view that ‘for a superior’s duty to punish, it should be immaterial whether he or she had assumed control over the relevant subordinates prior to their committing the crime’.29 The Trial Chamber noted that the Appeals Chamber, 29

Prosecutor v. Orić, Judgement, Case No. IT-03-68-T, Trial Chamber, 30 June 2006, at 335.

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however, had taken a different approach in its decision on jurisdiction in the Hadžihasanović case in 2003 (Hadžihasanović Appeal Decision on Jurisdiction30). Thus, the Trial Chamber found ‘itself bound to require that with regard to the duty to punish, the superior must have had control over the perpetrators of a relevant crime both at the time of its commission and at the time that measures to punish were to be taken’.31 On appeal, the Prosecution submitted that the Trial Chamber had erred in law in concluding that Naser Orić could not be held responsible under Article 7(3) of the Statute for failing to punish the crimes of murder and cruel treatment because they were perpetrated before he had assumed effective control over the Military Police. It argued that the Trial Chamber had erred in applying the Appeals Chamber’s governing law (i.e., the Hadžihasanović Appeal Decision on Jurisdiction) that an accused could not be charged under Article 7(3) of the Statute for crimes committed by a subordinate before he had assumed command over that subordinate. The Prosecution argued that there were cogent reasons for the Appeals Chamber to depart from its holding in the Hadžihasanović Appeal Decision on Jurisdiction. The Appeals Chamber noted that the only member of the Military Police identified by the Trial Chamber before Orić assumed effective control over it was its Commander, Mirzet Halilović. Mirzet Halilović was never found to be Orić’s subordinate. In the absence of any other military policeman who would have committed a crime in the detention facility prior to 27 November 1992, ‘Orić’s duty to punish, presuming its existence, was without subject’.32 Having come to this factual conclusion, the Appeals Chamber by majority, Judges Liu and Schomburg dissenting, declined to address the ratio decidendi of the Hadžihasanović Appeal Decision on Jurisdiction as it had no impact on the outcome of the present case. What a surprising (and in my view disappointing) outcome. Three judges, the majority, opined that the Hadžihasanović Appeal Decision had been wrong. However, one of the judges of the majority observed in a separate opinion that fourteen icty judges (four of whom were at different times at the appellate level, with the remaining ten being at the trial level) have expressed judicial views contrary to the view of the majority in Hadžihas­ anović. It is true that other members of the Appeals Chamber may think 30

Prosecutor v. Hadžihasanović et al., Decision on Interlocutory Appeal Challenging Jurisdic­tion in relation to Command Responsibility, Case No. IT-01-47-AR72, Appeals Chamber, 16 July 2003. 31 See supra note 29, at 335. 32 Supra note 3, at 166.

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differently; in addition, the majority view in Hadžihasanović has been acted on in other cases over these past five years. These considerations are important, but, in my view, they are not enough to neutralise the duty of the Appeals Chamber to state fundamental law correctly: there is no legislature to which the task can be left.33 As expressed in my dissenting opinion, with which Joakim assisted me: In the case before us, the Appeals Chamber has come to a result I agree with. However, in doing so it has not only missed the unique opportunity to spell out the correct interpretation of command responsibility as laid down in Article 7(3) of the Statute of this International Tribunal, it failed to fully carry out its mandate. Today, I would add: it is a question of the judge’s responsibility to cure fundamental mistakes in the jurisprudence of a Tribunal. ‘If you see a wrong, you must right it, if you can, with your words’.34 Before turning to the judgement’s disposition, the Appeals Chamber felt it necessary in this specific context to clarify (in obiter) by underscoring that, like the Trial Chamber, it had no doubt that the crimes indeed were committed against Serbs detained in Srebrenica at the Srebrenica Police Station.35 The defence did not challenge that crimes were committed against Serb detainees. However, proof that crimes occurred is not sufficient to sustain a conviction of an individual for these crimes. Criminal proceedings require evidence, establishing beyond reasonable doubt that the accused is individually responsible for a crime before a conviction can be entered. Where an accused is charged with command responsibility pursuant to Article 7(3) of the Statute, as in the Orić case, the Prosecution must prove, inter alia, that his subordinate(s) bore criminal responsibility and that he knew or had reason to know about his or their criminal conduct. The Trial Chamber made no findings on either of these two fundamental elements. The Prosecution, when asked on appeal if there was evidence to support the two elements, failed to point to evidence that could sustain Naser Orić’s convictions for the crimes against Serb detainees. Consequently, the Appeals Chamber had to acquit Naser Orić. I take the liberty to add that the outcome in the Orić case was largely the result of how the Prosecution chose to charge the accused. If the Trial Chamber had had the power to actively recognise and investigate proprio motu 33 Supra note 3, Declaration of Judge Shahabuddeen, at 12. 34 See supra note 1. 35 Supra note 3, at 189.

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additional facts and legally re-qualify the charges, as was possible in the former Yugoslavia, the result may have been different. 6 Conclusion When it comes to command responsibility, we have to make a clear distinction between the duty to prevent and the duty to punish. ‘Duty to punish’ seems to be a mishap because in line with the wording of the underlying obligations, it should rather be a duty to report the crime to the competent judges/prosecutors to let them start investigations. With a view to the necessary division of powers also in war time, the commander himself cannot punish.36 As regards this ‘duty to punish’, it is potentially problematic to hold that a new commander is not under the obligation to report a crime when committed before his or her tenure. Not only would a repeated change in command have the potential to circumvent this duty, but also the following parallel may be drawn: in case you have a new prosecutor in Göteborg, could his power to investigate and prosecute be limited to crimes committed after his or her inauguration? This strikes me as unlikely. As regards the ‘duty to prevent’, I would like to quote: obliging commanders to prevent their subordinates from committing crimes is of cardinal importance to the practical enforcement of the protections offered by international law to civilians prisoners of war, and other vulnerable persons and objects. Both the historical formulations of command responsibility and the current customary international law principle of command responsibility rest on this rationale, without limiting a commander’s obligation to only those crimes committed during his tenure. It would be wholly inconsistent with this rationale to posit that a commander has no duty to intervene to stop his subordinates’ crimes at a time when he could have done so only because the crimes will occur when he is no longer in command. No responsible commander would seriously think that he could remain passive when he knows that his soldiers are about to commit crimes simply because the crimes will not happen on his watch. For an irresponsible commander who might think otherwise, the principle of command responsibility should apply as an incentive for him

36

On the distinction to be made between the (mere) prohibition of acts and the duty to punish certain acts under the Geneva Conventions and its Additional Protocols, see my dissenting opinion in the icty Appeals Judgement of 30 November 2006 in Prosecutor v. Galic, Case No. IT-98-29-A, at paras. 7–22, 24.

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to seriously reconsider his role in ensuring compliance with international humanitarian law. This was Joakim’s conclusion in the article to which I previously referred. I would like to thank this Institution for giving me the opportunity to think back to our good friend Joakim Dungel. His work requests us to respect our responsibility wherever we stand. It is our own responsibility; it is never ‘the duty of others’. We have to right a wrong, whenever we see it. We have to work for truth and justice when (and because) we want peace!

chapter 3

Drones and the Law of Armed Conflict: The State of the Art Gleider I. Hernández* Ladies and gentlemen, dear colleagues, I am grateful for the invitation to speak this afternoon on a topic that I consider of such heightened interest. I did not know Joakim very well personally, but we had been introduced to one another in The Hague on one or two occasions, and I would run into him occasionally there. He seemed an extremely friendly chap, and it is a small comfort to me that this Lecture Series was established in his honour, and to have the privilege to speak here in Gothenburg today. My lecture today relates some preliminary thoughts on the use of drones in international law. Others will focus on the technological aspects of drone warfare, which are highly relevant to my own concerns about the efficacy of international law in regulating drone operations. They are also covered in some depth in a report of the un Special Rapporteur on human rights, Mr Ben Emmerson, on human rights in counter-terrorism operations.1 I will focus primarily on describing the relevant questions for a legal framework under which United States drone strikes could be lawful under international law, and then secondly on whether such a determination is sufficient. With drones or ‘unmanned aerial vehicles’ are increasingly used to carry out armed attacks around the world, it is a propitious time to be discussing the legal framework regulating drone warfare. On 23 May 2013, United States President Barack Obama gave an important speech on counter-terrorism policy and announced a set of policy principles, the Presidential Policy Guidance (ppg) with respect to us covert counterterrorism operations.2 In late October 2013, two un Special * Speech delivered by Gleider I. Hernández in the Joakim Dungel Lecture Series on 18th February 2014. 1 Ben Emmerson, Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism, un Doc. A/68/389 (Sept. 18, 2013). 2 Speech by United States President Barack Obama at the National Defense University (23 May 2013), available at www.whitehouse.gov/the-press-office/2013/05/23/remarks-president-national -defense-university (last accessed on 20 March 2014) [hereinafter ‘Obama Speech’].

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004236592_005

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Rapporteurs presented their reports on drone warfare to the un General Assembly.3 Just days earlier, Amnesty International had published an investigation into drone strikes in Pakistan and Human Rights Watch had issued its examination of such operations in Yemen.4 I will return to the substance of these four reports later; but suffice to say that the rapid-fire release of complementary investigations captured the attention of the media and of blogosphere aficionados, as well as the international law community. Estimates as to casualties vary wildly between the four reports. Emmerson suggests some 15 civilian deaths in Afghanistan by the United Nations Assistance Mission in Afghanistan (UNAMA), and 23 civilians by the us, four civilians through the United Kingdom, in one incident.5 In Pakistan, where the United States has conducted some 330 drone strikes, official United States government records suggest some 2200 deaths, and Emmerson has confirmed that at least 400, and possibly up to 600, of these deaths are regarded as non-combatants, and that these figures are likely under-estimates.6 In Yemen, some 21 to 58 civilians have been killed out of nearly 400 fatalities since 2011;7 and in Libya, after some 145 drone strikes, the International Commission of Inquiry on Libya suggested ‘evidence of  civilian loss of life’, without quoting numbers. Finally, in Gaza, Israel has

3 Emmerson, supra note 1; Christof Heyns, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, un Doc. A/68/382 (Sept. 13, 2013). 4 Amnesty International, ‘Will I be Next?’: us Drone Strikes in Pakistan (2013) (‘ai Report’); Human Rights Watch, ‘Between a Drone and Al-Qaeda’: The Civilian Cost of us Targeted Killings in Yemen (2013) (‘hrw’). 5 Emmerson, supra note 1, at 30. 6 Recent figures from the tbij suggest the following figures: with 383 total drone strikes, 332 of which were conducted under the Obama administration, they estimate between 2,296 and 3,719 total casualties. Of these, estimates of civilian casualties vary between 416 and 957; and of child casualties, between 168 to 202. Between 1,089 and 1,639 individuals are believed to have been injured in these attacks. See Bureau of Investigative Journalism, ‘Drone Strikes in Pakistan’, available at www.thebureauinvestigates.com/category/projects/drones/dronespakistan/ (last accessed 8 June 2014). 7 The relevant figures for us covert drone strikes in Yemen between 2002 and 2014 are estimated as follows. There were between 63 and 75 confirmed drone strikes, in which between 330–482 individuals were killed. Of these, 34 to 83 were civilians, and seven were children. Between 78 and 196 persons are estimated to have been injured. Moreover, there have been some possible 93 to 112 unconfirmed and additional drone strikes, in which between 315 and 505 individuals were killed. Of these, between 24 and 48 civilians were killed, and between six and nine children. Some 85 to 118 additional individuals were injured. See Bureau of Investigative Journalism, ‘Drone Strikes in Yemen’, available at www.thebureauinvestigates .com/category/projects/drones/drones-yemen/ (last accessed 8 June 2014).

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acknowledged that its ‘Operation Cast Lead’ (2008–2009) resulted in ‘many civilian deaths and injuries, and significant damage to public and private property’, but has not released civilian casualty figures. It has also not released figures for ‘Operation Pillar of Defence’ (14–21 November 2012). Drone strikes and civilian casualties in Iraq and Somalia, however, have also not been well catalogued.8 What is interesting about drones is, to some extent, how their emergence demonstrates the grey areas or interstices of international law, or indicates areas of international law where the relevant international legal rules are not fully clear. These grey areas have been exploited by States (and their defenders) to develop and implement drone programmes; conversely, their critics have invoked various legal regimes, whether human rights law or international humanitarian law, to justify their criticism of the various drone programmes. What is interesting is that the opposing camps both make reference to legal arguments: in referring to jus ad bellum, States facing terrorist activity will inevitably emphasise their right to self-defence under Article 51 of the un Charter; States into which defensive operations may be mounted and those facing no serious threat will likely tout the impermeability of borders—also under the un Charter but this time according to Article 2. With respect to the jus in bello, international humanitarian law, the competing arguments will likely challenge where the balance is to be found between States’ claimed need to conduct military operations effectively (the overarching concept of ‘military necessity’) and their desire to protect its citizens, property, and activities from the ravages of war (‘humanity’). I presume you can locate the legal codification of these rules within the principles of distinction and proportionality in Article 52 of ap I, and in Article 1 (2) of ap I, respectively.9 What is more, as the icj indicated in its advisory opinion on Legality of the Threat or Use of Nuclear 8 Although the Bureau of Investigative Journalism has published figures, these are acknowledged to be under-estimates. Their figures for us drone strikes in Somalia between 2007 and 2014 are as follows: in between five and eight drone strikes, between 10 and 24 individuals have been killed. Of these casualties, one was a civilian and no children are estimated to have been killed. Some two or three individuals have been injured. 9 See also Hague Convention (IV) respecting the Laws and Customs of War on Land (18 October 1907) 187 cts 207; the ‘Lieber Code’ (Instructions for the Government of Armies of the United States in the Field, General Order no. 100); Art 52 and Art. 1(2) of the Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) (8 June 1977), 1125 unts 3. The principle of distinction—at least, of the protection to be afforded to the civilian population—is also reflected, to a point, in Art 13 of the Additional Protocol to the Geneva Conventions of 12 August 1949 and Relation to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (8 June 1977), 1125 unts 609.

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Weapons, and has been further demonstrated in the Reports of Heyns, Emmerson, Amnesty and Human Rights Watch, international humanitarian law does not fully displace international human rights law (‘ihrl’), but acts only as lex specialis. Human rights law, which sets different standards of protection unconfined by a presumption that a state of war exists, provides another normative dimension to the debate. For us, then, the task will be to untangle the competing legal arguments in order to examine and assess the parameters of the law in debates surrounding drone warfare. The late 2013 Reports in this area are striking in this respect, as they also equally seek to bring legal clarity with respect to these ‘classic’ arguments, and they all seem to adopt the same legal framework for drone operations. This convergence suggests, from the outset at least, that there is nothing particularly special about drone warfare that would exclude the application of ‘normal’ international law. Therefore, I would like first to review through the points of convergence in the debate, so as to identify the beginnings of a legal framework on which there would be less debate. Next, I would like to identify the important residual disagreements, why they are so, and what issues require continued attention. Given how many States in addition to the United States are now developing offensive drone capabilities,10 the time is ripe to situate these activities within the appropriate legal framework. I would like, from the outset, to suggest that the Obama speech and the four Reports, however positive a step forward both in affirming a measure of precaution but also a convergence in all claiming that the role of law in the regulation of drone warfare is essential, also represent a claim to the normalisation—or even the banalisation—of the practice of targeting terror suspects with unmanned drones. 1

Points of Convergence

Earlier, I identified three competing principles that govern drone operations: the protection of State sovereignty against the use of force; the ihl regime that governs the conduct of warfare; and international human rights law (ihrl). That first principle would determine whether it is lawful to cross into another State’s territory to conduct a drone strike; it is the initial question to be posed. ihl and ihrl concern the operation itself: was it conducted in accordance 10

The United States was obviously first, with its ‘Predator’ missiles, but Israel has the ‘Heron’ and ‘Mermes’ systems, and the United Kingdom is now conducting ‘Reaper’ drone strikes in Afghanistan, further legitimising the use of drones.

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with necessary international law precautions? Was lethal force (which is the quintessence of a drone strike) the right or necessary choice in these circumstances? 1.1 Sovereignty and the Use of Force Drones fly. Sending armed aircraft into another State’s territory to conduct air strikes is a prima facie violation of that State’s territorial integrity and in most cases equally amounts to a use of force under Article 2(4) of the Charter. But there are a few exceptions to mention which are relevant, as they are invoked in various circumstances.11 • Security Council approval under Articles 39 and 42: when authorisation to take ‘all necessary means’, or other express authorisation, is given to use force, strikes can operate without violating the Charter (but must obviously conform to ihl and to ihrl). An example of this would be the Libya strikes conducted by nato under Resolution 1973, which did not mention drones eo nomine, but which allowed for aerial operations. • Consent: Obviously, if a State consents, there is no force being used against a State in violation of its sovereignty; both the Emmerson and Heyns reports take pains to point out this principle expressly.12 Consent is ascertained according to two conditions: (1) it must be given legitimately, and by an official who has authority (or no manifest lack of authority); and (2) the action taken must fall within the scope of consent.13 A good example is how Pakistan, which previously approved us drone strikes (Emmerson report, para 53), has changed its view. Its Parliament has now prohibited the government from authorising future attacks except pursuant to a special procedure. The Parliament has also invalidated existing agreements regarding drones. This suggests that even if Pakistani military/intelligence officials authorise a strike, this would not apply because they manifestly lack authority to do so. Compare this to Yemen, which continues to consent to us operations. 11 12

13

I ignore entirely the law on neutrality, which is not invoked in current drone operations. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States) (Merits) [1986] icj Rep 14, at 246; Emmerson, supra note 1, at 51; Heyns, supra note 3, paras. 82–84; Philip Alston, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, paras. 37–38, un Doc. A/HRC/14/24/Add.6 (May 28, 2010). See also A.S. Deeks, ‘Consent to the Use of Force and International Law Supremacy’, (2013) 54 Harvard International Law Journal 1. See M.N. Schmitt, ‘Narrowing the International Law Divide: The Drone Debate Matures’, (2014) 39 Yale Journal of International Law, 2–3.

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• Self-defence under the Charter (Art 51): Perhaps the more problematic of the claims, as it allows a State unilaterally to attack another State using drone strikes. In the context of an armed conflict in ‘the olden days’, where there were formal proclamations of war between States, this might have been acceptable; but today, self-defence is principally invoked in the context of terrorist activity, and often against non-State actors. Because drone strikes use lethal force in a territory, this claim is problematic. I will return to this. 1.2 Applicable Law All four reports (and the ppg) agree that international humanitarian law governs the conduct of drone strikes, irrespective of the legality of the border crossing; it is a sweeping law of ‘last resort’. ihl addresses who may be targeted lawfully, through the principle of distinction (Article 48 ap I), and the legal requirements and limitations against collateral damage (through the principles of proportionality and precaution in attack, Article 57(2) ap I). What is interesting is that, if there is no state of armed conflict, ihl cannot apply, and the stricter rules of ihrl apply; but all four reports illustrate that ihl ought to apply as the prevailing legal regime for drone strikes during a conflict with an organised armed group (a non-international armed conflict, or ‘niac’), even though the provisions of ap I only apply in cases of international armed conflict.14 1.3 Organisation and Intensity The threshold for an niac was defined by the icty in Tadić as requiring that a group be sufficiently organised (actor) and that the hostilities reach a certain level of intensity. As Heyns and Emmerson have pointed out, this criterion’s application is tricky in relation to terrorist operations, as they must have a sufficiently close relationship—and not merely a common cause—to be parties to the conflict.15 That question of relationship is problematic: for example, the United States claims a right to target any ‘associated force’ to Al Qaida, provided the former has ‘entered the fight’ alongside it. Special Rapporteur Emmerson has noted that success in disrupting the Al-Qaida network 14 Heyns, supra note 3, 64–66; Emmerson, supra note 1, 66–68. See also icrc, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts (Report 31IC/11/5.1.2) (Oct. 2011), 10–11. 15 Schmitt, supra note 13, explains how this is the us understanding of the term ‘Al-Qaeda and its associated forces’, first used in Authorization for the Use of Military Force, 107 S.J. Res. 23, 107th Cong., Pub. L. No. 107–40, 115 Stat. 224 (2001).

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paradoxically weakens compliance with the organisation criterion.16 In addition, the State itself must be clear as to the basis on which States conduct an operation against a group. For instance, Amnesty International notes that us drone strikes target three groups in Pakistan’s tribal areas: the Afghan Taliban, the Pakistani Taliban, and Al-Qaida.17 Targeting the Afghan and Pakistani Taliban comprises assistance to Afghanistan and Pakistan in their respective niacs with those groups. Targeting Al-Qaida assets is an aspect of a separate niac between the United States and the organisation. These are determinative distinctions because, for example, withdrawal of Pakistani or Afghan consent would deprive the us of a legal basis for conducting operations in support of their niac, and, therefore, for applying ihl rules of targeting instead of ihrl. Human Rights Watch, in relation to Yemen, has acknowledged that there exists a niac between Yemen and Al-Qaida in the Arabian Peninsula (‘aqap’), thus characterising us drone strikes as assistance to Yemen.18 Human Rights Watch points out that the us does not act on behalf of Yemen, which opens a grey area, as the operations may have to be assessed as a separate niac between the United States and aqap, and the intensity requirement of Tadić might be problematic for the United States, as then ihrl thresholds would apply. It seems that here, whereas the test seems to be accepted in the abstract, in practice there are serious questions as to how it would apply within the grey areas. 1.4 Conduct of Hostilities The overarching ihl paradigm that governs the Geneva and Hague Conventions is the approach adopted in all four reports. What distinguishes the Emmerson and Heyns reports is in fact factual: Human Rights Watch and Amnesty deny that the thresholds of intensity and organisation have been met on the facts, but do not deny that this would be the legal regime that ought to apply. In short, to accept this paradigm is to accept the following evaluative method: • Combatant: is a target a member of an armed force or an organised armed group, or rather, an individual who is participating in hostilities?19 If in neither of these categories, they are civilians, and they cannot be targeted. 16 Emmerson supra note 1, 66; Heyns, supra note 3, 59–63. 17 ai Report, supra note 4, at 14. 18 hrw, supra note 4, at 2. 19 It is true that even these two categories may be somewhat elastic, particularly as regards persons who may not pose any immediate threat; but the determination of whether a person is understood as a combatant in the abstract is the necessary first step in determining whether they may be targeted lawfully.

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• Proportionality: Is the drone attack necessary? Proportionate in terms of collateral damage? Were all precautions taken? Are drones unnecessarily imprecise? There are two points about drone strikes that suggest that the latter may be true: the large blast areas (some 15–20 metres in diameter) generated by the heavy munitions deployed by drones to date,20 and the fact that drones are invariably used to target structures, houses and vehicles, in order to maximise lethal impact.21 • The ‘third principle’ of the ppg embodies these principles, making conditional the normalisation of drone strikes on a series of standards with which any drone strikes must conform: (i) Near certainty that the terrorist target is present; (ii) Near certainty that non-combatants will not be injured or killed; (iii) An assessment that capture is not feasible at the time of the operation; (iv) An assessment that the relevant governmental authorities in the country where action is contemplated cannot or will not effectively address the threat to us persons; and (v) An assessment that no other reasonable alternatives exist to effectively address the threat to us persons. I will return to these later, as the ppg goes some way to establishing a legal framework within which to assess the lawfulness of drone operations, but these raise a number of ambiguities that have led to a number of disagreements. 1.5 Applicability of International Human Rights Law The applicability of ihrl, as the overarching legal regime absent an armed conflict, is agreed in all four reports. This is confirmed by the Turkel Commission’s 2013 Report on the Maritime Incident of 31 May 2010 in Israel, which suggested even that principles from ihrl should apply, to the investigation of alleged breaches of international humanitarian law; it also confirms that the us reversal in 2011, which finally acknowledged the extension of ihrl into armed conflict, is 20

21

See T. Gillespie, K. Laygo, N. Rayo and E. Garcia, ‘Drone Bombings in the Federally Administered Tribal Areas: Public Remote Sensing Applications for Security Monitoring’ (2012) 4 Journal of Geographic Information System 136, 139, available at www.scirp.org/ journal/PaperInformation.aspx?paperID=18766 (last accessed 8 June 2014). See Bureau of Investigative Journalism, ‘Most us Drone Strikes Target Houses’, available at www.thebureauinvestigates.com/2014/05/23/most-us-drone-strikes-in-pakistan-attack -houses/ (last accessed 8 June 2014).

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most welcome.22 In practice, this means that ‘arbitrary deprivation of life’ is prohibited.23 It also means that you cannot merely target an individual because of his or her status (e.g. as a police officer or member of armed forces) and that the use of lethal force must be unavoidable to protect an individual’s life or to preclude grievous bodily injury. It must also be proportionate to the circumstances. Application of this standard means, according to Schmitt, that capture is generally required in lieu of killing, although Emmerson suggests that in limited circumstances a drone strike could comport with international human rights law.24 2

Points of Disagreement

There are a number of differences of opinion that persist; and it is here where academic debate is most important, as it can shape practice and the interpretations/policy decisions of States. Emmerson and Heyns have been particularly restrained in acknowledging these differences without taking a position. Let us survey them in turn. 2.1 Self-Defence We hardly require to discuss Article 51 of the Charter, which is the only exception in the Charter where a State may act alone; consent by a State to the intervention of another State collectivises an intervention, collective security measures taken under Chapter 7of the Charter are non-unilateral by definition. But there remains debate as to whether self-defence may extend against attacks by non-State actors.25 The icj has twice refused to extend the principle in this manner, in Armed Activities in the Territory of the Congo (Congo v Uganda)26 and Israeli Wall.27 However, the United States’ practice and legal 22

Fourth Periodic Report of the United States of America to the United Nations Committee on Human Rights Concerning the International Covenant on Civil and Political Rights, paras. 506–507 (30 December 2011), available at www.state.gov/j/drl/rls/179781.htm (last accessed 8 June 2014). 23 Universal Declaration of Human Rights, Art. 3, ga Res 217 (III)A, un Doc A/RES/3/217(III) (10 December 1948); International Covenant on Civil and Political Rights, Art. 6(1), ga Res 2200A (XXI), un Doc A/6316 (1966), 999 unts 171; Heyns, supra note 3, 30–31. 24 Emmerson, supra note 1, 35. 25 Ibid, 55–56. 26 Armed Activities in the Territory of the Congo (Congo v Uganda) [2005] icj Rep 169, paras. 146–147. 27 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] icj Rep 136.

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position have been emphatically to the contrary: the United States has most recently asserted, in Point 4 of the Presidential Policy Guidance, that if a State is unwilling or unable to put an end to activities of non-State groups within their territory that threaten us persons, such attacks are lawful. In fact, the Presidential Policy Guidance outright defends, on a legal basis, the United States’ ‘legitimate claim of self-defence’ against terrorist suspects. Although at least it represents an acknowledgment that the drone policy cannot be pursued without reference to any plausible standard, the interpretation given to the claim to self-defence is broad, and seems to extend beyond the scope of Article 51 of the Charter. 2.2 Imminence What is more, the question of when to launch a drone strike to preclude an imminent attack is equally relevant. Although the traditional approach is to apply the Caroline standard,28 of ‘necessity that is instant, overwhelming, leaving no choice of means, and no moment for deliberation’, the elasticity of these terms permits a troubling self-judging discretion to States invoking it. For example, the leaked Department of Justice paper of 4 February 2013, coupled with other prior statements, suggest that the United States has adopted an elongated concept of imminence that does not accord with the spirit or the letter of Article 51. Michael Schmitt, for example, has suggested that the right of anticipatory self-defence is extending in a world of secret attacks with catastrophic consequences, as permitting defensive actions ‘when the window of opportunity’ to defend oneself is on the point of closing, e.g. when there is actionable intelligence as to the location of key members of a terrorist group. It is necessary to point out, however, that in President Obama’s speech of 23 May 2013, he acknowledged that his ‘administration submitted information about Awlaki to the Department of Justice months before Awlaki was killed, and briefed the Congress before this strike as well’.29 To my mind, the very admission of months of careful planning on the part of the Obama administration seems to confirm the confusion between imminence and the continuing nature ascribed to terrorist activities. 2.3 Geography of War This is an important question as to whether ihl is territorially confined, with ihrl applying outside the ‘theatre of operations’.30 Although the law of international armed conflict (‘iac’) does set out the boundaries of military 28 Cited by Emmerson, supra note 1, at 57; and Heyns, supra note 3, at 87. 29 Obama Speech, supra note 2. 30 Emmerson, supra note 1, at 60–65.

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operations, through the law of neutrality, within the territories of parties to a conflict, because this is a non-international armed conflict (‘niac’), there is no established regime which clearly operates, and drone strikes have triggered a dispute over whether a niac can cross borders in this manner.31 There have been three solutions proposed. First, niac continues to be confined to the territory of the States involved or giving their consent, under Common Article 3 of the Geneva Conventions. Any operation outside that territory falls under international human rights law. Secondly, niac extends hostilities into neighbouring States. For example, drone operations against the Afghan Taliban in Pakistan’s tribal areas could involve status-based targeting under ihl, while those elsewhere would be bound to standards under international human rights law. Amnesty International adopts this position with respect to Afghan Taliban who ‘use North Waziristan as a staging ground for attacks on us and Afghan government forces’.32 Under this view, ihrl would yield to ihl, although not the prohibition on the arbitrary deprivation of life.33 Thirdly, there is the so-called ‘Hamdan’ approach, which found endorsement in the Presidential Policy Guidance, through which geography is ignored altogether and only the parties to the conflict are considered. Because conflict is between parties in this particular situation of niac, it must follow the participants. This is a particularly broad view, and it suggests that drones may be launched outside any area of active hostilities, which also leads to questions as to how and where international humanitarian law would apply against a heretofore-disinterested State. But it is tempered somewhat by the caution that before a State may merely use drones against any other State, it must comply with the points above (on Security Council authorisation and consent; and possibly self-defence if one follows the us ‘unwilling or unable’ view.) 2.4 Direct Participation in Hostilities The principle may be said to apply in theory, which means that civilians who participate directly in hostilities may be targeted. The icrc’s Interpretive Guidance, adopted by hrw and Amnesty,34 suggests that if they join an organised armed group and have a ‘continuous combat function’, they are targetable on the same basis as members of armed forces.35 If not participating directly in 31 Schmitt, supra note 13, at 7. 32 ai Report, supra note 4, at 45. 33 Emmerson, supra note 1, 61. 34 ai Report, supra note 4, 42; hrw, supra note 4, 84–5. See also Heyns, supra note 3, at 68, 70, 72. 35 The question is raised also in International Committee of the Red Cross, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humani­ tarian Law (N. Melzer ed) (2009), 21–22, 27.

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hostilities, they are protected in the same manner as would be civilians. The continuous combat test sets a high threshold: participants must be engaged in the direct act of violence immediately or within close proximity for the attack. Activities—such as financing of terrorism, hiding weapons, and helping fighters to escape or supplying them with food and/or lodging—do not count. But disagreement surrounds whether the ‘continuous combat function’ should even apply: the United States says it creates a disparity because it does not set the same standard for members of regular armed forces and those of organised armed groups, who should not merit greater protection.36 The Third Principle of the ppg affirms the us position that the terrorist target must merely be ‘present’ and that non-combatants will not be targeted. However, the decision to make an individual targetable ‘in the exercise of national selfdefence’, as does the ppg in a footnote, suggests the elongation of the category of ‘indirect participants’ in hostilities, as these are deprived of their protection without taking direct part in a given operation, in violation of Article 13, paragraph 3, of ap II. The only interpretation of the United States’ position here would seem to be that, in cases of non-international armed conflict at least, it is free to target, with lethal force, individuals suspected of posing a threat to its national security. Whatever the United States’ position on the customary legal status of the Second Additional Protocol, the legal basis for the Obama administration’s claim seems rather novel. 2.5 Capture-Kill hrw has criticised a number of drone strikes on the basis that it violates the duty to try to capture, rather than to kill, individuals who qualify as lawful targets.37 Within the ihrl paradigm, this is the absolute rule; and those who wish to extend it to ihl suggest it is an important principle that drone strikes only be lawful if it is not reasonably possible to capture the target.38 Some argue in addition that it would be operationally insensible to conduct a lethal strike when capture is feasible, especially since so many such targets may carry intelligence value. But under ‘standard’ ihl, such a strike would be subject to the rules on targeting, military necessity, distinction and proportionality discussed earlier, and to the obligations to take precautions to prevent possible harm to civilians

36 37 38

See e.g. M.N. Schmitt, ‘The Interpretive Guidance on the Notion of Direct Participation in Hostilities: A Critical Analysis’, (2010) 1 Harvard National Security Journal 5, 21–24. hrw, supra note 4, 4. R. Goodman, ‘The Power to Kill or Capture Enemy Combatants’, (2013) 24 European Journal of International Law 819.

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and civilian objects.39 The Third Principle in the ppg binds the United States to an assessment that capture is not ‘feasible at the time of the operation’. 2.6 Investigations Human rights law imposes stringent requirements to investigate possible human rights abuses and requires that such investigations being carried out in an impartial, independent, prompt, and effective manner. There is no doubt that these standards apply equally to investigation under ihl. But the issue is the threshold at which the obligation to investigate arises: does it apply to every strike causing civilian casualties, or also where there might have been such a strike?40 The Turkel Commission in Israel concluded, in relation to war crimes, that the lower threshold would suffice: ‘where a credible accusation is made or a reasonable suspicion arises…an obligation to investigate would arise’.41 Or must there only be ‘credible evidence that an attack has violated the laws of war’, a rather looser standard.42 If one adopts the latter, it could be that a drone strike, launched during an armed conflict with full knowledge that civilians will be killed, would not necessitate an investigation so long as the requirement to take precautions in attack and the rule of proportionality were clearly satisfied.43 It is true also that the Obama speech on 23rd May 2013 promised to subject oversight over drone operations to review by a special court or to an independent oversight board; but these are advance scrutiny mechanisms, and they would not review operations after they have occurred. In this respect, ex ante but not ex post facto oversight raises questions of ambiguity and accountability that remain unresolved. This is because up to that point, it was the Central Intelligence Agency (cia) of the United States that had been involved in lethal counter-terrorism activities in Pakistan and Yemen: yet the cia is a secret service that does not confirm or deny its operations.44 As such, the transfer from 39

See, e.g. M.N. Schmitt, Wound, Capture, or Kill: A Reply to Ryan Goodman’s ‘The Power to Kill or Capture Enemy Combatants’, (2013) 24 European Journal of International Law 855; G. Corn, L. Blank, E. Jensen, and C. Jenks, ‘Belligerent Targeting and the Invalidity of a Least Harmful Means Rule’, (2013) 89 International Legal Studies 536. 40 The position of Amnesty International: see ai Report, supra note 4, 58. 41 See the Public Commission to Examine the Maritime Incident of 31 May 2010 (‘The Turkel Commission’), ‘Second Report: Israel’s Mechanisms for Examining and Investigating Complaints and Claims of Violations of the Laws of Armed Conflict According to International Law’ (February 2013), available at www.turkel-committee.gov.il/files/newDoc3/The%20 Turkel%20Report%20for%20website.pdf (last accessed 8 June 2014), 100, para. 46. 42 HRW, supra note 4, 87. 43 Schmitt, supra note 13, 8. 44 See Emmerson, supra note 1, 46.

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the cia to the Department of Defence might signal an increased transparency and accountability. 2.7 Signature Strikes Human Rights Watch and Amnesty take particular issue with ‘signature strikes’, where the identity of an individual is unknown, but where there is a presumption of combatant status. The ppg, although denying that all military-aged males in the vicinity of a target are deemed to be combatants, speaks of ‘terrorist targets’ rather than named individuals, basing targeting on behaviour and not identity. So goes this claim, these strikes violate the duty, under Article 50(1) of ap I, to presume an individual is a civilian unless established otherwise. The us would counter that even if the target’s identity is not fully established, signature strikes are lawful because the target’s conduct ‘reasonably leads to the conclusion that he/she is a member of an organised armed group or directly participating in hostilities’. This perhaps explains the elasticity behind the claim in the ppg that there must be only ‘near certainty’ that non-combatants will not be injured or killed, which really only requires a measure of precautions somewhat higher than the standard proportionality test, and thus does not fully bind the United States to the strict application of Article 50(1) of ap I.45 2.8 Kill Lists Amnesty International asserts that the ‘kill list’ used by the United States does not demonstrate that there is case-by-case analysis of whether such persons are taking direct part in hostilities.46 It also calls into question the ‘extremely low civilian casualty numbers’ reported by the United States, suggesting that this is because they do not presume unidentified individuals are civilians. The solution depends on a number of points here: whether one accepts that members of organised armed groups have a continuous combat function (as do Schmitt and the United States government, but not according to the icrc’s interpretive guidance), and whether the United States’ procedures to ensure individuals qualify as targetable are sufficient. These are delicate questions. 3

Concluding Thoughts

I have tried to illuminate whether the primary points for debate are to be found at present—the state of the debate, as it were. Consensus seems to suggest that 45 46

Although that might be a moot point, given that the United States is not a party to ap I. ai Report, supra note 4, 46.

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ihl applies if the criteria for the existence of an armed conflict are met, and that the same rules of niac apply to a terrorist group as to an organised armed group. Less clear, though, are a number of modalities relating to how such operations are classified, and what discretion is permitted to States. It seems that for now, the major un rapporteurs, both with Hyens as with Emmerson, seem perfectly at ease with the technology behind drones as such: ‘[i]f used in strict compliance with the principles of international humanitarian law, remotely piloted aircraft are capable of reducing the risk of civilian casualties in armed conflict by significantly improving the situational awareness of military commanders’.47 But the obligation to investigate ex ante and ex post facto seem important corollaries to this right, and there still major legal and factual questions to be answered as to the precise operation of rules of ihl. A final thought. It is true that public scrutiny and healthy debate help to govern and ensure accountability in this respect. But I have a final point. I have alluded numerous times that the Obama speech and guidance represent a normalisation of extrajudicial killing, a claim to the legitimisation of violence by reference to the need to combat terrorism by lethal force, whatever the collateral damage, and without recourse to alternative means, such as, for example, capture and military prosecution or internment.48 I confess discomfort with this: whatever the veneer of order wrought by this convergence, and the higher standards set by Obama, the drone framework is a classic example of what Walter Benjamin called ‘law-preserving’ violence, i.e., violence instrumentalised to further ends within the law. We lawyers, and especially international lawyers, tend to heave a sigh of relief whenever things are brought within the embrace of the law. The pragmatists amongst us would suggest that violence in such circumstances is unavoidable, and that the transparency and accountability brought by law will help to control violence. But is this enough? 47 Emmerson, supra note 1, 77. 48 For the sake of argument, I am here operating under the presumption that the United States is correct to assume it is in a situation of armed conflict where international humanitarian law applies. Were this not to be the case, my objections would be even stronger.

Part 2 The Protection of Non-Combatants During Armed Conflict

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chapter 4

Protecting Children in Armed Conflict through Complementary Processes of Political Engagement and International Criminal Law David S. Koller* When Joakim Dungel left the world of international courts and tribunals for what to many of us in The Hague were the largely unknown worlds of Hebron and Afghanistan, I can recall conflicting emotions of regret and awe, with an underlying sense of confusion: regret not only at the departure of a friend but also at the loss to international criminal law of a serious and prolific mind; awe at the ease with which Joakim struck out on a journey into (literally and figuratively) foreign territory; and confusion, knowing that his work as an international criminal lawyer and as a human rights officer were dedicated to similar ends, but unable fully to grasp how the two related to each other. This chapter seeks to understand how these two paths which Joakim pursued in his career fit together in the common pursuit of the enforcement of international humanitarian law and the protection of the most vulnerable civilians in conflict situations. 1 Introduction In 1996, Graça Machel, an independent expert appointed by the United Nations Secretary-General to study the impact of armed conflict on children, reported her findings to the United Nations General Assembly in a landmark report which would come to be known as the ‘Machel Report’.1 Her findings were shocking. She observed: * Legal Officer, United Nations. Formerly Advocacy Officer, Watchlist on Children and Armed Conflict and Special Assistant to the President, International Criminal Court. This article is dedicated to the memory of Joakim Dungel, a sharp legal scholar, dedicated humanitarian, and good friend whose career embodied the search for innovative and complementary approaches to maximize the protection of civilians from conflict and to secure the enforcement of international humanitarian law. 1 G. Machel, Impact of Armed Conflict on Children: Report of the Expert of the SecretaryGeneral, Ms. Graça Machel, Submitted pursuant to General Assembly Resolution 48/157, un Doc. A/51/306 (26 August 1996) (hereinafter ‘Machel Report’).

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004236592_006

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In the past decade, an estimated two million children have been killed in armed conflict. Three times as many have been seriously injured or permanently disabled, many of them maimed by landmines. Countless others have been forced to witness or even to take part in horrifying acts of violence.2 Children not only suffered as ‘collateral damage’ during attacks on military objectives or from the incidental effects of conflict. They were increasingly the direct targets of grave violations. The causes of harm were varied. According to the Machel Report: Some fall victim to a general onslaught against civilians; others die as part of a calculated genocide. Still other children suffer the effects of sexual violence or the multiple deprivations of armed conflict that expose them to hunger or disease. Just as shocking, thousands of young people are cynically exploited as combatants.3 The changing nature of conflict, including the increasing incidence of non-international armed conflicts involving non-state actors, meant that children and other civilians increasingly bore the brunt of conflict.4 Machel estimated, ‘[i]n recent decades, the proportion of war victims who are civilians has leaped dramatically from 5 per cent to over 90 per cent’.5 Among these civilians, children were found to be particularly vulnerable. As a direct result of conflict or in the course of displacement caused by conflict, children may be separated from their families and broader networks on which they rely for physical and psychological security and support.6 Families may sacrifice their children to sex trafficking for protection or to escape the worst scourges of war.7 Landmines which appear as toys may attract children.8 Weapons which may only injure adults can be fatal for children.9 Potentially fatal risks to children from disease, malnutrition or unsanitary health conditions may increase substantially10 and are further compounded 2 3 4 5 6 7 8 9 10

Machel Report, supra note 1, para. 4 (citations omitted). Ibid., para. 1. See Report of the Secretary-General to the Security Council on the Protection of Civilians in Armed Conflict, un Doc. S/2001/331 (30 March 2001), para. 3. Machel Report, supra note 1, para. 24. Ibid., paras. 66–76. Ibid., paras. 96–102. Ibid., paras. 113–4. Ibid., para. 116. Ibid., paras. 136–45, 155–61.

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when hospitals or medical centres are damaged or rendered inaccessible as a result of conflict.11 The interruption of critical stages of children’s physical and psychological development by conflict can have long-lasting effects.12 The effects on children of armed conflicts were not unknown to international humanitarian law (or ihl). Conventions and rules of customary inter­ national law existed regulating to a great extent the protection of children and other civilians. Yet, they continued to be violated.13 The problem lay not in the lack of rules but in their enforcement.14 The Machel Report drew new attention to the issue of children and armed conflict and to the need for more effective enforcement of international humanitarian law. Its publication contributed to strengthening enforcement in two ways. First, the Machel Report kicked off a new process of political engagement by the United Nations to stop and to prevent grave violations of international law committed against children. Second, it fed into ongoing efforts to enforce international humanitarian law through criminal accountability. In the years that have followed, these two processes have developed along separate but inter-related tracks. At times, the two tracks have converged, often with mutually enriching results, for example when the Special Representative of the United Nations Secretary-General for Children and Armed Conflict, the leading political advocate in this field, testified as an expert witness before the International Criminal Court, the first ­permanent international criminal court or tribunal charged with the enforcement of international humanitarian law.15 However, certain tensions have also 11 12 13

Ibid., paras. 146–8. Ibid., para. 30. For updated assessments on the situation of children affected by armed conflict, see the annual reports of the un Secretary-General to the Security Council and of the Special Representative of the Secretary-General to the un General Assembly, the most recent of which were issued in 2012. Children and Armed Conflict: Report of the Secretary-General, un Doc. A/66/782–S/2012/261 (26 April 2012); Report of the Special Representative of the Secretary-General for Children and Armed Conflict, un Doc. A/67/256 (6 August 2012). See also M. Drumbl, Reimagining Child Soldiers in International Law and Policy (2012). 14 This is not to say that the legal framework was fully sufficient. The Machel Report also contributed directly to the development of two new international legal instruments regulating aspects of armed conflict related to children which were deemed insufficiently regulated. These were the 1997 Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-Personnel Mines and on their Destruction, 2056 unts 211 (18 September 1997), and the 2000 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, 2173 unts 222 (2000). 15 See Prosecutor v. Lubanga Dyilo, Judgment Pursuant to Article 74 of the Statute, ICC-01/0401/06-2842, T.Ch. I, 14 March 2012, paras. 606, 611–8, available at www.legal-tools.org/en/ go-to-database/record/677866/ (last accessed 1 August 2014).

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appeared to emerge between (and within) the premises underlying these two approaches to a common problem, most notably where the threat of criminal punishment has been alleged to be an obstacle to the voluntary cessation of violations by perpetrators. This chapter describes the development of international humanitarian law relating to children and the problems in its enforcement. It traces the evolution of these new tracks of political engagement and criminal accountability as means to enforce international humanitarian law. The chapter then examines the purported challenges arising at the intersection of the three paradigms of international humanitarian law, political engagement, and criminal accountability. It concludes that the purported conflict between political negotiations and criminal punishment is actually inherent in each paradigm and not a consequence of conflicting paradigms. However, other potential paradigm clashes may emerge if the processes of political engagement and criminal accountability are allowed to become unmoored from their international humanitarian law foundations. 2

The Development and Enforcement of International Humanitarian Law in Relation to Children and Armed Conflict

International Humanitarian Law and other Norms Relevant to Children in Armed Conflict Under international humanitarian law, the branch of international law regulating armed conflict, children are protected both through general provisions applicable to all civilians, including children, and through specific pro­ visions applicable uniquely to children. Children are also protected by generally appli­cable and child-specific provisions of international human rights law during times of armed conflict. The most relevant legal provisions are reviewed below.16 2.1

16

For a more thorough overview of ihl related to children, see, e.g., International Committee of the Red Cross, ‘Children in War’ (2004), available at www.icrc.org/eng/ assets/files/other/icrc_002_0577k_children_in_war_kit.pdf (last accessed 1 August 2014).; R.K. Dixit, ‘Special Protection Of Children During Armed Conflicts Under The Geneva Conventions Regime’, (2001) 1 Isil Year Book of International Humanitarian and Refugee Law 12; D. Plattner, ‘Protection of Children in International Humanitarian Law’, (1984) 240 International Review of the Red Cross 140; M. Maystre, Les enfants soldats en droit international: Problématiques contemporaines au regard du droit international humanitaire et droit international pénal (2007).

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In the case of an international (i.e., inter-state) armed conflict, children are generally entitled to the protections accorded to all civilians under the Fourth Geneva Convention of 1949.17 Its provisions include: prohibitions against, inter alia, murder, torture, medical experimentation,18 and rape or indecent assault;19 protection of hospitals and hospital or neutral zones;20 and detailed regulations governing occupied territories21 as well as the internment of civilians.22 Special protections for children include: the prohibition of the death penalty for minors;23 provision for safety zones or the evacuation of children;24 and obligations to look after children separated or orphaned by war,25 to facilitate or make arrangements for their education,26 and to aid correspondence between and the reunification of families.27 Additional Protocol I to the Geneva Conventions further regulates the conduct of hostilities in international armed conflicts.28 It prohibits attacks against civilians and civilian objects29 as well as indiscriminate attacks which ‘are of a nature to strike military objectives and civilians or civilian objects without distinction’.30 Article 77(1) provides that ‘[c]hildren shall be the object of special respect and shall be protected against any form of indecent assault’. Moreover, it requires parties to conflicts to provide children with ‘the care and aid they require, whether because of their age or for any other reason’. Concerning child soldiers, Article 77(2) prohibits the recruitment of children under 15 and requires parties to the conflict to take ‘all feasible measures’ to ensure that children under 15 do not take a direct part in hostilities. Article 78 imposes detailed requirements in relation to the evacuation of children in 17 18 19 20 21 22 23 24 25 26 27 28

29 30

1949 Geneva Convention Relative to the Protection of Civilian Persons in Times of War (IV), 75 unts 287 (12 August 1949) (hereinafter ‘Geneva Convention IV’). Ibid., Art. 32. Ibid., Art. 27. Ibid., Arts. 14–23. Ibid., Arts. 47–78. Ibid., Arts. 79–141. Ibid., Art. 68. Ibid., Arts. 14, 17. Ibid., Art. 24. Ibid., Arts. 24, 50. Ibid., Arts. 24–6. 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International armed Conflicts, 1125 unts 3 (8 June 1977) (hereinafter ‘Protocol I’). Protocol I, supra note 28, Arts. 51(2), 52(1). Protocol I, supra note 28, Art. 51(4).

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order to facilitate their return to their families. The special protections to which children are entitled in international armed conflicts are considered to constitute customary international law.31 In situations of non-international armed conflict, children who take no active part in hostilities are protected under common Article 3 to the four 1949 Geneva Conventions which prohibits, inter alia, murder, mutilation, cruel treatment, torture, taking of hostages, and outrages against personal dignity. Additional Protocol II to the Geneva Conventions further specifies that in the case of non-international armed conflict, civilians and the civilian population (including children) shall not be the object of attack.32 Protocol II does not specifically prohibit indiscriminate attacks, but this prohibition, explicit in Protocol I, is also considered part of customary law under non-international armed conflict.33 Article 4(3) of Protocol II provides that ‘[c]hildren shall be provided with the care and aid they require’ including in relation to education and family reunification. Article 4(3)(c) prohibits the recruitment of children under 15 as soldiers and their taking part in hostilities. The obligation to take special care for children in non-international armed conflict is also considered to be part of customary international law.34 Children who qualify as combatants, for example, because they are part of the armed forces or an organized armed group,35 also benefit from the protections afforded combatants. These protections include requirements of care for the sick, wounded, and shipwrecked under the First and Second 1949 Geneva Conventions36 and entitlement to prisoner of war status under the Third Geneva Convention. Child combatants do not lose the special protections 31

32

33 34 35

36

J-M Henckaerts and L. Doswald-Beck (eds), Customary International Humanitarian Law (2006), available at www.icrc.org/customary-ihl/eng/docs/home (last accessed 1 August 2014) (hereinafter ‘icrc Customary ihl Study’), Rule 135. 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, 1125 unts 609 (8 June 1977) (hereinafter ‘Protocol II’), Art. 13. icrc Customary ihl Study, supra note 31, Rule 11. Ibid., Rule 135. See, e.g., 1949 Geneva Convention Relative to the Treatment of Prisoners of War (III), 75 unts 135 (12 August 1949) (hereinafter ‘Geneva Convention III’), Art. 4; Protocol I, Arts. 43–4. 1949 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (I), 75 unts 31 (12 August 1949) (hereinafter ‘Geneva Convention I’); 1949 Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (II), 75 unts 85 (12 August 1949) (hereinafter ‘Geneva Convention II’).

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afforded to children under the Additional Protocols.37 However, as combatants, child soldiers may be targeted—and killed—without violating the principle of distinction. After the Geneva Conventions and Protocols and their customary law equivalents, the most directly relevant instruments to the protection of children in armed conflict are the 1989 Convention on the Rights of the Child (crc), which has been nearly universally ratified, and the first Optional Protocol thereto, adopted in 2000, which has been ratified by 129 states.38 Article 38 of the crc obliges states parties to respect and to ensure respect for the relevant rules of international humanitarian law pertaining to children and to take all feasible measures to ensure protection and care of children affected by armed conflict. States parties are obliged to refrain from recruiting persons under 15 into their armed forces, to prioritize the eldest when recruiting persons between 15 and 18, and to take all feasible measures to ensure that persons under 15 do not take a direct part in hostilities. In the crc Optional Protocol, states parties establish 18 as the minimum age for compulsory recruitment into the armed forces,39 agree to raise the age for voluntary recruitment (from 15 to an unspecified age), commit to putting in place safeguards concerning the voluntary recruitment of persons under 18,40 and oblige themselves to take all feasible measures to ensure that members of their armed forces under 18 do not take a direct part in hostilities.41 They take a stronger stance against the recruitment and use of children under 18 by non-state actors, declaring that ‘armed groups that are distinct from the armed forces of a State should not, under any circumstances, recruit or use in hostilities persons under the age of 18 years’.42 Complementing these important treaties, Convention No. 182 of the International Labour Organization (ilo) further declares the forced or compulsory recruitment of children under 18 to be among the worst forms of child labour and obliges states to take immediate and effective measures to secure its prohibition and elimination.43 37 38

39 40 41 42 43

See Protocol I, supra note 28, Art. 77(3); Protocol II, supra note 32, Art. 4(3)(d). 1989 Convention on the Rights of the Child, 1577 unts 3 (20 November 1989); 2000 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, 2173 unts 222 (25 May 2000) (hereinafter ‘crc Optional Protocol’). Ibid., Art. 2. Ibid., Art. 3. Ibid., Art. 1. Ibid., Art. 4. 1999 Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labor (ilo No. 182), 2133 unts 161 (17 June 1999).

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Beyond the specific provisions of international humanitarian law and the conventions addressing the recruitment and use of child soldiers, children in situations of armed conflict are entitled to the general protections of human rights law to the extent that they are not supplanted by the lex specialis of ihl (e.g., the incidental killing of children in an otherwise lawful and proportionate attack would not constitute a violation of the right to life under contemporary international law),44 and they may further benefit from additional specific protections in national law. Other non-legally binding commitments, in particular the widely subscribed Paris Commitments and Principles of 2007, provide further guidance to states on preventing and responding to the recruitment and use of child soldiers.45 However, as it is international humanitarian law, primarily the Fourth Geneva Convention, Additional Protocols I and II and customary law, as well as the conventions specifically addressing the recruitment and use of child soldiers (the crc, its Optional Protocol and ilo Convention No. 182) which provide the most concrete, generally applicable and legally binding protections to children, this chapter focuses on these sources of law. 2.2 The Problems of Enforcement of International Humanitarian Law As seen above, international humanitarian law contains a wealth of provisions protecting children from armed conflict. The challenge lies in their enforcement.46 The very first article of the Geneva Conventions and Protocol I provides that states undertake ‘to respect and to ensure respect for’ these texts. The authoritative study of customary international humanitarian law by the International Committee of the Red Cross (icrc) has concluded that the obligation to respect and to ensure respect for international humanitarian law is a customary law obligation, applicable to international and non-international armed conflicts.47 As part of their obligation to respect and ensure respect for the law, states are forbidden from encouraging violations of international 44 See Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, [1996] icj Rep. 226; see also C. McCarthy, ‘Legal Conclusion or Interpretative Process? Lex Specialis and the Applicability of International Human Rights Standards’, in R. Arnold and N. Quénivet (eds), International Humanitarian Law and Human Rights Law: Towards a New Merger in International Law (2008), at 101. 45 un Children’s Fund (unicef), The Paris Principles. Principles and Guidelines on Children Associated with Armed Forces or Armed Groups (February 2007), available at www.unhcr .org/refworld/docid/465198442.html, last accessed 13 December 2012. 46 See, e.g., J-P. Lavoyer, ‘International Humanitarian Law: Should It Be Reaffirmed, Clarified or Developed?’, (2004) 34 Israel Yearbook on Human Rights 1. 47 icrc Customary ihl Study, supra note 31, Rule 139.

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humanitarian law by others and must ‘exert their influence, to the degree possible, to stop violations of international humanitarian law’.48 Despite these clear provisions, even the most basic rules of international humanitarian law continue to be violated repeatedly, as reflected in the findings of the Machel Report discussed above. At least five factors can be identified for the difficulty in enforcing the law generally and as it relates specifically to the problems of the changing nature of armed conflict. First, the relevant treaties only extend to the territories of states which have ratified or otherwise accepted them. This is not significantly problematic in relation to traditional international armed conflicts under the Fourth Geneva Convention and the crc as these treaties are nearly universally ratified (although one of the very last holdouts to the crc possesses one of the world’s largest and most active militaries). It is more of a problem for noninternational armed conflicts. While Protocol II has been ratified by 166 states, many countries involved in non-international armed conflicts have yet to ratify Protocol II.49 In addition, its scope is far less than that of Protocol I. The impact of this factor on the enforcement of relevant international humanitarian law should not be overstated. As discussed above, the icrc study of customary international humanitarian law makes clear that the most significant norms applicable to the protection of children in the Geneva Conventions, Additional Protocols and crc are universally binding as customary law, save for the specific requirements in the crc Optional Protocol which aim to raise the age of recruitment or use of soldiers from 15 to 18. While the clarity, specificity and signalling effect that come with a treaty may be absent, the law still extends sufficiently broadly to regulate most conduct concerning children. Second, the conventions and customs of international humanitarian law are generally applicable only in situations of armed conflict, whether international or non-international. While human rights law generally protects children in non-conflict situations, it lacks much of the specificity of international humanitarian law on particular issues (e.g., the detailed requirements of Article 78 of Protocol I on evacuation of children). By denying that a situation has reached the threshold of armed conflict, parties to a conflict may deprive children of their essential protections under the Geneva Conventions, Additional Protocols, or customary law. This is particularly a concern in situations of noninternational armed conflict. Whereas an international armed conflict does 48 49

Ibid., Rule 144. J-M. Henckaerts, ‘Binding Opposition Groups through Humanitarian Treaty Law and Customary Law’, in Proceedings of the Bruges Colloquium: Relevance of International Humanitarian Law to Non-State Actors, (2003) 27 Collegium 123, at 123–4.

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not need to reach a certain threshold of intensity,50 Protocol II explicitly states that ‘situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature’ do not qualify as armed conflict.51 This difficulty is partially minimized by the objective approach taken in the Geneva Conventions and Protocols. The existence of armed conflict is rendered an objective qualification of facts on the ground, namely the intensity of hostilities and the degree of organization of the parties, rather than a matter for the subjective determination of the parties. However, in cases of doubt as to whether the threshold has been reached, the subjective assessments of the parties may influence the effective enforcement of the law. Third, parties to conflicts may lack either the will or capacity to enforce legal provisions related to the protection of children. Non-state actors may be unaware of their international legal obligations. Child soldiers may be seen as a relatively cheap and dependable source of labour.52 In some communities, participation in the armed group may be seen as part of a child’s obligation to defend his or her society.53 Definitions of ‘childhood’ or cultural norms relating to children may vary greatly.54 Particularly in relation to non-state actors, but also regarding state actors, education in international humanitarian law may be lacking, as well as means for its enforcement. The obligation to disseminate the law is thus built into the Geneva Conventions and Additional Protocols.55 Where willing, parties to a conflict may lack the capacity to ensure the respect for international humanitarian law by their forces. This is particularly the case in fragile states which may not exercise full command 50

51 52

53

54

55

icrc, Opinion Paper, ‘How is the Term “Armed Conflict” Defined in International Humanitarian Law?’, (March 2008), available at www.icrc.org/eng/assets/files/other/ opinion-paper-armed-conflict.pdf (last accessed 1 August 2014). Protocol II, supra note 32, Art. 1 (2). See, e.g., International Labour Organization, Wounded Childhood: The Use of Children in Armed Conflict in Central Africa, 2003, available at www.ilo.org/ipecinfo/product/ viewProduct.do?productId=948 (last accessed 1 August 2014), at 25–6. See Watchlist/imdc, ‘An Uncertain Future? Children and Armed Conflict in the Central African Republic’, (May 2011), available at http://watchlist.org/wordpress/wp-content/ uploads/Watchlist-CAR-report-EN.pdf at 21–3 (describing the use of children in selfdefense militias, last accessed 1 August 2014). See Report of the Secretary-General on children and armed conflict in the Philippines, un Doc. S/2008/272 (24 April 2008), para. 17 (attributing the incidence of children in the ranks of the Moro Islamic Liberation Front to the definition by its leadership of the age of maturity as puberty). See, e.g., Geneva Convention IV, supra note 17, Art. 144; Protocol I, supra note 28, Art. 83; Protocol II, supra note 32, Art. 19.

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and control over their troops or with some non-hierarchical non-state armed groups. states and non-state actors are obliged to organize themselves appropriately and are responsible for violations committed by their members.56 However, where this self-enforcement breaks down, alternative means of enforcement are necessary. Fourth, the enforcement of the law—save for recent developments des­ cribed in the following sections—has relied almost entirely on the very states and parties to conflicts responsible for violations to self-police their behaviour. No effective independent enforcement mechanism existed. Historically, the primary incentive for observance of international humanitarian law was the expectation of reciprocity. States would respect provisions of Geneva Con­ vention III related to prisoner of war status knowing that their own soldiers, if captured, were dependent on the opposing party to provide similar treatment. However, the treatment of civilians may be less of a concern, particularly when one bears in mind the all too frequent practices of armed forces and groups targeting their own civilian populations. In the case of the use of child soldiers, for example, where the victims are a state or party’s own population, there is no incentive based on reciprocity, i.e., that the enemy state or party will not recruit the children of the concerned state or party. Where expectations of reciprocity were not fulfilled, historically, the main tool for enforcing international humanitarian law was the threat or use of reprisals. Where one party committed violations against another party, the aggrieved party was legally entitled to respond proportionately in kind.57 However, modern international humanitarian law generally prohibits reprisals against civilians.58 One side to a conflict cannot threaten to respond in kind if the opposing party attacks or threatens to attack its civilians. This is undoubtedly a welcome advance in ihl and strengthens the protection of children, but it has removed one of the few tools for enforcing the law.59 Fifth, international humanitarian law and human rights law are both statecentric and do not adequately address the situation of non-state actors who represent a growing threat to the enforcement of international humanitarian law.60 States have refused to treat non-state actors on an equal footing 56 57 58 59 60

See Protocol I, supra note 28, Art. 43; Protocol II, supra note 32, Art. (1); icrc Customary ihl Study, supra note 31, Rules 139, 149. icrc Customary ihl Study, supra note 31, Rule 145. Ibid., Rule 146. See M. Osiel, The End of Reciprocity: Terror, Torture, and the Law of War (2009). See generally V. Zellweger and D. Koller, ‘Non-State Actors, International Criminal Law and the Role of the International Criminal Court’, in S. Breitenmoser et al. (eds),

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with other states out of fear that to do so would somehow increase the legitimacy of non-state armed groups’ struggles against states, even though common Article 3(4) to the four Geneva Conventions explicitly states that its application ‘shall not affect the legal status of the Parties to the conflict’.61 Non-state actors not only are unable to sign or ratify treaties, but they are also largely prohibited from participating in their negotiation and lack the privileges and protections afforded to belligerents in inter-state conflicts. Whereas participants in an inter-state armed conflict may not be punished for legitimate acts of belligerency (as opposed to war crimes or ‘grave breaches’ of the Geneva Conventions), non-state actors may be subjected to prosecution for the mere act of taking up arms. Protocol II encourages states to grant broad amnesties to their non-state opponents on the close of non-international armed conflicts, but there is no requirement that they do so.62 This disparate treatment of state and non-state actors undermines the effectiveness of a system based on self-enforcement and reciprocity. The fact that non-state actors may not participate in negotiating the ‘rules of the game’ may already lower their incentives to comply with international humanitarian law. That they are liable to be prosecuted irrespective of how they conduct themselves only compounds this difficulty. Against this background, some non-state actors have sought to hold themselves to a higher standard in order to gain increased international legitimacy.63 In response, states have attempted to deny nonstate actors this legitimacy by limiting their ability to engage the international community directly. In the area of children and armed conflict, the Security Council has consistently—and unanimously—insisted that United Nations efforts to engage non-state actors must be undertaken ‘with the participation of and in cooperation with national governments’ and be ‘designed to support and supplement’ the roles of national governments.64 Such obstacles to engagement may also limit efforts to disseminate international humanitarian law towards armed groups. With armed conflicts increasingly being of an asymmetrical nature between states and non-state actors and their costs increasingly be borne by children

61 62 63

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Human Rights: Democracy and the Rule of Law: Liber Amicorum Luzius Wildhaber (2007) 1619, at 1620–7. J. Pictet, Commentary to the Geneva Conventions of 12 August 1949 (1952), vol. 1, at 43–4. Protocol II, supra note 32, Art. 6(5). An extensive directory of such humanitarian commitments by non-State armed groups has been made available by the organization Geneva Call. See http://theirwords.org/ pages/home (last accessed 1 August 2014). un Doc. S/RES/1612 (2005).

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and other civilians, alternative methods of enforcement have become necessary. In particular, external enforcement mechanisms which could transcend the problems of self-regulation and new methods for engaging non-state actors especially, but also states, through positive and negative inducements were needed. Two such mechanisms are discussed in the next section. 3

New Trends in the Enforcement of International Humanitarian Law and the Protection of Children

Two new trends have emerged recently among efforts to tackle the problem of the enforcement of international humanitarian law and its protection of children. These include a political track at the United Nations centred around the specific issue of children and armed conflict and the development of legal mechanisms for the imposition of criminal accountability for serious violations of international humanitarian law generally, including but not limited to violations against children. While based on similar previous efforts and in many ways a progression of prior attempts to enforce the law, the extent and scope of developments since the mid-1990s justify characterizing them as indeed new trends. The two trends are described in this section, and their interrelationships—­ complementary and contradictory—are examined in the following section. 3.1 The Political Track: The Children and Armed Conflict Agenda The presentation in 1996 to the United Nations General Assembly of the Machel Report, discussed above, awoke much of the international community to the issue of children and armed conflict and triggered the development of a Children and Armed Conflict agenda and associated political process within the United Nations. In its resolution welcoming the Machel Report, the United Nations General Assembly made a series of recommendations to states and the United Nations to address the issue of children and armed conflict.65 Among these, it recommended that the Secretary-General appoint a Special Representative on the impact of armed conflict on children.66 Among his or her tasks, the Special Representative would assess progress in strengthening the protection of children in armed conflict, raise awareness of this issue, promote the collection of information, encourage networking, and work closely with and foster co-operation among relevant actors in this area.67 The Special 65 66 67

un Doc. A/RES/51/77 (20 February 1997), paras. 10–39. Ibid., para. 35. Ibid., para. 36.

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Representative would submit an annual report to the General Assembly and the Commission on Human Rights.68 Secretary-General Kofi Annan appointed Olara Otunnu as his first Special Representative in 1997,69 and the mandate has been regularly renewed and successors appointed ever since.70 The Special Representative has no enforcement powers, no detailed mandate beyond the general recommendation by the General Assembly and no formal position within the United Nations hierarchy beyond representing the Secretary-General. The Special Representatives have conceived their role as one of advocacy, moral suasion, facilitation, awareness building and promotion of action.71 Despite the lack of enforcement powers, the work of the Special Representatives has had considerable impacts. The annual reports of the Special Representative have kept the issue of children and armed conflict prominently on the agenda on the General Assembly and have forced the Member States of the United Nations to confront the reality on the ground in diverse situations. His or her advocacy including the use of good offices, field visits and media activities have drawn attention to particular cases involving children and armed conflict.72 The Special Representatives have provided their expertise on children and armed conflict to States and other organizations.73 Most critically, they have strongly advocated for and promoted the development of the United Nations’ further processes and mechanisms, under the Security Council, with respect to children and armed conflict, within which the Special Representative has taken on a more robust role. 68 69

Ibid., para. 37. United Nations, Secretary-General appoints special representative to study impact of armed conflict on children, un Doc. SG/A/647 (19 August 1997). 70 The current Special Representative, Ms Leila Zerrougui, was appointed on 13 July 2012, succeeding Ms Radhika Coomaraswamy. Office of the Special Representative of the Secretary-General for Children and Armed Conflict, ‘srsg Coomaraswamy welcomes the appointment of Leila Zerrougui as the new Special Representative’, 24 July 2012, available at http://childrenandarmedconflict.un.org/srsg-coomaraswamy-welcomes -appointment-of-leila-zerrougui-as-new-special-representative/ (last accessed 1 August 2014). 71 See Office of the Special Representative of the Secretary-General for Children and Armed Conflict, ‘About Us’, available at http://childrenandarmedconflict.un.org/about-us/ (last accessed 1 August 2014). 72 See, e.g., Office of the Special Representative of the Secretary-General for Children and Armed Conflict, ‘Special Representative Zerrougui secures commitments from the Yemeni authorities and Al Houthi armed group to end child recruitment’, 28 November 2012, available at: http://childrenandarmedconflict.un.org/press-releases/yemeni-authorities -and-al-houthi-armed-group-to-end-child-recruitment/ (last accessed 1 August 2014). 73 See Lubanga Judgment, supra note 15, paras. 606, 611–8.

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The ‘soft power’ of the Special Representative of the Secretary-General has been complemented by concurrent Security Council action in this field. In 1999, the Security Council took up the issue of Children and Armed Conflict as a thematic agenda item. In its Resolution 1261, the Council, inter alia, expressed its grave concern at the impact of armed conflict on children and its long-term consequences, condemned violations against children, called on parties to conflicts to abide by their international legal obligations in this regard, and reaffirmed its readiness to consider appropriate responses when buildings or sites normally containing children were unlawfully targeted.74 The Council called upon the Secretary-General to provide a report on the implementation of this resolution in 2000,75 beginning an annual reporting process which has kept the issue of Children and Armed Conflict as a thematic item on the Council’s agenda ever since. In practice, these reports are prepared by the Office of the Special Representative and complement his or her reports to the General Assembly. Following each report of the Secretary-General, the Security Council has generally adopted a resolution or presidential statement reiterating its commitment to protecting children in situations of armed conflict and calling on parties to conflicts and others to take actions.76 Since taking up the Children and Armed Conflict agenda, the Security Council has contributed further to the enforcement of international humanitarian law in three integrated ways, discussed below. First, the Security Council has called for and has backed the ‘naming and shaming’ of perpetrators of violations against children, thereby bringing external pressure to bear on the parties to conflicts. In its Resolution 1379 of 20 November 2001, the Council requested the Secretary-General to annex to his annual report a list of parties to armed conflict that recruit or use children in armed conflict. In Resolution 1882 (2009), the Security Council added the killing and maiming of children and sexual violence against children to the list of violations which would ‘trigger’ the inclusion of a party to a conflict in the annexes to the Secretary-General’s reports. In Resolution 1998 (2011), attacks on schools and hospitals were added as a fourth trigger violation for the listing of parties. The listed parties may be parties to international armed conflicts, but also non-international armed conflicts. Not without controversy, the Security Council has requested the Secretary-General to list in his reports not only perpetrators of violations in conflicts already on the Council’s agenda, 74 75 76

un Doc. S/RES/1261 (30 August 1999), paras. 2, 3, 18. Ibid., para. 20. See, e.g., un Docs. S/RES/1314 (2000), S/RES/1379 (2001), S/RES/1460 (2003), S/RES/1539 (2004), S/RES/1612 (2005), S/RES/1882 (2009), S/RES/1998 (2011), S/RES/2068 (2012).

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but also perpetrators in other situations of concern.77 This innovative request, based on the Secretary-General’s powers under Article 99 of the United Nations Charter, is significant in that it allows the Secretary-General and his Special Representative to play substantial ‘naming and shaming’ roles in situations which may be kept off the Council’s formal agenda due to political considerations.78 Second, the Security Council has urged parties named for violations against children to conclude concrete, ‘time-bound’ action plans to bring an end to such violations.79 Through these action plans, parties commit to taking a series of specific, concrete steps towards reducing and eventually stopping their violations. Action plans work hand-in-hand with the naming and shaming as a ‘carrot-and-stick’ approach. Implementation of action plans provides a means for the Special Representative to verify appropriate steps have been taken to stop and to prevent violations. Parties who conclude and successfully implement action plans will have their names removed from the list of violators in the annexes to the Secretary-General’s reports. As of September 2012, 20 such parties had concluded such action plans and nine had been removed from the Secretary-General’s reports (‘de-listed’) following full implementation of their action plans.80 Third, in its Resolution 1612 (2005), the Security Council established a Monitoring and Reporting Mechanism (mrm). Under the mrm, country-level task forces on the ground monitor six grave violations against children—the four ‘trigger’ violations listed above plus abduction and denial of humanitarian access. Once the mrm is triggered by the listing of a party in the annexes to the Secretary-General’s reports, a country task force, co-chaired by the highest United Nations authority and unicef and with the participation of other United Nations actors and sometimes non-governmental organizations, collects and verifies information on violations. This information is then reported to headquarters where the Security Council has established within itself a subsidiary body, the Security Council Working Group on Children and Armed Conflict (Working Group).81 This Working Group considers the reports 77 78 79 80

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un Doc. S/RES/1882 (2009), para. 19(a). un Doc. S/RES/1379 (2001), para. 16. See, e.g., un Doc. S/RES/1539 (2004), para. 5(a); un Doc. S/RES/1998 (2011), para. 6. Statement of the Special Representative of the Secretary-General for Children and Armed Conflict during the Security Council Open Debate on Children and Armed Conflict (19 September 2012), available at http://childrenandarmedconflict.un.org/statements/19-sept -2012-open-debate-security-council-statement/ (last accessed 1 August 2014). un Doc. S/RES/1612 (2005), para. 8.

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emanating from the mrm in specific countries and adopts conclusions containing recommendations for actions. The Working Group has developed a ‘tool kit’ listing actions it may take, ranging from letters or appeals to parties concerned to field visits, calls for technical assistance and forwarding information to justice mechanisms or relevant sanctions committees.82 The ultimate aim of the Working Group is to encourage and to facilitate the conclusion and implementation of action plans, thereby leading to the de-listing of perpetrators from the Secretary-General’s reports.83 The idea of engaging parties in concluding voluntary agreements such as action plans to abide by international humanitarian law has a deep history in efforts to improve enforcement of the law. Common Article 3 to the Geneva Conventions foresees that parties may conclude special agreements as a way to extend the protections of the Conventions to non-international armed conflict.84 Such agreements as well as unilateral declarations by parties may also serve to express parties’ commitments to particular rules of international humanitarian law, provide further details on how these rules will be implemented, or raise awareness among affected communities of the relevant rules.85 While actors such as the icrc and Geneva Call have worked behind the scenes to engage parties to conclude special agreements or to make unilateral declarations,86 the action plan process under the Security Council takes these efforts a step further. By bringing an outside party—one with considerable enforcement powers under the United Nations Charter and which is seen to represent the international community—to bear on conflicts, the Security Council’s approach of naming and shaming, action plans and the mrm aims to overcome some of the problems inherent in the self-enforcement of international humanitarian law which continue to plague special agreements and unilateral declarations. Its ‘carrot-and-stick’ approach draws not only on parties’ 82

Options for possible actions by the caac Working Group of the Security Council (‘toolkit’), un Doc. S/2006/724 (2006), Addendum. 83 un Doc. S/RES/1612 (2005), para. 8. 84 See, e.g., Geneva Convention IV, supra note 17, Art. 3. 85 See icrc, Increasing Respect for International Humanitarian Law in Non-international Armed Conflicts (February 2008), at 16–21, available at www.icrc.org/eng/assets/files/ other/icrc_002_0923.pdf (last accessed 1 August 2014). 86 See M. Sassoli, ‘Possible Legal Mechanisms to Improve Compliance by Armed Groups with International Humanitarian Law and International Human Rights Law, paper submitted at the Armed Groups Conference, Vancouver, 13–15 November 2003, available at www.armedgroups.org (last accessed 1 August 2014); See International Peace Institute and Geneva Call, Engaging Nonstate Armed Groups on the Protection of Children: Towards Strategic Complementarity, April 2002.

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desires for international legitimacy but also on their interests in avoiding censure by the international community in the form of listing in the SecretaryGeneral’s reports or other actions taken upon recommendation of the Working Group. Positive successes, in particular the demobilization of thousands of child soldiers, have been attributed to this sort of political engagement.87 However, challenges remain. While mild forms of political suasion may encourage the conclusion of action plans and compliance, as the range of tools available to the Working Group implicitly admits and the Security Council has more explicitly acknowledged, more robust mechanisms such as criminal and other sanctions may be necessary.88 3.2 The Judicial Track: International Criminal Law Parallel to the development of the Security Council’s Children and Armed Conflict agenda as a political process for enforcing international humanitarian law, a judicial track was unfolding in the 1990s, consisting of a series of criminal courts and tribunals with mandates to investigate, prosecute and punish serious violations of international humanitarian law and other international crimes. Drawing on the short-lived experience of the Nuremberg and Tokyo Tribunals, the international community began negotiations in 1989 on a draft statute for a permanent international criminal court which would culminate in the adoption on 17 July 1998 of the Rome Statute establishing the International Criminal Court (icc).89 Pending the establishment of the icc, the Security Council created ad hoc criminal tribunals for the former Yugoslavia and Rwanda in 1993 and 1994, respectively.90 In 2002, the Rome Statute entered into force, ushering in a new era of accountability centred around the permanent and global icc. In 2002, a hybrid judicial mechanism was also established by  an agreement between the Government of Sierra Leone and the United Nations, and a similar institution was established in Cambodia in 2003.91 Since 87 88 89 90 91

See J.-M. de La Sablière, Security Council Engagement on the Protection of Children in Armed Conflict: Progress Achieved and the Way Forward (2012). un Doc. S/RES/2068 (2012), para. 3. See also Zellweger and Koller, supra note 60, at 1625–33. 1998 Rome Statute of the International Criminal Court, 2187 unts 38544 (17 July 1998) (hereinafter ‘Rome Statute’). un Doc. S/RES/827 (1993); UN Doc. S/RES/955 (1994). 2002 Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, 2178 unts 138 (16 January 2002); 2003 Agreement between the United Nations and the Royal Government of Cambodia concerning the prosecution under Cambodian law of crimes committed during the period of Democratic Kampuchea’ 2329 unts 117 (6 June 2003).

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then, a variety of internationalized tribunals have emerged, and domestic courts have increasingly taken on responsibility for the investigation and prosecution of international crimes, including on the basis of the principle of universal jurisdiction. The various international and hybrid judicial mechanisms all have broad subject-matter jurisdiction to investigate, prosecute, and punish individuals responsible for violations of relevant international humanitarian law, as well as other crimes such as crimes against humanity, genocide or, in the case of the hybrid mechanisms, violations of national law. Since the publication of the Machel Report in 1996, violations against children have increasingly gained prominence within the frameworks and activities of these institutions. The Statutes of the icc and the Special Court for Sierra Leone include within their jurisdiction explicit prohibitions on the recruitment and use of children under fifteen as soldiers as well as other prohibitions of violations frequently committed against children such as killing, rape, and sexual violence.92 The Special Court for Sierra Leone was the first internationalized tribunal to convict someone of the crime of recruiting and using children,93 and the first judgment of the icc convicted Mr. Thomas Lubanga Dyilo of this crime.94 The logic behind using criminal trials to enforce international humanitarian law was famously expressed in the statement of the Nuremberg Tribunal that ‘crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced’.95 Whereas the political track discussed above targets armed forces or groups, the judicial track seeks to influence compliance with international humanitarian law by targeting directly the individuals who may commit violations. The intention is that the threat of individualised punishment will induce potential violators to comply with the law.96 Individuals—state and non-state actors alike—are now on notice that they may be subject to international punishment for violations of international humanitarian law, including violations against children. In this regard, 92

93 94 95

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Rome Statute, supra note 89, Arts. 8(2)(a)(i), 8(2)(b)(xxii), 8(2)(b)(xxvi), 8(2)(c)(i), 8(2)(e) (vi), 8(2)(e)(vii); Statute of the Special Court for Sierra Leone, available at www.legal -tools.org/doc/aa0e20/ (last accessed 1 August 2014), Arts. 3, 4(c). Prosecutor v. Brima et al., Judgment, SCSL-04-16-T, T.Ch. II, 20 June 2007. Lubanga Judgment, supra note 15. International Military Tribunal, Judgment of 1 October 1946, in The Trial of German Major War Criminals. Proceedings of the International Military Tribunal sitting at Nuremberg, Germany, Part 22 (22nd August, 1946 to 1st October, 1946), at 447, available at www.legal -tools.org/doc/45f18e/ (last accessed 1 August 2014). Zellweger and Koller, supra note 60, at 1629.

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the importance of the icc over ad hoc mechanisms cannot be overstated. Whereas ad hoc mechanisms were bound to narrow temporal and geographical limits, the icc is a permanent, standing court with global jurisdiction (subject to certain preconditions). The icc may investigate and prosecute war crimes and other serious violations committed against children or others any time after 1 July 2002 on the territory of or by the nationals of states parties and other states which accept its jurisdiction.97 Where the United Nations Security Council refers a situation to the icc Prosecutor, he/she may also investigate and prosecute any such crimes committed after 1 July 2002 by whomever and wherever, even if no state involved has consented to the icc’s jurisdiction.98 Like the political track, this judicial track is grounded in international humanitarian law. Under the Geneva Conventions and Additional Protocols, parties thereto are obliged to seek out and to bring to justice those responsible for certain grave breaches of the Conventions.99 The problem with this obligation is that—as with all obligations under the Conventions—it relies primarily on the parties to the conflicts for self-enforcement. The comparative advantage of international(−ized) courts and tribunals—much like the comparative advantage of the un-sponsored action plans and mrm over special agreements and unilateral declarations—is that they bring an external dimension to the enforcement of the law. In the case of the ad hoc tribunals, the Security Council took the lead, creating the tribunals as subsidiary bodies of the Council, backed by the full enforcement powers of the Council under Chapter VII of the United Nations Charter. For crimes committed since the entry into force of the Rome Statute on 1 July 2002, the icc exists as an independent, global enforcement mechanism, backed by an Assembly of States Parties and, in certain situations, also by the Security Council.100 icc action may be trigged by the request of a state or the Security Council, but also by the icc itself.101 While it remains early, the icc specifically and international justice efforts more broadly have been credited with deterring potential perpetrators from committing crimes.102 Significant challenges remain, however, to the use of 97 98 99 100 101 102

Rome Statute, supra note 89, Arts. 11 and 12. Ibid., Arts. 12, 13 (b). See, e.g., Geneva Convention IV, supra note 17, Art. 146. Rome Statute, supra note 89, Art. 87. Ibid., Art. 13. See, e.g., Statement of the representative of the Democratic Republic of the Congo, in un Doc. A/59/565 (2 December 2004) (‘In the Democratic Republic of the Congo, the deterrent effect of the International Criminal Court has begun to be felt, with the announcement by the Prosecutor of the first inquiry of the icc on its territory’); K. Annan, ‘Rule of  Law and Transitional Justice in Conflict and Post-Conflict Societies, Report of the

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international criminal trials to ensure effective enforcement of international humanitarian law.103 There are legal challenges. The investigation and prosecution of crimes committed outside the territory of states parties by nationals of states not party require referral of the case from the Security Council, something it has only done twice so far. There are challenges of capacity. The icc and other similar institutions only have limited resources to handle a small number of cases. There are challenges of political will. Many situations deserving of investigation and prosecution are not referred to the icc or taken up by the icc Prosecutor. Where the icc does act, it requires the co-operation of states with its investigations and prosecutions and with the enforcement of its decisions. Underlying these are practical and theoretical questions going to the heart of the justice enterprise. Some perpetrators may be immune to the threat of prosecution. The threat of inevitable prosecution, without any alternatives, for past crimes may even cause perpetrators to harden their stances and to refuse to change their behaviour. How international justice copes with these challenges will be seen in the years to come. 4

Current Challenges at the Intersection of Three Paradigms

The previous section described the development of processes of political engagement and criminal accountability as means to enforce international humanitarian law, their merits and their respective challenges. This section examines purported challenges which have recently arisen at the intersection of these three paradigms of international humanitarian law, international political engagement and international criminal accountability. Three boundaries are explored, namely the intersections of: (1) political engagement and criminal accountability; (2) international humanitarian law and political engagement; and (3) international humanitarian law and criminal accountability. Political Engagement and Criminal Accountability: The Apparent Conflict or Complementarity of Peace and Justice The un-centred action plan process and the icc-centred criminal justice system, in their idealized forms, represent two different modalities for securing

4.1

Secretary-General’, un Doc. S/2004/616 (23 August 2009), para. 49 (‘the Court is already having an important impact by putting would-be violators on notice that impunity is not assured’). 103 See D. Koller, ‘The Faith of the International Criminal Lawyer’, (2008) 40 NYU Journal of International Law & Politics 1019, at 1027–29.

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compliance with international humanitarian law. One seeks to cajole parties into voluntary compliance; the other threatens them with individualized punishment if they do not comply. Taken to their extremes, the two paradigms recall the two sides of an ongoing and oft-caricatured debate about the proper relationship between peace and justice. One side contends that the threat of punishment may exclude the possibility of negotiated solutions, antagonizing already isolated perpetrators of violations of international humanitarian law and causing them to continue patterns of negative behaviour.104 The other argues that a failure to impose meaningful consequences for past behaviour may embolden perpetrators in the knowledge that they will be shielded with impunity for future violations.105 Whatever sway the two sides of the peace and justice debate may have with self-interested parties and their political allies or in academic circles, the emerging orthodoxy among practitioners, reflected in the high-level Kampala Declaration adopted on the occasion of the first Review Conference of the icc Statute, is that peace and justice are ‘complementary requirements’.106 On the one hand, justice is recognized as a ‘fundamental building block of sustainable peace’.107 On the other hand, the pursuit of justice is undertaken not merely for its own sake but in order ‘to contribute to the prevention of […] crimes that threaten the peace, security and well-being of the world’.108 The reality is that, in some cases, political engagement without prosecutions may bring about an immediate end to violations, and, in others, criminal accountability may be a more effective means of deterrence.109 The challenge is to find the right 104 See, e.g., J. Ku and J. Nzelibe, ‘Do International Criminal Tribunals Deter or Exacerbate Humanitarian Atrocities?’, (2006) 84 Washington University Law Review 777; J. Flint and A. de Waal, ‘Justice off Course in Darfur, Washington Post, 28 June 2008, available at www .washingtonpost.com/wp-dyn/content/article/2008/06/27/AR2008062702632.html (last accessed 1 August 2014); J. Dak, ‘Ugandan Rebel Chief Negotiator Wants Bashir’s icc Indictment Suspended’, Sudan Tribune, 22 August 2008, available at www.sudantribune. com/spip.php?article28361 (last accessed 1 August 2014). 105 See, e.g., Human Rights Watch, ‘Selling Justice Short: Why Accountability Matters for Peace’, (July 2009), available at www.hrw.org/node/84264 (last accessed 1 August 2014); Human Rights Watch, ‘African Union: Don’t Trade Away Justice in Darfur’, (22 September 2008), available at www.hrw.org/news/2008/09/22/african-union-don-t-trade-away -justice-darfur (last accessed 1 August 2014). 106 icc-asp Doc. RC/Decl.1 (1 June 2010), in Official Records of the Review Conference of the Rome Statute of the International Criminal Court, Kampala, 31 May—11 June 2010, Part II, at 23. 107 Ibid., para. 3. 108 Ibid., para. 2. 109 Report of the Bureau on Stocktaking: Peace and Justice, ICC-ASP/8/52 (20 March 2010), paras. 5–6; ‘Stocktaking of International Criminal Justice: Peace and Justice, Moderator’s

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approach to each situation. The dilemma is that what works to end violations in the short-term may undermine the effectiveness of other solutions in the longer-term.110 Trading justice for a negotiated end to violations in one case tells other perpetrators that they too may be able to escape justice if they hold out long enough. Imposing harsh accountability measures when parties are willing to negotiate an end to violations tells other perpetrators that any negotiations may be in vain. What is needed is an integrated strategy taking into account both the needs of particular situations and a longer-term vision for the effectiveness of the system as a whole. Looking again more closely at the modalities of political engagement by the un and criminal accountability under the auspices of the icc Statute, this supposed tension between peace and justice or between negotiation and sanction is not a clash of paradigms but rather a tension which has been increasingly internalized within each paradigm. The action plan process originally envisioned by the Security Council in its Resolution 1539 of 2004 was embedded, through Resolution 1612 of 2005, within a broader Monitoring and Reporting Mechanism involving a Security Council Working Group which has at its disposal a range of tools, including the use of judicial mechanisms. As the number of perpetrators persistently violating the rights of children for five years or more has continued to increase, the Security Council has increasingly placed emphasis on the importance of criminal and other sanctions as means of enforcing compliance where political engagement has not borne fruit.111 While they might not yet have found the right balance of tools for each situation, the Security Council, its working group, the Secretary-General and his Special Representative are fully aware of and engaged in a process of trying to find the right calibration of positive and negative inducements to bring an end to violations of international humanitarian law against children. For its part, the icc system does not constitute—as it is sometimes misconstrued to be—an idealized commitment to a Platonic form of justice. As explained by Philippe Kirsch, the first President of the icc and the chair of negotiations on its statute, ‘[t]he icc did not create itself. It was created by States for the fulfilment of certain objectives’.112 Whatever protestations of

Summary’, in Official Records of the Review Conference of the Rome Statute of the Interna­ tional Criminal Court, Kampala, 31 May—11 June 2010, Ann. V(b), paras. 4, 9. 110 Ibid., paras. 5, 8. 111 un Doc. S/RES/2068 (2012). 112 Statement of President Kirsch, 11th Diplomatic Briefing (10 October 2007), available at www.icc-cpi.int/NR/rdonlyres/E1900488-5437-4771-BA50-45271FD9AE72/278575/ ICCDB11St_en_fr.pdf (last accessed 1 August 2014). See also G. Simpson, Law, War and

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various protagonists to the contrary,113 decisions to initiate and to continue icc investigations do not take place in the rarefied air atop some ivory tower but are deeply informed by political considerations. Where the Security Council has referred situations to the icc—in Darfur, Sudan, and in Libya—it did so only following or in the context of a series of lesser forms of political engagement to end violations114 and in the understanding that, if the violations ended, the threat of punishment would be withdrawn.115 In other situations, concerned states referred their opponents while continuing to engage in political negotiations to bring an end to conflict and violations.116



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Crime: War Crimes Trials and the Reinvention of International Law (2007); P. Hazan, Judging War, Judging History: Behind Truth and Reconciliation (2010); J. Maogoto, War Crimes and Realpolitik: International Justice from World War I to the 21st Century (2004); F. Mégret, ‘The Politics of International Criminal Justice’, (2002) 13 ejil 1261. One of the fundamental challenges facing the icc is that its effectiveness in contributing to political ends depends on its being perceived as a-political, leading the icc Prosecutor or other officials to deny its political role all while taking political considerations on board. See D. Koller, ‘The Global as Local: The Possibilities and Limits of Integrating International and Transitional Justice’, in C. Stahn et al. (eds), Post-Conflict Justice and ‘Local Impact’ (2013); Mégret, supra note 112. For a brief overview of the steps leading to the referral of the situation in Darfur, Sudan, see R. Cryer, ‘Sudan, Resolution 1593, and International Criminal Justice’, (2006) 19 ljil 195, at 198–203. With regard to Libya, as the situation unfolded much faster, referral to the icc was undertaken in the context of a broad political resolution aimed at ending the conflict. un Doc. S/RES/1970, 26 February 2011. See Cable from us Embassy, London to us Secretary of State: ‘Sudan/ICC: uk Prepared to Remain Initially Flexible in the Face of New Indictments’, 11 July 2008, available at http:// dazzlepod.com/cable/08LONDON1841/ (last accessed 1 August 2014); Cable from us Embassy, London to us Secretary of State: ‘Sudan/icc: uk Strategy with Potential Bashir icc Indictment, 15 July 2008, available at http://dazzlepod.com/cable/08LONDON1862/ (last accessed 1 August 2014); ‘Deal Could See Gaddafi Escape Prosecution’, Belfast Telegraph, 29 March 2011, available at www.belfasttelegraph.co.uk/news/world-news/ deal-could-see-gaddafi-escape-prosecution-15129516.html (last accessed 1 August 2014); D. Bosco, ‘The Libya Resolution: Prosecution as Bargaining Chip?’, available at www .bosco.foreignpolicy.com, 27 February 2011. See Letter from Prosecutor Moreno-Ocampo to President Kirsch, 17 June 2004, annexed to Situation in Uganda, ‘Decision Assigning the Situation in Uganda to Pre-Trial Chamber II’, Presidency, ICC-02/04-1, 5 July 2004; Letter referring the situation in the Central African Republic to the icc Prosecutor, reproduced in Ann. 19 to Prosecutor v. Bemba Gombo, ‘Communication par la Défense des copies de documents référenciés dans les notes de bas de pages de sa requête en contestation de la recevabilité’, ICC-01/05-01/08-721-Anx19, 15 March 2010.

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The above is not to say that there is no tension between the un-led political engagement process on children and armed conflict and the icccentred system of criminal accountability. While both have internalized and seek to reconcile the tensions between peace and justice or negotiation and sanction in similar ways, they remain two parallel systems comprised of overlapping but not identical communities. For the two approaches to be maximally effective, close co-ordination will be crucial. To the extent that negotiations may not deter violations, perpetrators persist in their commission, or international justice is otherwise required, the un bodies must be able to rely on the ability of the icc and other justice mechanisms to play their role. For their part, the bodies triggering icc investigations and able to influence their course—the Prosecutor, states parties, and the Security Council—must remain cognizant of how justice initiatives can best be integrated with ongoing political processes designed to put an end to violations against children. International Humanitarian Law and Political Engagement: Enforcing the Depoliticized through the Political A second locale for potential paradigm clashes is between international humanitarian law and the modalities of political engagement to enforce the law. Underlying modern international humanitarian law is a concerted effort to de-politicize the regulation of the conduct of hostilities and to ensure the equal application of the law to all parties irrespective of any political concerns. A strict separation is maintained between the jus ad bellum, the law governing the legality of going to war, and the jus in bello, the law regulating the conduct of belligerents within an armed conflict, with the latter applying irrespective of any conclusions under the former.117 Legal characterizations such as the existence of a state of war which governed the application of prior treaties have been replaced from the 1949 Geneva Conventions with an objective standard of ‘armed conflict’.118 Application of the law to one or another party does not bestow that party with any political status or rights beyond those of belligerents under the relevant convention.119 Organizations working to advance observance of international humanitarian law, such as the icrc, have approached conflicts on the basis of principles of humanity, impartiality, neutrality, and

4.2

117 See J. Gardam, ‘Proportionality and Force in International Law’, (1993) 87 AJIL 391, at 392–4; T. Meron, ‘The Humanization of Humanitarian Law’, (2000) 94 AJIL 239. 118 Pictet, supra note 61, at 32. 119 See Geneva Convention IV, supra note 17, Art. 3(4).

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independence.120 By de-politicizing the law and its enforcement, this approach has helped to encourage self-enforcement of the law. However, as described above, this self-enforcement has limits. The un’s Children and Armed Conflict agenda seeks to overcome these limits by introducing an external body, the Security Council, in the enforcement of the law. However, as an overtly political body, the Security Council’s involvement risks re-introducing an element of politicization into the enforcement of the law. The possibility of politicization of the Children and Armed Conflict agenda became a reality early on. In his fourth annual report to the Security Council, the Secretary-General listed as perpetrators of violations against children paramilitary groups in Northern Ireland and Chechen insurgency groups in the Republic of Chechnya of the Russian Federation.121 Their inclusion provoked strong reactions by the United Kingdom and the Russian Federation respectively, leading to two amendments to the report and to the postponement of the vote on what would become Resolution 1539 until after these amendments were adopted.122 As part of the political compromise to the impasse, the amendments re-characterised the situations in the Secretary-General’s reports from situations of armed conflict to ‘other situations of concern’.123 In addition, the Security Council included language in Resolution 1539 to the effect that the Secretary-General’s report not only did not prejudge the status of the parties to a conflict (as foreseen in common Article 3(4) to the Geneva Conventions) but also did not constitute a legal determination of the existence of an armed conflict. This compromise was met with sharp criticism both from other states appearing in the Secretary-General’s reports and from human rights organizations who accused the Council of creating double standards and politicizing the enforcement of the law.124 The compromise achieved in 2004 has been repeated yearly, as have been the criticisms. The Secretary-General’s reports take a ‘pragmatic and cooperative approach’, seeking guidance from international humanitarian law as to the existence of an armed conflict but not clarifying precisely how these criteria 120 XXth International Conference of the Red Cross, ‘Fundamental Principles of the Inter­ national Red Cross and Red Crescent Movement’ (1965). 121 Children and Armed Conflict: Report of the Secretary-General, un Doc. A/58/546-S/ 2003/1053 (10 November 2003), Ann. II. 122 un Docs. A/58/546/Corr.1–S/2003/1053/Corr.1 (20 February 2004) and A/58/546/Corr.2–S/ 2003/1053/Corr.2 (19 April 2004). 123 un Doc. A/58/546/Corr.1–S/2003/1053/Corr.1 (20 February 2004). 124 ‘Letter dated 26 July 2004 from the representatives of Colombia, Myanmar, Nepal, the Philippines, Sri Lanka, the Sudan and Uganda to the United Nations addressed to the Secretary-General’, un Doc. A/59/184–S/2004/602 (27 July 2004).

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are applied and rejecting any claim to be making a legal determination as to the existence or nature of any conflict.125 This approach has enabled the Secretary-General to continue to shine a light on situations which would otherwise not attract the attention of the Security Council, and it has avoided the Security Council becoming entangled in endless debates about whether there is a conflict and of what type. However, the damage has been done. Harkening back to the 2004 compromise, states critical of the Secretary-General’s reports— most of whom appear in these reports—continue to question the criteria applied by the Secretary-General in including situations in the report, call for an end to perceived double standards, and criticize the process of political engagement for giving legitimacy to non-state armed groups (even though the Secretary-General’s reports and Security Council resolutions all make clear that no such legitimacy is bestowed).126 The neutrality and impartiality of the underlying law are under attack with parties to conflicts seeking to deny its applicability. If international humanitarian law relating to children is to be respected, key actors such as the Secretary-General and his Special Representative must be able to harness the political forces (e.g., the Security Council) which can encourage its enforcement while extricating themselves from political debates and maintaining their independence and neutrality. At present, given the continuing fallout from the 2004 inclusion of parties in Northern Ireland and Chechnya in the Secretary-General’s reports, the Secretary-General and his Special Representative may be too embroiled in the surrounding politics to pursue any track but the current compromise. However, in due course, a more explicit return to the strict application of the law on the qualification and ­characterization of armed conflicts will strengthen their independent, neutral roles. International Humanitarian Law and Criminal Accountability: to Punish or to Protect? The third set of boundary problems exist at the intersection of international humanitarian law and criminal accountability. Underlying each paradigm are a series of classifications: e.g., combatants vs. civilians; perpetrators vs. victims; children vs. adults; criminally responsible vs. excluded from criminal responsibility. 4.3

125 Children and Armed Conflict: Report of the Secretary-General, A/66/782–S/2012/261 (26 April 2012), para. 6. 126 See the statements of Pakistan, India, China, and the Russian Federation during the 2012 Security Council Open Debate on Children and Armed Conflict. un Doc. S/PV.6838 (19 September 2012).

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As criminal accountability has emerged as a means to enforce international humanitarian and related areas of law, the approach to classification is largely similar between the two legal field. In its definitions of war crimes, the Rome Statute imports classifications of civilians and protected persons from the Geneva Conventions and Additional Protocols, and, like the Protocols it sets 15 as the minimum age for recruitment.127 However, the two approaches may also diverge. Fixing of 15 as the minimum age for recruitment in the Rome Statute did not reflect the emerging push in the crc and its Optional Protocol to raise the age of child recruitment to 18. The Rome Statute also excludes from the icc’s jurisdiction—though not from the grounds of criminal responsibility— persons who were under 18 at the time of the crime even though such persons may be subject to prosecution for war crimes under the Geneva Conventions or Additional Protocols.128 In most cases, the divergence between international humanitarian law and international criminal law is due presumably to the fact that the law develops unevenly in fits and starts rather than as an organic whole. Developments in one field will feed into the other and vice-versa, leading to a roughly harmonious whole. What would be of more concern is if the two approaches began to diverge or to act at cross-purposes from each other, a possible example of which may be found in the icc’s first judgment in the case of Mr. Thomas Lubanga Dyilo. Mr. Lubanga Dyilo was convicted of the war crimes of conscripting and enlisting children under 15 and using them to participate actively in hostilities. In its Judgment, the Trial Chamber, relying in part on expert testimony from the Special Representative of the Secretary-General, observed a distinction between the Rome Statute which prohibits children’s ‘active’ participation in hostilities and Protocol I which prohibits their ‘direct’ participation.129 From this, the Trial Chamber concluded that the Rome Statute prohibited a broader range of activities, embracing all participation by c­ hildren— whether direct or indirect—which rendered them potential targets.130 The Trial Chamber’s approach had the salutary effect of maximizing the reach of the Rome Statute and ensuring the broadest possible punishment of the use of children in combat situations. However, it may have come at a significant cost.131 The basic protections accorded to civilians, including children, under 127 128 129 130 131

Rome Statute, supra note 89, Arts. 8(2)(a) and (c), 8(2)(b)(xxvi), and 8(2)(e)(vii). Compare Rome Statute, supra note 89, Arts. 26 and 31. Lubanga Judgment, supra note 15, para. 627. Ibid., para. 628. For a more detailed treatment of this unintended consequence of the Lubanga Judgment, see N. Urban, ‘Direct and Active Participation in Hostilities: The Unintended Consequences

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common Article 3 to the Geneva Conventions are conditioned upon their taking ‘no active part in the hostilities’. While the Additional Protocols use the terms ‘direct participation’ in defining the loss of protection, the icrc has noted in its ‘Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law’ that the terms ‘active participation’ and ‘direct participation’ are essentially synonymous.132 By seeking to extend the scope of active participation under the Rome Statute, the Trial Chamber may also have broadened the scope of activity which causes civilians to lose their protected status. Children whose indirect contributions to hostilities may have subjected them to a risk of incidental harm may now be legitimately targeted as active participants in hostilities under the Trial Chamber’s approach. In its conclusions in the Lubanga Judgment, the Trial Chamber found that children were deployed as soldiers, participated in fighting and acted as military guards and bodyguards,133 conduct which all may have fit within the proscriptions of the Geneva Conventions and Additional Protocols. It remains to be seen whether the judgment will be upheld on appeal or will have significant effect on the application or development of the law related to the protection of children in situations of armed conflict. However, the manner in which the Trial Chamber appears to have unintentionally put children at risk in its desire to extend their protection should serve as a cautionary note. International humanitarian law exists as a careful balancing of allowing yet controlling violence against individuals which otherwise would not be permitted. Failure to pay close enough attention to its nuances may prove counter-productive. 5 Conclusion The development of the un’s Children and Armed Conflict agenda and the emergence of international criminal law constitute two powerful mechanisms for enhancing the enforcement of international humanitarian law related to the protection of children. Both approaches create independent political actors, the Special Representative of the Secretary-General and the icc Pro­ secutor, shielded from many of the political pressures which have heretofore

of the icc’s Decision in Lubanga’, ejil: Talk! 11 April 2012, available at www.ejiltalk.org/ direct-and-active-participation-in-hostilities-the-unintended-consequences-of-the-iccsdecision-in-lubanga/ (last accessed 1 August 2014). 132 (2008) 90 International Review of the Red Cross 991, at 1012–3. 133 Lubanga Judgment, supra note 15, para. 915.

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hindered the law’s enforcement but with the ability—through their independence, neutrality and perceived legitimacy—to catalyse the political action necessary to enforce the law. Their ability to secure the law’s enforcement is far from unlimited. Their legitimacy is fragile and their potential impacts are constrained by political factors beyond their control. However, their roles have grown significantly in the past decade and are likely to continue to do so. The challenges for the enforcement of international humanitarian law related to children in the coming years are twofold. First, the emerging enforcement mechanisms must continue to develop and to strengthen, securing further international support, without going so fast as to outpace the willingness of states to provide necessary co-operation and backing. Second, further coordination is necessary between those engaged in the Children and Armed Conflict agenda, international criminal law and humanitarian law. The aims are all the same. The problems faced are the same. But if we don’t work together, we risk working against each other. In the end, it will be the children who continue to suffer.

chapter 5

Target Practice: Do United Nations Sanctions Protect Civilians against Al-Qaida? Leah Campbell 1 Introduction The United Nations Security Council has imposed targeted sanctions in a wide range of contexts in order to address a host of different situations. In essence, however, the objective is to address threats to international peace and security by requiring states to take certain measures (such as freezing assets or restricting travel) against specific targets (individuals and entities that pose a threat). This chapter will examine a particular type of threat to civilians that the Security Council seeks to address through imposition of targeted sanctions: the threat to international peace and security posed by Al-Qaida and its affiliates. First, this chapter introduces the Al-Qaida Sanctions Committee and outlines the procedural framework for the formulation and maintenance of the Security Council’s list of individuals and entities associated with Al-Qaida (against whom member states are obliged to impose sanctions). Second, it examines the human rights framework within which the Al-Qaida sanctions regime operates. Third, this chapter assesses how effective these sanctions are at protecting civilians, according to the three purposes stipulated by the Targeted Sanctions Consortium, a group assembled to conduct an investigation into the impact and effectiveness of targeted sanctions at the United Nations: (i) to coerce targeted individuals and entities to change their behaviour, (ii) to constrain terrorist activity, and (iii) to mitigate the threat by stigmatising targets. Finally, the chapter identifies concrete steps that could increase the impact of the sanctions, with a particular focus on targeting. 2 United Nations Security Council’s Targeted Sanctions against Al-Qaida and Its Affiliates The Al-Qaida Sanctions Committee has its origins in Security Council Resolution 1267 of 1999. Since then, the Committee has evolved to administer targeted sanctions against individuals and entities associated with Al-Qaida.

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The sanctions measures are an asset freeze, travel ban, and an arms embargo against all individuals and entities that the Committee designates on its list (Al-Qaida Sanctions List).1 It stands apart from the other sanctions regimes overseen by the United Nations Security Council, particularly because of its broad reach, both territorially and in terms of the number of targets. It is the only regime not defined according to a particular territory. The Al-Qaida Sanctions Committee has consciously chosen this broad-based approach, explicitly distancing itself from a recommendation that it focus on certain territories where the risk to international peace and security posed by Al-Qaida is most acutely felt.2 The Al-Qaida Sanctions List also stands apart in the Security Council by virtue of the sheer number of individuals and entities that it targets. With 231 individuals and 68 entities3 making up the Al-Qaida Sanctions List, it is by far the longest of all the sanctions lists administered by the United Nations Security Council. 2.1 History of the Committee In the fifteen years that the United Nations Security Council has imposed sanctions against Al-Qaida, the regime has undergone significant change, in line with the evolving threat Al-Qaida poses to civilians. Resolution 1267 (1999)4 established the Al-Qaida sanctions regime; however the text of the resolution makes no explicit mention of Al-Qaida. Instead, the resolution focuses on the Taliban and its activities training, recruiting, and sheltering terrorists. The resolution does specifically reference Usama Bin Laden and his involvement in the 1 Prior to 17 June 2011, the list of individuals and entities associated with Usama Bin Laden and the Taliban who were subject to Security Council sanctions measures was known as the Consolidated List. In June 2011, members of the Taliban were removed and the list was renamed the Al-Qaida Sanctions List. For ease of reference and continuity, this list will be referred to throughout as the Al-Qaida Sanctions List, regardless of whether the text refers to the list pre or post June 2011. The Al-Qaida Sanctions List is available on the website of the Al-Qaida Sanctions Committee: www.un.org/sc/committees/1267/aq_sanctions_list.shtml. 2 Recommendations contained in the twelfth report of the Analytical Support and Sanctions Monitoring Team: Position of the Committee, UN Doc. S/2012/730 (1 October 2012), at 2: ‘The Committee wishes to emphasize its mandate as a global sanctions regime aimed at countering the threat posed by Al-Qaida and associated individuals and entities. The mandate of the Committee reflects a sustained and comprehensive approach, based on the active participation and collaboration of all Member States. In line with its mandate, the Committee, with the assistance of the Monitoring Team, would continue to monitor and assess the evolving threat of the Al-Qaida network in countries and regions worldwide’. 3 As of 31 October 2014. The Al-Qaida Sanctions List is frequently updated. For the most recent version of the List, see Al-Qaida Sanctions List, supra note 1. 4 Res. 1267 (1999), UN Doc. S/RES/1267 (1999).

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bombings of United States embassies in East Africa, and demands that the Taliban co-operate with efforts to bring Usama Bin Laden and other indicted terrorists to justice. The resolution also imposes targeted measures (a flight ban and an assets freeze) against the Taliban and any entities owned or controlled by it. Resolution 1333 (2000) is the first to name Al-Qaida as a target of the sanctions measures, and also the first resolution pertaining to the Al-Qaida Sanctions Committee to request formulation of a specific list of individuals and entities against whom the sanctions measures should be imposed.5 Paragraph 8(c) of this resolution, which is referenced in the most recent resolution governing the Al-Qaida Sanctions regime,6 requests that the Committee maintain an updated list of individuals and entities designated as being associated with Usama Bin Laden, ‘including those in the Al-Qaida organization’.7 Resolution 1333 (2000) also refined the sanctions measures, added a ban on selling arms to the Taliban, and further refined the assets freeze so that it now applies to specific individuals associated with Usama Bin Laden and Al-Qaida.8 Resolution 1390 (2002) was passed soon after the us-led invasion of Afghanistan and the removal of the Taliban from power. It re-defined the criteria for designation and the sanctions measures to take these new circumstances into account, and created the blueprint for these paragraphs in all the resolutions to follow. Paragraph 2 sets out the criteria for designation as being ‘associated with’ Usama bin Laden, Al-Qaida, or the Taliban, and articulates three sanctions measures: a travel ban, an asset freeze, and an arms embargo.9 The most significant change to the composition of the Al-Qaida Sanctions List came in June 2011 with the passing of Resolutions 1988 (2011) and 1989 (2011). The consolidated list of individuals and entities against whom the measures are imposed was split in two: the Al-Qaida Sanctions List, and a list of individuals and entities associated with the Taliban in constituting a threat to the peace, stability, and security of Afghanistan were established. A separate Committee, established pursuant to Resolution 1988 (2011), now oversees the latter sanctions list. Another significant shift in the regime occurred following the death of Usama Bin Laden in May 2011. With the most high profile leader of Al-Qaida gone, the Committee was forced to continue to re-define the threat posed by Al-Qaida, acknowledging that while the threat remained, it was different and 5 6 7 8 9

Res. 1333 (2000), UN Doc. S/RES/1333 (2000). See Res. 2083 (2012), UN Doc. S/RES/2083 (2012). Res. 1333 (2000), supra note 5, para. 8(c). Ibid., at 3–4. Res. 1390 (2002), UN Doc. S/RES/1390 (2002), para. 2.

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far more disparate in character than it had been when the regime was first established. Usama Bin Laden was not removed from the Al-Qaida Sanctions List until 21 February 2013, and even then, the Committee established exceptional procedures for un-freezing Bin Laden’s assets whereby states must apply to the Committee before proceeding.10 2.2 The Sanctions Measures There are many different forms that targeted sanctions can take (diplomatic, commodity restrictions, economic measures). The Al-Qaida Sanctions regime applies sanctions against targeted individuals and entities. The individuals and entities under sanction are compiled on the Al-Qaida Sanctions List, published on the Committee’s website, and updated each time the Committee approves a change to the composition of the List.11 As the regime currently stands, member states are obliged, pursuant to Security Council Resolution 2083 (2012), to impose three types of measures against those individuals and entities designated on the Al-Qaida Sanctions List as being associated with Al-Qaida or its affiliates. The measures are an assets freeze, a travel ban, and an arms embargo. More particularly, the measures oblige states to: (i) freeze the funds, financial assets, or economic resources of listed individuals and entities, and ensure that no funds are made available to listed individuals and entities by persons within the state’s territory (economic resources includes those used for the provision of internet hosting or related services, proceeds derived from crime, and payment of ransoms);12 (ii) prevent listed individuals to enter or pass through the state’s territory;13 and (iii) prevent transfer of arms and related materiel to listed individuals and entities—including transfers made on the territory of the state and transfers made by nationals of the state outside its territory (related materiel includes technical advice, assistance, and training).14 The measures outlined above are not absolute, and over the years the regime has evolved to allow for exemptions to the first two measures on humanitarian grounds. However, none of the relevant resolutions allow for an exemption to 10

11 12 13 14

Security Council Al-Qaida Sanctions Committee Deletes Usama Muhammed Awad Bin Laden from its Sanctions List, UN Doc. SC/10922 (2013); Res. 2083 (2012), supra note 6, para. 32. Al-Qaida Sanctions List, supra note 1. Res. 2083 (2012), supra note 6, paras. 1(a), 4–6. Ibid., para. 1(b). Ibid., para. 1(c).

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the arms embargo. Resolution 1452 (2002), later amended by Resolution 1735 (2006),15 allows for states to grant exemptions to the assets freeze for two categories of funds: basic expenses and extraordinary expenses. In the first category, a state may unfreeze a listed individual or entity’s assets in an amount that is necessary for basic expenses so that the party concerned may survive day-to-day. States may proceed with the unfreezing of such assets only after they have notified the Al-Qaida Sanctions Committee, and the Committee has not made a negative decision on the notification within three working days. In the case of requests for the un-freezing of funds necessary for extraordinary expenses, the Committee must approve such a request before the state may proceed in unfreezing the assets.16 Regarding the travel ban measure, it is built into the text of the resolution when the measure is articulated that the measure will not apply to a state’s own nationals who attempt to enter or transit through its territory, nor when the requested entry or transit is required for the fulfilment of a judicial purpose. The measure also allows for the Committee to approve certain travel of listed persons on a case-by-case basis. This text first appeared in January 2002.17 Allowance for exceptions to the measures were particularly important as the situation in Afghanistan evolved and the nature of Al-Qaida’s operations spread, because it allowed listed members of the Taliban to participate in peace negotiations and reconciliation processes. 2.3 The Procedural Framework Over time, and in the last few years particularly, the Al-Qaida Sanctions Committee has changed the way it considers requests to amend the Al-Qaida Sanctions List. The decision-making process has evolved from essentially a political one to incorporate elements of due process, with a specific concern for the rights of listed individuals and entities. The language in the resolutions has become increasingly proscriptive in several respects, most notably with respect to the requirements upon member states wishing to add a name to the list, as well as allowances for listed individuals and entities to petition for their removal from the list. These changes (outlined below) have developed in part

15

16 17

Resolution 1735 (2006) extends the period for consideration of a request for an exemption to the assets freeze from 48 hours to three working days. Res. 1735 (2006), UN Doc. S/ RES/1735 (2006), para. 15. Ibid., para. 15; Res. 1452 (2002), UN Doc. S/RES/1452 (2002), para. 1. Res. 1390 (2002), supra note 9, para 2(b).

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to help safeguard the sanctions regime against human rights challenges in domestic and regional forums.18 2.3.1 Listing For the Al-Qaida Sanctions Committee to decide that an individual or entity should be included on the Al-Qaida Sanctions List, it must be proven that the individual or entity is associated with Al-Qaida. This threshold is met if the designating state can show that the individual or entity performed acts in support of Al-Qaida (financing, planning, facilitating, preparing, or perpetrating); provided arms and related materiel to Al-Qaida; or supported Al-Qaida (including through recruitment).19 The de-centralised nature of Al-Qaida is acknowledged in this context, and individuals or the entities owned, controlled, or otherwise supported by another individual or entity associated with Al-Qaida are also eligible for inclusion on the Al-Qaida Sanctions List.20 Procedurally, any member of the United Nations may propose an individual or entity for designation on the Al-Qaida Sanctions List. In doing so, the designating state must provide the Committee with evidence that the individual or entity concerned meets the designation criteria outlined above. A criminal charge is not a prerequisite for listing, as the sanctions measures are designed to be preventative rather than punitive.21 This may mean that member states are entitled to interfere with an individual’s fundamental rights even where there is insufficient evidence to suspect criminal activity. Based upon the notations in the Al-Qaida Sanctions List, the Committee designates few criminals: of the 221 individuals on the list in October 2013, only 12 have been convicted of a crime, and a further 19 have warrants of arrest issued against them. It is up to the Committee to decide whether to add an individual or entity to the Al-Qaida Sanctions List, and the decision is made by consensus (as are all 18

19 20 21

See, for example, Joined Cases C-584/10 P, C-593/10 and C-595/10, Yassin Abdullah Kadi v. Commission of the European Communities, European Court of Justice (Grand Chamber), 18 July 2013; T-85/09, Yassin Abdullah Kadi v. Commission of the European Communities Judgement of the General Court (Seventh Chamber), 30 September 2010; Joined Cases C-402/05 P and C-415/05 P, Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities, European Court of Justice (Grand Chamber), 3 September 2008; Nada v Switzerland, Judgement of the Grand Chamber of the European Court of Human Rights, 12 September 2012, No. 10593/08. See also infra, Section 3.2. Res. 2083 (2012), supra note 6, paras. 1–2, 10. Ibid., para. 3. Ibid., para. 10; Guidelines of the Al-Qaida Sanctions Committee for the Conduct of its Work, available at www.un.org/sc/committees/1267/pdf/1267_guidelines.pdf (last accessed 1 August 2014), paras. 6(a), (d) and (g).

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decisions of the Committee, including decisions to remove names from the list). In the event that consensus cannot be reached, a member may refer the matter to the Security Council for decision.22 Resolution 1822 (2008) introduced a significant development that injected an element of due process into the procedures for listing individuals and entities. It directed the Committee to publish a narrative summary of the reasons for listing every individual and entity on the Al-Qaida Sanctions List.23 For the first time, listed individuals and entities were notified of the nature of the evidence against them, and the general basis upon which the Committee considered them to be associated with Al-Qaida. Such narrative summaries are available for all individuals and entities designated on the Al-Qaida Sanctions List, and can be found on the website of the Committee.24 2.3.2 De-listing In December 2006, the Al-Qaida Sanctions Committee established formal procedures for considering requests for removal from the Al-Qaida Sanctions List.25 At this time, individuals and entities inscribed on the Al-Qaida Sanctions List who wished to have their names removed had recourse to two avenues of appeal: directly through their state of residence or citizenship, or through a petition to the focal point established to facilitate de-listing requests. The focal point is mandated to facilitate the request for de-listing by passing the request to relevant states (the petitioner’s state(s) of citizenship and residence; the state(s) that originally proposed inclusion of the name on the sanctions list), and encouraging exchange of information between relevant states and the petitioner. If a state considers that a listed individual or entity no longer meets the criteria for designation, that member state may propose the de-listing of that individual or entity to the Al-Qaida Sanctions Committee. The decision making procedure for such a proposal is the same as when a name is suggested for inclusion on the Al-Qaida Sanctions List, namely the decision is made by consensus and where consensus cannot be reached, a member may refer the matter to the Security Council for decision.26 22 23 24 25 26

Guidelines of the Al-Qaida Sanctions Committee for the Conduct of its Work, supra note 21, para. 4(a). Res. 1822 (2008), UN Doc. S/RES/1822 (2008), para. 13. See www.un.org/sc/committees/1267/narrative.shtml. Recommendations contained in the twelfth report of the Analytical Support and Sanctions Monitoring Team: Position of the Committee, supra note 2. Guidelines of the Al-Qaida Sanctions Committee for the Conduct of its Work, supra note 21, paras. 4(a), 7(a) and 7(d).

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In 2009, the Al-Qaida Sanctions Committee established a new, more impartial mechanism for considering de-listing requests. The Office of the Ombudsperson for the Al-Qaida Sanctions Committee was established in Resolution 1904 (2009) in response to criticism in diplomatic fora and in domestic and regional tribunals that procedures for de-listing were neither fair nor clear and lacked basic standards of due process.27 Ultimately, decisions on de-listing petitions submitted through the Office of the Ombudsperson have always rested with the Committee; however, over time, the Ombudsperson’s mandate has been strengthened so that in the event that the Ombudsperson recommends de-listing, the Committee may only overturn this recommendation if all fifteen members of the Committee oppose de-listing, or if the matter is referred to the Security Council.28 In the case where the Ombudsperson recommends that an individual or entity remain on the Al-Qaida Sanctions List, the Committee cannot overturn the recommendation.29 Following the establishment of the Office of the Ombudsperson, the focal point no longer hears requests for de-listing brought by individuals and entities inscribed on the Al-Qaida Sanctions List. For such individuals and entities, the focal point has been tasked with hearing applications for exemptions to the measures imposed pursuant to Resolution 2083 (2012).30 Since the Ombudsperson process applies only to individuals and entities listed by the Al-Qaida Sanctions Committee, the focal point mechanism continues to facilitate requests for de-listing submitted by individuals and entities upon whom sanctions are imposed pursuant to other Security Council Sanctions regimes.31 2.3.3 Review and Maintenance of the Al-Qaida Sanctions List A major criticism of the Al-Qaida Sanctions regime, and indeed many other Security Council sanctions regimes, is that once placed on a sanctions list, it is nearly impossible for that individual or entity to be removed from the list, even if circumstances change and the previous threat to international peace and security is no longer present. The procedures for de-listing through the Office of the Ombudsperson, as well as mandated periodic and thematic reviews, have been procedural innovations in response to this criticism. The reviews in 27 28 29 30 31

See note 18, supra. Res. 2083 (2012), supra note 6, para. 21. This provision was first introduced in Res. 1989 (2011), UN Doc. S/RES/1989 (2011), para. 23. Res. 2083 (2012), supra note 6, para. 20. Ibid., paras. 8, 37. For more information on the focal point for de-listing requests, see www.un.org/sc/ committees/dfp.shtml.

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particular ensure that no name remains on the Al-Qaida Sanctions List in perpetuity. The reviews also enhance the composition of the List so that it best reflects the threat posed by Al-Qaida, and thereby is as effective as possible in preventing attacks on civilians. The Committee undertakes three six-monthly reviews: individuals who are reportedly deceased, entities reported or confirmed to have ceased to exist, and entries that lack sufficient identifying information to implement the measures.32 In addition, the Committee conducts an annual review of all entries on the List that have not been reviewed in three or more years.33 This final review is intended as a ‘catch-all’ to ensure that no name remains on the list in perpetuity. In practical terms, a review generally involves writing to the states concerned with a particular listing—the state that originally proposed the name for designation, the state of nationality or incorporation of the listing, and the state in which the individual or entity is believed to be located—requesting updated information on the listing, and where appropriate, whether the state concerned supports the particular name remaining on the Al-Qaida Sanctions List.34 With the recent enhancements to ensure that the procedures according to which the Committee operates are fair and clear, the Al-Qaida Sanctions Committee has scope to turn its attention to other areas of its work where advances might address and reduce the threat to civilians posed by Al-Qaida. In particular, the time is ripe for the Committee to turn its focus towards implementation and composition of the Al-Qaida Sanctions List. These are two areas where a precise and enthusiastic execution of the Committee’s mandate is crucial if the threat to civilians posed by Al-Qaida is to be properly addressed.35 3

Restrictive Measures, the War on Terror and Human Rights

Finding a balance between protection of civilians and individual liberty can be controversial in the context of counter-terrorism. States—particularly those with robust civil societies and broad human rights legislation—continue to grapple with the balance between taking effective pre-emptive measures to prevent terrorist attacks while at the same time ensuring respect for individual 32 33 34

Res. 2083 (2012), supra note 6, paras. 39–41. Ibid., para. 42. Guidelines of the Al-Qaida Sanctions Committee for the Conduct of its Work, supra note 21, para. 10. 35 See infra, Section 5.

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liberty. This is a contemporary jostling of principles, documented as news feeds fill with opinion pieces on intelligence gathering by the United States’ National Security Agency, drone strikes in Yemen, and extraordinary rendition and detention at Guantanamo Bay. The balance between security and human rights is also paramount when it comes to implementing targeted sanctions. Terrorism, by its very nature, involves deliberate attacks on civilians, and as the international community begins to employ more pre-emptive measures to address the threat, it becomes important to explore the ramifications of these measures in the context of the sprawling, seemingly perpetual war on terror. 3.1 An Evolving Approach to Protection of Civilians The Security Council seeks to address a wide variety of issues through the use of targeted sanctions (nuclear proliferation, extradition, promotion of democracy); however, the vast majority of sanctions regimes seek to address issues of armed conflict (55%) and counter-terrorism (18%).36 The Al-Qaida sanctions regime forms part of the larger United Nations counter-terrorism framework,37 and also exists as a compliment to other sanctions regimes—whether unilaterally38 or through regional arrangements39—that states employ proprio motu as a policy tool in the suppression of terrorist threats. In this context, the Security Council’s action has evolved in two ways: sanctions have moved from comprehensive to targeted, and measures to address threats to international peace and security have moved from reactionary towards pre-emptive. Sanctions have changed a great deal since the Security Council began exploring restrictive measures in its 1966 oil embargo against Rhodesia40 and 36

37

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40

T. Biersteker, S.E. Eckert, and M. Tourinho, Designing United Nations Targeted Sanctions: Initial Findings of the Targeted Sanctions Consortium (tsc) Evaluating Impacts and Effectiveness of un Targeted Sanctions, 2012, at 10. Res 2083 (2012), supra note 6, Ann. I, paras. (f)–(h) encourages the Analytical Support and Sanctions Monitoring Team that supports the work of the Al-Qaida Sanctions Committee to work closely with the United Nations Counter-Terrorism Committee and its Executive Directorate, the Security Council Committee established pursuant to Resolution 1540 (2004) concerning nuclear proliferation, and the United Nations Counter-Terrorism Implementation Task Force. For example, the United States maintains a domestic sanctions scheme against suspected terrorists pursuant to Executive Order 13224 (Blocking property and prohibiting transactions with persons who commit, threaten to commit, or support terrorism), available at www.treasury.gov/resource-center/sanctions/Programs/Documents/terror.pdf. For example, the European Union maintains a list of individuals and entities subject to financial sanctions in order to help prevent the financial of terrorism, available at www .eeas.europa.eu/cfsp/sanctions/consol-list_en.htm. Res. 232 (1966), S/RES/232 (16 December 1966).

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1977 arms embargo against South Africa.41 As the cold war ended, sanctions have evolved from embargoes imposed comprehensively against an entire regime towards a more nuanced approach, where measures are designed to apply the necessary amount of pressure upon actors with maximum influence. This more targeted approach seeks to minimise adverse humanitarian consequences for a population.42 The measures imposed against individuals and entities associated with Al-Qaida are a good example of the migration towards specific targeting. When first imposed in 1999, the sanctions measures were designed to apply pressure on the Taliban in the hope that the regime would abandon its role as a training ground and safe haven for terrorists. Only one individual is mentioned by name in Resolution 1267 (1999)—Usama Bin Laden—and the measures have no direct application to him.43 The freeze on Usama Bin Laden’s assets came in 2000,44 by which time the Security Council was familiar with applying measures directly to individuals: the International Criminal Tribunal for the former Yugoslavia was given its mandate in 1993.45 The Security Council was evolving into a body comfortable empowering its organs to impose measures against specific individuals. By their nature, sanctions aim to get ahead of threats to international peace and security by imposing non-violent, restrictive measures in order to stifle violence before it occurs (or achieve other policy outcomes). An obligation for states to take pre-emptive measures is gaining recognition and support as a way of protecting civilians by getting ahead of threats to international peace and security. Waiting until atrocities occur and scrambling to bringing the perpetrators to justice falls short of the international community’s resolve to ‘never again’ allow mass atrocities to occur. The upswing in support for the doctrine of the responsibility to protect is one such example. The ‘R2P’ doctrine recognises that primary responsibility for protection of civilians rests with the state concerned; however, the international community also has a responsibility to protect citizens of other states from mass atrocity in the event that the state concerned manifestly fails to discharge its obligation to do so. In such situations, the international community should use non-military means wherever possible, but may resort to lethal 41 42 43 44 45

Res. 421 (1977), S/RES/421 (9 December 1977). See A. Tostensen and B. Bull, ‘Are Smart Sanctions Feasible?’ (2002) 54 World Politics 373 at 379. Res. 1267 (1999), supra note 4, paras. 1–4. Res. 1333 (2000), supra note 7. Res. 808 (1993), S/RES/808 (22 February 1993).

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force if necessary, proportionate, and in response to an imminent threat to life.46 The doctrine was cited in February 2011, when the Security Council sought to address violence and use of force against civilians taking place in Libya.47 Rather than stand by as attacks upon civilians escalated, the Security Council took relatively swift pre-emptive action, authorising member states to take ‘all necessary measures’ to protect civilians.48 The action was not taken without careful checks and balances: the response must be proportionate, and the threat must be imminent. The Al-Qaida Sanctions Committee has only recently come to frame the checks and balances upon its measures in the context of international human rights law, as will be examined below. Imposing sanctions measures involves significant incursions upon the liberty of the individuals and entities targeted: bank accounts are frozen, business operations are restricted or blocked, and freedom of movement across international borders is severely curtailed, to name a few. It is essential to ask whether this imposition upon liberty is grounded in international human rights law. Specifically, whether the measures taken are necessary and proportionate49 to achieve the Security Council’s agenda to promote international peace and security by suppressing terrorist threats. 3.2 Is the Obligation to Impose Restrictive Measures Grounded in International Human Rights Law? One of the most fundamental obligations that states owe to their citizens is found in Article 6 of the International Covenant on Civil and Political Rights. This article obliges member states to protect the right to life of those within their jurisdiction, noting that every human being has the inherent right to life, and this right must be protected by law.50 The Special Rapporteur to the United Nations on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism, Mr Ben Emmerson, examined this right in his first report to the General Assembly. Mr Emmerson is of the view that Article 6 obliges signatories to take measures to protect potential victims of terrorist acts. Indeed, he notes that potential victims of terrorism are the 46

47 48 49 50

For the concept of R2P, see 2005 World Summit Outcome, UN Doc. A/RES/60/1, paras. 138–140; Implementing the Responsibility to Protect: Report of the Secretary-General, UN Doc. A/63/677 (12 January 2009). Res. 1970 (2011), UN Doc. S/RES/1970 (2011) at 2. Res. 1973 (2011), UN Doc. S/RES/1973 (2011), para. 4. Nada v Switzerland Judgement, supra note 18, para. 181. 1966 International Covenant on Civil and Political Rights, 6 ILM 368 (1967), Art. 6(1): ‘Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life’.

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principal beneficiaries of a state’s obligation to protect the right to life, given that once an attack has taken place, the obligation serves to protect no one.51 Implementing restrictive measures against individuals and entities designated by the Al-Qaida Sanctions Committee is one way for states to discharge their human rights obligation to protect the right to life of potential victims of terrorism. But the human rights analysis does not end there. A state cannot give with one hand what it takes with the other. Implementation of the Al-Qaida sanctions regime has posed various human rights challenges, particularly imposition of the assets freeze and travel ban within the Committee’s framework. The disconnect inherent in protecting the right to life by taking away due process has been challenged by targeted individuals and entities through the courts, where listed individuals and entities have argued that application of Security Council Resolution 2038 (2012) and its predecessors threatens the right of the designated person to, inter alia, a proper defence, effective judicial protection, and property.52 In an effort to harmonise states’ dual obligation to implement the Al-Qaida Sanctions regime and to respect human rights, in 2008 the Al-Qaida Sanctions Committee published narrative summaries of the reasons for listing every individual and entity on its sanctions list, in all six official languages of the United Nations.53 This development sought, among other things, to ensure that listed individuals and entities were properly informed of the reasons for their designation.54 The information in each narrative summary is general and brief, owing to the sensitive nature of counter-terrorism operations and multilateral diplomacy. For example, the narrative summary for Mr Mohamed Lahbous states that he ‘is involved in arms trading and drug trafficking in North and West Africa and maintains relations with the Organization of Al-Qaida in the Islamic Maghreb (aqim) (QE.T.14.01) and with Mokhtar Belmokhtar (QI.B.136.03)’.55 The specific information that led the Committee to draw these 51

52 53 54

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B. Emmerson, Annual Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism: Framework Principles for Securing the Human Rights of Victims of Terrorism, UN Doc. A/HRC/20/14 (2012), at 6, 18–9. Res. 1822 (2008), supra note 23, para. 13. See also Section 2.3.1, supra. Section 2.3.1, supra. See International Covenant on Civil and Political Rights, supra note 50, Art. 14(1): ‘In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him’. Narrative Summary of Mohamed Lahbous (QI.L.319.13.), available at www.un.org/sc/ committees/1267/NSQI31913E.shtml.

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conclusions is not disclosed. For example, no information is provided on his position or role within the relevant network of drug traffickers, nor on the precise nature of his relationships with aqim and Mr Belmokhtar. The disclosure is significantly more cursory than the type typically seen in criminal trials. Nevertheless, the Grand Chamber of the European Court of Justice held that the Al-Qaida Sanctions Committee’s narrative summaries satisfy the right of a designated person to be heard and to know the grounds of the contested listing, provided that the Courts of the European Union are in a position to verify, upon request, that the decision to impose restrictive measures on the individual in question is taken on a ‘sufficiently solid factual basis’.56 If the Courts are unable to verify the information in the narrative summary through access to the evidence that underlies the conclusions drawn, then they must base their analysis solely on the available material. If this material is insufficient to find that a reason for listing is well-founded, then the Courts should disregard the reason as a basis to designate the individual in question.57 In other words, the Al-Qaida sanctions regime is compatible with international human rights law as long as an independent arbiter is in a position to verify the information set out in the Committee’s narrative summary. Another development designed to bolster the due process rights of listed individuals and entities was the establishment of the Office of the Ombudsperson of the Al-Qaida Sanctions Committee in 2009.58 The Ombudsperson hears complaints from petitioners who claim that their designation on the Al-Qaida Sanctions List is unfounded. The mechanism is a huge step forward for the Al-Qaida Sanctions Committee; however, two obstacles in the Ombudsperson’s mandate mean that the process falls short of a slam-dunk when it comes to protection of the due process rights of listed individuals and entities. The first obstacle lies in the fact that the Security Council retains the power to overturn the Ombudsperson’s recommendation to remove a petitioner from the Al-Qaida Sanctions List. Under Resolution 2083 (2012), in the event that the Ombudsperson recommends a petitioner be de-listed, that decision will be followed unless one of two things happen: all fifteen members of the Al-Qaida Sanctions Committee agree to overturn the Ombudsperson’s recommendation, or a member of the Committee refers the matter to Security Council, and the Council decides to overturn the decision. In this way, the Security Council’s reservation of a narrow power to overturn the Ombudsperson’s recommendations prevents pure 56 57 58

Yassin Abdullah Kadi v. Commission of the European Communities Judgement, supra note 18, paras. 112, 119. Ibid. para. 123. See Section 2.3.2, supra.

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judicial review of the Security Council’s decision to designate. The second obstacle lies in the fact that an appeal to the Ombudsperson can result in removal from the sanctions list, but it cannot provide exoneration. The Ombudsperson is not mandated to review the Committee’s original decision to include a person’s name on the Al-Qaida Sanctions List. Rather, the Ombudsperson determines whether there is sufficient information to provide a reasonable and credible basis for the listing at the time that the petition is brought.59 Therein lies the second missing element of full judicial review. The European Court of Justice has subsequently held that it is up to the domestic courts in the jurisdictions where the sanctions measures are implemented to provide full judicial review of the designation and access to an effective remedy.60 This brings us to the source of intractability between a state’s obligations under the Al-Qaida Sanctions regime and international human rights law: access to the evidence underlying the designation. On one side of the equation, the Ombudsperson has a mandate to seek evidence from designating states,61 but the mandate of this office falls short of full judicial review.62 On the other side of the equation, the Courts with the mandate to provide full judicial review face the formidable task of persuading foreign and national authorities to disclose intelligence regarding counter-terrorism efforts. This struggle was noted by the European Court of Justice, which acknowledged in the context of the Al-Qaida sanctions regime that it is permissible for a state to withhold evidence in the name of national security, provided that the incursion upon due process respects the essence of the right in question, is proportionate, is necessary, and genuinely meets the objectives of general interest recognised by the European Union.63 The Court found that withholding the 59

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The Ombudsperson of the Al-Qaida Sanctions Committee, Approach to and Standard for Analysis, Observations, Principal Arguments and Recommendation (August 2011). Available at the Ombudsperson’s website at www.un.org/en/sc/ombudsperson/approach .shtml. Yassin Abdullah Kadi v. Commission of the European Communities Judgement, supra note 18, para. 117. Res. 2083 (2012), supra note 6, Ann. II, paras. 2–4. B. Emmerson, Annual Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism: Evaluation of the impact of the Office of the Ombudsperson on the 1267/1989 Al-Qaida sanctions regime, and its compatibility with international human rights norms, un Doc. A/67/396 (26 September 2012), para. 15. Yassin Abdullah Kadi v. Commission of the European Communities Judgement, supra note 18, paras. 101, 125–9.

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evidence relied upon to designate an individual on the Al-Qaida Sanctions List breaches that individual’s due process rights only insofar as it dilutes the probative value of the evidence such that the arbiter cannot sustain the imposition of restrictive measures against him or her.64 The case law and human rights analysis pertaining to the Al-Qaida sanctions regime illustrates how the Security Council’s evolution from comprehensive to targeted sanctions has taken what was once a wholly political process (the Security Council lays down a trade embargo against a particular regime) and infused it with judicial elements (the Security Council requires member states to impose restrictive measures against particular individuals and entities). Targeted sanctions help mitigate the hardship caused when an arbitrary trade embargo takes away food from an already struggling population. However, they also give individual autonomy to the target, which carries with it an enforceable obligation to respect that individual’s rights. Commentators have concluded that the source of the tension between human rights and implementation of targeted sanctions measures finds its source in the underlying international legal norms: since the Security Council is a political organ, its operational procedures lack the flexibility and deference necessary to protect the due process rights of targeted individuals and entities.65 Nevertheless, states are not required to impose criminal sanctions and the procedure for designation on the Al-Qaida Sanctions List is not wholly judicial. Resolution 2083 (2012) reiterates ‘that the measures referred to in paragraph 1 of this resolution are preventative in nature and are not reliant upon criminal standards set out under national law’.66 The political framework from which the obligation to impose measures originates cannot be disregarded. Therefore, it is through a political paradigm rather than a legal one that petitioners can hope to gain meaningful access to the evidence in support of their designation. Security Council sanctions have long been understood as a political solution to threats to international peace and security. As sanctions become more targeted, and their implementation begins to resemble a criminal process, intervention by the Courts will only increase. The European Court of Justice is careful to note that judicial review of the European Union’s decision to impose targeted sanctions against an individual is not intended 64 65

66

Ibid., paras. 129, 138, 163. Annual Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism: Evaluation of the impact of the Office of the Ombudsperson on the 1267/1989 Al-Qaida sanctions regime, and its compatibility with international human rights norms, supra note 62, para. 15. Res. 2083 (2012), supra note 6, at 2.

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To substitute the political judgement of the Courts of the European Union for that of the competent international authorities. Its purpose is solely to ensure observance of the requirement that Security Council resolutions are implemented within the European Union in a manner compatible with the fundamental principles of European Union law.67 On paper, the fact that the Al-Qaida Sanctions Committee designates names for listing and also retains ultimate power to decide on petitions for de-listing has been viewed as ‘inconsistent with any reasonable conception of due process’.68 However, the practical operation of the Ombudsperson’s powers in this context deserves close consideration: in all of the cases brought before the office, none have been overturned (by consensus, nor by referral to the Security Council).69 The most effective solution to persuade designating states to disclose the information upon which listings are based is not citing international human rights treaties. Rather, the solution is through the strategic effect of the domestic and regional review mechanisms. In cases brought before the Ombudsperson, as well as before the European Court of Justice, if the state concerned fails to disclose evidence in support of a designation, the result is non-implementation of the sanctions measures against that particular individual or entity. No evidence, no restrictive measures—a political trade-off to solve a human rights challenge. The more instances of non-implementation domestically and de-listing through the Ombudsperson, the more designating states will be incentivised to disclose. 4

Do Targeted Sanctions Protect Civilians against Terrorist Attacks?

4.1 Implementation It is one thing for a resolution to be passed in New York, and quite another for a border guard to prevent a listed individual from entering the country he or she serves. Sanctions can only achieve their potential when they are fully implemented by member states, and the United Nations has worked hard to 67 68

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Yassin Abdullah Kadi v. Commission of the European Communities Judgement, supra note 18, para. 87. Annual Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism: Evaluation of the impact of the Office of the Ombudsperson on the 1267/1989 Al-Qaida sanctions regime, and its compatibility with international human rights norms, supra note 62, para. 16. Report of the Ombudsperson pursuant to Security Council Resolution 2083 (2012), S/2013/452 (31 July 2013), para 32.

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ensure that members are aware of their responsibilities under the Security Council’s sanctions regimes, and are in a position to discharge these obligations domestically. Members of the United Nations are obliged to report on implementation of the various targeted sanctions measures imposed by the Security Council. The reporting obligations of each sanctions committee vary significantly. There is no formal, periodic obligation upon members to report to the Al-Qaida Sanctions Committee, and the last time the Committee requested reports from states was in 2005.70 In contrast, the Security Council Committee established pursuant to Resolution 1591 (2005) concerning the Sudan requests members to report on implementation of the sanctions measures at more regular intervals, most recently in 2010.71 For the Al-Qaida Sanctions Committee, the obligation to provide implementation reports has become ad hoc. In 2003, the Security Council requested that member states provide details of their implementation of the measures, and 160 states replied.72 The responses gave a comprehensive snapshot of the state of implementation throughout the world. When the exercise was initiated again in 2005, states were less forthcoming. The Committee asked states to list the specific actions taken to implement the sanctions measures and only 62 states responded.73 The only implementation reports available on the Committee’s website are those requested in 2003.74 If states are not required to report to the Committee when they have prevented a listed person from crossing their border (and indeed, the Committee has received no such communications in the past eight years),75 then it becomes nearly impossible to measure whether the sanctions themselves are having any practical effect on the ground. There is no question that reporting fatigue has become a significant issue before United Nations bodies; an equally serious issue is the lack of 70 71

72

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Res. 1617 (2005), UN Doc. S/RES/1617 (2005), para. 10. The Security Council Committee established pursuant to resolution 1591 (2005) concerning the Sudan requested reports from member states in Res. 1591 (2005), UN Doc. S/ RES/1591 (2005), para. 3(a)(vi); Res. 1891 (2009), UN Doc. S/RES/1891 (2009), para. 5, and Res. 1945 (2010), UN Doc. S/RES/1945 (2010), para 6. Res. 1455 (2003), UN Doc. S/RES/1455 (2003), para. 6; Thirteenth Report of the Analytical Support and Sanctions Implementation Monitoring Team Submitted Pursuant to Resolution 1989 (2011) Concerning Al-Qaida and Associated Individuals and Entities, UN Doc. S/2012/968 (2012), at 36–7. Res. 1617 (2005), supra note 70, para. 10; Thirteenth Report of the Analytical Support and Sanctions Implementation Monitoring, supra note 72, at 36–7. See www.un.org/sc/committees/1267/memstatesreports.shtml. Thirteenth Report of the Analytical Support and Sanctions Implementation Monitoring Team, supra note 72, at 22.

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concrete data on how effectively sanctions measures are implemented. Without such data, the designers of targeted sanctions are working in the dark. The lack of available data may go some way towards explaining why the Analytical Support and Sanctions Implementation Monitoring Team that supports the work of the Al-Qaida Sanctions Committee (Monitoring Team)76 champions the benefits of the sanctions regime in terms of symbolism and message sending, rather than actual thwarting of terrorist plots.77 Applications for exemptions to the assets freeze provide some insight into the patchwork nature of implementation of this particular measure.78 Twelve states have applied for exemptions to the freezing of assets within their territory since the procedure for requesting exemptions was established in 2002.79 However, there are a further eighteen states where listed individuals are resident at a known address and no application for exemption has been made.80 In the case of these eighteen states, the question must be raised as to how these listed individuals are able to sustain an existence. One possibility is that the assets of the listed individuals in these eighteen states are wholly frozen without exemption, and these individuals rely upon the charity of others for food and shelter. In this situation, the member state concerned is still failing to comprehensively implement its obligations under Resolution 2083 (2012), because states are not only obliged to freeze the assets held by the listed individual, but also required to ensure that no economic resources (including basic support from family members) are made available for the benefit of the listed individual.81 The second limb of the assets freeze measure82 could compel the conclusion that wherever a listed individual has not applied through his or her state of residence or through the focal point for an exemption to the assets freeze, the sanctions against that individual have not been fully implemented. In other words, wherever a listed individual is acquiring the means to exist, the state concerned has not complied with its obligations under paragraph 1(a) of Resolution 2083 (2012). If 12 of the 30 76

The Monitoring Team is comprised of experts in the fields of counter-terrorism, finance, arms, and related legal issues. 77 See infra, Section 4.2. 78 For an explanation of the procedures for exemptions to the assets freeze, see Section 2.2, supra. 79 Res. 1452 (2002), supra note 16. 80 Thirteenth Report of the Analytical Support and Sanctions Implementation Monitoring Team, supra note 72, at 20. 81 Res. 2083 (2012), supra note 6, para. 1(a). 82 States must ‘ensure that neither these nor any other funds, financial assets or economic resources are made available, directly or indirectly for such persons’ benefit, by their nationals or by persons within their territory’. Res. 2083 (2012), supra note 6, para. 1(a).

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individuals with known residential addresses have applied for an exemption, one could extrapolate that the assets freeze is implemented 40% of the time in cases where a residential address is known. Given that there are 221 individuals on the Al-Qaida Sanctions List,83 for whom only 30 have a known address, the question is raised as to whether effective practical implementation of the assets freeze is even possible when the residential location of 86% of listed individuals is unknown? The counter argument to this bleak assessment is that for the assets freeze to be effectively implemented, it is not necessary to know the residential address of the listed individual. The recommendations of the Financial Action Task Force support this assumption. The Financial Action Task Force (fatf) is an independent inter-governmental body that develops policy recommendations to protect the global financial system against terrorist financing and other illegal activity. fatf recommends implementation of United Nations targeted sanctions as an effective way to address terrorist financing.84 It also recommends that states legislate a requirement for financial institutions to undertake customer due diligence measures to determine whether suspicious transactions relate to terrorist financing.85 The conclusion follows that, when states direct financial institutions to freeze the assets of certain individuals— whether the residential address of the individual is known will not determine the efficacy of the sanctions—there is an obligation upon the financial institution concerned to use the available data (whether or not that data includes a residential address) as part of its due diligence investigations into its clients and their transactions. Two conclusions may be drawn from the small percentage of individuals who have applied for exemptions to the sanctions measures: either assets are by-and-large not frozen, or listed individuals and entities are obtaining the means to survive from other sources, and the states concerned have no inclination or capacity to stop this from happening. Targeted sanctions can only achieve the goal of protecting civilians from terrorist attack with member state co-operation. The Al-Qaida Sanctions Committee and its Monitoring Team have neither the means nor the mandate to enforce the measures imposed by Resolution 2083 (2012). While everincreasing co-operation between the Committee and the International Criminal Police Organisation (interpol) allows for some measure of 83 As at 31 October 2013. Al-Qaida Sanctions List, supra note 1. 84 The fataf Recommendations: International Standards on Combating Money Laundering and the Financing of Terrorism & Proliferation (2013), at www.fatf-gafi.org/media/fatf/ documents/recommendations/pdfs/FATF_Recommendations.pdf (last accessed 1 August 2014) at 13, 26. See also Res. 2083 (2012), supra note 6, para. 43. 85 The fataf Recommendations, supra note 84, at 13, 59–67.

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enforcement and information-sharing,86 the sanctions cannot be implemented by any authority other than member states. The implementation challenge is therefore squarely posited around how best to motivate states to invest their limited resources into sanctions implementation. An example of member state reluctance to fully implement the sanctions measures can be found in the case of Al-Qaida affiliated websites. While the assets freeze clearly extends to the provision of internet hosting or related services, the Al-Qaida Sanctions Committee has found no way to motivate the relevant member states to take down websites that support Al-Qaida and other listed entities.87 The Committee does have a mandate to address reported cases of non-compliance with the sanctions measures by member States. However, the language in Resolution 2083 (2012) is vague: The Security Council ‘[d]irects the Committee to identify possible cases of non-compliance with the measures […] and to determine the appropriate course of action’.88 The Monitoring Team that supports the work of the Al-Qaida Sanctions Committee has considered appropriate courses of action to take where specific cases of non-compliance with the measures are apparent to the Committee; however, there appears to be some tension as to exactly where the mandate to address non-compliance lies (either with the Monitoring Team or with the Committee itself). The Monitoring Team writes: [T]he Team recommends that the Committee take further measures to address such non-compliance…. This could include soliciting and reviewing at regular intervals reports of non-compliance from Committee members, the Team, and Member States. The Committee should consider an appropriate and prompt response, especially where a lack of capacity appears to be at the root of the problem.89 The Committee responds: The Committee notes that reporting on possible cases of non-compliance as well as making recommendations for improving implementation is at 86 See www.interpol.int/INTERPOL-expertise/Notices/Special-Notices (last accessed 1 August 2014). 87 Thirteenth Report of the Analytical Support and Sanctions Implementation Monitoring Team, supra note 72, at 36. 88 Res. 2083 (2012), supra note 6, para. 49. 89 Twelfth report of the Analytical Support and Sanctions Implementation Monitoring Team, submitted pursuant to resolution 1989 (2011) concerning Al-Qaida and associated individuals and entities, UN Doc. S/2012/729, para. 23.

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the centre of the Monitoring Team’s mandate…. The Committee looks forward to the assistance of the Monitoring Team with its analysis of noncompliance by collating information collected from Member States and submitting case studies, both on its own initiative and at the Committee’s request.90 One thing is clear: both the Committee and the Monitoring Team agree that capacity building is crucial to implementation. Typically, it is not a lack of will, but rather a lack of capacity that results in failure to implement the sanctions measures. It is at this juncture that co-operation between the United Nations’ counterterrorism apparatus becomes particularly important. Capacity building is at the core of the United Nations counter-terrorism strategy,91 in particular in the mandate of the Security Council’s Counter-Terrorism Committee.92 Capacity building in states where the banking system lacks the sophistication to administer an assets freeze or where lax border security allows for listed individuals to travel undetected is not an undertaking for the Al-Qaida Sanctions Committee to consider in an isolated context. As foreshadowed in the resolutions of the Al-Qaida Sanctions Committee, the Committee and the Monitoring Team should approach capacity building as a joint effort with the programs and strategies already established by the Counter Terrorism Committee.93 Another area of support for implementation is through co-operation between the sanctions committees and interpol. interpol produces ‘United Nations special notices’ for all individuals and entities on the United Nations sanctions lists. The special notices mean that all interpol members have access to identifying information on listed individuals and entities (in some cases, more information than is available on the un sanctions lists).94 Members are also notified that these individuals are subject to sanctions measures when the names are searched on interpol’s databases.95 This is a particularly useful development to ensure that this information is before officials in charge of border crossings—those at the front line of implementing the travel ban. 90

Recommendations contained in the twelfth report of the Analytical Support and Sanctions Monitoring Team: Position of the Committee, supra note 2, para. 10. 91 The United Nations Global Counter-Terrorism Strategy, UN Doc. A/RES/60/288 (20 September 2006), at 7–8. 92 Res. 1963 (2010), UN Doc. S/RES/1963 (2010), para. 4. 93 Res. 2083 (2012), supra note 6, para. 62, Ann. I (g). 94 For example, several interpol Special Notices include photographs of listed individuals, whereas the Al-Qaida Sanctions List does not. Cf. www.interpol.int/UN and Al-Qaida Sanctions List, supra note 1. 95 www.interpol.int/INTERPOL-expertise/Notices/Special-Notices.

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4.2 Maximising Impact: The Al-Qaida Sanctions Committee’s Monitoring Team In December 2012, the Monitoring Team submitted its thirteenth report to the Security Council, the final report under the leadership of Mr Richard Barrett.96 The report reads as a stocktaking of sorts. It notes that since the establishment of the Monitoring Team in March 2004, the threat to international peace and security posed by Al-Qaida has declined, and over the same period, the sanctions regime concerning Al-Qaida has become more effective. The report looks for correlation between these two developments,97 but stops short of attributing any credit to the Al-Qaida Sanctions regime for the reduced danger posed to civilians by Al-Qaida. The Monitoring Team, noting the lack of available data about implementation of the sanctions measures by member states, characterizes the effect of the Al-Qaida sanctions regime with a focus on symbolism and outreach over concrete measures to foil terror plots. The Team notes the areas in which the sanctions measures can have the greatest impact, and encourages member states to focus on these. Specifically, the Monitoring Team notes that listing an individual or an entity deters future terrorist recruits from following the same path, alerts the international community to the threat posed by listed individuals and entities, and notifies listed individuals and entities of the need for a change in behaviour.98 The Monitoring Team acknowledges that listing certain names will necessarily be symbolic and unlikely to have any practical effect, for example, the listing of illegal entities or fugitives from justice. In order to maximize the practical and symbolic influence of the sanctions, the Monitoring Team suggests that the Committee consider listing the leaders of terrorist groups at the same time as the corresponding entity is listed.99 The Committee apparently took heed of this advice when it listed Malian Tuareg rebel leader Iyad ag Ghali and his militant Islamist group Ansar Eddine within a month of each other in early 2013.100 This approach not only alerted the international community to the existence of the threat, but also actively characterised the nature of the threat. These listings sent a clear message to the international 96

Since January 2013, Mr Alexander Evans has served as Co-ordinator of the Monitoring Team. 97 Thirteenth Report of the Analytical Support and Sanctions Implementation Monitoring Team, supra note 72, at 4. 98 Ibid., at 12–13. 99 Ibid., at 13. 100 Security Council Al-Qaida Sanctions Committee Adds One Individual to its List, UN Doc. SC/10925 (25 February 2013); Security Council Al-Qaida Sanctions Committee Adds Ansar Eddine to its Sanctions List, UN Doc. SC/10947 (20 March 2013).

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community, and to members of Al-Qaida specifically, that the high-profile protagonists of the conflict in Mali are thought to be associated with Al-Qaida. By listing the militant Islamist group Ansar Eddine, the Committee has signalled that this entity operates as a terrorist organisation, not a viable opposition group. This signal is significant because it characterises the violence in Mali and the Sahel at this precise moment in time as criminal, rather than insurgent. It articulates a framework around which the international community may contemplate action, and it galvanises member states to respond to the threat posed to civilians. Although no interventionist action has been mandated by the Security Council, the fact that the two entities that control northern Mali have been designated as criminal sends a signal that until the groups abandon their terrorist ideologies, their aspirations to lead Mali will be constrained by the international community. Just as sanctions can be used to pressure leaders to take a seat in peace negotiations (sanctions played a role in bringing Charles Taylor to peace talks),101 so too can the same pressure be applied to armed groups. Essentially, in approving the addition of these names to the Al-Qaida Sanctions list, the Committee gives the situation in Mali certain parameters: it is an armed conflict involving a terrorist group. In addition to this symbolic message, the Monitoring Team’s theory also infers that these listings deter potential recruits to Ansar Eddine and signal to current members that their association with Al-Qaida has wide-reaching negative impacts hastened by the condemnation of the United Nations Security Council. 4.3 Measuring Outcomes: The Targeted Sanctions Consortium Sanctions measures are necessarily limited in their reach: they do not seek to abolish the threat posed to civilians by terrorism, merely to mitigate it. Targeted sanctions seek to get ahead of the threat to civilians by impeding the capacity for terrorists to plan attacks, and to discourage others from taking up the cause. They do not aspire to thwart attacks by dismantling a ticking bomb. Measuring the effectiveness of targeted sanctions therefore is an exercise in extrapolation by examining alternative outcomes, not a question of tallying the number of attacks against civilians that would have taken place but for the imposition of sanctions against the would-be perpetrators. It is an inexact process. As noted above, assessing the effectiveness of targeted sanctions as a means of protecting civilians against terrorist attacks is compromised by lack of data. Even anecdotal evidence is difficult to come by, and it can be difficult to distil causal factors behind reformed terrorist behaviour. The Al-Qaida Sanctions Committee has made it clear that measuring the impact of sanctions is not a 101 Biersteker et al., supra note 36, at 20.

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priority task for the Monitoring Team, given time and resource constraints.102 Fortunately, an international consortium exists to examine the impact and effectiveness of United Nations targeted sanctions (Targeted Sanctions Consortium),103 and it has recently published preliminary findings.104 The Consortium has chosen to assess the effectiveness of targeted sanctions against three distinct purposes: to coerce or change behaviour, to constrain proscribed activities, and to signal or stigmatise targets.105 These purposes will be examined below, applied in the context of the Al-Qaida sanctions regime and its potential to protect civilians against terrorism. 4.3.1 Coerce If the objective of imposing sanctions measures against individuals and entities is to coerce the target to change its behaviour, then the success of the Al-Qaida Sanctions regime may be measured according to whether members of Al-Qaida and its affiliates are coerced into renouncing terrorism as a result of the life-limiting incursions imposed upon their assets and freedom of movement. The Consortium concludes that targeted sanctions are most successful at coercion when the goals are narrowly defined and the target is identified immediately. These factors were in place when the international community imposed sanctions that served to coerce the Libyan government into turning over suspects and providing compensation to victims related to the bombing of Pan Am Flight 103 over Lockerby in 1988.106 The nature of the threat posed by Al-Qaida makes formulation of discrete goals difficult, if not impossible. The dynamic character of this threat necessitates a flexible approach to targeting: the ever-changing composition of the Al-Qaida Sanctions List is a testament to this.107 It is important to note that the goal of the Al-Qaida sanctions regime is not to coerce a change in the attitude of Al-Qaida and all of its affiliated organisations, but rather to coerce a change

102 Recommendations contained in the twelfth report of the Analytical Support and Sanctions Monitoring Team: Position of the Committee, supra note 2, para. 9. 103 See www.graduateinstitute.ch/internationalgovernance/UN_Targeted_Sanctions.html and www.watsoninstitute.org/project_detail.cfm?id=4 (last accessed 1 August 2014). 104 Biersteker et al., supra note 36. 105 Ibid., at 7, 9. 106 Ibid., at 17–8. These sanctions were imposed from 1999–2003. 107 103 entries on the Al-Qaida Sanctions List were updated in 2012. Report of the Security Council Committee pursuant to resolutions 1267 (1999) and 1989 (2011) concerning Al-Qaida and associated individuals and entities, UN Doc. S/2012/930 (19 December 2012), para. 4.

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in individual members. If one listed individual is coerced into renouncing terrorism, the sanctions imposed against him or her can be considered a success. There is no question that when properly implemented, the sanctions measures restrict the ability of the target to live a normal life. The lawyer for Abu Sufian Al-Salamabi Muhammed Ahmed Abd Al-Razziq, whose name was formerly inscribed on the Al-Qaida Sanctions List, describes the difficulty his client encountered each time he attempted to make a withdrawal from his bank account (Mr Al-Razziq was granted an exemption to the assets freeze to cover basic expenses): Every month, when he wants to go borrow money from the bank, they only allow him to do it one day a month and even then there is almost always a problem. He is turned away at the teller and asked to call me practically in tears…. Then I have the number of the bank’s general manager who [sic] I call while [Mr Al-Razziq] waits in the lobby. He calls the bank manager and they do a little something something [sic] and then he gets his one withdrawal a month. And we have to go through that stupid game almost every month.108 In July 2006, the Al-Qaida Sanctions Committee determined that Mr Al-Razziq was associated with Al-Qaida and thereby decided to add his name to the Al-Qaida Sanctions List. Five years later, the Committee decided to remove Mr Al-Razziq’s name from the List following a review of his case by the Office of the Ombudsperson.109 There is no indication in the case of Mr Al-Razziq that it was the imposition of sanctions measures that coerced him into disassociating himself with Al-Qaida: Mr Al-Razziq has always maintained that he has never been associated with Al-Qaida and that his inclusion on the Al-Qaida Sanctions List is baseless.110 Nevertheless, petitions for removal from the Al-Qaida Sanctions List submitted through the Office of the Ombudsperson can provide a general insight into the potential for targeted sanctions to coerce listed individuals into changing their behaviour. Comprehensive reports of the Ombudsperson are submitted to the Al-Qaida Sanctions Committee 108 A. Raj, ‘Abousfian Abdelrazik: Montreal Man De-Listed From United Nations Security Blacklist’, Huffington Post, 30 November 2011. 109 Security Council Al-Qaida Sanctions Committee Deletes Entry of Abu Sufian Al-Salamabi Muhammed Ahmed Abd Al-Razziq From its List, UN Doc. SC/10467 (30 November 2011). 110 Abdelrazik Presses for Records of his Detention in Sudan, cbc News Online (29 April 2013), at www.cbc.ca/news/politics/story/2013/04/29/pol-cp-abdelrazik-sudan-detention .html (last accessed 1 August 2014)

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c­ onfidentially. In these reports, the Ombudsperson examines the evidence submitted in each case, outlines any dialogue undertaken with the petitioner, and gives a reasoned recommendation as to whether or not the Committee should consider removing the name from the Al-Qaida Sanctions List.111 Despite the confidential nature of these reports, guidance can be gleaned from the standard of review employed by the Ombudsperson, especially since this standard contemplates a change in attitude on the part of the petitioner. The Ombudsperson’s standard of review is whether there is a reasonable and credible basis for the listing. An explanatory statement provided by the Ombudsperson is carefully crafted to emphasise that where the Committee decides to remove a name from the List, it does not overturn the original decision to include the name on the List. Rather, the standard permits the conclusion that over time the circumstances upon which the original listing was based can change so that there is no longer a reasonable and credible basis for retaining the name on the List. It is important for the Ombudsperson and the Committee to examine each case as it stands at the time the application for de-listing is made. The Ombudsperson, Ms Kimberly Prost, writes: In addition, the Security Council has, in my opinion, unmistakably signalled that a delisting decision will be a de novo one which looks at the circumstances, as they stand at the time of the delisting request, to determine the appropriateness of a continued listing. In this regard, the Security Council’s inclusion in Resolution 1735 (2006), of ‘disassociation’ as a factor which may be considered with reference to delisting, evidences this approach. Similarly, the reference in Resolution 1989 (2011) to the removal from the Al-Qaida Sanctions List of ‘members and/or associates of Al Qaida who no longer meet the criteria’ supports a consideration of circumstances which have changed since the original listing. Further, the Security Council has plainly directed the Ombudsperson to analyze all the available information. The absence of restrictions, particularly temporal ones, makes it evident that the assessment should address all the pertinent material, whether relied on in the context of the original decision or not.112 In his 2012 report, the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism 111 Res. 2083 (2012), supra note 6, Ann. II, para. 7. 112 Approach to and Standard for Analysis, Observations, Principal Arguments and Recommendation (August 2011), at www.un.org/en/sc/ombudsperson/approach.shtml (citations omitted).

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recommends that all comprehensive reports of the Ombudsperson should be made public, subject to any redactions on security grounds.113 If the Security Council adopts this recommendation, it would open a wealth of data on the impact of sanctions upon the individuals targeted, especially since the Ombudsperson is encouraged to personally interview petitioners.114 Until then, we may only infer the reasons why, to date, almost every petitioner that submitted a case through the Office of the Ombudsperson has been found to no longer pose a threat to civilians by association with Al-Qaida.115 4.3.2 Constrain Sanctions also seek to constrain the freedom of those they target to engage in terrorist activities. By limiting access to the funds, weapons and expertise necessary to launch an attack against civilians, potential perpetrators are forced to either change their strategy or abandon their aspirations. The Targeted Sanctions Consortium does not suggest that sanctions can prevent attacks outright. Instead, it sees a more realistic vision of targeted sanctions: to delay an attack, or raise its costs, thereby reducing, but not eradicating, the negative impact on civilians.116 The Consortium concludes that ‘effective constraint tends to be associated with a specific focus on…a group engaged in the commitment of acts of terrorism, or key supporters of any of the above, rather than on all parties to a conflict’.117 Based upon this analysis, this purpose would seem to apply to the Al-Qaida Sanctions Committee more than any other Security Council regime, given the global reach and terrorist objectives of Al-Qaida, as opposed to the discrete political situations addressed by the Security Council’s other sanctions Committees. It is difficult to derive a concrete measure of constraint, particularly because of the unpredictable and de-centralised way that Al-Qaida and its associates operate. Arguably, every terrorist attack that occurs could have caused more injury to civilians had the perpetrators been able to access more funding. The South Asian terror organisation Lashkar-e-Tayyiba (LeT) was inscribed on the 113 Annual Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism: Evaluation of the impact of the Office of the Ombudsperson on the 1267/1989 Al-Qaida sanctions regime, and its compatibility with international human rights norms, supra note 65 at 23. 114 Res. 2083 (2012), supra note 6, Ann. II, paras. 5–7. 115 Of the 14 de-listing petitions submitted in 2012, all were approved. Report of the Security Council Committee pursuant to resolutions 1267 (1999) and 1989 (2011) concerning Al-Qaida and associated individuals and entities, supra note 107, para. 29. 116 Biersteker et al., supra note 36, at 9–10. 117 Ibid., at 19.

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Al-Qaida Sanctions List on 2 May 2005.118 In 2008, the group launched a series of attacks in Mumbai resulting in the death of 174 people.119 On one hand, it could be said that the sanctions failed because 174 people died—had LeT’s resources been constrained, this number would have been less. Read another way, the sanctions were a success because only 174 people died—LeT could have killed more if they had unfettered freedom to mobilise and move resources. Do we cite the failure of sanctions to lessen the scale of the attacks, or attribute credit to the sanctions regime for preventing even more casualties? Do we measure success against lives lost or lives saved? Properly implemented, sanctions against Al-Qaida can curtail its operations. Attacks cannot be launched on a large scale, and members cannot travel internationally to train and co-ordinate large-scale attacks. Over time, Al-Qaida has morphed from a centralised, global terrorism powerhouse into a more fractured network of affiliates operating and launching attacks in a variety of different contexts. The more fractured the targeted entities, the more difficult it becomes to constrain the target. When the Al-Qaida Sanctions Committee was first established, it targeted one individual and one entity: Usama Bin Laden and the Taliban.120 Today, it targets 231 individuals and 68 entities.121 As noted by the Targeted Sanctions Consortium, sanctions work best to constrain when the target is narrow (government leadership, a particular rebel faction). As a target, Al-Qaida is no longer narrow. Effective constraint over such a dynamic and multi-faceted target has already proven extremely difficult for the Committee.122 For these reasons, the Al-Qaida Sanctions Committee is better placed to focus on other purposes of targeted sanctions (constraint, signalling) in order to maximise the potential for sanctions to protect civilians. 4.3.3 Signal As foreshadowed by the Monitoring Team’s report,123 imposing sanctions against Al-Qaida and its affiliates can send a message to targeted individuals and to the international community writ large that named members of Al-Qaida and its affiliates pose a threat to international peace and security, and 118 Security Council Committee Adds One Entity to Al-Qaida Section of its Consolidated List, UN Doc. SC/8381 (6 May 2005). 119 D. Irani, ‘Surviving Mumbai Gunman Convicted over Attacks’, BBC Online, 3 May 2010, at http://news.bbc.co.uk/2/hi/south_asia/8657642.stm (last accessed 1 August 2014). 120 Res. 1267 (1999), supra note 4. 121 As at 31 October 2014. Al-Qaida Sanctions List, supra note 1. 122 See, for example, the implementation challenges examined in Section 4.1, supra. 123 See Section 4.2, supra.

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to the safety of civilians. The Consortium concludes that effective signalling is strongly associated with, inter alia, reporting requirements, committee guidelines, designation criteria, and evidence of enforcement.124 Though the Al-Qaida Sanctions regime boasts all of these characteristics, the Monitoring Team has observed ‘reporting fatigue’ on the part of member states,125 and as the reports have trickled off, so too have the demands from the Security Council for member states to report on how the Al-Qaida sanctions measures are being implemented in each jurisdiction.126 This casts a shadow over the cited benefits of reporting requirements and evidence of enforcement. In the Al-Qaida context, sending a signal by imposing targeted sanctions is likely to have the greatest impact when applied to entities. In the case of lowprofile individuals, the signal may only register with the person concerned. However, for an entity, designation on the Al-Qaida Sanctions List places a certain stigma on not only the entity itself, but also the context in which it operates. Take a recent update to the Al-Qaida Sanctions List that saw the list entry for Al-Qaida in Iraq amended to add a number of aliases. One of those aliases was the Al-Nusrah Front, a leading opposition force fighting in Syria.127 The fact that the Al-Nusrah Front was not listed as a separate entity makes no difference when it comes to implementation: member states are obliged to impose the measures in the same way that they would if Al-Nusrah had been included as a stand-alone entry on the Al-Qaida Sanctions List. However, the choice to include Al-Nusrah via an amendment rather than a brand new listing is relevant in the context of signalling, given the diplomatic repercussions. First, although the Al-Qaida Sanctions Committee’s deliberations are confidential, it has been reported that the original listing request was put to the Committee by Syria, who sought to add the Al-Nusrah Front as a separate entity on the Al-Qaida Sanctions List. The Committee was reluctant to grant this request because of concerns that some of the supporting evidence submitted by Syria may have been obtained through torture. France and the United Kingdom submitted an alternate proposal to the Committee in which the entry for Al-Qaida in Iraq was amended to include the Al-Nusrah Front. It was this proposal that 124 Biersteker et al., supra note 36, at 21. 125 See Section 4.1, supra. 126 Ibid. 127 Security Council Al-Qaida Sanctions Committee Amends Entry of One Entity on its Sanctions List, UN Doc. SC/11019 (30 May 2013); ‘un adds al-Nusra, the leading opposition force fighting in Syria, to un sanctions blacklist’, Associated Press (30 May 2013), available at http://www.foxnews.com/world/2013/05/30/un-adds-al-nusra-leading-opposition-force -fighting-in-syria-to-un-sanctions/ (last accessed 1 August 2014).

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the Committee ultimately accepted.128 In choosing this path, the Committee has sent two signals: one of the lead opposition groups fighting the Syrian regime is a terrorist organisation associated with Al-Qaida, and the proposal by Syria to characterise the conflict in this way was unreliable and possibly breached international human rights standards. Another signalling outcome arising from the decision to amend Al-Qaida in Iraq’s entry on the List rather than creating a new one is that the Committee is not obliged to explain its rationale for imposing sanctions against the Al-Nusrah Front. When a new name is included to the Al-Qaida Sanctions List, the Committee must publish a narrative summary of the reasons that the particular individual or entity was included on the List.129 There is no corresponding obligation when the Committee approves amendments to the List. The Al-Qaida Sanctions Committee did update the narrative summary for Al-Qaida in Iraq to take account of the inclusion of the Al-Nusrah Front as an alias; however, the information adduced is significantly more abbreviated that it would have been in support of a new listing.130 Imposing sanctions against the Al-Nusrah Front, as well as Ansar Eddine,131 demonstrates the potential for targeted sanctions to characterise certain political situations. Designation as a terrorist organisation subject to international sanctions can have a chilling effect on the targeted entity, drying up international support for their its cause. 4.3.4 Preliminary Conclusions of the Targeted Sanctions Consortium, Applied to the Al-Qaida Sanctions Regime The preliminary findings of the Consortium conclude that United Nations targeted sanctions are effective in coercing a change in behaviour 13% of the time, in constraining behaviour 42% of the time, and in signalling 43% of the time. Overall, the Consortium advises that the United Nations Security Council would be wise to design targeted sanctions regimes with the aim of signalling or

128 ‘un blacklists Syria’s al-Nusra Front’, Al-Jazeera Online (31 May 2013), at www.aljazeera .com/news/americas/2013/05/201353021594299298.html (last accessed 1 August 2014). 129 Res. 2083 (2012), supra note 6, paras. 14, 17. 130 The new information reads: ‘Jabhat al Nusrah emerged publicly on 23 January 2012. The group was created by members of Al-Qaida in Iraq including, in particular, Ibrahim Awwad Ibrahim Ali Al-Badri Al Samarrai, also known as Abu Bakr al-Baghdadi (QI.A.299.11). The leader of Jabhat al Nusrah is Al-Fatih Abu Muhammad al-Jawlani (not listed). The group is part of Al Qaida in Iraq. It operates in Syria where it has carried out a number of terrorist attacks’. See www.un.org/sc/committees/1267/NSQE11504E.shtml (last accessed 1 August 2014). 131 See Section 4.2, supra.

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constraining a target in mind.132 Based upon these conclusions, the Consortium recommends that the narrative on sanctions should be changed from a near exclusive preoccupation with the ability of sanctions to coerce a change in behaviour, toward their potential to constrain actors by reducing their ability to engage in targeted activity. The Consortium urges policymakers to be realistic about what sanctions can achieve, and to focus on the areas where targeted sanctions may have the most impact. Rather than calling for ‘crippling’ sanctions, emphasis should be directed towards the purpose for which targeted sanctions are most likely to achieve success.133 The advice of the Consortium to focus on the purposes with the most potential for success is directly applicable to the Al-Qaida Sanctions Committee; however, the assessment of which purposes have the most potential for success does not apply quite as neatly. The Al-Qaida Sanctions Committee’s targets are unique. The Committee does not seek to pressure governmental decision making, rather it seeks to mitigate the risk to civilians throughout the world posed by terrorist attacks. Regarding coercion, it can be argued that if the sanctions succeed in persuading thirteen out of every hundred listed individuals to renounce terrorism, the sanctions have achieved an important measure of success. Regarding constraint, it is important to consider the disparate nature of Al-Qaida in 2013 as well as the significant challenges to comprehensively implementing the sanctions that the Al-Qaida Sanctions Committee faces. The Committee is arguably less effective at constraining behaviour than the preliminary conclusions of the Targeted Sanctions Consortium indicate. However, that is not to say the Committee should turn away from constraint as a goal of the regime. At its core, terrorism is an ideological struggle; therefore, constraining attacks does more than save the lives of immediate potential victims: it takes terrorism out of the international spotlight, thereby deterring would-be recruits. Finally, regarding signalling, the Committee has significant potential to frame the international conversation on various theatres of conflict throughout the world, owing in part to the de-centralised evolution that Al-Qaida has undertaken. As Al-Qaida affiliates emerge as parties to a wide variety of conflicts throughout the world, the Committee has the potential to designate parties, characterize them as terrorist entities, and impose restrictive measures (most notably in this context, an arms embargo) that all United Nations member states are required to observe. Viewed through the paradigm of protecting civilians, all three purposes—coercion, constraint, and signalling—should be in the minds of the Al-Qaida Sanctions Committee as 132 Biersteker et al., supra note 36, at 15, 29. 133 Ibid., at 15, 29–31.

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it designs the regime and approves targets; however, the Committee has the most potential to reduce the harm to civilians brought about by Al-Qaida operations through coercion and signalling. 5 Recommendations 5.1 Targeting Having examined the goals of the Al-Qaida sanctions regime, it is important to examine steps that the Committee can take (in addition to encouraging implementation and addressing non-compliance)134 to better achieve these goals. At a fundamental level, it is crucial for the Committee to focus on the right targets. Imposing sanctions will do nothing to counter terrorism if the individuals and entities targeted pose little or no threat to civilians through their association with Al-Qaida. Indeed, the regime has lost significant credibility at the hands of international legal challenges in which plaintiffs are able to plead (in court and in the media) that they have been wrongly targeted.135 The Targeted Sanctions Consortium agrees, concluding that ‘targeting is important, and the list of targets should reflect the purposes of the sanctions. Too many, too few, or the wrong targets undermine the credibility of the measures’.136 The turn of the last century saw a sharp shift in sanctions policy, where sanctions moved from general to specific: rather than comprehensive sanctions against an entire regime, sanctions were refined to maximise pressure on culpable actors while at the same time seeking to minimise adverse humanitarian impacts.137 The Al-Qaida Sanctions Committee has followed this model since its establishment: intending that the most culpable members of Al-Qaida and its affiliates are designated. Given the unique nature of the Al-Qaida Sanctions Committee, it has the opportunity to make its sanctions even smarter. The Committee should not simply target the most culpable, it should also (or even principally) target those associated with Al-Qaida for whom sanctions measures will have the greatest operational impact. It is important to sanction Al-Qaida affiliates and its leaders, even if the designation is largely symbolic. The leaders of terrorist cells associated with Al-Qaida have little respect for sanctions, and operate outside of the law, making implementation 134 135 136 137

See Section 4.1, supra. See notes 18 and 108, supra. Biersteker et al., supra note 36, at 5. A. Tostensen and B. Bull, ‘Are Smart Sanctions Feasible?’ (2002) 54 World Politics 373 at 379. See also Section 3.1, supra

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of the measures difficult.138 Looking at the sanctions regime through the prism of effective outcomes, it would be more effective to target the financier with a fixed location who acts as a crucial link in the operational chain. In order to maximise the effectiveness of the sanctions—particularly their ability to constrain behaviour—the Al-Qaida Sanctions Committee should target those individuals and entities that the sanctions regime can reach. By listing more financiers and logisticians and less soldiers and leaders, the Al-Qaida Sanctions List can more effectively achieve the goal of constraining terrorist activity, thereby maximising the ability of the sanctions measures to be properly implemented and to protect civilians against terrorist attack. 5.2 Balance with Other Policy Tools Sanctions are never imposed in isolation, and have limited capabilities when examined in a vacuum. The United Nations is careful to ensure that targeted measures exist together with other policy instruments that seek to achieve related objectives. Diplomatic measures are the most common initiatives employed to bolster targeted sanctions. Peacekeeping operations, military force, and legal tribunals are also common;139 however, in the context of a global threat of the nature posed by Al-Qaida, military intervention and prosecutions by the United Nations and its sub-bodies can only achieve piecemeal impact. The Al-Qaida that carried out the terrorist attacks of 11 September 2001 no longer exists, and in its place are regional affiliates with distinct objectives involved in a variety of different theatres.140 This de-centralised character complicates co-ordinated efforts by the United Nations to deploy peacekeepers or prosecute those most responsible for atrocities. For this reason, diplomatic activities and the co-ordinated efforts by the United Nations through its Counter-Terrorism Implementation Task Force are the most effective compliments to the initiatives of the Al-Qaida Sanctions Committee. 6 Conclusion As the international community gains comfort acting pre-emptively to avert harm to civilians caused by threats to international peace and security, it is 138 D. Walsh, ‘Pakistani Militant, Price on Head, Lives in Open’, New York Times, 6 February 2013; Thirteenth Report of the Analytical Support and Sanctions Implementation Monitoring Team, supra note 97, para. 36. 139 Biersteker et al., supra note 36 at 13. 140 Thirteenth Report of the Analytical Support and Sanctions Implementation Monitoring Team, supra note 97, at 5.

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useful to look to existing legal and policy tools to bolster this shift in focus. Targeted sanctions have long been used by the Security Council to influence situations where civilians are at risk, whether or not these civilians find themselves in the midst of armed conflict. The time is opportune to consider the position of targeted sanctions in the suite of policy options available to the Security Council to address threats to international peace and security, in particular, whether the measures are in compliance with the principles of international human rights law. The Al-Qaida Sanctions Committee has a track record of mitigating the threat posed to civilians by terrorist attacks. In this regard, the Committee has enjoyed a measure of success, but in order to maximise its impact, the Committee should focus on encouraging effective implementation and more considered targeting in order to ensure, first, that the targets pose a threat to international peace and security through their association with Al-Qaida, second, that the targets are capable of being reached, and third, that the choice of target has maximum operational impact upon Al-Qaida and its affiliates.

chapter 6

The United Nations in Afghanistan: Policy as Protection? A. Niki Ganz* 1

Introduction: The United Nation’s History of Protecting Civilians

Although the un is able to participate in the establishment of norms on the protection of civilians during peace-keeping missions, the record of missions actually protecting civilians from harm has been decidedly mixed. In fact, the Security Council has often struggled to uphold its own norms, as the United Nations oversight body recently reported, noting that only in a minority of cases did un peace-keeping missions with civilian protection mandates respond to direct attacks on civilians.1 Events in the 1990s precipitated greater attention to the scope of permissible use of force by un missions, and ultimately resulted in an express mandate to protect civilian populations. In response to failures to prevent atrocities against civilians by United Nations peace-keeping missions in the 1990s, including the Rwanda genocide and the massacre at Srebrenica, the Security Council first delved into the protection of civilians as a separate thematic area of concern in two Secretary-General’s reports in 1998.2 The following year, the

* Ms. A. Niki Ganz has served as a political officer and special assistant in United Nations field missions in Sierra Leone, Afghanistan, Lebanon, and un Headquarters in New York. The views expressed in this chapter are solely hers and not those of the United Nations. 1 Evaluation of the implementation and results of protection of civilians mandates in the United Nations peace-keeping operations. un Doc. A/68/787 (2014) para. 18 at 7. Peacekeeping missions intervened in only 20 percent of cases between 2010–2013 despite being authorised to do so by the U.N. Security Council. The report indicated that this was often due to troop-contributing countries’ own restrictions on the use of force. ‘There is a persistent pattern of peace-keeping operations not intervening with force when civilians are under attack’, the report by the Office of Internal Oversight Services said. ‘Peace-keepers are absent from many locations when civilians come under attack, and when they are present, are unable or unwilling to prevent serious physical harm from being inflicted’. ‘Force was mostly likely to be used to protect civilians when troops were engaged in self-defense or defense of U.N. personnel and property’. 2 un Doc. S/1998/318 and S/1998/883 (1998).

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Security Council adopted a Presidential statement that expressed the Security Council’s readiness to respond to situations in which combatants had targeted civilians.3 Putting theory into practice, the Secretary-General issued a report4 seven months later, which contained forty recommendations for the Security Council’s future work, subsequently followed up days later by the Security Council’s first resolution on the protection of civilians.5 Resolution 1265 marked the Security Council’s first clear effort to mandate peace-keeping missions to protect civilians by providing support to national authorities to fulfil their international legal responsibilities in the protection of civilians in armed conflict.6 In it, the Security Council noted ‘that civilians account for the vast majority of casualties in armed conflict and are increasingly targeted by combatants and armed elements’.7 It also stated its ‘willingness to respond to situations of armed conflict where civilians are being targeted or humanitarian assistance to civilians is being deliberately obstructed, including through the consideration of appropriate measures at the Security Council’s disposal in accordance with the Charter of the United Nations’—an explicit indication of the willingness to use force when necessary. Stressing the need to ensure compliance with international humanitarian law, the resolution called for addressing impunity and improving access and safety of humanitarian personnel. 3  un Doc. S/PRST/1999/6 (1999). 4  un Doc. (S/1999/957) (1999). 5  un Doc. S/RES/1265 (1999). For additional examples of Security Council Resolutions focusing on civilian protection, see also S/RES/1820 (2008), S/RES/1882 (2009), S/RES/1888 (2009), S/ RES/1889 (2009) and S/RES/1894 (2009). 6 The legal basis for the protection of civilians is set out in a number of international legal instruments that pertain to international humanitarian law, human rights, and refugee law. They include: the Geneva Conventions of 12 August 1949, in particular the Fourth Convention, and their 1977 Additional Protocol I relating to the Protection of Victims of International Armed Conflicts and Additional Protocol II relating to the Protection of Victims of NonInternational Armed Conflicts; the 1948 Universal Declaration of Human Rights; the 1966 International Covenant on Economic, Social and Cultural Rights and the 1966 International Covenant on Civil and Political Rights; the 1951 Convention Relating to the Status of Refugees and its 1967 Optional Protocol; the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the 1989 Convention on the Rights of the Child and its Optional Protocols on the involvement of children in armed conflict and on the sale of children, child prostitution and child pornography; the 1994 Convention on the Safety of un and Associated Personnel and its 2005 Optional Protocol; the 1998 Rome Statute of the icc; and customary international humanitarian law. 7  un Doc. S/RES/1265 (1999), at 1.

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In its first dedicated resolution on the protection of civilians, resolution 1265 treated harm to civilians as a threat to international peace and security. Additionally, the un published the Report of the Panel on United Nations Peace Operations, known more widely as the Brahimi Report, on 21 August 2000, which emphasised the need for the United Nations to respond when civilians are under attack.8 Further strengthening its hand, in the Security Council’s Presidential Statement of 15 March 2002, it endorsed a proposed aide-memoire by the Secretary-General as a framework to assist the Security Council in its consideration of issues surrounding the protection of civilians, including relating to peace-keeping mandates.9 The Security Council has since received several thematic reports on civilian protection from the un SecretaryGeneral, and has regularly followed Resolution 1265 with additional resolutions on civilian protection. In this chapter, I discuss the un’s efforts to protect civilians in Afghanistan. The United Nations Assistance Mission in Afghanistan (unama) was not given the authority or capacity to use force as part of its mission. Instead, it was mandated by the Security Council to work in concert with the International Security Assistance Forces (isaf) whose mission was to defeat the Taliban, Al-Qaida, and other insurgent groups, and to assist the Afghan government in providing security. As a result, unama did not have the lead operational role in protecting civilians, but it positioned itself as the most principled voice on the ground and as the only entity present charged with the ability to ‘co-ordinate efforts to ensure [civilians] protection’.10 The un mission used its mandate to influence the conduct of all combatants, despite their competing aims. Ultimately, unama’s monitoring and reporting of the harm to civilians during the conflict in Afghanistan has had a profound impact on policies of all parties with respect to protecting non-combatants. However, persistent insecurity and instability experienced by most Afghan civilians throughout the conflict raises serious questions as to how negative civilian perceptions of the conflict came at a cost to unama’s legitimacy and ultimately its ability to perform its mandate. 8 9  10

un Doc.,‘Report of the Panel on United Nations Peace Operations’, A/55/305-S/2000/809 (2000), para. 62, at 11. un Doc. S/PRST/2002/6 (2002). The most recent aide-mémoire adopted by the Security Council on 12 February 2014. un Doc. S/PRST/2014/3 (2014). un Doc. S/RES/2096 (2013) mandates unama to ‘monitor the situation of civilians, to co-ordinate efforts to ensure their protection, to promote accountability, and to assist in the full implementation of the fundamental freedoms and human rights provisions of the Afghan Constitution and international treaties to which Afghanistan is a State party, in particular those regarding the full enjoyment by women of their human rights’.

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2 From International Law to Implementation: Contrasting unama and isaf’s Efforts to Protect Civilians The Taliban emerged from northern Pakistan following the chaotic withdrawal from Afghanistan of the Soviet Union’s troops in 1989. In rapid progression the Taliban extended their reach from their traditional Pashtun base in southwest Afghanistan to the entirety of the country, and Kabul finally fell in September 1996. Even though the Taliban lacked recognition as a legitimate government outside of Pakistan, Saudi Arabia, and the United Arab Emirates, the Taliban maintained control over Afghanistan until their defeat by the us-led coalition under Operation Enduring Freedom (oef) in October 2001. Crushed but not completely destroyed, the Taliban and other armed opposition groups have waged an insurgency, which has continued to grow in strength since their ouster in 2001. Their ultimate objective is to regain power, re-establish their own form of governance in Afghanistan, and acquire international recognition. 2.1 Foreign Forces in Afghanistan In response to the attacks on 9/11, the us, along with others, commenced oef in Afghanistan on 7 October 2001. Following the removal of the Taliban government shortly thereafter and upon the request of the Afghan Transitional Authority created post-Bonn Conference, isaf was established under un Security Council resolution 1386 on 20 December 2001.11 isaf’s original mandate was limited to the provision of security in and around Kabul, on behalf of the Afghan Transitional Authority under Chapter VII of the un Charter.12 isaf’s operating environment quickly expanded to include the entire territory of Afghanistan under un Security Council Resolution 1510.13 11

un Doc. S/RES/1386 (2001). isaf is a un-mandated, North Atlantic Treaty Organization (nato)-led international military force operating in Afghanistan while the United States military continues to conduct separate military operations from nato as part of Operation Enduring Freedom in other parts of Afghanistan. 12  Chapter VII of the un Charter mandates the Security Council to determine the existence of any threat to peace and to decide whether to take corresponding action against such a threat. As of October 2014, 48 nations are contributing troops to the mission, including 20 non-nato partner nations from around the globe, and 28 nato allies. 13 un Doc. S/RES/1510 (2003). isaf was ‘to support the Afghan Transitional Authority and its successors in the maintenance of security in areas of Afghanistan outside of Kabul and its environs, so that the Afghan Authorities as well as the personnel of the United Nations and other international civilian personnel engaged, in particular, in reconstruction and humanitarian efforts, can operate in a secure environment, and to provide security assistance for the performance of other tasks in support of the Bonn Agreement’.

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Since August 2003, nato assumed command of isaf, including the establishment of a force commander and headquarters. isaf’s original mandate, which focused on assisting the Afghan government ‘in the maintenance of security in Kabul and its surrounding areas’ was later expanded to also support the reconstruction effort, promote good governance efforts, and assist in counter-narcotic efforts.14 It was also tasked with creating professional Afghan security forces. The transition to Afghan full security responsibility, marking the end of isaf’s official mission, was set for the end of 2014. 2.2 un Presence in Afghanistan After the occupation of Afghanistan and establishment of the Afghan Transitional Authority (ata) by loya jirga in June 2002 as the interim sovereign authority, the Security Council established unama upon the request of the Afghan government, ‘to assist the government and the people of Afghanistan in laying the foundations for sustainable peace and development in the country’.15 unama’s foundational history coincided with the Taliban’s ejection by coalition forces from its south-eastern stronghold in Afghanistan, namely the Taliban’s spiritual birthplace, Kandahar. Despite the heavy loss, the Taliban regrouped in various places in Afghanistan and Pakistan and began its insurgency, which persists today. This insurgency found support in Afghanistan’s Pashtun tribal areas, support which proliferated under a convergence of events, including an increasing number of civilian casualties caused by isaf airstrikes and a loss of livelihood in rural Afghanistan due to the government’s prohibition on poppy cultivation. Over the course of 2002 and 2003, a buildup of coalition forces continued with the Security Council’s expansion of isaf’s mandate to cover not only the provision of security to Kabul and its surrounding areas but to the whole of Afghanistan.16 A second loya jirga was held on 14 December 2003 to approve a draft constitution, to which unama provided technical assistance to the ata’s Constitutional Drafting Commission.17 The new constitution was ratified in early January 2004 after a controversial consultative process.18 Elections were held in October 2004 with Hamid Karzai officially declared President in early November. Meanwhile the insurgency continued 14  un Doc. S/RES/1386 (2001). 15 United Nations Assistance Mission to Afghanistan, ‘Report of the Secretary-General on the Situation in Afghanistan and its implications for international peace and security’, un Doc. S/2002/278 (2002), at 2. 16  un Doc. S/RES/1510 (2003), at op 1. 17  A. Thier, ‘The Making of a Constitution in Afghanistan’, 51 nylslr (2006–2007), at 567. 18  Ibid., at 569–70.

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unabated, with the West devoting much of its attention to the war in Iraq. The Taliban increased its use of harsher tactics such as suicide bombings and the use of improvised explosive devices (ieds) during this period.19 Major isaf operations continued in Taliban strongholds to no avail with a massive surge in anti-government elements-led attacks.20 The us officially transitioned the majority of its own counterinsurgency campaign during Operation Enduring Freedom to nato’s isaf in 2006. In 2007, unama officials became increasingly concerned about the extent of civilian casualties. In part, the concerns were triggered by a significant rise in isaf airstrikes in 2007 (typically resulting in deaths of civilians and alleged combatants in the same attack) and by an escalation in Taliban operations. International human rights groups and the Afghan government joined voices over the surge in deaths that year. That same year, unama began reporting on its work monitoring violations of international humanitarian and human rights law (ihl) on civilians in armed conflict from both sides of the conflict: ‘pro-government forces’, consisting of the Afghan National Security Forces and the International Security Assistance Force (isaf), mainly under the command of nato; as well as violations of international humanitarian law (ihl) by ‘anti-government elements’ largely made up of the Taliban but involving other non-state groups acting in opposition to the Afghan government such as the Haqqani Network, Hezb-e-Islami and Islamic Movement of Uzbekistan, among others. As part of its monitoring and reporting work, unama upgraded its capabilities through the establishment of a dedicated electronic Civilian Causality Database in 2009 which enabled it to disaggregate data from reports collected from across Afghanistan by gender, age, perpetrator, and method, among other characteristics.21 Despite its extensive efforts to monitor and report civilian casualties, a major challenge the un faces in protecting civilians in Afghanistan is that, unlike other missions such as the United Nations Organization Stabilization Mission in the Democratic Republic of Congo (monusco), its mission on the ground is not mandated to operate traditional blue-helmeted peace-keepers 19

A. Rashid, Descent Into Chaos: The us and the Disaster in Pakistan, Afghanistan and Central Asia (2008), 366–7. In 2004, six suicide bombings were conducted; in 2005 there were 21; and by 2006 there were 141 suicide attacks. ieds almost tripled from 2005 to 2006, from 530 ied bombings in 2005 to 1,297 in 2006. 20  S. Jones, Counterinsurgency in Afghanistan, rand Counterinsurgency Study (2008), Vol. 4, at 48. 21 unama releases biannual and annual reports on the protection of civilians pursuant to its mandate under various United Nations Security Council Resolutions, including its most recent mandate under un Doc. S/RES/2145 (2014).

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with a command and control structure under the auspices of the Security Council. unama cannot enforce its protection mandate by aiming to prevent large-scale conflict-related harm to individuals in the mission area. In the case of Afghanistan, although both isaf and unama are mandated to work together and to report to the Security Council, unama has no authority or capacity to use force to protect civilians; rather, it operates alongside isaf in order to ensure that it complies with its obligations to secure Afghan civilians. While no command relationship exists between isaf and unama due to separate command structures and mandates, they have established liaison and co-ordination mechanisms through which discussions are conducted on a regular basis. This lack of direct control over isaf requires unama to utilise other entry points to assure that the protection of non-combatants is at the forefront of the international military’s work on the ground. In comparison, the United Nations Assistance Mission for Iraq (unami), also a special political mission, operated alongside coalition forces for a period, but coalition forces did not operate under a Security Council mandate, and there was much less co-ordination between the two entities. unama’s data on civilian casualties collected since 2007 shows an overall marked increase in the numbers of civilian casualties. In 2007, 1,523 civilians were killed, of which 700 were attributed to anti-government elements. In 2008, the figures rose to 2,118, an increase of almost 40 percent, of which 1,160 were attributed to anti-government elements. In 2009, the number of civilian casualties rose again to 2,412: a 14 percent rise from 2008. Sixty-seven percent of the deaths were attributed to the anti-government elements. In 2010, 2,790 civilian deaths were recorded by unama, a 15 percent rise from 2009, with 75 percent of deaths caused by anti-government elements. In line with the previous four years, 2011 witnessed an eight percent rise in the figures, with 3,021 civilians killed. Similar to previous years, anti-government elements were responsible for the vast majority of deaths, 77 percent. In what would turn out to be an anomaly in the trends in rising figures, unama recorded 2,754 Afghan civilians killed in 2012, a decrease of 12 percent compared with 2011. Eighty-one percent of these deaths were attributed to anti-government elements, a nine percent increase from 2011. The aberration of declining civilian casualties’ figures in 2012 was reversed in 2013; the numbers rising by 14 percent.22 According to unama’s 2013 annual report on the protection of civilians, the figures rose again to approach the record highs of 22  S. Ackerman, ‘Afghanistan Gets Safer for Civilians as unama Warns Taliban of ‘War Crimes’, Wired Magazine, 19 February 2013, available at www.wired.com/2013/02/afghanistan -civilians/ (last accessed September 2014).

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2011. Almost 3,000 civilians were killed, of whom almost half were women and children.23 This amounts to over 700 civilians killed or injured every month, and some 10,000 displaced. From a civilian perspective, 2013 was the most violent year since unama started reporting; civilian deaths were slightly reduced from the previous zenith of 2011, but combined deaths and injuries were significantly higher (8,615 in 2013 as compared to 7,839 in 2011). The 2013 unama report lamented that the nature of the conflict was shifting into civilian-populated areas to which it attributed the higher number of civilian casualties in 2013.24 The latest report from unama (2014 mid-year) already indicates 2014 will be another deadly year, with a 17 percent increase in the number of civilian deaths as compared to the same time period in 2013. One-thousand five hundred and sixty-four Afghans were killed in the first half of 2014, with 74 percent of the deaths attributed to the anti-government elements. The increase in civilian casualties affects the perceptions of unama’s effectiveness, and its legitimacy among civilian interlocutors will be explored below. With the drawdown of coalition forces in Afghanistan, the nature of the war has shifted to ground operations; accordingly, ieds are now the leading cause of civilian deaths.25 2.3 Conflicting Mandates: Counterinsurgency Doctrine as a Possible Means to Protect While unama has an explicit mandate to co-ordinate the protection of civilians, isaf’s mandate is less clear. isaf and Afghanistan’s own forces engaged in non-international armed conflict are bound by applicable customary and conventional international humanitarian and human rights law, which is reinforced in un Security Council Resolution 1746 (2007), which called for ‘full respect for human rights and international humanitarian law throughout Afghanistan’ and called upon ‘all parties to uphold international humanitarian and human rights law and to ensure the protection of civilian life’.26 Neither entity is explicitly mandated to co-operate with the other on the protection of 23

United Nations Assistance Mission to Afghanistan, ‘Annual report on Protection of Civilians in Armed Conflict 2013’, (February 2014), 2, available at http://unama.unmissions .org/Portals/UNAMA/human%20rights/Feb_8_2014_PoC-report_2013-Full-report-ENG .pdf (last accessed September 2014). 24  See ibid., at 6. 25  United Nations Assistance Mission to Afghanistan, ‘Mid-year report on Protection of Civilians in Armed Conflict 2014’, (July 2014), at 1, available at http://unama.unmissions .org/Portals/UNAMA/human%20rights/English%20edited%20light.pdf (last accessed September 2014). 26  S/RES/1746 (2007) at para. 25.

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civilians. Despite isaf and unama both having been conceived by the Security Council, the fundamental difference between the un and isaf regarding the protection of civilians is based on the lens through which each views this concept. isaf looks at protecting civilians purely from a use of force or operational lens, i.e., how the military can reduce/minimize civilian casualties while still performing its operations. isaf’s mission statement reads: In support of the Government of the Islamic Republic of Afghanistan, isaf conducts operations in Afghanistan to reduce the capability and will of the insurgency, support the growth in capacity and capability of the Afghan National Security Forces (ansf), and facilitate improvements in governance and socio-economic development in order to provide a secure environment for sustainable stability that is observable to the population.27 In contrast, the un takes a much broader approach; as its Security Council mandate under Resolution 2145 (2014) states, unama: Continue, with the support of the Office of the United Nations High Commissioner for Human Rights, to co-operate with and strengthen the capacity of the Afghanistan Independent Human Rights Commission (aihrc), to co-operate also with the Afghan Government and relevant international and local non-governmental organizations to monitor the situation of civilians, to co-ordinate efforts to ensure their protection, to promote accountability, and to assist in the full implementation of the fundamental freedoms and human rights provisions of the Afghan Constitution and international treaties to which Afghanistan is a State party.28 The protection of civilians from the un perspective is fundamental to its existence and its overarching goal, which is to reduce most threats to civilians, whereas isaf’s main objective is to protect civilians as a means to an end, i.e., to expand the influence and reach of the Afghan government. Efforts to assist the Afghan government faced increasing obstacles after 2007 when Afghanistan witnessed a significant rise in isaf casualties and a corresponding rise in civilian casualties.29 Taking into account the relative 27

See ‘About isaf’ section available at www.isaf.nato.int/mission.html (last accessed September 2014). 28  un Doc. S/RES/2145 (2014), at 28. 29  I. Livingston and M. O’Hanlon, ‘Afghanistan Index’, Brookings Institute, 30 September 2012, at 11, 15, available at http://www.brookings.edu/~/media/programs/foreign%20policy/ afghanistan%20index/index20120930.pdf (last accessed September 2014).

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success of the troop surge in Iraq, with the changeover in isaf leadership in 2009, the commanding authority of isaf decided that a population-centric counterinsurgency strategy (COIN) should also be scaled up and handed over from the us-led oef to nato-led isaf. Through the implementation of the COIN doctrine, isaf anticipated reducing domestic anger in Afghanistan over the rise in civilian casualties, which only served to create new insurgents. The COIN strategy and the protection of civilians, however, were often at odds with one another. General Stanley McChrystal’s initial assessment of the war in Afghanistan as the Commander of isaf, delivered on 30 August 2009, highlighted this when he reflected that isaf was, ‘pre-occupied with protection of our own forces… [which] distances us, physically and psychologically, from the people we seek to protect’.30 General McChrystal criticised the military strategy at the time, which entailed most units operating in large forward operating bases and traveling in armoured vehicles only during the daytime, effectively cutting them off from the population they were working to protect.31 These limitations, especially the inability to move at night, did not endear isaf to the Afghan population and arguably allowed for a larger space for the anti-government elements to operate within.32 The 2006 and 2013 modernised COIN strategies33 were essentially revised and updated from the us military’s Vietnam playbook. ISAF shifted strategy so that the traditional military objective of defeating the enemy included extensive military engagement with the Afghan population throughout its area of operations, emphasising the need to protect civilian populations, and to assist in the establishment of a credible and accountable government capable of delivering services. At its core, the us COIN strategy was meant to set the parameters for the military to win the ‘hearts and minds’ of the population in order to assist it in defeating the enemy. Ultimately, for military forces operating in Afghanistan after 2009, the notion of protecting civilians was one way to demonstrate credibility to the Afghan population in order to achieve its 30

S. McChrystal, ‘comisaf Initial Assessment (Unclassified)’, available at www.washing tonpost.com/wp-dyn/content/article/2009/09/21/AR2009092100110.html (last accessed September 2014). 31  Ibid. 32  R. Beljan, ‘What Lessons from isaf Operations can be Drawn for un pkos?’, March 2013, available at 31. http://cdn.peaceopstraining.org/theses/beljan.pdf (last accessed September 2014). 33 Department of the Army, ‘fm 3–24 Counterinsurgency’, December 2006, available at http:// armypubs.army.mil/doctrine/DR_pubs/dr_a/pdf/fm3_24.pdf (last accessed September 2014). Now revised as Joint Publication 3–24 ‘Counterinsurgency’, 22 November 2013, available at www.dtic.mil/doctrine/new_pubs/jp3_24.pdf (last accessed September 2014).

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overarching objective: routing out the Taliban in order to extend the hand of government and achieve its objectives outlined above. COIN strategy had the consequence of putting isaf, us, and Afghan forces in more direct contact with the civilian population, which led to greater incidents of civilian harm and ultimately undermined the effectiveness of the strategy. In an attempt to support the Afghan government’s provision of security, General McChrystal launched in early 2010 an experimental initiative known as Village Stability Operations (vsos), which engaged small units of U.S. Special Operations Forces in rural areas to build stability and governance mechanisms at the village or district level. The main thrust of the vsos was that the Special Operations Forces would be living among the population, building up local defence and would therefore have a much higher degree of interaction with the local population in order to gain a greater understanding of the population’s vulnerabilities. This was mostly done through the establishment and training of the Afghan Local Police (alp), considered armed militias by some, who support community watch programs and work with the Special Operations Forces on local defence in order to create stable districts. This COIN tactic made full use of the Shape-Clear-Hold-Build strategy.34 However, unama found that the level of alp-perpetrated human rights violations and predatory behaviour (including 121 civilian casualties attributed to the alp) almost tripled in 2013 from 2012, seemingly undermining the underlying ‘hearts and minds’ strategy of COIN.35 isaf targeting rules also undermine its effectiveness. In late May 2010, us forces released an investigative report, which reviewed the 21 February 2010 incident in Uruzgan province wherein 23 Afghans were reportedly killed by a us airstrike. The report stated that ‘throughout the encounter, all parties involved assumed that all adult males were legitimate targets and even teenagers old enough to fight were legitimate targets’. This assumed combatant status for men based on their age alone is in apparent contravention of international humanitarian law (ihl), which requires combatants to distinguish between combatants and civilians. Under ihl, parties to a conflict generally have to take all feasible precautions not to kill civilians. Tactics such as these may not only violate ihl but also create fear in the population, ostensibly contradicting 34

President Karzai officially authorised the use of alp under the Afghan Ministry of Interior in August 2010, and the estimated 27,000 troops operate independently of the regular police. M. Stancati, ‘Without Aid, Afghan Police Pose New Security Risk’, Wall Street Journal, 25 March 2014, available at http://online.wsj.com/news/articles/SB200014240527 02304679404579459270523670760 (last accessed September 2014). 35  See United Nations Annual Report 2013, supra note 23, at 9.

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COIN doctrine, which holds that the more civilians feel protected, the higher the credibility of the force, which in turn, reinforces legitimacy. Legitimacy for both isaf and the Afghan National Security Forces (ansf)36 is predicated on being viewed positively by the population at large.37 Noting that it implied every adult male was a combatant in a country where 28 percent of the population fit this criterion, General Stanley McChrystal prohibited the use of the term ‘military-age male’.38 2.4 Conflicting Metrics: Definitional and Reporting Variances between the Warring Parties and unama Accountability for protection of civilians is complicated by the fact that the un, isaf, and Taliban define the term ‘civilian’ differently. The Taliban and the United Nations remain at odds over the definition of the term ‘civilian’ which is reflected somewhat in the Taliban’s higher figures of those it justifies as acceptable targets. The Taliban have defined civilians as ‘those who are in no way involved in fighting: the white bearded people, women, children and common people who live an ordinary life’.39 In their most recent statement regarding their 2014 spring offensive, the Taliban redefined their targets as ‘the foreign invaders and their backers under various names like spies, military and civilian contractors and everyone working for them like translators, administrators and logistics personnel’.40 While the Taliban do not explicitly mention the un as a target, based on this definition and past incidents where the Taliban claimed responsibility for attacks on un facilities and guesthouses, the un 36  ansf is a broad term encompassing the Afghan Border Police (abp), Afghan National Army (ana), Afghan National Police (anp), and the National Directorate of Security. 37 A. Beadle, ‘Protection of Civilians in Theory- a Comparison of un and nato Approaches’, Norwegian Defense Research Establishment, 15 December 2010, at 10, available at www.ffi .no/no/Rapporter/10-02453.pdf (last accessed September 2014). 38  N. Turse, ‘Lethal Profiling of Afghan Men’, The Nation, 19 September 2013, available at www.theinvestigativefund.org/investigations/iraqafghanistan/1843/lethal_profiling_of _afghan_men/?page = entire (last accessed September 2014). 39 Taliban Statement, ‘Rejoinder of the Islamic Emirate about the recent report of unama regarding the civilian casualties’, (31 July 2013), available at http://www.shahamat-english. com/index.php/paighamoona/34995-rejoinder-of-the-islamic-emirate-about-the-recent -report-of-unama-regarding-the-civilian-casualties (last accessed September 2014). 40 Taliban Statement, ‘Statement of Leadership Council of Islamic Emirate regarding the commencement of the annual spring operation named “Khaibar”’, (8 May 2014), available at http://shahamat-english.com/index.php/paighamoona/44468-statement-of-leadership -council-of-islamic-emirate-regarding-the-commencement-of-the-annual-spring -operation -named-%E2%80%98khaibar%E2%80%99 (last accessed September 2014).

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would seem to fall within the Taliban’s accepted criteria for targeting. Those that fall outside this definition include government workers, religious leaders, elected officials, and non-governmental organisation (ngo) workers who have ties to the Afghan government. In contrast, the definition of a civilian according to unama is: All persons who are not members of military/paramilitary forces or members of organized armed groups who have a continuous combat function, of a party to a conflict…. Persons who are not or no longer taking part in hostilities are protected and must not be attacked.41 unama and isaf use different definitions for civilian casualties, especially regarding the way they categorise who is a civilian and who caused injury or death to them. Both organisations differ on how civilian casualty events and numbers are confirmed. isaf has stated in the past that it includes only Afghan civilians in its statistics and does not include all non-combatants (armed and unarmed internationals, unarmed Afghans such as interpreters, and international civilians such as tourists).42 isaf’s statistics include all civilian casualties identified as isaf-caused and ansf-caused civilian casualties when an ansf unit is partnered with isaf. Additional ansf-caused civilian casualties not directly reported to isaf are excluded from isaf’s figures. In contrast, unama tracks and includes in its statistics civilian deaths and injuries resulting from the operations of isaf, ansf, and Anti-Government Elements. Discrepancies in the reported figures between isaf and unama in terms of numbers of civilians killed and injured in the conflict arise from the use of different methodologies, different levels of access to actual incidents, and different geographical coverage of the country. isaf attributes the variations in its numbers as compared to unama’s to its lack of monitoring Afghan National Security Forces (ansf)-attributed civilian casualties, and only reporting on civilian casualties caused by anti-government elements based on what it actually observed or on reports that can be confirmed by isaf. These discrepancies have led to major gaps in unama and isaf’s accounting of civilian casualties.

41  Ibid., at xv. 42 United Nations Assistance Mission to Afghanistan, ‘Annual report on Protection of Civilians in Armed Conflict 2011’, (2011), ii, available at http://unama.unmissions.org/ Portals/UNAMA/Documents/UNAMA%20POC%202011%20Report_Final_Feb%202012 .pdf (last accessed September 2014).

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3 Influence of unama’s Protection of Civilians Reporting on Both Sides of the Conflict 3.1 Concessions Made by isaf/nato to Reduce Civilian Casualties It is difficult to be certain of a causal link between unama’s reporting on civilian casualties and the mitigating measures taken by isaf to reduce civilian casualties. However some evidence suggests such a connection. For example, isaf now almost immediately responds publicly to unama’s mid-year and annual Protection of Civilians reports, indicating the level of seriousness with which the international coalition takes the report’s data and conclusions. In its most recent statement praising the 2013 United Nations report, isaf added that its ‘training mission includes instilling a culture of civilian casualty reduction within Afghan security ministries’.43 As a rejoinder to some of unama’s criticisms towards isaf vis-à-vis fears that the 2014 isaf drawdown will leave the onus on an unprepared ansf to reduce civilian casualties, isaf reported that it had trained 7,500 Afghan security personnel since 2012 in detecting and counteracting ieds, which, as in previous years, remain the single largest killer of civilians, according to the United Nations. By unama and isaf’s accounting, isaf has made gains in reducing civilian casualties and improving its response to civilian harm in recent years. Positive steps included developing tactical guidance to prevent civilian casualties; creating protocols to investigate and a formal unit to monitor civilian harm caused by its forces; and, at times offering monetary payments to civilians harmed by international forces to help them cope with losses. Yet it is equally important to record the shortcomings of these directives and guidance as well as the limits of unama’s ability to ‘manage’ the conflict. Not all of these efforts by isaf were done in response to unama’s recommendations: some of the directives outlined below resulted in little actual net gain on the ground. In August 2008, isaf created a Civilian Casualty Tracking Cell (cctc) to monitor and analyse trends in civilian casualties, develop lessons learned, and encourage accountability mechanisms for incidents cause by international forces. However, isaf faced a number of challenges in accomplishing these considerable tasks, namely insufficient resources.44 isaf upgraded this system 43  isaf statement, ‘isaf welcomes unama Protection of Civilians in Armed Conflict Report’, (8 February 2014), available at http://www.isaf.nato.int/article/isaf-news/isaf-welcomes -unama-protection-of-civilians-in-armed-conflict-report.html (last accessed September 2014). 44 Center for Civilians in Conflict, ‘Caring for their Own: A Stronger Afghan Response to Civilian Harm’, 27 January 2013, 8, available at http://civiliansinconflict.org/uploads/files/ publications/Afghan_Report_2013_smaller_final.pdf (last accessed September 2014).

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in 2009, renaming it the isaf civcas Data Tracker database, and began systematically tracking civilian deaths by incident type, such as airstrikes or assassinations. isaf’s database is comprised of self-reported figures from combat units on the ground, calling into question the methodology and accuracy of their figures.45 After Wikileaks released classified field reports from Afghanistan in 2010, isaf agreed to provide access to their civcas database to the journal Science in the beginning of 2011. isaf disaggregates its data in a comparable manner to unama, by timing, method, and perpetrator. Upon learning that isaf was making public the content of its database, unama agreed to do the same.46 The contrast in the figures was stark; isaf reported half the number of non-combatant deaths as unama. unama’s figures included almost 400 civilian deaths from airstrikes, which isaf did not include.47 As noted above, isaf explained that it only records deaths based on eyewitness testimony, whereas unama, which in 2010 had a larger field presence throughout the country, included casualty figures that it could not witness firsthand in its reporting but incorporated the figures where it could corroborate the information through multiple, credible sources.48 The other main disparity in approach in reporting is that unama views its mandate as creating a definitive record, whereas isaf, under the COIN strategy, has an interest ensuring that it is viewed as a trusted partner assisting in securing Afghanistan. As a result, some have accused isaf of manipulating its data collection to note lower rates of Afghan civilians killed.49 In March 2013 isaf declared that it was no longer recording the numbers of insurgent-led attacks due to concerns over its ability to reliably track

45  R. Chaudhuri and T. Farrell, ‘Campaign Disconnect: Operational Progress and Strategic Obstacles in Afghanistan’, 2009–2011, International Affairs, (2011), 275’ available at www .chathamhouse.org/sites/files/chathamhouse/public/International%20Affairs/ 2011/87_2chaudhuri_farrell.pdf (last accessed September 2014). 46 J. Bohannon, ‘Counting the Dead in Afghanistan’, Science, Vol. 331, No. 6022, 11 March 2011, available at www.sciencemag.org/content/331/6022/1256.full?sid=28ffa02e-235b-47f7-a689e23c9c756dfc (last accessed September 2014). 47  Ibid. 48 ‘An isaf commander explained the organization cannot access all provinces, and its assessments are sometimes carried out from the air. “We only count that which we see. You can do a tremendous amount of forensics… [but] seldom do we see the actual bodies.”’ A. Ross, ‘Don’t ask Who’s Being Killed by Drone in Afghanistan’, Vice News, 24, July 2014 , available at https://news.vice.com/article/dont-ask-whos-being-killed-by-drones-inafghanistan (last accessed September 2014). 49  Ibid. In 2010, unama had eight regional offices and 23 provincial offices, covering 31 out of the 34 provinces in the country. isaf installations covered 24 provinces.

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such data, likely a result of transitioning the lead in operations to Afghan National Security Forces.50 One area of major difference in reporting is on the numbers of deaths as a result of airstrikes. Both un and isaf data showed a drop in deaths due to airstrikes in 2013 as compared to 2012, by 80 percent and 10 percent, respectively.51 However both agreed overall that the rate had declined. Regardless of the sizeable difference in the figures between unama and isaf, the trend analysis points mainly in the same direction. Both isaf and unama concluded that the war has grown deadlier for Afghan civilians in 2013, up to 7 percent more civilians were killed in 2013 compared with the year before.52 For both organisations, the majority of deaths and their increase were attributed to attacks by the anti-government elements. isaf claimed that the decline in civilian casualties was a result of tight enforcement of its rules of engagement and its use of an after-action review mechanism called the ‘Civilian Casualty Avoidance and Mitigation Board’.53 However, others have pointed out that isaf’s civcas data did not include the deaths of civilians caused by air operations.54 Yet, while isaf has become better about acknowledging and responding to the civilian harm it causes, its civilian casualty mitigation processes still lack transparency. As unama noted in August 2012, ‘public release of investigation findings would promote transparency, accountability, and better relations with affected Afghan civilians’. isaf’s lack of transparency on civilian causalities contradicts General Petraeus’ directive to be ‘first with the truth’.55 While not directly adhering to unama’s recommendation to be more open with its efforts and reporting, in July 2011, isaf established a Civilian Casualty Mitigation Team (ccmt) ‘to provide oversight and direction for the Civilian Casualties Tracking Cell’. The ccmt manages four internal working groups, including a 50

R. Burns, ‘Taliban Attacks Trends: Never Mind’, Associated Press, 5 March 2013, available at http://bigstory.ap.org/article/coalition-will-no-longer-publish-attack-fig ures (last accessed September 2014). 51  The unama 2013 report illustrates that isaf increased its use of drone attacks, and tripled the amount of deaths they caused, in Afghanistan since 2012. 52  See United Nations Annual Report Report 2013, supra note 23, at 1. 53 See Bohannon, supra note 46. As an example, isaf reviewed data of civilian deaths at checkpoints and implemented a directive which gave more options for soldiers at checkpoints to warn drivers. According to isaf data, this new directive resulted in a 50 percent decrease in the first eight months of its issuance. 54  N. Crawford, Accountability for Killing: Moral Responsibility for Collateral Damage in America’s Post-9/11 Wars (2013), at 105. 55 International Security Assistance Force (isaf), ‘Civilian Casualty (civcas) Standard Operating Procedure’, 23 February 2011; as referred to in Bohannon, supra note 46, at 1256.

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monthly working group meeting with unama and Afghan civil society organisations that analyse civilian casualty trends and identify best practices for reducing civilian harm. isaf claimed its efforts to implement new measures to improve its efforts at mitigating civilian harm led to a significant reduction in civilian casualties caused by international forces.56 Here again, it is difficult to directly attribute the ccmt to unama’s reporting but it is clear that the influence of unama’s credibly viewed public reports warranted a new isaf mechanism to reduce civilian casualties. Another area where isaf took on board unama recommendations from its annual reports includes training by the Afghan Independent Human Rights Commission for all incoming Afghan Local Police (alp)’ on human rights.57 isaf created an alp monitoring list in the fall of 2013 to monitor which districts are experiencing human rights violations, corruption, and weak leadership as a result of alp presence. Similarly, unama’s report in 2013 raised concerns over unexploded explosive remnants of war resulting from both aerial and ground operations. Since the report, isaf has taken concrete steps to address these issues,58 which include a comisaf-issued directive to report the location of all munitions disposal areas after unama and the Mine Action Co-ordination Centre of Afghanistan (MACCA) met with them.59 isaf also established some progress in establishing a procedural framework to minimize unexploded ordinance.60 unama reported in 2013 on a 63 percent increase in civilian casualties caused by explosive remnants of war, compared to 2012, with 10 out of 163 incidents attributable to isaf.61 Despite being liable for a relatively small number of these incidents, in December 2013, the Commander of isaf (comisaf) issued guidance to its troops to clear their bases of explosive remnants of war. Regular interaction between the un and isaf also helped facilitate policymaking for isaf on a number of protection concerns, including compensation for civilian deaths incurred during military operations as well as shaping tactical directives on minimizing civilian casualties.62 Other directives that were likely 56  57  58  59  60  61  62

See Center for Civilians in Conflict report, supra note 44, at 8. See United Nations Annual Report 2013, supra note 23, at 55. Ibid., at 65–66. Ibid., at 67. Ibid., at 68. Ibid., at 11. V. Metcalfe, ‘Protecting Civilians? The Interaction between International Military and Humanitarian Actors’, Humanitarian Policy Group Working Paper (August 2012), at 5, available at http://www.odi.org.uk/sites/odi.org.uk/files/odi-assets/publications-opinion-files/ 7768.pdf (last accessed September 2014).

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influenced by un pressure include a July 2009 tactical directive that restricted the use of force in populated areas. Directives like these were a major factor in reducing the total number of recorded civilian deaths attributed to pro-government forces in 2009 by 28 percent as compared to the year prior.63 This directive also restricted close-air support, revised the rules on searches in Afghan homes, and made further efforts towards protecting Afghan cultural and religious sensitivities. comisaf Stanley McChrystal acknowledged, ‘Like any insurgency, there is a struggle for support and will of the population…gaining and maintaining that support must be our overriding operational imperative—and the ultimate objective of every action we take’.64 In subsequent years and with increasing un attention and reporting, isaf commanders issued tactical directives restricting the airstrikes that were causing the bulk of civilian harm by international forces.65 In 2010 and 2011, isaf also issued a number of tactical directives focused on minimizing civilian harm during night raids and attempted to address complaints raised by communities on this issue. In February 2012, isaf adopted a new directive that strengthened procedures for preventing and responding to civilian harm caused by its forces. The tactical guidance reinforces the COIN doctrine that isaf and Afghan forces may win tactical victories against the Taliban, but lose the war. As comisaf McChrystal stated, ‘[W]e must avoid the trap of winning tactical victories—but suffering strategic defeats—by causing civilian casualties or excessive damage and thus alienating the people’.66 3.1.1 Falling Outside the Box: Special Operations Forces and Their Relationship with isaf In September 2008, isaf issued a tactical directive that limited the use of airstrikes in particular circumstances in order to minimize risk to civilians, likely as a result of unama’s reporting influence.67 Subsequent tactical directives and the revised 2009 counter-insurgency doctrine, enunciated by General Stanley McChrystal, then overall commander of isaf, reinforced the 63  K. Boon et al., Terrorism: Commentary on Security Documents: Al Qaeda, The Taliban and Conflict in Afghanistan (2011), at 201. 64 J. Garamone, ‘Directives Re-emphasize Protecting Afghan Civilians’, American Forces Press Service, 9 July 2009, available at http://www.defense.gov/news/newsarticle .aspx?id=55023 (last accessed September 2014). 65  J. Beswick and E. Minor, ‘The un and Casualty Recording: Good Practice and the Need for Action’, Oxford Research Group, April 2014, 21, available at http://oxfordresearchgroup.org .uk/sites/default/files/ORG%20UN%20and%20CR_0.pdf (last accessed September 2014). 66 L. Gah, ‘Into Taliban Country’, The Economist, 9 July 2009, available at http://www.economist .com/node/13998770 (last accessed September 2014). 67  See Beswick and Minor, supra note 65.

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importance of prioritising the protection of civilians. At the same time, however, Special Operations Forces’ operations increased significantly in 2010. Confusingly, their chain of command up until July 2012 was not under the aegis of the isaf Commander, nor did they only conduct counter-insurgency activities; rather, Special Operations Forces units tended to and continue to operate reconnaissance and counter-terrorism efforts, including controversial nighttime search and seizure operations. The opaque nature of the Special Operations Forces operations in Afghanistan prevents analysis and raises questions of accountability.68 However, in July 2012, the nato Special Operations Component Command-Afghanistan (nsocc-A) was created, which placed all Special Operations Forces under the command of comisaf. isaf and the us military have made great strides in revising their rules of engagement and issuing directives, especially for the use of airstrikes, which are now mainly used only when there is a need to defend troops facing imminent danger on the ground.69 The pressure on the coalition forces resulted in a number of these types of changes when the connection between higher rates of civilian casualties and the damage to their credibility was made. However, it remains to be seen whether the us Special Operations Forces and non-military agencies such as the cia who do not fall under the ambit of isaf are operating under the same strict rules of engagement and procedures for accountability regarding the use of lethal force in aerial operations.70 It should also be kept in mind that, 68

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N. Niland, ‘Civilian Casualties in Afghanistan: Evidence-based Advocacy and Enhanced Protection’, Humanitarian Exchange Magazine, Issue 49 (February 2011), available at http:// www.odihpn.org/humanitarian-exchange-magazine/issue-49/civilian-casualties-in-afghanistan -evidence-based-advocacy-and-enhanced-protection (last accessed September 2014). ‘Unclassified Tactical Directive’, NATO/ISAF, 7 July 2009, available at http://www.nato.int/ isaf/docu/official_texts/Tactical_Directive_090706.pdf0706.pdf (last accessed September 2014). See also ‘Unclassified Tactical Directive’, 4 August 2010, available at http://www.isaf .nato.int/article/isaf-releases/general-petraeus-issues-updated-tactical-directive-emphasizes -disciplined-use-of-force.html (last accessed September 2014); and also ‘comisaf’s Tactical Directive’, isaf. 30 November 2011, available at http://www.isaf.nato.int/images/ docs/20111105%20nuc%20tactical%20directive%20revision%204%20(releaseable%20 version)%20r.pdf (last accessed September 2014). See United Nations Annual Report 2013, supra note 23, at 48. The cia have been involved in hostilities in Afghanistan prior to the start of Operation Enduring Freedom in 2001. From its bases in Afghanistan, it has operated drone flights to Pakistan and armed militias inside Afghanistan itself; however, no external organisation or agency has access to the cia’s rules of engagement. Only the us Senate and Congressional Committees on Intelligence have some monitoring capabilities, making it difficult to exert external pressure on the Agency.

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after 2014, Special Forces are likely to be the main players left on the ground, and so concerns with the transparency of their operations may remain. Regardless, unama’s reporting and advocacy work with isaf have achieved major gains in terms of isaf’s tactical directives, which have potentially saved lives. 3.1.2 Reporting on the Protection of Civilians and Its Influence on the Afghan Government With isaf in the lead on most operations until 2012, the Afghan Government had little incentive to adopt measures to protect civilians. President Karzai’s lopsided and unfair accusations lobbed only at isaf for civilian casualties, despite direct evidence to the contrary, alleviated domestic pressure on both the Taliban and the ansf and reduced any compulsion by either to create strong modalities for mitigating civilian casualties. Recognition of the need to better protect its own people was made clear in May 2012 when, with the assistance of isaf, the Afghan government created the Civilian Casualties Tracking Team, which was established in the Presidential Information Co-ordination Centre. In October 2013 President Karzai emphasised its importance by appointing an advisor on the protection of civilians. These efforts clearly indicate that the Afghan government has internalised the need to reduce harm to civilians and manage the response to civilian casualties caused by the ansf, whose figures continue to increase as the ansf have been taking the lead in ground operations.71 However, infrequent reporting of civilian casualties by the ansf, poor access in territory controlled by armed groups, and the reluctance of some Afghan officials to acknowledge civilian harm caused by the ansf, all impede investigations. The existing tracking team only records reports of civilian casualties from government security bodies and does not receive external reports.72 While the tracking team is a positive step, it has not yet led to sufficient mitigation strategies or accountability for civilian casualties. The Afghan government will need to create an independent and effective mechanism for proactively monitoring and investigating civilian deaths and injuries and for providing full reparations before the end of 2014 when most foreign forces depart the country. As civilian casualties caused by pro-government forces increased 59 percent in 2012,73 unama recommended that the Afghan government’s cctt be strengthened and that it do more to limit civilian casualties at the hands of its soldiers and police, and to limit abuses within the security forces.74 While the 71  72  73  74 

See Center for Civilians in Conflict report, supra note 44, at 5. See United Nations Annual Report 2013, supra note 23, at 8. Ibid., at 45. Ibid., at 14.

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Afghan government has exerted great efforts to assist civilians harmed by combat, its ability to prevent the harm is less developed. With the 2014 transition rapidly approaching, effective mechanisms for addressing civilian harm are urgently needed. 3.2 un Attempts to Influence the Taliban/anti-government Elements In some ways, the Taliban is an entity more keen to publicly be seen as responsive to the population and its need for protection. Mullah Omar developed the first of the Taliban’s Codes of Conduct or Lahya in 2006, an unequivocal signal that the Taliban are aware of and concerned with its domestic reputation as a better alternative to formal Afghan leadership.75 Mullah Omar called on his fighters to avoid harming civilians and threatened retribution against commanders who failed to do so. The Taliban are not impervious to international censure. Subsequent to the release of unama’s mid-year report on civilian casualties in 2010, which laid blame for the majority of the higher rates of civilian casualties on the Taliban, the Taliban proposed to the United Nations that a joint commission be created to investigate civilian deaths. The Taliban claim that unama’s failure to respond to this initiative to in a timely fashion is evidence of its bias.76 The initiative called for the establishment of a body consisting of members from the Organisation of the Islamic Conference, un human rights investigators, nato, and the Taliban.77 The Taliban had previously proposed similar initiatives, 75

To date, there have been at least three editions of the Layha for the Mujahedeen. The first was published on 1 August 2006, the second was published on 9 May 2009, and the third and most recent edition was published on 29 May 2010. Each edition has increased in its number of rules of its fighters. The Taliban do not indicate a place of publication. For analysis of the Taliban code of conduct, see K. Clark, ‘Calling the Taliban to Account’, The AfPak Channel, 6 July 2011, available at http: //afpak.foreignpolicy.com/posts/2011/07/06/calling_the_taliban _to_account_0 (last accessed September 2014); see also M.Munir, ‘The Layha for the Mujahideen: An Analysis of the Code of Conduct for the Taliban Fighters under Islamic Law’, International Committee of the Red Cross, 93.881, March 2011, available at http://www .icrc.org/eng/assets/files/review/2011/irrc-881-munir.pdf (last accessed September 2014). 76  See Niland, supra note 68. 77  ‘The States committee should [be] given a free hand to survey the affected areas as well as people in order to collect the precise information and the facts and figures and disseminate its findings worldwide’, see J. Boone, ‘Taliban Call for Joint Inquiry into Civilian Afghan Deaths Considered: un and nato Cautiously Consider Proposal, Which Follows Reports of High Levels of Civilian Deaths Caused by Insurgents’, The Guardian, 16 August 2010, available at http://www.theguardian.com/world/2010/aug/16/taliban-afghan-civilian -deaths-nato-un (last accessed September 2014).

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pointing to its concern about its association with the growing number of warrelated deaths.78 Most recently, the Taliban leadership noted in a statement on their 2014 spring offensive that their operations would utilise, ‘such war techniques which shall inflict maximum losses on the invaders while preventing corporeal and financial losses on the ordinary civilians’.79 In the past, they also warned villagers to avoid certain areas due to planned fighting.80 The upsurge in so-called green-on-blue attacks, in which anti-government affiliated members of the ansf attack international military in Afghanistan, is likely a targeted approach by anti-government elements to both reduce civilian casualties and more easily take out the enemy, albeit on a small scale. Despite the Taliban’s attempts at improving its messaging in 2011 on the protection of civilians, there was not a corresponding decline of civilian causalities caused by the anti-government elements or an improved compliance with international law.81 They continued to target non-combatants and used pressure plated ieds which are often placed in heavily trafficked areas with little regard for potential civilian casualties. However, there were some small signs of improvement in Taliban tactics in 2012: the number of civilians killed in suicide and complex attacks was 18 percent lower than in 2011. The reduced figures could account for better targeting but more likely were due to a particularly severe winter in 2012 hindering the Taliban’s ability to launch attacks. Owing to unama reporting, Taliban directives also led to a marked decrease in the use of pressure-plated, ieds.82 Unlike their brethren in Pakistan, the Afghan Taliban have by-and-large resisted the use of random attacks such as the bombing of markets and mosques. This could be due to domestic repercussions of clearly targeting local civilians, which could diminish their chances of winning over the population in their attempt to regain power. While unama may lack the sustained and regular contact with the Taliban it enjoys with isaf, it is clear that unama’s reporting has incentivised the Taliban to publicly justify its activities through its annual condemnation of the report itself. 78  See Niland, supra note 68. 79 See Taliban statement, supra note 40. 80  M. Hennessey-Fiske, ‘Taliban Warns of Spring Offensive in Afghanistan’, Los Angeles Times, 30 April 2011, available at http://articles.latimes.com/2011/apr/30/world/la-fgw -afghan-offensive-20110501 (last accessed September 2014). 81  See Niland, supra note 68. 82 Small Arms Survey, Yearbook 2013: Everyday Dangers, 2013, Chapter 10, p. 227, available at http://www.smallarmssurvey.org/fileadmin/docs/A-Yearbook/2013/en/Small-Arms -Survey-2013-Chapter-10-EN.pdf (last accessed September 2014).

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Regardless of its public defense, 2012 witnessed a 700 percent increase in the Taliban using targeted killings of key Afghan government and allied figures.83 The Taliban took to its website to defend itself in response to the release of unama’s 2013 report and attempted to lay the blame on both the ansf and isaf for the higher rate of civilian casualties despite overwhelming reporting to the contrary.84 In the same statement, the Taliban then recommitted to taking care of the civilians as ‘part of our Islamic mission, our religious obligation and Afghan sympathy towards our oppressed nation’.85 Notwithstanding the lofty rhetoric, action has often not followed words. Armed groups also failed to take responsibility for civilians they had harmed. Neither the Taliban nor any other armed groups in Afghanistan appear to have any policy for acknowledging civilians harmed by their conduct or any practice of offering assistance. According to unama’s statistics, armed groups in Afghanistan were responsible for 4,112 civilian casualties in 2009; 5,426 civilian casualties in 2010; and 5,981 civilian casualties in 2012. Under international humanitarian law (ihl), a civilian is anyone who is not a member of the armed forces or a paramilitary group and is not actively participating in hostilities—this makes them protected persons. However, in an open letter dated 25 February 2013 to unama about its biased behaviour, which unama quotes in its report, the Taliban take exception to this: ‘According to us, civilians are those who are in no way involved in fighting. The white-bearded people, women, children and common people who live an ordinary life, it is illegitimate to bring them under attack or kill them’.86 By omitting those who 83  United Nations Assistance Mission to Afghanistan, ‘Annual report on Protection of Civilians in Armed Conflict 2012’, 2012, 4, available at http://unama.unmissions.org/ LinkClick.aspx?fileticket=K0B5RL2XYcU%3D (last accessed September 2014). 84 Included in its allegations were: Blind and retaliatory airstrikes by the foreign forces; night raids; indiscriminate firing after attacks; breaking into homes of civilians by police and army in form of search operations; aggravating children and adults; looting homes, stealing valuables and jewelry of women from homes; killing of civilians by Arbakis (Afghan Local Police) in all corners of the country; oppression; transgressing against the life, wealth, and honor of people; martyring innocent civilians due to personal feuds. Taliban Statement, ‘Rejoinder of the Islamic Emirate about the recent report of unama regarding the civilian casualties’, 08 February 2014, available at http://www.shahamat english.com/index.php/paighamoona/42067-remarks-of-spokesman-of-islamic-emirate -regarding-civilian-casualties-report-by-unama (last accessed September 2014). 85  Ibid. 86  Taliban statement, ‘An Open Letter to the unama about the Biased Behaviour of this Organization’, 22 February 2013, available at http://blogs.mediapart.fr/blog/lynx/010313/ open-letter-unama-about-biased-behavior-organization (last accessed September 2014).

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are partial to the state, including government officials, religious and tribal leaders, politicians, and election workers from the protected class of people under ihl, the Taliban’s intentional targeting of these people is clearly unlawful and could constitute a war crime. Under the international legal definition of a civilian, the Taliban is the only party in Afghanistan to apply a policy of targeting and killing civilians. Taliban tactics also do not traditionally take into account the mitigation of injury or killing of civilians when it is targeting military objectives. The Taliban addressed proportionality and precautions indirectly in the 2009 version of the ‘Code of Conduct’ issued by Mullah Omar, but again this directive has not born fruit on the ground.87 Perhaps in anticipation of the release of unama’s annual February report, in mid-December 2013, the Taliban publicly announced the establishment of a committee that was set up under the aegis of a military commission created in June 2013. This committee was tasked with collecting and investigating information on incidents reported to it by Afghans via email or phone. The committee was then to refer any incidents it deemed ‘negligent’ and caused by the Taliban to a sharia court.88 However, unama noted in its most recent annual report that ‘[n]o public information has been provided to date on any action taken by this committee’.89 In an attempt to both discredit and also illustrate the weight of unama’s reports, the Taliban began publicly reporting monthly on incidents it attributes to the pro-government forces.90 The Taliban’s website also includes an interview with Zabibullah Mujahid, the Taliban spokesperson, who alleges that the unama annual report is vetted by the United States embassy in Kabul and is 87 A. Bellal et al., ‘International Law and Armed Non-state Actors in Afghanistan’, International Review of the Red Cross, Vol. 93 No. 881 (March 2011), 77. See also Program for Cultural and Conflict Studies, ‘Understanding Afghan culture: analysing the Taliban code of conduct: reinventing the Layeha’, Department of National Security Affairs, Naval Postgraduate School, 6 August 2009, 3, available at http://info.publicintelligence.net/ Layeha.pdf (last accessed September 2014). 88 K. Clark, ‘Continuing Conflict is Not a Victory: What the 2013 unama Civilian Casualties Report Tells us about the War’, Afghanistan Analysts Network, 11 February 2014, available at https://www.afghanistan-analysts.org/continuing-conflict-isnt-victory-what-the -2013-unama-civilian-casualties-report-tells-us-about-the-war/ (last accessed September 2014). 89  United Nations Assistance Mission to Afghanistan, ‘Annual report on Protection of Civilians in Armed Conflict 2012’, (2013), at 5. 90 Monthly reporting by the Taliban is available at http://www.shahamat-english.com/index .php/interviwe?limitstart=0 (last accessed September 2014).

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‘published according to their demands’.91 The Taliban spokesperson accused the un of not being impartial in its reporting and claimed that the un only collects its information from ‘internal and external enemies’ of the Taliban.92 The establishment of the Taliban’s website in 2009 and its regular use of statements therein—which attempt to counter reports by the international media, the international community, the Government of Afghanistan, and isaf—can be viewed as a defensive effort to create an alternative narrative of the events on the ground in direct response to the heavy criticism the Taliban faces after publication of the annual un report on civilian casualties. unama itself has said that statements issued by the Taliban have shown ‘an evolving dialogue on targeting to minimize civilian casualties in suicide attacks, by taking precautions during military operations through tactics, weapons, and target selection’.93 The Taliban’s 2014 spring offensive statement arguably reflects these concerns.94 4 Losing Hearts and Minds: A Failure to Create a Perception of Protection unama reported in 2013 that, despite its targeted messaging to the Taliban to take measures to reduce civilian casualties, ‘the situation on the ground for Afghan civilians did not improve’.95 The report blames anti-government elements for 74 percent of the 8,615 civilian casualties (6,374) it reported in 2013, on the rise from the 7,589 reported civilian casualties the year prior. In stark contrast, the Taliban claimed responsibility for only 153 attacks, which resulted in 944 civilian casualties; however, according to unama, this represents a 292 percent increase from the 2012 claims of responsibility.96 In addition, the 91

Taliban statement, ‘Each of the United Nation report [sic] goes through the American filter and is published on their demand’ 27 November 2013, available at http://www.shahamat -english.com/index.php/interviwe/39994-zabihullah-mujahid-each-of-the-united -nations-report-goes-through-the-american-filter-and-is-published-on-their-demand (last accessed September 2014). 92  Ibid. 93  United Nations Assistance Mission to Afghanistan, ‘Annual report on Protection of Civilians in Armed Conflict 2011’, (2012), 11, available at http://unama.unmissions.org/ Portals/UNAMA/Documents/UNAMA%20POC%202011%20Report_Final_Feb%202012 .pdf (last accessed September 2014). 94  See Taliban Statement, supra note 40. 95  See United Nations Annual Report 2013, supra note 23, at 4. 96  Ibid.

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insurgents continued a trend of increased numbers of targeted attacks on such non-combatants as elders, election workers, and mullahs. Attacks on mullahs and religious sites tripled in 2013, with 18 killed, including mullahs and religious scholars killed for expressing pro-government views. These unfortunate statistics point to a worrying downward spiral in the protection of civilians and raise a number of questions over efforts by isaf, the ansf, the Taliban’ and unama’s ability to influence these actors. The COIN doctrine unfortunately never fully legitimated itself, as evidenced by the low perception rates of the government’s legitimacy and security for the population.97 As international forces operating in Afghanistan learned, local perceptions matter and are shaped by the behaviour of fighters on each side, including their response to civilian harm. While every effort should be made to prevent civilian casualties, the failure to acknowledge or respond appropriately to them when they occur may fuel resentment. It may also lead communities to question the warring parties’ intentions and/or ultimately push some to actively support the armed opposition. Another sign of the COIN doctrine’s failure in Afghanistan was its inability to effectively promote the legitimacy of the Afghan government throughout the country. This was by no means entirely the fault of isaf; the Afghan government was also certainly to blame in this regard. In order to have fulfilled the full purpose of COIN, isaf needed to gain the population’s acceptance of the government’s authority, but in Afghanistan both the government and the antigovernment elements are competing for this legitimacy as both aim to gain power and influence throughout the country. The Afghan government has had the benefit of having massive infusions of international assistance and modern military prowess to train and develop better Afghan capacity to extend its reach throughout the country. One method for the Taliban to gain influence on the ground has been to devote a large portion of its shadow governance to dispensing justice, mostly dispute resolution and criminal cases based on Shari’a law, through its own mobile court system.98 Despite the often harsh 97

See generally The Asia Foundation, ‘Afghanistan in 2013: A Survey of the Afghan People’ (2013), available at http://asiafoundation.org/resources/pdfs/2013AfghanSurvey.pdf (last accessed September 2014). See also E. Gaston, & J. Horowitz, ‘The Trust Deficit: The Impact of Local Perceptions on Policy in Afghanistan’, Open Society Foundations, Regional Policy Initiative on Afghanistan and Pakistan, Policy Brief No. 2, (7 October 2010), available at www.opensocietyfoundations.org/sites/default/files/perceptions-20101007_0. pdf (last accessed September 2014). 98  A. Giustozzi et al., ‘Shadow Justice: How the Taliban Run their Judiciary?, Integrity Watch Afghanistan. 2012, 77, available at, www.iwaweb.org/_docs/reports/research/shadow _justicehow_the_taliban_run_their_judiciary.pdf (last accessed September 2014).

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form this justice takes, the lack of physical access to formal judicial mechanisms often makes this service appreciated by many Afghans. Further aggravating the difficulty of isaf in promoting the Afghan government, the Taliban have often cited civilian harm caused by isaf in its propaganda to undermine popular support for the Afghan government. Recent Taliban messages have increasingly highlighted the Afghan National Security Forces’ responsibility for civilian casualty incidents, albeit often with grossly exaggerated numbers of civilian casualties or based on unfounded allegations.99 Even while anti-government elements are responsible for the vast majority of civilian casualties, Taliban messages may lead some civilians to believe that the opposite is true, while playing off longstanding resentment towards foreign forces in order to stimulate opposition to the Afghan government and its international partners.100 Despite the drop in civilian casualties caused by pro-government forces, the number of civilians killed has never been higher, which is what seems to matter to most Afghans as outlined below.101 Citing insecurity as the biggest problem they face, the average Afghan’s sense of safety generally corresponds with trends in Afghan civilian casualties; an increase in a feeling of insecurity in 2013 coincided with a surge of attacks on Afghan civilians, especially by the anti-government elements and their expanded use of ieds.102 From 2012 to 2013, fear for personal safety among Afghans increased by 11 percent, from 48 percent in 2012 to 59 percent in 2013, an all-time high.103 A telling indicator of the lack of success that isaf has had in winning hearts and minds is that a large majority of Afghans civilians experience fear when encountering international forces.104 The problem of refugees and idps also persists, with an increase in the number of Afghan asylum

99  Taliban statement, ‘1 Child Martyred, 2 Wounded in Enemy Hostile Fire’, 18 May 2014, at http://shahamat-english.com/index.php/news/44975-1-child-martyred,-2-wounded-in -enemy-hostile-fire (last accessed September 2014). 100  International Crisis Group, ‘Taliban Propaganda: The War of Words?’, Asia Report No. 158, (24 July 2008), 19–20. See generally Campaign for Innocent Victims in Conflict, ‘Losing the People: The Costs and Consequences of Civilian Suffering in Afghanistan’, February 2009, available at http://civiliansinconflict.org/uploads/files/publications/losing-the-people_2009. pdf (last accessed September 2014). 101  A. Beadle, Policy Brief, ‘Protecting Civilians While Fighting a War in Somalia- Drawing Lessons from Afghanistan’, Norwegian Institute of International Affairs, October 2012. 102  See The Asia Foundation Survey, supra note 97, at 6, 30. 103  Ibid. 104  Ibid., at 31.

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seekers in 2013 and an estimated 106,000 idps in the first half of 2013, mainly due to conflict and insecurity.105 The us Army’s Stability Operations Lessons Learned and Information Management System (sollims) notes, ‘Civilians may care more about the total number of deaths than who is actually responsible’.106 Surveys conducted in southern Afghanistan where much of the fighting took place indicated that more Afghan civilians felt victimised by the foreign force’s actions than by the insurgents’ actions, despite the fact that most civilian deaths had been caused by the insurgents.107 Some of these perceptions are based on specific tactics used by certain components of isaf, most particularly us Special Operations Forces who utilised night raids, as discussed above. Confidence in the Afghan Security Forces by Afghans is quite high: roughly 88 percent of Afghans trust both the Afghan National Army, and 72 percent for the Afghan National Police. These numbers significantly drop, however, when disaggregated by region, with confidence declining to 25 to 65 percent in the areas that have seen the most fighting.108 This illustrates that stability missions have a strategic problem ‘when they fail to protect civilians in general, regardless of who is causing the casualties’.109 While there has been a significant drop in the numbers of civilians killed by isaf and ansf, largely due to isaf’s explicit guidance that ‘protecting the people is the mission’, there has been a rise in the number of non-combatants deliberately targeted and killed in conflict. Afghan civilians seem to be neither better protected nor feel safer.110 unama’s reporting on the protection of civilians has unquestionably influenced the policies of both isaf and the Taliban, if not the actual behaviour of all warring parties, but has also failed to assist both isaf and the ansf in making measurable gains in creating the sense of security that Afghans so desperately desire. 105  International Crisis Group, ‘Afghanistan’s Insurgency after the Transition’, 12 May 2014, at 4, available at http://www.crisisgroup.org/~/media/Files/asia/south-asia/afghanistan/256 -afghanistan-s-insurgency-after-the-transition.pdf (last accessed September 2014). 106  us Army, ‘Stability Operations Lessons Learned and Information Management System’, Vol. 4, Issue 1, January 2013, 5, p. 28, available at www.pksoi.org/document_repository/ doc_lib/SOLLIMS_Sampler_Protection_of_Civilians_Jan2013.pdf (last accessed September 2014). 107  International Council on Security and Development, ‘Afghanistan: The Relationship Gap’, July 2010, 15, available at http://www.operationspaix.net/DATA/DOCUMENT/4651 v~Afghanistan ___The_Relationship_Gap.pdf (last accessed September 2014). See also International Crisis Group, supra note 105, at 28. 108  See The Asia Foundation Survey, supra note 97, at 36–39. 109  ‘Stability Operations Lessons Learned and Information Management System’, supra note 106, p. 28. 110  See Beadle, supra note 38, at 7.

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5 Conclusion The beginning of this chapter outlined the conception of the protection of civilians in the un. The Security Council’s vision of civilian protection continues to evolve into its current broad definition, which includes genocide, ethnic cleansing, and displaced and disappeared persons. While the Security Council’s civilian protection tools now comprise diplomatic pressure, monitoring, sanctions, the creation and use of accountability mechanisms, clearer civilian protection mandates, and an emphasis on improved civilian protection training for un peace-keeping forces, the actual results remain mixed. Threats to the gains made in the protection of civilians, women, and human rights in Afghanistan will increase with the drawdown of international military and civilian assistance. Accompanying the drawdown is an emerging conservative position by Afghan politicians as they appeal to a broader population. Afghan civil society organisations should continue to be strengthened to act as an oversight mechanism for the Afghan National Security Forces. These organisations should be permitted access to the ansf Civilian Tracking Team to coordinate reports and ensure that harm reduction strategies are shared. The un’s role in advocating for, monitoring, and reporting on the protection of civilians and promoting accountability of ansf and human rights, especially women’s rights, will gain further prominence after isaf withdrawal. It is imperative that the mission be properly resourced in order to continue its work in this regard. At the same time, there are signals of Taliban sensitivity to Afghan and international perceptions, as well as to recognition and legitimacy. This is a potential point of entry for unama-facilitated inter-Afghan dialogue and engagement on specific, limited issues, such as civilian casualties or non-targeting of voters. The international community—and, more importantly, the Afghan Government—must reconcile the need to protect civilians with the realities of fighting on the ground. Insurgents will not stop until they are politically accommodated. With the Afghan National Security Forces (ansf) now being mostly responsible for ground operations in the country, the rapid diminishment of foreign forces, and the reduced external scrutiny—the rates of civilian causalities may soon skyrocket. It will be important to ensure that support is maintained to the ansf, which it is currently receiving training for the protection of civilians, including reporting and responding to civilian casualty incidents. The Civilian Tracking Team must be reinforced and well equipped to contribute to the development of best practices to help the ansf prevent civilian casualties and to make recommendations regarding specific claims for monetary payments to officials overseeing these programs.

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Advocacy efforts, including increasing the awareness on the toll on civilians, have been influential in changing the use of certain military tactics. This underscores the need for protection efforts that explain and expose circumstances and trends that pose harm to civilians. The more advocacy work is able to draw on credible evidence, the more likely it is that it will prove protective.111 After international troops depart, unama will need to remain diligent and continue to find ways to incentivise and pressure both the Taliban and the ansf to protect civilians. Simply looking at the metrics that are reported annually from unama would indicate that it has had limited success in reducing the threat of harm to the civilian population. But the reality is that the directives issued by isaf, the efforts made to replicate these in the ansf, and the ongoing training to mitigate harm to civilians—underline the positive benefits of unama’s protection efforts. The continued spotlight that unama places on both the insurgents and the military forces plays a major role in holding all sides accountable for their actions on the battlefront. unama’s successes are often less visible since they cannot be easily measured, but the responses that its annual reports elicit from all sides of the conflict imply a necessary and significant influence on policymaking. Through monitoring and reporting, unama is able to meet its objective of protecting civilians by reflecting the reality on the ground, thereby enabling major shifts in warfare tactics that have undoubtedly saved Afghan lives. 111  See Niland, supra note 68.

chapter 7

A Deterrent Effect of Domestic German Prosecutions for Crimes Committed by German Military in Afghanistan?—Protecting Civilians from Inadvertent Attacks by Friendly Foreign Forces Jan Nemitz* 1 Preface The author’s first—academic—contact with the armed conflict in Afghanistan began shortly after the conflict had started in late 2001. Together with other legal academics in Germany, he signed a public letter which called upon the German Federal Parliament to not authorise a German engagement in the military attack that was about to be launched against Afghanistan, as there was no legal basis for such intervention.1 About ten years later, on 2 April 2011, his friend and former colleague Joakim Dungel was murdered while serving in the United Nations Assistance Mission in Afghanistan (unama). This chapter will outline a number of legal and factual issues related to the military involvement of Germany and other foreign troops in the armed con­ flict in Afghanistan. It will start with a general introduction into the current situation of German and other nations’ military presence in Afghanistan. It will then address the legal basis for Germany’s operations in this country, as well as the law applicable during these operations. Subsequently, three legal proceedings will be presented which involved acts of German soldiers in the context of the armed conflict in Afghanistan (and Iraq). This will be followed by an attempt to show which lessons should be learned from those cases. In so doing, this chapter aims at demonstrating what has been done—and what has yet to be done—to prevent civilians from being victimised in the armed con­ flict in Afghanistan and elsewhere. * The views of the author do not necessarily represent the views of the International Tribunal for the former Yugoslavia or of the United Nations. 1 Freiburger Juristenerklärung, referred to by P. Nowak, ‘Rechtliche Grundlage des Afghanis­ tankrieges angezweifelt’ Telepolis, 24 November 2001, available at www.heise.de/tp/artikel/ 11/11174/1.html, accessed 5 March 2014.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004236592_009

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In particular, this chapter emphasises the need for proper training of mili­ tary personnel and civilians alike in international humanitarian law and inter­ national criminal law. While this is merely one element to reduce the number of civilian victims, it is an indispensable factor in any effort to strengthen the protection of civilians. 2

Situation in Afghanistan

2.1 General On 11 September 2001, two hijacked civilian planes destroyed the World Trade Center, and a third plane caused severe damage to the Pentagon. Already on the following day, the United Nations Security Council unequivocally con­ demned ‘in strongest terms’ these ‘horrifying terrorist attacks’ in its Resolution 1368 (2001), which was unanimously adopted. The Security Council members expressed their ‘readiness to take all necessary steps to respond to the attacks’ and ‘held that any act of international terrorism was a threat to international peace and security’. The Permanent Representative of the United States of America to the United Nations stated ‘that no distinction would be made between those who committed those acts and those who harboured the criminals’.2 Within less than four weeks, the United States started military attacks on Afghanistan which was considered to provide shelter for those responsible for the 11 September attacks. On 7 October 2001, the United States and the United Kingdom commenced the so-called Operation Enduring Freedom (oef) in Afghanistan, using military force in self-defence and in accordance with Article 51 of the un Charter, which recognises ‘the inherent right of individual or collective self-defence’.3 In an effort to justify the aerial attacks, the United States notified the United Nations that ‘they ha[d] obtained clear and compelling information that the Al-Qaida organisation, which is sup­ ported by the Taliban regime in Afghanistan, had a central role in the attacks on 11 September 2001’.4 Shortly after these events, and in addition to oef, yet another international military mission was established in Afghanistan: the International Security Assistance Force in Afghanistan (isaf), in operation since December 2001. 2 Press Release SC/7143, Security Council 4370th Meeting, 12 September 2001. 3 Operation Enduring Freedom and the Conflict in Afghanistan: An Update, House of Commons Library Research Paper, 01/81, 31 October 2001, at 9. 4 Ibid.

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isaf was given a mandate from the United Nations Security Council in its Resolution 1386 (2001) which authorised the member states to assist the Afghan Interim Authority in the maintenance of security in Kabul and surrounding areas.5 In order to fulfil its mandate, isaf has been vested with the right to employ all necessary measures, including the use of force.6 In August 2003, upon the request by the Afghan Government and the United Nations, nato took over command of isaf.7 In January 2013, the United States had the plan to withdraw the majority of its troops from Afghanistan and to leave only between 9,000 and 20,000 soldiers for the purpose of conducting anti-terror missions and training Afghan secu­ rity forces.8 In February 2013, the United States announced that there may only be between 8,000 to 12,000 nato soldiers in Afghanistan after 2014 (together with armed forces from non-nato countries such as Australia and Mongolia), and that the United States would be responsible for about two-thirds of these forces.9 Their mission would not be a combat mission, but rather aimed at training and counselling of the 352,000 Afghan forces who would take over the responsibility for the national security in 23 out of 34 provinces as of 31  December 2014, when the German forces which had been deployed in November 2001 as part of oef were supposed to have left the country.10 It should not be expected, however, that peace will reign in Afghanistan after the (majority of the) foreign forces will have returned to their respective homes. Too numerous are killing incidents that have recently taken place: In 2012, about 1,000 Afghan soldiers lost their lives in the fight against the Taliban, more than in any year since 2001.11 Between 1 October 2012 and 9 December 2012, 5 6

7 8 9 10

11

Press Release SC/7248, Security Council 4443rd Meeting, 20 December 2001. Ermittlungsverfahren gegen Oberst Klein und Hauptfeldwebel Wilhelm wegen des Verdachts einer Strafbarkeit nach dem VStGB und anderer Delikte, 3BJs6/10-4, 16 April 2010 (Decision of the German Federal Public Prosecutor General not to proceed with an investigation against Colonel Klein (hereinafter ‘Decision of the Federal Prosecutor’)), at 5, para. 2. A public redacted version of the Decision of the Federal Prosecutor was published on 19 April 2010. unama, Afghanistan: Mid-Year Report on the Protection of Civilians in Armed Conflict 2012, July 2012, at 35, at www.refworld.org/docid/502233982.html, accessed 7 March 2014. T. Matern, ‘Kraftprobe’, Süddeutsche Zeitung, 11 January 2013, at 8. M. Winter, ‘Afghanische Zahlenspiele’, Süddeutsche Zeitung, 23/24 February 2013, at 8. H. Friederichs, ‘Der Krieg der Anderen’, Die Zeit, 10 January 2013, at 7. nato has pledged to pay almost all of the costs for the Afghan armed forces (an estimated 6 Billion us-Dollar per year) until 2018, with the United States paying the biggest share. See M. Winter, ‘Afghanische Zahlenspiele’, Süddeutsche Zeitung, 23/24 February 2013, at 8. See Friederichs, supra note 10.

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4,240 attacks were reported on Afghan army and police, civilians, and foreign soldiers. 39 isaf soldiers were killed and 318 injured.12 And the spring of 2013 has seen many more Taliban attacks. On 12 April 2013, for instance, insurgents killed 13 soldiers of one of the Afghan army’s most highly regarded units when they were overrunning an outpost in eastern Afghanistan.13 Furthermore, in the beginning of March 2013, rebels abducted 23 Afghan police officers, executing 17 of them and releasing the remaining six in exchange for the release of ten rebels. This happened in the province of Badachschan, one of the (allegedly) most secure provinces in Afghanistan where the German army had closed its first camp half a year earlier.14 These killings have occurred even though an unprecedented us$41.5 billion of financial contributions from all over the world have been invested in the country since the removal of the Taliban regime in 2001.15 Irrespective of this enormous sum, Afghanistan is still one of the poorest and most corrupt coun­ tries in the world.16 In spite of all this aid money, every sixth child dies before his or her fifth birthday, and every tenth child is malnourished.17 Also with respect to the pursuit of the political goal to fight terrorists, Afghan President Hamid Karzai painted a negative picture of the country’s status quo. He stated that the Western countries in Afghanistan had not been fighting an ‘honest and correct’ war against terror, as they did not attack the terrorists’ training camps and kept sending money to Pakistan which these same coun­ tries accuse of supporting terrorism.18 On a more positive note, about 85% of the Afghan population have access to basic medical treatment, and the average annual income of us$500 is three times higher than ten years ago.19 All in all, however, it is questionable whether 12 Ibid. 13 W. Dalrymple, ‘The Ghosts of Afghanistan’s Past’, International Herald Tribune, 13/14 April 2013, at 8. 14 J. Bittner et al., ‘Deutschlands Rolle in der Welt’, Die Zeit, 21 March 2013, at 3. 15 S. Meyer, ‘Wir bleiben!’, Welt am Sonntag, 24 February 2013, at 14. Germany, the third big­ gest contributor, has spent more than us$2.5 billion since 2001. Ibid., at 15. 16 Ibid., at 14. 17 Ibid., at 17. For estimated under-five mortality rates in Afghanistan between 1972 and 2003, see K.Viswanathan et al., ‘Infant and Under-five Mortality in Afghanistan: Current Estimates and Limitations’, Bulletin of World Health Organization, Volume 88, No. 8, August 2010, Table  1, available at www.who.int/bulletin/volumes/88/8/BLT-09-068957-table-T1 .html, accessed 15 October 2013. 18 Interview with Hamid Karzai, ‘Ich hätte härter sein sollen’, Süddeutsche Zeitung, 2 April 2013, at 2. 19 Meyer, supra note 15, at 17.

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the living standard in Afghanistan will significantly improve after 2014 and whether the human rights situation in the country will become better. In this context, the words of the then German Minister for Development Aid, Dirk Niebel, are telling: ‘You cannot compare Afghanistan with Germany after World War II. You must compare it with Germany after the Thirty Years War’.20 Yet, in order to prevent human rights violations vis-à-vis Afghan civilians, the living conditions must improve in all areas of private and public life. 2.2 Presence of German Troops On 16 November 2001, the German Parliament gave the first oef mandate and authorised the deployment to Afghanistan of about 3,900 German soldiers.21 This mandate was extended every year until 2009, with less and less military personnel.22 After almost nine years, the German participation in oef ended on 29 June 2010. In all these years, German troops participated in military actions with the stated aim of preventing and deterring further attacks on the United States, such as military measures against Al-Qaida training camps and military installations of the Taliban regime.23 On 22 December 2001, the German Parliament gave the mandate to the German armed forces to participate in isaf. On 31 January 2013, it was extended until the end of February 2014, and the German Parliament decided that, at that time, 3,300 German soldiers should be deployed in Afghanistan ‘if the situ­ ation allows’.24 Today, Germany provides the third largest contingent in Afghanistan. Its main priorities have been the training of Afghan security forces and the protection of the Afghan population. While German forces are primarily deployed in Kabul and northern Afghanistan, Germany also sup­ ports isaf in other areas of the country by providing air surveillance and sup­ port. In the provincial capital Kunduz, Germany has installed a Provincial Reconstruction Team comprising both a civilian and a military component. On 11 July 2012, the German forces transferred responsibility for security to Afghan forces in Kunduz and other areas; and on 15 November 2012, the Provincial 20 Ibid. 21 BT-Drucksache 14/7296 (Request of the German Government of 7 November 2001). 22 BT-Drucksache 15/27 (15 November 2002); BT-Drucksache 15/1880 (14 November 2003); BT-Drucksache 15/4032 (12 November 2004); BT-Drucksache 16/26 (8 November 2005); BT-Drucksache 16/3150 (10 November2006); BT-Drucksache 16/6939 (15 November 2007); and BT-Drucksache 16/10720 (29 October 2008). 23 Operation Enduring Freedom and the Conflict in Afghanistan: An Update, supra note 3, at 9. 24 C. Hickmann, ‘Bundestag verlängert Afghanistan-Mandat’, Süddeutsche Zeitung, 1 February 2013, at 5. While 435 parliamentarians voted in favour of the new mandate, 111 voted against, with 39 abstentions. See ibid.

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Reconstruction Team was placed under civilian leadership.25 In the words of the then German Foreign Minister, Guido Westerwelle: ‘Our involvement in Afghanistan increasingly has a civilian face’.26 3

Legal Basis for Germany’s Operations in Afghanistan

When the German Parliament gave its first mandate to deploy troops to oef, it based its decision on Article 51 of the Charter of the United Nations, Article 5 of the nato Treaty, and Security Council Resolutions 1368 (2001) and 1373 (2001).27 The German Parliament decided that this decision was in conformity with international law, as Resolution 1368: (i) condemned the attacks of 11 September 2001 as a threat to international peace and security; (ii) stressed the necessity to undertake all necessary means; and (iii) underlined the right to individual and collective self-defence.28 It further referred to the decision of the nato Council of 12 September 2001 which stated that the terrorist attacks constituted an attack on the nato allies pursuant to Article 5 of the nato Treaty. As a consequence, Germany was called upon to contribute, as part of the system of collective self-defence, to the measures of its nato allies against acts of terrorism.29 From a strictly legal point of view, such contribution did not necessarily mean that Germany would have to send troops to Afghanistan under nato command. This is obvious from the plain wording of Article 5 of the nato Treaty, which reads as follows: The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recog­ nised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area. 25

Auswärtiges Amt—International Military Engagement in Afghanistan, available at www .auswaertiges-amt.de/EN/Aussenpolitik/RegionaleSchwerpunkte/Afghanistan Zentralasien/Militaereinsatz-ISAF_node.html, accessed 15 October 2013. 26 Ibid. 27 BT-Drucksache 14/7296 (Request of the German Government of 7 November 2001), at 1. 28 Ibid., at 2. 29 Ibid.

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Any such armed attack and all measures taken as a result thereof shall immediately be reported to the Security Council. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security.30 While there were almost no Parliamentarians at the time who voiced doubts as to the legal basis for the deployment of German troops in Afghanistan,31 it is noteworthy that a group of 130 people, among them many lawyers, had pub­ lished an open letter to the German ‘Bundestag’ (federal parliament) in which they warned, based on legal reasoning, against an illegal involvement in a war in Afghanistan.32 The declaration stressed that neither Security Council Resolutions 1368 (2001) and 1373 (2001) nor the nato Treaty included a legal duty of Germany to contribute with military means to the war in Afghanistan. It further stated that neither Resolution provided a legal basis for any military attacks against Afghanistan, as the Security Council merely ‘called upon’ the states to bring to justice those involved in the attacks on 11 September 2001. The declaration went on to state that the Security Council had not confirmed that the right to (collective) self-defence pursuant to Article 51 of the Charter of the United Nations was applicable. Indeed, that right could only be applied if an attack against a country was imminent. Therefore, the attacks on Afghanistan would have only been justified if it had been clearly established that Afghanistan had been responsible for the terrorist attacks, and if further attacks had been imminent. Finally, the declaration asserted that the German mandate was too vague and did not fulfil the requirements as to the specific location of the troops and the purpose of the mission, as set out by the German Constitutional Court. The above-mentioned legal concerns, however, were not sufficiently dis­ cussed in the German Parliament. At least, no public record of any discussion 30 31

32

1949 North Atlantic Treaty, 34 unts 243 (4 April 1949), Art. 5 (emphasis added). In light of this, it is prima facie surprising that there was only a rather small majority of votes in the German Parliament in favour of German military contributions to oef, namely 336 votes against 326. The reason is that then Chancellor Gerhard Schröder ­combined the vote on this military deployment with a vote of non-confidence in his rul­ ing Red-Green Government coalition, which caused the opposition parties—and four Parliamentarians of the Green Party—to vote against (Protocol of the session of the German Parliament on 16 November 2001, 14/202, at 19860, 19893–5). When the German Parliament approved the German participation in isaf, this mandate was not connected to a vote of non-confidence, and the result of the vote was 538 votes in favour and only 38 against (with 8 abstentions) (Protocol of the session of the German Parliament on 22 December 2001, 14/210, at 22850–2). Freiburger Juristenerklärung, supra note 1.

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of these concerns is available. A decision as to whether or not military troops are to be sent into a war zone can only be made on a solid legal basis. Arguably, in November and December 2001, such legal basis was not given, and it can only be stated in hindsight that the silence of the Security Council as to the legal basis for oef justified ex post facto Germany’s reference to the Security Council Resolutions 1368 (2001) and 1373 (2001) as a legal basis. 4

Law Applicable to German Operations

The German Parliament decided that the use of military force by German troops in Afghanistan was regulated by the applicable Rules of Engagement which were based on international law.33 More specifically, the applicable law that is binding for any German soldier deployed in Afghanistan is set out in the Heeresdienstvorschrift 100/100 no. 301: ‘The Basic Law (Grundgesetz, hereinafter ‘gg’) and other national law provisions [for instance the Code of Crimes Against International Law (ccail)] during the deployment, in particular inter­ national humanitarian law, including the law regulating the means of warfare, and all the applicable Rules of Engagement constitute the legal basis for every action of a military leader’.34 These legal provisions have primarily three objectives. First, the German soldiers are bound to abide by the applicable norms of international and national law. Second, these provisions provide legal guidance for the members of the armed forces during their active duty and prevent them from commit­ ting crimes and misdemeanours for which they might be prosecuted. Third, this legal framework aims at providing shelter to those persons who are protected under the law. International Public Law/International Humanitarian Law/ International Criminal Law In spite of the involvement of international troops, the ongoing armed conflict in Afghanistan is of an non-international character. The determination whether an armed conflict is international or internal in its character depends on the factual situation and is independent of the political will of the parties involved in it.35 What is needed instead is ‘a resort to armed forces between 4.1

33 34 35

BT-Drucksache 14/7296 (Request of the German Government of 7 November 2001), at 4. Translation by the author. This provision does not mention the European Convention on Human Rights. Decision of the Federal Prosecutor, supra note 6, at 41.

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States [international armed conflict] or protracted armed violence between governmental authorities and organised armed groups or between such groups within a State [internal armed conflict]’.36 The test in the case of an internal armed conflict consists of two criteria, namely: (i) the intensity of the conflict and (ii) the organisation of the parties to the conflict, in order to distinguish an internal armed conflict from incendiary, unorganised, and short-lived insur­ rections, or terrorist activities, as those are not subject of international human­ itarian law.37 In particular, the fact that soldiers of a third state participate in the internal armed conflict does not necessarily alter its character.38 If those troops—for instance, the nato-led international isaf forces—participate in the armed conflict upon the invitation and with the agreement of the govern­ ment—here, the Government of Afghanistan—their involvement leaves the internal character of the armed conflict unchanged, as isaf is fighting on the side of the Afghan Government forces.39 Furthermore, the armed violence has to continue over a certain period of time, which means that it has to be signifi­ cantly longer than just a few days.40 In the investigations of the German Federal Prosecutor against Colonel Klein and First Sergeant Wilhelm, who were responsible for an air strike of isaf planes on two gas trucks on a sand bank near the military compound of the Provincial Reconstruction Team of isaf in Kunduz, the Federal Prosecutor held, however, that it is not required that the organised armed group must have control over a specific part of the territory. This finding is based on the applicable customary international law and the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (icty).41 With respect to the temporal scope of the internal armed conflict in Afghanistan, the Federal Prosecutor stated that it cannot be established as of which point in time this conflict existed. It held, however, that this was at least 36

Prosecutor v. Boškoski and Tarčulovski, Judgement, Case No. IT-04-82-A, 19 May 2010, para. 21; Prosecutor v. Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case No. IT-94-1-AR72, 2 October 1995; Prosecutor v. Lubanga Dyilo, Judgment pursuant to Article 74 of the Statute, ICC-01/04-01/06, T.Ch. I, 14 March 2012, paras. 533–534. 37 Ibid. 38 Lubanga Judgment, supra note 36, paras. 541 et seq. For the ‘overall control’-test, see Prosecutor v. Kordić and Čerkez, Judgement, Case No. IT-95-14/2-A, 17 December 2004, para. 310; Prosecutor v. Tadić, Judgement, Case No. IT-94-1-A, 15 July 1999, para. 131. 39 Decision of the Federal Prosecutor, supra note 6, at 42. 40 Ibid., at 43. 41 Ibid., referring to Tadić Decision on Jurisdiction, supra note 36, para. 70. See for the icc, Lubanga Judgment, supra note 36, para. 536.

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as of 2005, and probably even two or three years earlier, in light of the growing intensity of the fighting in Afghanistan at the time.42 In this context it must be noted that in the initial period of the armed conflict—between October and December 2001—the us-led intervention in Afghanistan amounted to an international armed conflict.43 Having thus established that the armed conflict in Afghanistan has been for its most part internal in character,44 the provisions of the ccail as well as the relevant provisions of international criminal law and international humanitar­ ian law—in connection with Article 25 gg—are applicable before German courts to any war crimes committed in Afghanistan. Therefore, German sol­ diers under isaf command are regular combatants who are not criminally responsible as long as they resort to military acts that are allowed under inter­ national law.45 This does not mean, however, that the provisions of the Statutes of the International Criminal Court (icc) or the International Criminal Tribunal for the former Yugoslavia are directly applicable. The jurisdiction of the former is limited to those armed conflicts (i) which take place on the terri­ tory of a state party to the icc Statute; or (ii) in which the accused person is the national of a state party; or (iii) in which a state has accepted the jurisdiction of the icc.46 The jurisdiction of the latter is restricted to crimes committed on the territory of the former Yugoslavia from 1991. 4.2 Rules of Engagement Rules of Engagement contain provisions that provide guidance for members of the armed forces in armed conflicts. They can be enacted by states or by organ­ isations such as nato or the United Nations, and they have to be based on the customary international law and the international treaty law that is applicable to the parties to the armed conflict.47 Rules of Engagement do not constitute laws. They are merely internally applicable provisions which have no legal 42 Decision of the Federal Prosecutor, supra note 6, at 44. 43 Ibid. 44 See also D. Diehl, ‘Zur Einstellung des Ermittlungsverfahrens gegen Oberst Klein und Hauptfeldwebel Wilhelm durch die Bundesanwaltschaft’, BoFaxe, no. 343D, 11 May 2010, available at www.ruhr-uni-bochum.de/ifhv/6-publications/6-bofaxe-neu2010.html, accessed 15 October 2013. 45 Decision of the Federal Prosecutor, supra note 6, at 45. 46 icc Statute, Art. 12. Furthermore, the icc may exercise its jurisdiction in any situation referred to it by the United Nations Security Council acting under Chapter VII of the un Charter, pursuant to Art. 13(b) of the icc Statute. 47 P. Dreist, ‘Rules of Engagement in Multinationalen Operationen—ausgewählte Grund­ satzfragen’, (2007) Neue Zeitschrift für Wehrrecht 146, at 150.

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effect for those who are not affected by them.48 This is exemplified by the fact that they are confidential.49 Rules of Engagement should be tailored to the military mission during which they are supposed to apply. A particular danger is that they may be too restrictive50 with respect to, inter alia, the situations in which weapons can be used, as this may endanger the lives of the military personnel and civilians who may rely on the protection of the forces in question. 4.3 National Laws Two articles of the German Basic Law are of particular importance in the con­ text of criminal liability incurred for military acts under national criminal law: Article 103(2) gg, which provides that legal provisions must be sufficiently spe­ cific, and Article 25 gg which states that ‘[t]he general rules of international law shall be an integral part of federal law. They shall take precedence over the laws and directly create rights and duties for the inhabitants of the federal territory’. Both articles were analysed by the German Federal Prosecutor in the abovementioned investigation against Colonel Klein and First Sergeant Wilhelm in order to establish whether international law offers defences to crimes under the German Penal Code. The Federal Prosecutor agreed with the majority of academic writers in that the requirement of sufficient specificity is less strin­ gent with respect to defences than it is in relation to substantive provisions of criminal law.51 Thus, the Federal Prosecutor found that the above-mentioned provisions of the Grundgesetz do not prevent the application of defences under international law such as the destruction of military targets in the form of killing enemy combatants or destroying enemy installations.52 Such defences under international law are therefore applicable for crimes under both the ccail and the German Penal Code. As stated above, the provisions of the ccail are applicable to the acts of German soldiers in Afghanistan. Furthermore, the military penal and disci­ plinary laws of the German army are applicable. For instance, § 1a of the German Military Criminal Code (Wehrstrafgesetz) states that it is applicable for crimes committed by German soldiers abroad, irrespective of the applica­ ble law in the country in which the crime was committed.53 It further states 48 Decision of the Federal Prosecutor, supra note 6, at 68. 49 Ibid. 50 See Dreist, supra note 47, at 151. 51 Decision of the Federal Prosecutor, supra note 6, at 53, with further references. 52 Ibid. 53 German Military Criminal Code (1957).

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that the general German Penal Code is applicable to soldiers unless the German Military Criminal Code provides for an exception.54 Military crimes pursuant to the German Military Criminal Code comprise, inter alia, violations of the duty to fulfil military obligations (Straftaten gegen die Pflicht zur militärischen Dienstleistung),55 violations of the obligations as a subordinate (Straftaten gegen die Pflichten der Untergebenen),56 violations of the obligations of a superior (Straftaten gegen die Pflichten der Vorgesetzten),57 and violations of other mili­ tary obligations (Straftaten gegen andere militärische Pflichten).58 In addition, the German Military Disciplinary Code (Wehrdisziplinarord­ nung)59 and the German Code of Criminal Procedure (ccp, Strafprozes­ sordnung)60 are applicable for the adjudication of offences committed by German soldiers. 5

Adjudicated Cases

BVerwG Judgement of 21 June 2005 ( freedom of conscience for soldiers) In 2005, disciplinary proceedings were initiated against a German soldier who had stated that he could no longer execute orders which would amount to an illegal participation in the armed conflict in Iraq. These proceedings were finally decided by the German Federal Administrative Court, the Bundesver­ waltungsgericht.61 Although this case was not specifically related to the armed conflict in Afghanistan, the judgement of the Bundesverwaltungsgericht could be potentially relevant for any other armed conflict in which the legal justifica­ tion for the conflict is doubtful. 5.1

54 55 56 57 58 59 60 61

§ 3 German Military Criminal Code. §§ 15–18 German Military Criminal Code, for instance the offence of unauthorised absence from duty (§ 15). §§ 19–29 German Military Criminal Code, for instance the offence of disobeying an order (§ 20). §§ 30–41 German Military Criminal Code, for instance the offence of inhumane treat­ ment (§ 31). §§ 42–48 German Military Criminal Code, for instance the offence of unlawful use of weapon (§ 46). German Military Disciplinary Code (1957). German Code of Criminal Procedure (1877). BVerwG 2 wd 12.04, Judgement, 21 June 2005 (hereinafter ‘Judgement of the Federal Administrative Court’), available at www.bundesverwaltungsgericht.de, accessed 15 October 2013.

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The soldier, who had been working in an it-project that could potentially be used for supportive actions in the armed conflict in Iraq, disobeyed the written order to continue participating in the project, irrespective of his per­ sonal views on the armed conflict.62 The Judgement of the Federal Adminis­ trative Court first recalled that, in principle, every soldier has to obey an order given to him or her.63 The Court found, however, that this general obli­ gation is not unrestricted and is limited by various legal exceptions, such as the freedom of conscience pursuant to Article 4(1) gg.64 In such a situation, the soldier had a right to be given an alternative to the order which would have taken into consideration his or her freedom of conscience.65 The scope of protection offered by the freedom of conscience pursuant to Article 4(1) gg must be read into § 11(1)(2) of the Act Regarding the Legal Position of Soldiers (sg, Soldatengesetz) which states that a soldier has to execute an order ‘consciously’. Thus, no soldier is required to execute an order without applying his conscience, and there is no ‘unconditional obeyance’ to orders; instead, each soldier has to think about the results of his or her acts and must measure them against his or her ethical beliefs.66 The Court explicitly discussed these provisions in the historical context, describing this interpretation of the applicable law as a response to previous periods in German military history where basic rights for civilians and mem­ bers of the armed forces alike were severely curtailed.67 In contrast to these dark times in German history, the German Bundeswehr has been instituting the concept of ‘citizen in uniform’ (§ 6, first sentence, sg) which provides that, in principle, every member of the armed forces has the same civilian rights as any civilian.68 It is in this context that the Federal Administrative Court anal­ ysed whether the soldier lawfully exercised his right of freedom of conscience when he disobeyed the orders which potentially forced him to contribute to the war efforts in the armed conflict in Iraq. Within the discussion of this issue, the Court analysed the legality of the war and found that ‘grave legal concerns’ existed with respect to the United Nations Charter’s general prohibition to use 62 Judgement of the Federal Administrative Court, supra note 61, at 21–3. 63 Ibid., at 28. 64 Ibid., at 25. 65 Ibid. 66 See ibid., at 47. 67 Ibid., at 48. On 28 February 1933, the basic rights were suspended for both civilians and soldiers as a result of the burning Reichstag. See ‘Verordnung zum Schutz von Volk und Staat’, 28 February 1933, rgbl. I, at 83, referred to in Judgement of the Federal Administrative Court, supra note 61, at 48. 68 Judgement of the Federal Administrative Court, supra note 61, at 49.

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force as well as other principles of international law.69 In particular, the Court found that neither United Nations Security Council resolutions nor the right to self-defence pursuant to Article 51 of the un Charter provided a legal basis for the attack in Iraq.70 It is in this sense that the Judgement of the Federal Administrative Court is relevant for the armed conflict in Afghanistan. As stated above, it can be argued that the attack on Afghanistan and the ensuing armed conflict could be based neither on United Nations Security Council resolutions nor on the right to selfdefence pursuant to Article 51 of the un Charter.71 Thus, it would be interesting to see how German courts would decide on a case in which a member of the German armed forces disobeyed an order to participate in the war effort in Afghanistan on the basis of his or her right to exercise his or her freedom of conscience and with reference to the Judgement of the Federal Administrative Court in the context of the armed conflict in Iraq. Unlike the situation in Iraq, however, there is no judgement of a German court in which the legality of the armed conflict—and the participation of German troops in it—has been dis­ cussed and analysed. Similarly, the Decision of the Federal Prosecutor regard­ ing Colonel Klein does not explicitly address this issue. It was not necessary for the Federal Prosecutor to make this decision, as the criminal liability of a per­ son pursuant to the ccail and the German Penal Code does not depend on the character of the armed conflict (i.e. whether it is lawful or unlawful) in which a jurisdictional crime was committed. 5.2 Killing at a Road Block: StA Frankfurt/Oder, 2008 A case in which a military incident involving German soldiers had attracted the interest of a public prosecutor was the so-called ‘Road Block Case’ of October 2008.72 At that time, the German Bundeswehr had established a road block near Kunduz. When a car approached the road block, the German sol­ diers discharged warning shots and finally shot at the car, injuring five Afghan civilians.73 When this case came before a German public prosecutor, the then 69 70 71 72

73

Ibid., at 72. Ibid., at 73–80. See Freiburger Juristenerklärung, supra note 1. See H. Frister, M. Korte, and C. Kress, ‘Die strafrechtliche Rechtfertigung militärischer Gewalt in Auslandseinsätzen auf der Grundlage eines Mandats der Vereinten Nationen’, (2010) Juristen Zeitung 10. Already in November 2009, investigations in 61 cases with the involvement of German soldiers were completed. Ibid. C. von der Groeben, ‘Criminal Responsibility of German Soldiers in Afghanistan: The Case of Colonel Klein’, (2010) 11 German Law Journal 469, at 470, with further references, including to a similar incident of 17 January 2010.

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Minister of Defence Franz Josef Jung stated that the Bundeswehr was not engaged in an armed conflict in Afghanistan, but in a stabilisation mission.74 Therefore, the investigation was conducted exclusively in accordance with the provisions of German national criminal law, namely in particular with respect to the offences of murder, attempted murder, and the causing bodily harm by dangerous means.75 The public prosecutor had no difficulty in finding that the actus reus and the mens rea of the crimes were fulfilled. The more complex question, however, was whether the respective offences were justified. The public prosecutor first considered whether the mandate of the United Nations Security Council, as encompassed in Security Council Resolution 1386 (2001) and subsequent reso­ lutions, provided such justification.76 He negated this question, arguing that the fact that the soldiers at the road block acted out of self-defence precluded the possibility of acting with the aim to fulfil the mandate at the same time.77 This argument, however, is not convincing. The mere fact that a soldier is acting in self-defence cannot per se deprive him of the possibility to lawfully act in accordance with his or her mandate. There may be situations in which a soldier acts in self-defence and, at the same time, in accordance with the fulfil­ ment of the isaf mandate: if, for instance, a nato soldier in Afghanistan is unlawfully attacked by an insurgent who, when carrying out this attack, consti­ tutes a threat to the maintenance of security in Kabul or other areas in Afghanistan, any defensive action by the nato soldier against the insurgent would be justified by both the legal principle of self-defence, as it is well-known in domestic penal law, and the isaf mandate. Nevertheless, the public prosecutor analysed whether the German sol­ diers at the road block were justified under German national law (see § 32(2) German Penal Code). It stated that, since there was no objective attack against which the soldiers could have defended themselves, they had acted in so-called putative self-defence. This means that they had been mistaken as to the factual situation and their behaviour would have been justified if the perceived factual situation had been real.78 In other words: the soldiers rea­ sonably assumed that the car that was approaching their road block, and ignoring the warning shots constituted an imminent attack against which the soldiers would have been allowed to act in self-defence. Therefore, the 74 Ibid. 75 Ibid. 76 Ibid., at 472. 77 Ibid. 78 Ibid.

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public prosecutor came to the conclusion that the investigations against the soldiers had to be terminated.79 5.3 Colonel Klein and First Sergeant Wilhelm The most important case so far involving German members of the armed forces in Afghanistan has evolved around an aerial attack on two gas trucks in September 2009, an attack that was ordered by a German soldier, Colonel Klein. Another German soldier, First Sergeant Wilhelm, had transmitted the order. In light of the fact that this case is the most prominent one in Germany that arose from the armed conflict in Afghanistan, the factual and legal aspects of it will be set out below in some detail. The events on 3 and 4 September 2009 will be dealt with first. On the eve­ ning of 3 September 2009, the 22-year old Afghan was very tired.80 He had bro­ ken his fast and went to bed early in order to rest. Some hours earlier, two gas tanker trucks had gone stranded on a sand-bank, and his mother told him that all neighbours had already fetched some gas from them. She said that their family was the only family that had not taken any. At first, he did not follow his mother’s request. But when his mother ordered him to go, arguing that his family was poor and that the gas would help their finances, he did not dare to refuse this order, for traditional and religious reasons. So he picked up a canis­ ter and walked the three kilometres from his village to the sand bank. At around midnight, he emptied the canister at home and returned to the sandbank to get more gas. Several hours earlier, in the morning of 3 September 2009, a convoy of gas trucks was on its way to Kabul. It was stopped in the afternoon at a road block manned by Taliban, and while most of the trucks managed to break through, the last two trucks were halted.81 Taliban forces killed one of the drivers and forced the other to drive to Gor Tepa, a village about 25 km away from the mili­ tary compound of the Provincial Reconstruction Team of isaf forces in Kunduz.82 At around 6:15 p.m., when the two gas trucks tried to cross the river Kunduz, they got stuck on a sandbank in the middle of the river.83 The surviv­ ing truck driver later stated that at this moment about 56–70 Taliban were on 79 Ibid. 80 The following information has been taken from a motion of the law firm Geulen & Klinger to the Federal Ministry of Defence, 20 May 2010, at 32–3 (hard copy with the author). 81 European Center for Constitutional and Human Rights, Report on criminal responsibility in the Kunduz case, 10 June 2010, at 16–7. 82 Decision of the Federal Prosecutor, supra note 6, at 16. 83 Ibid., at 17.

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the sand bank.84 Some of them walked to the mosque in a nearby village to ask the locals for help to move the gas trucks.85 Some of the villagers came in cars; others walked on foot. Along with them, they carried canisters. Around 8:00  p.m. on the day before, German soldiers in Kunduz were informed that the two gas trucks had been stolen.86 The soldiers subsequently asked for air support, and between 12:14 a.m. and 12:48 a.m., B1-bomber planes were recording and transmitting black and white pictures from the sand­ bank to the German Tactical Operation Center (toc) where Colonel Klein was in command.87 These planes were flying about 10,000 metres high, and apart from their pictures, the soldiers in the toc relied on the information of an Afghan informant who was not at the sandbank, but had telephone con­ tact with one of the individuals who had abducted the trucks.88 Captain Nordhausen, one of the officers present at the toc, told Colonel Klein that this informant was generally reliable, but that his own interests and mistakes could not be excluded and that information from one source could not be accepted as fully reliable.89 Two F-15 fighter jets sent video pictures to the toc.90 When one of the pilots informed Colonel Klein that a group of per­ sons was moving away from the river, he decided that the gas trucks and the persons around them constituted a target and an immediate threat to the military compound of the Provincial Reconstruction Team of isaf forces in Kunduz.91 On this basis, he ordered the pilots to get ready for an attack.92 The pilots asked five times whether they should do a ‘show of force’ in order to disperse the persons next to the trucks or throw heat torches to reduce the number of victims.93 Colonel Klein, however, stated that such measures had previously proved useless.94 Shortly thereafter, the F-15 bombers dropped two 500 pound bombs on the sand bank.95 The ensuing death toll was

84 Ibid. 85 Ibid. 86 Report on criminal responsibility in the Kunduz case, supra note 81, at 18. 87 Ibid., at 19. 88 Ibid., at 20. 89 Ibid., at 21: ‘Meldungen aus einer Quelle seien “grundsätzlich nicht als absolut anzunehmen”’. 90 Ibid., at 21. 91 Ibid., at 22. 92 Ibid. 93 Ibid., at 22–3. 94 Ibid., at 23. 95 Ibid.

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between 50 (according to the Federal Public Prosecutor) and 113 (according to Mr. Popal, one of the three German lawyers who had been authorised by rela­ tives of the victims to represent them before German courts).96 The Inter­ national Committee of the Red Cross recorded 74 killed civilians, among them children of eight, ten, and 12 years of age.97 The 22-year old Afghan did not come back home alive. At around 8:00  a.m. in the morning of 4 September 2012, his body was handed over to his family. He left behind his young wife, a one-year old child, his mother, his grandfather, and two younger siblings. In the period following this incident, various reports were prepared. German military police examined the site on 4 September 2009 around noon, discover­ ing only a few traces of the victims who had been killed.98 In the afternoon of the same day, isaf Supreme Commader McChrystal sent an Initial Action Team to Kunduz who interviewed all persons involved in the incident and pre­ pared a report.99 Further reports were prepared by, inter alia, an isaf Fact Finding Team, a representative of the Kunduz region to President Karzai,100 and the European Center for Constitutional and Human Rights.101 The legal aspects of the investigation against Colonel Klein and First Sergeant Wilhelm will now be analysed. On 12 March 2010, the German Federal Prosecutor started criminal investigations against Colonel Klein and First Sergeant Wilhelm, who had, inter alia, passed on to the F-15 bomber pilots Colonel Klein’s order to drop the bombs on the sand bank. On 16 April 2010, the Federal Prosecutor decided to terminate these investigations, since, in the Prosecutor’s view, neither Colonel Klein nor First Sergeant Wilhelm had incurred criminal responsibility under the ccail or the German Penal Code, respectively. This decision provides an in-depth discussion of issues related to the application of international criminal law, as implemented in German crim­ inal law codes. It also shows the interplay between international criminal norms, national codes of penal law, and various disciplinary provisions. This interplay of norms and provisions will be discussed further below. As a preliminary comment, it must be noted that many factual aspects of the incident cannot be verified as the above-mentioned reports are not pub­ lished. Their content has only become known to the public to the extent that the Decision of the Federal Prosecutor or various newspapers have publicly 96 Ibid. 97 Ibid., at 24. 98 Ibid. 99 Ibid., at 25. 100 Decision of the Federal Prosecutor, supra note 6, at 3–4. 101 See Report on criminal responsibility in the Kunduz case, supra note 81.

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referred to them.102 Therefore, the legal analysis presented here is primarily based on the facts as set out in the Decision of the Federal Prosecutor as well as a report of the ngo, the European Center for Constitutional and Human Rights, which is itself to a large extent based on public sources such as news­ paper articles. The first crime analysed by the Federal Prosecutor was the crime of a mili­ tary attack that causes death or injury to civilians on a scale out of proportion to the anticipated military advantage.103 The Federal Prosecutor rightly stated that the actus reus of this provision was fulfilled, as it merely required that a military attack was carried out in connection with an armed conflict: clearly, the dropping of two 500 pound bombs by fighter jets satisfies the requirement of an attack.104 The prerequisites of the mens rea of the crime of disproportionate military attacks,105 however, are generally more difficult to establish. In order to incur criminal liability, the perpetrator not only has to anticipate that the attack will definitely cause at least one of the enumerated damages, but also that such damage will be disproportionate to the military advantage. This requires direct intent (dolus directus second degree).106 The Federal Prosecutor held that Colonel Klein did not fulfil these mens rea requirements. It accepted that Colonel Klein anticipated that the attack would hit the gas trucks; up to 70 Taliban fighters who were in the vicinity of these trucks; and two other cars that stood nearby.107 Thus, the Federal Prosecutor was satisfied that Colonel Klein did not expect damage to civilians or civilian objects, as the Taliban— who continuously participated in the armed conflict—were legitimate mili­ tary targets which could be attacked even outside an ongoing exchange of military force.108 These fighters continue to carry the status of a legitimate military target until they have unambiguously and finally abandoned their 102 See, for instance, ‘Die Schweigespirale’, Der Spiegel, 30 November 2009, at 23, 25. 103 Section  11 (War Crimes Consisting in the Use of Prohibited Methods of Warfare): (1) Whoever in connection with an international armed conflict or with an armed conflict not of an international character … 3. carries out an attack by military means and defi­ nitely anticipates that the attack will cause death or injury to civilians or damage to civilian objects on a scale out of proportion to the concrete and direct overall military advantage anticipated, … shall be punished with imprisonment for not less than three years. 104 Decision of the Federal Prosecutor, supra note 6, at 45. 105 See Section 11(1) No. 3 ccail. 106 Diehl, supra note 44. 107 Decision of the Federal Prosecutor, supra note 61, at 46. 108 Ibid., at 46–7.

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function.109 Similarly, pursuant to the Federal Prosecutor, the gas trucks were legitimate military targets at the time the bombs were dropped, as they had lost their civilian status in the moment in which they were seized by the Taliban.110 In their hands, they could be used to fuel cars that might later serve as weapons during attacks or as detonation devices, and their destruction thus constituted a military advantage. For the foregoing reasons, the Federal Prosecutor decided that Colonel Klein could not incur criminal liability for the crime of disproportionate military attacks.111 Similarly, the Federal Prosecutor decided that Colonel Klein could not have incurred criminal liability for killing as a war crime and for directing a military attack against civilians as a war crime.112 While the former penalises the killing of a person protected under international humanitarian law, the Federal Prosecutor held that the victims of the killings on the river bank were no such protected persons.113 As to the latter, the Federal Prosecutor stated that Colonel Klein could not be held criminally responsible as the attack was not directed against civilian persons, but against military targets. If civilian victims are caused as a collateral damage, criminal responsibility can only be incurred for the crime of disproportionate military attacks.114 Having thus established that Colonel Klein could not have incurred crimi­ nal responsibility under the ccail, the Federal Prosecutor analysed whether charges could be sustained for violations of the general German Penal Code, which is applicable in concurrence with the ccail.115 At the outset, the Federal Prosecutor held that he was competent to deal with an investigation into the question whether Colonel Klein could have incurred individual criminal responsibility for the attack. In so doing, the Federal Prosecutor was satisfied that he had jurisdiction in cases in which elements of the acts reus or the mens rea of a crime under the ccail were not 109 K. Ambos, in: Münchner Kommentar StGB, Vor §§ 8 et seq., note 41 (with further references). 110 Decision of the Federal Prosecutor, supra note 6, at 48–9, referring to ap I, Art. 52(1)(2). 111 See Section 11(1) No. 3 ccail. 112 Sections 8 (1) No. 1 ccail (‘Whoever in connection with an … armed conflict not of an international character … kills a person who is to be protected under international human­ itarian law’) and 11(1) No. 1 ccail (‘Whoever in connection with an … armed conflict not of an international character … directs an attack by military means against the civilian population as such or against individual civilians not taking direct part in hostilities’). 113 Ibid., at 50–1. 114 Ibid., at 51. 115 Ambos, supra note 109; Decision of the Federal Prosecutor, supra note 6, at 51–2.

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fulfilled but where a prosecution for crimes under the general German Penal Code is still possible.116 With respect to the crime of murder under § 211 of the German Penal Code, the Federal Prosecutor stated that the actus reus and the mens rea of this crime were fulfilled.117 After finding that the elements of the crime were fulfilled, however, the Federal Prosecutor held that Colonel Klein’s acts were justified under international law. He first stated that Colonel Klein’s acts did not only result in the killing of armed members of a war­ ring party (the Taliban), but also civilians who did not directly participate in the hostilities. However, the Federal Prosecutor argued that interna­ tional humanitarian law only penalizes attacks against civilians as such, as well as against military targets, provided that the anticipated civilian dam­ age was excessive in relation to the anticipated concrete and direct mili­ tary advantage.118 In the present case, the Federal Prosecutor considered that the anticipated military advantage—i.e. the prevention of the use of the gas trucks for terrorist attacks and the killing of Taliban, which would lead to an at least temporary disturbance of local Taliban command structures—constituted an accepted military-tactical advantage.119 In order to determine the excessiveness of the damage, the Federal Prosecutor accepted an ex ante assessment, which means in the case at hand that one had to consider the anticipation of Colonel Klein on the basis of the facts that were known to him at the time of the attack.120 In this context, the Federal Prosecutor stated that, on the basis of the factual cir­ cumstances known to Colonel Klein at the time of the attacks, he could not anticipate that protected persons were present at the gas trucks: the next vil­ lages were at some distance; it was in the middle of the night; armed Taliban were present; and the informant had not mentioned any protected persons.121 The Federal Prosecutor was also convinced that further measures of precau­ tions122 were not available within the necessary time.123 It was even convinced that, if arguendo the killing of several dozen of protected persons had been anticipated, this would not have been excessive to any military-tactical 116 Decision of the Federal Prosecutor, supra note 6, at 54–8, with further references. 117 Ibid., at 59. 118 Ibid., at 63. 119 Ibid., at 64. 120 Ibid., at 64–5. 121 Ibid., at 65. 122 See api, Art. 57(2)(a). 123 Decision of the Federal Prosecutor, supra note 6, at 65.

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advantage, as the present case did not show an obviously excessive scenario: the destruction of the gas trucks and the killing of, as the Federal Prosecutor found, high-ranking Taliban leaders had a military importance that was not to be underestimated, in particular with respect to a reduced danger for the German troops and other protected persons from Taliban attacks.124 While the Federal Prosecutor considered that, in general, warnings have to be issued prior to an attack in order to protect the civilian population,125 this was unnecessary in the present case as Colonel Klein reasonably did not anticipate civilian casualties. Furthermore, a warning could have endangered the achievement of the legiti­ mate military goal.126 As a result, the Federal Prosecutor held that Colonel Klein could not have incurred criminal liability for the attacks on the gas trucks. For similar reasons, no prosecution was started against First Sergeant Wilhelm.127 This Decision of the Federal Prosecutor has received a mixed feedback. It has been supported128 and criticised129 by practitioners and academics alike. The criticism dealt in particular with questions of procedural law, such as the insufficient investigation of the facts and the failure to grant the right to be heard to the legal representatives of the victims.130 As to the issues of substan­ tive criminal law, it has been criticised that a justification of the attack on the gas trucks could not be taken from international humanitarian law, since Article 57 of Additional Protocol I to the Geneva Conventions of 12 August 1949 (ap I)131 was violated: according to that provision, attacks on the civilian popu­ lation are forbidden, and there are arguably severe doubts as to whether Colonel Klein indeed did everything that was necessary to determine whether civilians were among the people in the vicinity of the gas trucks.132 Furthermore, it has been argued that the facts ex ante were insufficient to anticipate that the attack would not be excessive to the military benefit. In this context, it was particularly noted that there was only one informant present at the site of the attack.133 In sum, it has been argued that the Federal Prosecutor failed to 124 Ibid., at 66. 125 Ibid., at 67. 126 Ibid. 127 Ibid., at 69. 128 Diehl, supra note 44. 129 W. Kaleck, A. Schüller, and D. Steiger, ‘Tarnen und Täuschen’, (2010) Kritische Justiz 270; Groeben, supra note.73. 130 Kaleck, supra note 129, at 271. 131 Art. 57 of ap I is applicable as part of customary international law in non-international armed conflicts, too. See ibid., at 273, with further references. 132 Ibid. 133 Ibid., at 274.

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determine several violations of international humanitarian law: the duty to acquire sufficient information about the target prior to an attack; the avoid­ ance of excessive losses of life among the civilian population; and the duty to warn the civilian population.134 On 20 March 2013, a civil lawsuit began at the District Court (Landgericht) in Bonn, initiated by two relatives of victims who were killed during the attack on the gas trucks.135 One of the plaintiffs lost two of his children; the other her husband. Both are claiming Euro 30,000 compensation for each of the victims.136 6

Lessons to Be Learned from Adjudicated Cases

6.1 Legal Training for Soldiers While it is less than certain that Colonel Klein and First Sergeant Wilhelm would have acted differently had they received more training in international humanitarian law and international criminal law—indeed, the German Federal Prosecutor found that their acts were lawful—this section will discuss the importance of proper legal training for military staff and civilians alike, which should include the teaching of the relevant jurisprudence of interna­ tional and national courts. The focus of this book is the protection of the most vulnerable persons in armed conflict, be it international or non-international in character: the noncombatants and the civilians. Traditionally, international humanitarian law was preoccupied with the protection of wounded combatants and combatants who had fallen into the hands of their enemy and were victimized as prisoners of war or as persons hors de combat. At the time of the first Geneva Conventions, the fate of those combatants was the primary concern.137 As wars were still 134 See Arts. 51 and 57 of ap 1 which are applicable as part of customary international law in non-international armed conflicts. Kaleck, supra note 129, at 276. See also ibid., at 273. 135 B. Döries, ‘Deutschland vor Gericht’, Süddeutsche Zeitung, 21 March 2013, at 5. 136 Ibid. 137 See, for instance, 1864 Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, 22 Stat 940 (22 August 1864), Art. 6; 1906 Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, 35 Stat 1885 (6 July 1906), Art. 1; 1929 Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, 118 lnts 303 (27 July 1929), Art. 1; 1929 Convention relative to the Treatment of Prisoners of War, 118 lnts 343 (27 July 1929), Art. 2.

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fought between professional armies and with only little involvement of the civilian population, the drafters of these conventions did not see a particular need to address other victims of armed conflicts. It was only when modern warfare began to affect and harm civilian property and civilian life that the need of their protection was legislated in the Fourth Geneva Convention.138 It took, however, much longer until the first rules of procedure and evidence defined the term ‘victim’. The provisions neither of the International Criminal Tribunal for the former Yugoslavia nor of the Inter­ national Criminal Tribunal for Rwanda explain the legal ramifications of this term. It was first the International Criminal Court that stated in Rule 85 of its Rules of Procedure and Evidence that ‘victims’ are ‘natural persons who have suffered harm as a result of the commission of any crime within the jurisdic­ tion of the icc’.139 The Afghan civilians who died in the attack on the gas trucks and at the road blocks in Afghanistan clearly are victims within this definition; and so are their parents and immediate family.140 When we ask ourselves how these individuals can be better protected in times of armed conflict, it seems essential to put an emphasis on the legal training of soldiers. Every combatant must know what he is allowed to do under international humanitarian and criminal law. This is particularly impor­ tant in times of armed conflicts which so often pervert the perception of what is good and what is evil: while abiding by the applicable rules is the normal feature in times of peace, breaking the rules in the pursuit of defending a country and/or ideology or taking revenge can become almost the rule in armed conflicts. Therefore, it is of utmost importance that every combatant is fully aware of the applicable law. It would be an important step in the right direction if at least military lawyers and high-ranking officers were sent regularly to the international tribunals in order to discuss the latest develop­ ments in the area of international criminal law and international humani­ tarian law. For instance, training on the mere wording of the provisions in the Geneva Conventions will not be sufficient to explain to a soldier the 138 1949 Geneva Convention relative to the Protection of Civilian Persons in Time of War (IV), 75 unts 287 (12 August 1949). 139 It further provides that ‘victims may include organizations or institutions that have sus­ tained direct harm to any of their property, which is dedicated to religion, education, art or science or charitable purposes and to their historic monuments, hospitals and other places and objects for humanitarian purposes’. 140 See, for the definition of victims, Prosecutor v. Lubanga Dyilo, Decision Establishing the Principles and Procedures to Be Applied to Reparations, ICC-01/04-01/06, T.Ch. II, 7 August 2012, paras. 194–7.

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concept of aiding and abetting or superior responsibility as developed over the past 20 years in the jurisprudence of the international tribunals.141 In the course of these years, international humanitarian law has been fur­ ther defined by this international jurisprudence. An example for this is the interpretation by the icty of Article 52(1) of ap I, the general protection of civilian objects. This provision states that civilian objects shall not be the object of attack or of reprisals. While various national legal systems in the 1990s required a damage resulting from the attack in order to find the actus reus of this provision fulfilled, others did not. Called upon to rule on this mat­ ter for incidents that had occurred from 1991 to 1994,142 the Appeals Chamber of the icty found that: [A]t the time the unlawful attack occurred […], there was no basis for finding that, as a matter of customary international law, state practice or opinio iuris translated the prohibitions under Articles 51 and 52 of Additional Protocol I into international crimes, such that unlawful attacks were largely penalized regardless of the showing of a serious result.143 In other words, the icty held that customary international law at the relevant time required a result of the attack in order to attribute individual criminal responsibility to the perpetrator of the attack. Thus, it is not sufficient to teach soldiers the mere wording of the treaties of international humanitarian law such as the Geneva Conventions and their Additional Protocols. Instead, it is important to teach them the newest judgements and decisions in the juris­ prudence of international tribunals which analyse the law and develop it further. It is impossible to say whether better legal training may have prevented the killing of civilians at Kunduz. In fact, the German Federal Prosecutor found that the acts of Colonel Klein and First Sergeant Wilhelm were lawful. However, this does not weaken the importance of continuous training of soldiers in the most recent developments in international criminal law and international humanitarian law. It would be desirable, for instance, if armies would engage in establishing ‘train-the-trainer’ seminars with international courts and 141 In particular, the jurisprudence of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda. 142 See the Indictment available at www.icty.org/x/cases/ic_cerkez/ind/en/kor-1ai980930e.pdf (accessed 15 October 2013). 143 Kordić and Čerkez Judgement, supra note 38, para. 66.

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tribunals, in which the representatives of national armed forces would get first-hand information about the latest developments in international criminal law. This information could then be disseminated by lecturers to the soldiers who should always know about the (international) law applicable during their deployment. Excursus: Public Awareness of International Humanitarian Law and International Criminal Law However, in today’s armed conflicts it is not sufficient to train the profes­ sional soldiers in order to protect civilian life and property. Just like the scope of legal protection was widened over the decades from soldiers to civilians, education about the applicable norms of international humanitarian law, international criminal law, and human rights in general has to encompass all citizens in every country of the world in order to contribute to the prevention of human rights violations within and outside of armed conflicts. Thus, these areas of law have to be more prominent in the education all over the world. They should be included in the curriculum of every school, so that children are not only taught in which year a specific battle took place and how many soldiers fought it and which of the warring parties left the battlefield as the ‘winner’. Instead, children must hear about the countless human horrors behind these historical accounts and about the applicable law that penalises the crimes that have been committed in all armed conflicts. Awareness of international criminal law and international humanitarian law should be raised on tv and on the internet, which appears to be the easiest way to reach out to children and adults all over the world. Most importantly, chil­ dren and adults alike have to be consistently told that the rules of armed warfare are non-derogatory, and that they apply in every armed conflict, no matter if one is the attacker or is attacked, and irrespective of any political or religious belief. The public at large has to be convinced that it is important to uphold the legal system of international humanitarian law and international ­criminal law. This is in line with recommendations of the United Nations General Assembly of December 2011. In its 66th Session, the General Assembly wel­ comed the United Nations Declaration on Human Rights Education and Training which called upon states to develop plans to carry out human rights education and training, for instance by integrating such training in the educa­ tion plans in schools and secondary education facilities.144 In a similar vein, 6.2

144 2011 United Nations Declaration on Human Rights Education and Training, un Doc. A/ RES/66/137 (19 December 2011), Art. 8(1).

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the Declaration stated that education facilities, media, families, local societies, and institutions of civil society (including ngos, human rights advocates, and corporate economy) all play an important role in supporting human rights education.145 In Germany, an important part of this work is done by the German Institute for Human Rights, which has published together with the Bundeszentrale für Politische Bildung and the Council of Europe Compass—A Manual on Human Rights Education with Young People.146 Another publication ‘seeks to develop in children the knowledge, skills, values and attitudes they need to participate in their society, knowing and protecting their rights and the rights of others. In this way children can actively contribute to building a culture of human rights’.147 Similarly, the Council of Europe has stated that ‘[c]oncepts associated with human rights can, and should, be acquired from an early stage. For example, the non-violent resolution of conflict and respect for other people can already be experienced within the life of a pre-school or primary class’.148 In Germany, the Secretariat of the Standing Conference of the Ministers of Education and Cultural Affairs of the Länder has stated that ‘human rights education is a major task in the pedagogical mission of school and is defined in all Länder constitutions and school laws as one of the primary aims of education’.149 It went on to state: Education with respect to human rights is intended to equip the student with the ability to promote the realisation of human rights in his or her personal and political surroundings. He or she should be ready to use the 145 Ibid., Art. 10(1). 146 A copy of Compass can be downloaded free of charge at http://eycb.coe.int/compass/en/ contents.html (accessed 15 October 2013). It is also available online in French, Russian, and Arabic. 147 Compasito, Manual on Human Rights Education for Children, Section III, ‘How to use Compasito’, ‘The Goal of Compasito’. An electronic version can be downloaded at http:// eycb.coe.int/compasito/default.htm (accessed 11 March 2014). 148 Council of Europe, Committee of Ministers, Recommendation No. R (85) 7 of the Committee of Ministers to Member States on Teaching and Learning About Human Rights in Schools, Adopted by the Committee of Ministers on 14 May 1985 at the 385th meeting of the Ministers’ Deputies, Apps., 1.2. 149 Recommendation of the Standing Conference of the Ministers of Education and Cultural Affairs on the Promotion of Human Rights in Schools, Resolution of the Standing Conference of the Ministers of Education and Cultural Affairs of 4 December 1980 in the version of 14 December 2000, at 4.

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question concerning the realisation of human rights as an important yardstick for assessing the political conditions both in their own country and in other countries. This includes being prepared to stand up for the rights of others.150 An example of human rights education for adults is Daliluna—A Practical Manual for Capacity Building of Human Rights Trainers in Iraq which provides for an introduction into the methodology of human rights education, modules for the planning, execution, and evaluation of training courses and theoretical background knowledge on issues such as discrimination, gender justice, and prohibition of torture and the death penalty.151 In this context, it is worth noting the recommendations of unama made in order to minimize civilian loss of life and injury and harm to civilian commu­ nities. In 2012, unama appealed to the Government of Afghanistan to: take further concrete steps to strengthen rule of law institutions, particu­ larly police and judiciary, in order to ensure that criminal activity is increasingly dealt with in a lawful manner by government agencies. This includes investigation, prosecution, and punishment of individuals car­ rying out unlawful punishments in parallel justice structures, particularly killings, as well as human rights abuses and other criminal acts carried out by Anti-Government Elements.152 Furthermore, the report suggested to: create a civilian casualty mitigation team in the Afghan National Army similar to the isaf Civilian Casualty Mitigation Team to ensure transpar­ ent and timely investigations and accurate tracking of all incidents of civilian casualties caused by [Afghan National Security Forces] to improve civilian protection, compensation and accountability.153 Indeed, information exchange fora such as the Joint Civilian Casualties Miti­ gation Working Group, the Joint Civilian Casualties Board, and ansf/isaf 150 Ibid., at 5. 151 The manual was edited by Capacity Building International (InWEnt gGmbH), 2010. An online version of this manual can be downloaded in English and Arabic at www.institut -fuer-menschenrechte.de (accessed 15 October 2013). 152 unama Mid-Year Report 2012, supra note 7, at 10. 153 Ibid.

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Population Protection Conferences were established.154 Furthermore, in May 2012 the Government of Afghanistan established a Civilian Casualties Tracking Team (it is difficult to understand why this only happened more than ten years after the beginning of the armed conflict and a couple of years before the announced retreat of the majority of the Western troops), and in October of the same year, the Government appointed an advisor to President Karzai on the protection of civilians.155 As to the international military forces deployed in Afghanistan, the midyear report 2012 suggests to: continue reviewing tactical directives and operational procedures, par­ ticularly those regulating the conduct of aerial attacks, with a view to further preventing incidental loss of civilian life and injury and damage to civilian objects and providing reparations to civilian victims of attacks. Continue to conduct post-operation reviews and investigations in coop­ eration with the Afghan Government in cases where civilian casualties have occurred.156 It further states that, in cases in which civilian casualties have occurred, ‘trans­ parency, accountability and better relations with affected Afghan civilians and communities’ have to be promoted ‘through the prompt and public release of all isaf findings on incidents’, including ‘disciplinary measures and systematic provision of compensation and redress’.157 Ultimately, however, as set out above, the need to raise public awareness of the importance of international humanitarian law goes beyond the situation of Afghanistan. 6.3 Contribution of these Cases to a Minimisation of Civilian Victims? In the context of the law on sentencing in international criminal law, one refers to various sentencing purposes such as ‘just deserts’ and deterrence.158 Although it is very tempting to ask whether international trials and convictions for 154 unama, Afghanistan: Annual Report on the Protection of Civilians in Armed Conflict 2012, 2012, at 8, 39. 155 Ibid., at 37–8. In this context, it is difficult to understand why President Karzai said in an interview in March 2013 that he had waited for years to address the issue of civilian vic­ tims with the Western countries. T. Matern, ‘Ich hätte härter sein sollen’, Süddeutsche Zeitung, 2 April 2013, at 2. 156 unama Annual Report 2012, supra note 154, at 15. 157 unama Mid-Year Report 2012, supra note 7, at 11. 158 See, e.g., Kordić and Čerkez Judgement, supra note 38, paras. 1075–6.

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international crimes have a minimizing effect on the commission of crimes, it is almost immeasurable whether such an effect exists. However, since the above-mentioned cases in which German soldiers were involved in the killing of civilians in Afghanistan did not lead to a conviction of German soldiers, it appears even more difficult to determine whether these cases had minimizing effects on the number of victims among civilians. To the contrary, it is possible that soldiers may feel reassured by this jurisprudence and opt for taking the same decision in similar circumstances. It is therefore of importance that the specific circumstances of these cases are repeatedly discussed among soldiers who are to be deployed in an armed conflict such as the one in Afghanistan. Furthermore, it is of utmost importance to inform the local civilian population about the presence and the actions of the soldiers. As of today, the yearly civilian death toll caused by the armed conflict in Afghanistan is still high. Pursuant to the annual report 2012 of unama on the protection of civilians in armed conflict, a total of 2,754 civilians were killed in 2012, and 4,805 civilians were injured.159 In the same year, 488 children were killed and 814 were injured, and 301 women were killed and 563 were wounded.160 Altogether, over the past six years 14,728 Afghan civilians have lost their lives in the armed conflict in Afghanistan.161 In addition, the United Nations High Commissioner for Refugees (unhcr) has stated that a total of 94,299 civilians have been newly displaced in Afghanistan in 2012 as a result of the armed conflict, and this conflict-induced displacement was higher than in the previous year.162 Altogether, 486,298 individuals have been internally dis­ placed due to the armed conflict.163 The unhcr analysed that the majority of conflict-induced displacement was due to the armed conflict as well as a gen­ eral deterioration of the security situation.164 In past years, isaf’s efforts to reduce the number of civilian casualties have led to a decline in the number of civilian loss of life by 12% and to a minimal increase in civilians injured compared to 2011, but these numbers only ‘under­ score the continuing high human cost of armed conflict in Afghanistan— which demands even greater commitment and redoubled efforts by all parties to reduce civilian casualties and improve protection of civilians in 2013’.165 At 159 160 161 162 163 164 165

unama Annual Report 2012, supra note 154, at 1. Ibid., at 10–11. Ibid., at 1. Ibid., at 60–1. Ibid., at 60. Ibid., at 61. Ibid., at 1.

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the end of 2011, the isaf Commander issued two directives which were aimed at a reduction of civilian casualties and the conduct of night search operations which remain a core tactic used by military forces.166 Furthermore, on 10 February 2012, isaf adopted a new edition of Standard Operating Procedure 307, isaf Civilian Casualty Handling Procedures which shall strengthen cur­ rent procedures for responding to and preventing civilian casualty incidents.167 isaf’s Deputy Commander chairs the civ(ilian) cas(ualties) Avoidance and Mitigation Board, which oversees all other working groups and initiatives related to civilian casualties, so that Commanders on every level can comment and take action in order to avoid incidents with civilian casualties.168 However, whether all these measures will lead to a significant decrease of civilian vic­ tims remains to be seen. 6.4 Should Such Cases Be Dealt with by Military Courts? As discussed above, the case of Colonel Klein was investigated by civilian lawenforcement authorities, namely the German Federal Prosecutor.169 Unlike countries like the United States, Canada, New Zealand, and many others, the German legal system does not have military courts that are competent to deal with cases in which a member of the armed forces is suspected of having com­ mitted a serious offence.170 However, the German military system has its own disciplinary courts for the adjudication of minor offences. The reasons for the establishment of such military tribunals can be illustrated by the Canadian system: The purpose of a separate system of military tribunals is to allow the Armed Forces to deal with matters that pertain directly to the discipline, efficiency and morale of the military. The safety and well-being of Canadians depends considerably on the willingness and readiness of a force of men and women to defend against threats to the nation’s secu­ rity. To maintain the Armed Forces in a state of readiness, the military 166 unama Mid-Year Report 2012, supra note 7, at 36. 167 Ibid. 168 Ibid. 169 As of April 2013, the public prosecutor in Kempten is competent for the investigation of all criminal offences (except violations of the ccail for which the Federal Prosecutor is competent) that are committed by members of the German armed forces outside Germany. See S. Mayr, ‘Ermitteln am Tatort verboten’, Süddeutsche Zeitung, 10 May 2013, at 1. 170 However, pursuant to Art. 96(2) gg, federal military courts can be established during a defensive war for members of the armed forces who have been deployed abroad or onboard war ships.

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must be in a position to enforce internal discipline effectively and effi­ ciently. Breaches of military discipline must be dealt with speedily and frequently, punished more severely than would be the case if a civilian engaged in such conduct. There is thus a need for separate tribunals to enforce special disciplinary standards in the military.171 Such military tribunals deal typically with disciplinary offences such as drunk­ enness on duty or insubordination, and disciplinary punishments may include deprivation of liberty for a short period of time, financial punishment, or reduction in rank.172 However, this justification is not valid in situations in which members of the armed forces are suspected of having committed a seri­ ous offence, in particular a serious crime under the jurisdiction of an interna­ tional tribunal. In line with the un Principles Governing the Administration of Justice through Military Tribunals, persons accused of serious human rights violations shall not be tried by military courts: In all circumstances, the jurisdiction of military courts should be set aside in favour of the jurisdiction of the ordinary courts to conduct inqui­ ries into serious human rights violations such as extrajudicial executions, enforced disappearances and torture, and to prosecute and try persons accused of such crimes.173 There are in particular two reasons brought forward in support for this princi­ ple. First, if it is understood that military courts should deal with matters that fall within the scope of duties of the armed forces, military courts should not have jurisdiction for serious violations of humanitarian law insofar as those acts, by their very nature, do not fall within the scope of duties performed by members of the armed forces.174 Second, military courts might be tempted to cover up such cases, which could cause serious political, diplomatic, and mili­ tary problems, by failing to take proper action or advocating guilty pleas to the victims’ detriment.175 For instance, reports about the proceedings before the 171 M. Vashakmadze, Understanding Military Justice, Geneva Center for the Democratic Control of Armed Forces (2010), at 10. 172 Ibid., at 23. 173 United Nations Economic and Social Council, Commission on Human Rights, International Standard Principles Governing the Administration of Justice Through Military Tribunals, Geneva Center for the Democratic Control of Armed Forces, 2010, at 16 (Principle 9). 174 Ibid. 175 Ibid.

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military courts in Guantanamo have shown the shortcomings of the military justice system in cases where persons are accused of serious violations of humanitarian law.176 The decision of the Federal Prosecutor in the proceedings against Colonel Klein is another case on point. As stated above, its decision to terminate criminal proceedings against Colonel Klein has faced strong criti­ cism.177 However, it is very likely that the criticism would have been much stronger if this decision had been made by a military legal system which would have probably been accused of turning a blind eye on the alleged crimes com­ mitted by one of their ‘fellow comrades’. Certainly, this would not have helped the protection of civilians in armed conflicts. 7 Conclusion At the time of writing, Afghan security forces are preparing to take over full responsibility for the stability of the public order in the country. At the same time, the majority of foreign troops are in the process of leaving the areas in which they are deployed. The future will tell if Afghan military and police forces are already able to protect the fragile peace and to stabilise the security situation throughout the country, both in the cities and in the villages. Recurring attacks limit the hope for a fast improvement of the situation. In all fairness, however, it must be stressed that the international armed forces have also not been able to provide a sufficient degree of peace and pro­ tection in Afghanistan. As stated above, the number of civilian men, women, and children who had been killed or injured by both foreign and national armed forces in the past years is very high. While it must be recognised that the international armed forces, together with the Afghan authorities, have taken measures to limit the number of those civilian victims, all those actors have not been able to prevent thousands of innocent civilians from losing their lives or being injured in military attacks. It is a lesson learned from the armed conflict in Afghanistan and the result­ ing criminal investigations in Germany that it must be a priority for the German armed forces—as well as the military personnel of any other party to the armed conflict in Afghanistan—to train their service members in a way that 176 For further information on the shortcomings of military courts in proceedings involving serious violations of humanitarian law, see Center for Constitutional Rights, Fact­sheet: Military Commissions available at http://ccrjustice.org/learn-more/faqs/factsheet:-­military -commissions (accessed 15 October 2013). 177 See Section 5.3, supra.

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enables them to treat the civilian population with the utmost caution. The investigation of the German Federal Prosecutor into the attack ordered by Colonel Klein at Kunduz serves as a reminder for the military forces that their actions can lead to investigations by civilian law enforcement authorities. Furthermore, both this incident and the roadblock cases investigated by German civilian law enforcement authorities highlight the need for proper legal training of all military personnel. It is not likely that those incidents would not have occurred had the individuals involved been better trained in international criminal law. Indeed, those who were responsible for the inci­ dents were found to have acted lawfully. However, it is important that military personnel receive sufficient information about what can be done in military engagements and what is illegal. Those cases can serve as valuable examples in this respect. Investigations, court proceedings, and convictions, however, can only play a limited role in the prevention of criminal acts against civilians in times of armed conflict. From a broader and more long-term point of view, relevant legal training in international criminal law and human rights law has to be provided not only to soldiers, but also to civilians and preferably, as soon as possible, to children. They must be educated in all possible ways to become citizens who are respectful and tolerant towards others. They have to under­ stand that no ideology, be it religiously or politically motivated, can vindicate a violation of international law. There is no justification for committing a war crime. If this seed is sown at an early age, there is hope that further training at a later stage can fall in fertile ground and that we can bear the fruits of a more peaceful society, in Afghanistan and elsewhere in the world. It is the tragic loss of our friend Joakim that keeps reminding us that we should never cease to work for this noble aim.

chapter 8

Criminalising the Denial of a Fair Trial as a Crime against Humanity Shannon Ghadiri* The right to a fair trial is a fundamental right through which other rights are protected. This right accordingly finds protection during international armed conflicts through Articles 130 and 147 of the Third and Fourth Geneva Conventions of 1949, respectively, pertaining to grave breaches, and arguably during internal armed conflicts through common Article 3 of the Geneva Conventions of 1949. The denial of a fair trial also finds protection through its criminalisation under the rubric of war crimes.1 In times of war and peace, human rights instruments, such as the International Covenant on Civil and Political Rights (iccpr), also protect the right to a fair trial. However, in times of conflict the precise scope and application of human rights is not settled law and human rights treaties have left the possibility of states derogating from fair trial standards during public emergencies. There are also limitations to the application of protections under International Humanitarian Law (ihl). Fair trial protections afforded under ihl are only available during times of armed conflict and only afforded to a limited class of persons, namely civilians and prisoners of war protected under the Geneva Conventions. This chapter argues that the flagrant denial of fair trial rights rises to a level of seriousness of other crimes against humanity when all the chapeau elements of crimes against humanity are met and that enhanced protection of an individual’s right to a fair trial in times of war—as well as in times of peace—requires criminalisation of the flagrant denial of a fair trial under the rubric of crimes against humanity. In making this argument, this chapter will explore: (1) the historical underpinnings for the protection of fair trial rights under the rubric of war crimes, (2) attempts to further protect the right to a fair trial under human rights law, (3) the basis for protecting fair trial rights under the rubric of crimes

* The views expressed herein are mine alone and do not reflect the views of my employer or my reviewers. I am grateful to the editors of this book for their insightful and helpful comments on earlier drafts of this chapter. I would also like to thank Sharlyn Vareed, Yves Krayenbuhl, and Marina Sorkina for their research assistance. 1 See, e.g., Rome Statute of the International Criminal Court, 17 July 1998, un Doc. A/CONF.183/9 (2002) (‘Rome Statute’), Art. 8(2)(a)(vi) and 8(2)(c)(iv). © koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004236592_010

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against humanity, and (4) possible elements for the denial of a fair trial as a crime against humanity. 1 Historical Foundation for Determining that the Denial of a Fair Trial Can Result in Individual Criminal Responsibility After the Second World War, cases involving the denial of a fair trial were tried by various military courts and commissions, including the Australian Military Court and the United States Military Commission (usmc). These courts had two methods of creating accountability for the denial of a fair trial. One approach, favoured by the usmc, established the denial of a fair trial as a war crime.2 The other approach, favoured by the Australian and British military courts, and also favoured by the usmc in the Justice Trial,3 used evidence of a fair trial as a defence to a charge of other war crimes committed against prisoners of war (pow) and inhabitants of occupied territories. Both approaches require proof that judicial procedures afforded the victims ‘fundamental principles of justice’; and thus the practical result of the two approaches in terms of the evidence presented at trial by the prosecution were much the same.4 Whether a defendant was accused of murder resulting from a death sentence passed after a fundamentally unfair trial, or accused of denying the victim certain basic judicial guarantees, the prosecution had to prove that the accused had knowledge of the proceedings and that trial standards did not meet those declarative of fundamental principles 2 Trial of Lieutenant General Harukei Isayama and Seven Others (u.s. Military Commission, Shanghai, 1–25 July 1946) 5 lrtwc 60 (1948) (‘Isayama and Seven Others’); Trial of LieutenantGeneral Shigeru Sawada and Three Others (u.s. Military Commission, Shanghai, 27 February-15 April 1946) 5 lrtwc 1, 2 (1948) (‘Sawada and Three Others’); and Trial of General Tanaka Hisakasu and Five Others (u.s. Military Commission, Shanghai, 13 August-3 September 1946), 5 lrtwc 66 (1948) (‘Hisakasu and Five Others’). 3 See Trial of Sergeant-Major Shigeru Ohashi and Six Others (Australian Military Court, Rabul, 20–23 March 1946), 5 lrtwc 25 (1948) (‘Ohashi and Six Others’); Trial of Captain Eitaro Shinohara and Two Others, (Australian Military Court, Rabaul, 30th Mar.-1st Apr., 1946), 5 lrtwc 32, 34–36 (UN War Crimes Commission, 1948) (‘Shinohara and Two Others’); Trial of Karl Buck and Ten Others, (British Military Court, Wuppertal, 6–10 May 1946), 5 lrtwc 39, 43–44 (1948) (‘Karl Buck and Ten Others’); Trial of Karl Adam Golkel and Thirteen Others, (British Military Court, Wuppertal, 15–21 May 1946), 5 lrtwc 45, 52 (1948); Trial of Werner Rohde and Eight Others (British Military Court, Germany, 29 May-1 June 1946), 5 lrtwc 54, 58 (1948); Trial of Josef Altstötter and Others (United States Military Tribunal, Nuremberg, 17 February- 4 December 1947), 6 lrtwc 1, 103 (1948) (‘The Justice Trial’). 4  Notes on the Case: The Criminal Aspects of the Denial of a Fair Trial, 6 lrtwc 103 (1948) (‘Notes on the Case: Criminal Aspects of the Denial of a Fair Trial, Vol. VI’).

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essential to justice.5 In these ways, individual criminal responsibility was ascribed after it was proved that an accused failed to provide basic judicial guarantees. This section will first explore the two approaches in creating accountability for the denial of a fair trial by looking at two cases, Sawada and Three Others and the Justice Trial. The case Shinohara and Two Others will then be discussed to highlight the approach of the Australian military courts, which extended the application of fair trial standards to inhabitants of occupied territories. In the case of Sawada and Three Others, the usmc charged members of a Japanese military tribunal with ‘knowingly, unlawfully, and wilfully’ causing members of the United States forces ‘to be denied the status of Prisoners of War and to be tried and sentenced by a Japanese Military Tribunal in violation of the laws and customs of war’.6 This case was one of the earliest of the various postSecond World War war crimes trials; and therefore, rather than following precedent, the presiding judges had the difficult task of creating precedent.7 The substantive legal basis for the charges was not clearly laid out by the military commission, but reference to pow status and ‘violations of the laws and customs of war’ suggest reliance on customary international law relating to international armed conflicts.8 The most detailed formulation of the laws and customs of war at the time of these military commissions included The Hague Conventions of 1899 and 1907 (Hague Regulations) and the Geneva Convention of 1929.9 In the Hague Regulations, the only reference made to trials of any sort occurs under Article 30 of the 1907 Hague Regulation on Laws and Customs of War. This provision stipulates that spies ‘shall not be punished without previous trial’.10 The victims in Sawada and Three Others, described solely on the basis of their pow 5

Compare Isayama and Seven Others, supra note 2; Sawada and Three Others, supra note 2; and Hisakasu and Five Others, supra note 2 (charging denial of a fair trial as a standalone crime), with Trial of Josef Altstötter and Others (United States Military Tribunal, Nuremberg, 17 February- 4 December 1947), 6 lrtwc 1, 103 (1948), Ohashi and Six Others, supra note 3, and Karl Buck and Ten Others, supra note 3 (not charging the denial of a fair trial as a stand-alone crime); see also Shinohara and Two Others, supra note 3 (charging denial of a fair trial as a stand-alone crime, but conviction on this charge was not approved by the confirming authority). 6  Sawada and Three Others, supra note 2, at 1 (emphasis added). 7  Ibid., at 10. 8 Ibid., at 1. 9  S.R. Rather, J.S. Abrams, Accountability for Human Rights Atrocities in International Law beyond the Nuremberg Legacy (2009), at 83. 10  Convention IV, Respecting the Laws and Customs of War on Land and its Annex: Regulations Concerning the Laws and Customs of War on Land, 18 October 1907, 36 Stat. 2277 (‘Hague Regulation IV of 1907’), Art. 30.

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status, were never accused of spying, thereby making it unlikely that the usmc relied on the Hague Regulations as the substantive basis for requiring them to have undergone a fair trial before they were executed.11 Rather, fair trial guarantees have their basis in Chapter 3 of the Geneva Convention of 1929. The chapter on judicial suits provides that a pow shall: have the opportunity to defend himself;12 be free from a coerced guilty plea;13 have the assistance of qualified counsel of his choice;14 have the services of a competent interpreter;15 be advised of his rights before trial;16 have counsel obtained for him if he fails to choose his own;17 have the protecting power present at trial,18 except where secrecy is needed in the interest of safety;19 be tried by the ‘same courts and according to the same procedure as in the case of persons belonging to the armed forces of the detaining power’;20 have the right to appeal in the same manner allowed by the detaining power;21 have sentences of pow communicated to the protecting power;22 and in the case of a death sentence, not have the sentence carried out until three months after communication of the sentence to the protecting power.23 In describing the evidence against the accused, the usmc seized upon the lack of judicial procedures that mirrored the guarantees listed in the Geneva Convention of 1929, and also added to the body of law that defines the denial of a fair trial by emphasising protections not expressly listed in the Geneva Convention.24 The usmc pointed out that the court proceedings included an interpreter, ‘but [the interpreters] did not interpret anything but the fliers’ names and ranks’.25 The usmc also highlighted that the airmen were not notified of the charges against them; were ‘tried on false and fraudulent charges’; did not have the opportunity to plead or make any in-court statements; were not represented

11  Sawada and Three Others, supra note 2, at 1, 3. 12 Geneva Convention Relative to the Treatment of Prisoners of War, 27 July 1929, 47 Stat. 2021, 2052 (‘gc of 1929’), Art. 61. 13  Ibid. 14  Ibid., Art. 62. 15  Ibid. 16  Ibid. 17  Ibid. 18 Ibid. 19  Ibid. 20  Ibid., Art. 63. 21  Ibid., Art. 64. 22  Ibid., Art. 65. 23  Ibid., Art. 66. 24  Sawada and Three Others, supra note 2, at 2–3. 25 Ibid.

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by counsel; did not have the opportunity to review the evidence against them; and were afforded a trial that lasted ‘about two hours at the very most’.26 In this way, the military commission added to the list of fair trial standards already enumerated in the Geneva Convention of 1929 the right to defend oneself and the right to a trial whose length affords a full investigation of the charges. In the case of Sawada and Three Others, the usmc applied provisions that reflected Article 6 of the London Charter.27 With regard to war crimes the London Charter states: (b) WAR CRIMES: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, illtreatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity.28 Sawada and Three Others established the denial of a fair trial as a war crime through an analysis of the ‘laws and customs of war’.29 Chapter 3 of the Geneva Convention of 1929 lists judicial guarantees that were likely at the forefront of the usmc’s analysis. The court, however, decided to go further by considering additional judicial protections that General Sawada should have provided to the American pows—namely, the right to defend oneself and the right to a trial whose length affords a full investigation of the charge.30 The United Nations War Crimes Commission (unwcc),31 in its commentaries on the post-Second World War trials, indicated that the military 26  Ibid. 27  Ibid. 28  London Charter of the International Military Tribunal, 8 August 1945, 82 unts 279, Art. 6(b), available at http://avalon.law.yale.edu/imt/imtconst.asp (last visited 22 July 2014). 29  Sawada and Three Others, supra note 2, at 1. 30 See ibid., at 2–3. 31 The United Nations War Crimes Commission (unwcc) was established in 1943 to investigate allegations of war crimes committed by the Axis powers. The commission collected evidence against alleged Axis war criminals and reported back to the members of the United Nations. Governments then convened tribunals which tried the suspected war criminals and sent case summaries to the unwcc. The commission dissolved in 1948. See D. Plesch and S. Sattler, ‘Changing the Paradigm of International Criminal Law: Considering the Work of the United Nations War Crimes Commission of 1943–1948’, (2013) 15 International Community Law Review 203, at 206–10.

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commissions and tribunals, in fleshing out what constituted the war crime of denial of a fair trial, were centred on broader principles of customary international law.32 In Isayama and Seven Others, the usmc rejected the defence argument that the victims’ trials were fundamentally fair because the u.s. airmen were provided with the same judicial protections that Japanese soldiers would have received.33 The unwcc notes that ‘even this plea, if it were true, would not constitute a complete defence, however, if the trial did not fulfil certain fundamental requirements ensuring elementary justice to the accused’.34 National law cannot be relied upon to circumscribe international obligations because ‘there exists in this matter minimum standards of civilization, and a State which fails to measure up to that standard incurs international liability’.35 In applying and establishing these ‘minimum standards of civilization’, with regard to the war crime of denial of a fair trial, the post-Second World War military commissions took the novel step of ascribing individual criminal liability for the failure to provide basic judicial guarantees. When used as a defence, the denial of a fair trial was applied to war crimes as well as crimes against humanity. In the Justice Trial before post-Second World War military courts in German occupied territory operating under Control Council Law No. 10, various members of the German ministry of justice were charged with war crimes and crimes against humanity.36 The court found that the victims of Germany’s Nacht und Nebel plan were denied fair trials and then given the death penalty, for which members of the German ministry of justice were found responsible. While the court ultimately did not treat the denial of fair trial as a crime in and of itself, it did choose to treat proof of a fair trial as a defence to such crimes. As the unwcc points out, this is not to say, however, that the court dismissed the possibility of the denial of a fair trial ever being treated as a crime in and of itself.37 In assessing the fairness of the trials against Polish nationals in occupied Poland, the court focused on the issue of whether the trials ‘lacked essential elements of legality’.38 The essential elements of legality included the right for the accused to know the 32  Notes on the Case: The Criminal Aspects of the Denial of a Fair Trial, 5 lrtwc 73 (1948) (‘Notes on the Case: Criminal Aspects of the Denial of a Fair Trial, Vol. V’). 33  Isayama and Seven Others, supra note 2, at 62, 64. 34 Notes on the Case: Criminal Aspects of the Denial of a Fair Trial, Vol. V, supra note 32, at 73. 35  Ibid., citing Oppenheim-Lauterpacht, International Law, Vol. I (6th ed. 1940), at 316. 36  The Justice Trial, supra note 3, at 2–5. 37  Notes on the Case: Criminal Aspects of the Denial of a Fair Trial, Vol. VI, supra note 4, at 102. 38  Ibid., at 99.

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charges against him;39 the right to counsel;40 the right to come before an unprejudiced judge;41 the right of the accused to introduce evidence;42 the right of the accused to know the evidence against him;43 and the right to a trial of a duration that allows full investigation of the case.44 The emphasis on legality in the Justice Trial suggests that by 1949 the denial of a fair trial was recognised as a crime in and of itself.45 Prosecutors, however, continued to have the choice whether or not to prosecute the crime. The unwcc points out that in the Justice Trial the ‘prosecution was at pains to prove even in their own presentation of the evidence those aspects of the proceedings […] which tended to show that a fair trial was not accorded to them, and did not wait to cross examine the defence witnesses on this point’.46 While the denial of a fair trial, as a crime, is conspicuously missing in the Justice Trial charges, it seems that the unwcc and future codification of war crimes did not find this fact determinative. Most post-Second World War trials preferred to deal with the denial of a fair trial as a method to attack a defendant’s claim of justifiable murder. Subsequent conventions, such as the Third and Fourth Geneva Conventions of 1949, however, established the wilful denial of fair trial as a grave breach.47 Subsequently, in 1977, Additional Protocol I of the Geneva Conventions of 1949 expressly stated that the grave breaches stipulated in the four Geneva Conventions and the Additional Protocol I shall be regarded as war crimes.48 Finally, its codification in the statutes of the icty, ictr, and icc clearly establishes that a person can incur individual criminal responsibility for the war crime of the denial of a fair trial.49 39  40 41  42  43  44  45  46  47

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Ibid., at 97. Ibid., at 97. Ibid., at 101. Ibid., at 97. Ibid., at 97. Ibid., at 101. Ibid., at 102. Ibid., at 102. See Geneva Convention (III) Relative to the Treatment of Prisoners of War, 75 unts 135, (12 August 1949) (‘Geneva Convention III’ or ‘gc III’), Art. 130; Geneva Conventions Relative to the Protection of Civilian Persons in Times of War, 75 unts 287, (12 August 1949) (‘Geneva Convention IV’ or ‘gc IV’), Art. 147. Protocol Additional to the Geneva Conventions of Aug. 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts, 12 December 1977, 1125 unts 3 (entered into force 7 December 1978) (‘Additional Protocol I’ or ‘ap I’), Art. 85(5). Statute of the International Criminal Tribunal for the former Yugoslavia, Art. 2(f), annexed to Report of the Secretary-General Pursuant to Paragraph 2 of un Security Council

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Post-Second World War war crimes trials extended fair trial guarantees to inhabitants of occupied territories, but whether these guarantees clearly established a positive offence in the denial of a fair trial or established its existence as defence to the killing of these inhabitants is debatable. In the trial of Shinohara and Two Others, Kanbangura villagers failed to supply their quota of goods to the Japanese.50 The Japanese suspected certain inhabitants that had gone into hiding were responsible for the village not making its quota.51 The suspected villagers were captured, examined for one and a half hours each, and executed shortly thereafter.52 The charges against the accused stipulated that they violated ‘the Laws and Usages of War…when members of a Military Court convened to try two natives of Kanbangura and failed to ensure that such natives were afforded a fair and proper trial’.53 The judge advocate of the Australian Military Court, referencing the Australian Manual of Military Law, stated that ‘in every case… there must be trial before punishment, and the utmost care must be taken to confine punishment to the actual offender’.54 However, in enumerating what acts constituted the war crime of the denial of a fair trial, the judge advocate conceded that international law did not establish mandatory procedures for trying civilian inhabitants of occupied territories.55 According to the judge advocate, these procedures were ‘at the discretion of the belligerent state’, but with one important limitation—they must meet fundamental principles of justice essential to a fair trial.56 As set out in the Martens Clause, these fundamental principles find their source in ‘the usages established among civilized peoples, from the laws of humanity, and the dictates of the public



Resolution 808, un gaor, May 19, 1993, un Doc. S/25704, reprinted in 32 ilm 1159, 1193–97 (‘icty Statute’); International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States, between 1 January 1994 and 31 December 1994, sc Res. 955, un scor, 49th Sess.,  3453d mtg., Annex, Art. 4(g), un Doc. S/INF/50 (1994) (‘ictr Statute’); Rome Statute, Art. 8(2)(a)(vi). 50  Shinohara and Two Others, supra note 3, at 31. 51  Ibid. 52  Ibid., at 32–3. 53  Ibid. at 32. 54  Ibid., at 35. 55 Ibid., at 36. 56  Ibid.

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conscience’.57 The accused judges in Shinohara and Two Others were found guilty of denying civilians a fair and proper trial and sentenced to five years in prison.58 The confirming authority,59 however, failed to approve the findings and sentences.60 Subsequent cases addressing the denial of a fair trial, as tried by the Australian Military Court, indicate that Australian judicial authorities were more comfortable using proof of the denial of a fair trial to nullify arguments that the execution of pows or inhabitants of occupied territories was justifiable rather than simply trying the denial of a fair trial as a substantive crime.61 Post-Second World War trials, in keeping with The Hague Regulations and the Geneva Convention of 1929, only applied the war crime of the denial of a fair trial, or the defence of a fair trial, when the victims were pows or inhabitants of an occupied territory.62 Today, Additional Protocol I of the Geneva Conventions of 1949 finds the grave breaches provisions applicable to prisoners of war,63 refugees and stateless persons,64 the wounded, sick, and shipwrecked,65 medical and religious personnel,66 and medical units and transports under the control of the adverse party.67 From the Second World War to the 57

58  59

60  61  62 

63 64  65  66  67 

The Martens Clause of the preamble states that: ‘Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience’. Shinohara and Two Others, supra note 3, at 34, 36. ‘No right to appeal in the ordinary sense exists against the decisions of the Australian Military Court…. The findings and any sentence which the Court had jurisdiction to pass, if confirmed are valid, notwithstanding any deviation from the Regulations or the Rules of Procedure or any technical or other defect or objection. An exception exists only in the case where it appears that a substantial miscarriage of justice has actually occurred’. Australian Law Concerning Trials of War Criminals by Military Courts, 5 lrtwc 101 (un War Crimes Comm’n, 1948). Shinohara and Two Others, supra note 3, at 34. See e.g., Ohashi and Six Others, supra note 3, at 30–1; Shinohara and Two Others, supra note 3, at 35–6. Cf. Hisakasu and Five Others, supra note 2, at 66; Isayama and Seven Others, at 60, supra note 2; Sawada and Three Others, supra note 2, at 1; Ohashi and Six Others, supra note 3, at 27–30; Shinohara and Two Others, supra note 3, at 32. Additional Protocol I, Arts. 44, 45, and 85. Ibid., Arts. 73 and 85. Ibid., Art. 85. Ibid., Art. 85. Ibid., Art. 85.

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present, the prohibition against the denial of a fair trial expanded from a narrow right afforded pows in particular circumstances, to a war crime applicable to those categories of individuals protected under the Geneva Conventions. Nevertheless, the expanded protection still falls short of protecting all civilians in all manner of conflicts. .

2

Fair Trial Protections under Human Rights Law

The right to a fair trial is codified in numerous human rights conventions. Most prominent is Article 14 of the iccpr.68 The guarantees provided for in Article 14 ‘apply to all courts and tribunals within the scope of that article whether ordinary or specialized’, but they must be understood as minimum protections, ‘the observance of which is not always sufficient to ensure the fairness of the hearing’.69 Article 14 provides for the remedy of compensation according to law in certain cases of a miscarriage of justice; however, this right is often not observed or lacks sufficient guarantees when codified in domestic law.70 There have been attempts to fortify fair trial guarantees, chief among them being the draft Third Optional Protocol to the iccpr and General Comment No. 29. This section discusses those attempts and argues that, for the right to a fair trial to 68

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International Covenant on Civil and Political Rights, 999 unts 171 (1966) (‘iccpr’), Art. 14. Article 14(1) of the iccpr reads, in part: ‘All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit of law, everyone shall be entitled to a fair and public hearing by a competent, independent, and impartial tribunal established by law’. Office of the United Nations High Commissioner for Human Rights General Comment No. 13, Equality before the Courts and the Right to a Fair and Public Hearing by an Independent Court Established by Law, HRI/GEN/Rev.5, 21st sess. (1984) (‘ohchr General Comment No. 13’), paras. 4–5, available at http://ccprcentre.org/doc/ICCPR/General%20 Comments/HRI.GEN.1.Rev.9 (last visited 8 August 2014). Office of the United Nations High Commissioner for Human Rights General Comment No. 32, Right to Equality before Courts and Tribunals and to a Fair Trial, CCPR/C/GC/32, 9th sess. (2007) (‘ohchr General Comment No. 32’), para. 22, available at http://ccprcentre.org/doc/ICCPR/General%20 Comments/CCPR.C.GC.32_En.pdf (last visited 8 August 2014). ohchr General Comment No. 13, at para. 18. Article 14(6) of the iccpr provides that ‘(w) hen a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him’.

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be non-derogable in a broader set of circumstances and for a broader category of persons, its violation must be recognised as a crime against humanity. Regional conventions such as the European Convention on Human Rights, the African Charter on Human and People’s Rights, and the American Convention on Human Rights also set out certain judicial guarantees.71 All of these conventions, except the African Charter on Human and Peoples’ Rights,72 allow for suspension of the right to a fair trial in the event of a public emergency.73 In light of the vulnerability of fair trial rights, in 1994, the SubCommission on Prevention of Discrimination and Protection of Minorities put forth two proposals for strengthening the right to a fair trial. The first proposal called for the drafting of a Third Optional Protocol to the iccpr declaring the right to a fair trial non-derogable. The second proposal called for habeas corpus and amparo74 to be available at all times to challenge the miscarriage of justice.75 These efforts sought to strengthen the right to a fair trial, especially in instances of more isolated derogations from judicial guarantees enshrined in these instruments. 71

See Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, Eur.T.S. No. 5 (‘European Convention on Human Rights’), Art. 6; African Charter on Human and Peoples’ Rights, 27 June 1981, oau Doc. OAU/CAB/LEG/67/3/ Rev.5, reprinted in 21 ilm 58 (1982) (‘African Charter on Human and Peoples’ Rights’), Art.  7; American Convention on Human Rights, 22 November 1969, 1144 unts 144 (‘American Convention on Human Rights’), Art. 8. 72  African Charter on Human and Peoples’ Rights, Art. 7. 73 iccpr, Art. 4; European Convention on Human Rights, Art. 15; American Convention on Human Rights, Art. 27. Article 27 of the American Convention on Human Rights does extend non-derogable status to ‘judicial guarantees essential for the protection of such rights’ as the right to life and and the right to humane treatment, among others. While certain aspects of the right to fair trial have been made non-derogable by Article 27, the whole of Article 8 which sets out the right to a fair trial has not been made non-derogable. 74 The amparo procedure is a legal action seeking the protection of a human right or constitutional right. This remedy is available in countries such as Argentina, Bolivia, Chile, Costa Rica, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Paraguay, and Venezuela. See H. Fix Zamudio, ‘The Writ of Amparo in Latin America’, (1981) 13 Lawyer of the America’s 361, at 362–6. 75  The Administration of Justice and the Human Rights of Detainees, The Right to Fair Trial: Current Recognition and Measures Necessary for Its Strengthening, Final Report, Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, E/CN.4/Sub.2/1994/24, 46th Sess., 3 June 1994, (‘Final Report of Commission on Human Rights’), paras. 165–162, available www1.umn.edu/humanrts/ demo/subcomm46detainees.html (last visited 8 August 2014).

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The first proposal has fallen by the wayside and has been largely unsuccessful. In its report to the Secretary-General, the Sub-Commission on Prevention of Discrimination and Protections of Minorities summarised the opinions of states parties and intergovernmental organisations on its preliminary draft of the Third Optional Protocol to the iccpr.76 The overwhelming conclusion was that a Third Optional Protocol was not desirable. States parties raised issues of incompatibility with their constitutions or the desire to make reservations to specific provisions of the Third Optional Protocol.77 In the end, even the un Human Rights Committee, as well as the International Committee for the Red Cross, warned that an optional protocol may in fact increase derogations from the fair trial rights that the Third Optional Protocol sought to protect.78 This is so by virtue of the fact that states parties who do not ratify the proposed optional protocol may take the view that they are more readily able to derogate from fair trial standards because they have opted not to be bound by the optional protocol.79 The optional protocol turned out to be an inadequate means of protecting fair trial rights because of the lack of motivation on the part of states to ratify it.80 While well intentioned, the promulgation of an optional protocol does not ensure that states derogating81 from fair trial standards will sign the protocol. Additionally, in order for the right to a fair trial to be truly non-derogable, it should not rely on the application of human rights treaties enacted through domestic law. Transfer into domestic law invariably brings changes to the right as it is understood in the human rights treaty. This is not to say that domestic law would not honour the object and purpose of the human rights instrument and the rights enshrined therein, but rather that there is danger, as there is with all international treaties, that the domestic law protecting the treaty 76

The Administration of Justice and the Human Rights of Detainees: The Right to Fair Trial, Report of the Secretary General Prepared Pursuant to Sub-Commission Resolution 1993/26, un Doc. E/CN.4/1994/26, 46th sess., 13 June 1994 (‘13 June 1994 Report of the Secretary General’), available at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G94/ 129/62/PDF/G9412962.pdf?OpenElement (last visited 18 March 2014). 77  Ibid. 78 Ibid., Section II Comments Submitted by United Nations and International Organizations. 79  See ibid. 80  See 13 June 1994 Report of the Secretary General, supra note 76, at 3–11. 81  The following states have submitted official notifications of derogation from Article 14 of the iccpr: Nicaragua, Serbia, Sri Lanka, Thailand, Trinidad and Tobago, and the United Kingdom. See Multilateral Treaties Deposited with the Secretary-General. Status as of 8 August 2014, available at https://treaties.un.org/pages/viewdetails.aspx?chapter=4&src= treaty&mtdsg_no=iv-4&lang=en#1.

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provision could provide a loop-hole by which a state could legally limit a person’s right to a fair trial under their domestic regime. It would then be up to an international monitoring mechanism to remind a state of its international obligations. The u.s. under the Bush administration argued that the extraterritoriality of Guantanamo Bay, the exigency of post-September 11th national security, and the lack of pow status of Guantanamo detainees—all warranted u.s. military commissions’ derogations from fair trial guarantees enumerated in applicable international human rights instruments.82 The second proposal calling for habeas corpus and amparo to be available at all times seemed to have better prospects for gaining more traction. In fact, in consideration of the first proposal, the Human Rights Committee noted that certain provisions of the Third Optional Protocol were already understood to be non-derogable; in particular, it was ‘satisfied that state parties generally understood that the right to habeas corpus and amparo should not be limited in situations of emergency’.83 We find another attempt to safeguard fair trial rights when the Human Rights Committee adopted General Comment No. 29 on the issue of state derogations from human rights during times of emergencies.84 General Comment No. 29 maintains that certain elements of the right to a fair trial, such as the presumption of innocence, should be non-derogable despite the express wording of Article 4(2) of the iccpr, which does not include Article 14 among those provisions which may not be derogated from in times of public emergency.85 The Human Rights Committee reasoned that it was incongruous to allow those elements of fair trial protected by ihl in times of armed conflict to be derogated from during states of emergency.86 The Human Rights Committee also drew parallels between the question of whether certain human rights obligations are non-derogable and whether certain human rights obligations ‘bear the nature of peremptory norms of international law’.87 For instance, the Human Rights Committee stated that ‘as certain elements of the right to a fair 82

See Reply of the Government of the United States of America to the Report of the Five unchr Special Rapporteurs on Detainees in Guantanamo Bay, Cuba, 10 March 2006, 2–4, 16–17, 39–42; available at www.state.gov/documents/organization/98969.pdf (last visited 28 August 2014). 83  See 13 June 1994 Report of the Secretary General, supra note 76, at 11. 84 Human Rights Committee General Comment No. 29, States of Emergency (Art. 4), un Doc. CCPR/C/21/Rev.1/Add.11, 31 August 2001 (adopted 24 July 2001) (‘General Comment No. 29’). 85  Ibid., at paras. 11, 15, 16. 86  Ibid., at para. 9. 87  Ibid., at para. 11.

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trial are explicitly guaranteed under international humanitarian law during armed conflict’ there is ‘no justification for derogation from theses guarantees during other emergency situations’.88 While the conclusion of the Human Rights Committee—that certain elements of fair trial rights should be nonderogable in times of public emergency—did not generate much debate, the Human Rights Committee’s method of analysis used to reach this conclusion did draw criticism.89 The first criticism is that it would be too simplistic and formulaic to argue that, since ihl protects fair trial rights in armed conflicts, such rights must therefore be protected during times of emergency.90 The second criticism is drawn from the parallels made in General Comment No. 29 between non-derogable human rights and peremptory norms.91 According to critics, the issue of non-derogable human rights is clearly differentiated from ihl protections, as the ihl regime is a specialised system of legal protections built upon, inter alia, the idea of reciprocity and is only applicable to specified protected groups and requires an armed conflict to be applicable.92 This differentiation explains why the treatment of certain protections under ihl cannot be applied wholesale to the human rights regime.93 In terms of the second argument, it is proffered that jus cogens norms are distinguishable from non-derogable human rights, as jus cogens norms cannot be derogated from by treaty arrangement.94 88  Ibid., at para. 16. 89  See, e.g., C. Olivier, ‘Revisiting General Comment No. 29 of the United Nations Human Rights Committee: About Fair Trial Rights and Derogations in Times of Public Emergency’, (2004) 17 ljil 405. 90  Ibid., at 407–8. 91 Ibid., at 408–9. 92 Ibid., at 407–8. According to Olivier, what initially appears to be a paradox—namely the fact that some human rights may enjoy better protection during armed conflicts than during other, less serious crises—may be explained. ‘The code of conduct of hostilities defined in ihl is common to all belligerents, and the parties have a direct interest in respecting the rules of war in order to ensure that they in turn are respected by the enemy combatants. Thus, in ihl reciprocity is “regarded as both a reason behind the norms and as an important factor in their efficacy.” In contrast, the concept of human rights exists in an individual-state relationship which excludes any reciprocity: what a state grants to an individual cannot be given back to the state by the individual’. Olivier maintains that the existence of an explanation does not, however, render the prevailing situation satisfactory. 93  See Ibid., at 407–8. 94  Ibid., at 408, citing Vienna Convention on the Law of Treaties, 1155 unts 331 (entered into force 27 January 1980).

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Criticisms of the rationale behind General Comment No. 29 aside, what authoritative weight can be given to the Human Rights Committee’s general comments? And what in essence has the Human Rights Committee determined to be non-derogable in relation to fair trial rights? The General Comments can be viewed as guidelines for subsequent practice in the application of a treaty,95 establishing an agreed interpretation by the parties to the treaty, as stipulated in Article 31(3)(b) of the Vienna Convention on the Law of Treaties. Alternatively, the opinions of the Human Rights Committee can be viewed as practice in and of itself in relation to the iccpr because, where treaties provide for a supervisory organ that guides interpretation of the treaty, it has been argued that ‘it follows naturally that it is not only the practice and attitudes of the contracting states that matter, but also the attitudes expressed by the supervisory body itself’.96 Taking General Comment No. 29 at least as an authoritative interpretation of state obligations under the iccpr,97 what we are left with are only three procedural safeguards that are seen as fundamental due process guarantees. These include access to a court in criminal proceedings, the presumption of innocence, and the right to habeas corpus or amparo.98 The Human Rights Committee through its General Comment No. 29 also references ‘fundamental requirements’ of the right to fair trial, in relation to which the Human Rights Committee ‘finds no justification for derogation from these guarantees during emergency situations’.99 By failing to articulate the content of these fundamental requirements of a fair trial, the Human Rights Committee provides little additional substance to fair trial protections by asserting that these fundamental requirements of a fair trial are non-derogable. ihl sets out a number of provisions protecting the right to a fair trial. Common Article 3 provides that ‘the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples’ remains prohibited at any time and in any place 95

See E. Schmid, ‘A Few Comments on a Comment: the un Human Rights Committee’s General Comment No. 32 on Article 14 of the iccpr and the Question of Civilians Tried by Military Courts’, (2010) 14 The International Journal of Human Rights 1058. 96  A. Orkhelashvili, ‘Restrictive Interpretation of Human Rights Treaties in the Recent Jurisprudence of the European Court of Human Rights’, (2003) 14 ejil 529, 535–6. 97 See N. Ando, General Comments/Recommendations, (2010) Max Planck Encyclopaedia of Public International Law, available at http://ilmc.univie.ac.at/uploads/media/general_ comments_recommendations_empil.pdf (last visited 5 August 2014). 98  General Comment No. 29, supra note 84, para. 16. 99  Ibid.; see also S. Joseph, ‘Human Rights Committee: General Comment 29’, (2002) 2 Human Rights L. Rev. 81, 94.

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whatsoever in relation to protected persons.100 Furthermore, the Geneva Conventions of 1949 and Additional Protocol I establish that wilfully depriving a protected person of the rights to a fair and regular trial amounts to a grave breach.101 Article 5 of the Fourth Geneva Convention establishes the right to a fair trial as a non-derogable right by providing that persons ‘shall not be deprived of the rights of fair and regular trial prescribed by the present convention’. The Additional Protocols and the Third and Fourth Geneva Conventions also provide a significant list of fair trial provisions.102 Nevertheless, in order to guard against derogations from the right to a fair trial, reliance must be placed on international criminal law in addition to international human rights instruments and ihl. Even as there is progressive development towards a merger of ihl and international human rights law, gaps in the protection of fair trial rights remain.103 The Geneva Conventions attempt to fill the lacuna left by the human rights apparatus in the ultimate of states of emergency—the armed conflict—but this regime of protection does not fit so tightly as to make available due process protections in every scenario. Within 100 See, e.g., Geneva Convention IV, Art. 3(1)(d). 101  Geneva Convention III, Art. 130; Geneva Convention IV, Art. 147; Additional Protocol I, Art. 85(4)(e). 102 In particular: independent, impartial, and regularly constituted courts (gc III, Arts. 3 and 84; gc IV, Art. 3; ap I, Art. 75(4); ap II, Art. 6(2)); presumption of innocence (ap I, Art. 75(4)(d); ap II, Art. 6(2)(d)); information on the nature and cause of the accusation (gc III, Arts. 96 and 105; gc IV, Arts. 71 and 123; ap I, Art. 75(4)(a); ap II, Art. 6(2)(a)); necessary rights and means to a defence (gc I, Art. 49; gc II, Art. 50; gc III, Arts. 84 and 96; gc IV, Arts. 72 and 123; ap I, Art. 75(4)(a); ap II, Art. 6(2)(a)); right to defend oneself or to be assisted by a lawyer of one’s own choice (gc III, Arts. 99 and 105; gc IV, Art. 72); right to free legal assistance if the interests of justice so require (gc III, Arts. 99 and 105; gc IV, Art. 72); right to sufficient time and facilities to prepare a defence (gc III, Art. 105 and gc IV, Art.72); right of the accused to communicate freely with counsel (gc III, Art. 105; gc IV, Art. 72); trial without undue delay (gc III, Art. 103 and gc IV, Art. 71); examination of witnesses (gc III, Arts. 96 and 105; gc IV, Arts. 72 and 123; ap I, Art. 75(4)(g)); assistance of an interpreter (gc III, Arts. 96 and 105 and gc IV, Arts. 72 and 123); presence of the accused at trial (ap I, Art. 75(4)(e); ap II, Art. 6(2)(e)); compelling accused persons to testify against themselves or to confess guilt (gc III, Art. 99; ap I, Art. 75(4)(f); ap II, Art. 6(2)(f)); judgement pronounced in public (ap I, Art. 75(4)(i)); advising convicted persons of available remedies and their time-limits (gc III, Art. 106; gc IV, Art. 73; ap I, Art. 75(4)(j); ap II, Art. 6(3)); non bis in idem (gc III, Art. 86; gc IV, Art. 117; ap I, Art. 75(4)(h)). 103 See Y. Arai-Takahashi, ‘Fair Trial Guarantees in Occupied Territory—the Interplay Between International Humanitarian Law and Human Rights Law’, in Roberta Arnold and Noëlle Quénivet (eds.), International Humanitarian Law and Human Rights Law: Towards a New Merger in International Law (2008), 467–72.

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ihl, which only covers armed conflict situations, there exists ‘grey zone conflicts’ whose characterisation under ihl is subject to ‘never-ending legal debate regarding thresholds of applicability and complex legal characterizations of different types of conflicts’ that threaten to leave some conflict situations outside the realm of due process protections provided by ihl.104 Post-Second World War military commissions and, more recently, the Rome Statute have recognised the denial of a fair trial as a war crime.105 Yet, for the right to a fair trial to be non-derogable, in a broader set of circumstances and for a broader category of persons, its violation must be recognised as a crime against humanity. Where no internal or international armed conflict can be established, recognition of the denial of fair trial as a crime against humanity will catch only the most flagrant fair trial derogations because the chapeau elements of crimes against humanity require that the gravity of the conduct rise to the level of the commission of crimes under international law. While recognition as a crime against humanity would appropriately not catch every fair trial violation, it would nevertheless be a positive step towards recognising fair trial guarantees as non-derogable in international law. Post-Second World War trials do not rule out the possibility of recognising the right to a fair trial within the rubric of crimes against humanity. Based on this historical background and the incomplete protection afforded by the ihl and human rights regimes, flagrant denials of the right to a fair trial should also be regarded as a crime against humanity. 3 The Legal Basis for Establishing the Denial of a Fair Trial as a Crime against Humanity Flagrant denials of the rights to a fair trial meet the prerequisites for international criminalisation. Whereas in the past war crimes were considered crimes against humanity eo ipso,106 today this is not the case. The initial codification of crimes against humanity exemplified the need for a war nexus. The war 104 A. Eide, A. Rosas, T. Meron, ‘Combating Lawlessness in Gray Zone Conflicts Through Minimum Humanitarian Standards’, (1995) 89 ajil 215, 216–7; contra E. Schmid, ‘The Right to a Fair Trial in Times of Terrorism: A method to Identify the Non-derogable Aspects of Article 14 of the iccpr’, (2009) 1 Göttingen Journal of International Law 29, 31 (asserting that human rights law applies in peacetime as well as times of emergency, including armed conflict, by way of the principle of consistency). 105  Rome Statute, Art. 8(2)(a)(vi). 106  Notes on the Case: Criminal Aspects of the Denial of a Fair Trial, Vol. VI, supra note 4, at 103.

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nexus was an attempt to ensure that the prohibition against crimes against humanity did not violate principles of legality by allowing ex post facto criminalisation.107 Yet, as the prohibition against crimes against humanity became entrenched in international criminal law, the war nexus became unnecessary and eventually disappeared as a requirement under international law.108 This resulted in the ‘de-coupling’ of crimes against humanity from war crimes109 and the linking of crimes against humanity to the broader scheme of international protection of human rights.110 Accordingly, post-Second World War cases historically connect the denial of a fair trial as a war crime to its potential recognition as a crime against humanity, but present day support for the prohibition against crimes against humanity to include the denial of a fair trial requires more. With the disappearance of the war nexus, fulfilling the prerequisites for international criminalisation and grounding the act one seeks to criminalise in the human rights regime becomes an essential basis for establishing a crime against humanity.111 This section will (a) show that the denial of a fair trial is a right of a more personal nature and, unlike other war crimes, has not been categorically excluded from the rubric of crimes against humanity, (b) look at the pre-requisites for international criminalisation, namely the contextual requirements for crimes against humanity, (c) explore possible codification under the crimes against humanity of persecution and ‘other inhumane acts’ in order to determine whether the denial of a fair trial meets the required gravity threshold for international criminalisation, and (d) determine whether it is sufficient for the denial of a fair trial to be subsumed under the crime against humanity of persecution. 3.1 Rights of a More Personal Nature Many war crimes amount to crimes against humanity. There are rare instances where the two categories of crimes, war crimes, and crimes against humanity 107  M. Cherif Bassiouni, Crimes against Humanity in International Criminal Law (1999), at 265–6. 108  Ibid., at 266. 109 Prosecutor v. Duško Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case No. IT-94-1, Appeals Chamber, 2 October 1995, paras. 140–1; Prosecutor v. Duško Tadić, Trial Judgement, Case No. IT-94-1-T, 7 May 1997 (‘Tadić Trial Judgement’), para. 623; Case No. 001, Extraordinary Chambers in the Courts of Cambodia, Duch Judgement, 26 July 2010, para. 292; Case No. 002, Decision on Co-Prosecutors’ Request to Exclude Armed Conflict Nexus Requirement from the Definition of Crimes Against Humanity, 26 October 2011, para. 33. 110  G. Werle, Principles of International Criminal Law (2009), 45. 111 Cherif Bassiouni, supra note 107, at 261.

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have been deemed not to overlap.112 For instance, in the Flick Trial, the court declared that crimes against humanity do not include offences against industrial property.113 The base standard for crimes against humanity is the deprivation of rights of a more personal type.114 It is therefore understood that war crimes in which there are no violations of human rights would not amount to crimes against humanity.115 Examples of such war crimes include offences committed in breach of terms of surrender and the abuse of Red Cross protection.116 These war crimes are more of a non-personal nature than the list of crimes against humanity currently recognised in the statutes of various international criminal tribunals. Crimes against humanity currently recognised in the statutes of the various international criminal tribunals include: murder,117 extermination,118 enslavement,119 deportation or forcible transfer,120 imprisonment,121 torture,122 rape and other forms of sexual violence,123 persecution,124 enforced disappearance,125 the crime of apartheid,126 and other inhumane acts ‘of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health’.127 It is clear that the denial of a fair trial does not constitute a property right or rights in the nature of the surrender of terms or Red Cross protection. The denial of a fair trial is a right of a much more personal nature for it speaks to the dignity of an individual as he or she comes before a tribunal that potentially has the power to deprive him or her of life or liberty and therefore appropriately fits into the realm of crimes against humanity. 112  Types of Offences Chapter 4, 15 lrtwc 89, 134–5 (un War Crimes Commission, 1949) (‘Types of Offences Chapter 4’). 113  Trial of Friedrich Flick and Five Others, 9 lrtwc 48–51 (un War Crimes Commission 1949). 114  Types of Offences Chapter 4, supra note 112, at 135. 115  Ibid. 116  Ibid., at 131–4. 117 Rome Statute, Art. 7(1)(a); icty Statute, Art. 5(a); ictr Statute, Art. 3(a). 118  Rome Statute, Art. 7(1)(b); icty Statute, Art. 5(b); ictr Statute, Art. 3(b). 119  Rome Statute, Art. 7(1)(c); icty Statute, Art. 5(c); ictr Statute, Art. 3(c). 120 Rome Statute, Art. 7(1)(d); icty Statute, Art. 5(d); ictr Statute, Art. 3(d). 121  Rome Statute, Art. 7(1)(e); icty Statute, Art. 5(e); ictr Statute, Art. 3(e). 122  Rome Statute, Art. 7(1)(f); icty Statute, Art. 5(f); ictr Statute, Art. 3(f). 123  Rome Statute, Art. 7(1)(g); icty Statute, Art. 5(g); ictr Statute, Art. 3(g). 124 Rome Statute, Art. 7(1)(h); icty Statute, Art. 5(h); ictr Statute, Art. 3(h). 125  Rome Statute, Art. 7(1)(i). 126  Rome Statute, Art. 7(1)(j). 127  Rome Statute, Art. 7(1)(k); see also icty Statute, Art. 5(i); ictr Statute, Art. 3(i).

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3.2 Pre-requisites for International Criminalisation An international crime must have distinguishing elements that elevate it from a crime under national law to a crime under international law.128 For crimes against humanity, these distinguishing elements can be found in its contextual requirements—namely, a widespread or systematic attack directed at a civilian population. ‘Widespread’ refers to the large-scale nature of the attack and the number of victims, although no numerical limit has been set.129 ‘Systematic’ has been defined in various ways. Early decisions of the international criminal tribunals set a high threshold centring on an organised plan or policy involving significant resources.130 Other cases focused on an organised pattern of conduct.131 Still others looked to ‘the organized nature of the acts of violence and the improbability of their random occurrence’.132 Accordingly, random acts of individuals are not sufficient to amount to a crime against humanity. Some authorities make this prohibition against random acts express by requiring an underlying governmental or organisational policy that directs, instigates, or encourages the crimes.133 This requirement of a governmental or organisational policy is not without controversy. An ‘attack’ is generally defined as mistreatment of a civilian population134 involving multiple acts or multiple victims.135 The icty Appeals Chamber held in Kunarac that ‘nothing in the 128  Cherif Bassiouni, supra note 107, at 243. 129 Tadić Trial Judgement, supra note 109, para. 648; Prosecutor v. Kunarac et al., Trial Judgement, Case No. IT-96-23, 22 February 2001 (‘Kunarac et al. Trial Judgement’), para. 428; Nahimana v. The Prosecutor, Appeals Judgement, Case No. ICTR-99-52, 28 November 2007, para. 920. 130  Akayesu v. The Prosecutor, Trial Judgement, Case No. IT-96-4, 2 September 1998 (‘Akayesu Trial Judgement’), para. 580; Prosecutor v. Blaškić, Trial Judgement, Case No. IT-95-14, 3 March 2000 (‘Blaškić Trial Judgement’), para. 203. 131 Tadić Trial Judgement, supra note 109, para. 648; Kunarac et al. Trial Judgement, supra note 129, para. 429; Elizaphan and Gérard Ntakirutimana v. The Prosecutor, Trial Judgement, Case No. ICTR-96-10 & ICTR-96-17-T, 21 February 2003, para. 804. 132 Nahimana v. The Prosecutor, Appeals Judgement, Case No. ICTR-99-52, 28 November 2007, para. 920; Prosecutor v. Kordić and Čerkez, Appeals Judgement, Case No. IT-95-14/2, 17 December 2004 (‘Kordić and Čerkez Appeals Judgement’), para. 94; Prosecutor v. Kunarac et al., Appeals Judgement, Case No. IT-96-23, 12 June 2002 (‘Kunarac et al. Appeals Judgement’), para. 94. 133  Tadić Trial Judgement, supra note 109, para. 648; Bagilishema v. The Prosecutor, Trial Judgement, Case No. ICTR-95-1A-T, 7 June 2001, para. 78. 134  Elements of Crimes: icc, Doc ICC-ASP/1/3 (3–10 September 2002) (‘icc Elements of Crimes’), Art. 7, introduction, para. 3; Akayesu Trial Judgement, supra note 130, paras. 581–2; Kunarac et al. Appeals Judgement, supra note 132, para. 86. 135 Rome Statute, Art. 7(2)(a); Kunarac et al. Trial Judgement, supra note 129, para. 415.

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Statute or in customary international law […] required proof of the existence of a plan or policy to commit these crimes’.136 The Rome Statute, on the other hand, requires a policy element.137 Under the Rome Statute, ‘attack’ is defined as ‘a course of conduct involving the multiple commission of acts […] against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack’.138 While authorities are divided as to whether the contextual requirements of crimes against humanity include a policy element, the denial of a fair trial could easily meet the prerequisites of international criminalisation as expressed through the contextual elements of crimes against humanity, even under the higher threshold requiring state action or policy carried out by state actors or non-state actors, respectively. The contextual requirements of crimes against humanity would be met as long as the crime against humanity of the denial of a fair trial criminalised persistent miscarriages of justice rather than isolated instances of judicial misconduct. Punishable offences would only include those fair trial standards that are derogated from as a result of an organised policy. For example, where defendants are readily denied the presence of counsel, tried in prisons, and denied the possibility of appeal,139 such persistent procedural derogations from fair trial standards would amount to state action or policy if proved to be more than isolated failures of the processes supported by the judiciary. Statements from a government official announcing approval of death sentences for persons whose trials included the aforementioned derogations would begin to build a case that the flagrant denial of fair trial, in a particular country, is a state supported and directed activity.140 The prohibition against the crime against humanity of the denial of a fair trial could address injustices resulting from the total degradation of a judicial system (such as the German judicial system of the Third Reich under Hitler where trials by an independent, impartial body could not be had for certain discriminated against segments of society). With a domestic system incapable of adequately addressing such large scale miscarriages of justice, the flagrant denial of a fair trial would meet the prerequisites for international criminalisation. When the denial of a fair trial takes place on a widespread and

136  137  138  139

Kunarac et al. Appeals Judgement, supra note 132, para. 98. Rome Statute, Art. 7(2)(a). Rome Statute, Art. 7(2)(a). Time for Judicial Reform and the End to Secret Trails, Amnesty International, 16 September 1999. 140  Ibid.

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systematic basis, criminalisation on the international level would be an important avenue for addressing egregious derogations from fair trial standards. 3.3 Possible Criminalisation under Persecution and ‘Other Inhumane Acts’ and Meeting the Gravity Threshold The flagrant denial of a fair trial would fit within the rubric of crimes against humanity even in the case where a fair trial derogation is but a single part of a widespread or systematic attack against a civilian population conducted by other means. For instance, in the Brđanin case Trial Chamber II of the icty found that Bosnian Muslims and Croats were arbitrarily arrested and detained in camps. Most of the detainees were never informed of the charges against them and never brought before a court. The Trial Chamber found that there was a near total absence of judicial process, including the right to access a court.141 The Brđanin case was the first time the denial of judicial process was considered an underlying act of persecution at the icty.142 Having been alleged for the first time, the Trial Chamber noted that acts that deny fundamental rights— such as the rights to employment, freedom of movement, proper judicial process, and proper medical care—may amount to persecution, provided they are of sufficient gravity or severity.143 The Trial Chamber considered it unnecessary to examine the nature of each right individually, but rather considered it sufficient to look at the cumulative denial of the rights to employment, freedom of movement, proper judicial process, and proper medical care in order to determine whether these are fundamental rights for the purposes of establishing persecution.144 The Trial Chamber concluded that ‘taking into account the cumulative effect of their denial, these rights cannot but be considered as fundamental rights for the purposes of establishing persecution’ and of equal gravity to other crimes listed in Article 5 of the icty Statute.145 The Trial Chamber found that the denial of judicial process was committed with discriminatory intent and convicted Brđanin of the denial of judicial process as an underlying act of persecution.146 The Appeals Chamber affirmed this conviction.147

141  142  143  144  145  146 147 

Prosecutor v. Brđanin, Trial Judgement, Case No. IT-99-36, 1 September 2004, para. 1044. Ibid., at paras. 1029, 1045, 1049. Ibid., at para. 1031. Ibid., at para. 1031. Ibid., at para. 1049. Ibid., at paras. 1044–1045, 1049, 1072–1075. Prosecutor v. Brđanin, Appeals Judgement, Case No. IT-99-36, 3 April 2007, paras. 298–303.

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Persons subjected to unfair trials should be protected even if the denial of a fair trial is not conducted on discriminatory grounds and therefore does not amount to persecution. Such derogations from fair trial standards could find their home in the residual category of crimes against humanity—‘other inhumane acts’. ‘Other inhumane acts’ was designed as a residual category because exhaustive categorisation of crimes against humanity would ‘merely create opportunities for evasion of the letter of the prohibition’.148 Not just any conduct can fall within the purview of ‘other inhumane acts’. Instead, such conduct has been limited to acts or omissions that (1) do not fall within any other sub-clause of crimes against humanity; (2) are sufficiently similar in gravity to other enumerated crimes; and (3) occur within the context of a widespread or systematic campaign.149 The threshold element is the requirement that the act in question be of ‘similar gravity and seriousness’ to other prohibited acts.150 The act or omission must deliberately cause serious mental or physical suffering or injury or constitute a serious attack on human dignity.151 Inhumane acts have been found to include forced disappearance,152 sexual violence,153 forced prostitution,154 mutilation, beatings, and other types of severe bodily and mental harm,155 inhumane and degrading treatment,156 forcible transfer of civilians,157 forced nudity,158 and forced marriage.159 The flagrant denial of a fair trial involves a set of harms not encapsulated by other crimes against humanity. Trials are generally meant to maintain law and order on behalf of the whole of society and to hold individuals to account for crimes that have been committed. The process must be free and fair otherwise 148  Prosecutor v. Kupreškić et al., Trial Judgement, Case No. IT-95-16, 14 January 2000 (‘Kupreškić Trial Judgement’), para. 563. 149 Prosecutor v. Naletilić and Martinović, Trial Judgement, Case No. IT-98-34, 31 March 2003, para. 247; Kordić and Čerkez Appeals Judgement, supra note 132, para.117. 150  See Kayishema and Ruzindana v. The Prosecutor, Trial Judgement, Case No. ICTR-95-1-T, 21 May 1999, paras. 154, 583. 151  Ibid., at para. 151. 152  Kupreškić Trial Judgement, supra note 148, para. 566. 153  Akayesu Trial Judgement, supra note 130, para. 688. 154  Kupreškić Trial Judgement, supra note 148, para. 566. 155 Tadić Trial Judgement, supra note 109, paras. 729, 744; Blaškić Trial Judgement, supra note 130, para. 242. 156  Kupreškić Trial Judgement, supra note 148, para. 566. 157  Ibid., para. 566; Prosecutor v. Krstić, Trial Judgement, Case No. IT-98-33, 2 August 2001, para. 523. 158  Akayesu Trial Judgement, supra note 130, para. 697. 159 Prosecutor v. Brima, Kamara, and Kanu, Appeals Judgement, Case No. SCSL-2004-16-A, 22 February 2008, para. 202.

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individuals suffer the stigma of being labelled a criminal, marginalisation from society, and a potential loss of liberty or life through an abusive system that does not fairly determine one’s guilt or innocence. The resulting harm from being a victim of an unfair trial is psychological in nature and can be distinguished from the additional harm emanating from the ultimate punishment following the conviction. Modern day international criminal law provides support that the gravity of the stand-alone crime of the flagrant denial of fair trial is weighty enough to result in individual criminal responsibility separate and apart from the ultimate harm to the victim. The icc Elements of Crimes set out two crimes that are related to the denial of a fair trial. The first is the war crime of denying a fair trial applicable in international armed conflicts emanating from the grave breaches provisions of the Geneva Conventions,160 and the second is the war crime of sentencing or execution without due process, applicable in non-international armed conflicts.161 As the war crime emanating from the grave breaches provisions does not mention the resulting consequence of the crime and the war crime applicable in non-international armed conflicts refers to sentencing or execution without due process in the disjunctive, the offence does not require the death of the victim. Accordingly, international criminalisation can be established based solely on the denial of a fair trial, separate and apart from the resulting consequence of the denial of the fair trial to the victim. Flagrant denials of a fair trial as a crime against humanity are also of similar gravity to other crimes against humanity. Crimes against humanity were created to deter and punish threats to international peace and security, in particular, systematic or widespread violations of the fundamental human rights of the civilian population.162 Like other crimes against humanity, the crime against humanity of a denial of a fair trial protects a fundamental right, namely the right to a fair trial. Furthermore, the fundamental nature of at least one aspect of this right, that is, the right to access a court, and its gravity, has been recognised by the icty in the Brđanin case.163 The gravity of flagrant denials of a fair trial is also exemplified by European Court of Human Rights’ (ECtHR) jurisprudence on the principle of nonrefoulement. The ECtHR has maintained that the right to a fair trial in criminal proceedings holds such a prominent place in society that a state must not 160  icc Elements of Crimes, supra note 134, Art. 8(2)(a)(vi). 161  Ibid., Art. 8(2)(c)(iv). 162  Werle, supra note 110, at 32–3. 163  Brđanin Trial Judgement supra note 141, para. 1049; Brđanin Appeals Judgement, supra note 147, paras. 298–303.

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extradite individuals facing a flagrant denial of a fair trial in the state requesting extradition.164 States are not obliged to verify that proceedings which resulted in a conviction met all the requirement of Article 6 of the echr, but states are obliged to refuse cooperation in relation to extradition requests ‘if it emerges that the conviction is the result of a flagrant denial of justice’.165 The ECtHR has not defined ‘flagrant’ denials of a fair trial, but has recognised that the test is ‘high’ or ‘stringent’ and goes beyond mere irregularities in trial procedures that might result in a breach of Article 6 of the echr.166 The ECtHR considers a flagrant denial of a fair trial to involve a ‘complete denial or nullification of the Convention right’ or giving rise to a ‘gross violation’ or ‘a thoroughly unfair trial’.167 Certain violations of Article 6 rights have been identified as potentially amounting to ‘flagrant denial of a fair trial’. These rights include: the right to an impartial and independent tribunal,168 the right to present evidence in one’s defence,169 the right to a public hearing,170 the prohibition against detention after acquittal,171 the right of the accused to be present at his or her trial,172 the right to oral evidence,173 and the right to have evidence presented by both the prosecution and the defence.174

164 Soering v. The United Kingdom, Judgement of 7 July 1989, para. 113; Mamatkulov and Askarov v. Turkey, Judgement of 4 February 2005, paras. 88–90; Bader and Kanbor v. Sweden, Judgement of 8 November 2005, para. 42; Ismoilov and Others v. Russia, Judgement of 24 April 2008, para. 156. 165 Drozd and Janousek v. France and Spain, Judgement of 26 June 1992, para. 110. For more on the intersection between the principle of non-refoulement and fair trial rights see the written submissions of INTERIGHTS in the ECtHR case Baysakov and Others v. Ukraine available at www.interights.org/document/137/index.html (last visited 04 August 2014). 166  Mamatkulov and Askarov v. Turkey, Judgement of 4 February 2005, paras. 88–90; Othman (Abu Qatada) v. The United Kingdom, Judgement of 17 January 2012, para. 260. 167 ‘In our view, what the word “flagrant” is intended to convey is a breach of the principles of fair trial guaranteed by Article 6 which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that Article’. Mamatkulov and Askarov v. Turkey, Judgement of 4 February 2005, Joint Partly Dissenting Opinion of Judges Sir Nicolas Bratza, Benello, and Hedigan, para. 14; Othman (Abu Qatada) v. The United Kingdom, Judgement of 17 January 2012, para. 260. 168  Iribarne Perez v. France, Judgement of 24 October 1995, para. 32. 169  Bader and Kanbor v. Sweden, Judgement of 8 November 2005, para. 47. 170  Iribarne Perez v. France, Judgement of 24 October 1995, para. 32. 171  Assanidze v. Georgia, Judgement of 8 April 2004, paras. 181–4. 172 Bader and Kanbor v. Sweden, Judgement of 8 November 2005, para. 47; Stoichkov v. Bulgaria, Judgement of 24 March 2005, para. 56; Sejdovic v. Italy, Judgement of 1 March 2006, para. 84. 173  Bader and Kanbor v. Sweden, Judgement of 8 November 2005, para. 47. 174  Ibid.

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3.4 Insufficiency of Criminalisation under Persecution Only It may be argued that the systematic, intentional derogations from fair trial standards will not go unpunished as the underlying act of the denial of a fair trial can be subsumed in other existing crimes against humanity, such as persecution, provided that the requisite discriminatory intent is proved. In addition to the Brđanin case, the Justice Trial provides another example of the interplay between the crime against humanity of persecution and the denial of a fair trial. As the unwcc points out, in the Justice Trial, the prosecution appears to have regarded the whole of the definition of crimes against humanity contained in Control Council Law No. 10 as being governed by the words ‘on political, racial or religious grounds’. The tribunal, however, disagreed with the prosecution and divided those acts that constitute crimes against humanity into two groups: ‘atrocities and offenses committed against any civilian population’ and ‘persecution on political, racial or religious grounds’.175 Unlike in other post-Second World War trials, however, the ultimate goal of prosecutors in the Justice Trial was not to delineate fair trial standards fundamental to civilised peoples, but rather to create a historical record of Nazi eradication of certain political, racial, and religious groups.176 Criminalising conduct under the crime against humanity of persecution serves to stigmatise, punish, and deter crimes committed on discriminatory grounds. Criminalising the denial of a fair trial as a separate and unique crime against humanity would highlight the particular criminality of creating a system of mock trials that seeks to rob persons of their life or liberty in a manner that debases human dignity. The criminalisation of the denial of a fair trial as a separate and unique crime would encompass any widespread or systematic violation of the right to a fair trial, regardless of whether such violations occurred on discriminatory grounds. Governments or any other entity that would systematically deprive civilians of the right to a fair trial regardless of their political, racial, national, ethnic, cultural, religious, or gender affiliation would thereby potentially be held accountable under the rubric of crimes against humanity rather than escape accountability on the basis that deprivations of this right did not occur on discriminatory grounds. 175 Notes on the Case: Crimes against Humanity, 6 lrtwc 79, 83 (1948). The Prosecution is recorded as saying the following in their closing speech: ‘We contend, therefore, that Law 10, when properly construed, makes the crimes of murder, enslavement and imprisonment, normally national in character, international, when they follow a pattern of persecution on racial, political and religious grounds, or are performed, as they were in this case, in connection with a national plan or enterprise, shown in this case to be national in scope, to commit them on racial, political or religious grounds’. Ibid. 176  Notes on the Case: Criminal Aspects of a Denial of a Fair Trial, Vol. VI, supra note 4, 102.

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Elements of the Denial of a Fair Trial

The elements of the denial of a fair trial as a crime against humanity have, in one way or another, been set forth by the jurisprudence of the post-Second World War trials. Like all crimes against humanity, the denial of a fair trial requires constitutive acts to be part of a widespread or systematic attack directed against any civilian population.177 The Rome Statute defines an attack against a civilian population as a course of conduct involving multiple commissions of acts against civilians pursuant to or in furtherance of a state or organisational policy to commit such attacks.178 Thus, failures in meeting judicial guarantees isolated from other systematic fair trial derogations or other widespread or systematic acts against a civilian population would not be criminalised. The mens rea for the denial of a fair trial as a crime against humanity would require that the perpetrator wilfully and knowingly authorised, permitted, participated in, and approved of an illegal and unfair trial.179 Under this mens rea requirement, judges, chiefs of staff, prosecutors, and executioners could all be potentially liable. During the post-Second World War trials, the accused had varied positions of authority, but the individuals that were found guilty were ‘personally informed of the proceedings’ and ‘thoroughly acquainted with the nature of the proceedings against the Allied prisoners’.180 While the post-Second World War trials remained relatively consistent in terms of the required mens rea for the denial of a fair trial, the constitutive acts resulting in the denial of a fair trial varied slightly. This variance is due to the fact that some cases did not seek to declare a set of minimum standards for fair trials, but rather sought to address only those elements lacking in the victim’s trial that made it unfair and illegal. The judge advocate of the Australian Military Court did find it necessary to enumerate fair trial standards,181 which 177  Rome Statute, Art. 7. 178 Ibid., Art. 7(2)(a). 179  See Hisakasu and Five Others, supra note 2, at 66; Isayama and Seven Others, supra note 2, at 60; Sawada and Three Others, supra note 2, at 1. 180  Notes on the Case: Criminal Aspects of Denial of Fair Trial, Vol. V, supra note 32, at 79. 181 These standards included: (a) consideration by a tribunal comprised of one or more men who will endeavour to judge the accused fairly upon the evidence using their own common knowledge of ordinary affairs and if they are soldiers their military knowledge, honestly endeavouring to discard any preconceived belief in the guilt of the accused or any prejudice against him; (b) knowledge on the part of the accused of the exact nature of the charge preferred against him; (c) knowledge on the part of the accused as to what is alleged against him by way of evidence; (d) the accused having full opportunity to give his

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he weighted equally by stating that ‘unless provision is made for observance of all these principles I do not consider any other form of proceedings which a belligerent might direct would in law really amount to a trial’.182 Today, the fair trial standards enumerated in all the post-Second World War trials have been enshrined in the Geneva Conventions of 1949. Accordingly, the icc stipulates that, for the war crime of denying someone a fair trial, a perpetrator must have deprived a person of a ‘fair and regular trial by denying judicial guarantees as defined, in particular, in the Third and Fourth Geneva Conventions of 1949’.183 The constitutive acts of the crime against humanity of the flagrant denial of a fair trial should generally follow standards set forth in the Geneva Conventions of 1949 because they represent historically accepted principles relating to fair trials. Just as the Geneva Convention of 1929 was not the last word on what constitutes a fair trial, nor should the Geneva Conventions of 1949 be the final say on fair trial requirements. Thus, the actus reus element of the crime against humanity of a flagrant denial of fair trial should simply state that a perpetrator has deprived a person of a fair and regular trial by denying judicial guarantees, including, but not limited to, those defined in the Geneva Conventions of 1949 and their Additional Protocols. In this way, the crime against humanity of a denial of a fair trial would be responsive to developing notions of essential elements of a fair trial and not codify an archaic perception of fundamental fairness. Nevertheless, an important starting point for defining the actus reus would be the fair trial guarantees generally common to the Geneva Conventions and their Additional Protocols, the iccpr, the various regional human rights conventions, or the statutes of various international criminal tribunals. These fair trial guarantees include: the presumption of innocence,184 being informed of

own version of the case and produce evidence to support it; (e) the court satisfying itself that the accused is guilty before awarding punishment. It would be sufficient if the court believed it to be more likely than not that the accused was guilty; and (f) the punishment not being one which outrages the sentiments of humanity. Ohashi and Six Others, supra note 3, at 30. 182  Ohashi and Six Others, supra note 3, at 31. 183  Elements of Crimes, supra note 135, Art. 8(2a)(vi)–1. 184  ap I, Art. 75(4)(d); ap II, Art. 6(2)(d); iccpr, Art. 14(2); echr, Art. 6(2); American Convention on Human Rights, Art. 8(2); African Charter on Human and Peoples’ Rights, Art. 7(1)(b); icty Statute, Art. 21(3); ictr Statute, Art. 20(3); Agreement between the United Nations and the Government of Sierra Leone on Establishing a Special Court for Sierra Leone (with Statute), 16 January 2002, 2178 unts 137, un Doc. S/2002/246 (‘scsl Statute’), Art. 17(3); Agreement Concerning the Prosecution Under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, 6 June 2003, 2329 unts 117 (‘eccc Agreement’), Art. 13(1); Statute of the Special Tribunal for Lebanon, 30 May 2007, un Doc. S/RES/1757 (‘stl Statute’), Art. 16(3)(a).

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the nature and cause of the charges against oneself,185 having adequate time and facilities for the preparation of a defence,186 being tried without undue delay,187 the right to defend oneself in person or through legal counsel,188 the right to examine witnesses,189 the right to an interpreter,190 and the prohibition against self-incrimination.191 An open question remains as to whether the flagrant denial of a fair trial, such as to allow criminalisation on an international level, stems from the cumulative effect of fair trial derogations. Would a single deviation from fair trial guarantees allow for criminalisation on an international level? The postSecond World War military commissions and tribunals catalogued a number of fair trial rights that they deemed fundamental, thereby implying that derogation from any one of these guarantees would taint the legality of the entire trial.192 Nevertheless, the fair trial derogations in the trials described in postSecond World War cases ‘did not even approach a semblance of fair trial or justice’,193 and therefore these cases do not provide conclusive proof that a 185  gc III, Arts. 96 and 105; gc IV, Arts. 71 and 123; ap I, Art. 75(4)(a); ap II, Art. 6(2)(a); iccpr, Art. 14(3)(a); echr, Art. 6(3)(a), American Convention on Human Rights, Art. 8(2)(b); icty Statute, Art. 21(4)(a); ictr Statute, Art. 20(4)(a); scsl Statute, Art. 17(4)(a); stl Statute, Art. 16(4)(a). 186  gc III, Art. 105; gc IV, Art. 72; iccpr, Art. 14(3)(b); echr, Art. 6(3)(b); American Convention on Human Rights, Art. 8(2)(c); icty Statute, Art. 21(4)(b); ictr Statute, Art. 20(4)(b); scsl Statute, Art. 17(4)(b); eccc Agreement, Art. 13(1); stl Statute, Art. 16(4)(b). 187  gc III, Art. 103; gc IV, Art. 71; iccpr Art. 14(3)(c); icty Statute, Art. 21(4)(c); ictr, Art. 20(4)(c); scsl Statute, Art. 17(4)(c); stl Statute, Art. 16(4)(c). 188  gc III, Arts. 99 and 105; gc IV, Art. 72; iccpr, Art. 14(3)(d); echr, Art. 6(3)(c); American Convention on Human Rights, Art. 8(2)(d); African Charter on Human and Peoples’ Rights, Art. 7(1)(c); icty Statute, Art. 21(4)(d); ictr Statute, Art. 20(4)(d); scsl Statute, Art. 17(4)(d); eccc Agreement, Art. 13(1); stl Statute, Art. 16(4)(d). 189  gc III, Arts. 96 and 105; gc IV, Arts. 72 and 123; ap I, Art. 75(4)(g); iccpr, Art. 14(3)(e); echr, Art. 6(3)(d); American Convention on Human Rights, Art. 8(2)(f); icty Statute, Art. 21(4)(e); ictr Statute, Art. 20(4)(e); scsl Statute, Art. 17(4)(e); eccc Agreement, Art. 13(1); stl Statute, Art. 16(4)(e). 190  gc III, Arts. 96 and 105; gc IV, Arts. 72 and 123; ap I, Art. 75(4)(g); iccpr, Art. 14(3)(f); echr, Art. 6(3)(e); American Convention on Human Rights, Art. 8(2)(a); icty Statute, Art. 21(4)(f); ictr Statute, Art. 20(4)(f); scsl Statute, Art. 17(4)(f); stl Statute, Art. 16(4)(g). 191  gc III, Art. 99; ap I, Art. 75(4)(f); ap II, Art. 6(2)(f); iccpr, Art. 14(3)(g); American Convention on Human Rights, Art. 8(2)(g); icty Statute, Art. 21(4)(g); ictr Statute, Art. 20(4)(g); stl Statute, Art. 16(4)(h). 192  See Notes on the Case: Criminal Aspects of the Denial of a Fair Trial, Vol. VI, supra note 4, at 103–4. 193  Ibid., at 97.

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single fair trial derogation would be of sufficient gravity to warrant individual criminal responsibility under international criminal law. Along these lines, the unwcc noted that the denial of a single fair trial right would not necessarily lead to individual criminal responsibility as the post-Second World War military commissions and tribunals considered ‘whether a sufficient number of the rights which they have regarded as forming part of the general right to a fair trial were sufficiently violated’ to conclude that the offence of the denial of a fair trial had been committed or that the defence of providing a fair trial had failed.194 Even within the rubric of state responsibility, a single derogation will not necessarily result in a violation of Article 6 of the echr.195 The fair trial rights protected under Article 6 of the echr include those that are expressly stated under Article 6 and others that are implied.196 Breach of the express rights of Article 6 could render a trial unfair, while a breach of an implied right will not necessarily result in a violation of Article 6 of the echr.197 Of the fundamental fair trial guarantees set out by the post-Second World War military commissions and tribunals, none fall in the category of implied rights under the echr.198 Consequently, if one analogises the rubric of state responsibility to the rubric of individual criminal responsibility for the limited purpose of 194  Commentary, Defence Pleas, 15 lrtwc 155, at 165 (1949). 195  R. Clayton and H. Tomlinson, Fair Trial Rights (2010), 121. 196  Ibid., at 120–1. Article 6 expressly mentions the following rights: the right to a hearing within a reasonable time; the right to an independent and impartial tribunal established by law; the right to a public hearing, unless it is necessary to exclude the press and the public from all or part of the trial in the interest of morals, public order, or national security, where the interests of juveniles or private life of the parties so require, or where publicity would prejudice the interests of justice; the right to public pronouncement of judgment; the right to minimum standards of fairness in criminal proceedings, which consists of the presumption of innocence; the right to information as to the accusation; the right to adequate time and facilities to prepare a defence; the right of the accused to defend himself in person or through legal assistance; the right to examine witnesses; and the right to assistance from an interpreter. See Article 6, European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ets 5, available at www.hri.org/docs/ECHR50.html#C.Art6 (last visited 8 August 2014). In addition, Article 6 has been interpreted as including the following implied rights: the right to access to court; right to be present at an adversarial hearing; the right to equality of arms; the right to fair presentation of the evidence; the right to cross examine; the right to right to a reasoned judgement; and the right to the implementation of final, binding judicial decisions. R. Clayton and H. Tomlinson, Fair Trial Rights (2010), 121. 197  Ibid., at 121. 198  Compare ibid., at 121 and Commentary, Defence Pleas, supra note 194, at 161–5 (1949).

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determining whether a single derogation from a fundamental or absolute fair trial rights renders an entire trial unfair, the conclusion would be that a single violation of a fundamental fair trial right could in fact taint an entire trial. 5 Conclusion Adequate protection of a person’s right to a fair trial requires its criminalisation under crimes against humanity. Human rights instruments have attempted to protect this right, but have left states to derogate from fair trial standards during public emergencies. General Comment No. 29 of the Human Rights Committee sought to further safeguard the right to a fair trial by stating that the principles of legality and rule of law ‘require that fundamental requirements of fair trial must be respected during a state of emergency’, and that three elements of fair trials are non-derogable, namely: access to a court in case of criminal proceedings, the presumption of innocence, and the right to habeas corpus or amparo.199 However, in so doing, it leaves derogable many other important elements of a fair trial, such as the right to appeal and the right to defence counsel, and leaves the remedy for miscarriages of justice in the hands of the state and those responsible for denying a person a fair trial. While the draft Third Optional Protocol to the iccpr likely contemplates situations in which a competent body exists to review unfair trials, it lacks the teeth to deal with widespread or systematic violations of fair trial standards that are committed by state officials and with state resources. The right to a fair trial is a fundamental right from which many other rights are protected. Criminalisation of the flagrant denial of a fair trial in order to protect this right has its legal and historical underpinnings in the post-Second World War trials. Currently, violations of fair trial standards are criminalised in the statutes and jurisprudence of the icty, ictr, and icc; however, keeping criminalisation only within the rubric of war crimes limits the protection of this right to times of conflict and only to persons protected under the Geneva Conventions. Such an approach ignores the fact that civilians are often also deprived of fair trials and that these derogations occur in times of peace as well as in times of war. In order to give meaning to a more comprehensive recognition of the right to a fair trial, the denial of a fair trial should be criminalised under the umbrella of crimes against humanity. The post-Second World War trials provide the basic historical and legal underpinnings for this task, and all that remains is the impetus of the international community. 199  General Comment No. 29, supra note 84, para. 16.

chapter 9

The Place of International Criminal Law within the Context of International Humanitarian Law Chris Black* 1 Introduction In the traditional vocabulary of the international humanitarian lawyer, reference to The Hague has served to distinguish the law it is associated with from that of Geneva.1 More recently, however, ‘The Hague’ has assumed a second meaning as the location of international justice and international criminal justice in particular.2 It is home to several international judicial institutions with jurisdiction in criminal matters.3 It was this ‘Hague’ that attracted Joakim Dungel, who went there to work as a lawyer in one of its international criminal tribunals as a specialist in international criminal law, international humanitarian law (ihl), and international human rights law. The Hague could not keep Joakim for long, however. After taking leave from The Hague to pursue his studies, he returned before assuming posts at the Special Court for Sierra Leone in Freetown, the Temporary * I would like to express my gratitude to Getachew Bethlehem Mengesha for her invaluable assistance with the research for this essay. Thanks are also due to Kirsten Roberts for the recollections we shared of Joakim’s motivations. Finally, thanks to those whose comments on earlier drafts have helped to make this article more than it would otherwise have been. 1 The law that emanated from a series of conferences convened there is referred to as the law of The Hague, and is generally taken to mean the body of rules regulating the means and methods of warfare. The law of Geneva, codified in its homonymic conventions and their additional protocols, regulates the treatment of persons not or no longer participating in hostilities. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, [1996] icj Rep. 226, para. 75. See also, for example, J. Dugard, International Law: A South African Perspective (2005), 186. 2 The municipal authorities in The Hague present the city as a ‘City of Peace and Justice’; see, for example, the Gemeente Den Haag website: www.denhaag.nl/en/visitors/international -The-Hague/city-of-peace-and-justice.htm (last viewed 20 November 2013). 3 In addition to the (permanent) International Criminal Court, The Hague also hosts the International Criminal Tribunal for the former Yugoslavia, and the Appeals Chamber of the International Criminal Tribunal for Rwanda. It has also housed—on a sui generis basis—a Trial and the Appeals Chambers of the Special Court for Sierra Leone for the trial of former Liberian President Charles Taylor.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004236592_011

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International Presence in Hebron, and—finally and tragically—the United Nations Assistance Mission in Afghanistan. Among the many reasons Joakim had for moving on from The Hague was his desire to seek out other ways to contribute to the protection of non-combatants during armed conflict. He was interested to see for himself how the law could be used outside of ‘The Hague’ to alleviate the effects of armed conflict. This article is inspired by Joakim’s sense that individual criminal responsibility for violations of the rules—while a valid concern—is but one piece in the mosaic designed to protect the victims of armed conflict. It is intended as a reflection on the context of ‘The Hague’ within the system of international law that is designed to protect the victims of war, and to regulate war’s conduct. As such, in part (2), it seeks to provide some reasons for reflecting on the proper place enjoyed by ‘repression’ in the broader scheme of ihl. In part (3), it examines the inter-relationship of two different conceptions of ihl in order to sensitise readers not yet familiar with those competing concepts, as well as to the risk that excessive attention to international criminal prosecutions may undermine that broader scheme. 2

The Location of International Penal Repression on the Spectrum of ihl-Related Activities

ihl is a body of law that, during armed conflicts, aims to protect certain categories of persons and regulate the conduct of hostilities. In practical terms, this means that the conduct of military operations is governed by a body of legal prescriptions, that the use of certain types of weapon is either regulated or prohibited,4 and that certain classes of persons and objects enjoy non-derogable rights and protections. It also sets out detailed rules for, and seeks to establish, mechanisms to ensure that these rules are respected. One such mechanism seeks to ensure that violations of the rules are ‘repressed’. In this sense, repression of ihl violations in the form of international criminal trials in The Hague is but one mechanism among others. The Extent and Content of ihl Instruments and Their Provision for Penal Repression To determine the extent and content of ihl, and for the sake of convenience, reference can be had to the International Committee of the Red Cross’s (icrc)

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4 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, [1996] icj Rep. 226, paras. 76, 78.

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database5 of categorised ihl instruments6 and States party thereto: the protection of victims of armed conflicts;7 the International Criminal Court (icc);8 the protection of cultural property in the event of armed conflict;9 the protection

5 The icrc maintains a document entitled ‘State Parties to the Following International Humanitarian Law and Other Related Treaties’ and provides access to an updated version here: www.icrc.org/applic/ihl/ihl.nsf/xsp/.ibmmodres/domino/OpenAttachment/applic/ihl/ ihl.nsf/93C7AA314D95619AC1257C21002D3FC8/%24File/IHL_and_other_related_Treaties .pdf?Open (last viewed 20 November 2013). 6 ‘Related instruments’ refers to those that are not, strictly speaking ihl. A fine example is the 25 May 2000 Optional Protocol to the 1989 United Nations Convention on the rights of the child, 1577 unts 3. The 1989 Convention, which enjoys near-universal ratification with 193 States parties, includes an age limit of 15 for the participation of children in hostilities (the 1977 Protocols additional to the Geneva Conventions also prohibit the recruitment and participation in hostilities of children under 15 years of age; see Additional Protocol I, Art. 77; Additional Protocol II, Art. 4(3)(c).) The May 2000 Optional Protocol to the 1989 Convention (2173 unts 222, with 152 ratifications) increases the age limit for compulsory recruitment to 18 and discourages voluntary recruitment between 15 and 18 years of age. The 1989 Convention and its 2000 Optional Protocol are effectively instruments of International Human Rights Law, but the Optional Protocol is the sole instance of an age limit of 18 for the participation of children in hostilities. 7 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva, 12 August 1949; Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva, 12 August 1949; Geneva Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949; Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, Geneva, 8 June 1977 (Additional Protocol I); Declaration provided for under Article 90 ap I, Acceptance of the Competence of the International Fact-Finding Commission according to Article 90 of Additional Protocol I; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, Geneva, 8 June 1977 (Additional Protocol II); Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem (Protocol III), 8 December 2005; Convention on the Rights of the Child, New York, 20 November 1989, and in particular the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, New York, 25 May 2000. 8 Rome Statute of the International Criminal Court, 17 July 1998, 2187 unts 90 (Rome Statute). 9 Convention for the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 14 May 1954, 249 unts 240; First Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 14 May 1954, 249 unts 358; and Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 26 March 1999, 2253 unts 212.

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of the environment;10 and instruments regulating or prohibiting the use of certain weapons, or categories of weapons.11 Some notable instruments that do not figure on this list remain remarkable largely for their historical interest.12 For instance, the 1868  St. Petersburg Declaration—familiar to international humanitarian lawyers for its unprecedented codification of some now-familiar concepts13 —is one instrument among 10 11

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Convention on the prohibition of military or any other hostile use of environmental modification techniques, New York, 10 December 1976, 1108 unts 151 (enmod). Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, Geneva, 17 June 1925, ukts 24 (1930); Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, opened for signature at London, Moscow and Washington, 10 April 1972, 1015 unts 163; Convention on Prohibi­ tions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects, Geneva, 10 October 1980, 1342 unts 137 (together with the following Protocols—Protocol on non-detectable fragments (I); Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended on 3 May 1996 (Protocol II); Protocol on prohibitions or restrictions on the use of incendiary weapons (III); Protocol on Blinding Laser Weapons (IV); Amendment to 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 (with respect to Protocols I, II and III), Geneva 21 December 2001; Protocol on Explosive Remnants of War (V); Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, Paris 13 January 1993, 1974 unts 45; Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, Oslo, 18 September 1997, 2056 unts 211; Convention on Cluster Munitions, 30 May 2008, 2688 unts). To this list might be added the Arms Trade Treaty, adopted by the un General Assembly on 2 Aril 2013, entered into force on 24 December 2014. While the more ‘historical’ instruments are not on the icrc’s list of ihl treaties for ratification, they do appear under the section ‘Historical Treaties and Documents’ in the updated site on ihl: www.icrc.org/applic/ihl/ihl.nsf/vwTreatiesHistoricalByDate.xsp (last viewed 10 December 2013). The 1868 Declaration is described as the first major international agreement prohibiting the use of certain weapons in war (A. Roberts and R. Guelff, Documents on the Laws of War (2000) 3rd ed. 53). It is at the origin of the customary international humanitarian law rule prohibiting the ‘employment of arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable’ as ‘contrary to the laws of humanity’. As Roberts and Guelff also point out, it is furthermore remarkable for its succinct statement of principle that ‘the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy’. One respected commentator has stated that the 1868 Declaration ‘ushered in the modern era of limitations on methods and means of warfare’, see M.N. Schmitt, ‘War, Technology, and International Humanitarian

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others that has fallen into desuetude, as its provisions have been largely surpassed by subsequent codification or its principles are now recognised as forming part customary international law.14 Similarly, the 1925 Geneva Protocol outlawing the use of poison gas and bacteriological methods of warfare has largely been surpassed by the Biological and Chemical Weapons Conventions of 1972 and 1993 respectively; the instruments are in fact complementary, with the latter two supplementing the former.15 When assessing the provisions providing for penal repression contained by these instruments, the Rome Statute naturally stands apart, since its purpose is the effective prosecution of serious international crimes.16 The remaining treaties are instructive, however, inasmuch as they demonstrate the broad scope of ihl, and how punishing violations of their provisions is a small part of that scope. Among those remaining treaties, arguably the strongest provisions on penal repression are those described as the grave breaches regime of the Geneva Conventions and their Additional Protocol I, where certain violations are classified as criminal regardless of the implementation of penal measures into domestic law, and which are effectively subject to universal jurisdiction.17 States parties are thus under an international legal obligation to prosecute 14

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Law’, 2005 (4) Program on Humanitarian Policy and Conflict Research, Harvard University, Occasional Paper Series, 6. For instance, Rule 70 of the icrc’s customary law study provides that ‘The use of means and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering is prohibited’. Henckaerts and Doswald-Beck, supra note 31, at 237. Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, 1925, League of Nations Treaty Series, vol. 94, pp. 66–74. See A. Roberts and R. Guelff, Documents on the Laws of War (2000), 3rd ed. 155. It is notable, however, that the 1972 Biological Weapons Convention— unlike the 1925 Protocol—does not expressly forbid the use of bacteriological weapons, even if the Convention’s review conference has stated that use would contravene the objectives of the Convention and in any event violate the prohibition of the production and stockpiling of bacteriological weapons. Rome Statute of the International Criminal Court, 17 July 1998, 2187 unts 90, preamble: ‘Affirming that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation’. As is the case with other conventions allegedly providing the same, the Geneva Conventions and their First Additional Protocol do not actually provide for universal jurisdiction per se. Rather, ‘[t]hey provide for various bases of jurisdiction coupled with the aut dedire aut punire principle’ according to which the High Contracting Parties undertake to try offenders found on their territories or to extradite them for trial. R. Higgins, Problems and Process—International Law and How to Use It (1994), 65; cited

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(or to extradite) persons alleged to have committed a grave breach,18 and as such, it can be said that the Geneva Conventions introduced into conventional law individual criminal responsibility for specific violations of the laws of war.19 Such forceful law is absent from the other instruments, some of which only call on States parties to criminalise the offending conduct. For instance, Article 28 of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict merely calls on Parties to the Convention to take all necessary steps to prosecute and to impose sanctions on all persons who violate its provisions.20 The 1999 Second Protocol to the 1954 Hague Convention is notably more potent, requiring that States parties must ensure that specific acts are codified as criminal offences in domestic law.21 Under the 1972 Biological Weapons Convention, the primary obligation constrains States parties never under any circumstances to develop, produce, stockpile, or otherwise acquire or retain microbial or other biological agents, or toxins; weapons, equipment, or means of their delivery.22 Where it considers that any other State party is acting in breach of obligations of the convention, a State party may lodge a complaint with the Security Council of the un.23 In order to buttress this regime, when advising on the 18 19

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with approval by A. Cassese, ‘Is the Bell Tolling for Universality? A Plea for a Sensible Notion of Universal Jurisdiction’ jicj 1 (2003) 589 at 594. Grave breaches are defined in Arts. 50, 51, 130 and 147 of the four Geneva Conventions respectively, and Arts. 85 and 86 of Additional Protocol I. K. Anderson, ‘Who Owns the Rules of War?’ New York Times Magazine, 13 April 2003, available at www.nytimes.com/2003/04/13/magazine/who-owns-the-rules-of-war.html (last viewed March 2014). Convention for the Protection of Cultural Property in the Event of Armed Conflict (The Hague, 14 May 1954), Art. 28: ‘The High Contracting Parties undertake to take, within the framework of their ordinary criminal jurisdiction, all necessary steps to prosecute and impose penal or disciplinary sanctions upon those persons, of whatever nationality, who commit or order to be committed a breach of the present Convention’. Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 26 March 1999, Art. 15(2): ‘Each Party shall adopt such measures as may be necessary to establish as criminal offences under its domestic law the offences set forth in this Article and to make such offences punishable by appropriate penalties. When doing so, Parties shall comply with general principles of law and international law, including the rules extending individual criminal responsibility to persons other than those who directly commit the act’. Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction opened for Signature at London, Moscow and Washington. 10 April 1972, Art. 1. Ibid., Art. 6.

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domestic implementation of this treaty, the icrc suggests that ‘each State should enact penal legislation to prohibit and prevent any activity in breach of the Convention conducted within its territory, under its jurisdiction or under its control anywhere’.24 While this may be sound advice for the effective implementation of the Convention, it is nevertheless not an express obligation.25 A second example of the relative weakness of penal provisions in ihl instruments is provided by the 1976 Convention on the Prohibition of Military or any other Hostile Use of Environmental Modification Techniques (enmod), a disarmament treaty intended to prevent the abuse of the environment during armed conflict. States party to it undertake not to engage in military or any other hostile use of environmental modification techniques having widespread, long-lasting, or severe effects as the means of destruction, damage, or injury to any other State party.26 The closest that this instrument comes to penal sanction is in Article 4: Each State Party to this Convention undertakes to take any measures it considers necessary in accordance with its constitutional processes to prohibit and prevent any activity in violation of the provisions of the Convention anywhere under its jurisdiction or control. Similar to the Biological Weapons Convention, the enmod Convention recognises that any State party may lodge a complaint with the Security Council of the un where it suspects that any other State party (notably not third-party States) is acting in breach of its obligations under the Convention.27 24

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icrc, 1972 Convention on the Prohibition of Bacteriological Weapons and their Destruction, Legal Fact Sheet, 31 January 2003, available at www.icrc.org/eng/assets/files/other/1972_ b~1.pdf (last viewed 4 December 2013). It is opportune, in this regard, to refer to United Nations Security Council Resolution 1540 on non-proliferation. Adopted pursuant to Chapter VII of the un Charter, it recognises that the proliferation of biological as well as nuclear and chemical weapons, together with their means of delivery, constitutes a threat to international peace and security. In unanimously passing this resolution, the Security Council also decided ‘that all States shall take and enforce effective measures to establish domestic controls to prevent the proliferation of nuclear, chemical, or biological weapons and their means of delivery, including by establishing appropriate controls over related materials’. Such controls include ‘establishing and enforcing appropriate criminal or civil penalties for violations of such export control laws and regulations’ (un Doc. S/Res/1540 (2004), Art. 3(d)). enmod, supra note 10, Art. I. Ibid., Art. V(3).

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Article 14 of the Protocol on prohibitions or restrictions on the use of mines, booby-traps, and other devices (as amended on 3 May 1996), which is protocol II to the Conventional Weapons Convention,28 evidences a more effective approach, providing that: Each High Contracting Party shall take all appropriate steps, including legislative and other measures, to prevent and suppress violations of this Protocol by persons or on territory under its jurisdiction or control.29 The measures envisaged in paragraph I of this Article include appropriate measures to ensure the imposition of penal sanctions against persons who, in relation to an armed conflict and contrary to the provisions of this Protocol, wilfully kill or cause serious injury to civilians and to bring such persons to justice.30 Nevertheless, many of the ihl instruments categorised above—typically the more recent ones—do provide for penal repression in the event of violations since States have gradually softened their reticence about imposing or assuming such obligations, in particular during the 1990s. In 1993, the Chemical Weapons Convention provided that each State party must enact penal legislation to cover activities prohibited under that Convention and to provide for the extraterritorial application of these penal measures to its nationals.31 In 1997, the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-personnel Mines and on their Destruction, commonly known as the ‘Ottawa Convention’, required each State party to ‘take all appropriate legal, administrative and other measures, including the imposition of penal sanctions, to prevent and suppress any activity prohibited […] undertaken by persons or on territory under its jurisdiction or control’.32 The 2008 Convention on Cluster Munitions includes a provision on the national implementation of penal measures that is all but identical to that of the Ottawa Convention.33 28

29 30 31 32 33

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 (Geneva, 10 October 1980); Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended on 3 May 1996 (Protocol II to the 1980 Convention). Ibid., Art. 14(1). Ibid., Art. 14(2). Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, Paris 13 January 1993, Art. VII.1(a), (c). Ottawa Convention, Art. 9. Convention on Cluster Munitions, Art. 9.

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The most recent addition to this suite of instruments—the Arms Trade Treaty—effectively reverts to the earlier style of repression.34 This is, however, perhaps understandable for a treaty the stated objectives of which are to establish the highest possible common international standards for regulating or improving the regulation of the international trade in conventional arms, and to prevent and eradicate the illicit trade in conventional arms and prevent their diversion.35 It codifies obligations incumbent upon States, and does not envisage individual criminal responsibility for acts perpetrated during an armed conflict. The treaty leaves the issue of implementation to States by harmonising their domestic legislation with the treaty’s requirements, which include criminal penalties.36 Penal Repression as Merely One Aspect of Preventing Violations of ihl Two observations on this corpus of ihl instruments are merited for present purposes. First is the extent of conventional international humanitarian law prohibiting or regulating the use of certain types of weapons, while not necessarily specifying those norms the violation of which would occasion criminal liability. To recap the categories of such conventions, they are: asphyxiating, poisonous, or other gases; bacteriological (biological) and toxin weapons; certain conventional weapons considered excessively injurious or to have indiscriminate effects (including non-detectable fragments, the use of mines, booby-traps, and other devices, incendiary weapons, blinding laser weapons, explosive remnants of war); chemical weapons; anti-personnel mines; and cluster munitions.37 The second observation is that the Rome Statute of the icc is itself remarkable for at least two reasons. First, as the sole instance of an instrument whose primary purpose is accountability, inter alia, for violations of ihl,38 it stands in a category of its own among many other less renowned but no less significant

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Arms Trade Treaty opened for signature 2 April 2013, entered into force on 24 December 2014. Ibid., Art. 1. Ibid., Art. 5(5): ‘Each State Party shall take measures necessary to implement the provisions of this Treaty’. According to the icrc’s study on the subject, a number of rules on the use of weapons now allegedly form part of customary ihl, Henckaerts and Doswald-Beck, supra note 31, at 275–296. The term ‘accountability’ in this sense is used broadly, since the icc has jurisdiction over crimes that are not violations of ihl stricto sensu, such as genocide and crimes against humanity (and aggression as and when the relevant amendment enters into force).

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ihl instruments. Second, the uniqueness of the Rome Statute illustrates the valid but limited position that the criminal responsibility for violations occupies within codified ihl. Save for the Grave Breaches regime of the Geneva Conventions and their Additional Protocol I, there is relatively little conventional ihl that expressly requires the domestic implementation of criminal accountability mechanisms. While it seems obvious that States are obliged to implement the terms of the treaties they ratify within their domestic legal framework,39 not all treaties oblige States party to enact penal legislation for violations of their provisions, and for those treaties that do, the requirement can be limited.40 Indeed, within the core activities of the icrc, ‘building respect for the law’ is listed along with visiting detainees, protecting civilians, and providing access to basic preventive and curative health care.41 Building respect for the law as a preventive activity is thus a subset of humanitarian activity preceding and during armed conflict. Within that subset of building respect for the law figure the activities of authorities and other actors, of their legal obligations enshrined in ihl and international human rights law, and the training and sensitising of relevant persons of what ihl is and how it operates.42 Conventional law reflects this approach, largely proscribing certain conduct without necessarily codifying criminal repression regimes for their breach. ihl’s primary focus is thus to 39

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The requirements for the implementation of treaty law in a domestic legal system vary. Some States profess that, once ratified, a treaty is self-executing in their domestic legal order. Others require some further act—frequently the promulgation of implementing national legislation—before the treaty becomes part of domestic law. Regardless of the doctrinal variations, however, the effective implementation of penal provisions in practice almost always requires some degree of domestic clarification. The absence of clear statutory guidance in domestic law on the elements of the offences and sentencing guidelines, for example, burdens national courts with potentially unworkable uncertainty, and may furthermore violate the principle of ‘nulla poena sine lege certa’. With respect to the Geneva Conventions in particular, the International Court of Justice has determined that the obligation laid down in their Common Article 1 ‘to respect’ the Conventions and to ‘ensure respect’ for them ‘in all circumstances’ is an obligation of customary international law derived from the general principles of humanitarian law ‘to which the Conventions merely give specific expression’; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, 27 June 1986, [1986] icj Rep. 14, at 114, para. 220. icrc, icrc activities on behalf of people affected by war, available at www.icrc.org/eng/ what-we-do/index.jsp (last viewed 28 November 2013). icrc, Building respect for the law, available at www.icrc.org/eng/what-we-do/building -respect-ihl/index.jsp (last viewed 28 November 2013).

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prevent violations instead of responding to them. It is only within the context of taking corrective (or possibly repressive) action in the event of serious violations of ihl that a potential criminal justice response arises.43 Positioning ‘repression’ at the end of a range of activities related to preventing humanitarian need, which itself is a subset within the range of humanitarian responses to the suffering occasioned by armed conflict, should not be mistaken for a lack of support for a criminal justice response to violations of ihl. Nevertheless, seen this way, it is clear, first of all, that preventing violations of ihl need not and cannot rely only on the deterrent effect of criminal trials. Secondly, ensuring an awareness of and respect for ihl is a significant and potentially necessary preventive activity itself, regardless of the occurrence and effectiveness of criminal trials. Thus arises the question of how respect for ihl can be enhanced, and how strategies can be tailored towards that enhancement. The icrc has for instance examined whether strategies for inducing combatants to respect the law are appropriate, and whether they can actually influence behaviour and not just affect the knowledge or attitudes of combatants.44 In an article accompanying the ‘Roots of Behaviour in War’ study, its authors concluded that ‘[t]he training of the bearers of weapons, strict orders as to the conduct to adopt and effective sanctions in the event of failure to obey them are the pre-requisites to obtain greater respect for ihl’.45 The result is that the icrc has recognised in clear terms that ‘[t]he penal repression of war crimes must […] be seen as one means of implementing humanitarian law, whether at national or international level’.46 Repression is one response 43

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J.-L. Blondel, ‘Rôle du cicr en matière de prévention des conflits armés: possibilités d’action et limites’, (2001) irrc 83 (844), 923–46. In 2010, the icrc adopted a revised ‘Prevention Policy’, which is intended to guide its prevention work. The document is available at: www.icrc.org/eng/assets/files/publications/icrc-002-4019.pdf (last viewed 9 December 2013) and relies on the following two broad assumptions: ‘prevention is a continuing process over the medium to long term that is worth launching early and is potentially more effective and efficient than taking action after negative consequences have already occurred’, at 12. J.-J. Frésard, The Roots of Behaviour in War: A Survey of the Literature (2004) icrc, at 6. See also D. Muñoz-Rojas and J-J. Frésard ‘The Roots of Behaviour in War: Understanding and Preventing ihl Violations’ (2004) irrc 86 (853), 189. See also M. Mack, Increasing Respect for International Humanitarian Law in Non-international Armed Conflicts (2008) icrc. Muñoz-Rojas and Frésard, supra note 44, at 203. icrc, How are war criminals prosecuted under humanitarian law? (1 January 2004), available at www.icrc.org/eng/resources/documents/misc/5kzmnu.htm (last viewed 29 November 2013).

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among many others, and criminal law practitioners ‘have known for a long time that c­ riminalization and punishment are not the only answer to socially deviant behaviour’.47 Indeed, one commentator has opined that too much attention to criminal prosecutions ‘may also give the impression that all behaviour in armed conflict is either a war crime or lawful’, which is misleading and simplistic.48 When implementing that response, a contest can arise between providing humanitarian assistance in a specific context while simultaneously condemning violations or participating in their criminal repression in the same context.49 The creation of ad hoc, mixed, and also permanent international criminal jurisdictions since 1993 is certainly a remarkable development in on-going efforts to respond effectively to the problem of violations of ihl, challenged though those efforts may currently be.50 The Contextualisation of ‘The Hague’ as Merely One Aspect of Repression The mechanisms that exist for ensuring respect for ihl are not limited to penal repression. Furthermore, while ihl does aim to hold individuals accountable for certain sufficiently serious violations for which they are responsible by requiring them to be prosecuted and punished as criminals,51 ‘repression’ as such is not limited to international criminal trials. Indeed, where ihl envisages prosecutions for violations, its whole structure presumes that national 2.3

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50 51

Ibid., 54. M. Sassòli, ‘The Implementation of International Humanitarian Law: Current and Inherent Challenges’, (2007) Yearbook of International Humanitarian Law 10, at 54. A.-M. la Rosa, ‘Humanitarian Organizations and International Criminal Tribunals, or Trying to Square the Circle’, (2006) irrc 88 (861), 169, at 180–1: ‘If humanitarian organizations are associated with judicial bodies in the field, those individuals who are liable to prosecution are likely to feel threatened and may attempt to neutralize them. They may decide to cease all co-operation, denying or restricting access to victims, without making any distinction between the different organizations operating in the area. Experience has shown that, unfortunately, there are those who will not hesitate to threaten or compromise the safety of the staff of humanitarian organizations, forcing them to leave the area and cease their activities aimed at helping the affected populations. In the resulting climate of tension and hostility, the organizations that are still allowed access to the victims are likely to see the humanitarian dialogue with the parties concerned deteriorate’. D. Luban, ‘After the Honeymoon: Reflections on the Current State of International Criminal Justice’, J Int Criminal Justice (2013) 11(3): 505–15. icrc Advisory Service on International Humanitarian law, Penal Repression: Punishing War Crimes, available at www.icrc.org/eng/assets/files/other/penal_repression.pdf (last viewed 28 November 2013).

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courts must be empowered with recognised competencies. The main task of prosecuting violations of ihl lies with States.52 Moreover, the effective implementation of ihl into national law, its dissemination to the public at large, and its integration into military organisations—notably by appointing legal advisers—are also essential repressive activities in response to (potential) ihl violations. 2.3.1 The Implementation and Dissemination of ihl The effective implementation of ihl anticipates its dissemination and compliance.53 Penal repression becomes necessary only once violations have occurred. If full compliance with effectively implemented rules is ever achieved, violations would cease and repression would become a redundant concept.54 Unlikely though this may be, it must be borne in mind in order to recognise that adherence to ihl can only follow its dissemination. When armed conflict seems likely, or occurs, the appropriate time for the dissemination of the rules has frequently passed.55 This presents a dilemma, since ‘countries at peace have a hard time understanding wars’.56 In this author’s former experience as an advisor on the implementation of ihl, disseminating ihl is 52

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H.-P. Gasser, ‘The Changing Relationship between International Criminal Law, Human Rights Law and Humanitarian Law’ in J. Doria et al. (eds), The Legal Regime of the International Criminal Court: Essays in Honour of Professor Igor Blishchenko (2009), 1111. For a rather bleak assessment of how the ‘provisions on national jurisdiction over grave breaches have remained a dead letter’, see also A. Cassese, ‘Reflections on International Criminal Prosecution and Punishment of Violations of Humanitarian Law’, in J. Charney et al. (eds), Politics, Values and Functions. International Law in the 21st Century. Essays in Honour of Professor Louis Henkin (1997), 263. T. Pfanner, ‘Various Mechanisms and Approaches for Implementing International Humanitarian Law and Protecting and Assisting War Victims’, (2009) irrc 91 (874), 279; Sassòli, supra note 48, at 45. Note should also be taken of the icrc’s on-going initiative—together with the Swiss government—to strengthen compliance with ihl: ‘Strengthening compliance with international humanitarian law (ihl): The work of the icrc and the Swiss government’ (November 2013) www.icrc.org/eng/what-we-do/ other-activities/development-ihl/strengthening-legal-protection-compliance.htm (last viewed 9 December 2013). icrc, Interview with Peter Maurer, President of the icrc, (2013) irrc 95 (889), 12: ‘We need to be able to translate in lay terms why the compliance of the rules of international humanitarian law makes sense in legal, moral and professional terms’. icrc and Inter-Parliamentary Union, Handbook for Parliamentarians No. 1, 1999: Respect for International Humanitarian law (1999), 1. V. Lusser, and J.-L. Chopard, ‘For Whom Do Humanitarian Organizations Speak? A Few Thoughts about Dissemination’, (1997) irrc (319), 373.

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akin to selling insurance: prospective customers unfamiliar with the manifestation of the risk are always disinterested in diminishing it, deluded into thinking they do not need it. On the other hand, customers who are dealing with the occurrence of an insurable event are understandably distracted by the urgency of the response required. Even post-conflict States whose citizens have suffered the ravages of what violations of ihl can generate are often more focused on recovery and development than on preparing and updating the legal framework for the next war. Reference in this regard may be had to the country of Joakim’s final mission. The icrc has for some time worked with the Taliban and other opposition groups in Afghanistan in order to encourage them to conduct their operations in accordance with ihl, notably with respect to the use of weapons (such as improvised explosive devices) that do not distinguish between military objectives and civilian targets.57 While the Taliban amended its code of conduct58 to a degree, and possibly as a result of dissemination programs run by the icrc, one author has described the impact of the initiative as ‘difficult to assess’, and noted that ‘attacks that harm and kill civilians and target medical staff and facilities continue to occur on a regular basis’.59 Although the context of the armed conflict in Afghanistan poses unique challenges to ihl, it does illustrate the effort, willingness, and resources required effectively to integrate basic rules of ihl into the activities of belligerent parties. And this is not a task limited to senior commanders. As one author has noted with respect to the rules applicable to targeting as an example, ‘the process of targeting can be extremely complex and time consuming at very high levels of command, or very brief and ad hoc at low levels of command. Even an infantry fire team—a group of four to eight soldiers—engages in this process’.60 Experience has nevertheless sadly shown how dissemination, on its own, is insufficient to prevent violations of ihl.61 Military formations with years of 57

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icrc, ‘Afghanistan: Homemade Bombs and Improvised Mines Kill and Maim Civilians in South’ (2010) Operational Update No 10/04, available at www.icrc.org/eng/resources/ documents/update/afghanistan-update-140410.htm (last viewed 10 December 2013). M. Munir, ‘Mujahideen: An Analysis of the Code of Conduct for the Taliban Fighters under Islamic law’, (2011) irrc 93 (881), 81. F. Terry, ‘The International Committee of the Red Cross in Afghanistan’ (2011) irrc 93 (881) 173, 185. Lt-Col. G.P. Corn, and G.S. Corn, ‘The Law of Operational Targeting: Viewing the loac through an Operational Lens’ (Spring 2012) Texas International Law Journal 337, 342. icrc, Handbook on International Rules Governing Military Operations (2013), at 27: ‘Experience shows that the failure to comply with the essential norms of [Law of Armed Conflict] and [International Human Rights Law] can in fact be ascribed to several factors,

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training and established doctrine and field manuals are not immune to acts that violate the rules. For this reason, when working with armed forces, the ‘integration’ of ihl is the preferred approach. Integration is ‘the translation of ihl rules into concrete mechanisms or measures for the respect of its principles [and] must necessarily and constantly address doctrine, teaching & education, as well as training & equipment issues’.62 It was from this point of view that the ‘Roots of Behaviour in War’ study was intended in part to improve the icrc’s strategies for preventing violations of ihl.63 Thus, while penal repression is itself an application of the law, changing the behaviour of weaponsbearers during armed conflict to harmonise it with the rules—through dissemination and integration—is a form of repression the importance of which is hard to underestimate. It is much more than a mere communication strategy; it is also an obligation under conventional and customary ihl. For instance, the four Geneva Conventions of 1949 each contain a general obligation for States to respect and to ensure respect for their provisions ‘in all circumstances’,64 as well as obligations to ‘disseminate the text as widely as possible’ and to ‘include the study thereof in their programmes of military instruction’. In customary ihl,65 ‘States and parties to the conflict must provide instruction in international humanitarian law to their armed forces’66 and must also encourage the teaching of ihl to the civilian population.67 The reason for enshrining these principles in ihl is self-evident: actors in armed conflict cannot be expected to respect rules with which they are unfamiliar. It is

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which often coincide. These include insufficient skills, faulty attitudes, wrongful behaviour, lack of adequate equipment, lack of will, inadequate knowledge or understanding of the law (its contents, scope or purpose) and lack of effective sanctions for violations. Clearly, the crux of the problem is not that people do not know the law: the problem lies in translating knowledge into appropriate behaviour’. icrc, Armed Forces: Integration of ihl, available at www.icrc.org/eng/assets/files/other/ integration_of_law_of_armed_conflict.pdf (last viewed 5 December 2013). Muñoz-Rojas and Frésard, supra note 44. Art. 1 common to the 1949 Geneva Conventions I–IV. All four 1949 Geneva Conventions employ similar wording. See 1949 Geneva Convention I, Art. 47; 1949 Geneva Convention II, Art. 48; 1949 Geneva Convention III, Art. 127; and 1949 Geneva Convention IV, Art. 144. The obligation to disseminate the Conventions and their Additional Protocols is expressly extended in the 1977 Additional Protocols (Additional Protocol I, Art. 83; Additional Protocol II, Art. 19). See also Convention for the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 14 May 1954, 249 unts 240, Art. 25; Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 26 March 1999, Art. 30. Henckaerts and Doswald-Beck, supra note 31, Rule 142. Ibid., Rule 143.

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also generally accepted in criminal proceedings that ignorance of the law does not constitute a defence in any event.68 If ihl could be implemented so as to change the behaviour of weapons-bearers effectively, the need for criminal prosecutions in ‘The Hague’ would be reduced. 2.3.2 The Appointment of Legal Advisers and Their Growing Presence With the foregoing discussion in mind, it is easier to comprehend the potential beneficial impact of having legal advisers present in military command structures. This is what Article 82 of Additional Protocol I to the Geneva Conventions provides, namely: The High Contracting Parties at all times, and the Parties to the conflict in time of armed conflict, shall ensure that legal advisers are available, when necessary, to advise military commanders at the appropriate level on the application of the Conventions and this Protocol and on the appropriate instruction to be given to the armed forces on this subject. The presumption inherent in this provision is that knowledge of and respect for ihl will improve compliance with it. This appears to be fair, given the emerging view of the importance of the role that legal advisers play in modern armed conflict, together with the complexity of ihl itself.69 The requirement for States to make legal advisers available to advise military commanders on ihl is now recognised as a norm of customary international law.70 In its codified form, it is notoriously open-ended71 but is nevertheless a significant element in ensuring respect for ihl. In modern military structures at least, the 68

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Art. 32(2) of the Rome Statute provides in part that ‘[a] mistake of law as to whether a particular type of conduct is a crime within the jurisdiction of the Court shall not be a ground for excluding criminal responsibility’. This provision is considered to codify existing customary international law; see A. Cassese, International Criminal Law (2003), 256. M.A. Newton, ‘Modern Military Necessity: The Role & Relevance of Military Lawyers’ (2007) Roger Williams University Law Review (12), 869 at 878. Henckaerts and Doswald-Beck, supra note 31, Rule 141. Y. Sandoz et al. (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, icrc (1987), 949: ‘However, whether it was because of a concern that adequate personnel would not be available, or the possibility that legal advisers attached to the armed forces would be assigned supervisory functions which might affect the hierarchy which is indispensable for the proper functioning of military institutions, or whether it was simply the fear of being bound by unduly strict rules on this point, consensus was finally only achieved on a text which was considerably watered down as compared with the original proposal’.

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presence of legal advisers specialised in ihl is being felt at various levels of command, such that ‘where leaders make important decisions such as target locations [weapons selection] and field deployments, lawyers are integrated into the process and are a vital tool on the battlefield’.72 The significant role played by military legal advisers during peacetime of disseminating ihl is supplementary to their primary role in planning and target selection and is now established in many military formations globally.73 The role of a legal adviser depends, naturally, on the resources and capabilities of the organisation to which he or she belongs. ‘Only a handful of States are able, and in fact do, invest heavily in military lawyers in the planning of operations’.74 A legal adviser’s effectiveness also depends on his or her proximity to operations and planning during an armed conflict; the notion of what a legal adviser is has evolved since it was first conceived.75 But since ‘[m]ilitary commanders and staff officers generally want to do what is right—ethically, morally, and legally’,76 the enhanced presence of competent legal advisers at the relevant levels of command would be a welcome development. 2.3.3 Complementarity States parties to ihl instruments bear the primary responsibility for preventing and punishing violations in their own territories. This idea— reflected in the various treaty provisions cited above—is not new. Seen in this light, the primacy which the ad hoc international criminal tribunals have over the national courts of the countries that would ordinarily have exercised jurisdiction is exceptional. In the circumstances prevailing at the time of their creation, however, the exception was necessary. The criminal repression of violations of ihl was disappointing until the 1990s, and the ad hoc

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T.W. Pittman and L.S. Murnane ‘The Law of Armed Conflict in Modern Warfare’ (Spring 2003) The Judges’ Journal, 18, 19. Lt-Col. G.P. Corn, and G.S. Corn, ‘The Law of Operational Targeting: Viewing the loac through an Operational Lens’, (Spring 2012) Texas International Law Journal 337, 343. K. Anderson, The Rise of Operational Law of Armed Conflict as an Academic Specialization, Lawfare Reading, available at www.lawfareblog.com/2012/04/readings-the-rise-of-operational -law-of-armed-conflict-as-an-academic-specialization/ (last viewed 27 November 2013). Lt. Col. T.M. Gent, ‘The Role of Judge Advocates in a Joint Air Operations Centre: A Counterpoint of Doctrine, Strategy and Law’ Airpower Journal (Spring 1999) 40. See also Lt. Col. P.A. Kerns, The First 50 Years: us Air Force Judge Advocate General’s Department (2004) Government Printing Office, Ch. 9. J.D. Wright, ‘“Excessive” Ambiguity: Analysing and Refining the Proportionality Standard’ (2012) irrc 94 (886), 821.

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tribunals unleashed a development of criminal justice in the international sphere that transformed war crimes prosecutions from an aspiration into a reality.77 The Rome Statute reflects how the primary responsibility for repression lies with States, which recognises that the icc’s jurisdiction is complementary to that of States parties. According to Article 1 of the Rome Statute, the icc has the power to exercise its jurisdiction over persons for the most serious crimes of international concern ‘and shall be complementary to national criminal jurisdictions’, and its preamble recalls ‘that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes’. Furthermore, the Rome Statute provides that ‘the Court shall determine that a case is inadmissible where […] [t]he case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution’.78 The icc can therefore only exercise its jurisdiction when a State is unable genuinely to carry out the investigation or prosecution of alleged criminals under its jurisdiction, or is unwilling to do so. Furthermore, according to the concept of so-called ‘positive complementarity’, national proceedings are to be promoted by empowering and encouraging States to respond to international crimes themselves.79 This policy ‘suggests that what matters most is not punishing crimes but preventing them, by counting on the fact that (to paraphrase Henkin) most people take most law seriously most of the time’.80 As such, the mere existence of the Rome Statute, together with its widespread and effective implementation in domestic law, is a means to the end of deterrence based on the hope that the new (or newly codified and criminalised) rules will be observed. 2.4 Conclusion to the Contextualisation of ‘Repression’ Criminal repression cannot be the only way to ensure the effective implementation of and respect for ihl,81 but it remains nonetheless a vital component. It can clarify the concrete application of ihl and can raise public awareness of the need for compliance, and likewise act as a deterrent to further violations. 77 Sassòli, supra note 48, at 53. 78 Rome Statute, Art. 17(1)(a). 79 icc Prosecutorial Strategy 2009–2012, 1 February 2010, available at www.icc-cpi.int/NR/ rdonlyres/66A8DCDC-3650-4514-AA62-D229D1128F65/281506/OTPProsecutorialStrategy 20092013.pdf, para. 16 (last viewed 1 December 2013). 80 Luban, ‘After the Honeymoon’, supra note 50, at 511. 81 Sassòli, supra note 48, at 54.

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The foregoing discussion has sought to provide some reasons for reflecting on the proper place enjoyed by ‘repression’ in the scheme of ihl. Viewed from ‘The Hague’, repression risks being misconceived as a synonym for international war crimes trials. Such a misconception risks undermining ihl because it expects too much from international criminal jurisdictions, it ignores the key role assigned to domestic criminal and military justice, it exaggerates the deterrent nature of such proceedings, and excessive focus on ‘The Hague’ can undermine efforts effectively to disseminate and integrate ihl into military operations so that the rules can be respected and violations thereof curtailed or prevented. In the following section, competing conceptions of the role of ihl are presented in an attempt to further sensitise the reader to the benefit of extending one’s perspective beyond ‘The Hague’, as Joakim did in his life and work. 3

The Two Conceptions of ihl as an Instrument for Affording Protection and as a Mechanism Regulating Means and Methods of Warfare during Armed Conflict

ihl is tailored by the unique context that is armed conflict. It is ‘predicated on a calibrated balancing act between the requirements of military necessity and humanitarian considerations’.82 As such, it seeks to strike a balance between the legitimate imperatives of warfare and humanitarian protections.83 This section of this chapter seeks now to draw the reader’s attention to the existence of this balance, or of these competing or complementary notions, or ‘cleavage between two visions of the law’.84 The very name of International Humanitarian Law presupposes its human interest. One of its objectives is to protect persons who are not or are no longer participating in the hostilities. The other is to restrict the means and methods of warfare. It is motivated by humanitarianism, not pacifism.85 Not only does it not intrude on ius ad bellum, it purposely recognises that, subject to the rules of ihl generated and agreed to by States, those States essentially remain at 82

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Y. Dinstein, ‘Concluding Remarks: loac and Attempts to Abuse or Subvert It’ in R.A. Pedrozo and D.P. Wollschlaeger (eds), International Law and the Changing Character of War, XVIII International Law Studies (87), 489. Lt-Col. G.P. Corn, and G.S. Corn, ‘The Law of Operational Targeting: Viewing the loac through an Operational Lens’ (Spring 2012) Texas International Law Journal 337, 353. D. Luban, ‘Military Necessity and the Cultures of Military Law’, (2013) ljil, 26, 315. G.D. Solis, The Law of Armed Conflict: International Humanitarian Law in War (2010), 23.

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liberty to ‘pursue and safeguard vital national interests’ through armed conflict where necessary.86 In the event of a perceived lacuna, it is now widely recognised that elementary considerations of humanity permeate ihl so as to serve both as a golden thread and as a stopgap against any assertion that some behaviour that is not positively prohibited is otherwise permissible.87 Nevertheless, significant challenges remain for the application not only of this fall-back position, but also for the application of more ostensibly concrete concepts of ihl such as distinction, military necessity, and proportionality, 86 87

M.N. Schmitt, ‘Military Necessity and Humanity in International Humanitarian Law: Preser­­ ving the Delicate Balance’, (2010) Virginia Journal of International Law 50 (4) 795, 799. Ibid., 800, citing, inter alia, The Corfu Channel Case (United Kingdom v. Albania), Merits, Judgment of 9 April 1949, [1949] icj Rep. 22. In that case, when identifying the obligations incumbent on Albanian authorities, the International Court of Justice held as follows: ‘Such obligations are based, not on the Hague Convention of 1907 No. VIII, which is applicable in time of war, but on certain general and well-recognized principles, namely: elementary considerations of humanity, even more exacting in peace than in war’ (The Corfu Channel Case (United Kingdom v. Albania), Merits, Judgment of 9 April 1949, [1949] icj Rep. 22). The International Court of Justice’s reference to the Hague Convention of 1907 is a tip of the hat to the inclusion of the famous ‘Martens Clause’ (so named for the Russian diplomat who proposed it) therein in the following form: ‘Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience’. (Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, The Hague, 18 October 1907). The 1907 Hague Convention was itself preceded by the 1899 Hague Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, The Hague, 18 October 1907. The version of the clause in the 1899 Convention was slightly amended in the 1907 Convention, but the differences are immaterial for present purposes. The relevant paragraph in the preamble reads as follows: ‘Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity, and the requirements of the public conscience’. More recently, Art. 1(2) of Additional Protocol I provides that ‘In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience’.

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against which humanitarian concerns must be balanced. In practice, establishing this balance is not as facile as the law might wish. Professor Michael Schmitt notes that ihl ‘necessarily evolves to reflect the nature of conflict and the values of its participants’, and has made the intriguing observation that the progressive nomenclature of the body of law reflects its evolution ‘in the direction of humanity and away from that of military necessity’.88 What was known as the law of war at the time of the 1899 and 1907 conventions was renamed the ‘law of armed conflict’ following the Geneva Conventions’ extensive use of that term in 1949. Nowadays, the contemporary appellation of international humanitarian law ‘accurately reflects the trend toward according greater weight to the humanitarian features of the law’.89 Likewise, prior to 1949, codification focused largely on the protection of the armed forces and the interests of States, while attempts to extend protections to civilians were mostly unsuccessful.90 The articles in the Geneva Conventions and their first Additional Protocol concerning grave breaches are ‘tiny in comparison to the whole body of law’.91 It was only in the wake of the Second World War that the protection of civilians came to the fore in the form of the Fourth Geneva Convention, together with the numerous subsequent weapons conventions cited above, many of which repose at least partially on the foundation of concern for the civilian populations affected by armed conflict. Most significantly, the Additional Protocols of 1977 signalled ‘a new sensitivity to the humanity component of ihl’.92 Additional Protocol II—often criticised for its narrow scope and failure to codify more ihl relative to non-international armed conflicts—was a particularly noteworthy development inasmuch as States concluded an instrument that carries not the potential benefit of reciprocal treatment by other States parties, but rather merely the enhanced protections afforded to their own populations. States’ ‘adoption of Additional Protocol II absent the reciprocity motivation further illustrates the extent to which the necessity­humanity dynamic had been revolutionised in the years following the Second World War’.93 88

M.N. Schmitt, ‘Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance’, (2010) Virginia Journal of International Law 50 (4) 795, 806. 89 Ibid. 90 Ibid., 807. 91 K. Anderson, ‘The Rise of International Criminal Law: Intended and Unintended Consequences’, (2009) ejil 20 (2), 331. 92 Ibid., 810. 93 Ibid., 811.

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Some commentators are not as generous as Professor Schmitt, and deride what he calls the natural evolution of ihl, instead condemning it as an unjustified and dangerous dilution of ihl in favour of an ideological humanitarianism.94 One commentator has opined that ‘[n]ot everybody likes the down-to-earth attitude that loac [the law of armed conflicts] takes vis-à-vis warfare. Indeed, in recent years, a new major problem has arisen. […] This menace comes from the human rights zealots and do-goodniks’.95 And, in the same vein: ‘Only those who breathe the rarefied air of the United Nations headquarters—removed from any vestiges of reality—can come up with the perception of wartime violence as an “extrajudicial killing.”’96 Another prominent commentator has noted how ‘the professional community of military lawyers is not a band of zealots pushing an ideology. Its jurisprudence is more conservative than that of humanitarian lawyers but it does not rest on eccentric or fantastic premises’.97 Establishing the balance between the admirable humanitarian objectives that ihl pursues, and appreciating the real imperatives of armed conflict that it respects, is delicate. ‘If humanitarian law becomes separated from the everyday experience and practice of professional military forces around the world, it is in danger of being relegated to the remote pursuit of ethereal goals’.98 As such, the conception of ihl as a body of rules that mitigate war’s horrors is secondary and complementary to the conception of ihl as regulating war’s conduct; the laws of war are ‘at bottom, constraints on warriors and war-fighting’.99 It is beyond the scope of this chapter to explore the validity of the so-called two camps, one allegedly faithful to established ihl as the law of armed conflict, and the other motivated to develop ihl further along humanitarian lines. 94

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Schmitt himself explains the position of the United States with respect to certain ihl instruments as displaying ‘sensitivity to ensuring that military necessity not be unduly sacrificed on the altar of humanitarianism’, M.N. Schmitt, ‘Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance’, (2010) Virginia Journal of International Law 50 (4) 795, 814. Y. Dinstein, ‘Concluding Remarks: loac and Attempts to Abuse or Subvert It’ in R.A. Pedrozo and D.P. Wollschlaeger (eds), International Law and the Changing Character of War, XVIII International Law Studies (87), 488. Ibid., 491. Luban, ‘Military Necessity’, supra note 84, at 321. M.A. Newton ‘Modern Military Necessity: The Role & Relevance of Military Lawyers’ (2007) Roger Williams University Law Review (12), 869, 885. See also Lt-Col. G.P. Corn, and G.S. Corn, ‘The Law of Operational Targeting: Viewing the loac through an Operational Lens’ (Spring 2012) Texas International Law Journal 337, 358. Luban, ‘Military Necessity’, supra note 84, at 320.

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Rather, in this section, the intention is merely to sensitise the reader to the mere existence of this conceptual tension. By focusing too much attention on individual criminal liability, international criminal law as practised in ‘The Hague’ ‘has the unintended consequence of reducing attention to the rest of the rules of war—the corpus of the laws of war not devoted to liability at all, let alone criminal liability for individuals’.100 3.1 ihl as an Instrument for Affording Protection to Civilians The codification of ihl—overseen by the States who participate in it—has tended over time towards more emphasis being placed on the aspect of humanitarianism.101 This tendency is to be welcomed. Not only is it consistent with ihl’s objectives of protecting certain categories of persons and regulating the conduct of hostilities, but it is one in which States participate, thereby allowing them to supervise the development of the law in a direction that maintains the balance between humanitarianism and the imperatives of military operations. The proliferation of the weapons treaties since 1972 discussed above itself reflects this balance. In principle, all weapons present a commander with a degree of military utility. Anti-personnel mines and cluster munitions, for instance, are extremely effective as establishing defensive perimeters and for use as area weapons respectively. But States parties to the relevant conventions have determined that their prohibition is merited both because of the humanitarian consequences of their deployment and because their military utility has diminished relative to alternatives now available.102 Nevertheless, the trend towards the humanitarian side of the balance requires that practitioners and lay persons, whose role is of course legitimate and constrictive, frequently need to be reminded that ihl also serves the interests of belligerents, and indeed has its origins in recognising and protecting those interests. With reference to the 1868 Saint Petersburg Declaration cited in Part 2 above, for instance, that instrument recognised as desirable the 100 K. Anderson, ‘The Rise of International Criminal Law: Intended and Unintended Consequences’, (2009) ejil 20 (2), 346. 101 M.N. Schmitt, ‘Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance’, (2010) Virginia Journal of International Law 50 (4) 795, 838. 102 Note, however, the motivation for the opposition inter alia of the United States to ratifying the Ottawa Convention. The us ratification is opposed due to its concern for the defence of South Korea against any future invasion from North Korea and the ‘effective barrier against invasion’ that ‘vast fields of land mines’ constitute. See M.N. Schmitt, ‘Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance’, (2010) Virginia Journal of International Law 50 (4) 795, 814.

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prohibition of ‘the employment of arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable’, the employment of which would in any event be ‘contrary to the laws of humanity’.103 Such advances are not made in a vacuum, and as commentators attest, the evolution of ihl ‘has been historically informed by the reasoned judgments of battlefield veterans’, a subject to which we now turn.104 3.2 ihl as the Law of Military Operations Military forces and personnel have a vested interest in ensuring respect for ihl. For one thing, the expectation of reciprocal behaviour from an opposing belligerent is diminished if one party to an armed conflict violates the rules. This is not to say that ihl applies on the basis of reciprocity; it does not. For another, the legitimacy of military operations relies at least in part on ‘the perception of adherence to the rule of law’.105 As such, criminal prosecutions, much less in an international jurisdiction, do not ordinarily form part of the reflections of the average military professional seeking to apply the rules of ihl: there is a core orientation that at least partly defines ‘operational law’ in an academic sense. Two of these core assumptions are: (i) An assumption (not always shared by the international criminal law or human rights advocate viewpoints, and in any case not a general methodological assumption of those two perspectives) that those who are engaged in the planning of military operations are doing so in good faith; they are attempting to adapt provisions and principles of the laws of war to particular conditions, which are evolving and must be considered in a pragmatic sense, and that their efforts start from a safe harbor of good faith. So much so, in fact, that the issue of criminality (which tends to be the first question embraced by a sizable number of academic commentators in these areas) rarely arises; it has to involve some obviously extreme case that wouldn’t arise in the planning of operations.106 103 Declaration Renouncing the Use, in Time of War, of Certain Explosive Projectiles, Saint Petersburg, 29 November/11 December 1868. 104 Lt-Col. G.P. Corn, and G.S. Corn, ‘The Law of Operational Targeting: Viewing the loac through an Operational Lens’ (Spring 2012) Texas International Law Journal 337, 360. 105 Ibid., 343. 106 K. Anderson, The Rise of Operational Law of Armed Conflict as an Academic Specialization, Lawfare Reading, available at www.lawfareblog.com/2012/04/readings-the-rise-of-operationallaw-of-armed-conflict-as-an-academic-specialization/ (last viewed 27 November 2013).

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A prime illustration of the balance in ihl between humanitarian and military realities is Article 51 of Additional Protocol I, itself entitled ‘the protection of the civilian population’, which provides that the civilian population and individual civilians shall enjoy general protection against dangers arising from military operations.107 In order to effectuate that general protection, Article 51 goes on to enumerate a series of rules, one of which is that indiscriminate attacks are prohibited,108 and then provides that among attacks that are to be considered as indiscriminate are those which ‘may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated’.109 Clearly, determining what would be ‘excessive’ is necessary before this provision can reliably be respected. While there is no consensus on the meaning of the word in this context,110 the point to be made for present purposes is that, when turned around, this provision recognises that incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, is permissible in ihl when not excessive in relation to the concrete and direct military advantage anticipated. That ihl effectively permits what is colloquially termed ‘collateral damage’,111 albeit in carefully limited circumstances, frequently strains the tolerance of lay humanitarians. ‘It is frequently glossed over (especially in the media) that loac takes some collateral damage to enemy civilians virtually for granted as an inescapable consequence of attacks against lawful targets’.112 But 107 108 109 110

Additional Protocol I, Art. 51(1). Ibid., Art. 51(4). Ibid., Art. 51(5)(b). J.D. Wright, ‘“Excessive” Ambiguity: Analysing and Refining the Proportionality Standard’ (2012) irrc 94 (886), 819. 111 Lt-Col. G.P. Corn, and G.S. Corn, ‘The Law of Operational Targeting: Viewing the loac through an Operational Lens’ (Spring 2012) Texas International Law Journal 337, 364: ‘when a commander identifies a lawful military objective that is commingled with civilians or civilian property, the commander is permitted to attack that objective even with knowledge that the attack will cause collateral damage or incidental injury to civilians or civilian property. The only limitation on this permission is that the commander must refrain from the attack if he determines that the collateral damage or incidental injury will be excessive in relation to the concrete and direct advantage anticipated from the attack’. 112 Y. Dinstein, ‘Concluding Remarks: loac and Attempts to Abuse or Subvert It’ in R.A. Pedrozo and D.P. Wollschlaeger (eds), International Law and the Changing Character of War, XVIII International Law Studies (87), 487.

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this aspect of Additional Protocol I’s Article 51 is not alone in demonstrating clearly how ihl seeks to balance military imperatives with humanitarian concerns and aspirations. It is merely the most topical, and evidences how ihl has evolved through ‘close cooperation among military personnel, lawyers and diplomats’ and is a system ‘generated and shaped by the demands of armed conflict, …predicated on a calibrated balancing act between the requirements of military necessity and humanitarian considerations’.113 The whole system of ihl is generated and shaped by the special demands of armed conflict, and is predicated on a calibrated balancing act between the requirements of military necessity and humanitarian considerations.114 Outside of The Hague, ihl criminal ‘litigation is extraordinarily sparse’,115 not because military and national criminal justice systems fail to apply it, but because litigation is not the point. 3.3 The Potential for Upsetting the Balance Sensitivity to the two positions outlined above is necessary because of the danger of Hague-based Judges and lawyers pushing the evolution of ihl, via judicial activism, sufficiently far that the resulting challenges of its practical application outside the courtroom and in the operational field may no longer serve effectively as a deterrent. This danger is not particularly pronounced, and as we have seen above, the positive contribution of ‘The Hague’ to the clarification and dissemination of ihl is both significant and commendable. On many occasions, the icty ‘has shown impressive sensitivity to maintaining the military necessity-humanity balance’,116 as have other courts and tribunals, such that their general contribution to the elucidation of ihl and its objectives has been impressive.117 Despite the technically unauthoritative nature of their judgments, the dearth of previous judicial decisions interpreting and applying ihl has 113 114 115 116

Ibid., 489. Ibid., 489. Luban, ‘Military Necessity’, supra note 84, at 319. M.N. Schmitt, ‘Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance’, (2010) Virginia Journal of International Law 50 (4) 795, 818. 117 W. Hays Parks, then Special Assistant to the United States Army Judge Advocate General, remarked in 1998 that ‘In my official capacity, one of my jobs is to draft substantial portions of the new United States Joint Services Law of War Manual. It is going to be very comprehensive. I can tell you that the [icty] cases to date have been absolute gold mines of information to me. They have assisted me very substantially in my drafting’. W. Hays Parks, ‘Panel Commentary’, (1998) American University International Law Review 13 (6)1509, 1518.

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rendered the holdings of these courts extremely significant. The icty has been the most influential of the tribunals. In many cases, the court merely confirmed longstanding ihl tenets. For instance, in Blaskić, the court acknowledged that command responsibility for the acts of subordinates includes situations in which a commander should have known a war crime was being committed, while in Erdemović, it rejected the defense of superior orders.118 Nevertheless, the danger of overreach remains. Not only may a Tribunal sometimes err when engaging in judicial activism, but that activism may itself also weaken the certainty of established rules.119 The potential problems associated with judge-made law are more severe within the context of international law in general, and ihl in particular, because there is no ‘sovereign’ or legislative body equivalent to parliament from which laws emanate. There is only the consensual rule-making process of treaty elaboration and the evolution of customary practices. Frequently, where a rule is unclear or does not exist in ihl at all, this may not always be attributable to an oversight or error on the part of the putative legislature but may instead be an accurate reflection of the discord amongst States who are not prepared to agree on a new norm.120 This much was acknowledged by the Appeals Chamber of the icty when it recognised that: The international armed conflict requirement was a necessary limitation on the grave breaches system in light of the intrusion on State sovereignty that such mandatory universal jurisdiction represents. State parties to the 1949 Geneva Conventions did not want to give other States jurisdiction over serious violations of international humanitarian law committed in their internal 118 M.N. Schmitt, ‘Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance’, (2010) Virginia Journal of International Law 50 (4) 795, 817. 119 A further if less relevant concern (for the purposes of this chapter) is the potential for tension between the fair trial guarantees afforded to an accused by international human rights law, and ‘the need to develop and expand humane laws for warfare’. A. Cassese ‘The International Criminal Tribunal for the Former Yugoslavia and the Implementation of International Humanitarian Law’ in L. Condorelli, A-M. La Rosa and S. Scherrer (eds), Les Nations Unies et le droit international humanitaire/The United Nations and international humanitarian law, Proceedings of the international symposium held on the occasion of the 50th anniversary of the United Nations (Geneva, 19, 20 and 21 October 1995), 229 at 232. 120 Y. Dinstein, ‘Concluding Remarks: loac and Attempts to Abuse or Subvert It’ in R.A. Pedrozo and D.P. Wollschlaeger (eds), International Law and the Changing Character of War, XVIII International Law Studies (87), 493: ‘The chatter of the human rights—niks was not heard at any time during the deliberations with those who actually formulate and implement international law [on the text of the air and missile warfare manual]’.

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armed conflicts—at least not the mandatory universal jurisdiction involved in the grave breaches system.121 Thus, judicial action that ‘clarifies’ or ‘develops’ the law may in fact contradict the prevailing position of well-founded uncertainty. States occasionally want the extant ambiguities in the law; they even create them. The icty has made several notable and welcome innovations in the field of international humanitarian law,122 some of the most prominent of which are arguably: the definition of an armed conflict;123 the expansion of the applicability of the notion of war crimes to non-international armed conflicts124; and the principle that individual criminal responsibility ensues from violations of Common Article 3 of the Geneva Conventions.125 Nevertheless, if the law as it is (lex lata) is at times unclear, then clarification of that law, based upon humanitarian motivations devoid of State interests and military considerations, into what lawyers in The Hague think the law ought to be in the future (lex ferenda), is not necessarily desirable.126 States at times intentionally create legal ambiguities127 or insist on retaining powers and faculties that enable them to wage war successfully, and judicial activism can potentially create requirements that no party to an armed conflict can meet without effectively accepting defeat.128 There is no better illustration of this reality than the latitude that States guarded for themselves when agreeing on the ihl applicable in non-international armed conflict in the form of 121 Prosecutor v. Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case No. IT-94-1-AR72, Appeals Chamber, 2 October 1995, para. 80. 122 ‘[T]he practice of the two ad hoc Tribunals has already had a very important influence on substantive provisions of international humanitarian law’. H.-P. Gasser, ‘The Changing Relationship between International Criminal Law, Human Rights Law and Humanitarian Law’ in J. Doria et al. (eds), The Legal Regime of the International Criminal Court: Essays in Honour of Professor Igor Blishchenko (2009), 1116. 123 Prosecutor v. Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, supra note 121, para. 70. The Appeals Chamber also defined an international armed conflict. See Prosecutor v. Tadić, Judgement, Case No. IT-94-1-A, Appeals Chamber, 19 July 1999, para. 84. 124 Prosecutor v. Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, supra note 121, para. 137. 125 Ibid., paras. 128–9. 126 P. Akhavan in ‘The Contribution of the ad hoc Tribunals to International Humanitarian Law’, (1998) American University International Law Review 13 (6) 1509, 1518, citing T. Meron ‘The Geneva Conventions as Customary Law’, (1987) ajil 81 (2) 348. 127 Ibid., 1520. 128 Luban, ‘Military Necessity’, supra note 84, at 323.

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Additional Protocol II. The four Geneva Conventions (save for their Common Article 3) and their Additional Protocol I apply in situations of international armed conflict, establish the Grave Breaches regime, and together amount to over 500 articles of ihl, excluding their various annexes. Additional Protocol II runs to a mere 28 articles, none of which recognises the possibility of committing a grave breach during a non-international armed conflict.129 Aggravating these concerns is the fact that Prosecutors, Defence Counsel, and in particular Judges and Judges’ staff in chambers often lack even rudimentary knowledge of or experience in the conduct of military operations. In the planning and conduct of military operations, the icrc’s commentary on Article 72 of Additional Protocol I (on the appointment of legal advisers discussed above), states that ‘[i]t is also considered that a good military legal adviser should have some knowledge of military problems’.130 Furthermore, post-operation assessments of whether an operation violates ihl must: always turn on an assessment of the specific facts available to the commander at the time he orders the attack, not on a retrospective view considering facts and circumstances that were not available to the commander. This analytical perspective is central to the credibility of any post-attack criminal or administrative review of a commander’s judgments.131 This is not to say that the application of international criminal law by lawyers in The Hague is systematically made in ignorance of the reality of armed conflict, nor is it to position the military approach to ihl as unified, or as the only valid one. Rather, it is to highlight how two paradigms might be emerging from the same law and that, absent mutual sensitivity and understanding, the law itself might suffer. 129 See G.H. Aldrich ‘Customary International Humanitarian Law—an Interpretation on behalf of the International Committee of the Red Cross’ (2005) bybil 76 (1):503 at 523, where Aldrich faults the icrc’s study on customary international humanitarian law for claiming ‘customary law status for some simplified rules that would not have been accepted in the negotiation of [Additional] Protocol I and would not be accepted today by many States’. 130 Y. Sandoz et al. (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, icrc (1987), 951. 131 Lt-Col. G.P. Corn, and G.S. Corn, ‘The Law of Operational Targeting: Viewing the loac through an Operational Lens’ (Spring 2012) Texas International Law Journal 337, 348.

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Conclusion and Recommendations

International criminal law, or ‘The Hague’, is a vital piece in the mosaic of ihl. The existence of international criminal tribunals, and that one of them is now permanent, is a remarkable phenomenon.132 Their existence plays a necessary role as a mechanism for the implementation of and compliance with ihl. However, it should not be allowed to undermine the foundations on which ihl rests in favour of a well-founded but misplaced humanitarian ideal. With that in mind, and following from the foregoing discussion, this author would humbly offer the following recommendations for consideration in ‘The Hague’: Practitioners of international criminal law should recognise (i) the proper place of their activity and not exaggerate its importance for the protection of noncombatants during armed conflict; (ii) the threat posed to these protections that an improper, ideologically-motivated, and impractical interpretation of ihl can constitute; and (iii) the limitations of criminal prosecutions, and the virtues and validity of other activities to strengthen and ensure respect for ihl. 5 Afterword Paying homage to the deceased is never easy; Joakim’s personal stature makes that challenge harder. Like so many who work in the field, Joakim deployed his formidable intellect to the law, and to protecting the rights it recognises or accords to the victims of armed conflict. His publishing record attests to that, even if his contribution to the organisations that benefited from his industry must largely remain anonymous for all save those who were fortunate to call him a colleague. He had an innate empathy that drove his sense of fairness and justice, which explains his interest in the plight of victims of armed conflict and human rights abuses. As one of his friends recalled to me, his trajectory took him to, through, and beyond The Hague in both senses of that term: the city itself, and the concept of accountability for violations of the laws of war it has come to represent. That path transcended any divisions there may be between the international criminal practitioners who populate the international courts and tribunals, and those ihl specialists who operate in the field to ensure that the rules are respected and not violated in the first place. That he saw the need to do both serves as an inspiration. 132 K. Anderson, ‘The Rise of International Criminal Law: Intended and Unintended Conse­ quences’, (2009) ejil 20 (2), 331.

chapter 10

Disproportionate Attacks in International Criminal Law Francesco Moneta* 1 Introduction International humanitarian law (ihl) is confronted with a daunting task: spare the civilian population from the suffering of the war. In this, it is equipped with a body of rules on the protection of the civilian population, which were adopted at the Diplomatic Conference of Geneva of 1974–19771 and hailed as a ‘crowning achievement’2 of ihl, instilling hope for more humane conduct of hostilities. The conflicts of the last part of the past century as well as those currently ongoing demonstrate that these provisions need to be more effectively enforced.3 To this end, a powerful tool assists ihl: international criminal law

* Legal Officer at the International Atomic Energy Agency (iaea). Former Legal Officer at the Organization for Security and Co-operation in Europe (osce) and at the International Criminal Tribunal for the former Yugoslavia (icty). The views expressed are those of the author and do not necessarily reflect those of the United Nations. The Author wishes to thank Maddalena Ghezzi and Philipp Ambach for their comments and invaluable assistance. 1 Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva, 1974–1977. 2 C. Pilloud, Y. Sandoz et al., International Committee of the Red Cross, Commentary on the Additional Protocols of June 8 1977 to the Geneva Conventions of 12 August 1949 (1987), at 1816: ‘[Part IV] is also the most important, for Section I, entitled “General protection against effects of hostilities” obviously represents the crowning achievement of the Diplomatic Conference of 1974–1977 and the most significant victory achieved in international humanitarian law since the adoption of the Fourth Geneva Convention in 1949 relative to the Protection of Civilian Persons in Time of War’. 3 It is estimated that over the course of the twentieth century, armed conflict caused about 62 million victims among civilians and 44 million among military personnel. See, R.L. Sivard, World Military and Social Expenditures (16th ed., 1996), 18–9; J.D. Reynolds, ‘Collateral Damage on the 21st Century Battlefield: Enemy Exploitation of the Law of Armed Conflict, and the Struggle for a Moral High Ground’, (2005) 56 The Air Force Law Review 1, 75–6; see also G. Blum, ‘On a Differential Law of War’, (2011) 52 Harvard Int’L L.J., 163, 188–9.

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(icl). This relatively new discipline gained momentum in the 1990s with the establishment of the United Nations ad hoc tribunals and then the creation of the International Criminal Court (icc). Judgements of international criminal tribunals and courts issued against individuals responsible for the worst crimes under international law have contributed to the elucidation of the rules of ihl, making them more specific and robust in order to align them to the principles of criminal law. icl also gave ‘teeth’ to ihl by establishing criminal proceedings and provisions of criminal sanctions against individuals for targeting civilians in armed conflict.4 As noted in the introduction of the 2009 Report of the United Nations FactFinding Mission on the Gaza Conflict, ‘[t]he international community increasingly looks to criminal justice as an effective mechanism of accountability and justice in the face of abuse and impunity’.5 Against this backdrop, the present chapter aims to analyse the notion of disproportionate attack in international humanitarian law and the question of how icl drew upon the relevant ihl rules to define the war crime of disproportionate attack. More specifically, I will analyse how the International Tribunal for the former Yugoslavia (icty) grappled with the practical challenges of defining and applying this crime. I will illustrate that the crime of disproportionate attack still requires to be thoroughly addressed in the practice of international tribunals and the icc. In particular, I will note that while the icty greatly contributed to casting light on the elements of the crime of disproportionate attack, it rarely applied them in practice, providing little guidance for future cases. Moreover, the Appeals Chamber of the icty has not yet formally affirmed that this crime is applicable in non-international conflict. Likewise, the icc has yet to elaborate on the notion of disproportionate attack in its jurisprudence. The icc Statute also seems to differ from the icty case-law by providing a definition that appears to be more restrictive. I will identify a list of challenges and pitfalls underlying the adjudication of this crime. In particular, among the issues that I will analyse are: the application of disproportionate attack in non-international armed conflict; the definition of the crime as a ‘crime of pure action’ (i.e., without the need of a criminal result); the issue of required knowledge of the disproportionate attack; and how to balance heterogeneous values such as the ‘concrete and direct military advantage’ and the injury to civilians. 4  A. Cassese, ‘On some merits of the Israeli Judgement on Targeted Killings’, (2007) 5 jicj, 341. 5  Report of the United Nations Fact-Finding Mission on the Gaza Conflict, A/HRC/12/48, 25 September 2009 (‘Goldstone Report’), para. 286.

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Disproportionate Attacks in ihl

In ihl, it is possible to distinguish between two types of unlawful attacks: attack on civilians that are directed against the civilian population6 and indiscriminate attacks. Indiscriminate attacks are those: (a) which are not directed at a specific military objective; (b) which employ a method or means of combat which cannot be directed at a specific military objective; or (c) which employ a method or means of combat the effects of which cannot be limited as required by international humanitarian law; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.7 This rule is generally considered a norm of customary international law applicable in both international and non-international armed conflict.8 Moreover, a special ‘type of attack […] to be considered indiscriminate’ is characterised by the fact that it is ‘expected to cause incidental loss of civilian life, injury to civilians or damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated’.9 This special form of indiscriminate attack can be referred to as a disproportionate attack because it implies a violation of the principle of proportionality between two separate values, military advantage and protection of civilian life 6 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Additional Protocol I), 8 June 1977, Art. 51(2): ‘The civilian population as such, as well as individual civilians, shall not be the object of attack’. See also Art. 85 (3) of Additional Protocol I. 7 J.-M. Henckaerts and L. Doswald-Beck, Customary International Humanitarian Law (2005), Vol. I, Rule 12—Definition of Indiscriminate Attacks (available at www.icrc.org/customary -ihl/eng/docs/v1_cha_chapter3_rule12). Moreover, Art. 51(5) of Additional Protocol I, supra note 6, also notes that the following types of attacks are to be considered as indiscriminate: ‘(a) an attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects; and (b) an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated’. 8  Henckaerts/Doswald-Beck, supra note 7, at Rule 12. 9  Art. 51 (5)(b) and Art. 57 of Additional Protocol I, supra note 6; Henckaerts/Doswald-Beck, supra note 7, Rule 14.

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or civilian objects, as enshrined in Article 51(5)(b) of Additional Protocol I to the Geneva Conventions (Additional Protocol I). Additional Protocol I, which is applicable to international armed conflict, prohibits these forms of attacks in its set of rules devoted to the ‘civilian population’ (Articles 48–58).10 These prohibitions find their raison d’être in the basic principle of distinction which opens Part IV: ‘[…] the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives’.11 The principle of distinction lies at the heart of the civilian protection and primarily aims at sparing civilians, civilian populations, and civilian objects from the conflict.12 Notwithstanding the principle of distinction, Additional Protocol I does not prohibit the causing of collateral injury and incidental damage to civilians as such. In taking into account the necessity of war, ihl accepts that attacks directed against military objectives may result in civilian casualties without per se violating the principle of distinction. In this context, the notion of disproportionate attack, by juxtaposing military advantage with ‘excessive’ collateral injury and incidental damage, brings into sharp focus the dialectical tension which lies in balancing the humanitarian component of ihl with the military necessity component.13 This tension between military necessity and humanitarian consideration also emerges clearly in Part IV of Additional Protocol I devoted to ‘precautionary measures’ in attack (Articles 57 and 58 of Additional Protocol I).14 10 Additional Protocol I, supra note 6, Part IV. 11  Ibid., Art. 48. 12  Henckaerts/Doswald-Beck, supra note 7, Rule 1. The International Court of Justice described the principle of distinction as a ‘cardinal’ principle, see icj, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion (1996), 78. 13 Schmitt speaks of ihl as a ‘[s]ynthesis in a dialectical process involving the balancing of two seemingly contradictory concerns: military necessity and humanity’, see M.N. Schmitt, ‘Discriminate Warfare: The Military Necessity-Humanity Dialectic of International Humanitarian Law’, in D.W. Lovell, and I. Primoratz (eds), Protecting Civilians During Violent Conflict: Theoretical and Practical Issues for the 21st Century (2012), at 87. 14 Additional Protocol I, supra note 6, Art. 57 (2): ‘With respect to attacks, the following precautions shall be taken: (a) those who plan or decide upon an attack shall: […] (iii) refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated; (b) an attack shall be cancelled or suspended if it becomes apparent that the objective is not a military one or is subject to special protection or that the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian

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The precautionary measures aim at guiding the military decision makers in the conduct of military operations. Here, the principle of distinction lies in the ‘constant care [that] shall be taken to spare the civilian population, civilians and civilian objects’.15 However, even under these precautionary measures a military decision maker is still not required to avoid collateral injury or incidental damage in all circumstances. First, this is because these precautionary measures echo again the balancing test between military necessity and humanity by accepting that an attack could result in incidental civilian casualties, even when foreseeable by the decision-maker. Second, their compliance by a military decision maker cannot be assessed in abstract, but has to be seen in the light of the specific circumstances of the case.16 This implies that the contents of the obligation underpinning the precautionary measures depend on the situation in which the attackers find themselves and on their assessment of the situation. In this regard, the language of Article 57 of Additional Protocol I gives broad discretion to the commander who decides to launch an attack based on what is considered practical or reasonable in the specific circumstances.17 In particular, under these precautionary measures a commander has to do ‘everything feasible’ in verifying the objectives, take all ‘feasible precautions in the choice of means and methods of attack’, and give an effective warning ‘unless circumstances do not permit’, and ‘take all reasonable precautions to avoid losses of civilian lives and damage to civilian objects’.18 Moreover, in case of a choice ‘between several military objectives for obtaining a similar military advantage’, the objective to be selected shall be that of the attack ‘expected to cause the least danger to civilian lives and to civilian objects’.19 This latter provision seemingly establishes a more stringent rule of conduct. In fact, it will be up to the attacker to decide whether different military objectives

objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated’; (emphasis added). 15  Additional Protocol I, supra note 6, Art. 57. 16 K. Watkin, ‘Assessing Proportionality: Moral Complexity and Legal Rules’, (2005) 8 yihl 3, at 25: ‘the reality of combat must also be taken into consideration when assessing precautionary measures’. 17 See D. Luban, ‘Military Necessity and the Cultures of Military Law’, (2013) 26 ljil, at 348: ‘Notoriously, there is no agreement on what “feasible” means. Does it include anything technologically possibly, regardless of cost or risk to the attacker? Alternatively, does it exclude anything that might increase military risk, no matter how slightly? Clearly, militaries could not reasonably accept the former, and humanitarians could not reasonably accept the latter […]’. 18  See Additional Protocol I, supra note 6, Art. 57. 19  Ibid., Art. 57 (3).

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have ‘similar’ military advantage, and the provision does not rule out the possibility that he or she decides to choose an objective that presents a higher military advantage at the strategic or tactical level, even if this would imply a higher risk for the civilian population. Another issue requiring legal assessment is the impact of the compliance (or non-compliance) with precautionary measures on the assessment of disproportionate attacks. Not much guidance is provided on this issue by ihl. Arguably, the non-compliance with these measures may be used to prove that a commander could have expected to cause, as a consequence of his or her behaviour, excessive harm to civilians (for instance, because he or she failed to give a warning to the civilian population when ordering an attack on an area densely populated by civilians). Moreover, the non-compliance may also be considered in the very proportionality test aimed at assessing whether the anticipated incidental damage to civilians was excessive with respect to the anticipated military advantage. In other words, in establishing whether the attack was disproportionate proper consideration should also be given to the question whether an attacker could have achieved the same military advantage while minimising the number of civilian casualties. I will return to this issue when analysing the application of the crime of disproportionate attack in icl.20 Additional Protocol I also provides for an enforcement mechanism for the above-noted unlawful attacks, including disproportionate attacks, qualifying them as ‘grave breaches’ ‘when they are committed wilfully and have caused death or serious injury’.21 Subsection five of Article 85 of Additional Protocol I clarifies that these grave breaches shall be regarded as war crimes. Moreover, in accordance with the ‘grave breaches’ regime set out in the Geneva Conventions, the states parties to the Geneva Conventions and Additional Protocol I have a duty to prosecute (or extradite) persons accused of having committed these crimes.22 However, until the establishment of international tribunals, the legal 20  See, infra, section 4.4. ‘How to balance military advantages with the death or injury of civilians’. 21  Additional Protocol I, supra note 6, Art. 85. 22 Art. 146 of the Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949: ‘Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a “prima facie” case’.

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enforcement of the grave breaches regime remained dormant.23 Moreover, while Additional Protocol I criminalises the most serious forms of attacks on civilians, it was not meant to be a criminal code. This is because the relevant provisions of ihl were directly addressed to member states as is the case for any other international agreement. The Geneva Conventions indeed impose a duty on states to ‘enact any legislation necessary to provide effective penal sanctions for persons committing’ grave breaches.24 This explains why the provisions of Additional Protocol I could hardly be considered self-executing and applicable directly by the judiciary in criminal proceedings.25 They required therefore to be translated into criminal law definitions pointing to the individual criminal responsibility of persons breaching the provisions. This also implies that the constitutive elements of the crimes, namely actus reus and mens rea, had to be identified in keeping with the principle of legality, which requires that a criminal provision be properly structured and formulated in such a way that it is comprehensible by the individual in its constitutive elements. Additionally, the enforcement of a provision such as the one on disproportionate attack was further complicated by the fact that the definition provided by Additional Protocol I was seen—especially from a criminal law perspective—as particularly elusive in the part related to the balancing test between civilian harm and military advantage, considering the standards of specificity required by the principle of legality in criminal law.26 Moreover, several states introduced declarations aimed at clarifying—and at the same time limiting— the scope of its provision.27 The above-noted remarks relate to the application of disproportionate attack in international armed conflict. In non-international armed conflict, the set of rules prohibiting attacks against civilians is even looser and sparser. This may be the case because states wanted to retain broader latitude when engaging in 23

See Y. Sandoz, ‘The Dynamic But Complex Relationship between International Penal Law and International Humanitarian Law’, in P. Gasser, and M.C. Bassiouni (eds), The Legal Regime of the International Criminal Court (2009), at 1054. 24 Art. 49 of the Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Conflict in the field, 12 August 1949; Article 50 of the Convention (II) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva 12 August 1949; Article 129 of the Convention (III) Relative to the Treatment of Prisoners of War, Geneva, 12 August 1949; Article 146 of the Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949. 25  See Cassese, supra note 4, at 339. 26  See ibid., at 341. 27  For a list of declaration see Henckaerts/Doswald-Beck, supra note 7, Vol. II, at 331–3.

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combat with internal armed groups.28 That being noted, Article 13(2) of Additional Protocol II contains a prohibition on direct attack on civilians similar to Article 51(2) of Additional Protocol I, stipulating that ‘[t]he civilian population as such, as well as individual civilians, shall not be the object of attack’.29 Yet, it does not contain any provision on indiscriminate and/or disproportionate attacks, nor any provisions on precautionary measures. However, according to the study on customary law developed by the International Committee of the Red Cross (icrc), the rule of proportionality is a rule of customary international law, which applies regardless of the nature of the conflict.30 The same can be said for the prohibition of indiscriminate attack.31 Still, as we will note below, there is no clear indication in practice as to whether the violation of the rule of proportionality may amount to war crime in non-international armed conflict. The application of the principles of distinction and proportionality in attack in the context of an internal armed conflict presents a further challenge closely related to the nature of the conflict. In most relevant part, it translates into the question of how to apply the principle of distinction when the regular armed forces are replaced by armed opposition groups. In international armed conflict, the distinction hinges on the status of the person: civilians versus combatants (i.e., members of the armed forces).32 Additional Protocol I clarifies that a civilian who directly participates in hostilities loses protection from attack.33 In internal conflict, the clear distinction from international armed conflict between civilian and combatant tends to be blurred.34 Common Article 3 to 28 Cassese, supra note 4, at 341; J.K. Kleffner, ‘From “belligerents” to “fighters” and civilians directly participating in hostilities- on the principle of distinction in non-international armed conflicts one hundred years after the second Hague Peace Conference’, (2007) Netherlands International Law Review 315, 322. See also Luban, supra note 17, 324: the States ‘wanted great latitude to put down rebellion’. 29 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, Article 13 (2). 30  Henckaerts/Doswald-Beck, supra note 7, at Rule 46; see also W.J. Fenrick, ‘Targeting and Proportionality during the nato Bombing Campaign against Yugoslavia’ (2001) 12 ejil 489, 498; A. Zimmermann, ‘The Second Lebanon War: jus ad bellum, jus in bello and the Issue of Proportionality’ (2007), Max Planck UNYB 11, at 129. 31  Henckaerts/Doswald-Beck, supra note 7, Vol. I, at Rule 12. 32 As noted, this article is rightly found in literature to be ‘inconclusive as to whether precisely the dividing line lies for purposes of the principle of distinction’, Kleffner, supra note 28, at 324. 33  Art. 51 (3) of Additional Protocol I, see supra note 6. 34  The notion of combatant is absent in non-international armed conflict; see on this point Kleffner, supra note 28, at 321–2.

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the Geneva Conventions, which is applicable to non-international armed conflict, does not refer to the dichotomy ‘civilians’ versus ‘members of armed forces’, but to those who take an active part in hostilities and those who do not. Yet, in identifying those who take no active part in hostilities, Common Article 3 refers to ‘members of armed forces who have laid down their arms’. As noted by the icrc itself, except for the clear and uncontested cases when a civilian uses weapons or other means to commit acts of violence against human or material enemy forces, the practice to date ‘gives little or no guidance on the interpretation of the term “direct participation”’.35 The question in particular arises for members of the ‘non-state parties’ (i.e., members of armed opposition groups), which do not formally constitute armed forces of a state. Should the members of these groups be considered ‘civilians’ when they do not take part in hostilities? In other words, can these members benefit from the ‘revolving door’ phenomenon, according to which their protection is suspended for the time they take direct part in hostilities and is restored as soon as they leave the battlefield?36 Additional Protocol II, which has a narrower scope of application than Common Article 3,37 does not provide any clear answer to this question. It makes reference to ‘armed forces’, ‘dissident armed forces’, and ‘other organized armed groups’, without defining them with respect to the principle of distinction and protection from attacks.38 Additional Protocol II also employs the terms ‘civilians’ and ‘civilian population’ in identifying its scope of application.39 Moreover, Additional Protocol II, similarly to Additional Protocol I, clarifies that 35

J.-M. Henckaerts, ‘Study on Customary International Humanitarian law: a Contribution to the Understanding and Respect for the Rule of Law in Armed Conflict’, (2005) 87 irrc 175, at 190; A. Zahar, ‘Civilizing Civil War: Writing Morality as Law at the icty’ in B. Swart, A. Zahar, and G. Sluiter (eds), The Legacy of the International Criminal Tribunal for the former Yugoslavia (2011), 469–504, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_ id=1713183 (last accessed 15 October 2013). 36  On the ‘revolving door’ phenomenon, see T.D. Gill and D. Fleck (eds), The Handbook of the International Military Operations (2010), at 251. 37 See Art. 1 (1) of Additional Protocol II, supra note 29. 38  Ibid. See on this point also Henckaerts/Doswald-Beck, supra note 7, at 190. 39 The definition of civilian was initially present in the draft of Additional Protocol II but eventually deleted in the final plenary debate in the process of adopting a simplified version of Additional Protocol II, see M. Bothe, ‘Direct Participation in Hostilities in nonInternational Armed Conflict’ (2004), Second Expert Meeting on the Notion of Direct Participation in Hostilities (The Hague 25/26 October 2004), at 8, available on-line at www.icrc.org/eng/assets/files/other/2004-05-expert-paper-dph-icrc.pdf (last accessed 20 March 2013).

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civilians retain their protection ‘unless and for such time as they take a direct part in hostilities’.40 However, nothing is said of the opposite scenario, namely the case when a member of the opposition group leaves the battlefield. One may argue that, unlike in the regular armed forces of a state, mere membership in armed opposition groups does not automatically imply the direct participation in hostilities on a continuing basis. It will inevitably depend on the circumstances of each case and the nature of the armed opposition group. This question was tackled by the icrc, which issued some interpretative guidance on the notion of direct participation in hostilities in internal armed conflict.41 The icrc held that the concept of ‘organized armed group refers to non-state armed forces in a strictly functional sense’. In essence, it would need to be established whether the individual assumed a continuous function for the armed group involving his or her direct participation in hostilities. In the words of the icrc, membership must depend on whether the continuous function assumed by an individual ‘corresponds to that collectively exercised by the group as a whole’.42 If the members had this continuous function they will be always targetable as any other members of the armed forces, and they will not benefit from the protection given to civilians for as long as they assume their continuous combat function.43 Civilians who are not members of organised armed groups lose protection against direct attack merely for the duration of each specific act amounting to direct participation in hostilities.44 However, the determination of ‘membership’ in and of itself for armed groups that often do not have a strict internal administrative structure, lack any documentation or other formal features and often do not even provide any uniform external features—such as a common uniform and tenure—turns out in practice to be highly complicated. It follows that the application of the principle of distinction that principally relies on the combatant/non-combatant status appears more problematic in an intra-state context due to the lack of a clear and practicable definition of civilian and immunity from attack. This problem is compounded in the case of the crime of disproportionate attack as there is no conventional provision of that crime; the required balancing of military advantage against civilian harm becomes very problematic when it is not clear whether the notion of ‘civilian’ 40  See Additional Protocol II, supra note 29, Art. 13 (3). 41  N. Melzer, Interpretative Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (2009), 27, available at www.icrc.org/eng/assets/files/ other/irrc-872-reports-documents.pdf (accessed 20 March 2013). 42 Ibid., at 33. 43  Ibid., at 70–3. 44  Ibid., at 70.

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should also comprise members of armed opposition groups, at least when these have temporarily laid down their weapons. In conclusion, with the adoption of the Additional Protocols to the Geneva Conventions, the protection of civilians was reinforced through the criminalisation of attacks directed against civilians and indiscriminate attacks. Still, questions remain in ihl about the legal definition of these crimes, especially of disproportionate attack, and their applicability to non-international armed conflict. Moreover, questions arise regarding the extent to which the principle of immunity from attack is applicable to members of armed opposition groups in an internal conflict when they are not taking active part in hostilities. 3

The Crime of Disproportionate Attack in the icty’s Jurisprudence

The icty Statute reproduces a list of ‘grave breaches of the Geneva Conventions of 1949’ under Article 2 and a non-exhaustive list of ‘[v]iolations of the law or customs of war’ under Article 3 of its Statute.45 It does not, however, explicitly incorporate the prohibited conduct of attacking civilians, the civilian population, or civilian targets as defined by Additional Protocol I.46 Notwithstanding these textual limitations, the Appeals Chamber in its first case (‘Prosecutor v. Duško Tadić’) held that the Tribunal could have jurisdiction over offences not defined in the Statute if certain conditions were fulfilled. These requirements—famously known as the ‘Tadić conditions’—establish that ‘(i) the violation must constitute an infringement of a rule of international humanitarian law; (ii) the rule must be customary in nature or, if it belongs to treaty law, the required conditions must be met; (iii) the violation must be serious, that is to say, it must constitute a breach of a rule protecting important values and the breach must involve grave consequences for the victim; and (iv) the violation must entail, under customary or conventional law, individual criminal responsibility of the person breaching the rule’.47 By establishing these principles, the Appeals Chamber overcame the deep-rooted distinction between offences 45  Statute of the International Criminal Tribunal for the former Yugoslavia, 25 May 1993 (adopted with Resolution of the un Security Council 827). 46 The only reference is contained in Article 3 of the Statute on ‘wanton destruction of cities, town or villages, or devastation not justified by military necessity’. 47  Prosecutor v. Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, IT-94-1-AR72, 2 October 1995, paras. 94 et seq (Tadić Decision). The Appeal Chamber famously explained: ‘What is inhumane, and consequently proscribed, in international wars, cannot but be inhumane and inadmissible in civil strife’ (ibid., para. 134).

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provided in international armed conflict and non-international armed conflict. It also held that customary international law related to non-international armed conflict had developed rules ‘aimed at protecting the civilian population from hostilities’, including from ‘indiscriminate attacks’.48 Drawing upon this holding, in the Blaškić case, the Trial Chamber affirmed for the first time the jurisdiction over the war crime of ‘unlawful attacks on civilians’ as ‘violations of law and customs of war’.49 However, the definition provided by the Blaškić Trial Chamber was strikingly at variance with the relevant provisions of the Additional Protocols, in finding that attacking civilians was a criminal offence ‘when not justified by military necessity’.50 A different approach was taken in Galić, which was ultimately confirmed by the Appeals Chamber and the subsequent Tribunal’s jurisprudence51: the definition of ‘attack on civilians’ was still grounded on Article 3 of the Statute but was clearly tied to both Article 51 of Additional Protocol I and Article 13 of Additional Protocol II. As a result, the reference to ‘military necessity’ was removed in keeping with the applicable provisions of international humanitarian law. The Galić case was also the first case where the icty clearly identified the elements of the crime that form the definition of the crime of ‘attack on civilians’, comprising the actus reus (or objective element) which describes the prohibited conduct of the crime, and the mens rea (or subjective element) that is required for individual criminal responsibility to attach to an individual: the Galić Trial Chamber held that the actus reus is established when there is an act of violence directed against the civilian population or individual civilians not taking part in hostilities causing death or serious injury to body or health within the civilian population. The mental element is established when the offender acted wilfully. The Chamber found that the notion of ‘wilfully’ 48 Ibid., at paras. 100, 127. 49  Prosecutor v. Tihomir Blaškić, Judgement, Case No. It-95-14-T, 3 March 2000 (Blaškić tj); Prosecutor v. Dario Kordić and Mario Ĉerkez, Judgement, Case No. IT-95-14/2, 26 February 2001. Reference to disproportionate attacks were previously made in the Kupreškić trial judgement as an obiter dictum: Prosecutor v. Z. Kupreškić et al., Judgement, Case no. IT-9516-T, 14 January 2000, paras. 521 et seq. 50 See Blaškić tj, supra note 49, para. 180. 51 Prosecutor v. Galić, Judgement, Case No.IT-98-29-T, 5 December 2003 (Galić tj); Prosecutor v. Galić, Appeal Judgement, Case No. IT-98-29-A, 30 November 2006 (Galić aj); Prosecutor v. Martić, Appeal Judgement, Case No. IT-95-11-A, 8 October 2008, para 216 et seq (Martić aj); Prosecutor v. Strugar, Judgement, Case No. IT-01-42-A, 17 July 2008, paras. 270–6 (Strugar aj); Prosecutor v. Dragomir Milošević, Appeal Judgement, Case No. IT-98-29/1-A, 12 November 2009, paras. 44–7 (Milošević aj).

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incorporates the concept of recklessness, whilst excluding mere negligence.52 The Trial Chamber recalled the definition of recklessness provided by the icrc’s commentary on Article 85 of Additional Protocol I, according to which ‘the attitude of an agent who, without being certain of a particular result, accepts the possibility of it happening’, is sufficient.53 These findings were reiterated in subsequent jurisprudence of the Appeals Chamber.54 In keeping with the relevant ihl provisions, the Galić Trial Chamber also defined generally the terms indiscriminate attack and disproportionate attack.55 The Trial Chamber defined disproportionate attack as a ‘type of indiscriminate attack [that] violates the principle of proportionality’.56 The Trial Chamber also reproduced Additional Protocol I’s definition of a disproportionate attack, namely an attack that is ‘expected to cause incidental loss of life, injury to civilians, damage to civilian objectives or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated’.57 In the case of a disproportionate attack, the prohibited conduct is thus engaging in an attack directed against a military target with excessive ‘collateral damage’. Often, however, the only way to know whether an attack was directed against a military target is through the mindset of the attacker: did he or she intend to aim at a military target? In this regard, an important point is made in Galić with regard to the required mental element for disproportionate attacks. The Trial Chamber held that the attacker needs to have anticipated a ‘concrete and direct military advantage’ and ‘knowledge of circumstances giving rise to the expectation of excessive civilian casualties’.58 The mens rea is therefore crucial in distinguishing this attack from direct attacks on civilians or from other indiscriminate attacks, whereas, based on the actus reus alone, the

52  Galić tj, supra note 51, paras. 52–5. The Chamber also outlined that in order to prove the mens rea for a charge of attacks on civilians the Prosecution must show that the perpetrator was aware of the civilian status of the persons attacked. In cases of doubt as to the status of those persons, the Prosecution must show that in the given circumstances a reasonable person could not have believed that the individual he or she attacked was a combatant. Ibid., para. 55. 53  Ibid., para. 54. 54 See, e.g., Galić aj, supra note 51, paras. 126–40; Strugar aj, supra note 51, paras. 270–6. 55  Galić tj, supra note 51, para. 57. 56  Ibid., para. 58. 57  Ibid. 58  Ibid., para. 59.

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different forms of attack often may not be distinguishable. Importantly, the Trial Chamber noted that ‘[t]he rule of proportionality does not refer to the actual damage caused or to the military advantage achieved by an attack, but instead uses the words “expected” and “anticipated”’.59 The Trial Chamber in Galić also provided guidance on how the crime of disproportionate attack should be proved in criminal proceedings. It held that it is necessary to examine whether a reasonably well-informed person in the circumstances of the actual perpetrator, making reasonable use of the information available to him or her, could have expected excessive civilian casualties to result from the attack.60 Notably, the Trial Chamber relied on ‘a reasonable person standard’ to overcome the subjectivity of the perpetrator’s assessment. Secondly, while a judge operates necessarily post facto, a finding on a disproportionate nature of an attack requires the establishment of the knowledge held ex ante by the perpetrator and of the judgement he or she made of the circumstances and expected results before launching the attack.61 This is not to say that evidence of conduct after the attack is irrelevant: the objective circumstances post-attack may be used to evince the behaviour of the perpetrator ex ante. For instance, by the analysis of the debris of the bomb, an important indication can be gained on the means and methods used in the course of the attack and whether the attacker complied or attempted to comply with the precautionary requirements of the laws of war. Notwithstanding these important indications on the application of disproportionate attack, in the great majority of cases where the crime of attack of civilians was charged, the icty generally reached the conclusion that civilians (and not military objectives) were directly targeted (e.g., the siege of Sarajevo and Dubrovnik) or that rockets were fired indiscriminately on a city with a dense concentration of civilians (attack on Zagreb).62 To prove that the attack was directed against civilians—and consequently to exclude that it was directed at a military target present in the city—different factors were taken into account, including the type of weapons used, the distance from the target, the area hit by the attack (often residential areas or densely populated such as 59  Ibid., para. 58, footnote 109. 60  Ibid., para. 58. 61 This is also in line with the declarations entered into by several States upon ratification of Additional Protocol I. For instance Canada entered a declaration to the effect that a commander ‘cannot be judged on the basis of information which has subsequently come to light’. A similar declaration was entered by Germany, Belgium, Italy, Spain, uk, New Zealand, the Netherlands. For the list of declaration, see Henckaerts/Doswald-Beck, supra note 7, Vol. II, 331–3. 62  See Galić tj; Galić aj; Strugar aj; Milošević aj, all cited in supra note 51.

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in the cases of markets or squares), the presence of military objectives in the proximity of the site, the accuracy of the weapons, and the visibility at the time of the event.63 By way of illustration, in the Strugar case, the Trial Chamber found that there was no evidence that the Yugoslav Peoples’ Army (jna) intended to shell any specific military target in the Old Town of Dubrovnik.64 After recalling all relevant evidence,65 the Trial Chamber was left with no doubt that ‘no military firing points or other objectives, real or believed, in the Old Town were targeted by the jna’.66 It therefore noted that the only reasonable conclusion was that the army deliberately shelled civilians.67 Thus, The Chamber concluded that ‘the issue whether the attack charged against the Accused [Pavle Strugar] was directed at military objectives and only incidentally caused damage does not arise in the present case’.68 Therefore, while the icty referred to disproportionate attack as one of the forms of unlawful attacks on civilians, it refrained from its application any time there was lack of evidence that the attack was directed at any military target. In Galić, the Trial Chamber went even further by holding that, depending on the circumstances, ‘apparently disproportionate attacks’ may give rise to the inference that civilians were actually the object of attack and may thus fall within the scope of the crime.69 In the opinion of the Trial Chamber, this was the case of an attack against a group of people engaged in a football match at a parking lot in the neighbourhood of Dobrinja, Sarajevo. In the parking lot, off-duty soldiers were playing football at an improvised football pitch amid a crowd engaged in civilian activity. The Trial Chamber noted that there was no evidence that the Sarajevo Romanija Corps (srk) was informed either of the event taking place at the parking lot or of the presence of Army of Bosnia and Herzegovina (ABiH) soldiers there.70 The Prosecution was able to prove that the accused had the intent to target civilians, as he did not have any knowledge that military targets (including Bosnian Muslim soldiers) were present in the area. This instance therefore shed light on how the Trial Chamber intended to establish disproportionate attacks. Unlike with other forms of unlawful attacks 63 64  65  66  67  68  69 70 

See, e.g., Galić tj, supra note 51, para. 188; Prosecutor v. Strugar, Judgement, Case No. IT-0142-T, 31 January 2005 (Strugar tj), paras. 185–7. Strugar tj, supra note 63, para. 214. Ibid., paras. 134, 345. Ibid., para. 288. Ibid., paras. 241. Ibid., para. 281. Galić tj, supra note 51, para. 60 (emphasis added). Ibid., paras. 372–87.

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on civilians, the Trial Chamber appears to hold the position that a disproportionate attack can only be established if it is proved from an ex ante perspective that the attacker aimed at a specific military target and foresaw an excessive damage to civilians compared to the military advantage anticipated. In this instance, the post facto circumstances of the incident pointed to the existence of the objective element of the crime of disproportionate attack (as the shell hit both soldiers and civilians, although the latter outnumbered the former), while the evidence of the mental status held ex ante by the attacker formed the basis of the conclusion that civilians—and not the military soldiers—were actually the object of the attack.71 In conclusion, the crime of disproportionate attack was not established. Instead, a conviction was entered for specifically targeting civilians. The above-noted instance concerned a case where the icty stopped short of applying the definition of disproportionate attack. In a more recent case (Prosecutor v. Ante Gotovina et al.), the Trial Chamber eventually applied the definition of disproportionate attack, not however as a distinct crime, but as an underlying act of the crime of persecution.72 The Trial Chamber found that during the period between July 1995 and September 1995 the Croatian political and military leadership acted with the criminal purpose of removing the Krajina Serbs from their homes, which was achieved through indiscriminate attacks, i.e., without any ‘distinction between the civilian population and the military’.73 In this context, the Trial Chamber also considered ‘the targeting of the two locations [on 4 and 5 August 1995] where the hv [Croatian Army] believed Milan Martić [the President of the Krajina Serbs] to have been present as an indicative example of a disproportionate attack during the shelling of Knin’.74 This is the first case where the icty applied the concept of disproportionate attack, although illustratively of a wider pattern of attacks.75 In this regard, The Trial Chamber identified the existence of a ‘definite military advantage’ in targeting Martic’s apartment, which was to ‘disrupt his ability to move, 71  See ibid., paras. 372–87. As noted by the Appeal Chamber, it is a ‘justified pronouncement in the evidentiary effect of certain findings’, Galić aj, supra note 51, para. 133. For critical remarks on this pronouncement see Hector Olasolo, Unlawful Attacks in Combat Situations (2008), at 78. 72 Prosecutor v. Gotovina et al., Case No. IT-06-90, 15 April 2011, paras. 1161 et seq. (Gotovina et al. tj); Prosecutor v. Gotovina et al., Case No. IT-06-90-A, 16 November 2012 (Gotovina et al. aj). 73  Gotovina et al. tj, supra note 72, para. 2309; Gotovina et al. aj, paras. 23–5. 74  Gotovina et al.tj, supra note 72, para. 1910, fn. 935. 75 For an analysis of this case under the principle of proportionality, see R. Bartels, ‘Dealing with the Principle of Proportionality in Armed Conflict in Retrospect: The Application of the Principle in International Criminal Trials’, (2013) Israel Law Review 46(2), 271–315.

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communicate, and command’.76 On the other hand, the Trial Chamber noted that according to a witness the chance of hitting him by firing at his building was ‘very slight’.77 Moreover, the Trial Chamber considered the following factors: that Martić’s apartment was located in a civilian residential area; the accuracy of artillery weapons used in the attack (130 millimetres) as well as the number of shells fired against the target; the times of firing, i.e., early morning and in the evening where ‘civilians could have reasonably been expected to be present on the streets’; and the distance (approximately 25 kilometres). These factors allowed for the conclusion that there was ‘a significant risk of a high number of civilian casualties and injuries, as well as of damage to civilian objects’.78 The Trial Chamber therefore found that ‘this risk was excessive in relation to the anticipated military advantage of firing at the two locations where the Croatian Army (hv) believed Martić to have been present’.79 The Trial Chamber’s findings on disproportionate attack shed some light on how a judicial authority reaches the conclusion on the crime of disproportionate attack. The Trial Chamber seems to endorse the approach that the analysis of disproportionate attack should be performed ex ante based on the anticipated military advantage against the expected loss or injury to civilians or damage to civilian objects. On the other hand, it is not clear how the Trial Chamber balanced the anticipated military advantage with the expected loss or injury to civilians or damage to civilian objects. Consideration only seems to have been given to the fact that according to a witness the chance of hitting Martić was ‘very slight’ compared to the ‘significant risk’ of a high number of civilian casualties.80 However, the Trial Chamber did not conclude that the attack would not have reasonable chances of hitting Martić, but rather noted the opinion of a witness without specifying to what extent it weighed that opinion or not in the proportionality test. Moreover, since there is no analysis on how the importance of the military objective (i.e., hitting Martić) was to be weighed against the risk of hitting civilians, it is not clear whether the outcome would have been different if there had been evidence to the effect that the chance of hitting Martić were reasonably high. In addition, no distinct consideration seems to have been given to the result of the crime, despite the fact that under ihl an attack on civilians, including a disproportionate attack, is considered a grave breach under Article 85 of Additional Protocol I (and thus a 76  77  78  79  80

Gotovina et al. tj, supra note 72, para. 1911. Ibid., para. 1911. Ibid., paras. 1910–1. Ibid., paras. 1910 (emphasis added). Ibid., paras. 1910.

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war crime) only when it resulted in loss or injury to civilians. Under ihl, the result requirement is a prerequisite of the definition of the crime of attack on civilians. Moreover, as noted earlier, the icty also stipulated as a condition for its jurisdiction that the violation of international humanitarian law entailed ‘grave consequences for the victim’.81 The Appeals Chamber criticised the approach taken by the Trial Chamber, holding that its analysis ‘was not based on a concrete assessment of comparative military advantage, and did not make any findings on resulting damages or casualties’.82 In a dissenting opinion, Judge Carmel Agius defended the Trial Chamber’s finding and expressed his view that the conclusion of the Trial Chamber was based on several factors, which included the number of shells, the kind of artillery, distance, and the location and times of the shelling.83 Yet, he did not discuss how the Trial Chamber assessed these factors in deciding on the proportionality test. Judge Agius also held that ‘the Trial Chamber did not necessarily need to tie its finding that the shelling was disproportionate to any findings on resulting damages or casualties’.84 This opinion seems however to go against the relevant provisions of ihl (which require some form of result), and the findings, as noted above, held by both the Trial Chamber and Appeals Chamber in previous cases. In conclusion, the Trial Chamber in Gotovina has much to commend it for applying the definition of disproportionate attack and clarifying that the establishment of the mens rea requires an evaluation from a viewpoint ex ante of the expected military advantage against the incidental loss, injury to civilians, or damage to civilian objects. In this regard, it confirmed that the judgement on the disproportionate nature of an attack should not be made in hindsight (i.e., in the light of all existing objective circumstances) but should be established ex ante, that is, based on what the perpetrator knew and expected before launching the attack. However, crucial questions still remain unanswered regarding how to conduct an assessment of the proportionality test and on the impact of the result of the attack on the establishment of the crime. Regrettably, the Appeals Chamber in that case did not provide any guidance on these issues either.85 81  82  83  84  85

Tadić Decision, supra note 47, para. 94. Gotovina et al. aj., supra note 72, para. 82. Dissenting Opinion of Judge Agius, Gotovina et al. aj, supra note 72. Ibid., para. 44. Critical remarks on this case (from a ‘military lawyer’s perspective’) can be found in Luban, supra note 17, at 327 ‘For a military lawyer, it is outrageous for the Trial Chamber to second-guess a field commander’s risk-benefit assessment on such a fact-intensive and situation-sensitive decision. How can the judges decide on the importance of disrupting Martic’s ability to move, control, and command and how likely the shelling was to injure civilians and how to weigh the military advantages against the risks?’

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In another recent case before the icty, in the case of the Prosecutor v. Prlić et al., the Trial Chamber briefly touched upon the definition of disproportionate attack with regard to the shelling of Mostar by the Croatian Defence Council (hvo).86 The Trial Chamber qualified the shelling as an unlawful attack against civilians pursuant to Article 3 of the Statute.87 In addressing the legal findings of the charge related to ‘unlawful attack on civilians’, the Trial Chamber found that the repetitive shelling of Mostar caused loss and injury to civilians and damage to civilian property to such an extent to be excessive compared to the direct and concrete military advantage.88 In another passage, it noted that the means and methods of war used by the hvo (especially the type of weapons) were such that they could not be directed to target solely military targets.89 It also noted that the shelling affected the entire city, which was densely populated by civilians and with areas where military objectives could not be clearly separated from civilian residences.90 Despite these findings, the Trial Chamber does not seem to have applied the crime of disproportionate attack as defined by the icty’s case-law. In particular, there is no evaluation on the expected military advantage compared to the incidental loss or damage to civilians. The impression is that the Trial Chamber did not deem it relevant to decide on the type of the attack (i.e., whether it consisted of a direct attack on civilians, an indiscriminate attack, or a disproportionate attack), considering it to be sufficient to underline its unlawful nature. 4 The Gamut of Issues in Applying the Definition of the Crime of Disproportionate Attack The icty has given a robust contribution to the concretisation of the crime of disproportionate attack. For the first time, it provided a definition applicable 86  Prosecutor v. Prlic et al., Case No. IT-04-74, Trial Judgement, (Prlic tj), Section 23, at 1684 et seq. 87  Ibid., para. 1688. 88 Ibid., para. 1688, see para. 1686: ‘Il s’agissait d’une zone dans laquelle les objectifs militaires n’étaient donc pas clairement séparés des édifices publics y compris des habitations. Des lors, des attaques répétée sa l’artillerie lourde ne pouvaient que causer des pertes en vie humaine dans la population civile, des blessures aux personnes civiles et des dommages aux biens. Ces dommages qui ont d’ailleurs été considérables et ont eu une incidence indéniable sur l’intégrité physique et la sante des habitants de Mostar-est, étaient excessifs par rapport à l’avantage militaire concret et direct attendu’. 89  Prlic tj, supra note 86, paras. 1686, 1688. 90  Ibid., para. 1688, paras. 1486, 1688.

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in international criminal law, by drawing upon the relevant provisions of ihl, especially Additional Protocol I. Moreover, in cases such as Galić and Strugar, the Trial Chambers have considered disproportionate attack in the context of systematic attacks on a city (as it was the case of the siege of Sarajevo and the shelling of Dubrovnik) with a strong concentration of civilians and civilian objects. While the icty has contributed to clarifying the definition of the crime of disproportionate attack and shed light on the modalities followed by the judges to establish this crime, several aspects remain unaddressed. I will focus on the following four issues: (1) disproportionate attack in non-international conflict; (2) whether disproportionate attack is a ‘crime of pure action’; (3) the level of knowledge required; and (4) how to balance heterogeneous values such as the ‘concrete and direct military advantage’ and the injury to civilians. 4.1 Disproportionate Attack in Non-international Conflict There still exists uncertainty as to whether the crime of disproportionate attack is applicable in non-international conflict. While it is undisputed that the general principle of proportionality in launching an attack should also be applicable in non-international armed conflict,91 there is little support for the conclusion that disproportionate attacks can be considered as a war crime in non-international armed conflict. As discussed earlier, ihl does not have any provision on disproportionate attack in non-international conflict. Indeed when the icty identified the crime of disproportionate attack in the Galić case, it relied upon the provision of Article 51(5) of Additional Protocol I, applicable in international armed conflict.92 Moreover, the Trial Chamber in Galić considered disproportionate attacks applicable to the facts of that case, bearing in mind that the parties agreed to be bound by the provisions of Additional Protocol I.93 This approach was also upheld in Strugar, although no finding was made as to the nature of the conflict.94 In Gotovina, the findings on disproportionate attacks were made in the context of an international armed conflict and within the framework of the crime of persecution. The international character of the conflict was also affirmed in Prlić et al. 91  Henckaerts/Doswald-Beck, supra note 7, Vol. 1, 48–9; B. Cathcart, ‘Command and Control in Military Operations’, in T.D. Gill and D. Fleck (eds), The Handbook of the International Military Operations (2010), at 15.5. 92  See also Blaškić tj, supra note 49, para. 651. 93  Galić tj, supra note 51, paras. 25, 58. 94 See Olasolo, supra note 71, at 78–9, 82, arguing for a separate criminalization of disproportionate attacks.

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The icty Appeals Chamber has not expressed itself specifically on this issue. In the Galić case, it held that ‘customary international law makes the offences set out under Article 3 of the Statute, including the crime of attacks on civilians, applicable to all armed conflicts, whether internal or international’.95 This finding was made, however, in the context of a judgement that only applied the crime of direct attack on civilians. Nevertheless, one may argue that the ratio decidendi of the Tadić Decision should provide sufficient basis for the icty to pronounce itself in favour of an application of the crimes of disproportionate attack in non-international armed conflict. As noted above, the Appeals Chamber in Tadić found that ‘[w]hat is inhumane, and consequently proscribed, in international wars, cannot but be inhumane and inadmissible in civil strife’.96 Based on this holding, the criminalisation of serious violations of ihl before the icty should not be premised on the nature of the conflict and should allow for the application of the crime of disproportionate attack to cases where a finding is not made as to the international character of the conflict. However, moving away from the icty case-law, there is little support for this conclusion in customary law.97 The Statute of the icc adopted in 1998, in keeping with Tadić’s holding, provides a list of crimes in non-international armed conflict largely drawn from the list of war crimes applicable to international armed conflict.98 However, regarding the crime of attacking civilians, the list does not include the crime of disproportionate attack but only direct attack on civilians, that is, ‘intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities’.99 It follows that the icc States Parties agreed not to allow the icc to exert its jurisdiction on the crime of disproportionate attack when committed in non-international armed conflict. This may be explained by the fact that states wanted to retain their discretion to decide if and when to criminalise disproportionate attack committed during a civil strife. Again, it may be seen as confirming that, while there is no dispute on the fact that disproportionate attack represents a violation of ihl in international armed conflict, states do not intend to 95  Galić aj, supra note 51, para. 120. 96  Tadić Decision, supra note 47, para. 134. 97 Olasolo notes that if there are serious doubts about the conventional criminalisation of these attacks in non-international armed conflicts, it is only logical that there are also doubts about their criminalisation under customary law, Olasolo, see supra note 71, at 74. 98  See S. Sivakumaran, ‘Re-envisaging the International Law of Internal Armed Conflict’ (2011) 22 ejil 219, at 226; M. Bothe, ‘War Crimes’ in A. Cassese, P. Gaeta and J.R.W.D. Jones (eds), The Rome Statute of the International Criminal Court: A Commentary (2002), 417–8. 99  Rome Statute, Article 8 (2)(b)(i); Article 8 (2)(e)(i); see Bothe, supra note 98, at 417.

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introduce a separate criminalisation for this provision in internal armed conflict. In other words, the example of the icc may show that there is no established opinio iuris for this crime in international customary law when it is committed during an internal conflict. A recent contribution to the discussion on disproportionate attacks was given by the 2009 ‘Report of the United Nations Fact Finding Mission on the Gaza Conflict’ (Goldstone Report). The Goldstone Report includes international criminal law as part of the ‘normative framework for the Mission’.100 Moreover, it does not include any finding as to the nature of the conflict considering that ‘it is common for armed conflicts to present elements of an international as well as of a non-international character’.101 In this context, the report recalls the Tadić holding, noting that the rules contained in Article 3 common to the four Geneva Conventions are ‘the baseline rules applicable to all conflicts’.102 That being noted, in making its findings, the Goldstone Report recalls the principle of proportionality and the precautionary rules established in Additional Protocol I, but it never expressly refers to the crime of disproportionate attack. For example, in its analysis of use of white phosphorous bombs by Israel against the Palestinians in Gaza, the investigators found that on certain occasions the use of white phosphorous in the areas in and around the Al-Quds hospital103 was in violation of the principle of proportionality. The Goldstone Report however stops short of saying that this violation might have amounted to a disproportionate attack as a war crime.104 This example illustrates that there are still hesitations in the United Nations practice in expressly upholding the criminalisation of disproportionate attacks unless there is a clear finding on the international nature of the conflict. In conclusion, international practice does not seem to provide sufficient indicia to convincingly assert the existence of an international customary rule 100  Goldstone Report, supra note 5, paras. 15, 155. 101 Ibid., para. 283. 102 Ibid.: ‘The concern for the protection of civilians and those hors de combat in all kinds of conflicts has led to an increasing convergence in the principles and rules applicable to international and non-international armed conflicts, as was authoritatively held by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia in the Tadić case. Indeed, “what is inhumane, and consequently proscribed, in international wars, cannot but be inhumane and inadmissible in civil strife”’. 103  Goldstone Report, supra note 5, paras. 591–3, 629. 104  Ibid., paras. 596–629 noting that the attack ‘violated customary international law in relation to proportionality’. See also R.J. Barber, ‘The Proportionality Equation: Balancing Military Objectives with Civilian Lives in the Armed Conflict in Afghanistan, Journal of Conflict & Security Law’ (2010), at 477–83.

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criminalising disproportionate attack in non-international conflict. Yet, such criminalisation is highly desirable to strengthen the protection of civilians in non-international armed conflict in line with the general principles of ihl— including the principle of humanity—that are applicable irrespective of the nature of the conflict. 4.2 Is Disproportionate Attack a Crime of Pure Action? Another issue closely related to the application of the crime of disproportionate attack is the question whether the crime can be committed through engaging in the criminal conduct alone or whether a concrete result is required in order to incur individual criminal responsibility. In line with the provision of ihl, the icty was clear in affirming its jurisdiction on the crime of attack on civilians only when it resulted in the death or serious injury among the civilian population.105 The same should also be true for indiscriminate attacks and disproportionate attacks. Additional Protocol I qualifies not only direct attacks on civilians, but also indiscriminate attacks as ‘grave breaches’ (i.e., war crimes) only when they cause ‘death of serious injury to body or health’.106 The result requirement therefore appears to be a necessary precondition to qualify a disproportionate attack as a war crime. Without the result, it could still be established that an attack was in violation of ihl as long as it is still demonstrated that the perpetrator launched an attack, which—albeit not resulting in any casualties—was nonetheless expected to cause incidental loss among the civilian population. The following example can serve as illustration. A commander in deciding to bomb a civilian bridge during daytime has to reasonably expect to cause an excessive loss of life and injuries to civilians because the bridge is regularly crossed by public buses, civilians on foot, etc. However, unbeknownst to the commander, there is a public strike and by coincidence the bomb only destroys the bridge, without causing any loss among civilians. While technically this attack did not result in any excessive loss, formally it could be considered as a disproportionate attack in violation of Articles 51 and 57 of Additional Protocol I concerning precautions in attacks. The rationale for that provision is to prohibit conduct that by its nature endangers the safety of the civilian population and encroaches upon the principle that civilians should be immune from any attack. The presence of intervening factors (‘novus actus interveniens’) which are outside the control of the commander (e.g., the public

105  Martić aj, supra note 51, para. 260. See also the conditions referred to in the Tadić Decision, supra note 47, para. 94. 106 Additional Protocol I, supra note 6, Art. 85.

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strike in the example above) does not make the conduct innocuous, in the light of its inherently perilous nature. An important question is whether any loss or damage to civilians, however minimal, would suffice to meet the above-noted condition. To go back to the example above, let us assume that, notwithstanding the public strike, the bomb causes injuries to a few by-passers. Would it be sufficient to qualify it as a war crime? There is not much guidance offered in the jurisprudence of the icty. By and large, in most cases, it is logical to assume that the crime of disproportionate attack should include a criminal result that mirrors what was expected by the perpetrator before launching such attack (i.e., the excessive incidental death, injury, or damage to civilians compared to the military advantage). This conclusion finds support in the relevant ihl provisions. As set out in Article 85 of Additional Protocol I, to establish that the attack amounted to a grave breach, it needs to be proved that the perpetrator acted ‘in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects’.107 It follows that the element of the excessive incidental death, injury, or damage is part of the mental element. However, the result is not perceived as a possibility but as an almost certain outcome (‘will cause’). The prohibited conduct lies, therefore, in the acceptance on the part of the perpetrator that his attack will most likely result in an excessive loss. The icc Statute also adopted this formulation. The definition related to the crime of disproportionate attack, applicable only in international armed conflict, uses the same formulation as adopted by Additional Protocol I that the attack ‘will cause […]’,108 suggesting that a result is required. This also seems to be reiterated in the icc Elements of Crimes, which indicate that one of the elements of the crime is that ‘the attack was such that it would cause […]’.109 This means that the prohibition of disproportionate attack aims at criminalising acts that most certainly will lead to excessive harm to civilians during armed conflict. 107  Additional Protocol I, supra note 6, Art. 85(3)(b). 108  Article 8(2)(b)(iv) of the Rome Statute. 109 icc Elements of Crimes, ICC-ASP/1/3 (part II-B), Article 8(2)(b)(iv); Element 2 (emphasis added). The use of the word ‘would’ instead of ‘will’ should not be interpreted as introducing an element of possibility that the attack may not necessarily result in any incidental loss, injury or damage. It is also worth noting that as stipulated in Article 9 of the Rome Statute and reiterated in the introduction to the Elements of Crimes, the Elements of Crimes assist the Court in the interpretation and application of the crimes ‘consistent with the Statute’. Elements of Crimes, available at www.icc-cpi.int/NR/rdonlyres/336923D8-A6AD-40EC -AD7B-45BF9DE73D56/0/ElementsOfCrimesEng.pdf (last accessed August 2014); see also K. Dormann, Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary (2003), at 162; Bartels, supra note 75, at 300–1.

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The issue whether the crime of disproportionate attack is a crime of mere action was briefly touched upon by the Katanga Pre-Trial Chamber in its ‘Decision on the Confirmation of Charges’ issued on 30 September 2008.110 The Pre-Trial Chamber noted in a footnote that with regard to the crime of disproportionate attack as defined in the Rome Statute (Article 8(2)(b)(iv)) ‘the awareness of the perpetrators of the consequences of the attack is an objective element of the crime.… Conversely, the crime of direct attack on civilians as described in 8(2)(b)(i) of the Statute … is a crime of mere action that does not require any factual consequences or any awareness of the perpetrators of the consequences of the attack’.111 Oddly, the Pre-Trial Chamber refers to the awareness of the perpetrator as an objective element of the crime, while there is little doubt that it is part and parcel of the mens rea, especially when intent is required.112 Further, the lack of any authority for its findings, which arguably contradict settled icty jurisprudence, leaves this finding with little authoritative value. One could presume that the Pre-Trial Chamber probably meant to say that the object of that required awareness (i.e., the incidental death, injury, or damage as consequences of the attack) needs to be established to fulfil the requirements of the crime. This is because the icc Elements of the Crimes indicate as one of the elements that the ‘the attack was such that it would cause’ the excessive incidental death, injury, or damage to civilians, thus hinting at a concrete result requirement.113 That the crime of disproportionate attack would in practice require proof of a concrete result may also be inferred by the nature of international criminal proceedings. A prosecutor would hardly prosecute before an international court a disproportionate attack merely as a crime of action and intent without bringing evidence of the expected harmful result caused to civilians. Indeed, in most cases, it would be very difficult for the prosecution to prove a disproportionate attack without a showing of a result matching the object of the attacker’s knowledge (i.e., the excessive incidental death, injury, or damage) unless it is proved that there was an intervening factor like in the example above. 110 The Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, Decision on the Confirmation of Charges, 30 September 2008, ICC-01/04-01/07-717, para. 274 (footnote 374). This decision is also commented by Bartels, supra note 75, at 294. 111  The Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, Decision on the Confirmation of Charges, 30 September 2008, ICC-01/04-01/07-717, para. 274 (footnote 374). 112 Further, the Chamber refers to footnote 37 of the Elements of Crimes (see supra note 109) in order to support its finding; however, footnote 37 qualifies a knowledge element, which again rather hints towards the mens rea element than the objective elements of the crime; ibid. 113  icc Elements of Crimes, p. 19 (Art. 8 (2) (b) (iv)).

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In conclusion, in practice, it would be necessary for a prosecutor to prove that an attack resulted in collateral civilian damage and incidental injury. There may be cases, however, where the attack was likely to cause excessive damage, but because of an intervening factor (sudden change of weather conditions that affected the trajectory of the bomb), the result turned out to be much different.114 In theory, there could also be a case where the intervening factor caused an event that was not anticipated by the commander. Indeed, it cannot be excluded that in criminal proceedings it can be demonstrated that a commander expected a much lower level of collateral civilian damage and incidental injury than the one resulting from launching an attack. This is so because the requirements of the crime would need to be proved ex ante and not ex post facto. Thus, proof of the result is not conclusive in itself of the commission of the crime.115 4.3 What Level of Knowledge is Required? As stated earlier, the icty has contributed to clarifying that the benchmark against which the conduct of the attacker needs to be assessed is the knowledge held ex ante of a ‘reasonably well-informed person in the circumstances of the actual perpetrator’ who could make ‘reasonable use of the information available to him or her’.116 ihl provides that the attacker needs to have knowledge that the attack ‘will cause’ excessive loss, injury, or damage to the civilians or civilian object.117 The Trial Chamber of the icty in Galić echoed that formulation by stating that to establish the mens rea of a disproportionate attack the prosecution must prove ‘that the attack was launched wilfully and in knowledge of circumstances giving rise to the expectation of excessive incidental civilian casualties’.118 A similar standard is found in the Elements of Crimes of the icc which in their relevant parts state that the ‘perpetrator knew that the attack would cause incidental death or injury to civilians or damage to civilian

114  If the crime of disproportionate attack is seen—as I argue—as a crime of pure action, this case would amount to the full realization of the crime. However, if a result is required, this case would become an attempt to commit a crime which is punishable under the icc Statute, Article 25 (3) (f), but would not be under the icty Statute. 115 See Barber, supra at note 104, at 477. See M.N. Schmitt, ‘Precision Attack and International Humanitarian Law’, (2005) 87 irrc 445, 449–54; C. Byron, ‘International Humanitarian Law and Bombing Campaign: Legitimate Military Objectives and Excessive Collateral Damage’ (2010), yihl, 175, 192. 116  Galić tj, supra note 51, para. 58. 117  See Art. 85 of Additional Protocol I, supra at note 6. 118  Galić tj, supra note 51, para. 59.

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objects […]’.119 However, a footnote in the Elements of Crimes specifies that ‘[a]s opposed to the general rule set forth in paragraph 4 of the General Introduction, this knowledge element requires that the perpetrator make the value judgement as described therein’.120 This addition—although contained in a document that is not binding on the icc Chambers121—seems to depart from the icty’s jurisprudence insofar as it gives weight to the judgement and evaluation of the perpetrator, i.e., a subjective ‘value judgment’ test, rather than to a ‘reasonable commander’.122 A question is whether the perpetrator of a disproportionate attack needs to always have actual knowledge of the expected result or whether ‘imputed knowledge’ may also be considered sufficient. The icty Statute has no general provision on the mental element. However guidance can be found in the practice on the legal elements of specific crimes, as well as on different applicable modes of liability. As noted above, the icty clarified the mental element of the crime of disproportionate attack.123 I argue that the definition of knowledge in the mental element of that crime should also comprise situations where the perpetrator of a disproportionate attack did not have actual knowledge of the expected result of the attack, but should have reasons to know based on the information available to him or her. This conclusion stems from the fact that, as noted above, the perpetrator has a positive obligation to ‘make reasonable use of the information’.124 If he or she intentionally omits to consider certain information or does not take any ‘reasonable’ steps to consider the impact of certain information (e.g., on the presence of civilians in certain areas) on the decision-making process, it can still be argued that the perpetrator had the required knowledge. By the same token, a perpetrator cannot be wilfully blind to information ‘available’ to him or her.125 This notion of ‘imputed knowledge’ has been also developed in the icty’s jurisprudence with regard to indirect forms of commission of the crime such as command responsibility.126 I argue

119 Elements of Crimes, supra at note 109, at 24. 120  Ibid., fn. 37. 121  See Article 9 (1) of the Rome Statute. 122  Bartels, supra note 75, 297. 123  See supra section 3 ‘The crime of disproportionate attack in the icty’s jurisprudence’. 124  Galić, tj, supra note 51, para. 59. 125 Kretzmer goes even further on this point arguing that if commanders have doubts about the accuracy of the information, they must request additional information, implying an active duty of the commanders, see D. Kretzmer, ‘Civilian Immunity in War: Legal Aspects’, in I. Primoratz (ed.), Civilian Immunity in War (2007), at 104. 126  See Prosecutor v. Delalić et al., Case No. IT-96-21-A, Judgement (Feb. 20, 2001), paras. 236–9.

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however that it should be applicable as a specific mens rea requirement for the crime of disproportionate attack and thus also be applicable to cases of direct commission of the crime (when the person physically committed the crime or when he or she, for instance, ordered, planned, aided or abetted the attack(s) in question). In conclusion, based on the legal elements of the crime as set out by the icty, the notion of knowledge should be ‘normatively’ construed. This means that the prosecutor can establish the required knowledge of the perpetrator through his or her violation of obligations and duty of care at the moment of deciding whether to launch an attack. More specifically, these obligations can be identified through the precautionary principles set out in ihl, which constitute a due diligence checklist for the attacker. The establishment of the required mental state through violations of normative precepts is also in line with the concept of recklessness as upheld by the icty.127 In the framework of the icc, the conclusion will have, however, to be different. The icc Statute provides for a general provision on the mental element (Article 30) which appears to exclude any form of ‘imputed knowledge’ and recklessness.128 Moreover, the definition of the war crime of ‘excessive incidental death, injury, or damage’ (Article 8(2)(b)(iv)) in the icc Elements of Crimes does not contain any specific mens rea requirement that includes a notion of (imputed) knowledge other than the default provision set out in Article 30.129 127 Galić tj, supra note 51, paras. 52–5. 128 Article 30 of the Rome Statute (‘mental element’) states that ‘unless otherwise provided […] the material elements are committed with intent and knowledge […] For the purposes of this article, knowledge means awareness that a circumstance exists or a consequence will occur in the ordinary course of events’. This definition seems to accept only ‘actual knowledge’ as opposed to ‘constructive knowledge’. See D.K. Piragoff/D. Robinson, ‘Article 30—Mental element’, in: O. Triffterer, Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article (2008); M.E. Badar, ‘The Mental Element in the Rome Statute of the International Criminal Court: A Commentary from a Comparative Criminal Law Perspective’, (2008) Criminal Law Forum 19, 473–518. For the icc’s jurisprudence, see The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/0501/08, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, at 360 (which held the view that not only recklessness but also dolus eventualis are excluded from the remit of Article 30 of the icc Statute). This position has been also affirmed in the Katanga case, see The Prosecutor v. Germain Katanga, Case No. ICC-01/04-01/07-3436, Jugement rendu en application de l’article 74 du Statut, 7 March 2014, paras. 775–9. 129  The mens rea requirement is indicated as follows: ‘The perpetrator knew that the attack would cause incidental death or injury to civilians or damage to civilian objects […]’. In defining the notion of knowledge, Article 30 of the icc Statute will necessarily come into play.

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Another question is whether it suffices to establish that the perpetrator of a disproportionate attack accepted the mere possibility that his or her attack would cause the excessive incidental death, injury, or damage or a higher standard is necessary, i.e., the probability or even the high likelihood of the expected result. In this regard, as stated earlier, the text of Additional Protocol I goes for a higher level of knowledge requiring that the perpetrator needs to have knowledge that the attack ‘will cause’ the expected result.130 A similar approach seems to be adopted in the Rome Statute.131 In sum, it would not be sufficient to establish the required knowledge from the fact that the commander did not act reasonably in making use of all the necessary information. It also has to be proved that the commander knew with a degree of certainty that the attack would cause the excessive incidental death, injury, or damage. In other words, the criminal event of the attack needs to be a highly probable consequence of the attack known as such to the attacker and not just a potential outcome or a mere risk.132 130 This standard is different from the one applied for direct attack on civilians for which the mere possibility is sufficient. For such crime, the icty case-law accepted the definition of recklessness as being ‘the attitude of an agent who, without being certain of a particular result, accepts the possibility of it happening’, Galić tj, supra note 51, para. 54. 131 Elements of Crimes, supra note 109, at 24. The general provision of Article 30—applicable ‘unless otherwise provided’ -, also includes a similar provision: ‘[…] In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events’. The decision of the Pre-Trial Chamber in the Bemba case clarifies this point by excluding the notion of possible risk enshrined in the notion of dolus eventualis: ‘With respect to dolus eventualis as the third form of dolus, recklessness or any lower form of culpability, the Chamber is of the view that such concepts are not captured by article 30 of the Statute. This conclusion is supported by the express language of the phrase “will occur in the ordinary course of events,” which does not accommodate a lower standard than the one required by dolus directus in the second degree (oblique intention)’. See The Prosecutor v. Jean-Pierre Bemba Gombo, supra note 128, at 360. This decision has been endorsed in the judgement of the Katanga case (see supra note 128, paras. 775–9). This jurisprudence departed from the position held in 2007 by the Pre-Trial Chamber in Lubanga (The Prosecutor v. Thomas Lubanga Dyilo, 29 January 2007, Case No. 01/04-01/06, The Decision on Confirmation of Charges, at 352–5), noting that Article 30 encompasses also the notion of ‘dolus eventualis’ to include a situation where ‘if the risk of bringing the objective elements of the crime is low, the suspect must have clearly or expressly accepted the idea that such objective elements must result from his or her actions or omission’. 132 This analysis is related to the mens rea requirement of the crime of disproportionate attack, which will need to be proved to establish the commission of the crime. However, with reference to the mens rea applicable to a specific mode of liabilities identified by the icty (‘joint criminal enterprise III’) the requirement of ‘possibility’ that a crime be committed as opposed to ‘probability’ has been upheld, see, in this regard, Prosecutor v. Karadžić, Decision on Prosecution’s Motion Appealing Trial Chamber’s Decision on jce III Foreseeability, 25 June 2009, paras. 13–9.

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4.4 How to Balance Military Advantages with the Death or Injury of Civilians The question of how to balance military advantage with civilian loss or injury is arguably the most difficult one. A wealth of literature tries to tackle this issue.133 The ‘Final Report to the icty Prosecutor by the Committee Established to Review the nato Bombing Campaign against the Federal Republic of Yugoslavia’ discussed in detail the issue of the application of disproportionate attacks in international criminal law.134 This report focussed on the identification of the elements constituting a disproportionate attack. It noted that the application of disproportionate attack gives rise to several unresolved questions, namely: (a) What are the relative values to be assigned to the military advantage gained and the injury to non-combatants and or the damage to civilian objects? (b) What do you include or exclude in totalling your sums? (c) What is the standard of measurement in time or space? (d) To what extent is a military commander obligated to expose his own forces to danger in order to limit civilian casualties or damage to civilian objects?135 Underpinning all these questions lies the main issue that there is no mathematical formula for such a balancing test.136 These two values—the military advantage and the protection of civilian life—are ‘simply not amenable to 133 See e.g., Schmitt, supra note 13, at 85–102; J. Holland, ‘Military Objective and Collateral Damage: Their Relationship and Dynamics’, (2005) 7 yihl, 46–77. W.F. Fenrick, ‘The Law Applicable to Targeting and Proportionality after Operation Allied Force: A View from the Outside’, (2000) 3 yihl, 53–80; W.F. Fenrick, ‘The Prosecution of Unlawful Attack Cases before the icty’, (2006) 9 yihl, at 153. A.P.V. Rogers, ‘Zero-Casualty Warfare’, (2000) 82 irrc, at 165–9; T. Stein, ‘Collateral Damage, Proportionality and Individual International Criminal Responsibility’ in W. Heintschel von Heinegg and V. Epping (eds), International Humanitarian Law Facing New Challenges (2007), 157–61. E. Jaworski, ‘Military Necessity and Civilian Immunity: Where is the Balance?’ in S. Yee (ed.), International Crime and Punishment (2004), 84–127; Kretzmer, supra note 125, at 99–102. 134 Final Report to the icty Prosecutor by the Committee Established to Review the nato Bombing Campaign against the Federal Republic of Yugoslavia, (‘Nato Report’), available at www.icty.org/x/file/Press/nato061300.pdf (last accessed August 2014); Jaworski, supra note 133, 109. 135  Nato Report, supra note 134, para. 49. 136  Jaworski, supra note 133, at 109–15; Holland, supra note 133, at 48.

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comparison’.137 Naturally, certain situations may be clear-cut and likely to bring broad consensus (e.g., accepting the death of hundreds of civilians in order to kill one foot soldier)138; but, in many other cases, it would be rather complicated to decide how to conduct the balancing test.139 Additionally, as noted in the nato report, ‘the answers may differ depending on the background and values of the decision maker’.140 A further complication is the fact that there is no common understanding among states of the notion of ‘concrete and direct military advantage’.141 The icrc Commentary defines military advantage as an advantage that ‘should be substantial and relatively close’ and stipulates that ‘advantages which are hardly perceptible and those which would only appear in the long term should be disregarded’.142 Some interpret it as the advantage anticipated from the military attack considered ‘as a whole’ and not only ‘from isolated or particular parts of that attack’. Others (Australia and New Zealand) interpret the term ‘concrete and direct military advantage anticipated’ as meaning that there is a ‘bona fide expectation that the attack will make a relevant and proportional contribution to the objective of the military attack involved’. The icrc’s Commentary to Additional Protocol I tries to introduce a limitation to the balancing test, arguing that ‘[t]he Protocol does not provide any justification for attacks which cause extensive civilian losses and damages. Incidental losses and damages should never be extensive’.143 However, such a general limitation seems not to find support in the text of Additional Protocol I. The icc’s Statute provides a definition that is more restrictive than the one provided by Additional Protocol I and the icty, as it refers to ‘clearly excessive’ 137 Barber, supra at note 104, at 476. Schmitt, ‘War, Technology and international humanitarian law’, Occasional paper series n. 4, summer 2005, 50–67, available at www.hpcrresearch .org/sites/default/files/publications/OccasionalPaper4.pdf (last accessed August 2014). See also K. Watkin, ‘Assessing Proportionality: Moral Complexity and Legal Rules’, (2006) 8 yihl, at 31: ‘it is impossible to relate objectively the value of military advantage to collateral damage and incidental injury’. 138  M. Schmitt, ‘The Principle of Discrimination in 21st Century Warfare’, (1990) 2 Yale Hum Rights & Development Law 143, 170; Barber, supra note 104, at 476. 139 See Pillou/Sandoz, supra note 2, para. 1979: ‘in some situations there will be no room for doubt, while in other situations, there may be reason for hesitation. In such situations the interests of the civilian population should prevail, as stated above’. 140  Nato Report, supra note 134, para. 50. 141  Jaworski, supra note 133, 110–6. 142  Pillou/Sandoz, supra note 2, para. 2209; Henckaerts/Doswald-Beck, supra note 9, Vol. 1, Rule 14. 143 Pillou/Sandoz, supra note 2, para. 1980.

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incidental loss or damage and to ‘overall military advantage anticipated’.144 Moreover, a footnote of the relevant provision of the Elements of Crimes states that the ‘advantage may or may not be temporally or geographically related to the object of the attack’, allowing military benefits in a longer period of time or in a much broader area than the one affected by the attack.145 More broadly, the issue of how to address the proportionality test lays bare the dialectic tensions between two different dominating views: the one of the military lawyer and the other of human rights lawyer.146 As noted by the authors of the nato Report, ‘[i]t is unlikely that a human rights lawyer and an experienced combat commander would assign the same relative values to military advantage and to injury to non-combatants’.147 This holds true for instance for the controversial issue whether a party should expose its soldiers to risks in order to reduce the likelihood of casualties against the civilian population.148 A conservative reading would suggest that the proportionality principle does not itself require the attacker to accept increased risk but only to avoid excessive collateral damage.149 A more human rights-oriented reading would derive such an obligation from the principle of humanity embedded in the ‘Martens Clause’.150 144 Rome Statute, Art. 8 (b) (iv) (emphasis added). See W. Shabas, International Criminal Court: A Commentary on the Rome Statute (2010), at 230 on the discussion in the Preparatory Committee of the inclusion in the definition of the words ‘clearly excessive’ and ‘overall’. See J. Gardham, Necessity, Proportionality, and the Use of Force by States (2004), at 134: ‘The Statute definition of the offense of launching a disproportionate attack adds the work “clearly” to the text of the provision at it appears in Additional Protocol I. This addition is intended to indicate to the Court that only obvious cases of disproportionate attacks should be punished’. 145  Elements of Crimes, supra note 109, fn. 36. 146  See Luban, supra note 17, at 327. 147  nato Report, supra note 134, para. 50. Military lawyers would say that a court ‘is badly situated to offer a concrete assessment of comparative military advantage’. See Luban, supra note 17, at 327. 148  Jaworski, supra note 133, 122. 149 See e.g., uk Ministry of Defence, The Manual of the Law of Armed Conflict (2004), para. 2.7.1. 150  The so-called Martens Clause (from Professor von Martens, the Russian delegate at the Hague Peace Conferences 1899) appeared for the first time in the preamble to the 1899 Hague Convention (II) with Respect to the Laws and Customs of War on Land. It reads: ‘Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience’. The clause was re-stated in Art. 1 (II) of Additional Protocol I and in the preamble sub-para 4 of Additional

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Regarding the proportionality test, in the absence of any objective criteria, there is a risk that a judge may follow his or her personal orientation depending on whether he or she has a human rights or military background. Moreover, the definition of disproportionate attack risks falling short of the principle of legality as its contours are not sufficiently clear to alert a commander to the prohibited conduct: how many civilian casualties may be acceptable in targeting a specific military objective? It follows that the proportionality test should not be resolved in juxtaposing abstract competing values, but needs to incorporate all the concrete circumstances that led to planning and launching an attack. In particular, among these circumstances are the ones related to the respect for precautionary principles that aim at minimising collateral damage. In this regard, it is submitted that the compliance with the precautionary principles needs to be part and parcel of the balancing test. As noted earlier, based on these precautionary principles, the commanders are to ‘do everything feasible’ to verify that the objects attacked are military objectives and ‘take all feasible precautions’ in the choice of means and methods of attack. Thus, the key question in reviewing a disproportionate attack is whether another means or method of attack would have minimised the damages to civilians (making therefore the attack non-excessive and proportionate to the military objective) and yet achieving the anticipated direct and concrete military advantage.151 If the answer is positive, then the means or methods chosen by the commander in that particular attack was excessive (and hence disproportionate) compared to the purported military advantage.152 In addition, if there are no weapons available to the commander that can avoid causing

Protocol II. It reads: ‘in cases not covered by the law in force, the human person remains under the protection of the principles of humanity and the dictates of the public conscience’. See on this clause, A. Cassese, ‘The Martens Clause: Half a Loaf or Simply Pie in the Sky?’ (2000) 11 ejil, at 193 et seq. See also N. Neuman, ‘Applying The Rule of Proportionality: Force Protection and Cumulative Assessment in International Law and Morality’, (2005) 7 yihl 83, at 101. 151  T.D. Gill and D. Fleck (eds), The Handbook of the International Military Operations (2010), 15.5, at 261: ‘[B]eyond weapons and tactics choices, attackers must consider the full range of potential targets that can be struck to achieve their military aim. If attacking a target other than the initially selected target would cause less collateral damage and incidental injury, that option must be selected’. 152  See on this point also S. Estreicher, ‘Privileging Asymmetric Warfare (Part II)?: The “Proportionality” Principle under International Humanitarian Law’, (2011) 12 Chicago J. Int’l L. 144, at 156, referring to T.M. Franch, ‘On proportionality of Countermeasures in International Law’, (2008) 102 Am. J. Int’l L. 715, 728: the ‘determinative question is whether the commander has used the “least deleterious” (in terms of civilian loss) means of achieving that objective’. See also Pillou/Sandoz, supra note 2, para. 1979: ‘The attack must

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excessive damage to civilians, then the attack should not be carried out. In this context, the role of expert witnesses is crucial on the type of weapons used or available to the commander, the military advantage, and the type of precautions that a commander needs to follow in conducting a certain attack. In sum, the violations of precautionary measures in an attack form the basis for the establishment of a disproportionate attack. Should however the criminal responsibility for a disproportionate attack flow from the compliance or not with these measures? It is submitted that the establishment of the crime of disproportionate attack has an inherently higher standard of proof compared to the violations of precautionary measures provided by ihl.153 The violations of such humanitarian rules should not automatically lead to the conclusion that the attacker is responsible for the crime of disproportionate attack. To argue so would be to accept the doctrine known as versari in re illicita, according to which the criminal responsibility is ascribed from the mere fact that an individual violated a certain rule and accepted the risks of such behaviour. So, the establishment of the crime does not derive solely from the ascertainment of the violations of precautionary measures—a conclusion that stands in harmony with the result requirement of the crime of disproportionate attack. In this regard, it cannot be excluded that an attack violates precautionary measures, but is not (yet) a crime. Still, for a judge it is indispensable to assess these rules in order to determine whether the attacker foresaw (and hence expected) collateral civilian damage and incidental injury that were excessive in relation to the military advantage. The findings of the Goldstone Report illustrate this. The report found for instance that the use of white phosphorous shells against the compound of the un Relief and Works Agency for Palestine Refugees in the Near East (unrwa) in Gaza showed ‘reckless disregard for the consequences of the choice of means adopted’.154 The report concluded that the use of white phosphorous in that attack violated precautionary rules, especially the one requiring a commander to take all feasible precautions in the choice of means and method of attack in order to minimise collateral damage and incidental injury (Article 57 (2) of

be directed against a military objective with means which are not disproportionate in relation to the objective, but are suited to destroying only that objective, and the effects of the attacks must be limited in the way required by the Protocol’. 153  F. Moneta, ‘Direct attack on civilians and indiscriminate attacks as war crimes’ in F. Pocar, M. Pedrazzi and M. Frulli (eds), War Crimes and The Conduct of Hostilities, Challenges to Adjudication and Investigation (2013), at 73–6; Barber, supra note 104, at 479, noting that while the criminal provision derives from the ihl norm of behaviour, the customary provision may be different in nature. It follows that an attack may be in violation of Additional Protocol I without giving rise to individual criminal responsibility. 154  Goldstone Report, supra note 5, para. 594.

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Additional Protocol I). The report did not conclude that the attack constituted an indiscriminate attack as described by Articles 51 and 85 of the Additional Protocol I.155 A judge in analysing this case should tackle the question whether by violating such precautionary rules a commander expected or objectively and subjectively had to expect excessive collateral damage. One can argue that in the circumstances of this case, there was a high risk that using white phosphorous would have caused excessive collateral damage compared to the established military objective. The commander had to expect that scenario and accepted that risk by conducting the operation. Naturally, to come to that conclusion, a judge should look more in depth into the established military advantage in that operation, preferably with the assistance of an expert on the expected damages of white phosphorous in those circumstances, and analysing the position and knowledge of the commander before the attack started. In conclusion, considerations on the proportionality test should not be made by comparing in isolation two non-comparable values, but need to necessarily include an analysis of the respect of precautionary measures in the case at hand to assess whether the attacker used effectively the necessary force at his or her disposal in order to achieve a certain military objective. This approach is also more in line with the principle of legality in criminal law, as attackers will be alerted to the fact that by violating precautionary measures they will increase the risk that their conduct will lead to disproportionate attacks that could be criminally sanctioned.156 5 Conclusion The icty has extensively contributed to transposing the provisions of ihl onto the newly established regime of icl and applied them when deciding on the individual criminal responsibility of military officers and high-ranking state officials accused of war crimes. In doing so, it has greatly contributed to elucidating and further developing these rules. Moreover, in relation to internal armed conflicts, the icty arguably has profoundly reshaped the discourse on the law through the use of icl.157 Whereas moral philosophers, human 155  Barber, supra note 104, at 478–83. 156  On the principle of legality in international criminal law, see K.S. Gallant, The Principle of Legality in International and Comparative Criminal Law (2009), at 359–67. 157  See e.g., Zahar, supra note 35, at 469–504, noting that the icty ‘so radically shifted the discourse on the law of internal armed conflict that it is easy to forget how improbable the current situation would have seemed in the years leading up to the Tadić decision’. See also Sivakumaran, supra note 98, at 220.

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rights experts, and military lawyers have explored the application of disproportionate attack as a war crime, this subject warrants further attention from judicial authorities.158 The icc may take stock of this debate in its judicial activity and clarify some of the intricate issues discussed above. If it does so, it will provide some important guidance to military officers and contribute to effectively reinforcing the protection of civilians from attacks, a principle underlying the one of proportionality. 158  In moral philosophy, the debate on the principle of proportionality and the protection of civilians in armed conflict is addressed by the ‘just war’ theory: see—as one of the main contributors of this theory—M. Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations (3rd ed. 2000). See, more recently, D.W. Lovell, I. Primoratz (eds), Protecting Civilians during Violent Conflict (2012); I. Primoratz, ‘Civilian Immunity, Supreme Emergency, and Moral Disaster’, (2011) The Journal of Ethics, 15, at 371–86. For ‘useful guidelines’ in applying the principle of proportionality, see Jaworski, supra note 134, 123–7.

chapter 11

Judicial ‘Law-Making’ in the Jurisprudence of the icty and ictr in Relation to Protecting Civilians from Mass Violence: How Can Judge-Made Law Be Brought into Coherence with the Doctrine of the Formal Sources of International Law? Robert Heinsch* 1

Introductory Note

When in 1993 and 1994 the Security Council established the International Criminal Tribunals for the former Yugoslavia (icty) and Rwanda (ictr),1 these two represented the first truly international criminal tribunals. Only few people imagined that a 20-year legacy of jurisprudence would follow this milestone in international criminal justice.2 As we can say from today’s point of view, the ad hoc tribunals started a process which resulted in the creation of a completely new international criminal justice system, including a permanent International Criminal Court (icc) and a body of jurisprudence which established a comprehensive system of protection of civilians in the area of international criminal and international humanitarian law. The early years of the icty especially proved to be a time when crucial decisions were rendered with

* Dr. Robert Heinsch, LL.M. is Associate Professor of Public International Law at the Grotius Centre for International Legal Studies, and the Director of the Kalshoven-Gieskes Forum on International Humanitarian Law at Leiden University. This article is based on Chapter C. ‘Richterliche Entscheidungen als Rechtsquelle im Völkerstrafrecht’ of the author’s doctoral thesis, R. Heinsch, Die Weiterentwicklung des humanitären Völkerrechts durch die Strafgerichtshöfe für das ehemalige Jugoslawien und Ruanda (2007), published with bwv Berliner Wissenschafts-Verlag. 1 When mentioned together: ‘ad hoc tribunals’. 2 For an overview, see for example, R. Steinberg, Assessing the Legacy of the icty (2011); or M. Swart, ‘Some Critical Comments on the Legacy and the Legitimacy of the icty’, (2011) 3 Goettingen Journal of International Law, at 985–1009; F. Mégret, ‘The Legacy of the icty as Seen Through Some of Its Actors and Observers’, (2011) 3 Goettingen Journal of International Law, at 1011–52; and M. Karnavas, ‘The icty Legacy: A Defense Counse’s Perspective’, (2011) 3 Goettingen Journal of International Law, at 1052–92.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004236592_013

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regard to enlarging the scope of protection of mass atrocity victims.3 Examples which come to mind are (a) enlarging the scope of application of punishable war crimes also to non-international armed conflicts,4 (b) lowering the threshold of third State interference to ‘overall control’ in order to ‘internationalise’ non-international armed conflicts,5 and (c) broadening the concept of ‘protected persons’ under the Geneva Conventions also to citizens of the State’s own nationality by relying on ‘ethnic allegiance’ instead of nationality as the crucial criterion.6 This represents of course just a small list of important contributions of the two ad hoc tribunals to the field of international criminal law.7 3 On this topic, see, for example, R. Heinsch, Die Weiterentwicklung des humanitären Völker­ rechts durch die Strafgerichtshöfe für das ehemalige Jugoslawien und Ruanda (2007), at 82–185; J.R.W.D. Jones, International Criminal Practice: the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda, the International Criminal Court, the Special Court for Sierra Leone, the East Timor Special Panel for Serious Crimes, War crimes prosecutions in Kosovo (2003); L.J. van den Herik, The Contribution of the Rwanda Tribunal to the Development of International Law (2005). 4 Cf. Prosecutor v. Tadić, Decision on the Defence Motion on Interlocutory Appeal on Jurisdiction, Case No. IT-94-1/AR72, 2 October 1995 (hereinafter ‘Tadić Decision on Jurisdiction’), para. 134; further confirmed in Prosecutor v. Delalić et al., Judgement, Case No. IT-96-21-A, 20 February 2001, para. 170; for a further analysis see Heinsch, supra note 3, at 167–85; see also B. Simma and A. Paulus, ‘The Responsibility of Individuals for Human Rights Abuses in Internal Conflicts: A Positivist View’, 93 American Journal of International Law (1999), 302 et seq. 5 Cf. Prosecutor v. Tadić, Judgement, Case No. IT-94-1-A, 15 July 1999, para. 131 (see also at para. 137); confirmed in Prosecutor v. Aleksovski, Judgement, Case No. IT-95-14-/1-A, 24 March 2000, para. 145. For an evaluation of the ‘overall control’ test, see D. Sarooshi, ‘Command Responsibility and the Blaskić case’, (2001) 50 iclq, at 452 et seq.; M. Sassoli and L.M. Olson, The Judgment of the icty Appeals Chamber on the Merits in the Tadić Case—New horizons for International Humanitarian and Criminal Law?’, (2000) 82 irrc, 733 et seq. See also J.G. Stewart, ‘Towards a Single Definition of Armed Conflict in International Humanitarian Law: A Critique of Internationalized Armed Conflict, (2003) 85 irrc, at 313 et seq. 6 See Prosecutor v. Tadić, Judgement, Case No. IT-94-1-A, 15 July 1999, paras. 163–9, confirmed by the Tribunal in Aleksovski Judgement, supra note 5, para. 153, and various other decisions. For a discussion of this new standard, cf. Sassoli and Olson, supra note 5, at 744. See also H.  Fischer, ‘Grave Breaches’, in G.K. McDonald and O. Swaak-Goldman, Substantive and Procedural Aspects of International Criminal Law—The Experience of International and National Courts, (2000) Vol. I, at 85; J.-F. Queguiner, ‘Dix ans après la création du Tribunal pénal international pour L’Ex-Yougoslavie; évaluation de l’apport de sa jurisprudence au droit international humanitaire’, (2003) 85 irrc, 271, at 303. 7 For more examples, please also refer to van den Herik, supra note 3, at 87–244; Heinsch, supra note 3, at 82–221; and B. Schlüter, Developments in Customary International Law—Theory and the Practice of the International Court of Justice and the International ad hoc Tribunals for Rwanda and Yugoslavia (2010), at 175–272.

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Nevertheless, these examples in particular have triggered a whole new academic debate about the value of decisions of international courts and tribunals in light of general principles governing the law-creating process in international law.8 The reason for this was that the respective decisions in many ways went into new directions concerning the applicable law which had never been stated before with such clarity. Just as a short illustration: before the 1995 Tadić Decision on Jurisdiction,9 even the International Committee of the Red Cross (icrc) did not claim that war crimes in non-international armed conflict existed;10 before the 1999 Tadić Appeals Chamber judgement, the main standard for attribution of acts of private groups to third States was the ‘effective control’ test known from the 1986 Nicaragua judgment of the International Court of Justice (icj), and even the icrc commentary stipulated that in order to be a protected person under the Geneva Conventions one needed to have the nationality of the opposing enemy State.11 In this regard, the famous 1995 icty Appeals Chamber Decision on Jurisdiction,12 following an interlocutory appeal by the Defence, and the Chamber’s extensive elaboration of the customary international law applicable in non-international armed conflict, as well as many of the following decisions of the two tribunals—started a whole new discussion circling around the terms ‘judicial law-making’ and ‘creative 8

9 10

11

12

See, for example, S. Darcy, ‘Judicial Creativity at the International Criminal Tribunals (2010); W. Schabas, Customary Law or Judge-made Law: Judicial Creativity at the un Criminal Tribunals’, in J. Doria, H.-P. Gasser, and M. Bassiouni, The Legal Regime of the International Criminal Court: Essays in Honour of Professor Igor Blishchenko: in Memoriam Professor Igor Pavlovich Blishchenko (2009). See also J. Powderly, ‘Distinguishing Creativity from Activism: International Criminal Law and the ‘Legitimacy’ of a Judicial Development of the Law’, in W.A. Schabas, Y. McDermott, and N. Hayes, The Ashgate Research Companion to International Criminal Law: Critical Perspectives (2013); S. Darcy and J. Powderly, Judicial Creativity at the International Criminal Tribunals (2010). Tadić Decision on Jurisdiction, supra note 4. Preliminary Remarks of the icrc, 25 March 1993, quoted by C. Greenwood, ‘The Development of International Humanitarian Law by the International Criminal Tribunal for the Former Yugoslavia’, (1998) 2 MPYBUNL, 97, at 131: ‘International Humanitarian Law Applicable to Non-international Armed Conflicts Does Not Provide for International Penal Responsibility’. J. Pictet (ed.), icrc Commentary on Geneva Convention IV (1958), Article 4, at 46: ‘Even when the definition of protected persons is set out in this way, it may seem rather complicated. Nevertheless, disregarding points of detail, it will be seen that there are two main classes of protected person: (1) “enemy nationals” within the national territory of each of the Parties to the conflict and (2) “the whole population” of occupied territories (excluding nationals of the Occupying Power)’. Tadić Decision on Jurisdiction, supra note 4.

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jurisprudence’, indicating that the judges of these two tribunals might have used their powers not only by applying the law on the facts of a given case, but also by ‘creating’ new law.13 This obviously stands in stark contrast to the general doctrine of sources in public international law and Article 38 of the Statute of the International Court of Justice, in particular. According to this provision, judicial decisions of international courts and tribunals can only be seen as ‘subsidiary’ sources of international law, meaning that they can only state the law, not make the law. This doctrine is in coherence with the State-centric approach of traditional public international law: although the judges are usually nominated by their States of nationality, States do not have any influence on what the judges are deciding; therefore, States would have lost their mono­ poly with regard to the law-creating power in international law if the hypothesis of judicial law-making were to be accepted. Since this process and the ensuing debate started within the domain of international criminal law, there is another concern which needs to be brought into focus: the question whether judicial law-making would violate the principle of legality, i.e., the principle of nullum crimen sine lege, nulla poena sine lege.14 At the moment when the crime was committed, it would be problematic to say that the perpetrator could have known about the illegality of their behaviour if the crime was only later ‘created’ or at least ‘crystalized’ as such by the judges. The following contribution will try to reconcile this rather recent phenomenon in international law of judicial law-making with the existing doctrine of the sources of law, borrowing among others from the logic of the icj’s argumentation in the North Sea Continental Shelf cases with regard to the relationship between treaty law and customary law. Also, from a teleological point of view, this new dynamic has an interesting effect as it goes to the particular benefit of victims of armed conflict. 2

The Traditional Value of Judicial Decisions as a ‘Subsidiary Source’

The starting point for any evaluation of a source of international law is Article 38 of the icj Statute, which provides a list of the generally accepted sources of public international law. Since the decisions of the icty and the ictr are taken in the domain of international criminal law, this provision should also be the point of departure in the present discussion. Another important provision—at least for the evaluation of decisions of the icj—is Article 59 of the 13 See supra, note 4. 14 On this special problem, see Heinsch, supra note 3, at 312–22.

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icj Statute, according to which ‘[t]he decision of the Court has no binding force except between the parties and in respect of that particular case’. Although the current analysis will depart from the icj Statute, the objective is to deduce general conclusions from it which can be used in a generalised fashion with regard to all international courts and tribunals. However, we have to keep in mind that we are dealing with international criminal tribunals, and therefore the principle of legality (nullum crimen sine lege) plays an important role. 2.1 Judicial Decisions Only as Evidence of Existing International Law? The central question of this essay is which role decisions of international legal bodies have within the current framework of international law. Can we go as far and claim that international judicial decisions can be seen as a ‘new’ and therefore a fourth formal source of public international law, besides international treaties, customary international law, and general principles of international law (Article 38 of the icj Statute)? Are they only material sources, which are merely ‘influencing’ the creation of newly developing rules? Or, are they perhaps to be seen as mere ‘evidence’ of existing customary international law as is usually claimed by the ad hoc tribunals themselves? If we look at the text of Article 38(1)(d) of the icj Statute, there is a strong argument that judicial decisions can only be seen as evidence for existing public international law, since Article 38(1) states that the icj shall apply, ‘subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law’.15 Although this wording is usually understood as indicating that judicial decisions and academic writings are not to be seen as formal sources creating the law, one could argue that the term ‘subsidiary means’ indicates that they can only be used when the first three sources do not render an adequate result.16 We can find even more room for interpretation in the term ‘for the determination of rules of law’. This can, on the one hand, be understood as the generally accepted meaning of stating what the existing law is. On the other hand, in a more progressive way of interpretation, one could argue that ‘determining’ the law can 15

16

Emphasis added. Cf. G. Dahm, J. Delbrück, and R. Wolfrum, Völkerrecht (1989), Bd. I/1, 77, at note 1. See also V. Röben, ‘Le Précédent dans la Jurisprudence de la Cour Internationale’, (1989) 32 gyil, at 385. K. Doehring, ‘Die Rechtsprechung als Rechtsquelle des Völkerrechts’, in: G. Reinhart (ed.), Richterliche Rechtsfortbildung—Erscheinungsformen, Auftrag und Grenzen, Festschrift der Juristischen Fakultät zur 600-Jahr-Feier der Ruprecht-Karls-Universität Heidelberg (1986), 541, 542.

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also mean stating what the law should be, and setting the law in a constitutive manner.17 The latter interpretation could therefore support the argument that international judicial decisions can actually ‘create’ new law. In the case of the icj, however, this interpretation seems to be barred by the reference to Article 59 of the icj Statute, stating that its decisions are only valid inter partes. Despite the range of possible interpretations with regard to the meaning of Article 38 of the icj Statute, the common belief is that the ‘subsidiary’ character of international court decisions has to be understood in a way that they are not to be seen as independent formal sources of international law.18 The main argument in this context is that—at least with regard to the jurisprudence of the icj—Article 59 reflects a clear rejection of the common law principle of binding precedent (stare decisis). This opinion has been confirmed by the icty and ictr in their jurisprudence.19 Therefore, it is put forward that Article 59 leaves no doubt about the fact that jurisprudence is neither a means to create new international rules, nor for the same reason represents a formal source of international law, since its role seems to be limited by its ‘subsidiary’ character.20 In contrast to this, Lauterpacht argued with reference to the Advisory Committee of Jurists21 that Article 59 did not intend to regulate the question of precedence, but only the specific question of third party intervention.22 This question is actually regulated by Article 63 of the icj Statute, which provides that, if a third State joins the proceedings, the judgment will be equally binding on it. Lauterpacht concluded that ‘Article 59 would thus seem to state directly what Article 63 expresses indirectly’.23 Another interpretation was put forward by Beckett who assumed that Article 59 was only referring to the ‘operative’ part of the judgment and not to the legal principles which were the basis of the decision.24 However, if one takes recourse to the debates which were 17 18

Ibid., at 545. I. Brownlie, Principles of Public International Law (2003), at 19; Dahm, Delbrück and Wolfrum, supra note 15; K. Doehring, Völkerrecht: ein Lehrbuch (2004), margin number 281; K. Ipsen, Völkerrecht (2004), § 21, margin number 1; H. Lauterpacht, The Development of International Law by the International Court (1958), at 20 et seq.; R. Monaco, ‘Sources of International Law’, in R. Bernhard (ed.), Encyclopedia of Public International Law, (2000) Vol. IV, at 474. 19 Prosecutor v. Kupreskić et al., Judgement, Case No. IT-95-16-T, 10 January 2000, para. 540. 20 Monaco, supra note 18, at 474. 21 The Advisory Committee of Jurists, appointed by the Council of the League of Nations, drafted the Statute of the Permanent Court of International Justice in 1920. 22 Lauterpacht, supra note 18, at 8. 23 Ibid. 24 W.E. Beckett, ‘Les Questions d’intérêt général au point de vue juridique dans la Jurisprudence de la Cour permanente de justice internationale’, RdC (1932-I), at 141.

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held within the Advisory Committee of Jurists, it becomes clear that Article 59 was not supposed to only exclude the res judicata principle, but also the principle of binding precedent.25 Consequently, the Permanent Court of International Justice (pcij) stated in one of its judgments: ‘The object of [Article 59] is simply to prevent legal principles accepted by the Court in a particular case from being binding on other States or in other disputes’.26 However, even if one interprets Article 59 of the icj Statute in a way that the principle of binding precedent is excluded, this does not necessarily mean that in general there should not be cases of precedent as such. Judge Shahabuddeen highlights a valid point when he states: ‘The fact that previous decisions of the Court are not precedentially binding means that they are not binding precedent; it does not mean that they are not “precedents”’.27 One can indeed observe that the term ‘precedent’ appears in impressive regularity in the decisions of the icj, in the separate opinions of the judges, in the submissions of the parties, and in the work of academics. In this regard, one could also imagine a concept of precedent that is not necessarily connected with a binding statement in a way that it does not create new law as such, but nevertheless is seen as an important guidance with regard to the interpretation of existing international law. In addition, one has to raise the question whether the principle of binding precedent can only be understood in a narrow and strict sense. If the circumstances require, it might be necessary that a court looks at a previously established legal principle in a subsequent decision and might vary the already stated legal rule.28 For example, in the United Kingdom, in which a rather strict stare decisis approach is followed, there is a possibility for such flexibility.29 Consequently, there is the possibility to have a legal regime in which judicial decisions are creating law but where the principle of binding precedent is not strictly followed. Applied to the situation before the icj, one could state that an exclusion of the stare decisis principle does not necessarily mean that there is absolutely no room for a law-creating role of the World Court. Finally, we have to keep in mind that we are examining the normative value of decisions of the icty and the ictr: international criminal tribunals. 25

26 27 28 29

M. Le Baron Descamps, Procès-Verbaux of the Proceedings of the Committee, June 16th— July 24th 1920 (1920), at 332, 336, 584. See also M. Sørensen, Les sources du droit interna­ tional; étude sur la jurisprudence de la Cour Permanente de Justice Internationale (1946), at 161; and H. Waldock, ‘General Course of Public International Law’, 106 RdC (1962-II), at 91. German Interests in Polish Upper Silesia (1926), pcij, Ser. A, no. 7, 19. M. Shahabuddeen, Precedent in the World Court (1996), at 237 (emphasis added). Ibid., at 107. Cf. the references in Shahabuddeen, supra note 27, at 107, note 33.

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We can use Article 38 of the icj Statute in this context in order to draw general conclusions for the doctrine of the sources of international (criminal) law, since it is seen as an authoritative reflection of the list of sources under customary international law. Further, since Article 38 refers to Article 59 of the icj Statute, we cannot completely ignore this provision. However, Article 59 very specifically regulates the inter partes effect of icj decisions, and therefore it seems that this is only of limited relevance for decisions of other international (criminal) courts and tribunals. In this regard, it seems that the argument taken from Article 59 of the icj Statute cannot be seen as an argument against a general possibility of international courts creating new law, and representing a formal source of international law. Another argument which is often raised against the law-creating powers of international courts and tribunals is that only subjects of international law, i.e., States and organisations created by them, are able to set a practice which could create international (customary) law.30 This argument is based on the view that the functions and competencies of international organs, and especially the icj, are determined and limited through their statutes.31 Moreover, if a continuous jurisprudence of the icj on a certain matter were to lead to the creation of customary international law, the Court would be prevented from deviating from its own jurisprudence in a subsequent case.32 Otherwise, the Court would not have correctly applied the law which it had previously created itself.33 Finally, again, the wording of Article 38(1)(d) of the icj Statute denominates judicial decisions as ‘subsidiary means’ while the formal sources in subparagraphs (a) to (c) are missing this characterisation. Sometimes Article 38(2) of the icj Statute is raised as an additional argument against the possibility of considering judicial decisions as a formal source of international law.34 According to this provision, parties to a case are able to give the icj the power to decide a case ex aequo et bono, i.e., according to standards of ‘the right and good’ or ‘from equity and conscience’. Because of this, some commentators argue that Article 38(2) speaks against the possibility to interpret Article 38(1) as giving judicial decisions the role of independent 30 Doehring, supra note 18, margin number 311. 31 Cf. G.I. Tunkin, Theory of International Law (1974), at 181. 32 Doehring, supra note 18, margin number 312. 33 R. Jennings and A. Watts, Oppenheim’s International Law (1992), Bd. I, at 41. 34 Cf. R. Bernhardt, ‘Rechtsfortbildung durch internationale Richter, insbesondere im Bereich der Menschenrechte’, in G. Reinhart (ed.), Richterliche Rechtsfortbildung, Fest­ schrift der Juristischen Fakultät zu 600-Jahr-Feier des Ruprechts-Karls-Universität Heidelberg (1986), at 530.

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sources of international law. According to this opinion, Article 38(2) would show that the competence to create international law could only be given to the Court with the consent of the (State) parties.35 However, this opinion misses the fact that Article 38 (2) does not deal with a decision by the Court, which is based on one of the original sources of international law.36 Instead, the application of the principles of equity can under certain circumstances not only complement the law, but also be detached from the law if the parties agree to it.37 One could even say that the idea of the principle of ex aequo et bono is precisely to dispense with the consideration of the law as such and decide the case solely by the aspects which the judges consider to be fair and equitable in this specific situation. Consequently, a textual interpretation of Article 38 of the icj Statute leaves room for different views on the matter whether international judicial decisions can be seen as being able to create international law. Therefore, in accordance with Article 33 of the Vienna Convention on the Law of Treaties,38 it is advisable to have a closer look at the travaux préparatoires of Article 38 of the icj Statute, in order to clarify its meaning. The Statute of the icj’s predecessor, the pcij, was drafted by the Advisory Committee of Jurists in 1920.39 It is interesting to note that the different views on the role of international judicial decisions which have been depicted above seem to reflect the different opinions within the Advisory Committee. Some members of the Committee advocated that the new court should not be seen as a creator of international law (de Lapradelle: ‘it would be useful to specify that the Court must not act as a legislator’;40 Lord Phillimore: ‘judicial decisions state, but do not create law’41). On the other hand, several States, including Denmark, Norway, and Sweden, submitted drafts for the statute which seemed to indicate that the new court was given the competency under certain conditions to create new law.42 One of 35 Ibid., formulating rather carefully in this context. 36 Doehring, supra note 18, margin number 279. 37 Cf. Free Zones Fall, pcij, Ser. A, No. 24 (1930), at 15 and icj, North Sea Continental Shelf cases, Germany v. Denmark/Netherlands, Judgment, 20 February 1969, icj Reports 1969, at 60. 38 1969 Vienna Convention on the Law of Treaties, 1155 unts 331 (23 May 1969). 39 Cf. Le Baron Descamps, supra note 25. The Advisory Committee of Jurists (‘Advisory Committee’ or ‘Committee’) was appointed by the League of Nations. 40 Ibid., at 296. 41 Ibid., at 584. 42 See Article 15 of the Danish proposal: ‘if such rules do not exist to cover the question under consideration, the Court shall give judgment according to what in its opinion should be the rule for international law’. Cf. pcij, Advisory Committee of Jurists, Documents

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the first Committee-drafts included wording that arguably covered a law-­ creating function of the court: ‘The following rules are to be applied by the judge in the solution of international disputes; they will be considered by him in the undermentioned order: […] 4. international jurisprudence as a means for the application and development of international law’.43 However, in the end and under the impression of Lord Phillimore, subparagraph 4 was changed to the following wording: ‘The Court shall take into consideration judicial decisions and the teachings of the most highly qualified publicists as subsidiary means for the determination of rules of law’.44 It would appear that the majority within the Advisory Committee supported the approach that judicial decisions would not be able to create new law. The discussions among President Descamps, Lord Phillimore, Root, Judge Loder, Hagerup, RicciBusatti, and Professor de Lapradelle as outlined in the procès-verbaux of the proceedings of the Committee clearly indicate this direction.45 However, the Committee also expressed the opinion that ‘judicial decisions should be used by the Court for their jurisprudential value’.46 What exactly was to be understood by the term ‘jurisprudential value’ can, however, not be properly determined by just relying on the travaux préparatoires. 2.2 Judicial Decisions as a Formal Source of International Law? The decisive question is whether this ‘jurisprudential value’ alone can justify considering international judicial decisions as an independent formal source of law next to the other three existing formal sources stipulated in Article 38 of the icj Statute (treaties, customary law, and general principles). This approach would be in contrast to the traditional approach to only consider it as a ‘subsidiary’ source. However, while there are proponents who claim that judicial decisions are to be seen as more than a subsidiary source, usually what lacks is the dogmatic justification for this. The most important argument in order to justify the character as a formal source is of a logical nature. The method of the icj to refer to previous decisions without basing its argument on one of the three main sources should be seen as treating its own decisions as a formal source of

Presented to the Committee Relating to Existing Plans for the Establishment of a Permanent Court of International Justice, hmso, London (1920), at 179. A similar proposal came from Norway (ibid., at 233) and Sweden (ibid., at 241). 43 M. Le Baron Descamps, supra note 25, at 306 (emphasis added). 44 Ibid., at 620 (emphasis added). 45 Cf. ibid., at 332, 336, 584; M. Bos, ‘The Recognized Manifestations of International Law: A New Theory of Sources’, (1977) 20 gybil, at 35, 56 et seq.; G.J. van Hoof, Rethinking the Sources of International Law (1983), at 169; and V. Röben, supra note 15, at 385, 387. 46 Shahabuddeen, supra note 27, at 54 (emphasis added).

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law.47 This opinion of Thirlway seems to be supported by Shahabuddeen when he makes a distinction between two kinds of judicial decisions.48 On the one hand, he sees decisions which are used in later decisions to simply state an existing rule of international law only as subsidiary means. On the other hand, he notes those decisions that determine a legal rule based on a series of earlier precedents.49 These are not to be seen anymore as just subsidiary means. They should be characterised as a source of a new rule of international law, which was created solely by the Court.50 In order to bring this in coherence with Article 38 of the icj Statute, Shahabuddeen claims that the list of sources in this provision is not to be seen as exhaustive. The introductory sentence of Article 38 (‘in accordance with international law’) especially should be seen as leaving room for the approach that more than just the three mentioned sources can be used by the Court.51 The difficulty with this approach is that, although it explains the practice of the icj52 in some way, it still triggers the question how this can be brought into coherence with the approach that law-creating powers are usually derived from States. Furthermore, it raises the problem how one should treat the ‘first decision’ which does not rely on previous decisions as such. In this regard, the views of Thirlway and Shahabuddeen do not seem to take into account that the icj might be working outside of its own legal regime, if one follows the still prevailing opinion that the basis for a binding legal norm in international law is to be sought in the consent of States. Röben argues, in this context, that those commentators who want to give icj decisions a precedent function usually do not give a dogmatic underpinning for it: La constatation, en forme de résignation, que ce phénomène est inhérent à la fonction judiciaire permanente et doit donc être accepté comme tel, ne saurait remplacer une base normative sur laquelle la Cour peut fonder 47

See, for example, H.W. Thirlway, ‘The Law and Procedure of the International Court of Justice 1960–1989’ (Part Two), (1990) 61 byil, at 133. 48 Cf. Shahabuddeen, supra note 27, at 76 et seq. 49 Cf. also V. Röben, supra note 15, at 383, who seems to tend into a similar direction when he says: ‘Ce qui est décisif c’est l’influence que la première décision exerce sur les suivantes’. 50 Shahabuddeen, supra note 27, at 76. 51 Ibid., at 80 et seq. 52 See, for example, icj, Anglo-Norwegian Fisheries case (uk v. Norway), icj Reports 1951, at 116 et seq.; also icj, Reparations for Injuries Suffered in the Service of the un, Advisory Opinion, 11 April 1949, at 174 et seq.; icj, Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, 28 May 1951, icj Reports 1951, at 15 et seq.; and icj, Nottebohm case (Liechtenstein v. Guatemala), Second Phase, Decision of 6 April 1955, at 4 et seq.

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sa pratique en matière de précédent. Ces auteurs peuvent donc expliquer la pratique de la Cour mais ils ne parviennent pas à la légitimer.53 It indeed appears rather difficult to find a dogmatic justification for treating judicial decisions as independent and separate formal sources in an international legal system where States are the constitutive actors when it comes to law-making. Judicial Decisions as Part of One of the Three Traditional Formal Sources? One possibility to see judicial decisions as a source of international law is to connect them with one of the three traditional sources of international law. Consequently, an argument which has been raised is that international judicial decisions are (next to national judicial decisions) to be seen as part of the ‘practice’ of customary international law.54 This represents a somewhat antiquated view that a series of several judicial decisions can lead to a new rule of international law; the repetitive element in this phenomenon is seen as the normative basis for the new rule, and therefore would lead to the creation of a customary rule of international law.55 While this argumentation is widely accepted with regard to judicial decisions taken by national courts (since these are acting as State organs),56 it would not appear possible to argue the same for international courts and tribunals.57 Although international courts and tribunals are created by States or organisations of States, it is only partly true that these judicial entities are acting ‘in the name of States’ which appear before them.58 It cannot therefore be said that jurisprudence of international tribunals represents the opinio juris of States in the same way as decisions of national courts. It follows that a distinction has to be made between international jurisprudence and customary international law.59 The creation of customary international law, especially according to Kelsen, is a

2.3

53 Röben, supra note 15, at 401 (emphasis added). 54 This is claimed by A. Bleckmann, Die Funktionen der Lehre im Völkerrecht (1981), at 19. 55 See L. Kopelmanas, ‘Essai d’une théorie des sources formelles du droits international’, (1938-I) 21 Revue de droit international, at 127. 56 Cf. R. Falk, The Role of Domestic Courts in the International Legal Order (1962), at 19 et seq.; M. Mendelson, ‘The icj and Sources of International Law’, in V. Lowe and G. Fitzmaurice (eds.), Fifty Years of the icj: Essays in Honour of Sir Robert Jennings (1996), at 82. 57 Interestingly Bleckmann does not seem to find any proof for this ‘new opinion’. See supra note 54, at 19. 58 Mendelson, supra note 56, at 82. 59 Sørensen, supra note 25, at 154.

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decentralised process. The legal rules are created through individual acts of international legal subjects without the participation of a centralised legislative organ, which at the same time explains the often slow and fragile process of its creation.60 This process is not comparable to the phenomenon of only one Court (the icj with regard to general public international law) or a very limited number of tribunals (e.g., icty, ictr, or the icc with regard to international criminal law) which derive their authoritative role from the fact that they have a certain monopoly to decide the cases before them—a process inherently different from States setting state practice or expressing their opinio juris. Another argument which can be raised against the view that international court decisions can create customary law is that the decisive prerequisite for the creation of international customary law is a certain amount of repetition in the application of that rule. However, with regard to international jurisprudence, this repetitive element very often is not given. Already one single judgment can have a decisive impact on other actors who are applying the new rule while the latter are not judicial organs and therefore cannot be seen as adding to judicial practice.61 The 1995 Tadić Decision on Jurisdiction is just one example in this regard. Finally, one should not forget that one of the most important characteristics of judicial decisions is that they are dealing with the solution of an individual and a ‘concrete’ case. It is actually this focus on the concrete case, and not the usability for the general application, which determines the function of the judiciary.62 In general, a judge does not have to be mindful of the possibility that his or her adjudication of a concrete case and its underlying argumentation is going to have further effects as a rule for future cases. The judge’s primary task is to ‘solve’ the legal problems of the case at hand. If the judge’s decision nevertheless has an impact on future cases and the development of a new legal rule, then the reason is not the judge’s original intention to create a new rule, but because he/she found a persuasive and solid line of argument for an (existing) general rule which would otherwise lack a comparably robust justification.63 However, one has to admit that this basic assumption might be subject to certain modifications in the area of international (criminal) law, because judges of the respective international tribunals might be very well aware of the fact that their statements on certain issues of international law are attracting a lot of attention. 60 Ibid. 61 Ibid., with reference to Castberg and Scelle. 62 Ibid., at 156. 63 Ibid.

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The Factual Importance of Jurisprudence and ‘Normative’ Power of Precedent in International Law

3.1 The ‘Persuasive Authority’ of icj Decisions Although the majority of commentators deny that international judicial decisions are a formal source of law, we nevertheless find many voices64 which at the same time stress the (mostly practical) importance of international jurisprudence for the development of new rules. These voices give international jurisprudence a rather important role as an ‘indirect’ source. As Simma and Paulus have formulated it: As to decisions of international Tribunals, which in Article 38 of the Statute of the International Court of Justice are merely counted among the ‘subsidiary means for the determination of rules of law’, their importance for the clarification of legal rules nowadays can hardly be overestimated.65 Especially with regard to the process of developing the body of international criminal and international humanitarian law (ihl) during the last two decades, the importance of decisions of national as well as international tribunals is often emphasised and coined as ‘indirect sources’ of ihl.66 In this context, commentators and judges often mention the ‘persuasive authority’ of icj decisions.67 When using the term ‘persuasive authority’, it is interesting to observe that the word ‘precedent’ is usually avoided, probably in order not to confuse this concept with the Anglo-American system of stare decisis. At the same time, it becomes obvious that the rejection of international jurisprudence as a formal source is only sustained half-heartedly. For example, Brownlie mentions that, in a ‘strict sense’, judicial decisions cannot be seen as formal sources, 64

65 66

67

Cf. Brownlie, supra note 18, at 19 et seq.; Jennings and Watts, supra note 33, at 21 et seq.; Lauterpacht, supra note 18, at 20 et seq.; G. Schwarzenberger, International Law, Vol. 1/I International Law As Applied by International Courts and Tribunals (1957), at 5 et seq. Simma and Paulus, supra note 4, at 307 (emphasis added). I.P. Blishchenko, ‘Judicial Decisions as a Source of International Humanitarian Law’, in A. Cassese (ed.), The New Humanitarian Law of Armed Conflict (1979), at 51. Blishchenko gives as an example that those principles, which were reflected in the Nuremberg Charter and Judgment, had a tremendous effect on the development of rules concerning the extradition of war criminals and the non-applicability of the statute of limitations. Cf. D.J. Harris, Cases and Materials on International Law (1998), at 53; M.N. Shaw, International Law (2003), at 103.

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but only as evidence of the actual status quo of international law.68 But at the same time, he points out that the practical importance of the term ‘subsidiary means’ in Article 38 of the icj Statute should not be overstressed.69 Similarly, the distinction between ‘evidence’ of a legal provision and the ‘source’ of a legal provision should be seen as merely speculative in most cases and should be handled in a less strict manner than is usually promoted.70 In this regard, it would make little difference whether decisions of the icj should be seen as evidence or as a source of international law, as long as it is clear that they are representing mainly identical rules.71 Going down a similar road is the view that the system of stare decisis cannot be applied to the system of international (criminal) law in a way known from certain national legal systems. Although international law does not know the principle of ‘strictly binding’ precedent, there is still the possibility that the concept of precedent as such could be applied to international law in a more nuanced way.72 There might be a discrepancy between a purely dogmatic approach to characterising international court decisions on the one hand, and the practical relevance and importance on the other hand. Moreover, the practice of international (criminal) courts and tribunals as well—as the general acceptance of such by their stakeholders over the past two decades, in particular—seem to have boosted the relevance of judicial decisions as a catalyst for and indicator of the steady development of rules of international law. Consequently, there are voices which claim that especially unanimous decisions can play a certain role in the development of international law.73 Already at the beginning of the 1990s, there were commentators who foresaw the phenomenon that international tribunals would play an increasing role with regard to the codification of international law.74 In order to underline this tendency, which started even before the era of judicial creativity in international criminal law, one can refer to certain selected decisions of the icj, like the

68 Brownlie, supra note 18, at 19. 69 Ibid. 70 Lauterpacht, supra note 18, at 21. 71 Ibid. This view was heavily criticised by the Soviet International Lawyer G.I. Tunkin, who reproaches Lauterpacht for equalising judicial decisions with conventions and customary international law. See Tunkin, supra note 31, at 181. 72 R. Jennings, ‘The Judiciary, International and National, and the Development of International Law’, 45 iclq (1996), at 12. For more details, see Shahabuddeen, supra note 27, at 107 et seq. 73 Brownlie, supra note 18, at 20. 74 Jennings and Watts, supra note 33, Vol. I: Peace, Introduction and Part I, § 19a.

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Reparations-case,75 the Genocide-case,76 the Fisheries-case,77 and the Nottebohmcase,78 which all had a decisive impact on the development of general public international law.79 In addition, it has been observed that the icj has not applied Article 59 of the icj Statute in an equally strict sense, as a purely dogmatic approach would demand.80 The Court regularly refers to its own jurisprudence in its decisions,81 and therefore contributes to consistency when applying the law,82 even though Article 59 would bar any traditional implementation of the stare decisis principle. There are quite a number of arguments that support the approach that the distinction between ‘finding’ and ‘creating’ the law is relative.83 The so-called law-determining agencies, like international courts and tribunals, usually cannot resist the temptation to cross the border to creating law. However, it has to be stressed in this context that the ‘hidden’ law-creation by originally lawdetermining agencies can only receive its legitimacy through either express consent or silent acquiescence from other law-creating subjects.84 The more a supposedly existing rule is in coherence with the general structure of the legal framework and the demands and values of the respective community or society, the more there is a chance that the rule will be accepted in the end. Following from this assumption comes a highly remarkable consequence: under these conditions, it could happen that a rule that has been stated by an international tribunal will in the future be seen as an already existing rule although it was only ‘invented’ in the previous case.85 However, in this context, there is a difference to the genuine law-determining agencies: if an international court or tribunal developed a reputation for deviating too much from the generally accepted rules and principles of the international community, then it would probably rather quickly experience a substantial decrease in 75

Reparations for Injuries Suffered in the Service of the United Nations, icj Reports 1949, at 15 et seq. 76 Case Concerning the Application of the Genocide Convention (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)) (Further Request for Provisional Measures), icj Reports 1993, at 325 et seq. 77 Fisheries Jurisdiction Cases (uk v. Iceland) (Merits), icj Reports 1974, 3, at 175. 78 Nottebohm Case (Liechtenstein v. Guatemala), icj Reports 1955, at 4 et seq. 79 Cf. Brownlie, supra note 18, at 20. 80 Ibid., at 20 et seq. 81 Mendelson, supra note 56, at 81. 82 Brownlie, supra note 18, at 21. 83 Schwarzenberger, supra note 64, at 10. 84 Ibid. 85 Ibid.

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State-initiated cases.86 Obviously, a progressive development of international law by a tribunal that would go beyond a level which could be tolerated by States would eventually lead to repercussions, possibly in the form of nonimplementation of judgments.87 Furthermore, the tribunal would run the risk of losing its judicial authority.88 This view, however, can only be valid in cases where there is no compulsory jurisdiction. The situation is different if the parties in dispute do not have the choice whether they are subject to the tribunal’s jurisdiction. In the broadest sense, this is the case with regard to the icty and ictr, respectively. The defendants who are prosecuted before theses tribunals do not have a choice whether to appear before the tribunal. The un ad hoc criminal tribunals’ primacy over national courts is a core characteristic of these judicial institutions.89 Overall, it is interesting to note that even those who are giving high importance to judicial decisions of international tribunals with regard to the development of international law90 nevertheless emphasise the exclusivity of the law-creating processes. Otherwise, international law would run the risk of blurring the distinction between lex lata and lex ferenda.91 However, in general, for international law one can assume that wherever there are courts and tribunals the law is developing in the hands of the judges.92 Therefore, it is without surprise that a number of authors indicate that certain judicial decisions can create international law.93 This can, for example, be seen from the title of Chapter 12 of Lauterpacht’s standard textbook, which is entitled ‘Judicial 86

Ibid., at 65. An example from the icj could be the very controversially received South West Africa Cases (Second Phase). icj Reports 1966, 6 et seq. 87 In the same sense, see Bernhardt, supra note 34, at 540. 88 Simma and Paulus, supra note 4, at 305 (emphasising that tribunals which go beyond their discretion act ultra vires). 89 icty Statute, Art. 9; ictr Statute, Art. 8. 90 For example, Schwarzenberger finds that ‘international courts, and especially the World Court, should have pride of place in the hierarchy of the elements of the law-determining agencies’. Cf. Schwarzenberger, supra note 64, at 30. 91 Ibid., at 50. 92 Ibid., at. 62. 93 Shahabuddeen, supra note 27, at 90, with reference to Beckett, supra note 24, at 139–40, J.L. Brierly, ‘Règles générales du droit de la paix’, 58 RdC (1936-IV), at 78 et seq.; A. Ross, A Textbook of International Law (1947), at 79-80, 86-7, E. Lauterpacht, ‘The Development of the Law of the International Organisation by the Decisions of International Tribunals’, 152 RdC (1976-IV), 387; Bos, supra note 45, at 60; O. Schachter, ‘The Nature and Process of Legal Development in International Society’, in R. MacDonald and D. Johnston (eds.), The Structure and Process of Development in International Law (1983), at 767; and P.M. Dupuy, ‘Le juge et la règle générale’, (1989) rdip, at 566.

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Legislation and the Jurisdiction of the Court’.94 Brierly is very frank when he states that there seems to be a ‘conspiracy’ that tries to negate the law-creating part of international judicial decisions.95 3.2 The Importance of ‘Precedence’ in International Law Although the terminology of ‘precedent’ is usually avoided in the context of international law, the following elaborations will focus again on the question of a soft case law-approach. The question of the character of judicial decisions as a formal source and the question of the possibility of precedents in international law are usually treated simultaneously because commentators assume that the doctrine of precedent is intrinsically linked to a strict application of the stare decisis principle. However, it seems possible to speak of precedent even if judicial decisions are not allocated the status of formal sources of law. This argumentation seems to be followed also by Shahabuddeen who puts forward the opinion that precedents could exist in a system which does not follow a strict stare decisis approach.96 This assumption is plausible, since the mere textual understanding of the word ‘precedent’ does not necessarily imply a strict application of the stare decisis principle. The comparison with national systems also supports this view. For example, the legal system in England shows that there can be binding judge-made law without a strict application of the stare decisis principle.97 Especially if one speaks of ‘precedent’ without following a strict stare decisis approach there is no need to confirm at the same time the character of judicial decisions as a source. This provides a certain freedom with regard to the terminology. This leads us to the question where the authority of a judicial precedent comes from. In simple terms, one could say that the authority of a judicial precedent comes from the fact that we have a decision in which a competent organ that has been allocated with binding decision-making powers by its creators (i.e., States or an organisation of States) regulates certain legal relations. And even though in international law this decision is usually only binding upon the parties to the dispute (or the defendant before a criminal tribunal), this decision creates an expectation among the other members of the international community that if a similar question is posed to the court or tribunal in 94 95

See Lauterpacht, supra note 18, Chapter 12 (emphasis added). J.L. Brierly, in H. Lauterpacht and C.H.M. Waldock (eds), The Basis of Obligation in International Law and other Papers by the late James Leslie Brierly (1958), at 98 (‘[the] act of the court is a creative act, in spite of our conspiracy to represent it as something less’). 96 Shahabuddeen, supra note 27, at 107 et seq. 97 Ibid., at 106 et seq.

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later cases, the judicial organ will decide the matter in a similar way. This assumption is further nourished by the fact that international law is characterised by a certain stability, and one can therefore expect that similar problems will be solved in a similar way, even if the respective tribunal does not explicitly mention its previous decisions.98 This phenomenon was already highlighted by Lauterpacht who found it persuasive that judicial decisions are becoming ‘part and parcel of the legal sense of the community’.99 This ‘community spirit’ is probably also being taken into account when the judges take their decisions. One can assume that the judge tries—probably on an unconscious level—to fulfil certain legitimate expectations of the legal community, and by doing so the judge contributes to maintaining the stability and authority of the international legal order.100 Sørensen also highlights that there is a certain reciprocity between judicial decisions and the impact which a precedent has on the international community.101 Overall, one can conclude that the relevance of precedents in the area of international (criminal) law cannot be underestimated, although one has to reject the idea of strictly binding precedent as known from many common law systems and their strict stare decisis approach. The rejection of a strict stare decisis approach, however, does not exclude the possibility of a quasi-binding effect as a general principle. The jurisprudence of the icty and the ictr has shown that the judges usually considered that they were bound by their previous decisions. As the Appeals Chamber stated in the Aleksovski case, ‘the Appeals Chamber should follow its previous decisions, but should be free to depart from them for cogent reasons in the interests of justice’.102 With regard to the question whether the icty Trial Chambers are bound by Appeals Chamber decisions, the Appeals Chamber stated clearly: ‘The Appeals Chamber considers that a proper construction of the Statute requires that the ratio decidendi of its decisions is binding on the Trial Chambers’.103 In addition, even the parties before a tribunal usually treat decisions from international 98 Sørensen, supra note 25, at 175. 99 H. Lauterpacht, ‘the So-Called Anglo-American and Continental Schools of Thought in International Law’, (1931) 12 byil, at 53. 100 Cf. Sørensen, supra note 25, at 176. 101 Ibid. Even if the judge does not explicitly mention the precedent in the decision, one can imagine that the judge takes the precedent into account as a reflection of the legitimate expectations of the international community when deciding the case. 102 Aleksovski Judgement, supra note 5, para. 107. See also ibid., Declaration of Judge David Hunt, para. 1. 103 Aleksovski Judgement, supra note 5, para. 113.

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courts as in principle binding for future cases and as representing existing international law. Missing Hierarchy and Confirmation of Judge-made Law through Ensuing State Practice One of the reasons why it is not possible to have more than a ‘soft case law approach’ in international law, i.e., a general binding nature of precedent with the possibility for deviation in special cases, is the fact that at the moment there is no hierarchy among the current system of international courts and tribunals. In the recent past, we have witnessed an increasing number of international courts and tribunals (in particular in the area of international criminal law)104 which have mostly developed independently from each other and are therefore not governed by an established hierarchy as we know it from national jurisdictions. In theory, all these tribunals have the power to influence international law in some way. If we were to assume that every international court and tribunal had the potential to create new international law, we would face the possibility and danger of developing divergent or even contradicting rules of international law.105 Since a hierarchy is missing between the courts and tribunals in international law, it would not be clear which view is to be followed. The possibility of conflicting court decisions has increased with the so-called ‘prolif­ eration of courts’ in recent years.106 The possible effects of this phenomenon have been demonstrated especially by the jurisprudence of the icty. With its statements on the level of control necessary in order to attribute actions of organised groups to third States (‘overall control’ standard) in the Tadić Decision on Jurisdiction, the tribunal was accused by some commentators to have been 3.3

104 For an extensive overview over the most important international courts and tribunals, see P. Sands, R. Mackenzie, and Y. Shany, Manual on International Courts and Tribunals (1999), at 1 et seq. 105 The former President of the icj, Gilbert Guillaume, has referred several times to the ‘danger of divergences resulting from the proliferation of tribunals, courts and quasi-judicial bodies’. Cf. G. Guillaume, ‘The Future of International Judicial Institutions’, (1995) 44 iclq, at 862. 106 See F. Pocar, ‘The Proliferation of International Criminal Courts and Tribunals: A Necessity in the Current International Community’, (2004) 2 jicj, at 304 et seq. (with regard to the system of international criminal justice). See generally C.P.R. Romano, ‘The Proliferation of International Judicial Bodies: The Pieces of the Puzzle’, (1999) 31 nyu jilp, at 709 et seq.; P.-M. Dupuy, ‘The Danger of Fragmentation or Unification of the International Legal System and the International Court of Justice’, (1999) 31 nyu jilp, at 791 et seq.; G. AbiSaab, ‘Fragmentation or Unification: Some Concluding Remarks’, (1999) 31 nyu jilp, at 919 et seq.

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in open contradiction to the ‘effective control’ standard established by the icj in its Nicaragua case, although closer inspection demonstrated that the icty was not rejecting the effective control standard as such, but limited its application to the attribution of acts of single private individuals to States, while using the overall control standard in order to attribute the actions of ‘organized armed groups’.107 In addition, the icty was using this standard in order to establish the scope of application of ihl (‘international armed conflict’), while the icj was dealing with questions of State responsibility. Nevertheless, there was a certain perceived contradiction which was also highlighted by the then President of the  icj, Judge Guillaume.108 Another icj judge remarked that two different approaches to the same legal problem cannot be part of international law at the same time.109 Consequently, this aspect of the current international law system shows that a new rule of international law that has been ‘developed’ by a judicial decision cannot become immediately part and parcel of international law. In this regard, it would appear necessary to find a process which confirms the establishment of a new rule of international law by a judicial decision. What this process could look like is not much discussed in academic literature.110 One rather finds formulations that indicate that subsequent State practice usually cannot ignore the authority of international jurisprudence, e.g., icj decisions.111 This leads us to the decisive aspect of judicial law-making or creative jurisprudence: it seems to be decisive of what has happened after the respective decision and how State practice and international treaties (as a reflection of State practice and opinio juris) have confirmed a new rule. If we follow this approach, then we also manage to take into account the still dominating role of States in the international law-making process.

107 A. Cassese, ‘The Nicaragua and Tadić Tests Revisited in Light of the icj Judgment on Genocide in Bosnia’, (2007) ejil 18, at 649 et seq. 108 Guillaume, supra note 105, at 862. 109 Electricity Company of Sofia and Bulgaria, 1939, pcij, Series A/B, No. 77, at 90, Judge Anzilotti. 110 M. Shahabuddeen is aware of this problem, but avoids answering the question how this process might look like by examining the phenomenon by merely concentrating on the precedent with regard to the icj; Shahabuddeen, supra note 27, at 92. 111 A. Verdross and B. Simma, Universelles Völkerrecht—Theorie und Praxis (1984), at 618; and U. Fastenrath, Lücken im Völkerrecht—Zu Rechtscharakter, Quellen, Systemzusammenhang, Methodenlehre und Funktionen des Völkerrecht (1991), at 121, with reference to Sir G.G. Fitzmaurice, ‘Some Problems Regarding the Formal Sources of International Law’, in Symbolae Verzijl (1958), at 170 et seq.; R. Jennings, ‘What is International Law?’, (1981) 37 SchwJIR, at 77; Lauterpacht, supra note 18, at 21.

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Especially in the area of ihl and international criminal law, we have witnessed during the last two decades a ‘wave’ of State actions following the establishment and early jurisprudence of the icty and ictr. One of the most prominent examples is obviously the creation of the Rome Statute of the icc (Rome Statute). Furthermore, implementing legislation and national jurisprudence can be seen as an indication of how decisions of the icty and ictr have been received by States. Prime examples for this process have been the statements of the icty with regard to the corpus of international humanitarian law applicable and punishable as war crimes in non-international armed conflicts. These elaborations on the law applicable in non-international armed conflicts were definitely progressive—to say the least—at the time of the issuance of the Tadić Decision on Jurisdiction in 1995,112 but were confirmed three years later when States took over most of the Tribunal’s statements in Article 8 of the Rome Statute. Since at the beginning of the 1990s even the icrc pointed out that there were no war crimes in non-international armed conflicts,113 it is safe to say that in Tadić the icty ‘pushed’ international criminal law towards a point where it had not been before. This phenomenon should remind us of the process which the icj described in the North Sea Continental Shelf cases when elaborating on the relationship between treaty law and customary international law. The icj clarified that an international treaty cannot only confirm customary international law but is also able to ‘crystallise’114 a rule which had not yet been fully accepted as customary international law, or even create a new rule ‘out of its own impact’. The process whereby a new rule or principle of international law is stated by an innovative judicial decision has been confirmed by subsequent State practice is not a completely new phenomenon, and has been observed also in the area of international criminal law.115 Examples include the un General Assembly Resolution which confirmed, on 11 December 1946, the ‘Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and the Judgment of the Tribunal’.116 Moreover, the General Assembly instructed the Committee on the Codification of International Law to formulate the Nuremberg Principles ‘in the context of a general codification of offences 112 Tadić Decision on Jurisdiction, supra note 4, para. 134. 113 See supra note 4. 114 North Sea Continental Shelf cases, supra note 37, at 38. 115 Cf. in general for a very instructive examination of the problem Blishchenko, supra note 66, at 41 et seq. 116 Affirmation of the Principles of International Law recognized by the Charter of the Nürnberg Tribunal General Assembly resolution 95 (I), New York, 11 December 1946.

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against the peace and security of mankind, or of an International Criminal Code’.117 It is important to note in this context that the Nuremberg Principles which were developed by the International Military Tribunal (imt) included an enumeration of international crimes which led to the codification of new provisions in international treaty law.118 These provisions include most prominently the 1948 Genocide Convention,119 which states in Article I that ‘[t]he Contracting Parties confirm that Genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and punish’. Equally noticeable is that the 1949 Geneva Conventions established criminal liability for a number of ‘war crimes’ (‘grave breaches’) that had not been mentioned in the 1907 Hague Conventions, but which were expressly mentioned in the Nuremberg Charter of the imt.120 This impact of decisions of international courts and tribunals on subsequent treaty law has been repeated once again with regard to the early icty and ictr decisions and their effects on the drafting of the Rome Statute.121 International Judicial Decisions as a Material Source of International Law The process by which judicial decisions are confirmed by subsequent State practice reflects the main idea of a ‘material’ source of international law: ­jurisprudence initiates or influences the development of a new rule of inter­ national (criminal) law through the confirmation by one of the traditional sources, i.e., customary international law or international treaty law.122 However, international jurisprudence differs from other examples of material sources of international law. As one can see from icj decisions, there are hardly 3.4

117 General Assembly resolution 177 (II) of 21 November 1947 (Formulation of the principles recognized in the Charter of the Nürnberg Tribunal and in the judgment of the Tribunal). 118 Blishchenko, supra note 66, at 42. 119 1948 Convention on the Prevention and Punishment of the Crime of Genocide, 78 unts 277 (9 December 1948). 120 Blishchenko, supra note 66, at 42. It bears noting, however, that the crime of genocide was not part of the imt Statute and was only codified by the 1948 Genocide Convention. 121 K. Ambos, Der Allgemeine Teil des Völkerstrafrechts (2002), at 40 (stating that the Rome Statute has consolidated the international criminal justice system). 122 This process becomes rather obvious in the formulation of M. Shahabuddeen, when he poses the question ‘[w]hether precedents can serve only as inputs in the processes of creating customary law’. Shahabuddeen, supra note 27, at 69. With this question, however, he mainly examines whether judicial decisions can be seen as independent State practice, which, in the end, he denies.

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any cases in which States deviate expressly from a rule that has been stated by the World Court. This tendency has in many ways been confirmed by the jurisprudence of the icty. It seems that States are rather of the opinion that a norm that has been confirmed by an international court or tribunal reflects existing international law, at least with regard to future international proceedings before the same Court. And even though a State has the liberty to disagree with the stated rule of international law, it is not likely that this opinion will have much practical relevance for proceedings before the same court.123 This phenomenon is reflected in Shahabuddeen’s analysis with regard to the icj: The Court can only see international law within the perspective in which it is functioning. It is always free to review a previous decision and to depart from it for good reason; but, until changed, so far as it is concerned, the law in a decided case is the law of the Court. For all purposes of the Court, it is international law.124 Since States are aware of this process in which statements of international courts and tribunals will rarely change in subsequent proceedings (for the criminal courts and tribunals this would predominantly hold true regarding Appeals Chamber jurisprudence) and therefore have a growing binding power on them, they need to assume that this is the correct reflection of international law. In some ways, one could characterise this position of States as opinio juris in the classical sense of the doctrine of sources of international law. But it is not only States that are accepting statements of former judicial decisions. Other international courts and tribunals have a tendency to accept statements with regard to, for example, an alleged existing rule under customary international law from former judgments without a further examination of the underlying State practice.125 The most obvious example seems to be the 1993 Jan Mayen case.126 In this case the icj justified the existence of a rule of customary international law just by reference to its own judgment in the Gulf of Maine case127 and its decision in a parallel but slightly different question in the Libya/Malta case.128 Interestingly, the Court did not try at all to examine 123 Shahabuddeen, supra note 27, at 95. 124 Ibid., at 95 et seq. (emphasis added). 125 Cf. M. Byers, Custom, Power and the Power of Rules (1999), at 122-3, who, however, seems to mix up this category with the State practice which is confirming judicial decisions. 126 Maritime Delimitation in the Area between Greenland and Jan Mayen, icj Reports 1993, 38. 127 See Byers, supra note 125, at 10, note 29. 128 Case Concerning the Continental Shelf, icj Reports 1985, 13.

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existing State practice. This procedure has been confirmed throughout the jurisprudence of the icty and the ictr. As a rule, Trial Chambers of the respective tribunals make reference to important statements of the Appeals Chamber, and the Appeals Chamber to its own previous decisions. This has been explicitly confirmed by the icty Appeals Chamber in the Aleksovski case where it stressed that ‘the Appeals Chamber should follow its previous decisions’.129 One can conclude that, even before the establishment of the icty and ictr, examples can be found in international jurisprudence which seem to indicate that the value of judicial decisions goes beyond mere ‘subsidiary means’, especially with regard to their practical importance. The jurisprudence of the icty and ictr in the last two decades has confirmed this observation. As a corollary effect to this, principles of international humanitarian law relating to victims of armed conflict have seen a notable increase in significance. Departing from the traditional concept of international law, which views the individual as a mere object, the ad hoc tribunals’ jurisprudence injected crucial aspects of victims as subjects of international law. In respect of victims of sexual violence, the ictr130 and the icty,131 through their jurisprudence, paved the way for a progressive codification of sexual violence crimes in the Rome Statute. From a victims-oriented perspective, the increasing dynamic of international courts to become the proponents of new international legal rules, which have in turn been verified and validated by ensuing State practice or treaty codification, has had a tremendously beneficial effect for the victims of mass atrocities. This result speaks for the legitimacy of the means, which has also been confirmed by the main actors in international law, the States. 4

The Possible Incoherence of Article 38(1)(d) of the icj Statute with the Realities of International Law

After the previous analysis, it becomes obvious that Article 38(1)(d) of the icj Statute does not completely render justice to the value of international judicial decisions when describing them as ‘subsidiary means’ for the determination of 129 Aleksovski Judgement, supra note 5, para. 107. However, the Appeals Chamber also emphasised that it ‘should be free to depart from them for cogent reasons in the interest of justice’. 130 Cf. Prosecutor v. Akayesu, Judgement, Case No. ICTR-96-4-T, 2 September 1998, para. 687 et seq. 131 See, e.g., Prosecutor v. Kunarac et al., Judgement, Case No. IT-96-23-T, 22 February 2001, paras. 436–60.

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international law.132 One can at least say that the provision does not accurately describe the function of precedent, which even the icj itself, but also the icty and the ictr concede in their own decisions.133 A restrictive view ascribing to international jurisprudence a mere ‘evidence’ function for existing international (criminal) law does not completely reflect the true value of these decisions with regard to the development and definition of international norms.134 One could go even as far as to say that the practice of States and international courts and tribunals would violate to some extent Articles 38 and 59 of the icj Statute if one applied a strict interpretation to these provisions.135 Reality has shown that decisions of the icj—and also of the icty and the ictr over the last 20 years and other more recent international criminal jurisprudence136— have contributed to the development of international law.137 If international courts and tribunals have decided a case, it becomes difficult for ensuing State practice to completely ignore the respective judicial statements.138 One has to keep in mind that States are taking into account the decisions of international courts and tribunals because they have to anticipate that the respective judicial organs will resolve similar cases in a similar way. The same is valid for the members of the International Law Commission when they are drafting new codifications for certain areas of international law. A somewhat similar approach was chosen in many ways when drafting the Rome Statute, although some commentators have also indicated that the Rome Statute is to be seen as a dynamic interpretation of customary international law.139 132 M. Byers is of the opinion that an interpretation of Articles 38 and 59 which assumes that international jurisprudence does not play an important role in the international legal system has to be seen as ‘inaccurate’. See Byers, supra note 125, at 121, with reference to G.M. Danilenko, Law-Making (1993), at 253–61; R. Higgins, Problems and Process (1994), 202 et seq., and Shahabudeen, supra note 27, at 100. Along the same lines, see Röben, supra note 15, at 384 and Verdross and Simma, supra note 111, at 617. 133 Shahabuddeen, supra note 27, at 78, and J.A. Barberis, ‘La Jurisprudencia International como fuente de Derecho de Gentes según la Corte de la Haya’, (1971) 31 ZaöRV, at 670. 134 Also Ipsen, supra note 18, § 21, margin number 1. 135 Along the same lines, see Byers, supra note 125, at 121. 136 E.g. the Special Court for Sierra Leone (scsl), the Extraordinary Chambers in the Courts of Cambodia (eccc), and the International Criminal Court (icc) in particular. 137 Ipsen, supra note 18, § 21, margin number 3. 138 Fitzmaurice, supra note 111, at 171 et seq.; Fastenrath, supra note 111, at 121; Jennings, supra note 111, at 77; Verdross and Simma, supra note 111, at 618. 139 See, for example with regard to the war crimes provisions, M. Cottier, ‘Rome Statute and War Crimes’, in elsa International (ed.), International Law 21st Century (2001), 163, at 179, who states: ‘[T]he most comprehensive and detailed list of war crimes that has been

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The evaluation of the role of international courts and tribunals becomes much easier if we accept that there is room for discretion with regard to the application and interpretation of the law by courts and tribunals, and that the border between lex lata and lex ferenda is in flux.140 This becomes especially obvious in cases where the respective court has to deal with new and not yet completely solved legal problems.141 The view that judges, including international judges, are just to be seen as ‘la bouche de la loi’ who merely know and apply existing law to the concrete case seems to be very difficult to uphold.142 One has to appreciate—at least in the cases in which a legal rule is ambivalent—the respective cognitive and evaluating elements in the judge’s judging process as constituting the main influence where dynamic law-making enters the decision-making process of the court or tribunal.143 In this regard, a court with its legal authority can push forward the development of a certain area of law by stating the ‘existing’ customary international law or general principles. This will be even more the case when State practice has not developed in a coherent way or is even contradictory; in such cases, a court might even be able to create a completely new provision of international law.144 At this point, one should also raise the question whether States did not intend, or at least have accepted, this process. Although the creation of new international law is still dominated by the will of its main legal subjects (the States), they leave enough room for interpretation when drafting certain conventions and treaties. This, in the end, is often the reason why judges of international courts have such a wide margin of discretion when applying the law, and then arguably cross the border into law-making.145 However, it is important to note that the respective in-corporated in a multilaterally negotiated treaty. Many of the definitions crystallise progressive developments within humanitarian law, give more precision to or clarify concepts and controversial issues’. But see A. Pellet, ‘Applicable Law’, in A. Cassese, P. Gaeta and J.R.W.D. Jones, The Rome Statue of The International Criminal Court: A Commentary, Volume II (2002), at 1056, who sees the definitions of crimes as laid down in Articles 6 to 8 of the Rome Statute ‘in some respects’ as a ‘step backwards compared with the case law and customary law itself’. 140 R. Bernhardt, Anmerkungen zur Rechtsfortbildung und Rechtsschöpfung durch internationale Gerichte, in Festschrift Zemanek (1992), 14; Fastenrath, supra note 111, at 120. 141 Fastenrath, supra note 111, at 122; Verdross and Simma, supra note 111, at 619. 142 Already M. Sørensen stated that this view ‘ne correspond pas à la réalité’. See Sørensen, supra note 25, at 155. 143 As Bernhardt points out, in finding and applying the law there is a process taking place where rational and emotional elements as well cognitive and evaluating aspects find their place. See supra note 34, at 530. 144 Fastenrath, supra note 111, at 122. 145 Bernhardt, supra note 34, at 531.

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tribunal cannot develop a new rule in contravention of already existing international law.146 In the case of the icj, this is clearly indicated by the opening sentence of Article 38(1) of the icj Statute which states that the Court has to decide ‘in accordance with international law’ (in French: ‘conformément au droit international’). With regard to the ad hoc tribunals, this is expressed in the Secretary-General’s postulate that the tribunals’ laws are an expression of existing international (customary) law.147 4.1 The Possibility of Alternative Law-creating Processes Even if one does not want to go as far as calling judicial decisions ‘formal sources’ of international law since they do not create law through a formally acknowledged law-creating procedure, one still has to concede that they have an ever growing importance in the development of public international law. The main difference compared to the established formal sources of international law is the fact that States have not given international courts and tribunals formal law-creating power. However, one has to ask the question whether in the current international law regime one can still uphold the approach that the creation of international norms is solely dependent on the will of the main legal subject under international law, the State. In this regard, there is a growing tendency that other legal subjects also play a role in this process.148 An increasing number of other players continue to gain a stronger role in international law as legal subjects, such as, for example, international organisations, ngos, transnational companies, or even the individual.149 This at the same time reinforces the development of alternative law-creating processes in order to deal with the new challenges of current times. One of these alternative lawcreating processes appears to be that international judicial decisions are vested with a more important function with regard to the development of new rules. As has been demonstrated above, however, it is advisable that this greater role of international decisions is connected in some way to the more traditional sources of international law, in a way that ‘newly developed’ international legal norms are confirmed retroactively through international conventions or subsequent international custom.150 146 F. Castberg, ‘La méthodologie du droit international public’, (1933) 43 RdC, at 367, who especially highlights the stability of the international legal order. 147 Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), S/25704, 3 May 1993, paras. 29, 33–4. 148 With regard to this topic, see especially R. Hofmann (Hg.), Non-State Actors as New Subjects of International Law (1999), at 1 et seq. 149 Cf. S. Hobe and O. Kimminich, Einführung in das Völkerrecht (2004), at 152 et seq. 150 See already the elaborations at note 111.

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4.2 Flexible Approach to the Sources of International Law The real value of judicial decisions in public international law lies in the grey area between the categories of ‘formal sources’, ‘material sources’, and ‘evidence’ of international law. Judicial decisions are, on the one hand, not formal sources because the respective formal procedure is missing; on the other hand, experience has shown that they have much more impact on the law-creating process than mere ‘evidence’ of international law. In consequence, it could be considered to allocate the same meaning to them as material sources, despite the fact that in contrast to, for example, ilc draft articles, they are supposed to reflect merely existing international law, and are not intended to ‘inspire’ new law. In this regard, international jurisprudence seems to resist any characterisation into existing categories of sources in international law. The different positions in the dispute on the categorisation of international jurisprudence stem from the fact that one faction of commentators usually puts an emphasis on the dogmatic approach towards the sources of international law, while the other faction stresses the practical influence of judicial decisions on legal reality. Those who pursue the latter approach argue that the development and creation of law through jurisprudence is an important part of the international legal order.151 In respect of international criminal law, it can be observed that—especially during the initial phase of the work of the icty and icty during the 1990s and particularly in those areas of law where the judges were confronted with a higher level of uncertainty or with lacunae in the respective regime—the probability for law-creating jurisprudence was much higher, and one could also say, law-creating was necessary.152 Again, reference is made to the 1995 Tadić Decision on Jurisdiction. However, as noted before, the admission that international jurisprudence has a certain norm-creating function does not automatically mean that it has to be seen as a formal source of international law.153 Sørensen stated already in 1946: 151 Cf. the approach put forward by M. Bos, A Methodology of International Law (1984), at 2. See also Bernardt, supra note 140, at 14; P. Malanczuk, Akehurst’s Introduction into International Law (1997), 51; A. Ross, Textbook of International Law (1947), at 81, assumes that judicial decisions are never made by only ‘applying’ the law, but to a certain extend always also create new rules; this is interpreted by Dahm, Delbrück and Wolfrum, supra note 15, as if Ross see courts as an independent source of law; which at the same time is seen as ‘hardly persuasive’ (Ibid.). 152 Bernardt, supra note 140, at 13 and 18; Fastenrath, supra note 111, at 122. 153 W. Graf Vitzthum, in Vitzthum (ed.), Völkerrecht (2004), margin number 147, note 362, contradicts Bernhardt’s view that law creation is a necessary part of international judicial decisions, in that way that he claims that judges cannot be the origin of an independent new source. According to Vitzthum judicial decisions are mainly designed in order to

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Envisageant les sources formelles du droit comme les manières de création des règles juridiques ou, avec l’école de Duguit, comme les formes dans lesquelles le «droit objectif» se manifeste, est capté et transformé en droit positif, on pourrait trouver une telle conclusion [que la jurisprudence devrait être rangée comme une troisième source de droit à côté des conventions et de la coutume]154 inéluctable. Cependant, la juste connaissance de l’activité créatrice du juge ne nous paraît pas conduire nécessairement à cette conclusion.155 Even if international jurisprudence is not seen as a fully formal source of international law, there seem to be various ways in which the creative part of the decision-making process can be connected with the interpretative aspects of the judge’s work.156 This view is at least brought forward by Judge Jennings when he states that: [e]ven where a court creates law in the sense of developing, adapting, modifying, filling gaps, interpreting, or even branching out in a new direction, the decision must be seen to emanate reasonably and logically from existing and previously ascertainable law. A court has no purely legislative competence.157 As a consequence, it appears that the classical categorisation of sources into ‘formal sources’, ‘material sources’, and ‘evidence’ of international law cannot be applied to the special category of international judicial decisions without modification. This again renders further proof for the fact that any categorisation reaches its limit when confronted with reality and might need to be adjusted accordingly.158 It is inevitable that we are faced with situations of doubt where either the category as such will be stretched to a certain degree,

154 155 156 157 158

prove a practice which is seen by States as legally binding; however, he nevertheless acknowledges that the borders are in a flow and that the impact of especially ICLdecisions as precedent cannot be underestimated. A similar view can be found in Hobe and Kimminich, supra note 149, at 192. Cf. Sørensen, supra note 25, at 155. Ibid., at 156. Along the same lines: U. Fastenrath, Lücken im Völkerrecht—Zu Rechtscharakter, Quellen, Systemzusammenhang, Methodenlehre und Funktionen des Völkerrecht (1991), at 120. R. Jennings, ‘The Judicial Function and the Rule of Law’, in International Law at the Time of Its Codification, Essays in Honour of Roberto Ago (1987), Vol. III, at 145. With regard to the problem of the necessity of categories in order to establish a structure, cf. M. Bos, supra note 151, at 9, 18 et seq.

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or we do not render justice to the legal phenomenon which we want to categorise. However, this does not mean that a categorisation as such is inconclusive from the outset; instead, traditional categories should continue to be applied, albeit with a certain degree of flexibility. This has also been acknowledged by Simma/Paulus who in the context of war crimes in non-international armed conflict came to the conclusion that the traditional sources of international law have shown enough flexibility in order to accommodate new developments in that field of international law.159 Consequently, the solution with regard to categorising international judicial decisions seems to be to proceed in a general graduation of in-between steps. Even if one would agree to accept international judicial decisions as a ‘full’ source of international law alongside the traditional three sources, this does arguably not exclude the possibility of measuring the authoritative value of each source in a differentiated manner.160 In light of the eminent importance of international jurisprudence, it is important to find a connotation which describes this special character of judicial decisions as almost reaching the level of ‘formal’ sources. A terminology which seems well-fitted to express this is the term ‘quasi-formal’ source, which indicates that while judicial decisions are not on the same level as international conventions and  customary international law, on a factual level they have almost the same impact.161 4.3 Judicial Decisions as a ‘Quasi-formal’ Source Already in the late 1950s, Fitzmaurice held, in the context of analysing the value of international judicial decisions, that such decisions differ substantially from other material sources, such as, for example, the opinion of academics, especially since judicial decisions deal with concrete and actual situations—a factor that is usually lacking in the context of other material sources.162 According to him, this would be supported by the fact that counsel before international courts and tribunals will cite precedents on the assumption that the current case will be decided along the lines of the previous case, if it is not proven that the original decision was obviously wrong or based on substantially different facts.163 For similar reasons, the respective judges would also take the view that they are obliged to take the precedent into account and 159 Simma and Paulus, supra note 4, at 316. 160 Fastenrath, supra note 111, at 121. 161 Cf. especially Fitzmaurice, supra note 111, at 172–3. 162 Fitzmaurice, supra note 111, at 172. 163 Ibid.

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only deviate for serious reasons.164 Fitzmaurice concluded that judicial decisions therefore had to be seen as a ‘quasi-formal’ source or should be described as ‘formally material’.165 Ross characterises judicial decisions in a similar fashion in stating that, if one were to carry out a realistic evaluation of the existing law, one would find that it is always linked to certain ‘social-psychological’ facts.166 He does not expressly mention that judicial decisions could be such facts but stresses that for the development and creation of socio-psychological facts the implementation of the law through courts and tribunals is crucial.167 Another formulation is being used by Jaenicke who believes that a legal opinion which is contained in judicial decisions has a ‘quasi-normative’ impact, which should be equaled with a legally binding provision.168 All this underlines the importance and unique nature of judicial decisions within the traditional doctrine of sources of international law. Jurisprudence as the Catalyst and Starting Point for the Development of Customary International Law While the categorisation of judicial decisions as a quasi-formal source seems to adduce a rather realistic approach to the evaluation of jurisprudence in international law, one needs to be mindful that this terminology has not been picked up by many commentators after Fitzmaurice had coined the term. But there are other possibilities to describe the value of judicial decisions even more adequately. As already mentioned, the icj, when dealing with the relationship between international conventions and customary international law in the North Sea Continental Shelf cases, stated that international treaties can either confirm, or ‘crystallize’,169 customary law, or—under certain conditions—can be even the starting point for a new rule of law ‘of its own impact’.170 Having assessed the role of international judicial decisions with regard to the development of new international criminal law, one could ask the question whether these processes cannot be applied in an analogous fashion to the relationship between jurisprudence and new (customary) international law. 4.4

164 Ibid. 165 Ibid., at 173. 166 Ross, supra note 93, at 81. 167 Ibid. 168 G. Jaenicke, ‘Völkerrechtsquellen’, in K. Strupp and H.-J. Schlochauer, Wörterbuch des Völkerrechts, Bd. III (1962), 772. 169 See North Sea Continental Shelf cases Judgment, supra note 37. For a more detailed discussion, M. Mendelson, 272 RdC (1998), at 303 et seq. 170 North Sea Continental Shelf cases Judgment, supra note 37, at 41, para. 71.

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The necessity for this analogy comes from the conclusion that there obviously is a discrepancy between the dogmatic approach to judicial decisions on the one hand, and their practical value on the other. As regards the first category of confirming existing international law, such a function is allocated to judicial decisions in Article 38(1)(d) of the icj Statute.171 But also the category of ‘crystallizing’ (customary) international law which has not yet been fully accepted before a particular judgement has been rendered seems to describe exactly the process which can often be observed when international criminal tribunals make statements in an area of law which has not yet been completely developed. In this regard, the tribunal has the function of a ‘catalyst’, adding the final step to a process which had started already previously, and is being completed by the decision of the tribunal. One fitting example might be the finding of the icty Appeals Chamber in the 1995 Tadić Decision on Jurisdiction in which it listed the war crimes applicable in noninternational armed conflicts. Finally, the third category mentioned by the icj in the North Sea Continental Shelf cases—the creation of a rule ‘of its own impact’—appears to be transferable to the situation of judicial decisions and their impact on international law when subsequent State practice is actually confirming the newly stated rule. It is obvious that this last category of influence of international judicial decisions on international law is not brought easily into coherence with the prevailing view on the sources of international law, despite the phenomenon that the factual impact of judicial decisions could often be described that way in reality. Although judicial decisions—in contrast to customary international law and international conventions—do not represent a formal source of law and States are not directly participating in the decision-making process, their impact often comes close to a codification of international law, which normally would have been achieved through international treaties. The common denominator here is the fact that the ‘codified’ rule is written down by either the treaty or the judicial decision itself. Especially in the area of customary international law, States and other actors who are seeking written evidence for the existence of a certain rule will be grateful if they can rely on an authentic source where the rule has not been previously written down. One of the most prominent examples outside of judicial decisions in the area of international humanitarian law is the famous customary law study of the icrc,172 which heavily relies on icty and ictr jurisprudence. Therefore, an analogous application of the North Sea 171 Cf. Verdross and Simma, supra note 111, at 619. 172 J.-M. Henckaerts and L. Doswald-Beck, icrc Customary International Humanitarian Law (2005).

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Continental Shelf criteria with regard to the impact of judicial decisions on (customary) international law seems like a logical step. 5 Conclusion We can conclude that the value of decisions of international criminal tribunals goes beyond a mere ‘subsidiary’ means. Rather, looking especially at the impact of the icty jurisprudence on the development of international criminal and international humanitarian law it transpires that the factual importance is much higher than that which is envisaged by Article 38 of the icj Statute. With regard to the traditional categories of ‘formal’ and ‘material’ sources as well as ‘evidence’ of international law, it seems to be called for to handle these concepts more flexibly in order to accommodate the growing importance of decisions of international courts and tribunals. That this new development took its departure especially from the jurisprudence of the icty and ictr was maybe not only logical but also necessary: before the background of thousands of ­victims of armed conflicts and mass atrocities, it seems that the international criminal tribunals took up a task to become the pacemaker and also ‘­law-maker’ of international criminal justice. International criminal tribunals, and since 2002 the International Criminal Court, are the prime engines for fostering and increasing the protection level for victims of international crimes. Seen from that perspective, the law-making power of judges in their decisions are not only part of the great achievements in enforcing what the Geneva Conventions codified back in 1949, but also moved forward the development of an emerging system of protecting civilians through international criminal justice in a steady and coherent manner.

chapter 12

The African Court on Human and Peoples’ Rights and the Use of Provisional Measures for the Protection of the Civilian Population in Armed Conflict Situations Frédéric Bostedt* When Joakim and I were about to part ways in The Hague, we had a long discussion in our shared office at the International Criminal Tribunal for the former Yugoslavia (icty) on what we would do next. After several years of working at the icty and passionate discussions on questions related to international humanitarian law and international criminal law, we were both keen on doing something else. I told him that I would take up a job as a lawyer at the European Court of Human Rights in Strasbourg, and suggested he apply for the same job. Joakim said that sitting in a glass palace in Strasbourg was not a way of protecting the human rights of people in need. He agreed that human rights courts had an important role to play in the general protection of human rights. But when it came to actually protecting human rights, the courts would inherently only come into play too late once the rights had been infringed, often the only remedy available being compensation, and this only after many years of proceedings before the court. So he told me that for him it was about time to make a radical change and leave the theoretical side of the law, and he saw his future in practicing humanitarian and human rights law in ‘the field’, preferably working for the United Nations or another international organisation in situations of armed conflict or post-conflict. Joakim’s observation on the limitations of human rights courts was mostly correct. But these courts have one tool available in their arsenal of legal remedies which may be able to protect people even before the violation had taken place: interim and provisional measures. Interim measures and provisional measures are two terms for the same concept. In grave and urgent situations, the court instructs the State party to take protective measures to prevent irreparable harm to the rights of persons in need. * Dr jur. (Universität Regensburg, Germany), LL.M. (Victoria University, New Zealand), Master Droits de l’Homme (Université de Strasbourg, France). The usual caveats apply. I would like to thank Claire for her patience and my father for the retreat in Sweden. Dedicated to the Champ.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004236592_014

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Many books have been specifically dedicated to the concept of interim and provisional measures in international law in general,1 and in the realm of human rights systems in particular.2 However, one court has been widely ignored in these treatises due to the fact that it came into existence only recently: the African Court on Human and Peoples’ Rights (the African Court). In its very first order on provisional measures in 2011, the African Court had a particularly difficult situation before it, namely the internal armed conflict in Libya. With its order on provisional measures in this case (the Libya case), the African Court sought to protect the Libyan population demonstrating against the regime of Colonel Muamar Gadaffi.3 The present chapter takes the Libya case as a starting point to analyse how and under what circumstances provisional measures could be used to protect civilians in the case of an armed conflict or similar emergency situations. The chapter will first put the legal framework of the African Court and its provisional measures into the broader context of the other courts and tribunals also  using provisional measures (1). Interim and provisional measures have been used by human rights courts and commissions in different contexts; in addition to the example of the Libya case in 2011, some further examples are 1 In particular with respect to provisional measures before the International Court of Justice and the International Tribunal for the Law of the Sea, see here a list of important books written on the subject (many more book chapters and journal articles exist): K. Oellers-Frahm, Die einstweilige Anordnung in der internationalen Gerichtsbarkeit, Beiträge zum ausländischen öffentlichen Recht und Völkerrecht, Band 66 (1975); J.B. Elkind, Interim Protection: A Functional Approach (1981); J. Sztucki, Interim Measures in the Hague Court: An Attempt at a Scrutiny (1983); R. Bernhardt (ed.), Interim Measures Indicated by International Courts (1994); P. Gaeta, La Giustizia Cautelare nel Diritto Internazionale (2000); S. Gonzáles Napolitano, Las Medidas Provisionales en Derecho Internacional ante las Cortes y Tribunales Internacionales (2004); S. Rosenne, Provisional Measures in International Law – The International Court of Justice and the International Tribunal for the Law of the Sea (2005). For very early treatises on this subject concerning the Permanent Court of Justice, see E. Dumbauld, Interim Measures of Protection in International Controversies (1932); H.G. Niemeyer, Einstweilige Verfügungen des Weltgerichtshofs, ihr Wesen und ihre Grenzen, Frankfurter Abhandlungen zum modernen Völkerrecht, Heft 28 (1932); A. Pütz, Der Erlass von einstweiligen Verfügungen durch den Ständigen Internationalen Gerichtshof im Haag (1939). 2 See, for example, G. Cohen-Jonathan and J.F. Flauss (eds), Mesures conservatoires et droits fondamentaux – séminaire organisé le 11 juillet 2002 (2005); F. Bostedt, Vorsorgliche und einstweilige Maßnahmen zum Schutz der Menschenrechte (2009); E. Rieter, Preventing Irreparable Harm – Provisional Measures in International Human Rights Adjudication (2010). 3  African Court, In the matter of African Commission on Human and Peoples’ Rights vs. Great Socialist People’s Libyan Arab Jamahiriya, Appl. No. 4/2011, Order (provisional measures), 25 March 2011 (‘Provisional measure Order in the Libya case’).

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provided when such measures were adopted in armed conflict or similar ­situations (2). Several formal aspects of requesting and granting provisional measures will be addressed; these aspects should not to be neglected because, since speediness is of essence when protecting individuals in armed conflict situation, only a quick and responsive procedure can lead to an efficient use of  provisional measures (3). By analysing the existing jurisprudence of ­inter­national courts, the substantive requirements of provisional measures (i.e. urgency, extreme gravity, irreparable harm) and their scope (i.e. the rights that may be protected in a provisional measure order) are set out, and how these requirements could be addressed in an armed conflict situation is explored (4). In order to address the question of whether interim and provisional measures can be seen as an effective tool for protecting human rights, the issue of whether such measures may in fact contain binding obligations under international law is analysed (5). The chapter will finally offer some ­concluding remarks on whether provisional measures are an effective tool for protecting individuals in an armed conflict situation (6). 1

Provisional Measures Issued by Human Rights Courts

1.1 The African Court on Human and Peoples’ Rights and the African Commission The African Court’s existence and mandate is based on two treaties, the African Charter on Human and Peoples’ Rights (African Charter) adopted in 1981,4 and the Protocol thereto on the Establishment of an African Court on Human and Peoples’ Rights (African Court Protocol), adopted in 1998 and which came into force in 2004.5 The African Court eventually took up its work when the eleven judges were elected in 2006.6 The Court has its permanent seat in Arusha, Tanzania. All States of the African Union are members of the African Charter but only 26 States7 have ratified the African Court Protocol accepting 4 African [Banjul] Charter on Human and Peoples’ Rights, adopted 27 June 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 ilm 58 (1982), entered into force 21 October 1986. 5 Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, OAU Doc. OAU/LEG/EXP/AFCHPR/PROT (III) (1998) (‘African Court Protocol’). 6 For the coming into existence of the African Court, see A.P. Van der Mei, ‘The New African Court on Human and Peoples’ Rights: Towards an Effective Human Rights Protection Mechanism for Africa?’, (2005) 18 ljil 113–129. 7 Algeria, Burkina Faso, Burundi, Cote d’Ivoire, Comoros, Congo, Gabon, Gambia, Ghana, Kenya, Libya, Lesotho, Mali, Malawi, Mozambique, Mauritania, Mauritius, Nigeria, Niger,

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the jurisdiction of the African Court. Cases can be brought to the African Court by State parties or by the African Commission.8 Individuals (and Non-Governmental Organisations with observer status before the African Commission) are only entitled to institute cases directly before the African Court if the State party concerned has made a declaration under Article 34 of the African Court Protocol,9 and only seven States have made such a declaration.10 For cases against all other states the intervention of the African Commission is necessary, which can refer individual cases to the Court. As is the case for any international court, it took some time before the African Court began to deal with its first application and started to issue decisions and judgements.11 As of August 2014, the African Court has received 27 applications and has finalised 23 cases; five cases were pending (as well as one request for an advisory opinion).12 The African Court is not the only supervisory organ in the African human rights system and, relevant for the present chapter, not the only organ which can issue provisional measures. The mandate of the African Court is to complement and reinforce the functions of the African Commission on Human Rights (African Commission) which was envisaged in the African Charter from the outset.13 The African Commission is a quasi-judicial body charged with monitoring the implementation of the African Charter and is mandated ‘to promote human and peoples’ rights and ensure their protection in Africa’.14 Although the African Commission was dismissed by critics as a ‘toothless bulldog’ that was never ‘created to bite’15 due to its notorious lack of funding and Rwanda, South Africa, Senegal, Tanzania, Togo, Tunisia and Uganda (as of February 2014). Cape Verde and Eritrea have not signed the African Court Protocol. 8  See African Charter, Article 5(1): ‘The following are entitled to submit cases to the Court a. The Commission; b. The State Party which has lodged a complaint to the Commission; c. The State Party against which the complaint has been lodged at the Commission; d. The State Party whose citizen is a victim of human rights violation; e. African Intergovernmental Organizations’. 9  African Charter, Article 5(3). 10 Burkina Faso, Malawi, Mali, Tanzania, Ghana, Rwanda, Cote d’Ivoire (as of February 2014). 11  The Court delivered its first judgment in 2009 following an application dated 11 August 2008 by Mr Michelot Yogogombaye against the Republic of Senegal. 12  Information taken from the homepage of the African Court under ‘Cases Status’, ­available at www.african-court.org/en/index.php/about-the-court/brief-history/­40-cases -status/124-cases-status1 (last accessed 25 July 2014). 13 See Articles 2 and 8 of the African Court Protocol. 14  African Charter, Article 30. 15 Nsongurua J. Udombana, ‘Toward the African Court on Human and Peoples’ Rights: Better Late Than Never’, (2000) 3 The Yale Human Rights and Development Journal 45, 64.

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inbuilt structural deficiencies aimed at shielding state sovereignty,16 its power should not be underestimated: for example, the African Commission has attempted to make inroads into the principle of state sovereignty when advancing that non-compliance with its interim measures must be considered as a violation of the African Charter, an issue which will be dealt with below.17 1.2 Competence to Issue Provisional Measures in the African Human Rights System According to Article 27(2) of the African Court Protocol, ‘[i]n cases of extreme gravity and urgency, and when necessary to avoid irreparable harm to persons, the [African] Court shall adopt such provisional measures as it deems necessary’. This provision was modelled on Article 63(2)18 of the American Convention on Human Rights (American Convention).19 As can be seen from the wording of the provision, provisional measures cannot be issued whenever it pleases the African Court. The situation must be extremely grave and urgent and there must be a risk of irreparable harm20 to persons. Since these requirements are also stipulated in the provision relevant for the Inter-American Court of Human Rights, its case law on these requirements should be of much interest to the African Court, and they are, together with the relevant case law of other courts, set out below.21 Once these requirements are fulfilled, the African Court enjoys a wide margin of discretion as to which measures should be adopted. This becomes clear when regarding Rule 51 of the Rule of the Court, which stipulates that the African Court may See also Gino J. Naldi, ‘Interim Measures of Protection in the African System for the Protection of Human and Peoples’ Rights’, 2 African hrlj (2002), 1, at 3, footnote 7; Evelyn A. Ankumah, The African Commission on Human and Peoples’ Rights – Practice and Procedures (1996), 179–98. 16  See R. Wright, ‘Finding an Impetus for Institutional Change at the African Court of Human and Peoples’ Rights’, (2006) 24 Berkeley Journal of International Law 463, 472. 17  See infra, Section 5. 18 Article 63(2) of the American Convention reads in its first sentence: ‘In cases of extreme gravity and urgency, and when necessary to avoid irreparable damage to persons, the [Inter-American] Court shall adopt such provisional measures as it deems pertinent in matters it has under consideration’. 19  See Y. Haeck and C. Burbano Herrera, ‘Interim Measures in the case law of the European Court of Human Rights’, (2003) 21(4) Netherlands qhr, 625, 627, footnote 3; G.J. Naldi, ‘Interim Measures of Protection in the African System for the Protection of Human and Peoples’ Rights’, (2002) 2 African hrlj 1, 9, footnote 35. 20 In contrast to Article 63(2) of the American Convention on Human Rights, the African provision speaks of ‘harm’ and not of ‘damage’. 21  See infra, Section 4.

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prescribe to the parties ‘any interim measure’ which it deems necessary to adopt ‘in the interest of the parties or of justice’.22 Although the African Court has only recently left the fledgling status of a newly established regional court, it may already be replaced in its current form by another court. It is planned that the African Court on Human and Peoples’ Rights and the Court of Justice of the African Union23 be merged into a single court, which will be named ‘The African Court of Justice and Human Rights’.24 This merged court, which is envisaged to dissolve the African Court on Human and Peoples’ Rights one year after the protocol on the new court has come into force,25 will also be empowered to issue provisional measures. The wording of Article 35(1) of the protocol establishing the new court is, however, quite different from Article 27(2) of the African Court Protocol: ‘The Court shall have the power, on its own motion or on application by the parties, to indicate, if it considers that circumstances so require any provisional measures which ought to be taken to preserve the respective rights of the parties’. It does not refer to the strict requirements of extreme gravity and urgency and the risk of irreparable harm. This provision is taken from Article 22 of the Protocol of the Court of Justice of the African Union26 and is very similar to Article 41 of the Statute of the International Court of Justice (icj).27 This new provision will not be addressed further in this chapter since it is unclear when, if at all, the protocol on the merged court will come into force: it requires 15 State ratifications, and as of June 2014, only three States have ratified the protocol,28 the last ratification dating back to 2010. As indicated above, the African Commission is also empowered to request provisional measures. According to Rule 98 of its Rules of Procedure, at any 22  African Court of Human and Peoples’ Rights, Rules of Court, 2 June 2010, Rule 51(1). 23 Established by the Constitutive Act of the African Union and the Protocol of the Court of Justice of the African Union, adopted by the Assembly of the African Union on 11 July 2003. 24  Protocol on the Statute of the African Court of Justice and Human Rights, adopted at the au Summit in Sharm El-Sheikh, Egypt, on 1 July 2008. See Assembly of the African Union, Decisions Assembly/AU/Dec.45 (III) and Assembly/AU/Dec.83 (V), adopted respectively at its Third (6–8 July 2004, Addis Ababa, Ethiopia) and Fifth (4–5 July 2005, Sirte, Libya) Ordinary Sessions. 25  Protocol on the Statute of the African Court of Justice and Human Rights, Article 7. 26 Protocol of the Court of Justice of the African Union, adopted in Maputo, Mozambique, on 11 July 2003, which came into force on 11 February 2009. 27  Article 41 of the icj Statute reads: ‘The Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party’. 28  Libya, Mali, Burkina Faso. 22 States have signed this protocol (as of June 2014).

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time after the receipt of a Communication and before a determination on the merits, the Commission may, on its initiative or at the request of a party to the Communication, request that the State concerned adopt provisional measures to prevent irreparable harm to the victim or victims of the alleged violation as urgently as the situation demands.29 The African Commission’s interim measures are kept confidential until the Assembly of the Head of States authorises the publication of the Annual Report of the African Commission in which decisions are reported.30 The African Commission appears not to have dealt with many interim measures; approximately 21 (out of 28 requests) over a 20 year period were granted.31 1.3 Other (Human Rights) Courts and Commissions Competent to Issue Provisional Measures Other human rights courts and commissions are also competent to issue provisional measures. Since the African Court is a relatively new institution and has not yet issued many provisional measures, it seems appropriate to take into account the decisions of other international adjudicators—in particular the other two regional human rights courts, the Inter-American Court of Human Rights and the European Court of human rights—in order to ascertain under what circumstances and according to which requirements they have applied provisional measures. Unlike in the African system, the European human rights system does not include provisional measures in the legal instrument ratified by the State parties, i.e., the European Convention on Human Rights; rather, provisional measures are included in the Rules of Court of the European Court of Human Rights. According to Article 39 of the Rules of Court (‘Rule 39’), first paragraph, ‘[t]he Chamber or, where appropriate, its President may, at the request of a party or of any other person concerned, or of its own motion, indicate to the

29

Rule 98, Rules of Procedure of the African Commission on Human and Peoples’ Rights of 2010, approved by the African Commission on Human and Peoples’ Rights during its 47th ordinary session held in Banjul (The Gambia) from 12 to 26 May 2010 and entered into force on 18 August 2010, available at www.achpr.org/instruments/rules-of-procedure-2010 (last accessed June 2014). 30 See Article 59(1) of the African Charter: ‘All measures taken within the provisions of the present Charter shall remain confidential until such a time as the Assembly of Heads of State and Government shall otherwise decide’. 31  See C. Burbano-Herrera and F. Viljoen, ‘Interim Measures before the Inter-American and African Human Rights Commissions: Strengths and Weaknesses’, (2014) 30 ius Gentium 157, 165–6 (analysing the period from 1 January 1993 to 31 December 2012).

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parties any interim measure which it considers should be adopted in the interests of the parties or of the proper conduct of the proceedings before it’. As already mentioned above, the Inter-American Court of Human Rights is empowered to order provisional measures under Article 63(2), first sentence, of the American Convention, a provision quite similar to the one of the African Court. The other supervisory organ in the Americas, the InterAmerican Commission on Human Rights, may request provisional measures from the Inter-American Court, even if the case is not yet pending before the court, pursuant to Article 63(2), second sentence, of the American Convention. The American Convention does not, however, empower the Inter-American Commission to issue such measures. Yet, in Article 25 of its Rules of Procedure,32 the Inter-American Commission has given itself the power to adopt ‘precautionary measures’ when there are ‘serious and urgent situations presenting a risk of irreparable harm to persons or to the subject matter of a pending petition or case before the organs of the inter-American system’. The Human Rights Committee, which monitors the implementation of the International Covenant on Civil and Political Rights (the iccpr) by its State parties, is competent under the First Optional Protocol to the iccpr to examine individual complaints with regard to alleged violations of the Covenant by States parties. Under Rule 92 of the Rules of Procedure, the Human Rights Committee is competent to issue interim measures to the parties.33 Although the International Court of Justice is not a human rights court, it is relevant for the present chapter since it has issued provisional measures in armed conflict cases and the provisions on provisional measures from other courts are, at least partly, modelled on the icj’s provision.34 Article 41 of the icj

32

Rules of Procedure of the Inter-American Commission on Human Rights, approved by the Commission at its 137th regular period of sessions, held from October 28 to November 13, 2009, and modified on September 2, 2011 and during the 147th Regular Period of Sessions, held from 8 to 22 March 2013, for entry into force on 1 August 2013, available at www.oas.org/en/iachr/mandate/Basics/rulesiachr.asp, last visited June 2014. 33 Rules of procedure of the Human Rights Committee, CCPR/C/3/Rev.10, Rule 92: ‘The Committee may, prior to forwarding its Views on the communication to the State party concerned, inform that State of its Views as to whether interim measures may be desirable to avoid irreparable damage to the victim of the alleged violation. In doing so, the Committee shall inform the State party concerned that such expression of its Views on interim measures does not imply a determination on the merits of the communication’. 34  At least the provision of the Inter-American Court (on which later the African provision was modelled), see H. Gros Espiell, ‘El Procedimiento Contencioso Ante La Corte

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Statute reads: ‘The Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party’. 2 Use of Provisional Measures in Armed Conflict and Other Emergency Situations Provisional measures have been used, even if only sparingly, in armed conflict or similar situations to protect the civilian population and also in post-conflict situations in order to, for example, protect the victims of the conflict. Several of the cases in which regional and international courts and commissions have issued provisional measures are outlined below. 2.1 Africa As mentioned in the introduction, the African Court issued an order on provisional measures in 2011 for the purpose of protecting Libyans demonstrating against the regime of Colonel Muamar Gadaffi. The African Court was only competent to do so because Libya is a signatory to the Charter and a party to the African Court Protocol.35 However, the demonstrators themselves could not directly apply for provisional measures before the African Court. Libya had (and still has) not made a declaration under Article 34(6) allowing individuals and non-governmental organisations to directly file petitions with the African Court. Consequently, Human Rights Watch, Interights, and an Egyptian ngo36 first turned to the African Commission, requesting provisional measures from the Commission and lodging a complaint against Libya.37 The African Commission subsequently instituted proceedings against Libya before the African Court for ‘serious and massive violations of human rights guaranteed under the African Charter’ on 3 March 2011.38 Before the African Court, the African Commission alleged that following the detention of an opposition lawyer, peaceful demonstrations took place on the 16 February 2011 in the Eastern Libyan city of Benghazi, and on 19 February 2011 Interamericana de Derechos Humanos’, in Inter-American Institute of Human Rights, La Corte Interamericana de Derechos Humanos – estudios y documentos (1985), at 83. 35  Provisional measure Order in the Libya case, supra note 3, at 17. 36  Egyptian Initiative for Personal Rights, eipr, see http://eipr.org/en. 37 See A. Dolidze, ‘African Court on Human and Peoples’ Rights – Response to the Situation in Libya’ (26 July 2011) 15(20) Insights. 38  Provisional measure Order in the Libya case, supra note 3.

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further demonstrations started in Benghazi, AI Baida, Ajdabiya, Zayiwa, and Derna. These demonstrations were violently suppressed by security forces which opened fire at random on the demonstrators killing and injuring many people. According to the hospital sources, they received individuals who had died or been injured with bullet wounds in the chest, neck, and head. The African Commission added that Libyan security forces engaged in excessive use of heavy weapons and machine guns against the population, including targeted aerial bombardment and all types of attacks.39 In its provisional measure order of 25 March 2011, the African Court ordered that Libya ‘must immediately refrain from any action that would result in loss of life or violation of physical integrity of persons, which could be a breach of the provisions of the Charter or of other international human rights instruments to which it is a party’.40 The African Court also instructed Libya to report back to the Court within a period of fifteen days on the measures taken to implement the order.41 This order was issued during an international effort to address the conflict in Libya, in particular with actions taken by the un Security Council and the icc Prosecutor,42 as well as the African Union’s Peace and Security Council and the Arab League.43 Another provisional measure related to an armed conflict was granted by the African Commission in order to protect several victims of the armed conflict in Djibouti in 1994.44 In this case a Djiboutian ngo had alleged a series of human rights abuses committed by government troops against members of the Afar ethnic group. They alleged attacks against unarmed civilians who were not participants in the fighting between the Djiboutian armed forces and the rebel movement, Front pour la Restauration de l’Unité et de la Démocratie. The ngo reported extrajudicial executions, torture, and rape and specifically 39  Ibid., at 2. 40  Ibid., at 25. 41  Ibid. 42 On February 26, 2011, the United Nations Security Council decided to refer the situation in Libya to the icc. On March 3, 2011, the icc Prosecutor announced that he would open an investigation. On May 16, 2011, he requested arrest warrants for Muammar Gaddafi, his son Saif Al-Islam, and Abdullah Al-Sanussi for crimes against humanity. On June 26, 2011, Pre-Trial Chamber I granted the Prosecutor’s request and issued the arrest warrants for the three persons. The case against Muammar Gaddafi was terminated on 22 November 2011, following his death. For relevant documents to this case, see www.icc-cpi.int under icc 01/11 Situation in Libya. 43 See Provisional measure Order in the Libya case, supra note 3, at 21. 44  Association pour la Défense des Droits de l’Homme et des Libertés v. Djibouti, Communication 133/94 (2000) ahrlr 80 (achpr 2000) (‘Afar case’), para. 5.

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named 26 people who had been executed, jailed without trial, or tortured.45 The interim measure in this case seems to be the only one of the African Commission directly related to an armed conflict.46 2.2 Europe The European Court of Human Rights and the former European Commission on Human Rights have numerous times used their power to indicate interim measures in cases which related to war or internal conflict. It would be well beyond the scope of this article to describe the factual situations of these cases; indeed, others have done so in a very detailed manner.47 Interim measures have been used in internal conflicts or post-conflict situations on the territory of the member States, such as to halt the death penalty in Greece under the military junta while the complaint of the convicted person was pending before the (now defunct) European Human Rights Commission,48 to provide humane prison conditions to members of the Kurdistan Workers’ Party (pkk) in Turkey,49 to halt the extradition from Georgia to Russia of applicants of, inter alia, Chechen origin, who were accused by Russia of being terrorists, and to give them proper access to their lawyers.50 Interim measures were also issued when anti-communist demonstrations which took place in Romania in December 1989 (when the then Head of State, Nicolae Ceauşescu, was eventually deposed) were violently suppressed; the applicants complained about the very long duration of the investigation into these violent events, and the European Court requested Romania to issue certain documents related to the events to one of the applicants.51 In Europe, most of the interim measures which relate to armed conflict situations concern applicants who are about to be expulsed or extradited to a 45  Ibid., paras. 1 and 15. 46 Whether other interim measures were issued in armed conflict situations is unclear. The main reason for this is the—already mentioned—secrecy around the work of the African Commission. The interim measures in the Afar case is at least the only one mentioned under the subject ‘During time of military conflict’ in the African Human Rights Case Law Database of the Centre for Human Rights, University of Pretoria: www1.chr.up.ac.za/ index.php/browse-by-subject/538-interimprovisional-measures.html (last accessed 18 June 2014). 47 Y. Haeck and C. Burbano Herrera, ‘The Use of Interim Measures Issued by the European Court of Human Rights in Times of War or Internal Conflict’, in A. Buyse (ed.), Margins of Conflict – The echr and Transitions to and from Armed Conflict (2011), at 77. 48  Ibid., at 88. 49  Ibid., at 90. 50  Ibid., at 93. 51  Haeck and Burbano Herrera, supra note 47, at 115.

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State, in which an armed conflict or similar severe circumstances take place or had taken place. States are, under the Convention, in general free to decide who is to enter, reside, and stay on its territory. However, according to the consistent case law of the European Court, it would violate Article 2 or Article 3 of the Convention, if the person ran a real risk of being exposed to acts contrary to these articles in the receiving state.52 In this way, a member State to the Convention may then—indirectly—become responsible for acts of, for example, torture and inhumane treatment, which occur in fact outside its territory and jurisdiction. In these situations, the European Court has used its power to issue interim measures to halt the expulsion or extradition of the applicant. Not surprisingly, many cases involve a situation in which an armed conflict is ongoing in a non-member State, such as the Iraqi, Afghan, Sri Lankan, Somalian, and Darfur conflicts.53 The same reasoning was also used in post-conflict situations, in particular in relation to the armed conflict in the former Yugoslavia, when applicants feared to return to Kosovo or Bosnia-Herzegovina because of their ethnic origin or because of their membership in a minority group,54 or to Serbia and Montenegro because the applicant was a potential witness before the icty.55 Besides these individual complaint cases, the European Court recently issued interim measures in cases of armed conflicts between member States, namely in the cases of Russia vs. Georgia (no. 2) (appl. no. 38263/08) and Ukraine vs. Russia (appl. no. 20958/14). The first case concerned the war in the separatist regions of South Ossetia and Abkhazia in 2008.56 Georgia submitted that, in the course of indiscriminate and disproportionate attacks by Russian forces and/or by the separatist forces under their control, hundreds of civilians were injured, killed, detained, or went missing; thousands of civilians had their property and homes destroyed; and over 300,000 people were forced to leave Abkhazia and South Ossetia.57 On 11 August 2008, the Georgian Government requested the Court to indicate to the Government of the Russian Federation interim measures to the effect that the Russian Government should ‘refrain from taking any measures which may threaten the life or state of health of the civilian population and to 52  This case law goes back to the Soering case, see European Court of Human Rights, Case of Soering vs. The United Kingdom, appl. no. 14038/88, Judgment, 7 July 1989, at 81–91. 53  See Haeck and Burbano Herrera, supra note 47, at 99–105, and 107–9. 54 See ibid., at 116–7. 55  See ibid., at 118. 56  The case is currently pending before the Grand Chamber (as of July 2014). 57  See European Court of Human Rights, Georgia v. Russia (II) (appl. No. 38263/08), Decision of 13.12.2011, at 21.

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allow the Georgian emergency forces to carry out all the necessary measures in order to provide assistance to the remaining injured civilian population and soldiers via humanitarian corridor’.58 The European Court decided to apply Rule 39 of the Rules of Court (interim measures) considering that the current situation gave rise ‘to a real and continuing risk of serious violations of the Convention’ and adding that ‘[w]ith a view to preventing such violations and pursuant to Rule 39, the President calls upon both the High Contracting Parties concerned to comply with their engagements under the Convention particularly in respect of Articles 2 and 3 of the Convention’.59 Similarly, in the case Ukraine vs. Russia (appl. no. 20958/14), which concerned the conflict over the Crimea, the European Court considered that the situation gave rise to a continuing risk of serious violations of the European Convention, and decided to apply Rule 39 of the Rules of Court. The President of the Third Section of the Court called upon ‘both Contracting Parties concerned to refrain from taking any measures, in particular military actions, which might entail breaches of the Convention rights of the civilian population, including putting their life and health at risk, and to comply with their engagements under the Convention, notably in respect of Articles 2 (right to life) and 3 (prohibition of inhuman or degrading treatment)’.60

58

See European Court of Human Rights, ‘European Court of Human Rights grants request for interim measures’, Press release issued by the Registrar No. 581, 12.08.2008. 59  Ibid. 60 European Court of Human Rights, ‘Interim measure granted in inter-state case brought by Ukraine against Russia’, Press release issued by the Registrar No. 073 (2014), 13.03.2014. Two further inter-state complaints have been filed which relate to the events and in which interim measures were adopted. In Ukraine vs. Russia (II) (appl. no. 43800/14), an interim measure was requested by Ukraine concerning sixteen children and two teachers reportedly transferred from Ukraine to Russia. The Court decided to apply an interim measure under Rule 39 of the Rules of Court asking Russia to ensure respect for the Convention rights of the persons concerned and immediately return them to Ukraine. The interim measure was lifted when it was confirmed that the persons concerned have been returned to Ukraine. In Ukraine vs. Russia (III) (appl. no. 49537/14), an interim measure was requested by Ukraine concerning the detention of a son of a Ukrainian member of Parliament (Hayser Dzhemilov). Separately, an individual application (appl. no. 49522/14) was lodged against both Ukraine and Russia concerning the same subject-matter. On 10 July 2014 the Court applied Rule 39 of the Rules of Court and indicated to the Governments of Russia and Ukraine that they should ensure respect for the Convention rights of Hayser Dzhemilov including, in particular, respect for security of his person and his right to legal assistance. Information taken from echr, Press Unit, Factsheet – Armed conflicts, August 2014.

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2.3 Americas The Inter-American Human Rights Court and Commission have been confronted with massive human rights abuses, concerning a large number of persons. For a long time, the region had been characterised ‘by authoritarian regimes, mass atrocities, and violent human-rights violations, such as massacres in indigenous communities and prisons, as well as widespread forced disappearances of political dissidents’.61 The Inter-American Court and Commission have used provisional measures extensively and have, in order to adequately address large scale human rights violations, considerably expanded the scope of provisional measures.62 The following cases are examples of cases which concern armed conflicts. In the Peace Community of San Jose de Apartadó case, the Inter-American Court ordered Colombia to take provisional measures to protect the residents of a community that was being targeted for attempting to maintain its neutrality in the midst of civil conflict.63 The armed conflict situation in Colombia also gave rise to precautionary measures by the InterAmerican Commission, for example in 2005, when the Nasa people of the north of the Department of Cauca, and in particular their leaders, were targeted by acts of violence and threats from belligerents in the armed conflict taking place in that area and singled out by the Colombian army.64 The InterAmerican Commission also issued a provisional measure in relation to the persons transferred to Guantanamo during the us military operation in Afghanistan in 2001, requesting that the United States take the urgent measures necessary to have the legal status of the detainees determined by a competent tribunal.65 61

J.L. Cavallaro and S.E. Brewer, ‘Reevaluating Regional Human Rights Litigation in the Twenty-First Century: The Case of the Inter-American Court’, (2008) 102 ajil 768, 774. 62  See infra, Section 4.3. ‘Scope of Protection’. 63  Inter-American Court of Human Rights, Community of Peace of San José of Apartadó Case (Colombia), Order (Provisional Measures), 24 November 2000. 64  See iachr Annual Report 2005, Chapter III.C.1., para. 16. 65 Inter-American Commission of Human Rights, Detainees being held by the United States at Guantanamo Bay, Cuba v. United States of America, Precautionary measures, Order of 12 March 2002: ‘the Commission considers that precautionary measures are both appropriate and necessary in the present circumstances, in order to ensure that the legal status of each of the detainees is clarified and that they are afforded the legal protections commensurate with the status that they are found to possess, which may in no case fall below the minimum standards of non-derogable rights. On this basis, the Commission hereby requests that the United States take the urgent measures necessary to have the legal status of the detainees at Guantanamo Bay determined by a competent tribunal’. This measure was first issued in 2002 and extended in 2005 and again in December 2013 where the

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The Inter-American Commission also granted precautionary measures in post-conflict situations, for example, to protect a person who had received threats because of his representation of victims of the armed conflict in Colombia.66 In the context of the internal armed conflict in Guatemala, the Commission granted precautionary measures on behalf of Amílcar Méndez, a prominent human rights defender, after a co-worker who had worked on issues related to compensation for the victims of the internal armed conflict in the community of Chulumal in Chichicastenango, had been assassinated.67 In a different case, the Commission requested Guatemala to protect the life of persons who had worked as forensic anthropological experts in the disinterment of clandestine cemeteries containing the human remains of victims of Guatemala’s domestic armed conflict.68 2.4 International Court of Justice Although the icj is not a human rights court, it has had the opportunity to use its provisional measures to protect the civilian population living in conflict areas. This is because cases concerning territorial disputes before the Court are often accompanied by an armed conflict between the two States concerned. For example, in the case concerning the frontier dispute between Burkina Faso and the Republic of Mali, the Chamber of the Court constituted to deal with this case asked the Governments of the parties to withdraw their armed forces, continue to observe the ceasefire, and to avoid any act likely to aggravate or extend the dispute.69 Similarly, in the case involving Cameroon and Nigeria, between which an armed conflict had broken out because of a dispute over the Bakassi Peninsula, the Court held that both parties should ensure that no action of any kind, and particularly no action by their armed forces, was taken which might prejudice the rights of the other in respect of whatever judgment the Court may render in the case, or which might aggravate or extend the Commission noted the persistence of situations of prolonged and indefinite detention, and allegations of widespread abuse and mistreatment, including unnecessary and humiliating searches, the force feeding of detainees who have chosen to participate in a hunger strike, and the increasing segregation and isolation of detainees. Inter-American Commission, ‘Extension of pm 259/13 (2013)’, available at www.oas.org/en/iachr/pdl/ decisions/GuantanamoMC.asp#23jul (last accessed 17. April 2014). 66 See ‘pm 117/08 Hugo Antonio Comariza Rodriguez’, reported in iachr Annual Report 2008, Chapter III.C.1. 67  iachr Annual Report 2003, Chapter III.C.1., para. 49. 68  iachr Annual Report 2002, Chapter III.C.1., para. 56. 69  icj, Case concerning the Frontier Dispute (Burkina Faso/Republic of Mali), Provisional Measures, Order of 10 January 1986.

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dispute before it, and that they should ensure that the presence of any armed forces in the Bakassi Peninsula did not extend beyond certain positions.70 Although the Court was in these cases only called upon to decide the precise line of the border between the States concerned, it made an order on provisional measures so as to protect the population. Through its provisional measures, it has made clear—as was said by former President of the icj Rosalyn Higgins—‘that disputes about frontiers are not just about lines on the ground but are about the safety and protection of the peoples who live there’.71 Another set of cases before the icj concerns acts of aggression. For example, the Democratic Republic of the Congo instituted proceedings against Uganda submitting that Uganda had perpetrated acts of armed aggression on its territory. The Court indicated in its provisional measure that both parties should refrain from any armed action which might prejudice the rights of the other party to the dispute, and further held that ‘[b]oth Parties must, forthwith, take all measures necessary to ensure full respect within the zone of conflict for fundamental human rights and for the applicable provisions of humanitarian law’.72 3

Procedural Issues Regarding Provisional Measures

Rapidity is a key feature of the procedure leading to the grant or refusal of a request for provisional measures. Since provisional measures are often requested when there is an imminent and irreparable risk of a human rights violation, the promptness of the court’s response is essential. A request for provisional measures would be futile if the procedure itself would be too slow and the court would intervene only once the violation has taken place. This is even more so in armed conflict situations where violations are often ongoing: only a quick and responsive procedure can lead to an efficient use of provisional measures. The procedural topics addressed in this section were chosen because the African Court has dealt with these issues in its provisional measures or is likely to address them in the future.73 They concern the following questions: 70

icj, Land and Maritime Boundary between Cameroon and Nigeria, Provisional Measures Order, 1996 icj Rep 13 (Mar. 15). 71  R. Higgins, ‘Interim Measures for the Protection of Human Rights’, (1997) 36 Columbia Journal of Transnational Law 91, 107. 72  Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Ugandu), Provisional Measures, Order of 1 July 2000, icj Reports 2000, 111. 73 Many more procedural topics may be worth addressing: Does the court have to first clarify  whether the main case is admissible? Do provisional measure orders have to be

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Who may request provisional measures (3.1)? Can the Court order provisional measures proprio motu (3.2)? Is there an obligation for the court to first establish whether it has jurisdiction over the case before it can issue provisional measures (3.3)? And finally, should the other party be heard on the allegations submitted by the requesting party (3.4)? 3.1 Right to Request Provisional Measures Article 27(2) of the African Court Protocol is silent on who can request provisional measures. But according to Rule 51(1) of the Rules of Court, a request for interim measures can be filed with the African Court by ‘a party’ or the ‘Commission’. The term ‘party’ is not defined in the Rules but it may be assumed that it means a party to the case. As has been noted above, individuals are only entitled to institute cases directly before the African Court if the State party concerned has made a declaration under Article 34 of the African Court Protocol.74 The lack of direct access of individuals to the African Court, limiting the role of the victim in the judicial system, is regrettable; as has been said by Judge Cançado Trindade, ‘[t]he essence of the international protection of human rights is the opposition of individual complainants to respondent states’.75 For the issue of provisional measures, the lack of direct access means that only individuals who have filed a complaint against a state having made the declaration under Article 34 of the African Court Protocol, have the right to file a request directly with the African Court. In complaints against States that have not made a declaration, only the Commission (and the State), but not the individual, is a party to the case. The Inter-American Court has faced a similar situation in respect of locus standi. In the past, an individual filed the complaint to the Inter-American Commission, and it was then the Commission which brought the case to the Inter-American Court and was a party to the proceedings, not the individual. Only the Inter-American Commission could therefore request provisional accompanied by a reasoned opinion? Which organ/person within the Court should deal with a provisional measure request and should prepare the order? Should there be a permanent body dealing with such requests, in particular when the Court only comes together for sessions and is thus not permanently sitting? Can provisional measures also be directed against other entities than the relevant State, e.g., against private persons or non-state actors? These questions warrant further discussion. 74 African Charter, Article 5(3). 75  Antonio A. Cançado Trindade, ‘The Consolidation of the Procedural Capacity of Individuals in the Evolution of the International Protection of Human Rights: Present State and Perspectives at the Turn of the Century’, (1998) 30 Columbia Human Rights Law Review 1, 7.

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measures from the Inter-American Court. However, when individuals addressed the Inter-American Court directly in cases pending before it in 2000, the Inter-American Court decided to entertain the complaints and issued provisional measures proprio motu.76 Probably as a reaction to this, the InterAmerican Court changed its Rules in 2003 to also allow individuals, notably the victims and their next of kin, to request provisional measures.77 Although the current provision omits the next of kin from the list of possible applicants, victims can still make applications for provisional measures.78 The African Court does not have a provision which extends the range of possible applicants for provisional measures, but there may be good reasons to follow the example of the Inter-American Court. Nevertheless, as long as individuals cannot themselves request provisional measures, it is up to the African Commission to fill this gap. Indeed, the African Commission is entitled to file a request for provisional measures in a case pending before the Court. It can do so if it has referred the case to the African Court and is thus a party to the case. But it can also request provisional measures if it is not a party to the case, e.g., in case an individual has filed a complaint directly with the Court. This can be derived from Rule 51(1) of the Rules of Court, where the ‘Commission’ is mentioned alongside a ‘party’: thus, whether or not the Commission is a party to the specific case before the African Court, it appears that it can always intervene and request provisional measures. It is debatable whether the African Commission may also apply for provisional measures from the African Court if the case is pending only before the African Commission but not yet before the African Court. The African 76

77

78

Since the Inter-American Court was not in session, the President of the court issued orders which were then later confirmed by the court, see Constitutional Court Case (Peru), Order of the President of the Inter-American Court, 7 April 2000; and Constitutional Court Case (Peru), Order of the Inter-American Court (Provisional Measures), 14 August 2000; see also Loayza Tamayo v. Peru, Order of the President of the Inter-American Court, 13 December 2000; and Loayza Tamayo v. Peru, Order of the Inter-American Court (Provisional Measures), 3 February 2001. In 2003, Article 25(5) of the Rules of Procedure of the Inter-American Court was introduced: ‘In contentious cases already submitted to the Court, the victims or alleged victims, their next of kin, or their duly accredited representatives, may present a request for provisional measures directly to the Court’. Article 26(3) Rules of Court of the Inter-American Court (2009 version): ‘In contentious cases already submitted to the Court, the victims or alleged victims or their duly accredited representatives, may present a request for provisional measures in relation to the cases directly to the Court’. The various versions of the Rules of Procedure can be found on the website of the University of Minnesota Human Rights Library under www1.umn .edu/humanrts/iachr/iachr.html (last accessed February 2014).

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Commission may have an interest in asking the Court to order a provisional measure and not to do it itself, since an order of a court may be seen to have more impact, particularly because the provisional measures ordered by the African Court are clearly binding on the State party, while it is not necessarily established that the provisional measures of the African Commission have the same effect.79 Some commentators appear to argue that the African Commission can request a provisional measures order from the African Court even if the former has not yet referred the case to the latter.80 This is similar to what is possible in the Inter-American system. There, the Inter-American Commission is empowered to request a provisional measure of the InterAmerican Court even if the case is not yet pending before it; this is explicitly provided for in the second sentence of Article 63(2) of the American Convention (provisional measures): ‘With respect to a case not yet submitted to the Court, it may act at the request of the Commission’. This provision, which is reiterated in the Rules of Procedure of the Inter-American Court,81 opens a partial jurisdiction for the Inter-American Court in so far as it empowers the Court to issue provisional measures even though it has not (yet) been seised by any party. As mentioned above, Article 27(2) of the African Court Protocol was modelled on Article 63(2) of the American Convention; yet, the text of the second sentence of Article 63(2) of the American Convention was not inserted in the African Court Protocol. As seen above, Rule 51(1) of the Rules of Court enables the African Commission to request provisional measures from the African Court, even if it is not a party. However, this does not necessarily mean that the African Commission can do so when the African Court is not yet seised of the case. The lack of a provision similar to Article 63(2), second sentence, of the American Convention in the African Court Protocol appears to speak against this possibility. Therefore, the African Commission would have to bring the case first before the African Court before it could ask the Court to issue provisional measures. The African Commission can refer the case before the Court basically in three situations: when it has taken a decision with respect to a communication and the State has not complied with the recommendations; when the State has not complied with the provisional measures of the 79  On this issue, see infra Section 5 ‘Provisional measures – binding obligations under international law’. 80  See N.J. Udombana, ‘Interim measures: A Comparative Study of Selected International Judicial Institutions’, (2003) 43(3) Indian jil 479, 512; Naldi, supra note 15, at 9; J.F. Flauss, ‘Notule sur les Mesures provisoires devant la Commission Africaine des Droits de l’Homme et des Peuples’, in Cohen-Jonathan and Flauss (eds), supra note 2, at 238. 81 Rules of Court of the Inter-American Court, Article 26(2).

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Commission; and when the situation concerns serious or massive violations of human rights as provided for under Article 58 of the African Charter.82 It is the latter procedure which allows the African Commission to refer a case related to an armed conflict situation to the Court; indeed, this is the procedure the Commission used to bring the Libya case before the Court in 2011.83 In the past, the Commission could not refer a case if there were not an individual or interstate complaint before it. However, it is envisaged in the interim Rules of the African Commission that there will be the possibility of referring cases of serious and massive human rights violations to the court even where ‘there is no complainant’;84 in such a situation, the African Commission may then also request provisional measures from the Court. In a situation of armed conflict, the right of the African Commission to file a request for provisional measures before the African Court seems essential. Only seven States have accepted that individuals can institute cases directly before the African Court and thus are entitled as parties to request provisional measures. Even in cases where the individual has filed a complaint directly with the Court, the individual may simply not be able to effectively communicate with the African Court because of, for example, the break-down of the basic infrastructure in the country. In such a case, the Commission can request provisional measures for the benefit of the individual party. In addition, the Commission may simply be better placed than an individual to gather the facts and evidence necessary for substantiating the request. 3.2 Competence to Issue Provisional Measures proprio motu According to Rule 51(1) of the Rules of Court, the African Court can decide on its own accord to issue provisional measures. The competence to issue provisional measures proprio motu is enshrined in many provisions of other international courts.85 The icj has given itself this competence in its Rules86 and used 82  See Rules of Procedure of the African Commission, Rules 84, 112, 118; see also D. Juma, ‘Provisional Measures under the African Human Rights System: The African Court’s Order against Libya’, 30 Wisconsin International Law Journal 344, 350–3. 83  See Provisional measure Order in the Libya case, supra note 3, first paragraph. 84 This was reported by Juma, see Juma, supra note 82, at 344, footnote 42, referring to Rule 124(2) of the Interim Rules of the African Commission on Human and Peoples’ Rights (July 15, 2011). 85  See Article 75(1) of the Rules of Court of the icj; Rule 39(1) of the Rules of Court of the European Court of Human Rights; Article 26(1) of the Rules of Procedure of the InterAmerican Court of Human Rights. 86 See Article 75(1) of the Rules of Court of the icj, this competence was introduced in the Rules of the Permanent Court of Justice in 1936, see LaGrand Case (f.r.g. v. u.s.),

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this competence for the first time in the LaGrand case when it ordered the United States to stop the execution of two death row inmates.87 The European Court of Human Rights can order interim measures ‘of its own motion’ (Rule 39(1) of the Rules of Court); it has, however, to the knowledge of the author, not indicated a provisional measure proprio motu when seised by an individual complaint.88 Conversely, the Inter-American Court of Human Rights has issued a provisional measure order on its own motion in its very first case and has also done so in subsequent cases.89 The African Court did not have to wait long for it to resort to this proprio motu competence: it did so in its very first provisional measures order in the Libya case. The African Commission in its application to the African Court did not request provisional measures—although the ngos who had filed a complaint to the African Commission had requested provisional measures from the African Commission.90 This case demonstrates the advantages of a proprio motu competence: it gives the court the power to order provisional measures irrespective of whether or not it has been seised by the parties of a request. Provisional Measures Order, 1999 icj Rep 3 (March 3), para. 21, and is based on the case law of the Permanent Court, see Legal Status of the South-Eastern Territory of Greenland (Nor. v. Den.), 1932 pcij Ser. A/B No. 48 (Aug. 3). 87 LaGrand Case, Provisional Measures, supra note 86, para. 21: ‘Whereas, under Article 75, paragraph 1, of the Rules of Court, the latter ‘may at any time decide to examine proprio motu whether the circumstances of the case require the indication of provisional measures which ought to be taken or complied with by any or all of the parties’; whereas a provision of this kind has substantially featured in the Rules of Court since 1936, and whereas, if the Court has not, to date, made use of the power conferred upon it by this provision, the latter appears nonetheless to be clearly established; whereas the Court may make use of this power, irrespective of whether or not it has been seised by the parties of a request for the indication of provisional measures; whereas in such a case it may, in the event of extreme urgency, proceed without holding oral hearings; and whereas it is for the Court to decide in each case if, in the light of the particular circumstances of the case, it should make use of the said power’. 88 The European Commission has done so in the inter-state case of Denmark, Norway, Sweden and the Netherlands vs. Greece (Appl. Nos. 3321/67, 3322/67, 3323/67), 5 November 1969, Yearbook of the European Convention on Human Rights, Vol. XIIbis, 1969, 361. 89 See Rules of Court of the Inter-American Court, Article 26(1): ‘…at the request of a party or on its own motion…’. See Velásquez Rodríguez et al. Case (Honduras), Order of the President of the Inter-American Court (Provisional Measures), 15 January 1988. Proprio motu orders are rather exceptional before the Inter-American Court, see A.A. Cançado Trindade, ‘Provisional measures of protection in the evolving case-law of the InterAmerican Court of Human Rights (1987–2002)’, (2003) 24 hrlj 162, 165. 90  Provisional measure Order in the Libya case, supra note 3, at 9–12.

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In addition, ordering provisional measures proprio motu gives the Court the power to go beyond what the parties have requested.91 More importantly, in the African context, the proprio motu competence ameliorates the fact that the African system does not allow an individual to apply for provisional measures when he or she is not a party before the African Court. As noted above, once the complaint is before the African Court, it is possible for the African Commission to request provisional measures for the individual. Individuals may, however, not be able to rely in each instance on the Commission acting for them, if only for the reason that the African Commission is understaffed and immersed in cases. For example and as mentioned above, the African Commission did not request provisional measures in the Libya case. The proprio motu power allows the African Court to intervene swiftly without having to wait for a request. It is also not limited to assess the allegations made in the request by the individual; rather, as an international court, the African Court may have access to more and in-depth information relevant to the situation. This may particularly be true in situations of armed conflict. Indeed, the African Court has used this power in a situation of armed conflict where it referred to information provided by international organisations, such as the Peace and Security Council of the African Union;92 the Secretary General of the Arab League;93 and the United Nations Security Council who had referred the situation to the Prosecutor of the International Criminal Court.94 91

The principle ne ultra petita is therefore not applicable. This is expressly provided in Article 75(2) of the icj Rules of Court: ‘When a request for provisional measures has been made, the Court may indicate measures that are in whole or in part other than those requested, or that ought to be taken or complied with by the party which has itself made the request’. Although the African Court cannot rely on a similar provision, the principle of ne ultra petita cannot hinder the African Court of going beyond the request for provisional measures: Even if the principle was to apply, the African Court could simply deny the request of the party and then issue a provisional measure proprio motu. 92 Which had ‘express[ed] deep concern with the situation in the Great Socialist People’s Libyan Arab Jamahiriya and strongly condemn[ed] the indiscriminate and excessive use of force and lethal weapons against peaceful protestors, in violation of human rights and International Humanitarian Law, which continues to contribute to the loss of human life and the destruction of property’, see Provisional measure Order in the Libya case, supra note 3, at 21. 93  The Secretary General of the Arab League had called for an end to violence, stating that the demands of Arab people for change were legitimate and the Arab League had suspended Libya, see ibid. 94 See United Nations Security Council Resolution 1970 (2011) adopted on 26 February 2011, which denounced ‘the gross and systematic violations of human rights, including, the

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It may well be that the individual would not be in the possession of such information or would not even have the knowledge that this information existed; it can at least be expected that the Court has quicker access to it. The competence to order provisional measures proprio motu should therefore be seen as an essential and necessary part of effective provisional measure proceedings, particularly valuable in politically sensitive cases concerning an internal armed conflict. In such situations, it may be unwise for the Court to solely rely on the submissions of the individual which may not be sufficiently adequate to show the dimension of the occurring human rights violations; also submissions of the State party, against which the complaint is directed, may be biased and not always be correct. The facts and reasons of the decisions may be corroborated by referring to information from international organisations which may be considered as being more objective. 3.3 Prima facie Jurisdiction As any court, the African Court will only act if the case falls under its jurisdiction. While on a national level, the question of whether a court has jurisdiction is often straight-forward and well-established, on an international plane, questions of jurisdiction may sometimes be difficult to answer. At the icj, the question of whether and, if yes, to what degree, the Court’s jurisdiction must be established when indicating provisional measures was conversely debated for a long time. Some judges argued in the past that jurisdiction must be certain;95 others pleaded for a ‘reasonably probable’,96 a ‘provisional conviction’,97 or a ‘prima facie’98 standard; and again others argued for a flexible approach, according to which jurisdiction was but one of the repression of peaceful demonstrators’, noting further that ‘the systematic attacks currently taking place in the Libyan Arab Jamahiriya against the civilian population may amount to crimes against humanity’, see Provisional measure Order in the Libya case, supra note 3, at 21. 95 See Judge Forster in his dissenting opinion attached to the case of Nuclear Tests (N.Z. v. Fr.), 1973 icj Rep 135 (June 22): ‘[t]he Court should above all have satisfied itself that it really had jurisdiction, and not have contented itself with a mere probability’ (emphasis in original); see also Judge Morozov in the case of Aegean Sea Continental Shelf (Greece v. Turk.), 1976 icj Rep 3 (Sept. 11). 96  Judges Winiarski and Badawi Pasha in a joint opinion in the case of Anglo-Iranian Oil Company (u.k. v. Iran), 1951 icj Rep 89 (July 5), at 96ff. 97  Judges Tarazi and Mosler in a joint opinion to the case Anglo-Iranian Oil Company (u.k. v. Iran), 1951 icj Rep 89 (July 5). 98  Judge Lauterpacht in his opinion to the case Interhandel (Switz. v. u.s.), 1957 icj Rep 105 (Oct. 24), at 118-119.

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elements to be taken into account when assessing the requirement of ‘circumstances’ within Article 41 of the icj Statute.99 It is now established jurisprudence that ‘on a request for provisional measures the Court need not, before indicating them, finally satisfy itself that it has jurisdiction on the merits of the case, and yet ought not to indicate such measures unless the provisions invoked by the Applicant appear, prima facie, to afford a basis on which the jurisdiction of the Court might be founded’.100 In the European system, the question of the jurisdiction has not had the same controversy. At least since the coming into force of Protocol 11, which gave the European Court of Human Rights automatic jurisdiction over all individual complaints, the question seems even less controversial. Whether this has been an issue before is difficult to establish since the European Court and the—now defunct—European Commission on Human Rights have never reasoned their decision on interim measures. The literature seems to agree that the European Court would not issue an interim measure if it clearly had no jurisdiction;101 this is not dissimilar to a prima facie standard.102 As for the Inter-American Court, it seems that it has not yet clarified which standard it uses for establishing jurisdiction. Commentators tend to be in favour of a prima facie evaluation of jurisdiction.103 99

M.H. Mendelson, ‘Interim Measures of Protection in Cases of Contested Jurisdiction’, 46 byil (1972–73), 259, 318–9; H.W.A. Thirlway, ‘The Indication of Provisional Measures by the International Court of Justice’, in Bernhardt (ed.), supra note 1, at 19–20. 100 See, inter alia, Nuclear Tests (Austr. v. Fr.), 1973 icj Rep 99 (June 22), para. 13; Nuclear Tests (N.Z. v. Fr.), 1973 icj Rep 135 (June 22), para. 14; in a 8 to 6 vote; see also United States Diplomatic and Consular Staff in Tehran (u.s. v. Iran), 1979 icj Rep 7 (Dec. 15), at 13; Military and Paramilitary Activities In and Against Nicaragua (Nicar. v. u.s.), 1984 icj Rep 169 (May 10), para. 24. The icj establishes its jurisdiction ratione personae and ratione materiae on a prima facie basis; see the first provisional measure in the Genocide case, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia Herzegovina v. Yugoslavia (Serbia and Montenegro)), 1993 icj Rep 19 (April 8), para. 14. 101 M.A. Eissen, ‘Les mesures provisoires dans la Convention européenne des droits de l’homme’, (1967) rgdip 558, 560; D. Spielmann, ‘Les mesures provisoires et les organes de protection prévus par la convention européenne des droits de l’homme’, in J. Velu (ed.), Présence du droit public et droits de l’homme (1992), 1293, 1295. 102  K. Oellers-Frahm, ‘Verbindlichkeit einstweiliger Maßnahmen: Der egmr vollzieht – endlich – die erforderliche Wende in seiner Rechtsprechung’, (2003) EuGRZ 689. 103 J.M. Pasqualucci, The Practice and Procedure of the Inter-American Court of Human Rights (2003), 308–9; J.M. Pasqualucci, ‘Provisional Measures in the Inter-American Human Rights System: An Innovative Development in International Law’, (1993) 26 The Vanderbilt Journal of Transnational Law 803, 826; R. Nieto Navia, ‘Las Medidas Provisionales en la

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The African Court has followed the jurisprudence of the icj. It clarified this issue in its first order on provisional measures when it held that, in dealing with an application for provisional measures, it had to ascertain that it had jurisdiction under Articles 3 and 5 of the African Court Protocol, but before ordering provisional measures, it need not finally satisfy itself that it had jurisdiction over the merits of the case; rather, it simply needed to satisfy itself, prima facie, that it had jurisdiction.104 Since provisional measures are requested in urgent situations, an in-depth analysis of jurisdiction may delay proceedings and contravene an efficient procedure. It is thus laudable that the establishment of jurisdiction on a prima facie basis has been considered sufficient. Nevertheless, if it is not immediately clear whether the court has jurisdiction, the court should provide a reasoned opinion for its decision to order provisional measures. This is important since a State would be reluctant to acquiesce to a provisional measure order of an international court, which does not have jurisdiction over the case. The lack of jurisdiction does not necessarily hinder a court from making general comments on a state’s obligation under international law. Indeed, the lack of jurisdiction does not mean that the state has no obligations under international law towards the individual. It may be worthwhile, in particular in an armed conflict situation, to remind States of their international obligations. The icj has done so in the Case Concerning Armed Activities on the Territory of the Congo (New Application: 2002) (Dem. Rep. Congo v. Rwanda) when it declared that ‘whether or not States accept the jurisdiction of the Court, they remain in any event responsible for acts attributable to them that violate international law’. In its provisional measure order, the icj ‘stress[ed] the necessity for the Parties to these proceedings to use their influence to prevent the repeated grave violations of human rights and international humanitarian law which have been observed even recently’.105 Whether such a non-binding declaration will have any influence on the behaviour of the warring parties towards the civilian population may, however, be doubtful.

Corte Interamericana de Derechos Humanos: Teoría y Praxis’, in R. Nieto Navia (ed.), La Corte y el sistema interamericano de derechos humanos (1994), 386; Buergenthal, ‘Interim Measures in the Inter-American Court of Human Rights’, in T. Bernhardt (ed.), supra note 1, at 71. 104  Provisional measure Order in the Libya case, supra note 3, at 14 and 15. 105  Armed Activities on the Territory of the Congo (New Application: 2002) (Dem. Rep. Congo v. Rwanda), Provisional Measure Order, 10 July 2002, at 93.

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3.4 Hearing the Other Party Hearing the other party is a fundamental procedural right (audiatur et altera pars). Whether this principle is always to be adhered to in case of requests of provisional measures, where time is of essence, is questionable, however. The icj is in general obliged to organise a hearing,106 even if in several cases the other party decides not to attend the hearing before the Court.107 However, even the icj—a court which is certainly at pains to guarantee fair proceedings for the States appearing as parties before it—has at times dispensed with the requirement of a hearing. In the LaGrand case, Germany’s request for provisional measures was filed a mere 27 hours before the execution of Walter LaGrand.108 There was simply no time to invite both States to a formal hearing at the seat of the court in The Hague. The icj proceeded without a hearing and ordered the United States to take all measures at its disposal to ensure that Walter LaGrand was not executed.109 The United States did not obey the order. Before the regional human rights courts, there is generally no obligation to organise such a hearing. The Inter-American Court ‘may convoke the parties to a public or private hearing on provisional measures’;110 the European Court on Human Rights does not organise a hearing; it may however ask the respondent State to respond to the allegations made.111 Neither the African Court Protocol nor the Rules of Court stipulate that the African Court has to hear the respondent State before it can issue an order on provisional measures. In the case before the African system concerning the detention of Saif AI-Islam Gaddafi in 2013, Judge Fatsah Ouguergouz posited that an application for provisional measures should be served on the respondent State in light of the adversarial principle (audiatur et altera pars).112 He acknowledged, however, that extreme urgency may justify a situation in which the respondent was 106 Article 74(3)1 icj Rules of Court: ‘The Court, or the President if the Court is not sitting, shall fix a date for a hearing which will afford the parties an opportunity of being represented at it’. 107 See, for example, the following provisional measure orders: Nuclear Tests (Austr. v. Fr.), 1973 icj Rep 99 (June 22), para. 11; Nuclear Tests (N.Z. v. Fr.), 1973 icj Rep 135 (June 22) para. 12; Aegean Sea Continental Shelf (Greece v. Turk.), 1976 icj Rep 3 (Sept. 11), para. 13; United States Diplomatic and Consular Staff in Tehran (u.s. v. Iran), 1979 icj Rep 7 (Dec. 15), para. 13. 108  See LaGrand Case, Provisional Measures, supra note 86, at 12. 109  See ibid., order. 110  Article 26(9) Rules of Court of the Inter-American Court. 111  Y. Haeck/C. Burbano Herrera, ‘Interim Measures in the case law of the European Court of Human Rights’, (2003) 21(4) Netherlands qhr 625, 642. 112 In the matter of the African Commission on Human and Peoples’ Rights v. Libya, Appl. No. 2/2013, Order of provisional measures, 15 March 2013, Separate Opinion of

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not placed in a position to respond to the allegations.113 Since two months had passed between the application and the order, there had been sufficient time to hear the respondent State. This was different in the Libya case of 2011, however, where the African Court decided to issue the provisional measure order without written pleadings or oral hearings.114 The reason for this was that there was an imminent risk to human life and that, due to the ongoing conflict in Libya, it would have been difficult to serve the application for provisional measures timeously on Libya and to arrange a hearing.115 Provisional measures should not require at all times the organisation of a hearing to hear both parties. Although provisional measures are per se only issued in case of an emergency and urgency (for example, pursuant to Article 27(2) of the African Court Protocol), some situations may be more urgent than others. In an armed conflict situation, there is the argument to be made that organising a hearing would simply cost too much time and thus risk the life of persons concerned or a worsening of the general situation. A hearing should then be dispensed with. However, a hearing should also not be outright rejected in cases of armed conflict. If there is time for it, a hearing may be very helpful in acquiring the latest information from both sides; hearing the other party may also have a positive effect on the level of compliance with the provisional measure once it is ordered. In the end, the question of whether a hearing should be scheduled depends on the circumstances of each case. 4

Substantive Requirements and Scope of Provisional Measures

Provisional measures are granted if the situation bears a certain urgency and gravity and there is a risk of irreparable damage. These requirements are discussed below. They are also analysed in the context of an armed conflict situation, in which, it is argued, the requirements for granting provisional measures may be presumed. 4.1 Urgency and Imminent Risk According to Article 27(2) of the Charter, the African Court can only adopt provisional measures in cases of ‘urgency’. Indeed, provisional measures are only ordered if there is urgency because such requirement is inherent in the Vice-President Fatsah Ouguergouz, at 4. For more information on this case, see below Section 4.3. 113  Ibid. at 5. 114  Provisional measure Order in the Libya case, supra note 3, at 13. 115  Ibid.

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concept of provisional measures. This becomes clear from the jurisprudence of the icj. The icj’s provision on provisional measures does not require ‘urgency’. Even without explicitly labelling the requirement ‘urgency’, the icj set out early on a temporal element when considering the ‘circumstances’ within Article 41 of the icj Statute. In the Interhandel case, the icj refused to indicate provisional measures due to the fact that the sale of the shares by the us government was not imminent.116 Conversely, the icj accepted Australia and New Zealand’s assertion in the Nuclear Test cases that the nuclear tests by France were imminent.117 In its Passage Through the Great Belt decision, the icj made ‘urgency’ an explicit requirement, holding that ‘provisional measures under Article 41 of the Statute are indicated “pending the final decision” of the Court on the merits of the case, and are therefore only justified if there is urgency’.118 The icj defined the concept of urgency in relation to the final decision it will give: ‘if there is urgency in the sense that action prejudicial to the rights of either party is likely to be taken before such final decision is given’.119 The icj has refused several requests for provisional measures because of the lack of urgency.120 The African Court may particularly look to the Inter-American Court for which ‘urgency’ is an explicit requirement mentioned in the American Convention. The Inter-American Court considered that ‘urgency’ referred to special and exceptional situations that deserve an immediate measure and response aimed at averting the threat in the following circumstances: ‘because of their own nature [the circumstances] imply an imminent risk’ and because 116  Interhandel (Switz. v. u.s.), 1957 icj Rep 105 (Oct. 24). 117 Nuclear Tests (N.Z. v. Fr.), 1973 icj Rep 135 (June 22), para. 27; Nuclear Tests (Austr. v. Fr.), 1973 icj Rep 99 (June 22), para. 26. 118  Passage through the Great Belt (Finland v. Denmark), 1991 icj Rep 12 (July 29), para. 23. 119  Ibid. 120 See, for example, Case concerning the Arrest Warrant of 11 April 2000 (Dem. Rep Congo v. Belgium), Provisional Measures Order, 8 December 2000, para. 72; Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures Order, 23 January 2007 (request by Uruguay), para. 42. It is worth mentioning that at the icj urgency has at times trumped all other ‘circumstances’, see for example Judge Oda’s opinion in the Breard case, Case of the Vienna Convention on Consular Relations (Paraguay v. United States of America), Request for the indication of Provisional Measures, Order, 1998 icj Rep 248 (April 9): ‘I voted in favour of the Court’s Order with great hesitation as I believed and I still believe that the request for the indication of provisional measures of protection submitted by Paraguay to the Court should have been dismissed. However, in the limited time—one or two days—given to the Court to deal with this matter, I have found it impossible to develop my points sufficiently to persuade my colleagues to alter their position’.

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‘a lack of response would mean a danger per se’.121 The Inter-American Commission has also tried to define the concept of ‘urgent situation’. In its latest version of the Rules of Procedure (2013), it links—similar to the InterAmerican Court—the urgency to the imminence of a risk or threat: ‘“urgent situation” refers to risk or threat that is imminent and can materialize, thus requiring immediate preventive or protective action’.122 In the European human rights system, ‘urgency’ is not explicitly mentioned as a requirement. The wording of Rule 39 of the Rules of Procedure is broad and empowers the European Court ‘to indicate to the parties any interim measure which it considers should be adopted in the interests of the parties or of the proper conduct of the proceedings before it’. In its seminal Mamatkulov judgment, the Grand Chamber considered however that ‘in practice the Court applies Rule 39 only if there is an imminent risk of irreparable damage’.123 The reference to an ‘imminent risk’ is akin to the definition of the Inter-American Court. As the European Court does not issue reasoned orders on interim measures, it is difficult to ascertain how the requirement of ‘imminent risk’ is applied. Most interim measures are issued in case of the expulsion of applicants to a foreign country where they risk a violation of their right to life or being tortured. The European Court may refrain from indicating interim measures if the applicant can avert the expulsion by interjecting a legal remedy on the national level. Interim measures will also not be indicated, at least not yet, if—as has happened in the Öcalan-case—the accused was convicted at first 121  Order of the Inter-American Court of Human Rights of February 8, 2008; Request for Provisional Measures Made by the Inter-American Commission of Human Rights with regard to Venezuela – Matter of Capital El Rodeo I and El Rodeo II Judicial Confinement Center. 122 Inter-American Commission, Rules of Procedure, Article 25(2)b. It may also be helpful in this regard to look at cases where the Inter-American Court refused provisional measures for lack of urgency, such as in the Chipoco case. According to the request, Mr Chipoco was a human rights activist and, in this function, had cooperated with the Inter-American Commission and had taken part in cases before the Inter-American Court. In Peru, he was indicted for subversive activities in the us and could have been tried under an anti-terrorist legislation in secret proceedings and in absence of the accused, facing the loss of Peruvian nationality and a prison sentence of more than twenty years. For the InterAmerican Court, this case was not sufficiently urgent since, as noted by the President of the Inter-American Court, charges had not yet been filed against Mr Chipoco, see InterAmerican Court of Human Rights, Chipoco Case (Peru), Order of the President (Provisional Measures), 14 December 1992, para. 6. 123  European Court of Human Rights, Mamatkulov and Askarov v. Turkey (nos. 46827/99 and 46951/99), Grand Chamber, Judgment, 4.2.2005, para. 104 (emphasis added).

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instance proceedings but the conviction and sentence are still open to appeal when interim measures were requested.124 The courts have rarely addressed the requirement of urgency in an armed conflict situation; when provisional measures were requested in such a situation, the courts and commissions have not refused such request for lack of urgency. In the Libya case, the African Court did not expressly subsume the facts of the case under this requirement because the situation did not require it. The African Court merely noted the statements by the African Union and the un Security Council, which stated: ‘the indiscriminate and excessive use of force and lethal weapons against peaceful protestors’,125 ‘the gross and systematic violations of human rights, including, the repression of peaceful demonstrators’, and ‘the systematic attacks currently taking place in the Libyan Arab Jamahiriya against the civilian population [which] may amount to crimes against humanity’. The African Court concluded that ‘there [was] therefore a situation of extreme gravity and urgency’.126 In an armed conflict situation like the one in Libya, the requirement of urgency may often be self-evident. There may be several degrees of urgency in such a situation, depending, for example, on where the actual fighting takes place and on the intensity of the conflict. More often than not, however, there will be an ‘imminent risk’ of harm to the civilians. 4.2 Gravity and Irreparable Harm According to Article 27(2) of the African Court Protocol, the African Court shall adopt provisional measures in cases of ‘extreme gravity’, and when necessary to avoid ‘irreparable harm’ to persons. This is similar to the Inter-American system, even though Article 63(2), first sentence, of the American Convention speaks of irreparable damage, and not of harm. However, it is unlikely that this difference will have an impact on the interpretation of the word ‘harm’: irreparable damage and irreparable harm are two notions that have been used as synonyms by various human rights supervisory bodies.127 124 European Court of Human Rights, Öcalan vs. Turkey (no. 46221/99), Grand Chamber, Judgment, 12.05.2005, para. 5: ‘On 6 July 1999 the Court decided that the request for Rule 39 to be applied could be considered if the applicant’s sentence was upheld by the Court of Cassation’. 125  Provisional measure Order in the Libya case, supra note 3, at 21. 126  Ibid. at 22. 127 The icj, the Inter-American Court, and the un Human Rights Committee have all used the words ‘irreparable harm’, even if their own rules speak of ‘irreparable damage’, see, inter alia, icj, Breard case, Case of the Vienna Convention on Consular Relations (Paraguay v. United States of America), Request for the indication of Provisional Measures, Order, 1998 icj Rep 248 (April 9), para. 37; Community of Peace of San José of Apartadó

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The notions of extreme gravity and irreparable harm/damage are not easy to distinguish. It may be said that, while the former relates to the overall situation, the latter is specific to the threat of harm to the protected rights, which must be irreparable. The Inter-American Commission has defined ‘serious situation’128 (which may be said to be similar to the ‘gravity’ requirement before the Inter-American Court) and ‘irreparable harm’ in its Rules. The InterAmerican Commission understands the requirement of ‘serious situation’ to refer to ‘a grave impact that an action or omission can have on a protected right or on the eventual effect of a pending decision in a case or petition before the organs of the inter-American system’.129 The requirement therefore addresses two situations: the grave impact may be on the protected right (substantive impact) but it is sufficient if the impact is on the pending proceedings (procedural impact). The procedural impact opens the doors to situations where the proceedings are hampered by the State party, for example, by not allowing witnesses to come forward. As to the requirement of ‘irreparable harm’, the InterAmerican Commission understands this to refer ‘to injury to rights which, due to their nature, would not be susceptible to reparation, restoration or adequate compensation’.130 In practice, the Inter-American Court appears to have adopted a holistic approach, evaluating the situation as a whole and not distinguishing between gravity and irreparable harm. It seems that the InterAmerican Court has so far not refused a request for provisional measures on the ground that the situation was not sufficiently grave. The provision of the European Court of Human Rights in its Rules of Court does not set as a requirement that interim measures only be issued in case of ‘gravity’ or ‘irreparable harm’. Nevertheless, according to the European Court’s well-established case law, interim measures apply only where there is a risk of irreparable damage.131 As will be seen below, the European Court has also limited the scope of interim measures to cases where applicants would fear for their lives (Article 2 of the Convention) or would face ill-treatment prohibited

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Case (Colombia), Order of the Inter-American Court (Provisional Measures), 24 November 2000, section ‘considering’, para. 6; and The La Nación Newspaper (Herrera-Ulloa v. Costa Rica), Order of the Inter-American Court (Provisional Measures), 7 September 2001, section ‘considering’, para. 7; see also un Human Rights (iccpr) Committee, Weiss vs Austria, Case No. 1086/2002, Views adopted 15 May 2003, CCPR/C/77/D/1086/2002, para. 7.1. Inter-American Commission, Rule 25(1). Inter-American Commission, Rule 25(2)a. Inter-American Commission, Rule 25(2)c. Mamatkulov Judgment, supra note 123, para. 104. See also the European Court of Human Rights, Factsheet interim measures, January 2013.

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by Article 3 of the Convention, so that it is clear that the European Court also applies an inherent ‘gravity’ element. As was the case with the requirement of urgency, the African Court in the Libya case has, after stating the facts submitted by the international organisations, simply decided that the situation was grave and that there was ‘a risk of irreparable harm to persons who are the subject of the application, in particular, in relation to the rights to life and to physical integrity of persons as guaranteed in the Charter’. Yet again, the special situation of the armed conflict situation may have had an impact on the decision to grant provisional measures. Indeed, this is where a distinction may be drawn between ‘extreme gravity’ and ‘irreparable harm’. It should not only take into account the specific situation of the applicant or the victim for which the provisional measure is requested (irreparable harm to his or her rights); the situation of the whole country also plays a role. This is why, for purposes of assessing the gravity and urgency requirements, the Inter-American Commission takes into account not only personal factors concerning the victim, but also the setting in the State concerned, in particular ‘the existence of an armed conflict’ and ‘the existence of a state of emergency’.132 From the wording of the African and Inter-American provisions, it is clear that both gravity and irreparable harm/damage are required. Nonetheless, the situation of an armed conflict may tip the balance of decision-making to the side of granting a request for provisional measures. An armed conflict may always be considered as being a grave situation. In addition, the rights to life and physical integrity will arguably always be at risk so that the court may rely on this fact alone to issue provisional measures. There could indeed be a presumption that these rights are at risk. This was confirmed by the Inter-American Court in the Chunimá case in which Guatemala had acknowledged the existence of an ‘internal armed conflict’. The Inter-American Court considered that such a ‘blanket acknowledgement’ did not imply acceptance that the facts denounced were true; ‘however, it does lead to the presumption that a situation exists which could bring about irreparable damage to persons’.133 Determining specifically whether or not there was irreparable harm to the victims may thus be not necessary. The issue of which rights may be ‘irreparable harmed’, i.e., only the right to life or other rights as well, remains essential for 132 See Website of the Inter-American Commission under ‘About Precautionary Measures’ available at www.oas.org/en/iachr/decisions/precautionary.asp (last accessed 17 April 2014). 133  Inter-American Court of Human Rights, Chunimá Case (Guatemala), Order (Provisional Measures), 1 August 1991, para. 6a.

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determining the scope of protection of provisional measures, as will be seen below. 4.3 Scope of Protection: Rights that may be Protected by Provisional Measures According to Article 27(2) of the African Court Protocol, the African Court shall adopt provisional measures when necessary to avoid irreparable harm to persons. The question arises whether all rights can be protected through provisional measures or whether some rights are excluded. From the wording of the provision, it appears that the damage must be inflicted on a ‘person’, not, for example, on property. The notion of irreparable harm also seems to set limits to the rights that can be protected by a provisional measure. ‘Irreparable’ is the damage to rights such the right to life and personal integrity; but the question may be asked whether, for example, the right to property or to a fair trial or the freedom of movement or of speech fall under the scope of protection of provisional measures. In the Inter-American system, the first provisional measures were limited to protecting the right to life (Article 4 of the American Convention)134 and personal integrity (Article 5 of the American Convention).135 Later on, however, the Inter-American Court considerably expanded the rights it was willing to protect by provisional measures. In the case Peace Community of San José de Apartadó, the Inter-American Court ordered Colombia not only to protect the lives and personal integrity of all of members of the Community of Paz de San 134 This included the cases in which the applicant received a sentence of capital punishment after an allegedly unfair trial. Strictly speaking, these cases do not relate to Article 4 of the American Convention, since this provision does not prohibit the death penalty, as such, but only establishes certain limits (see Articles 4(2)–(6) of the American Convention which allows, inter alia, capital punishment only for the most serious crimes, not for political offenses, and not for minors, the elderly and pregnant women); rather, these cases relate to the right to fair trial and due process. The aim of ordering provisional measures in such a case, however, is the protection of the life of the convicted. 135 See T. Buergenthal, ‘Interim Measures in the Inter-American Court of Human Rights’, in Bernhardt (ed.), supra note 1, at 78. Article 5 also protects the mental and moral integrity, which was also protected by provisional measures, see, for example, Reggiardo Toloso Case (Argentina), Order of the President of the Inter-American Court, 19 November 1993: ‘all necessary measures to protect the mental integrity of the minors [in order to] avoid causing them irreparable damage’; Loayza Tamayo v. Peru, Order of the Inter-American Court (Provisional Measures), 3 February 2001, para. 2: ‘To order the State of Peru to maintain any measures necessary to effectively ensure the return to the country of Maria Elena Loayza Tamayo and her physical safety, mental health and moral integrity’.

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José de Apartadó,136 but also to guarantee that the people and their children may continue living in their usual place of residence and to guarantee that the ones who had been forced to move to other areas in the country may return to their homes.137 In the case of Haitians and Haitian-Origin Dominicans in the Dominican Republic, the Court ordered the State to refrain from deporting or expelling persons from its territory, to allow the immediate return of others, and to permit family reunification with their minor children in the Dominican Republic.138 In a concurring opinion, Judge Cançado Trindade noted that the Court had protected the rights of Article 7 (personal liberty), Article 19 (rights of the child), and Article 22 (freedom of movement and residence) of the American Convention; he stated that this was ‘the first time in its history that the Court proceeds in this way, in my view correctly, aware of the necessity to develop, by its evolutive case-law, new means of protection inspired in the reality of the intensity of human suffering itself’.139 In a later provisional measure in the same case, the Inter-American Court explicitly cited the rights to life, personal integrity, circulation, and residence, as well as the right to special protection of children in the family.140 In another case, the Inter-American Court considered that irreparable damage could also be done to the freedom of expression (Article 13 of the American Convention), at least if it concerned the criminal conviction of a journalist.141 136 Community of Peace of San José of Apartadó Case (Colombia), Order of the InterAmerican Court (Provisional Measures), 24 November 2000, section ‘decides’, paras. 2–3. 137  Ibid. at paras. 5–6. 138  Haitians and Dominicans of Haitian Origin in the Dominican Republic (Dominican Republic), Order of the Inter-American Court (Provisional Measures), 18 August 2000. 139 See Concurring Opinion of Judge Cançado Trindade in the case Haitians and Dominicans of Haitian Origin in the Dominican Republic (Dominican Republic), Order of the InterAmerican Court of Human Rights, 18 August 2000: ‘As to the protected rights, I understand that the extreme gravity of the problem of uprootedness brings about the extension of the application of the provisional measures not only to the rights to life and to personal integrity (Articles 4 and 5 of the American Convention) but also to the rights to personal liberty, to the special protection of the children in the family, and to circulation and residence (Articles 7, 19 and 22 of the Convention), as in the present case of the Haitians and Dominicans of Haitian Origin in the Dominican Republic’. 140 Haitians and Dominicans of Haitian Origin in the Dominican Republic (Dominican Republic), Order of the Inter-American Court (Provisional Measures), 12 November 2000, section ‘considering’, para. 5. 141 See The La Nación Newspaper (Herrera-Ulloa v. Costa Rica), Order of the Inter-American Court (Provisional Measures), 7 September 2001. The Commission had requested that Costa Rica refrain for taking any action designed to enter the name of the journalist in the Judiciary’s Record of Convicted Felons, and to refrain from taking any measure or action

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The Inter-American Court has not shied away from enlarging the scope of protection to also include property rights, which may go beyond the wording of Article 63(2) of the American Convention (‘irreparable damage to persons’). In the case Mayagna (Sumo) Awas Tingni Community, the court considered that a situation of extreme gravity and urgency existed regarding the property, including the resources in the territory of the Mayagna Community, which were the basis for their subsistence, culture, and traditions. Thus, the Inter-American Court made a strong connection between the property of lands and the special situation of indigenous peoples.142 It is not clear whether the Inter-American Court would accept property rights (without a link to community rights) as being irreparable. The Inter-American Court has stated, in its La Nación case, that provisional measures are adopted to avoid ‘damages that are irreparable in nature, as opposed to other damages that are essentially monetary in nature’.143 This does not necessarily exclude property rights, however. There may be property which is unique and the destruction of which would be irreparable. The icj, whose provision on provisional measures admittedly is not restricted to irreparable damage to persons, has accepted that damage to property may also be irreparable, thus justifying the indication of provisional measures.144 that might infringe the right to freedom of expression that the journalist and the newspaper La Nación enjoy. The Inter-American Court considered that the criminal court’s order that the conviction handed down by the criminal court be published in the La Nación newspaper would cause irreparable harm to the journalist. As to the entering of the journalist’s name in the judiciary’s Record of Convicted Felons, the Inter-American Court held that this would cause irreparable damage to the journalist, since it was prejudicial to the practice of his journalistic profession and posed an imminent threat of irreparable damage to his to reputation. 142 Community Mayagna (Sumo) Awas Tingni v. Nicaragua, Order of the Inter-American Court (Provisional Measures), 6 September 2002, section ‘considering’, paras. 7–8. The Inter-American Court eventually decided to order Nicaragua to adopt whatever measures were necessary to protect the use and enjoyment of property of lands belonging to the Mayagna Awas Tingni Community, and of natural resources existing on those lands. 143 The La Nación Newspaper (Herrera-Ulloa v. Costa Rica), Order of the Inter-American Court (Provisional Measures), 7 September 2001, section ‘considering’, para. 11. The InterAmerican Commission seems to go even a step further, when its Rules of Procedure indicate that irreparable harm refers to injury to rights which, due to their nature, would not be susceptible to reparation, restoration, or adequate compensation, see Rule 25(2)c. This is a broad statement, which the Inter-American Commission needs to qualify in the future. Under international law, violations of all rights, even the right to life, are susceptible to reparation, restoration, or compensation. 144 See Frontier Dispute (Burk. Faso v. Mali), Provisional Measure, 1986 icj Rep 3 (Jan. 10), para. 21: ‘Whereas the facts that have given rise to the requests of both Parties for the

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The European Court of Human Rights has restricted its use of interim measures to a limited group of cases: (1) the expulsion and extradition to other States where the applicants would fear for their lives—which also includes the risk of being sentenced to death (thus engaging Article 2 of the Convention); (2) situations in which persons would face ill-treatment prohibited by Article 3 (prohibition of torture or inhuman or degrading treatment); and (3) situations, exceptionally, involving the right to respect for private and family life (Article 8).145 Concerning expulsion/extradition, Rule 39 may also be applied in cases where Articles 5 (right to liberty and security) and 6 (right to a fair trial) are engaged, in case there is a risk of a ‘flagrant denial of justice’.146 In a few cases, the European Court has gone beyond the group of cases involving deportation and extradition proceedings. Rule 39 has been applied in very exceptional cases to ensure that the applicant would benefit from appropriate representation in judicial proceedings.147 In the Öcalan case, for example, the Court requested the Turkish Government to take measures under Rule 39 to meet the requirements of Article 6 of the Convention (right to a fair trial) in the proceedings against the applicant.148 The destruction of crucial evidence has

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indication of provisional measures expose the persons and property in the disputed area, as well as the interests of both States within that area, to serious risk of irreparable damage […]’ (emphasis added). Mamatkulov Judgment, supra note 123, para. 104. See also the European Court of Human Rights, Factsheet interim measures, January 2013. See Soering v. the United Kingdom (no. 14038/88) and Othman (Abu Qatada) v. the United Kingdom (no. 8139/09), cited in European Court of Human Rights, Factsheet interim measures, January 2013. See European Court of Human Rights, Factsheet interim measures, January 2013. Öcalan v. Turkey (no. 46221/99) cited in European Court of Human Rights, Factsheet interim measures, January 2013. In a different case, the applicant relied on the Öcalan case and applied for interim measures, which, however, were refused. Turkey’s reply showed that, unlike the situation examined in the Öcalan case, the applicant was being held in ordinary conditions of detention and had been able to converse freely and on a number of occasions with his Turkish lawyers. Although Turkish law did not apparently authorise him to meet his German lawyers, they were able to carry out their instructions in collaboration with their Turkish colleagues (see Soysal v. Turkey (and Moldova) (no.50091/99), interim measure reported in European Court of Human Rights, Information Note No. 13 on the case law of the Court, December 1999). In another case, Rule 39 was applied for ensuring proper proceedings before the European Court; the Court ordered the State to appoint a lawyer to represent the applicant since she was suffering from schizophrenic paranoia and was deprived, within the meaning of domestic law, of her capacity to choose a legal representative (X. v. Croatia (no. 11223/04) cited in European Court of Human Rights, Factsheet interim measures, January 2013).

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also prompted the European Court to issue interim measures.149 It appears that the European Court does not consider, however, that the right to property (Article 1 of Additional Protocol 1) justifies interim measures.150 The African Court has not adopted the restrictive approach of the European Court; rather, it understands its power to order provisional measures to encompass more rights than the right to life and physical integrity, not dissimilar to the stance taken by the Inter-American Court. In the Libya case of 2011, the African Commission concluded that the alleged acts151 amounted to serious violations of the right to life and to the integrity of persons, the right to freedom of expression, and the right to demonstration and assembly.152 The Peace and Security Council of the African Union had also noted the continued loss of human life and ‘the destruction of property’.153 The African Court, however, refrained from addressing the question of whether all the rights mentioned by the Commission or the right to property mentioned by the African Union were rights that fall into the category of ‘irreparable harm’. Rather, in its decision, it limited itself to relying on the right to life and to physical integrity.154 149 Evans v. the United Kingdom (no. 6339/05), see press release of the European Court of Human Rights No. 222 of 10 April 2007. This highly publicised case concerned the possibility under uk law of withdrawing the consent to the conservation and use of embryos; the European Court requested that the United Kingdom Government take appropriate measures to prevent the embryos from being destroyed by the clinic before the Court had been able to examine the case. The embryos were not destroyed. 150 See L. vs. Belgium (Appl. No. 44734/98) where the European Court refused interim measures which were requested to prevent the destruction of a house, cited in Y. Haeck/C. Burbano Herrera, ‘Interim Measures in the case law of the European Court of Human Rights’, (2003) 21(4) Netherlands qhr 625, 644–5. See also European Court of Human Rights, Factsheet interim measures (issued by the Press Unit of the European Court), January 2013, stating that, in the case-law as it currently stands, Rule 39 is not applied in the following cases: to prevent the imminent demolition of property, imminent insolvency, the enforcement of an obligation to do military service, to obtain the release of an applicant who is in prison pending the Court’s decision as to the fairness of the proceedings, to ensure the holding of a referendum, or to prevent the dissolution of a political party. 151 See supra Section 2.1: that an opposition lawyer had been detained; that security forces had opened fire at random on demonstrators, killing and injuring many people; and that Libyan security forces engaged in excessive use of heavy weapons and machine guns against the population, including targeted aerial bombardment. 152  And thus to violations of the rights enshrined in Articles 1, 2, 4, 5, 9, 11, 12, 13, and 23 of the Charter, see Provisional measure Order in the Libya case, supra note 3, at 2–3. 153 Provisional measure Order in the Libya case, supra note 3, at 21. 154  The African Court decided that there had been ‘a risk of irreparable harm to persons who [were] the subject of the application, in particular, in relation to the rights to life and to

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However, two years later, the African Court had a case before it where it went well beyond the right to life and to physical integrity. The case of African Commission vs. Kenya is not unlike the case of the Mayagna Awas Tingni Community before the Inter-American Court, mentioned above. The matter before the African Court concerned the Ogiek community of the Mau Forest, an indigenous minority ethnic group comprising about 20,000 members; about 15,000 of the members inhabit the Mau Forest, on which the community depends as a space for the exercise of their traditional livelihoods and as a source of their sacral identity.155 The Government of Kenya, through the Kenya Forestry Service, issued an eviction notice to the Ogiek and other settlers of the Mau Forest, demanding that they move out of the forest because it constituted a reserved water catchment zone and was government land. The African Court issued provisional measures and held that there existed a risk of irreparable harm to the Ogiek Community with regard to violation of their rights guaranteed under the Charter, among others: enjoyment of their cultural rights and protection of their traditional values under Article 2 and 17(2) and (3); protection before the law under Article 3; integrity of their persons under Article 4; the right to property under Article 14; and the right to economic, social, and cultural development under Article 22.156 In a provisional measure order of the same day, the African Court expanded the rights to be protected even further to include the right to liberty and security to a person and the right to a fair trial. The case concerned the detention of Saif AI-Islam Gaddafi, who, it was submitted to the African Court, had been detained in isolation and without access to his family, friends, or lawyer; had not been charged with any offence nor been brought before any court; and faced an imminent trial which carried with it the threat of the death penalty, following a period of arbitrary detention based on interrogations carried out in the absence of a lawyer.157 The African Court did not expressly refer to Articles

physical integrity of persons as guaranteed in the Charter’, and ordered Libya to ‘immediately refrain from any action that would result in loss of life or violation of physical integrity of persons’; see Provisional measure Order in the Libya case, supra note 3, at 22 and 25. 155 See submission by the African Commission in African Court of Human Rights, In the matter of African Commission on Human and Peoples’ Rights vs. The Republic of Kenya, Appl. No. 6/2012, Order (provisional measures), 15 March 2013, at 3. 156  African Court of Human Rights, In the matter of African Commission on Human and Peoples’ Rights vs. The Republic of Kenya, Appl. No. 6/2012, Order (provisional measures), 15 March 2013, at 20. 157 African Court, In the matter of the African Commission on Human and Peoples’ Rights v. Libya, Appl. No. 2/2013, Order (provisional measures), 15 March 2013, at 3.

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6 and 7 of the Charter when giving the reasons for its decision. However, it clearly had these rights in mind when it ordered Libya not only to protect the detainee’s physical and mental integrity as well as his health, but also to refrain from all judicial proceedings, investigations, or detention that could cause irreparable damage to the detainee; to allow the Detainee access to a lawyer of his own choosing; and to allow the detainee visits by family members.158 It took the judges of the African Court only four orders on provisional measures to include the protection of many more rights, going well beyond the ‘typical’ right to life and physical integrity, and to thus considerably expand the scope of protection of its provisional measures. This is also important for situations of armed conflict.159 There may be situations where hostilities have ceased in some regions and for some time, so that there is no longer an imminent risk to life. In such situations, it is important that provisional measures are not only limited to protect the right to life and physical integrity, but also 158 African Court, In the matter of the African Commission on Human and Peoples’ Rights v. Libya, Appl. No. 2/2013, Order (provisional measures), 15 March 2013, at 20. In the matter of Lohé Issa Konaté vs. Burkina Faso, the African Court ordered the State to provide the applicant, who had been sentenced to a one-year term of imprisonment for libel and slander, with adequate medication and health care, see African Court, In the matter of Lohé Issa Konaté vs. Burkina Faso, Appl. No. 4/2013, Order (provisional measures), 4 October 2013, at 5 and 23. However, it refused to entertain his other request, namely that he be provisionally released from prison, on the ground that the measure sought corresponded in substance to one of the reliefs sought in the substantive case, namely that the punishment of imprisonment is in essence a violation of the right to freedom of expression; in the opinion of the Court, consideration of this request would adversely affect consideration of the substantive case. Three judges dissented and argued for a provisional release pending the determination of the application before the court. They argued that there was a risk of irreparable harm, saying that ‘[a]dmittedly, every case has to be judged on its own merits, but generally it can be said that personal freedom cannot be compensated by monetary damages’, see African Court, In the matter of Lohé Issa Konaté vs. Burkina Faso, Appl. No. 4/2013, Order (provisional measures), 4 October 2013, Joint Dissenting Opinion of Justices Ramadhani, Tambala and Thompson, at 4. 159 Even the European Court may be less restrictive when it comes to provisional measures in an armed conflict situation. In its provisional measure concerning the armed conflict between Ukraine and Russia over the Crimea, the European Court called upon the parties to refrain from military actions ‘which might entail breaches of the Convention rights of the civilian population, including putting their life and health at risk, and to comply with their engagements under the Convention, notably in respect of Articles 2 (right to life) and 3 (prohibition of inhuman or degrading treatment)’, see European Court of Human Rights, ‘Interim measure granted in inter-state case brought by Ukraine against Russia’, Press release issued by the Registrar No. 073 (2014), 13.03.2014 (emphasis added). This wording does not exclude the protection of other rights.

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capable of protecting other rights. Armed conflict may also, for example, be accompanied by a policy of ethnic cleansing, which regularly involves the commission of crimes against humanity such as persecution and deportation, and may include severe violations of personal liberty and security as well as destruction of homes and cultural property. In order to be an effective tool, provisional measures should, therefore, also be used to protect rights such as the right to free movement and free choice of residence, the right to personal liberty and security, the right to property, and the enjoyment of cultural rights and protection of traditional values of minorities. 5

Provisional Measures: Binding Obligations under International Law

The binding effect of provisional measures has been for a long time the most contested topic in the area of provisional measures in international law. The debate on the binding effect of provisional measures is at the heart of the conflict between state sovereignty, on the one hand, and effective judicial proceedings to protect individual rights, on the other.160 In addressing the issue of whether provisional measures are binding, international courts have relied on three main, permeable lines of argument. The icj has reasoned that its provisional measures must be binding since this competence is part and parcel of the basic function of judicial settlement by binding decisions (5.1). The InterAmerican Court has argued that the competence to issue binding provisional measures emanates from its international instrument, ratified by the State, and the fact that States must fulfil their conventional international obligations in good faith (5.2). Other courts see the main reason for a binding effect in the fact that States have given individuals the right to file individual complaints and that this right would be violated if the state would not implement 160 This is the case, in particular, because many provisions on provisional measures are not in the international treaty itself but in the rules of the respective court. A positivist’s approach leaning towards the principle of state sovereignty would then lead to the conclusion that States could refuse to implement the provisional measures ordered by an international human rights court, if the court had its competence to issue provisional measures enshrined (only) in the rules of court, e.g., Rule 39 of the Rules of Court of the European Court of Human Rights. States could then simply contend that they have not signed and ratified this specific competence, so they are not bound by a measure emanating from this unapproved competence. The same would be true if the competence to issue interim or provisional measures were mentioned in the instrument ratified by the State but the legal effect (binding character) of these measures were not couched in clear and unambiguous terms.

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provisional measures ordered by the court; this argument was used by the European Court and the un Human Rights Committee because their competence to order interim measures is not enshrined in their international instrument, i.e., the European Convention and the iccpr (5.3). However, relying on the right to individual petition for a binding effect may be unhelpful in interstate cases, two examples of which were recently filed before the European Court and concern armed conflicts (5.4). Within the African system, there should be reasoned efforts to convince state parties that provisional measures are binding and that the failure to implement these measures is a violation of their international obligations (5.5). 5.1 Judicial Settlement of International Disputes by Binding Decisions The tension between state sovereignty and effective court proceedings is an issue for all international courts, in varying degrees. The icj was faced with this conflict when its provisional measures were disregarded. Although the icj is competent to hear only cases between States, it may not be surprising to note that its decision on the binding character of its provisional measures was taken when an individual right was at issue, namely when a convicted person was threatened with execution. In the LaGrand case,161 concerning the interpretation of the Vienna Convention on Consular Relations, the icj had issued a provisional measure to the us Government to halt the execution of Walter LaGrand. The us Government had then forwarded this order to the Governor of Texas who refused to intervene. Walter LaGrand was executed in spite of the icj’s provisional measure order. The icj was therefore faced with the question of whether the us had violated an international obligation in not complying with the provisional measures. The wording of Article 41 of its Statute, which uses the term ‘to indicate’, does not necessarily allow the conclusion that the provisional measures of the icj are binding on States.162 The Court acknowledged the ambiguous wording; this did not prevent the icj, however, from coming to the conclusion that the measures indicated under Article 41 of the Statute had binding effect.163 To reach this conclusion, it relied on the object and purpose of the Statute, i.e., ‘the basic function of judicial settlement of international disputes by binding decisions in accordance with Article 59 of the Statute’, and the context of Article 41 within the Statute, i.e., ‘to prevent the Court from being hampered in the exercise of its functions because the respective rights of the parties to a 161  LaGrand Case, Provisional Measures, supra note 86. 162  Ibid., para. 100. 163  Ibid., paras. 102 and 109.

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dispute before the Court are not preserved’.164 The Court found that, by failing to take all measures at its disposal to ensure that Walter LaGrand was not executed pending the final decision of the icj in the case, the us had breached the obligation incumbent upon it under the order indicating provisional measures.165 5.2 Obligation to Fulfil Convention Obligations in Good Faith The Inter-American Convention uses in Article 63(2) the wording ‘shall adopt such provisional measures’.166 Although this wording seems to be stronger than the term ‘indicate’ used in the icj Statute, it does not use the term ‘to order’ or a similarly explicit expression. The Inter-American Court, however, has made it clear that it considers its provisional measures as binding. In Article 26(1) of its Rules of Procedure, it refers to its competence under Article 63(2) of the American Convention but uses the wording ‘the Court may…order such provisional measures at it deems pertinent’.167 The case law is also clear. Prior to the icj’s judgment in the LaGrand case, the Inter-American Court held that ‘the provision established in Article 63(2) of the Convention makes it mandatory for the State to adopt the provisional measures ordered by this Tribunal’. To come to this conclusion it relied on ‘a basic principle of the law of international state responsibility, supported by international jurisprudence, according to which States must fulfil their conventional international obligations in good faith (pacta sunt servanda)’.168 The Court did not rely on any inherent or implicit competence to order binding measures, and did not rely on its function of judicial settlement of disputes by binding decisions, but held that this power was directly derivable from Article 63(2) of the Convention itself. 5.3 Not Hindering the Right to Individual Petition The European Court of Human Rights cannot directly rely on a provision of the European Convention when it comes to the question of whether its interim measures are binding since its power to issue interim measures is to be found (only) in its Rules of the Court. Nonetheless, the Grand Chamber of the European Court found in the Mamatkulov case,169 in a volte face to the earlier 164  Ibid., para. 102. 165  Ibid. at 516. 166 American Convention, Article 63(2), first sentence. 167  Emphasis added. 168  Constitutional Court Case (Peru), Order of the President of the Inter-American Court (Provisional Measures), 14 August 2000, section ‘considering’, at 14. 169  Mamatkulov Judgment, supra note 123.

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jurisprudence of the Court,170 a violation of a Convention obligation when a State failed to comply with an interim measure. The Court held that it could not appropriately examine the applicants’ complaints because of their extradition, which had been executed despite an interim measure to suspend this extradition. The European Court considered that, by virtue of Article 34, second sentence, of the Convention,171 Contracting States undertook to refrain from any act or omission that may hinder the effective exercise of an individual applicant’s right of application. A failure by a State to comply with interim measures would undermine the effectiveness of the right of individual application guaranteed by Article 34 of the Convention.172 The reasoning of the European Court—connecting the obligation to comply with its interim measures to the right to individual petition—is understandable.173 In doing so, the European Court did not have to delve into the argument—advanced against a binding effect—that its Rules of Court were not part of the set of rules ratified by the State parties to the Convention. Disrespect for interim measures may violate the Rules of Procedure; but, more importantly, such disrespect will be a violation of Article 34 of the Convention, laying down the right to individual petition. This line of reasoning is of help for other supervisory organs to argue in favour of a binding effect of their interim measures. This is true for all organs which have the competence to issue provisional measures mentioned only in their rules and not in the international treaty, but which have an individual complaint procedure, such as the Human Rights Committee. Neither the iccpr nor the First Optional Protocol includes a provision on interim measures; rather, the Human Rights Committee has given itself the competence to indicate interim measures in Rule 92 of its Rules of Procedure.174 170 See European Court of Human Rights, Cruz Varas and Others vs. Sweden, Judgment of 20.3.1991, Series A No. 201 (1991). 171 Article 34 of the Convention reads: ‘The Court may receive applications from any person, nongovernmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right’. 172  Mamatkulov Judgment, supra note 123, at 125 and 128. 173  The Grand Chamber reiterated this approach in the Paladi case, see European Court of Human Rights, Paladi v. Moldova (no. 39806/05), Grand Chamber, Judgment, 10.3.2009, at 87. 174 Rules of procedure of the Human Rights Committee, CCPR/C/3/Rev.10, Rule 92: ‘The Committee may, prior to forwarding its Views on the communication to the State party concerned, inform that State of its Views as to whether interim measures may be desirable to avoid irreparable damage to the victim of the alleged violation. In doing so, the

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Even before the European Court’s decision in Mamatkulov, the Human Rights Committee referred to its powers to receive individual complaints under the First Optional Protocol to condemn the execution of an applicant, holding that [i]mplicit in a State’s adherence to the Protocol is an undertaking to cooperate with the Committee in good faith so as to permit and enable it to consider such communications, and after examination to forward its  views to the State party and to the individual (Article 5(1), (4)). It  is  incompatible with these obligations for a State party to take any action that would prevent or frustrate the Committee in its consideration and examination of the communication, and in the expression of its Views.175 This interpretation of the law by the Human Rights Committee was also expressed in General Comment 33 of 2009.176 The Human Rights Committee could not rely on the line of reasoning of the icj. As noted above, the icj referred to the object and purpose of its Statute, namely to ‘the basic function of judicial settlement of international disputes by binding decisions in accordance with Article 59 of the Statute’.177 Yet, the Human Rights Committee’s

Committee shall inform the State party concerned that such expression of its Views on interim measures does not imply a determination on the merits of the communication’. 175 Human Rights Committee, Piandiong et al. v. The Philippines, Communication No. 869/1999, 19 October 2000, CCPR/C/70/D/869/1999, Views, at 5.1. See also at 5.2.: ‘Quite apart, then, from any violation of the Covenant charged to a State party in a communication, a State party commits grave breaches of its obligations under the Optional Protocol if it acts to prevent or frustrate consideration by the Committee of a communication alleging a violation of the Covenant, or to render examination by the Committee moot and the expression of its Views nugatory and futile’. And at 5.4.: ‘Interim measures pursuant to rule 86 of the Committee’s rules adopted in conformity with Article 39 of the Covenant, are essential to the Committee’s role under the Protocol. Flouting of the Rule, especially by irreversible measures such as the execution of the alleged victim or his/her deportation from the country, undermines the protection of Covenant rights through the Optional Protocol’. 176 Human Rights Committee, General Comment No. 33, The Obligations of States Parties under the Optional Protocol to the International Covenant on Civil and Political Rights, CCPR/C/GC/33, 25 June 2009, French version (currently not available in English), at 19: ‘L’inobservation de ces mesures provisoires est incompatible avec l’obligation de respecter de bonne foi la procédure d’examen des communications individuelles établie par le Protocole facultatif’. 177  LaGrand Case, Provisional Measures, supra note 86, para. 102 (emphasis added).

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views on the merits of individual complaints are not considered to be binding, although commentators ascribe to the decisions a ‘quasi-judicial authority’.178 5.4 Armed Conflict Situations in Inter-state Cases before the European Court The line of reasoning of the European Court—that provisional measures are binding because State parties to the international instrument have accepted the right to individual petition—is not without drawbacks. In particular, this argument is not applicable to other kind of cases for which the courts and commissions may also be competent: inter-state cases.179 According to Article 33 of the European Convention, any party to the Convention may refer to the European Court any alleged breach of the provisions of the Convention and the Protocols thereto by another State party. This occurred recently in situations of armed conflict between States, namely the case of Russia vs. Georgia (no. 2) (appl. no. 38263/08) and Ukraine vs. Russia (appl. no. 20958/14). In both cases, the European Court could not rely on Article 34 of the Convention for the obligatory character of its interim measures since this provision applies to individual petition cases and not to inter-state cases. Moreover, Article 33 of the Convention does not seem to support the position that the Court’s interim measures are binding under international law. Article 33 of the Convention lacks an equivalent sentence to what is the second sentence of Article 34 of the Convention which obliges the State ‘not to hinder in any way the effective exercise of this right’, i.e., the right to individual petition, and on which the Court mainly relies in its argumentation for a binding effect. Article 33 of the Convention enshrines no similar obligation for interstate cases. However, the European Court may in inter-state cases still argue 178 See G.J. Naldi, ‘Interim Measures in the un Human Rights Committee’, (2004) 53(2) iclq 445, 446; D. McGoldrick, The Human Rights Committee: Its Role in the Development of the International Covenant on Civil and Political Rights (1991), at 151; see also J. Harrington, ‘Punting Terrorists, Assassins and Other Undesirables: Canada, the Human Rights Committee and Requests for Interim Measures of Protection’, (2003) 48 McGill LJ 55, 65 (‘[it] does not mean that they [i.e., the views] are without legal consequences’). 179 This problem was mentioned by the dissenting Judges in the Mamatkulov case: ‘A comment to be added here is that if the binding character of interim measures could be derived from the necessity of giving full effect to the right of individual application enshrined in Article 34 of the Convention, what would the situation in inter-State cases be? Would measures indicated in such cases continue to be optional? Or would they be considered binding, by analogy, to give the fullest effect possible to Article 33 (inter-State cases) of the Convention?’, see Mamatkulov Judgment, supra note 123, Joint partly dissenting opinion of Judges Caflisch, Türmen and Kovler, at 7.

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that its interim measures are binding, by relying on the icj’s argument in LaGrand, namely ‘the basic function of judicial settlement of international disputes by binding decisions’. Since the European Court’s judgments are binding on the State parties, so are its interim measures. It will be interesting to see whether the Court will find in the two pending inter-state cases that the States have correctly implemented the interim measure orders and, if the answer is negative, whether this results in a violation of the Convention. 5.5 The Binding Character of Provisional Measures in the African System The provision of the current African Court uses the wording ‘shall adopt’, and this wording can also be found in Article 63(2) of the American Convention. As seen above, the Inter-American Court found its provisional measures to be binding on the state parties. There is no apparent reason why the African Court could not rely on the same line of argument, should the binding effect of its provisional measures be challenged: there is an obligation to fulfil conventional international obligations in good faith (pacta sunt servanda). In addition, since it is undisputed that the African Court renders binding decisions on the merits, it can also rely on the LaGrand ruling of the icj.180 Indeed, the African Court has plainly stated that ‘an Order of Provisional Measures issued by the Court is as binding as any judgment of the Court’.181 In the African context, the finding of the icj in LaGrand may be specifically relevant for the future, once the newly merged African Court of Justice and Human Rights will come into existence. This is due to the fact that the wording of Article 35(1) of the protocol establishing the new court is similar to Article 41 of the Statute of the icj.182 In particular, the weak wording of both provisions, 180  It cannot, however, rely on the reasoning of the European Court of Human Rights, since the African Court does not provide for the direct right of individual petition. Only a few States have accepted this right via a declaration under Article 34 of the African Court Protocol, see supra Section 1.1. 181 African Court on Human and Peoples’ Rights, Interim Report of the African Court on Human and Peoples’ Rights notifying the Executive Council of Non-Compliance by a State, in accordance with Article 31 of the Protocol (reporting the non-compliance of Libya with the provisional measure in application 2/2013), at 8. 182 Article 41 of the icj Statute reads: ‘The Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party’. Article 35(1) of the protocol establishing the African Court of Justice and Human Rights reads: ‘The Court shall have the power, on its own motion or on application by the parties, to indicate, if it considers that circumstances so require any provisional measures which ought to be taken to preserve the respective rights of the parties’.

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which speak of the power ‘to indicate’ provisional measures’, did not prevent the icj from declaring its provisional measures to be binding.183 For the African Commission, the argument for the binding effect of its provisional measures is not so easy to establish. The African Commission was in the past several times confronted with States refusing to implement provisional measures. Some commentators have argued that these measures were binding.184 Others have considered them to be non-binding recommendations,185 referring to the then applicable Rule 111 of the Rules of Procedure, which used the wording that the African Commission ‘may inform the State party concerned of its views on the appropriateness of taking provisional measures’ and ‘may indicate to the parties any interim measure’. The wording now used in Rule 98 (in force since 2010) is slightly more compelling: it states that the Commission may ‘request that the State concerned adopt provisional measures’. Already under former Rule 111, the African Commission had to decide a case where the complainants were executed in spite of a provisional measure urging the Government of Nigeria not to do so. The trial which ordered the executions was found to have violated the defendants’ right to a fair trial, so the subsequent implementation of the sentences rendered the resulting deprivation of life arbitrary and in violation of Article 4 of the Charter.186 The African Commission considered that execution in the face of the invocation of Rule 111 defeated the purpose of this ‘important rule’,187 concluding that it was an understatement to say that the carrying out the execution in the face of pleas 183  See the icj’s discussion of the wording in LaGrand Case, Provisional Measures, supra note 86, para. 100. 184  Naldi, supra note 15, at 8; Burbano-Herrera and Viljoen, supra note 31, at 161. 185  F. Ouguergouz, The African Charter on Human and Peoples’ Rights – A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa (2003), 583: ‘However, the convoluted wording of Rule 111 merely lays down the possibility for the Comission to recommend measures of protection; it does not clearly give the Commission the power to request a State party to respect them’, see also ibid., 639, 741. Vincent O. Orlu Nmehielle, The African Human Rights System – Its Laws, Practice, and Institutions (2001), 300: ‘It should be re-emphasized that States are not bound to adopt provisional measures ordered by the Commission’, and ibid., footnote 1167: ‘This is because under Rule 111, the Commission merely recommends its views to the State Party concerned on the appropriateness of taking provisional measures’. See also J.F. Flauss, ‘Notule sur les Mesures provisoires devant la Commission Africaine des Droits de l’Homme et des Peuples’, in Cohen-Jonathan and Flauss (eds), supra note 2, 235. 186  See International pen, Constitutional Rights Project, Civil Liberties Organisation and Interights (on behalf of Ken Saro-Wiwa Jnr.) (137/94-139/94-154/96-161/97) vs. Nigeria, para. 103. 187  Ibid., 114.

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to the contrary by the Commission was a violation of the Charter.188 It finally held that ‘in ignoring its obligations to institute provisional measures, Nigeria has violated Article 1 [of the Charter]’.189 Article 1 of the Charter stipulates the general obligation on States ‘to adopt legislative or other measures to give effect to [the rights, duties, and freedoms enshrined in the Charter]’. Although the decision is void of any argument how exactly the general obligation under Article 1 also makes provisional measures binding on state parties, it was said that the African Commission declared its provisional measures as having binding effect in this decision.190 It appears that this was the only instance where the non-application of provisional measures was considered to be a violation of Article 1 of the Charter.191 Nevertheless, since the right to individual petition (called ‘other communication’, see Article 55 of the Charter) is recognised in the African Charter, provisional measures must be implemented by the States. The African Commission can rely on the ‘good faith’ argument of the Inter-American Court and, in particular, on the argument of the European Court and the Human Rights Committee, that non-implementation of a provisional measure order is a violation of the right to individual petition. The right to file an individual complaint, accepted by the state in the international instrument, would be futile if the state could hinder the effective enforcement of that right by simply presenting the court with a fait accompli (execution, deportation, etc.). 6 Conclusion: Provisional Measures as an Effective Tool for Protecting Civilians in Situations of Armed Conflict The order of the African Court in the Libya case of 2011 is an instructive example of how provisional measures can be used in an armed conflict situation. The African Commission swiftly instituted proceedings before the African Court for serious and massive violations of human rights guaranteed under the 188  Ibid., 115. 189  Ibid., in the order section of the decision (‘Holding’). 190  Naldi, supra note 15, at 8. 191  It is noted that this point was argued by Interights in case 240/01: Interights et al. (on behalf of Mariette Sonjaleen Bosch)/Botswana; however, the African Commission considered that ‘[t]he only instance that a State Party can be said to have violated Article 1 is where the State does not enact the necessary legislative enactment’ and eventually held that Botswana had not violated Articles 1, 4 and 7(1) of the Charter, although the applicant had been executed pending consideration of applicant’s Communication by the African Commission.

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African Charter. Due to the urgency and gravity of the situation, the African Court then used its power to proprio motu issue an order on provisional measures, thereby determining the jurisdiction on a prima facie basis (only) and dispensing with hearing Libya prior to granting the order. As to the substantive requirements for granting provisional measures, this chapter posits that the inherent gravity and urgency of an armed conflict situation will almost always meet the requirements for ordering provisional measures, in particular the risk of irreparable damage. This is also why the African Court relied on the information provided by other international organisations on the ongoing conflict which described the indiscriminate and excessive use of force by the Libyan military forces, without addressing the requirements of provisional measures in any more detail. In addition, when provisional measures are ordered, they may not only be used to protect the life and personal integrity of individuals, but also can be directed to protecting their personal and collective property, the right to liberty and security in case of arbitrary detention, the right to free movement and free choice of residence in case of imminent deportation, and the enjoyment of cultural and traditional values of persecuted minorities. Therefore, it can be concluded that the icj and the human rights courts have generally developed an adequate procedure to be able to quickly order provisional measures. Moreover, the substantive requirements for ordering provisional measures appear to be not high hurdles in a situation of armed conflict. The requirements of gravity, urgency, and irreparable harm may even be presumed to exist in such situations. The scope of provisional measures makes them a suitable tool to protect civilians in armed conflict situations. The provisional measures order in the Libya case is, however, also instructive in a negative sense: Libya did not comply with the African Court’s order.192 Provisional measures are but a judicial decision. In the end, it is up to the state to implement the measures ordered in the decision, and not all States do.193 192  See Dolidze, supra note 37. 193  In the African context, provisional measures have been successfully invoked only in a few cases, e.g., in the case of Constitutional Rights Project v. Nigeria, Communication 87/93, where the African Commission ordered Nigeria to stay the execution of the defendants and the Lagos High Court eventually issued an injunction that stayed the execution; several orders of the Commission to stay the execution or release prisoners have been ignored, however; see Stacey-Ann Elvy, ‘Theories of State Compliance with International Law: Assessing the African Union’s Ability to Ensure State Compliance with the African Charter and Constitutive Act’, 41 Georgia Journal of International and Comparative Law 75, at 146; see also Michelo Hansugule, ‘African courts and the African Commission on Human and Peoples’ Rights’, in A. Bösl and J. Diescho (eds), Human Rights in Africa – Legal

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If a state does not adhere to the provisional measures issued by the relevant courts and commissions, this constitutes a violation of its obligation under international law. The reasoning used to arrive at the conclusion that provisional measures are binding depends on whether the organ granting the measure is a court or commission, whether the competence is enshrined in the international instrument itself or the internal rules of the organ, and whether these measures are issued in individual complaint or inter-state cases. The following question remains: what are the consequences for a State if it ignores the order of an international court? The lack of compliance may be reported to the political bodies and supervising organs; in case of the African Court, it is reported to the Assembly of the African Union and to the Council of Ministers. It is then up to these political organs to adopt measures in response to Libya’s non-compliance. Any further measure therefore requires the political will of the African Union and its member States. The reaction in the Libya case was not firm on enforcing the African Court’s order.194 In any case, no enforcement was necessary after the overthrow of Colonel Muamar Gaddafi; the former government no longer existed, and the African Court did not continue with the case.195 In another case concerning the detention of Saif AI-Islam Gaddafi,196 however, the African Court immediately reported noncompliance with its provisional measures, even though only annual reports are foreseen in the African Court Protocol,197 because the African Court considered that the non-compliance with orders on provisional measures should be reported without delay.198 This is in accordance with the urgency that provisional measures demand. The African Court recommended,199 inter alia, that Perspectives on their Protection and Promotion (2009), at 246; see also Juma, supra note 82, at 358. 194  See Juma, supra note 82, at 370–3. 195  The respondent requested in June 2012 that the African Court drop the case since the former government no longer existed and the applicant did not pursue its application; the case was eventually struck out, see African Court, In the matter of African Commission on Human and Peoples’ Rights vs. Great Socialist People’s Libyan Arab Jamahiriya, Appl. No. 4/2011, Order (striking out) 15 March 2013. 196  African Court, In the matter of the African Commission on Human and Peoples’ Rights v. Libya, Appl. No. 2/2013; see supra Section 4.3. 197  African Court Protocol, Article 31. 198  African Court on Human and Peoples’ Rights, Interim Report of the African Court on Human and Peoples’ Rights notifying the Executive Council of Non-Compliance by a State, in accordance with Article 31 of the Protocol, (reporting the non-compliance of Libya with the provisional measure in application 2/2013), at 8. 199  See Rule 51(4) of the Rules of Court: ‘In the Annual Report submitted by the Court to the Assembly pursuant to Article 31 of the Protocol, the Court shall disclose the interim

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the Assembly express itself on Libya’s non-compliance with the Court Order and call upon Libya to comply forthwith.200 For individuals, it is not satisfactory to rely on the State against which the complaint was filed or to wait for the political organs to act. The African Court may only be of some assistance. Besides reporting on the non-compliance with its provisional measure, the African Court may in its final judgment accord to the individual a payment of fair reparation or compensation under Article 27(1) of the African Court Protocol. The literal wording of this provision suggests that such remedies are only available for violations of substantive human rights, not for a non-compliance with provisional measures. It is recommended, however, that the African Court apply the remedies mentioned in Article 27(1) in an analogous manner to the situation of non-compliance with provisional measure orders. It may rely in this context on the European Court of Human Rights which has awarded monetary compensation for the noncompliance of its interim measures to the person concerned, for example 5,000 euro in the Mamatkulov case.201 Even if monetary compensation is provided by the African Court, we would be back, however, to what Joakim has posited: human rights courts inherently only come into play too late and only once the rights had been infringed, and often the only remedy available will be compensation, and this only after many years of judicial proceedings. The effect of a provisional measure on the individuals and population it seeks to protect should therefore not be overestimated. It is an order issued by a court to deal with urgent cases in which individuals fear irreparable damage to their rights; often, however, the court is far away from where the victim lives, the proscribed acts take place anyway, and the civilian population suffers. The implementation of a provisional measure depends on the State concerned, measures it ordered during the period under review. In the event of non-compliance with these measures by the State concerned, the Court shall make all such recommendations as it deems appropriate’. 200  African Court on Human and Peoples’ Rights, Interim Report of the African Court on Human and Peoples’ Rights Notifying the Executive Council of Non-Compliance by a State, in Accordance with Article 31 of the Protocol, at 10 (reporting the non-compliance of Libya with the provisional measure in application 2/2013). 201  Mamatkulov Judgment, supra note 123, para. 134. See also the Chamaïev case where the European Court awarded Euro 3,000, see Chamaïev et al. v. Russia (no. 36378/02), Grand Chamber, Judgment, 12.4.2005, para. 525(e). It is noted, however, that Article 41 of the European Convention is not limited to compensation for the violation of a human right, but more generally for a violation of the Convention; and, the State, in not complying with the interim measure, commits a violation of Article 34 (right to individual petition) of the Convention.

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and political pressure by the supervisory bodies is the only way available of compelling the state to comply. Nonetheless, the order of provisional measures by a court is a means of attracting attention to a grave and urgent situation. It is the only tool available for a court to try to actually protect human rights before the violation has taken place or the situation is aggravated. If the state party—initially or eventually—complies with the order and protects the individuals, this tool may be able to save lives. And, as such, it is better than remaining idle; as is explained in the Talmud: whoever saves a life, it is considered as if he or she saved an entire world.

Part 3 Safeguarding the Rights of Victims in Post-Conflict Society

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chapter 13

Promoting and Protecting the Long-term Needs of Victims of Armed Conflict: The Potential Role of National Human Rights Institutions Kirsten Roberts* 1 Introduction The overall perspective of the position of victims remains one of marginalisation, neglect and discard.1 Victims2 of violations of international human rights law or international humanitarian law committed in international or non-international armed conflict have long-term needs arising from the impact of the conflict. These needs may last a lifetime and have consequences across multiple aspects of the victims’ lives. While victims’ rights have been a growing focus of international law in recent years, the needs of victims of conflict are often a marginalized part of any discussion. Despite a proliferation of studies detailing the range of * Kirsten Roberts bcl, M.Litt., is a PhD candidate and a Dickson Poon Scholar at the Dickson Poon School of Law, King’s College London. From 2008 to 2013, she was Acting Deputy Chief Executive and Director of Research, Policy and Promotion of the Irish Human Rights Commission (ihrc), Ireland’s National Human Rights Institution (nhri). For the 2012/2013 academic year, she was a Visiting Researcher at Harvard Law School. From 2008 to 2011 she was also coordinator of the European Group of nhris. Prior to joining the ihrc, Ms Roberts worked as a legal officer in the icty. Her previous experience has included the Permanent Representation of Ireland to the Council of Europe, European Court of Human Rights, European Court of Justice, and Amnesty International. Ms Roberts has spoken widely and written on the topic of nhris and has acted as a resource person on nhris for the un Office of the High Commissioner for Human Rights (ohchr) and un Development Program (undp). The author wishes to thank Dr Philippa Webb, King’s College London, for her valuable comments and suggestions on an earlier draft of this chapter, and Ms Anna Soroka for her helpful comments and support on initial drafts. 1 T. van Boven, ‘Victim-Oriented Perspectives: Rights and Realities’, in T. Bonacker and C. Safferling (eds), Victims of International Crimes: An Interdisciplinary Discourse (2013). 2 The term victims in the present chapter is that of the United Nations Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, quoted below, except where indicated otherwise.

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issues arising for victims of conflict in the long-term, there has been a lack of development of standards at the international level to ensure that their needs are met. Current international standards relating to victims of conflict concentrate on issues of justice and justice-linked reparation, and do not clearly provide for long-term holistic support. Furthermore, in practice the international standards are approached within the more narrow focus of ‘justice’ and monetary compensation, and applied in the short-term in the aftermath of a conflict. This approach may ultimately fail victims by leaving them to deal with the consequences of the conflict unsupported. As the international legal scholar M. Cherif Bassiouni notes: Perhaps the most important goals of this process [of reparative or restorative justice] are the ‘re-humanisation’ of victims and their restoration as functioning members of society. Achieving these restorative goals is fundamental to both the peace and security of any State since it eliminates the potential of future revenge and any secondary victimisation that may result from the initial violation.3 It is this ‘re-humanisation’ or normalisation4 of victims of conflict that the present chapter proposes can be enhanced through an increased focus on the long-term needs of victims. In particular, this chapter contends that the longterm needs of victims may be better served through their explicit recognition as a category of persons meriting specific attention and consideration in the elaboration and application of law, policy and practice at the national level. Further, this chapter contends that National Human Rights Institutions (nhris) may be ideally placed to support victims’ rights and advocate for their needs in the long-term. By virtue of their position within the national infrastructure as the primary human rights body in a state, their existing work for victims of human rights violations, and ability to mainstream victims in their work, Paris Principle5 compliant nhris may be in a strong position to reduce the marginalisation and neglect faced by victims of conflict. 3 M. Cherif Bassiouni, ‘International Recognition of Victims’ Rights’, (2006) 6(2) Human Rights Law Review 203–279, at 231. 4 The un Global Counter-Terrorism Strategy Plan of Action recognizes the ‘dehumanising’ effect on victims and calls on States to consider putting national assistance systems in place that ‘would promote the needs of victims of terrorism and their families and facilitate the normalization of their lives’, un General Assembly Resolution un Doc. A/RES/60/288, 20 September 2006. The Plan of Action is included as an Annex. 5 Principles relating to the Status of National Institutions (The Paris Principles) Adopted by General Assembly resolution 48/134 of 20 December 1993, considered further below.

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This chapter begins by examining the current focus of the international standards for the rights of victims of conflict, with its concentration on justice and justice-linked reparation, as well as examining the more holistic approach to victims that has been taken in relation to other international instruments. Some of the issues faced by victims of conflict are then outlined, in order to demonstrate how justice or monetary compensation may be insufficient to meet victims’ needs. The complex policy and practical needs of victims is highlighted through the example of Northern Ireland’s system of support for victims and survivors, which indicates that a more holistic approach is warranted and that the needs of victims of conflict should be a focus at the national level. The chapter then examines the role and functions of nhris and provides some country-specific examples where nhris have already been active in advocating for victims’ rights, before concluding with some ideas as to how nhris have the potential to be active in reducing the marginalisation of victims going forward. 2

The Current Focus on the Rights of Victims of Conflict at the International Level: An Emphasis on Justice and Compensation

Certain rights of victims arising directly from their experience of armed conflict are well recognised in international law, in particular, the right to justice and the right to reparation. The primary international standard on the rights of victims are the un Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law adopted by the un General Assembly on 16 December 2005 (‘The Basic Principles’). The Basic Principles define victims as: […] persons who individually or collectively suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that constitute gross violations of international human rights law, or serious violations of international humanitarian law. Where appropriate, and in accordance with domestic law, the term ‘victim’ also includes the immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization.6 6 un Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross  Violations of International Humanitarian Law and Serious Violations of International

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Deriving from the international law of state responsibility7 and described by Bassiouni as ‘an international bill of rights for victims’,8 the Basic Principles outline specific rights for victims of conflict in relation to justice and the types of reparation to which victims have a right: restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition.9 These rights, considered further below, were not created by the Basic Principles, which ‘were meant to reflect the current state of international law on remedies and r­ eparations’.10

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8 9

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Humanitarian Law, Annexed to General Assembly Resolution un Doc. A/60/147 of 16 December 2005 (hereinafter ‘the Basic Principles’). This definition was taken as guidance by the Interna­tional Criminal Court (icc) in its consideration of the undefined concept of ‘harm’ in the icc Statute. The Prosecutor v. Thomas Lubanga Dyilo, Decision on Victims’ Participation’ 18 January 2008 ICC-01/04-01/06-1119, Trial Chamber Judgment, upheld by the Appeals Chamber Judg­ment on the appeals of The Prosecutor and The Defence against Trial Chamber I’s Decision on Victims’ Participation of 18 January 2008, ICC-01/04 -01/06 OA 9 OA 10, 11 July 2008, paras. 29–39. Article 1 of the draft Articles on State Responsibility provides ‘Every internationally wrongful act of a State entails the international responsibility of that State’, un Doc. A/CN.4/L.602/Rev.1, 26 July 2001. M. Cherif Bassiouni, ‘International Recognition of Victims’ Rights’, (2006) 6(2) Human Rights Law Review 203–279. Basic Principles, supra note 6, paras. 4, 19–23. See also, M. Cherif Bassiouni, Introduction to International Criminal Law (2012), at 118–119. The preamble to the un General Assembly Reso­lution adopting the Principles lists the international law sources of victims’ right to a remedy ‘[…] in particular Article 8 of the Universal Declaration of Human Rights, Article 2 of the International Covenant on Civil and Political Rights, Article 6 of the International Convention on the Elimination of All Forms of Racial Discrimination, Article 14 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and Article 39 of the Convention on the Rights of the Child, and of international humanitarian law as found in Article 3 of the Hague Convention respecting the Laws and Customs of War on Land of 18 October 1907 (Convention IV), Article 91 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) of 8 June 1977, and Articles 68 and 75 of the Rome Statute of the International Criminal Court’, and further recalls ‘the provisions providing a right to a remedy for victims of violations of international human rights found in regional conventions, in particular Article 7 of the African Charter on Human and Peoples’ Rights, Article 25 of the American Convention on Human Rights, and Article 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms’. Preamble to the Basic Principles. For an overview of the position of victims in international law, including the origins of victims’ rights see M. Cherif Bassiouni, ‘International Recognition of Victims’ Rights’, (2006) 6(2) Human Rights Law Review 203–279; see also generally C. Fernandez de Casadevants Romani, International Law of Victims (2012). Introductory Note of Former Special Rapporteur for the Sub-Commission on Prevention of Discrimination and Protection of Minorities Theo van Boven to the Basic Principles,

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Indeed, a similar set of victims’ rights was set out in the 1985 un Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. Although aimed primarily at victims of breaches of domestic criminal law, the 1985 Declaration identifies victims’11 rights to restitution and compensation, as well as ‘assistance’.12 In providing for victims, there has been a particularly strong focus by the international community on the right of victims to justice, evidenced by the establishment of tribunals or truth and reconciliation commissions, as well as other post-conflict justice mechanisms. Principle 4 of the Basic Principles provides: In cases of gross violations of international human rights law and serious violations of international humanitarian law constituting crimes under international law, States have the duty to investigate and, if there is sufficient evidence, the duty to submit to prosecution the person allegedly responsible for the violations and, if found guilty, the duty to punish her or him. The right to justice is also closely linked to the ‘right to truth’, contained in Principle 24 of the Basic Principles,13 and in some of the elements of Principle 11

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Section 4. The Preamble to the Guidelines provides that the Basic Principles ‘do not entail new international or domestic legal obligations […]’. The Declaration defined victims as follows: ‘1. ‘Victims’ means persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within Member States, including those laws proscribing criminal abuse of power. 2. A person may be considered a victim, under this Declaration, regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted and regardless of the familial relationship between the perpetrator and the victim. The term ‘victim’ also includes, where appropriate, the immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization’. Declaration of Basic Princ­iples of Justice for Victims of Crime and Abuse of Power, Annexed to General Assembly Resolution un Doc. A/RES/40/34, 29 November 1985. Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, Annexed to General Assembly Resolution un Doc. A/RES/40/34, 29 November 1985. As regards the term ‘assistance’, see para. 14 of the Declaration: ‘Victims should receive the necessary material, medical, psychological and social assistance through governmental, voluntary, community-based and indigenous means’. See M. Cherif Bassiouni, ‘International Recognition of Victims’ Rights’, (2006) 6(2) Human Rights Law Review 203–279, at 275 and fn. 360 for an overview of the recognition of the right to full disclosure of truth in international humanitarian law.

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22 (satisfaction) such as verification of facts and disclosure of truth and ‘judicial and administrative sanctions against persons liable for the violations’. A study on the right to truth by the un Office of the High Commissioner for Human Rights (ohchr) described the ‘inalienable right’ to know the truth ­vis-à-vis gross human rights violations and serious crimes under international law,14 being reaffirmed from the updated set of principles for the protection and promotion of human rights through action to combat impunity,15 and deriving from a range of international instruments.16 While the emphasis on justice, including the right to truth, is important for victims, transitional justice17 or post-conflict justice mechanisms necessarily place their emphasis on the prosecution of perpetrators and are not designed for the purpose of supporting the victims individually or collectively in the long-term.18 Furthermore, there are serious challenges in the implementation of the right to justice in practice, including for example, indications of high global levels of impunity, the long length of time victims may have to wait for justice and the limited scope of prosecutions when compared to the scale of crimes that may have 14 15

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Office of the United Nations High Commissioner for Human Rights, ‘Study on the right to the truth’, un Doc. E/CN.4/2006/91, para. 4. Updated set of principles for the protection and promotion of human rights through action to combat impunity, Addendum to the Report of the independent expert to update the set of principles to combat impunity, Diane Orentlicher, un Doc. E/CN.4/2005/102/ Add.1. Office of the United Nations High Commissioner for Human Rights, ‘Study on the right to the truth’, un Doc. E/CN.4/2006/91, 8 February 2006, paras. 4–32. Bassiouni describes truth as ‘an imperative, not an option’ and notes that: Understanding and public disclosure of the truth is important to victims because the truth (1) alleviates the suffering of the surviving victims; (2) vindicates the memory or status of the direct victim of the violation; (3) encourages the State to confront its dark past; and (4) through it, seek reform. See M. Cherif Bassiouni, ‘International Recognition of Victims’ Rights’, (2006) 6(2) Human Rights Law Review 203–279, at 275–276. Transitional Justice has been described as ‘a range of processes and mechanisms associated with society’s attempt to come to terms with a legacy of large-scale past abuses in order to ensure accountability, serve justice and achieve reconciliation. These may include both judicial and non-judicial mechanisms, with differing levels of international involvement (or none at all) and individual prosecutions, reparations, truth-seeking, institutional reform, vetting, or a combination thereof’. Report of the Secretary-General on the rule of law and transitional justice in conflict and post-conflict societies, S/2004/616, para. 8. For a useful overview of some transitional justice mechanisms and relevant literature in the area see Q. Eijkman, ‘Recognising the Local Perspective: Transitional Justice and Postconflict Reparations’, (2010) 10(3) Global Jurist.

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been committed during a conflict. The impact of justice mechanisms themselves are not without controversy. Indeed, there is a body of literature on the effect of post-conflict justice mechanisms on victims’ mental health.19 The degree to which justice aids the ‘re-humanisation’ of victims and combats their possible marginalisation and neglect is thus in question.20 2.1 Reparation As regards the long-term needs of victims, the right to reparation most clearly encompasses a duty on states to provide for victims in the long-term. It is the right to reparation on which a more holistic and long-term approach to victims of conflict can be developed, as will be seen below in relation to international instruments dealing with victims in other areas. The principle of reparation is clearly recognised in international law.21 In the 1927 International Court of Justice (icj) Factory at Chorzów case, the Court outlined the purpose of reparation; ‘reparation must, as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed’.22 Reparation is also clearly recognised in international human rights law.23 The Basic Principles view reparation 19

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See, e.g., J. O’Connell, ‘Gambling with the Psyche: Does Prosecuting Human Rights Violators Console Their Victims?’, (2005) 46(2) Harvard International Law Journal; D.  Mendeloff, ‘Trauma and Vengeance: Assessing the Psychological and Emotional Effects of Postconflict Justice’, (2009) 31(3) Human Rights, at 592–623. A 2002 study on Government Strategies on Victims in Post-conflict Societies, which considered Cambodia, Chile, Guatemala, Mozambique, Rwanda and South Africa, found a range of mechanisms for dealing with the ‘legacy of the past’, including truth and reconciliation commissions, investigations, reparation for victims, setting up of trauma centres and community self-help, and the development of ‘memory sites’. However, the study found dissatisfaction among victims, inadequate support and an emphasis on prosecution of perpetrators. The study also found high levels of impunity. G. Kelly and M. Fitzduff, Government Strategies on Victims in Post-conflict Societies, unu/incore University of Ulster/United Nations University 2002, at 2–3. Factory at Chorzów, Jurisdiction, Judgment No. 8, 1927, pcij Series A, No. 9, p. 21. The Court held that ‘it is a principle of international law that the breach of an engagement involves an obligation to make a reparation in an adequate form’. Ibid. Factory at Chorzów, Merits, Judgment No. 13, 1928, pcij Series A, No. 17, p. 47. For example, in its 2004 General Comment 31, the United Nations Human Rights Committee emphasised that ‘[w]ithout reparation to individuals whose Covenant rights have been violated, the obligation to provide an effective remedy, which is central to the efficacy of Article 2, paragraph 3, is not discharged’. Human Rights Committee General Comment 31, Nature of the General Legal Obligation on States Parties to the Covenant, un Doc. CCPR/C/21/Rev.1/Add.13 (2004). Article 2(3) of the International Covenant on

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in the context of justice.24 The Basic Principles were developed with an appreciation of the long-term. In his Study concerning the right to restitution, compensation, and rehabilitation for victims of gross violations of human rights and fundamental freedoms, which preceded the Basic Principles, then Special Rapporteur Theo van Boven recommended that ‘[a]ll agencies and mechanisms dealing with human rights and humanitarian issues at national and international levels should be mindful of the perspective of victims, and of the fact that victims often suffer long-term consequences of the wrongs inflicted on them’.25 However, the text of the Basic Principles does not explicitly include a duty on states to provide for victims’ needs in the long-term. They do however provide some elaboration on the nature of each of these rights and the duty on states. Principle 19 provides that restitution ‘includes, as appropriate: restoration of liberty, enjoyment of human rights, identity, family life and citizenship, return to one’s place of residence, restoration of employment and return of property’.26 Principle 20 provides that compensation should be provided for ‘any economically assessable damage’ resulting from a covered v­ iolation.27 Under Principle 21, rehabilitation ‘should include medical and psychological

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Civil and Political Rights provides; ‘Each State Party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted’. Principle 15 provides ‘[a]dequate, effective and prompt reparation is intended to promote justice by redressing gross violations of international human rights law or serious violations of international humanitarian law. Reparation should be proportional to the gravity of the violations and the harm suffered. In accordance with its domestic laws and international legal obligations, a State shall provide reparation to victims for acts or omissions which can be attributed to the State and constitute gross violations of international human rights law or serious violations of international humanitarian law. In cases where a person, a legal person, or other entity is found liable for reparation to a victim, such party should provide reparation to the victim or compensate the State if the State has already provided reparation to the victim’. Final Report Submitted by Mr Theo van Boven, Special Rapporteur, ‘Study concerning the right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms’, 2 July 1993, un Doc. E/CN.4/Sub.2/1993/8. Basic Principles, supra note 6, para. 19. Principle 20 provides these could be such as ‘(a) Physical or mental harm; (b) Lost opportunities, including employment, education and social benefits; (c) Material damages and

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care as well as legal and social services’. Satisfaction under Principle 22 has a justice focus and can include, inter alia, public disclosure of the truth, commemorations and public apologies.28 Finally, Principle 23 on guarantees of nonrepetition lists measures the State should take to ‘contribute to prevention’.29 The concept of reparations was also set down in Article 75 of the Rome Statute of the International Criminal Court (icc),30 and has been applied in

28

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30

loss of earnings, including loss of earning potential; (d) Moral damage; (e) Costs required for legal or expert assistance, medicine and medical services, and psychological and social services’. Basic Principles, supra note 6, para. 20. Principle 22 provides that ‘Satisfaction should include, where applicable, any or all of the following: (a) Effective measures aimed at the cessation of continuing violations; (b) Verifi­ cation of the facts and full and public disclosure of the truth to the extent that such disclosure does not cause further harm or threaten the safety and interests of the victim, the victim’s relatives, witnesses, or persons who have intervened to assist the victim or prevent the occurrence of further violations; (c) The search for the whereabouts of the disappeared, for the identities of the children abducted, and for the bodies of those killed, and assistance in the recovery, identification and reburial of the bodies in accordance with the expressed or presumed wish of the victims, or the cultural practices of the families and communities; (d) An official declaration or a judicial decision restoring the dignity, the reputation and the rights of the victim and of persons closely connected with the victim; (e) Public apology, including acknowledgement of the facts and acceptance of responsibility; (f) Judicial and administrative sanctions against persons liable for the violations; (g) Commemorations and tributes to the victims; (h) Inclusion of an accurate account of the violations that occurred in international human rights law and international humanitarian law training and in educational material at all levels’. Basic Principles, supra note 6, para. 22. Principle 23 provides ‘Guarantees of non-repetition should include, where applicable, any or all of the following measures, which will also contribute to prevention: (a) Ensuring effective civilian control of military and security forces; (b) Ensuring that all civilian and military proceedings abide by international standards of due process, fairness and impartiality; (c) Strengthening the independence of the judiciary; (d) Protecting persons in the legal, medical and health-care professions, the media and other related professions, and human rights defenders; (e) Providing, on a priority and continued basis, human rights and international humanitarian law education to all sectors of society and training for law enforcement officials as well as military and security forces; (f) Promoting the observance of codes of conduct and ethical norms, in particular international standards, by public servants, including law enforcement, correctional, media, medical, psychological, social service and military personnel, as well as by economic enterprises; (g) Promoting mechanisms for preventing and monitoring social conflicts and their resolution; (h) Reviewing and reforming laws contributing to or allowing gross violations of international human rights law and serious violations of international humanitarian law’. Basic Principles, supra note 6, para. 23. Former Special Rapporteur Theo van Boven noted that ‘the Statute […] notably in Article 75 dealing with reparation to victims, bears in its intent and wording the imprint of the (then) draft Principles and Guidelines’.

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the context of international criminal law by the icc. In the 2012 Trial Chamber decision in the Lubanga case,31 elaborating on Article 75(1) of the icc Statute, which provides for reparations including restitution, compensation and rehabilitation,32 the Chamber found that: The Statute and the Rules introduce a system of reparations that reflects a growing recognition in international criminal law that there is a need to go beyond the notion of punitive justice, towards a solution which is more inclusive, encourages participation and recognises the need to provide effective remedies for victims.33 The Chamber noted the ‘well-established’ right to reparations in universal and regional human rights treaties,34 as well as in international instruments such as the Basic Principles, and held that reparations were for the purpose of affording ‘justice to the victims by alleviating the consequences of the wrongful acts’, and deterring future violations.35 The Judgment relies heavily on the 31 32

33 34

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See generally Report of the Court on Principles Relating to Victims’ Reparations, Twelfth Session of the Assembly of States Parties, 8 October 2013, ICC-ASP/12/39. Article 75(1) of the Rome Statute of the International Criminal Court provides ‘The Court shall establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. On this basis, in its decision the Court may, either upon request or on its own motion in exceptional circumstances, determine the scope and extent of any damage, loss and injury to, or in respect of, victims and will state the principles on which it is acting’. The Prosecutor v. Thomas Lubanga Dyilo, Decision establishing the principles and procedures to be applied to reparations, ICC-01/04-01/06, Trial Chamber I, 7 August 2012, para. 177. The Trial Chamber set out the sources of this right as follows ‘Article 8 of the Universal Declaration of Human Rights which contains provisions relating to the right of every individual to an ‘effective remedy’ for acts violating fundamental rights; Article 9(5) of the International Covenant on Civil and Political Rights which refers to an ‘enforceable right to compensation’; Article 6 of the International Convention on the Elimination of All Forms of Racial Discrimination which provides for a right to ‘seek […] just and adequate reparations or satisfaction for any damages suffered’; Article 14(1) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment which provides for ‘an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible’; Article 21(2) of the African Charter on Human and Peoples’ Rights which refers to a right to recovery of property and adequate compensation, and Article 63(1) of the American Convention on Human Rights which calls for the situation giving rise to the breach of a right or freedom ‘be remedied’ and that ‘fair compensation be paid to the injured party’, fn. 372. The Trial Chamber also highlighted the need for particular attention to be given to ­victims of sexual and gender violence, children, the elderly and those with disabilities, para. 189,

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Basic Principles in elaborating the concepts of reparation at the icc, and in its consideration the Trial Chamber indicates that reparations may include longterm measures. This is particularly the case as regards the right to rehabilitation, which the Court held ‘shall include the provision of medical services and healthcare (particularly in order to treat hiv and aids); psychological, psychiatric and social assistance to support those suffering from grief and trauma; and any relevant legal and social services’.36 In the context of the facts of the case, rehabilitation included contributing ‘to the effective reintegration of former child soldiers’ including education and vocational training.37 The Chamber also held that victims of sexual and gender-based violence have ongoing needs that should be taken into consideration by the Court, finding that ‘[…] the consequences of these crimes are complicated and they operate on a number of levels; their impact can extend over a long period of time; […] and they require a specialist, integrated and multidisciplinary approach’.38 Regarding the scope of ‘proportional and adequate’ reparations the Chamber noted the ‘need to support programmes that are self-sustaining, in order to enable victims, their families and communities to benefit from these measures over an extended period of time’.39 However, while this concept of ‘self-sustaining’ could be considered as an acknowledgement that reparation programmes may need to continue in the long-term, it does not clearly imply a continuing duty on states to provide for victims.40 In this regard it is noteworthy that the Court did not use ‘long-term’ in its considerations. While the right to reparation in international law, international criminal law, and international human rights law includes scope for supporting the long-term needs of victims of conflict, particularly through the principle of rehabilitation, it is not yet defined as requiring such an approach. This is 36

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the Trial Chamber notes this is pursuant to Article 68 of the Statute and Rule 86 of the Rules. The Prosecutor v. Thomas Lubanga Dyilo, Decision establishing the principles and procedures to be applied to reparations, ICC-01/04-01/06, Trial Chamber I, 7 August 2012, para. 233. Ibid., para. 179. Ibid., para. 207. Ibid., para. 246. The Victims Rights Working Group, in examining principles for reparation before the icc considered that one of the principles for the development of reparation orders should be ‘Feasibility. In determining time frames for implementing reparation benefits, due regard should be given to both the immediate short term needs of the victim as well as long term needs’. Victims’ Rights Working Group, Establishing Effective Reparation Procedures and Principles for the International Criminal Court, September 2011 at 9.

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illustrated by its application in practice which is often focussed on monetary compensation.41 Although of considerable importance to the victim, the focus on monetary compensation, which may be short-term and low-level and difficult to implement in practice, means that a broader approach to reparation that clearly provides for the long-term needs of victims should be considered. Increased attention to the concept of rehabilitation could potentially provide this approach, yet even where reparation programmes have placed an equal emphasis on rehabilitation, in addition to monetary compensation and restitution, their application in practice faces considerable challenges and may often lack a long-term strategy.42 Bassiouni highlights some of the limitations of national, regional and international reparation mechanisms, including: the lack of binding international instruments, states’ unwillingness, and a lack of enforcement mechanisms for human rights instruments.43 The ohchr in its handbook on reparation programmes similarly notes that ‘[t]he contexts in which reparations programmes are established are frequently characterized by weak institutional capacity, fractured social relations, very low levels of trust and a scarcity of financial resources’.44 The ohchr handbook particularly notes the challenges of reparation programmes in reaching all victims. This can be seen in practice, for example, in a 2013 study of the post-conflict victim assistance programme in Nepal by Harvard Law School’s International Human Rights Clinic, which found that the programme discriminated against certain categories of victims, and did not have a long-term strategy.45 The challenges 41 The ohchr handbook on reparations programmes concentrates on monetary compensation, for example. Office of the United Nations High Commissioner for Human Rights Rule of Law Tools for Post-conflict States—Reparations Programmes, United Nations, New York and Geneva, 2008. 42 For an overview of reparation schemes see M. Cherif Bassiouni, ‘International Recognition of Victims’ Rights’, (2006) 6(2) Human Rights Law Review 203–279, at 218–223. 43 M. Cherif Bassiouni, ‘International Recognition of Victims’ Rights’, (2006) 6(2) Human Rights Law Review 203–279, at 204. 44 ohchr, Rule of Law Tools for Post-conflict States—Reparations Programmes, United Nations, New York and Geneva, 2008, at 10. 45 International Human rights Clinic at Harvard Law School and Centre for Civilians in Conflict, Assistance Overdue: Ongoing Needs of Civilian Victims of Nepal’s Armed Conflict, 2013. The Harvard Law School International Human Rights Clinic with the ngo Centre for Civilians in Conflict study of the Interim Relief Programme (irp) established by the Government of Nepal in 2008 to support victims of the 1996–2006 conflict in that country assessed the government’s programmes from the perspective of ‘how well victims’ needs and wants have been or could be met’ (at 2). The report recommended that the government of Nepal should ‘modify the irp and ultimately replace it with a more comprehensive, long-term program’. And that ‘when designing and implementing both the assistance

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faced in the implementation of reparation programmes further speak to the added value of a holistic, national-level approach to the needs of victims of armed conflict. As regards the development of a national-level approach to the rights of victims of conflict, and the potential role for nhris in relation to such an approach, which will be considered further below, the Basic Principles explicitly require states to implement the Principles at the national level. The Basic Principles emphasise the obligation to ensure respect for and implementation of international human rights and humanitarian law within the domestic law of each state, which includes the duty to take legislative, administrative and other measures to prevent violations, to investigate and take action against violations, to provide victims with access to justice and to ‘provide effective remedies to victims, including reparation […]’.46 In relation to the treatment of victims, the Basic Principles require that a ‘State should ensure that its domestic laws, to the extent possible, provide that a victim who has suffered violence or trauma should benefit from special consideration and care to avoid his or her re-traumatisation in the course of legal and administrative procedures designed to provide justice and reparation’. Similarly, the introductory provisions to the specific elements of reparation, noted above, refer explicitly to national implementation.47 Yet the reality of domestic implementation of the Basic Principles appears limited. Recognition of the Need for a Long-term Holistic Approach to Victims’ Needs in Other International Instruments Thus, while the current approach to the rights of victims of armed conflict has not itself seen the development of a clear long-term holistic approach, there are a number of examples outside this context where there has been considerable development as regards the ongoing responsibilities of states to victims.

2.2



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program and the [truth, reconciliation and disappearances] commission, the government should consult with victims’ (at 7). The report recommended that future needs had to be addressed and that there was a need to ensure victims of torture and ill-treatment, including sexual violence, previously not covered in the irp, were included (at 8–9, 40), discrimination against women (at 45), access to assistance programmes (at 44–47), politicisation and corruption (at 48) were also highlighted as issues. Basic Principles, supra note 6, paras. 2 and 3. For example, Principle 16 provides that ‘States should endeavor to establish national programmes for reparation and other assistance to victims in the event that the parties liable for the harm suffered are unable or unwilling to meet their obligations’. Basic Principles, supra note 6, at para. 16.

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Advancing the approach of the Basic Principles, Article 24 of the 2006 Inter­ nat­ ional Convention for the Protection of All Persons from Enforced Disappearance48 ‘[follows] the various forms of reparation as set out in the Principles and Guidelines’.49 In particular, it provides that victims50 have, inter alia, the ‘right to know the truth’, to obtain reparation for ‘material and moral damages’ and other forms of reparation including restitution, rehabilitation, satisfaction (including restoration of dignity and reputation), guarantees of non-repetition and adequate compensation.51 Article 24 has been described as being ‘more elaborate and specific about the victims’ right to obtain reparation than any previous international human rights treaty’.52 Recognising the need for the Convention to be reflected in national law, in its checklist for implementation of the Convention, Amnesty International proposed that in order to implement Article 24 effectively, states must ensure that the definition of a ‘victim’ for the purposes of the Convention in national law covers both the person who has disappeared and their family or friends and that national law is consistent with the Basic Principles.53 The 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and their Destruction54 (‘Mine Ban Treaty’) specifically includes an obligation for support to be given to victims 48

49

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Adopted on 20 December 2006 during the sixty-first session of the General Assembly by resolution A/RES/61/177. The Convention entered into force on 23 December 2010. United Nations, Treaty Series, vol. 2715, un Doc. A/61/448 un Doc. C.N.737.2008.TREATIES-12 (Depositary Notification). Introductory Note of Former Special Rapporteur for the Sub-Commission on Prevention of Discrimination and Protection of Minorities Theo van Boven, to the Basic Principles, Section 4. United Nations Audiovisual Library of International Law, 2010, available at http:// legal.un.org/avl/pdf/ha/ga_60-147/ga_60-147_e.pdf (last accessed 25 March 2014). Article 24(1) provides that for the purposes of the Convention, ‘victim’ means the disappeared person, and any individual who has suffered harm as the direct result of an enforced disappearance’. A/RES/61/177, Annex. Article 24(1) provides: ‘For the purposes of this Convention, ‘victim’ means the disappeared person and any individual who has suffered harm as the direct result of an enforced disappearance’. Introductory Note of Former Special Rapporteur for the Sub-Commission on Prevention of Discrimination and Protection of Minorities Theo van Boven, to the Basic Principles, supra note 49, Section 4. Amnesty International, ‘No Impunity for enforced disappearances: checklist for effective implementation of the international convention for the protection of all persons from enforced disappearance’, 2011. Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of AntiPersonnel Mines and on their Destruction, Oslo, 18 September 1997. The Convention

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that has been developed by states into more comprehensive obligations. The preamble to the Convention provides as follows: ‘[w]ishing to do their utmost in providing assistance for the care and rehabilitation, including the social and economic reintegration of mine victims’. Article 6(3) provides that ‘[e]ach State Party in a position to do so shall provide assistance for the care and rehabilitation, and social and economic reintegration, of mine victims and for mine awareness programs […]’. The Cartagena Action Plan 2010–2014, which emerged from the second review conference of States Parties, explicitly recognised the importance of a holistic approach and adopted a range of actions for the implementation of Article 6(3).55 The Plan provides: States Parties are resolved to provide adequate age- and gender-sensitive assistance to mine victims, through a holistic and integrated approach that includes emergency and continuing medical care, physical rehabilitation, psychological support, and social and economic inclusion in accordance with applicable international humanitarian and human rights law, with the aim of ensuring their full and effective participation and inclusion in the social, cultural, economic and political life of their communities.56 It also acknowledged the need for an integrated national-level approach: Victim assistance should be integrated into broader national policies, plans and legal frameworks related to disability, health, education, employment, development and poverty reduction, while placing particular emphasis on ensuring that mine victims have access to specialised services when needed and can access on an equal basis services available to the wider population.57 55

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entered into force on 1 March 1999. United Nations, Treaty Series, vol. 2056. un Doc. C.N.163.2003.TREATIES-2 (Depositary Notification). Cartagena Action Plan 2010–2014: Ending the suffering caused by anti-personnel mines, Adopted by the second review conference of the states parties to the convention on the prohibition of the use, stockpiling, production and transfer of anti-personnel mines and on their destruction, 11 December 2009, annexed to Second review conference of the states parties to the Convention on the prohibition of the use, stockpiling, production and transfer of anti-personnel mines and on their destruction, un Doc. APLC/CONF/2009/9, 17 June 2010. Ibid., para. 12. Paragraph 13 of the Cartagena Action Plan was preceded by the Nairobi Action Plan 2­ 005–2009, which included commitments to physical and mental rehabilitation and support, and social integration. Nairobi Action Plan 2005–2009, Adopted at the First review

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Similar attention to the needs of victims was given in the 2008 Convention on Cluster Munitions58 (‘Cluster Munition Convention’), which includes a specific article on victim assistance.59 Its preamble provides multiple references on the ‘rights and needs’ of victims, including that State Parties are ‘[d]etermined also to ensure the full realisation of the rights of all cluster munition victims and recognising their inherent dignity’, and are ‘[r]esolved to do their utmost in providing assistance to cluster munition victims, including medical care, rehabilitation and psychological support, as well as providing for their social and economic inclusion’. Article 5, on victim assistance, goes further than the Mine Ban Treaty, requiring that states ‘adequately provide age- and gender-sensitive assistance, including medical care, rehabilitation and psychological support, as well as provide for [victims’] social and economic inclusion’ and setting out in detail on what this obligation entails in Article 5(2).60 The Vientiane Action

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conference of state parties to the convention on the prohibition of the use, stockpiling, production and transfer of anti-personnel mines and their destruction. un Doc. APLC/CONF/2004/5, 9 February 2005. A leading Non-Governmental Organisation working in the area, the International Campaign to Ban Landmines (icbl), developed a set of Guiding Principles for Victim Assistance, ‘based on Article 6 of the Mine-Ban Treaty, the Nairobi Action Plan and other existing legal obligations and political commitments of States Parties’. Its principles include: Inclusion; Non-Discrimination; Gender and AgeConsiderations; Accessibility; Variety, Comprehensiveness and integrated nature of services; Capacity Building, sustainability and ownership. As regards the last component, the Guiding Principles recognise that ‘Victim assistance needs to be conceived as a longterm activity since it will need to be undertaken through the lifetime of all current and future victims’. Guiding principles for victim assistance compiled by the working group on victim assistance of the international campaign to ban landmines, International Campaign to Ban Landmines, 2007. Convention on Cluster Munitions, Dublin, 30 May 2008. United Nations, Treaty Series, vol. 2688. The Convention entered into force on 1 August 2010. un Doc. C.N.776.2008. TREATIES-2 (Depositary Notification). Article 2 of the Cluster Munition Convention defines victims as: ‘[…] all persons who have been killed or suffered physical or psychological injury, economic loss, social marginalisation or substantial impairment of the realisation of their rights caused by the use of cluster munitions. They include those persons directly impacted by cluster munitions as well as their affected families and communities’. Article 5(2) provides that states should ‘(a) Assess the needs of cluster munition victims; (b) Develop, implement and enforce any necessary national laws and policies; (c) Develop a national plan and budget, including timeframes to carry out these activities, with a view to incorporating them within the existing national disability, development and human rights frameworks and mechanisms, while respecting the specific role and contribution of relevant actors; (d) Take steps to mobilise national and international resources; (e) Not discriminate against or among cluster munition victims, or between cluster munition

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Plan adopted by the States Parties to the Cluster Munition Convention in 2010, set specific timeframes for these actions.61 There has also been a holistic approach for assistance to and rehabilitation of victims of torture that has included recognition of long-term needs through the provision of specific services. Article 14 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment62 provides a right to redress for victims of torture. The Committee against Torture’s General Comment on Article 14 interprets this obligation as including both long-term and holistic approaches.63 In doing so, the Committee recognised

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victims and those who have suffered injuries or disabilities from other causes; differences in treatment should be based only on medical, rehabilitative, psychological or socioeconomic needs; (f) Closely consult with and actively involve cluster munition victims and their representative organisations; (g) Designate a focal point within the government for coordination of matters relating to the implementation of this Article; and (h) Strive to incorporate relevant guidelines and good practices including in the areas of medical care, rehabilitation and psychological support, as well as social and economic inclusion’. Vientiane Action Plan adopted by the States Parties to the Convention on Cluster Munitions (ccm) Vientiane, Lao People’s Democratic Republic, 9–12 November 2010. The 2006 Proto­ col V on the Explosive Remnants of War to the 1980 Convention on Certain Chemical Weapons, in Article 8(2), also includes explicit provision for victims ‘Each High Contracting Party in a position to do so shall provide assistance for the care and rehabilitation and social and economic reintegration of victims of explosive remnants of war. Such assistance may be provided, inter alia, through the United Nations system, relevant international, regional or national organisations or institutions, the International Committee of the Red Cross, national Red Cross and Red Crescent societies and their International Federation, non-governmental organisations, or on a bilateral basis’. un Doc. CCW/MSP/2003/2. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punish­ ment, New York, 10 December 1984. The Convention entered into force on 26 June 1987. United Nations, Treaty Series, vol. 1465. General Comment No. 3 (2012), Implementation of Article 14 by States parties, un Doc. CAT/C/GC/3 of 13 December 2012, para. 13. ‘In order to fulfil its obligations to provide a victim of torture or ill-treatment with the means for as full rehabilitation as possible, each State party should adopt a long-term, integrated approach and ensure that specialist services for victims of torture or ill-treatment are available, appropriate and readily accessible. These should include: a procedure for the assessment and evaluation of individuals’ therapeutic and other needs, based on, inter alia, the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (The Istanbul Protocol); and may include a wide range of inter-disciplinary measures, such as medical, physical and psychological rehabilitative services; re-integrative and social services; community and family-oriented assistance and services; vocational training; education, etc. A holistic approach to rehabilitation which also takes into consideration the strength and resilience of the victim is of utmost importance. Furthermore,

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‘the elements of full redress under international law and practice’ outlined in the Basic Principles.64 A 2013 Human Rights Council Resolution on rehabilitation of torture victims, which cited the Basic Principles in its preamble, recognized the need for a holistic approach to be taken to the rehabilitation of victims, including medical and psychological care, vocational services, and interim economic support,65 and that rehabilitation services should be ‘without limitation in time’.66 The un also operates a Voluntary Fund for Victims of Torture to partially fund victim support projects.67 It is interesting to note that nhris have been active in the area of supporting victims of torture. The Association for the Prevention of Torture (apt), an international non-governmental organisation, long proposed a specific role for nhris in promoting the right to reparation, rehabilitation and compensation for victims of torture, providing legal support and encouraging their government to support victims.68 Some nhris are designated as the national preventative mechanism under the Optional Protocol to the Convention against Torture (opcat),69 and others active in monitoring and reporting on torture. The International Coordinating Committee of nhris, the regional nhri networks (Africa, AsiaPacific, Americas and Europe) and individual nhris, have all been active on this issue, including making statements at the Human Rights Council and reporting to the Committee against Torture on their state’s compliance.70

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victims may be at risk of re-traumatization and have a valid fear of acts which remind them of the torture or ill-treatment they have endured. Consequently, a high priority should be placed on the need to create a context of confidence and trust in which assistance can be provided. Confidential services should be provided as required’. General Comment, Ibid., para. 6. Human Rights Council, Torture and other cruel, inhuman or degrading treatment or punishment: rehabilitation of torture victims, un Doc. A/HRC/RES/22/21, para. 13. Ibid., para. 15. The fund was created through General Assembly Resolution 36/151, 16 December 1981. apt Position Paper, The Role of National Human Rights Institutions in the prevention of torture and cruel, inhuman and degrading treatment or punishment, 2005. The ohchr in its Operational Guide for nhris for preventing torture, published with the apt and AsiaPacific Forum of nhris, outlines the range of activities for nhris in preventing torture, whether they are the National Preventative Mechanism under the Optional Protocol to the Convention against Torture or Not. apf, apt and ohchr, Preventing Torture: An Operational Guide for National Human Rights Institutions (2010). See List of National Prevention Mechanisms under opcat, compiled by the ohchr at www.ohchr.org/EN/HRBodies/OPCAT/Pages/NationalPreventiveMechanisms.aspx (last accessed 1 August 2014). See, e.g., S. Pasha, ‘National Human Rights Institutions and Their Role in the Struggle against Torture in the Asia-Pacific Region’, available at projects.essex.ac.uk/ehrr/

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While it is clear that there are well-established rights in international law for victims of conflict, it is not clear that the present post-conflict approach to victims at the international level is providing for their long-term needs. The Lubanga judgment of the icc and implementing action plans of the Mine Ban Treaty and Cluster Munitions Convention demonstrate clear recognition at the international level of the need for long-term national-level approaches by states and provide a basis for an enhanced approach to the needs of victims of armed conflict that may indicate future progress.71 While such recognition for victims of conflict through the elaboration of international standards would provide a strong impetus for improving long-term support to victims, it is the approach and implementation at the national level that is crucial to ensuring real benefits for victims in practice. At this point, it is worth briefly considering some of the specific issues that may arise for victims before examining the role that nhris may play in promoting their needs at the national level and developing holistic long-term approaches. 3

The Long-term and Complex Impact of Conflict on Victims and Potential Policy Responses

While it is not possible within the present space constraints to give a comprehensive overview of the range of studies and reports on these issues, consideration of even a few such studies highlights the complexity and breadth of issues faced by victims and illustrates why a long-term holistic approach is vital to supporting victims. It is demonstrated by these studies that the impact of conflict on victims can extend across all areas of their lives including severe negative consequences for their physical and/or mental health, and socio-economic situation including education and employment. As can be seen even from the citations in this chapter, studies on victims of conflict come from a range of disciplines outside of legal scholarship, including from medicine, psychology, sociology, and political science. Bassiouni notes that ‘[t]he literature on victims

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6N2/Pasha.pdf (last accessed 25 March 2014); Statement by the Network of African National Human Rights Institutions on Behalf of ‘A’ Status National Human Rights Institutions in Africa, Human Rights Council 16th Session, 28th February to 25th March 2011. Theo van Boven notes that ‘[i]n spite of an overall depressive scene of victim’s neglect, internationally and domestically, we are also witnessing hopeful signs that may indicate some change of mind, a re-orientation in the opinion iuris and morals’. T. van Boven, ‘Victim-Oriented Perspectives: Rights and Realities’, in T. Bonacker and C. Safferling (eds), Victims of International Crimes: An Interdisciplinary Discourse (2013).

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is as disparate as are the disciplines concerned with the subject’ and includes ‘victimology, criminology, penology, criminal law and procedure, comparative criminal law and procedure, international criminal law and human rights’.72 But studies from across disciplines indicate that the impact of a conflict can remain for the lifetime of the victim, long after a conflict has ended. Some of these consequences may be specific to the nature of the conflict. For example, the un General Assembly in a 2008 resolution on survivors of the Rwanda genocide recognised ‘the numerous difficulties faced by survivors of the 1994 genocide in Rwanda, particularly the orphans, widows and victims of sexual violence, who are poorer and more vulnerable as a result of the genocide, especially the many victims of sexual violence who have contracted hiv and have since either died or become seriously ill with aids’.73 However, there is also striking similarity in impact and issues for victims of all conflicts, for example, in relation to mental health where there is a particularly large body of literature about the long-term consequences of conflict.74 It has been stated that ‘[t]he occurrence of a wide variety of psychological symptoms and syndromes in the populations in conflict situations is widely documented by available research’.75 A 2007 study on the psychological consequences of war trauma on women in Bosnia and Herzegovina found that ‘[l]ong-term exposure to war and post war stressors caused serious psychological consequences in civilian women, with ptsd [post-traumatic stress disorder] being only one of the disorders in the wide spectrum of posttraumatic reactions’.76 Similarly, the impact of conflict on the long-term health of victims of conflict gives rise to many of the same types of needs irrespective of the nature of that conflict. There has 72 73

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M. Cherif Bassiouni, ‘International Recognition of Victims’ Rights’ (2006) 6(2) Human Rights Law Review 203–279, at 246. un General Assembly, Assistance to survivors of the 1994 genocide in Rwanda, particularly orphans, widows and victims of sexual violence, General Assembly Resolution un Doc. A/RES/62/96, 1 February 2008. For an overview see for example: C.A. Sousa, ‘Political Violence, Collective Functioning and Health: A Review of the Literature’, (2013) 29(3) Medicine, Conflict and Survival, 169– 197; C.A. Sousa, ‘War and Mental Health: A Brief Overview’, (2000) (July) British Medical Journal 232–235; D. Pedersen, ‘Political Violence, Ethnic Conflict, and Contemporary Wars: Broad Implications for Health and Social Well-Being’, (2002) 55(2) Social Science & Medicine 175–190. There is a dedicated journal on the impact of conflict on health entitled Conflict and Health www.conflictandhealth.com. R. Srinivasa Murthy and R. Lakshminarayana, ‘Mental Health Consequences of War: A Brief Review of Research Findings’, (2006) 5(1) World Psychiatry, at 25–30. M. Klarić et al., ‘Psychological Consequences of War Trauma and Postwar Social Stressors in Women in Bosnia and Herzegovina’, (2007) 48(2) Croatian Medical Journal, at 167–176.

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been considerable attention given to the health consequences of conflictrelated atrocities on victims including specifically in relation to disability.77 A 2007 study of the Experiences of Women War-Torture Survivors in Uganda (‘The Uganda Study’) for example, demonstrates the long-term health issues that victims of sexual violence may face, as well as the complexity of legal and policy considerations required.78 It found that ‘[t]he vast array of health effects that resulted from women’s war experiences was overwhelming’. A 2012 study in Northern Ireland on the needs of injured people and their families during the 40 years of violence there highlights the complexity of the situation of victims79 and the broad nature of the challenges faced in that jurisdiction: Many people sustained severe and traumatic injuries, which have had long-term effects on all aspects of their lives. Their injuries included blast and gunshot damage, loss of limbs, and loss of hearing and vision. Some people have injuries that are not visible, for example, as a result of embedded shrapnel or gunshot wounds, which continue to cause pain and ­distress. […] Injured people expressed concern about both the lack of access to services such as emotional support, counselling, psychological treatment of trauma symptoms, family support, and care for carers. Their health problems such as drug and alcohol misuse and weight management issues have largely gone unaddressed due to a lack of service provision.80 It is clear that these types of issues are not ones that can easily or quickly be resolved, and further, that justice or monetary compensation may be insufficient to provide genuine restitution to a victim. Indeed, the recommendations made by some of the studies quoted above recognise the complex range of issues faced by victims and the resulting need for a holistic approach at the national level. The un General Assembly’s resolution on Rwanda, cited above, called for ‘education for orphans, medical care and treatment for victims of 77 78

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See, e.g., C.J.L. Murray et al., ‘Armed Conflict as a Public Health Problem’, (2002) 324(7333) British Medical Journal, at 346–349. H. Liebling-Kalifani et al., ‘Experiences of Women War-Torture Survivors in Uganda: Implications for Health and Human Rights’, (2007) 8(4) Journal of International Women’s Studies. For the definition of victim and survivor used in Northern Ireland, see further below. M. Breen-Smyth, The Needs of Individuals and Their Families Injured as a Result of the Troubles in Northern Ireland, Commissioned by WAVE Trauma Centre, May 2012, at 9–10.

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sexual violence, including hiv-positive victims, trauma and psychological counselling, and skills training and microcredit programmes aimed at promoting self-sufficiency and alleviating poverty’. The Uganda Study made a wide range of recommendations including on the necessity for ‘specific health provision within the [Ugandan] Ministry of Health’s policies for Uganda and sustainable services […] that are integrated into the existing primary health care system’.81 It also noted ‘[t]he urgent need for holistic gender-sensitive services for women war-survivors and their families […] utilising empowerment principles and integrated into existing primary health care systems, community and political support networks’.82 The Northern Ireland study recommended that ‘[c]are should be taken to ensure that all policies, services and gestures of acknowledgement should be inclusive of people injured in the Troubles, in order to address a widespread sense of marginalisation on the part of injured people’.83 These studies, which are just a sample of the available studies on the impact of conflict on victims, show the range of health and social issues faced by victims. They highlight the complexity of dealing with these issues and the policy responses required and suggest that a national-level approach may be appropriate and provide improved support for victims. Such an approach should include an independent body focussing on the needs of victims and advocating for their rights and the provision of services to support them. In developing a holistic national-level policy response to these long-term needs, the example of Northern Ireland is particularly interesting as regards the type of approach that may be required. The Victims and Survivors (Northern Ireland) Order 2006 (the ‘2006 Order’) defines victims and survivors as follows: […] an individual appearing to the [Commission] to be any of the following: (a) someone who is or has been physically or psychologically injured as a result of or in consequence of a conflict-related incident; 81 82

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Ibid. at 13, citations omitted. It highlighted the need for ‘income-generating activities and micro-finance schemes, poverty reduction strategies in conjunction with specialist health programmes would improve the health outcomes for [survivors]’ as well as the need for legal redress and compensation, and ‘training and sensitisation programmes of government, local leaders and health workers in Uganda on the gendered effects of war and the services and policy changes that are required. Uganda Study at 13, citations omitted. M. Breen-Smyth, The Needs of Individuals and Their Families Injured as a Result of the Troubles in Northern Ireland, Commissioned by WAVE Trauma Centre, May 2012, at 15. The ‘Troubles’ is the commonly used term to refer to the conflict that took place in Northern Ireland from the 1960s to 1998.

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(b) someone who provides a substantial amount of care on a regular basis for an individual mentioned in paragraph (a); or (c) someone who has been bereaved as a result of or in consequence of a conflict-related incident.84 The 2006 Order thus suggests a broader approach to the concept of who is a ‘victim’ and a ‘survivor’, for example, through the attention to carers,85 compared to the definition provided by the Basic Principles. The Northern Ireland framework for victims and survivors includes several key pieces of victim and survivor-specific legislation, and a dedicated Commission. The 2006 Order established a Commissioner for Victims and Survivors in Northern Ireland. In 2008, the Commissioner was replaced by a Commission for Victims and Survivors following the enactment of the Commission for Victims and Sur­ vivors Act (Northern Ireland) 2008.86 The Commissioner and subsequently the Commission was tasked with, inter alia, promoting awareness and keeping under review the adequacy and effectiveness of law and practice on matters relating to the interest of victims.87 In 2009, the Government published a 10-year ‘Strategy for Victims and Survivors in Northern Ireland’.88 Designed ‘to provide the outline of a coherent and comprehensive approach for taking forward work on a range of issues relating to victims and survivors’, its victim and survivor-centred approach is built around the Commission for Victims and Survivors, Victims and Survivors Forum,89 and Victims and Survivors 84 85

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The Victims and Survivors (Northern Ireland) Order 2006, 2006 No. 2953 (N.I. 17) (‘2006 Order’). As regard the impact of conflict on carers in Northern Ireland, see, e.g., Marie BreenSmyth, ‘Injured and Disabled Casualties of the Northern Ireland Conflict: Issues in Immediate and Long-term Treatment, Care and Support’, (2013), 29(3) Medicine, Conflict and Survival 244–266, at 256–257. Commission for Victims and Survivors Act (Northern Ireland) 2008, available at www .legislation.gov.uk/nia/2008/6/contents (last accessed 25 March 2014). For an overview of some of the research done in Northern Ireland see the literature review in the following study: Marie Breen-Smyth, The Needs of Individuals and Their Families Injured as a Result of the Troubles in Northern Ireland, Commissioned by WAVE Trauma Centre, May 2012. Office of the First Minister and Deputy First Minister, Strategy for Victims and Survivors (2009), available at www.ofmdfmni.gov.uk/strategy-for-victims-and-survivors-november -2009.pdf (last accessed 1 August 2014). Provided for under the 2006 Order, the forum is intended to provide ‘consultation and discussion’ for the Commission and ‘has 26 members, 23 of whom meet the definition of being a victim or a survivor and are representative of the breadth of victim experience. The forum’s three associate members bring unique knowledge, skills and experience to

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Service,90 as the implementers of the Strategy.91 In 2012, the Commission for Victims and Survivors published a Comprehensive Needs Assessment ‘to inform Government of the services required to improve the quality of life and create the conditions where victims and survivors can flourish in society’.92 The assessment highlights the complexity of issues, issuing recommendations in relation to: • health and wellbeing: including capacity within state services to address the mental and physical needs of victims and survivors, and the need for awareness raising with primary care practitioners; • social support; • individual financial needs, in particular for the bereaved, a carers programme and support for Chronic Pain Management, Disability, Education; • truth, justice and acknowledgement; • welfare support; • trans-generational issues and young people; • personal and professional development.93



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enrich its work’. Report of Ms Kathryn Stone (Commission for Victims and Survivors) to the Committee for the Office of the First Minister and deputy First Minister of the Northern Ireland Assembly, 17 April 2013, available at www.niassembly.gov.uk/AssemblyBusiness/Official-Report/Committee-Minutes-of-Evidence/Session-2012-2013/April-2013/ Commission-for-Victims-and-Survivors/ (last accessed 1 August 2014). The Victims and Survivors Service states ‘[b]y administering funding that is made available by the Office of the First Minister and Deputy First Minister (ofmdfm), the vss provides assistance directly to individuals, and supports organisations that deliver services to victims and survivors across Northern Ireland’. See www.victimsservice.org. Office of the First Minister and Deputy First Minister, Strategy for Victims and Survivors (2009), at 1. Northern Ireland Commission for Victims and Survivors, Comprehensive Needs Assess­ ment, Belfast, February 2012. Ibid. The Commission has been independently reviewed with a 2013 kpmg Report finding that: ‘[…] a Commission should have a substantial role in supporting Government and Departmental policy objectives in meeting the needs of victims and survivors and assisting the Government in making and implementing well-informed decisions and improving public services relating to victims and survivors’. The Report approached its assessment in the following manner: ‘In assessing if the Commission’s services are required in the future, kpmg have considered the following: Is it essential to Government and Depart­ mental policy objectives? Is there sufficient demand from stakeholders? Would providing a Commission and its services be a justifiable use of taxpayers’ money? What would happen in the absence of a Commission?’.

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This system is supplemented by a large number of civil society organisations providing support and care to victims in the jurisdiction.94 As will be seen below, the nhri in the jurisdiction, the Northern Ireland Human Rights Commission (nihrc)95 has also been active in supporting victims and survivors in Northern Ireland. While it is not without its shortcomings,96 the Northern Ireland example illustrates a national-level support system that has tried to develop a holistic policy and services for victims and survivors of conflict. The example demonstrates the range of issues faced by victims and survivors. The other examples given above of studies on the consequences of conflict for victims demonstrate the gravity and breadth of the lasting impact of conflict. Both the studies on the long-term impact of conflict on victims and the Northern Ireland example of a national-level approach highlight the potential inadequacies of a short-term ­justice or monetary compensation scheme in addressing victims’ needs. An approach grounded within the national context, which places the victims’ needs at its centre, and focuses on their human rights, could go a long way towards addressing the shortcomings of justice or monetary compensation schemes in providing for victims’ needs. In order to support the development and maintenance of a domes­tic approach, a national-level body to support victims is likely to assist in implementation. It is contended that, as part of a national support framework, or even in the absence of such a framework, nhris could provide this and play an integral role in promoting the rights and needs of victims. nhris already exist in a large number of states, as will be seen below, and have a mandate and functions that place them in a position to be able to promote victims’ rights in the long term. This mandate, functions and role as potential supporters and advocates of the rights of victims of conflict will be considered in the next section. 4

National Human Rights Institutions and Victims’ Rights

nhris are established to promote and protect the rights of victims of human rights violations; this includes victims of violations of international humanitarian 94

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For a list of relevant civil society organizations see, Conflict Archive on the Internet (cain), List of Victims Groups/Agencies, available at http://cain.ulst.ac.uk/victims/ groups/victimgroups.html#list (last accessed 25 March 2014). See further S. Livingstone, ‘The Northern Ireland Human Rights Commission’, (1988–1999) 22 Fordham International Law Journal 1465. See for example the findings of the 2012 study The Needs of Individuals and Their Families Injured as a Result of the Troubles in Northern Ireland, Commissioned by wave Trauma Centre, May 2012, noted above.

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law, torture, trafficking, and enforced disappearances, as well as victims of other human rights violations such as victims of gender based violence or hate crimes. nhris may be well placed to promote and protect victims’ rights in the long-term for a number of reasons. Firstly, they are established to be a permanent part of the infrastructure of a state as promoters and protectors of the human rights of the people within that state. Many nhris are founded in the national constitution and there is a requirement that they be established at a minimum through national legislation. This position endows them with a certain legitimacy to speak for human rights, a space to raise issues to national prominence, and a longevity to monitor victims’ needs in the long-term.97 Secondly, nhris can integrate consideration of victims into their existing work by taking a ‘victim-oriented approach’98 in relation to the broad scope of issues that they already engage with, which ranges across the entire spectrum of rights arising in law, policy and practice. Third, nhris are also ideally placed to monitor and propose measures for the protection of the largest possible number of victims, even those that may not have been recognised by or have fallen outside of the scope of a formal transitional justice process or who are survivors of a conflict suffering its consequences. Finally, nhris are an increasingly prominent means of promoting and protecting international human rights standards at the domestic level, and act as a link between the international system and the national level, which means that they can monitor their state’s compliance with international standards for victims’ rights.99 Since the adoption by the un General Assembly of the Principles Relating to the Status of National Institutions for the promotion and protection of human rights (‘the Paris Principles’)100 in 1993, there has been a gradual move towards establishing nhris in states around the world. From as early as 1946 the idea of 97 See Paris Principles and General Observations of the International Coordinating Committee’s Sub-Committee on Accreditation. 98 The General Principles provide ‘Convinced that, in adopting a victim-oriented perspective, the international community affirms its human solidarity with victims of violations of international law, including violations of international human rights law and international humanitarian law, as well as with humanity at large, in accordance with the following Basic Principles and Guidelines’. 99 This type of institution is specifically referenced in monitoring the Convention on the Rights of Persons with Disabilities (Article 33), and Optional Protocol to the Convention against Torture (Articles 3, 4, 17–23, 29 and 35). See also generally Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Guidelines on national preventive mechanisms, un Doc. CAT/OP/12/5. 100 Principles relating to the Status of National Institutions (The Paris Principles) Adopted by General Assembly Resolution 48/134 of 20 December 1993.

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establishing national level institutions to support the international human rights system has been proposed.101 The modern concept of nhris was first actively proposed in 1978 at a Seminar on National and Local Institutions for the Promotion and Protection of Human Rights held in Geneva. The Guidelines arising from the seminar provide that such institutions should be established to ‘act as a source of human rights information for the Government and people’.102 However, it was the 1993 un Vienna Declaration and Programme of Action and the contemporaneous adoption of the Paris Principles that set out the international standards for nhris from which the development of these institutions has expanded to its present level. The Vienna Declaration reaffirmed: […] the important and constructive role played by national institutions for the promotion and protection of human rights, in particular in their advisory capacity to the competent authorities, their role in remedying human rights violations, in the dissemination of human rights information, and education in human rights.103 The Vienna Declaration supported the establishment and strengthening of nhris while ‘recognizing that it is the right of each State to choose the framework which is best suited to its particular needs at the national level’.104 This is reflected in the Paris Principles, which were adopted as guidelines for the establishment of nhris,105 meaning that in implementing the Paris Principles, un Member States have a broad discretion in the form adopted nationally. The Paris Principles intended that states would therefore develop a national institution that best suits their country’s needs, as well as the institutional, cultural, 101 The Economic and Social Council (ecosoc) invited un member states to ‘consider the desirability of establishing information groups or local human rights committees within their respective countries to collaborate with them in furthering the work of the Commis­ sion on Human Rights’ ecosoc Resolution 9(II) (21 June 1946). In 1960, ecosoc Resolution 772 B (XXX) (1960) also called on states to establish national-level institutions. 102 Guidelines on the Structure and Functioning of National and Local Institutions for the Promotion and Protection of Human Rights, endorsed by unga Res 33/46 (1978), un Doc A/RES/33/46 (18 December 1978). 103 Vienna Declaration and Programme of Action Adopted by the World Conference on Human Rights in Vienna on 25 June 1993, para. 36. 104 Ibid. 105 The Paris Principles had been developed at a 1991 workshop held in Paris. See Report of the International Workshop on National Institutions for the Promotion and Protection of Human Rights (Paris, 7–9 October 1991) un Doc. E/CN.4/1992/43 (16 December 1991).

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legal and societal framework. With over one hundred nhris in existence around the world in 2014,106 it is clear that this discretion has led to a proliferation of forms of nhris, and no two are identical. nhris can however be categorised into a number of general models. A useful way to categorise nhris is by their overall structure, which gives four broad forms: Human Rights Commissions, Ombuds-Institutions, Human Rights Institutes and Consultative Commissions. The Paris Principles encouraged the creation of independent national institutions founded in law with a broad mandate to promote and protect human rights. Depending on the structure and functions given to the nhri at the national level, they will have some or all of the following powers and functions: • • • •

advice or recommendations on draft legislation or policy, dealing with individual complaints or cases, human rights enquiries or investigations, human rights education and awareness raising including promoting the ratification of and adherence to international treaties, • parallel reporting to un treaty monitoring bodies,107 and • research into specific human rights issues or questions. nhris’ outputs are generally advice, recommendations and decisions, and they rarely have any enforcement powers. nhris do however engage with all human rights, economic, social and cultural, civil and political, and may have strong persuasive influence by virtue of their mandate and prominence. Their work enables them to concentrate on human rights in law, policy and practice at a macro level in the state, as well as advocating for specific vulnerable groups or even individuals, particularly where the nhri has a case-handling function. The Paris Principles also detail the features of these institutions, including 106 In this regard, nhris refers to institutions recognised by the International Coordinating Committee of nhris. See Chart of the status of national institutions accredited by the international coordinating committee of national institutions for the promotion and ­protection of human rights—Accreditation status as of 28 January 2014, available at www .ohchr.org/Documents/Countries/NHRI/Chart_Status_NIs.pdf (last accessed 25 March 2014). 107 The Paris Principles identify a function for nhris in linking the international human rights system to the national level; for example, ‘3. A national institution shall, inter alia, have the following responsibilities: … (e) To cooperate with the United Nations and any other organization in the United Nations system, the regional institutions and the national institutions of other countries that are competent in the areas of the protection and promotion of human rights’.

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their mandate, the appointment of their head or board, staffing, resources, and engagement with other national and international human rights actors, including non-governmental organisations (ngos) and inter-governmental human rights organisations. The Paris Principles advocated for the establishment of national-level institutions that would be an independent, direct link between the national and international systems for the protection of human rights. nhris do not represent the state, nor are they ngos, nor inter-governmental organisations, and nhris can be said to occupy a ‘4th space’.108 This space puts nhris in a unique position109 within a state to act for the promotion and protection of the rights of all individuals and groups within their country including for victims of conflict. One important attribute of nhris is their independence. In the context of nhris working to support victims of conflict, this attribute reduces the possibility, if not eliminating it entirely, of accusations of partisanship or favouring one side of a conflict over another. This may be of particular relevance for nhris operating in the context of a country with a history of ethnic conflict. The independence requirement is set down by the Paris Principles and is monitored in practice through the accreditation process of the international network of nhris; the International Coordinating Committee (‘Coordinating Committee’). Individual nhris, which, following a review by the Coordinating Committee’s Sub-Committee on Accreditation, are assessed as fully compliant with the Paris Principles, are given ‘A’ status accreditation by the Coordinating Committee. This ‘A’ status confers an enhanced degree of recognition for the respective nhri within the un system and includes, for example, the right to make statements before and submit documents to the Human Rights Council.110 As of January 2014, there were seventy nhris accredited as fully 108 See further K. Roberts, ‘The Role and Functioning of the International Coordinating Committee of National Human Rights Institutions in International Human Rights Bodies’, in J. Wouters and K. Meuwissen (eds), National Human Rights Institutions in Europe: Comparative, European and International Perspectives (2013). See also K. Roberts, ‘National Human Rights Institutions as Diplomacy Actors’, in M. O’Flaherty et al. (eds), Human Rights Diplomacy: Contemporary Perspectives (2011), at 221–247; K. Roberts and E. MacAodha, ‘National Human Rights Institutions in Europe’, in W. Benedek, F. Benoît-Rohmer, W. Karl and M. Nowak (eds.), European Yearbook on Human Rights (2011), at 257–539. 109 See generally A. Smith, ‘The Unique Position of Human Rights Institutions: A Mixed Blessing?’, (2006) 28 Human Rights Quarterly 4. 110 un ga Resolution 60/251 of 3 April 2006 establishing the Human Rights Council provides that the Council is to ‘work in close cooperation in the field of human rights with Governments, regional organisations, national human rights institutions and civil society’. un hrc Resolution 5/1 of 18 June 2007, Rule 7 provides for the participation of nhris.

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compliant with the Paris Principles, i.e. ‘A’ status and some thirty-five others that were accredited as partly compliant (‘B’ status) or non-compliant (‘C’ s­ tatus).111 This peer-review mechanism is in the unique position of being recognised within the un system as the process by which the independence of nhris can be assessed. It is worth underscoring two other aspects of nhris which are particularly interesting in the context of their work as advocates for victims of conflict: their relative autonomy to change and modify the focus of their work in comparison to many state-established institutions, and their role in transitional justice. Within their broad mandate to ‘promote and protect’ human rights, nhris can choose their thematic priorities and their approach, for example, whether to place more emphasis on legislative review or policy proposals, awareness and education, or complaint handling. This is relevant to the present consideration because what nhris can and should do at the national level is to some degree influenced by nhris themselves. Thus, unlike many other (if not most) state institutions, nhris have a considerable degree of autonomy in determining their own priorities. This autonomy is inherent in the independence prescribed by the Paris Principles. While nhris’ autonomy to determine their own priorities should not be overstated, given that nhris generally have specific functions such as those noted above that they are required to carry out under the national law or constitution, they are still institutions with a certain degree of flexibility that allows them to choose areas of specific focus as they feel it required. In the context of victim advocacy therefore, nhris do not require that the state either specifically tasks them with this role, nor that the state has any explicit victims’ policy or legislation in place. nhris can ground their work in the relevant international standards such as the Basic Principles even in the absence of specific national laws. Secondly, nhris operate at the international level as a network through the Coordinating Committee and the regional networks. nhris often make statements on human rights issues 111 See Chart of the status of national institutions accredited by the international coordinating committee of national institutions for the promotion and protection of human rights—Accreditation status as of 28 January 2014, available at www.ohchr.org/ Documents/Countries/NHRI/Chart_Status_NIs.pdf (last accessed 1 August 2014). The International Coordinating Committee’s Sub-Committee on Accreditation assesses the compliance of nhris with the Paris Principles in law and practice. It has developed a series of guidelines known as General Observations and Templates, which serve as interpretative tools of the Paris Principles. See also un ga, Report of the Secretary-General on Process Currently Utilized by the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights to Accredit National Institutions in Compliance with the Paris Principles, un Doc. A/HRC/13/45, 18 January 2010.

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collectively in international fora, and thus are in a strong position to advocate for under-supported groups or call for elaborations or amendments to existing international standards. In the context of the present discussion it is also worth noting that nhris may play a specific role in transitional justice. Human Rights Council Resolution 9/10 on Human Rights and Transitional Justice specifically recognises the role of nhris in transitional justice settings.112 The possibility for nhris to positively contribute to the human rights of a state has been recognised in practice through the inclusion of nhris within peace agreements. Indeed, the establishment of institutions at the national level as part of peace processes started considerably before the Paris Principles. It has been noted that ‘human rights ombudsmen and human rights commissions have been called for, established, or strengthened through the peace accords or Security Council mandated complex peace missions for: El Salvador, Guatemala, Bosnia and Herzegovina, Sierra Leone, Kosovo, East Timor and Afghanistan’.113 Thus it has been suggested that ‘[t]he typical peace blueprint involves a central deal on democratic access to power (including minority rights where relevant), with a human rights framework including measures such as […] human rights commissions […]’.114 In relation to victim support, an ohchr 2008 Guidance Note on nhris and transitional justice provides examples of how nhris can and have engaged in transitional justice programmes including through monitoring and reporting on violations, investigations, complaints handling, information gathering documentation and archiving, and cooperation with judicial mechanisms. The Guidance Note suggests a rather extensive mandate for nhris in this area.115 112 Human Rights Council Resolution 9/10 Human Rights and Transitional Justice un Doc. A/ HRC/Res/9/10; ‘7. Recognizes the important role played in the realization of transitional justice goals and in the reconstruction of the society, as well as in the promotion of the rule of law and accountability, by: (a) Victims’ associations, human rights defenders and other actors of civil society, as well as national human rights institutions created in conformity with the Paris Principles’. 113 L.C. Reif, The Ombudsman, Good Governance, and the International Human Rights System (2004), at 258. 114 C. Bell, Peace Agreements and Human Rights (2000), at 1. For a general overview of nhris in the context of peace agreements, see International Council on Human Rights Policy, National Human Rights Institutions and Peace Agreements: Establishing National Human Rights Institutions in Divided Societies, 2006. 115 ‘nhris engagement on transitional justice should seek to support processes that ensure accountability and combat impunity, provide remedies to victims, promote respect for the rule of law, and strengthen democracy and sustainable peace’. un ohchr, Guidance Note on National Human Rights Institutions and Transitional Justice, 27 September 2008, at 3.

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Under the heading of ‘Assistance to Victims’ the Guidance Note proposes that nhris, inter alia, promote comprehensive assistance to victims (financial and non-financial), engage in gender appropriate assistance, implement witness protection programs and coordinate the activities of both national and international bodies to prevent duplicated efforts.116 It is the combination of nhri attributes: their unique position, independence, engagement with civil society and the public, monitoring and advocating international standards at the national level, and a clear focus and expertise on human rights, which means that nhris may be ideally suited to advocate for the rights of victims of conflict. In addition, nhris have a clearly recognised role in transitional justice and are recognised in that context as advocates for victims. Some nhris have already been active in this area, and their work merits further consideration at this point as it underscores the role that nhris can have in promoting a holistic approach to victims’ rights at the national level. Some Examples of nhris’ National-Level Approaches to Victims’117 Rights While it is not possible to detail all of the activities of nhris around the world that have worked to support victims, the following examples illustrate some of the ways in which nhris have worked to advocate for victims and how nhris may be able to use their position and mandate to support victims in the future. Some nhris have a specific mandate in their founding legislation in relation to victims of human rights violations, such as the Nigeria Human Rights Commission, whose mandate includes the power to ‘assist victims of human rights violations and seek appropriate redress and remedies on their behalf’,118 or the ‘A’ status Burundi National Independent Human Rights Commission which has a specific mandate to support victims,119 as does the Zambian Human Rights Commission, which may, inter alia, recommend compensation for victims of human rights violations.120

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116 un ohchr, Guidance Note on National Human Rights Institutions and Transitional Justice, 27 September 2008, at 20–21. 117 In the following section, ‘victims’ refers to the usage of this term by the relevant nhri. 118 National Human Rights Commission Act 1995, 5(c), Supplement to Official Gazette Extraordinary No. 28, Vol. 82, 6th October 1995—Part A, as amended by the National Human Rights Commission Act 2010. 119 Mandate of the Commission Nationale Indépendante des Droits de l’Homme du Burundi, available at http://cnidh.bi/mandat (last accessed 1 August 2014). 120 Zambia Human Rights Commission, Powers, provides ‘The Human Rights Commission, where it considers it necessary, may recommend: (a) Punishment of any officer found by

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The nihrc was established—along with its counterpart in the Republic of Ireland, the Irish Human Rights Commission—as part of the Good Friday/ Belfast Peace Agreement,121 which ended the 40-year long conflict in the jurisdiction. While, as seen above, there is a developed institutional framework within that jurisdiction for victims and survivors, the nihrc still perceives an active role for itself in supporting the human rights of victims and survivors.122 For example, it has been active in monitoring and commenting upon the rights of victims and survivors in Northern Ireland. In 2003, it published a report on Human Rights and Victims of Violence arising out of the Commission’s Victims’ Rights Project.123 In its 2008 Advice to the Secretary of State on a Bill of Rights for Northern Ireland, the nihrc also proposed specific rights for victims, including victims of the Troubles.124 It also highlighted the impact on child victims and trans-generational issues. The nihrc has provided its views on the development of the framework for victims and survivors noted above, including in response to a state consultation process on Services for Victims and Survivors of the Troubles and Establishment of a Commissioner for Victims and Survivors, in 2005,125 and on the Draft Victims and Survivors (Northern Ireland) Order 2006126. In its observations, it criticized the lack of a rightsbased approach and proposed how such an approach might be applied.

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the Commission to have perpetrated an abuse of human rights; (b) The release of a person from detention; (c) The payment of compensation to a victim of human rights abuse, or to such victim’s family; (d) That an aggrieved person seek redress in a court of law; or (e) Such other action as it considers necessary to remedy the infringement of human rights’. www.hrc.org.zm/content.php?id=201 (last accessed 25 March 2014). The agreement reached in the multi-party negotiations, available at www.gov.uk/ government/uploads/system/uploads/attachment_data/file/136652/agreement.pdf (last accessed 1 August 2014). See for example, Speech by Professor Michael O’Flaherty, Chief Commissioner of the Northern Ireland Human Rights Commission, Human Rights and the Victims of the Troubles, available at www.nihrc.org/index.php/news/item/257-human-rights-and-the -victims-of-the-troubles (last accessed 7 November 2013). Northern Ireland Human Rights Commission, Human Rights and Victims of Violence (2003). Northern Ireland Human Rights Commission, ‘A Bill of Rights for Northern Ireland— Advice to Secretary of State for Northern Ireland’, (2008), at 106–109. Northern Ireland Human Rights Commission, ‘Services for Victims and Survivors of the Troubles and Establishment of a Commissioner for Victims and Survivors—Response of the Northern Ireland Human Rights Commission’, (2005). Northern Ireland Human Rights Commission, ‘Draft Statutory Instrument, The Victims and Survivors (Northern Ireland) Order 2006—Response of the Northern Ireland Human Rights Commission’, (2006).

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The ‘A’ status Human Rights Commission of Sierra Leone (‘hrcsl’) provides a particularly interesting example in relation to its engagement with victims of conflict, as, similar to the Northern Ireland Human Rights Commission, it was established as a result of a peace process. The hrcsl was specifically tasked in the context of the transitional justice mechanism in that country. Established in 2004 by act of parliament following the 1999 Lomé Peace Accord127 and the 2004 Truth and Reconciliation Commission Report, it became fully operational in 2007.128 The hrcsl describes its mission as to ‘take the lead role in building a culture of human rights (including respect for individual responsibilities) which maintains human dignity for all in Sierra Leone in full compliance with the constitution, laws, international and regional instruments, through effective partnership and collaboration’.129 The hrcsl has the authority to carry out investigations and inquiries into human rights abuses, to receive complaints, review legislation, awareness and education, and ‘monitoring and documenting’ violations among other tasks. It has played an active role in the implementation of the recommendations of the Truth and Reconciliation Commission (trc).130 Article XXV of the Peace Agreement foresaw a specific oversight role for the hrcsl in the protection of human rights in post-conflict Sierra Leone.131 The hrcsl reports on the implementation of the Truth and Reconciliation Commission Recommendations and highlights some of the issues for victims, including challenging the position taken by the Government. In its 2011 report on the human rights situation in the country, the hrcsl states ‘[n]o funding was provided by the Government of Sierra Leone for the implementation of the Reparations Programme’.132 127 Peace Agreement cetween The Government of Sierra Leone and the Revolutionary United Front of Sierra Leone, 18 May 1999, available at www.sierra-leone.org/lomeaccord.html. 128 Source: www.HRCSL.org. See also Z. Webster, ‘Africa’s National Human Rights Institutions and the Responsibility to Protect’, (2010) 2 Global Resp. Protect, 458–478, at 469. 129 Source, hrscl available at www.hrcsl.org/?q=content/vision-mission-and-core-values (last accessed 1 August 2014). 130 See generally M. O’Flaherty, ‘Sierra Leone’s Peace Process: The Role of the Human Rights Community’, (2004) 26(1) Human Rights Quarterly, at 29–62. 131 Article XXV (1) provides: ‘The Parties pledge to strengthen the existing machinery for addressing grievances of the people in respect of alleged violations of their basic human rights by the creation, as a matter of urgency and not later than 90 days after the signing of the present Agreement, of an autonomous quasi-judicial national Human Rights Commission’. See generally C. Evans, The Right to Reparation in International Law for Victims of Armed Conflict (2012), in particular, Chapter 8 Case Study: Reparations in Sierra Leone. 132 Human Rights Commission of Sierra Leone, The State of Human Rights in Sierra Leone— 2011, 2011.

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In the context of a nhri operating within a situation of an ongoing armed conflict, the ‘A’ status Afghanistan Independent Human Rights Commission (aihrc) is a particularly interesting example of the role an nhri can play for the rights of victims. The aihrc’s own reports highlight the stark reality of the circumstances in which it operates, including the ‘deteriorating security situation’ and the challenges it faces from ‘weak rule of law, weak government in the provinces and districts […] [c]orruption in the Afghan government institutions and the presence of illegal armed groups […]’.133 Despite the challenge of its circumstances, the aihrc has been vocal and active in relation to the situation of victims of the conflict in that country. It directly monitors the impact of the conflict on the civilian population,134 and its activities include ‘advocacy to minimize civilian casualties during the current armed conflict in the country’ and ‘advocacy for the implementation of the government’s program for peace, reconciliation and justice in Afghanistan (Transitional Justice) and the protection of victims’ rights’.135 It has issued a number of reports on the human rights impact of the conflict, including making findings in relation to human rights and international humanitarian law abuses.136 In a 2008 report on Insurgent Abuses against Afghan Civilians,137 the aihrc reported on the farreaching consequences of the human rights abuses it found had been committed by insurgents including on employment, health services, and education.138 The ‘A’ status nhri of Indonesia, Komnas Ham, has been active in using its mandate to promote the rights of victims of conflicts that occurred in certain regions of Indonesia. Komnas Ham has a specific role in conducting inquiries into alleged gross violations of human rights, including historical violations. It has used its position as the nhri to independently report to international treaty bodies about the Indonesian Government’s victim assistance provisions. For example, in its 2013 submission to the un Human Rights Committee on Indonesia’s compliance with iccpr Article 2 on the right to an effective

133 Afghanistan Independent Human Rights Commission, Annual Report 1391 [2012–2013], at 56. 134 See for example, Annual Report 1391 [2012–2013], at 49. 135 Afghanistan Independent Human Rights Commission Annual Report 1391 [2012–2013], available at www.aihrc.org.af (last accessed 1 August 2014). 136 For a list of Afghanistan Independent Human Rights Commission reports, see www.aihrc .org.af/en/research-reports (last accessed 1 August 2014). 137 Available at www.aihrc.org.af/media/files/Research%20Reports/english/Eng_anti_G.pdf (last accessed 1 August 2014). 138 Afghanistan Independent Human Rights Commission, Annual Report 1391 [2012–2013] at 34–36.

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remedy, it reported that the regulation on remedies for victims of gross violations of human rights was ineffective because of the discontinuation of investigations by the state.139 In 2013, Komnas Ham issued a report on victims of gross violations of human rights in Aceh.140 There are numerous other examples of the involvement of nhris in advocating for victims of conflict or widespread violations of human rights. In 1993, the National Commissioner for the Protection of Human Rights in Honduras, which became an accredited nhri in 2000,141 reported on disappearances in that country in the preceding 13 years and called on the government to establish a truth commission.142 The Commission on Human Rights of the Philippines has a dedicated ‘Assistance and Visitorial Office’ which is the ‘oversight entity of the [nhri] in the mobilization of resources for the provision of assistance services to human rights victims and their families’ and among other tasks, is responsible for developing standards and monitoring policies relating to victims.143 The ‘A’ status Nepal Human Rights Commission has supported the prosecution of perpetrators of gross human rights violations and according to Human Rights Watch ‘[…] has identified over 1,000 unresolved cases of disappearances during Nepal’s civil war’.144 The Kenyan National Commission on Human Rights, also ‘A’ status, has investigated allegations of gross violations of human rights, and has been active in the transitional justice process in the country including supporting victims’ access to that process.145 In its 2012 submission to the Human Rights Committee on Kenya’s compliance with the iccpr, it called for the state to ‘[p]ut in place an appropriate comprehensive reparations mechanism targeting immediate and long term needs of 139 un Human Rights Committee, Comments of the Indonesian National Human Rights Commission on Indonesia’s Compliance with the International Covenant on Civil and Political Rights, 14 June 2013, at 3–6. The Comments also set out the legal background of Komnas Ham, at 1–2. 140 Jakarta Globe, Indonesia: Komnas ham Report Puts Spotlight on Aceh Violations, 15 August 2013. 141 See International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights Chart of the Status of National Institutions, 11 February 2013. 142 P.B. Hayner, ‘Fifteen Truth Commissions—1974 to 1994: A Comparative Study’, (1994) (16) (4) Human Rights Quarterly, 597–655, at 606. 143 See the Commission’s website: www.chr.gov.ph/MAIN%20PAGES/services/hr_protect2_ avo.htm#avo (last accessed 1 August 2014). 144 Nepal: Appoint Independent Rights Commissioners—With Terms Expired, Human Rights Protections in Limbo, Human Rights Watch, 19 September 2013. 145 See, e.g., Kenya National Commission on Human Rights statement on its mandate, available at www.knchr.org/Departments/ReformsandAccountability.aspx (last accessed 1 August 2014).

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the victims of 2007 post-election violence as well as victims of historical human rights violations’.146 The nhri of Columbia (Defensoría del Pueblo) called for victim participation in peace talks between the government and guerrilla groups,147 and has a specific focus on the rights of and providing assistance to victims. The unique positioning, independence, prominence, mandate, and expertise of nhris means they may be well placed to promote and protect victims of conflict. nhris can potentially influence law and policy-makers, raise issues to national prominence, and elaborate on the meaning of international standards within their national contexts. This section has not considered the potential risks of nhri engagement in victims’ rights issues, but it is worth briefly noting that relying on nhris may also entail certain challenges. As some of the examples highlight, some nhris operate in difficult circumstances and may be operating during or post-conflict. nhris will need to be particularly sensitive to ensuring that there is no bias or discrimination in their work. To provide some oversight on this point, the peer-review process of the Subcommittee on Accreditation may be utilised by the community of nhris to monitor the activity of nhris towards victims, particularly in states emerging from conflict, and this may for example be a means of checking the work of nhris to ensure that there is no disadvantage faced by victims. There is no reason to suppose, however, that the engagement of nhris poses any risk greater than that already present in the national system, which would otherwise provide for victim support, and indeed, their engagement may pose less risk given the external attention paid to their activities. 5 Conclusions Both in Rwanda and outside, individuals, policy makers, donors and governments are tired of hearing about victims, and about the atrocities of the genocide. Everyone wants to put this to rest, to move forward beyond genocide. People want to close this ugly chapter.148 146 Kenya National Commission on Human Rights Report to the Human Rights Committee to inform its Review of Kenya’s Third Periodic Report on Implementation of the Provisions of the International Covenant on Civil and Political Rights, April 2012, at 6. 147 Ombudsman Urges Participation of Victims in Colombia Peace Talks, Columbia Reports, 21 November 2013. See also www.defensoria.org.co (last accessed 1 August 2014). 148 African Rights and REDRESS, Survivors and Post-Genocide Justice in Rwanda: Their Experi­ ences, Perspectives and Hopes, November 2008. For an overview of some of the issues

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This quotation, from a 2008 ngo report on the experiences of genocide survivors in Rwanda highlights one of the challenges of keeping victims’ rights to the fore, and the risk that as time passes, victims’ needs will be forgotten or marginalised. This chapter has sought to set out the current approach in international law to victims of conflict, which has a strong focus on justice and monetary compensation. Using examples from studies on the impact of conflict on victims, it was highlighted that such a focus may not be sufficient to meet victims’ long-term needs. Indeed, there are some indications, from both the application of the Basic Principles by the icc and the development of action plans under other international instruments, that this long-term requirement is perhaps being increasingly recognised. The chapter then examined the potential of nhris as national-level focal points for victims’ rights. While it has not been possible within this chapter to comprehensively examine all of these issues, the chapter has rather sought to emphasise the gaps that exist, the possible shift in approach towards long-term needs, and the potential for nhris to engage with victims’ rights at the national level and to monitor the implementation of long-term holistic supports and services. The long-term impact of conflict on victims warrants an approach at the national level that considers the needs of victims in law, policy, and practice over the course of their lifetime, in accordance with the effects of the conflict on each individual. Despite an abundance of studies detailing the range of issues arising for victims of conflict in the long-term, there has been a lack of elaboration of standards at the international level to ensure that such needs are met. Yet standards and implementing mechanisms in relation to victims of explosive remnants of war, for example, and the judgment of the icc in Lubanga indicate that there may be a shift in thinking towards a more holistic longer-term approach. These sources further demonstrate that despite the absence of specific reference to an obligation on states to provide for victims’ ongoing needs in the Basic Principles, the definition of reparations already provided for in international law is broad enough to allow for a more holistic approach, in particular through the principle of rehabilitation. By taking a holistic national-level approach, based on international standards, the rights and needs of victims can be better served in the long-term. Furthermore, keeping the victims at the forefront including through a victimcentred approach and directly involving victims, can help to ensure the real needs and impact on victims are identified and that they are not marginalised. Finally, even if the current international standard of reparation is broad enough to provide for a long-term obligation on states, clear recognition at the international level of the range of issues faced by victims and the long-term consequences of conflict on individuals and corresponding duty on states, will

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help to place attention on victims’ needs, draw together discussions and findings from diverse fields, and create a needed shift in thinking. As suggested above, because of their unique position, nhris may be ideally placed to advocate for the situation of victims of conflict in their state. nhris can take into account national systems, traditions of justice and concepts of reparation in their work and thus promote the implementation of and elaborate on the Basic Principles within the national context. Existing national implementation models could be used to support the development of a holistic approach to victims of conflict utilising the Basic Principles as the relevant international standards. The examples of the Mine-Ban Treaty and Cluster Munitions Convention action plans could be employed in the development of policy approaches;149 and, a specific national action plan can be developed for victims of conflict to provide a comprehensive approach to the integration of the relevant standards in national law, policy and practice. Other implementation models could also or alternatively be drawn on. Although focussing on the 1985 Declaration, the un Office for Drug Control and Crime Prevention Handbook on Justice for Victims150 provides a number of policy suggestions that may be instructive in supporting victims of conflict. The handbook proposes that ‘policies to improve the treatment of victims should be based on a comprehensive strategy that coordinates efforts at all levels’ such as through the establishment of high-level advisory bodies.151 It suggests that these advisory bodies could be tasked with:

still faced by survivors, see for example SURF Survivors Fund uk, Restorative Justice: Healing Wounds and Repairing Lives Advancing the Human Rights of Survivors of Genocide in Rwanda, 2011. 149 See, e.g., Landmine and Cluster Munitions Monitor, Cluster Munition Monitor 2013, providing a table on national victim assistance programmes under the Vientiane Action Plan, and report on the Status of National Action Plans on Victim Assistance under the Mine-Ban Treaty, available at http://www.the-monitor.org/index.php/publications/ display?url=cmm/2013/ (last accessed 1 August 2014). 150 Handbook on Justice for Victims On the use and application of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, available at www .uncjin.org/Standards/9857854.pdf (last accessed 1 August 2014). 151 Ibid., at 91. It continues: ‘One possible step towards this goal is the establishment of a high-level committee or working group with representatives from all relevant bodies, such as ministries or departments of justice, the interior, safety and security, welfare, health, education and social services, as well as leaders of services responsible for policing, prosecutors, courts, legislators and local government. The academic and research community, health and mental health professions, various voluntary organizations such as women’s and youth groups, religious organizations and the business sector, including insurance, should also be involved’. Ibid.

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Performing needs assessments, including participation in the international victimization surveys, and studies of special victim groups, such as victims of domestic violence, abuse of power or sexual assault; Assessing the shortfall between needs on the one hand and services and existing legislation on the other, including the identification of obstacles hindering access to justice; Making proposals for improvements in the treatment of victims in the immediate and long terms, including those requiring financial commitment and/or legislative reform; Recommen­ ding ways to finance services, such as general revenue and reparative payments by offenders.152 While a specific national-level plan or policy coming from the state would seem a preferable means of ensuring support and service for victims, even in its absence, nhris are still in a position to support victims’ rights. In undertaking their existing day-to-day work, nhris can consider the situation of victims as a particular class of persons requiring consideration in the formulation and application of human rights law and policy at the national level. An approach of firstly considering the rights and requirements of the general populace but then considering the particular needs of victims, is one that will likely both appeal to and be familiar to nhris.153 As seen in the examples given above, many nhris are already giving such attention to victims in their own countries. By mainstreaming victims within their existing work, nhris do not have to await the potentially slow process of the elaboration of standards at the international level, and could already, and fairly immediately, improve the situation of victims at the national level. In developing a holistic, national-level approach, involving the victims in discussions and development of policies is critical. There is recognition within un documents of the need for the involvement of those who have been affected by human rights violations. For example, Human Rights Council Resolution 9/10 on Human Rights and Transitional Justice ‘[s]tresses the importance of a 152 Ibid., at 91. 153 The icbl Principles, noted above, propose a ‘two-track approach’. The icbl Principles state: ‘While victims’ rights and requirements should be ensured through programs for the general public as much as possible, special services should be provided where needed to ensure access to these services. Victim assistance should be integrated into disability program and project design; likewise, disability program and project design should be integrated into larger poverty reduction strategies and development programs and projects’.

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comprehensive process of national consultation, particularly with those affected by human rights violations in contributing to a holistic transitional justice strategy that takes into account the particular circumstances of every situation and in conformity with human rights’.154 In its Handbook on the Basic Principles, the advocacy group Redress proposes that: The central thrust [of the Principles] is that the rights of victims are paramount, and that their interests and concerns ought always to be at the forefront of laws and practices in all States. This victim-oriented perspective is fundamental if the physical and psychological wounds of those who have suffered are to be healed, and if further violations are truly to be prevented.155 Furthermore, a victim-centred approach should be rights-based, something that nhris may be in a strong position to promote. The Northern Ireland Human Rights Commission for example has advocated for a rights-based approach to the policies for Victims and Survivors in that jurisdiction, contending that: The difference in taking a rights-based approach to policy is that victims and survivors should not be at the mercy of a benevolent government to provide them with services. Rather, victims and survivors should feel empowered by the knowledge that they have the ‘right’ to service provision and appropriate care and due attention because their government is fulfilling its human rights obligations.156 Another important aspect of the potential role for nhris is in promoting an inclusive approach towards victims. Former Special Rapporteur Theo van Boven notes the discussion during the elaboration of the Basic Principles of the challenge of applying reparative justice because ‘[i]n situations which are characterized by systematic and gross human rights abuses, large numbers of human beings are usually affected’. And thus the Basic Principles developed an ‘objective test’ because of the ‘tension between the large number of persons 154 un Doc. A/HRC/Res/9/10. 155 The Redress Trust, Implementing Victims’ Rights: A Handbook on the Basic Principles and Guidelines on the Right to a Remedy and Reparation, London, March 2006, at 7. 156 Northern Ireland Human Rights Commission, Response to The Office of First Minister And Deputy First Minister’s Consultation on an ‘Outline Draft Strategic Approach for Victims and Survivors’, 2008, para. 7.

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involved and the limited capacity’.157 Thus, the definition in the Basic Principles is limited in its scope. The real scale of those who are impacted by a conflict speaks to the necessity for a broad policy focus on victims and survivors’ needs that is not restricted by an overly narrow definition. Following situations of armed conflict, the number of persons who can come within a broad definition of ‘victim’ may be enormous. A 2009 International Committee of the Red Cross report on the Democratic Republic of Congo (drc) highlights the extent of the impact on the civilian population in that country, with 76% of the population affected ‘in some way’ in drc and 61% having ‘direct personal experience’ of the conflict.158 A unicef survey of 3,030 children in Rwanda in 1995 found that ‘nearly 80 per cent had lost immediate family members, and more than one third of these had actually witnessed the murders’.159 nhris may be in a strong position to ensure that an inclusive approach is applied to the needs of victims in the enjoyment of their rights. Further, some aspects of the work of nhris will not necessarily require them to precisely define or identify victims, for example, education and awareness raising or the promotion of macro-level human rights based policies. nhri advocacy for the rights of victims of conflict could also potentially help to ensure that victims are not excluded. Furthermore, considering victims at the macro-level may also help to allow those who may not wish to be identified as victims to nonetheless benefit from an increased consideration of their needs. An inclusive approach may also potentially rectify some of the shortcomings of the Basic Principles.160 Finally, it is also worth noting that while victims of conflict may comprise a considerable proportion of a post-conflict society, they are likely to be represented in many other countries too as immigrants or asylum seekers. In 2012, 45.2 million people were forcibly displaced either inside or outside of their own country, the vast majority as a result of conflict situations.161 Thus, the

157 Introductory Note of Former Special Rapporteur for the Sub-Commission on Prevention of Discrimination and Protection of Minorities Theo van Boven to the Basic Principles. 158 International Committee of the Red Cross, Democratic Republic of The Congo: Opinion Survey and In-Depth Research, 2009, Executive Summary, at 20. 159 Information on un website at www.un.org/rights/impact.htm#promoting (last accessed 1 August 2014). 160 Bassiouni contends the Principles were revised in ‘an overall attempt to soften the obligations of States’ M. Cherif Bassiouni, ‘International Recognition of Victims’ Rights’, (2006) 6(2) Human Rights Law Review, at 253, fn. 259. 161 United Nations High Commission for Refugees, New unhcr Report Says Global Forced Displacement at 18-Year High, 19 June 2013, available at www.unhcr.org/51c071816 .html (last accessed 25 March 2014).

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work of nhris in this area should not be limited to those operating in a postconflict environment. When the humanitarian organisations have left and the tribunals have closed, the victims of armed conflicts should not be forgotten. In order to ensure that victims of conflict are supported throughout their lifetime in line with their individual needs, there should be a refocus on victims at the international level that is implemented at the national level. While it is necessary and understandable that the attention in the immediate aftermath of a conflict is on stabilisation and democratisation, the current definitions of peacebuilding clearly include room for long-term human rights improvements. Indeed, considerable work has been done on supporting victims and providing compensation to them in the transitional justice context. Nonetheless, the current focus of victims’ rights remains on justice and monetary compensation. This chapter suggests that a broader approach is required through the elaboration of international standards aimed at providing for the long-term needs of victims, and that nhris have the potential to act as national advocates, overseers and monitors of such standards. The holistic national-level approach that is clearly required to support victims of conflict throughout their lifetime may go some way towards ‘rehumanising’ victims and diminishing the impact of the conflict on their lives, and thus bring international law a step closer to ‘wiping out the consequences’ of armed conflict.

chapter 14

La Reconnaissance du Bénéfice de l’Indemnisation aux Victimes de Violations des Droits de l’Homme par la Cour Internationale de Justice David K. Nanopoulos* Joakim Dungel, par ses écrits, mais surtout par son engagement professionnel, aura fait partie de ces hommes qui ont contribué, à un moment précis, à transformer en réalité ce qui relevait jusque-là de l’utopie. Il aura donné une voix aux individus, et en particulier aux victimes de violations massives des droits de l’homme et du droit international humanitaire, et aura directement participé à la reconnaissance de leurs droits dans l’ordre juridique international.1 C’est à Joakim que cette contribution essaie de rendre hommage, et à travers lui, à ceux auxquels il était dévoué, en démontrant l’évolution récente du droit international général sous l’influence du droit international des droits de l’homme, qui a fait de l’individu le bénéficiaire direct de la mise en œuvre de la responsabilité internationale de l’Etat. L’individu est progressivement passé du statut d’objet du droit international à celui de bénéficiaire direct de ce droit. Influencé par les règles relatives à la protection des droits de l’homme, le droit de la responsabilité internationale a consacré cette évolution et c’est la Cour internationale de Justice (ci-après «la Cour»), dans sa jurisprudence récente, qui lui a donné un contenu effectif. Cette évolution est patente dans le contentieux en matière d’indemnisation dont la Cour a eu à connaître, à l’examen duquel se limitera la présente contribution. En droit international général, la réparation est une conséquence juridique de l’engagement de la responsabilité internationale de l’Etat. Ce principe est énoncé par la Commission du droit international (ci-après «la Commission» ou «la CDI») au paragraphe 1 de l’article 31 sur la responsabilité de l’Etat pour fait internationalement illicite, lequel dispose que «l’Etat responsable est tenu de réparer intégralement le préjudice causé» par ce fait.2 * Juriste à la Division de la codification du Bureau des affaires juridiques, Organisation des Nations Unies. Les opinions exprimées dans ce texte sont celles de l’auteur et ne reflètent pas nécessairement les vues de l’Organisation des Nations Unies. L’auteur remercie très vivement Santiago Villalpando et Antoine Ollivier pour leurs commentaires. 1 Voir en particulier: J. Dungel, «Defining Victims of Crimes Against Humanity: Martic and the International Criminal Court», (2009) 4 Leiden Journal of International Law, pp. 727–52. 2 Annexe à la résolution 56/83 de l’Assemblée générale, 12 décembre 2001.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004236592_016

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Comme l’indique l’article 34 du texte de la Commission, la réparation du préjudice peut, en droit de la responsabilité internationale, prendre trois formes distinctes: la restitution, l’indemnisation et la satisfaction.3 S’agissant de l’indemnisation, la deuxième forme de réparation, la Cour internationale de Justice a déclaré: «Il est une règle bien établie en droit international qu’un Etat lésé est en droit d’être indemnisé par l’Etat auteur d’un fait internationalement illicite des dommages résultant de celui-ci».4 La Cour, dont la jurisprudence porte largement sur le contentieux de la responsabilité internationale, peut fixer le montant de telles indemnités; sa compétence pour connaître d’une demande portant sur une question de responsabilité internationale l’habilite, dans ce cadre, à accorder une indemnité pour le préjudice subi.5 Elle n’y a pourtant procédé qu’à deux reprises, quand bien même elle a reconnu dans de nombreuses affaires que la responsabilité internationale d’une partie était engagée. Il ressort de la jurisprudence de la Cour que le calcul de l’indemnisation constitue, par excellence, l’un des domaines dans lequel le règlement judiciaire «n’est qu’un succédané au règlement direct et amiable de ces conflits entre les parties»,6 la Cour renvoyant de manière systématique cette question à la négociation dans le dispositif de ses décisions, ne prévoyant l’exercice de sa propre compétence à cet égard qu’en l’absence d’accord entre les parties.7 La Cour reste toutefois saisie tant qu’un tel accord n’a pas été conclu.8 3

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Ibid. D’autres formes de réparation, inconnues du droit international général et visant directement la réparation des préjudices subis par les individus, telles la réhabilitation ou la réadaptation, ont été développées dans le cadre de régimes conventionnels spécifiques. Elles apparaissent notamment dans plusieurs instruments de protection des droits de l’homme, ainsi qu’à l’article 75 du Statut de Rome de la Cour pénale internationale. Projet Gabčíkovo Nagymaros (Hongrie/Slovaquie), C.I.J. Recueil 1997, p. 81, para. 152. Usine de Chorzów, compétence, 1927, C.P.J.I., série A, n°9; Compétence en matière de pêcheries (République fédérale d’Allemagne c. Islande), fond, C.I.J. Recueil 1974, pp. 203–5, paras. 71 à 76; Activités militaires et paramilitaires au Nicaragua et contre celui-ci (Nicaragua c. États-Unis d’Amérique), fond, C.I.J. Recueil 1986, p. 142, para. 283; voir également Ann. CDI 2001, vol. II (Deuxième partie), 105. Zones franches de la Haute-Savoie et du Pays de Gex, C.P.J.I., série A n°22, p. 13. Voir notamment: Personnel diplomatique des Etats-Unis à Téhéran (Etats-Unis d’Amérique c. Iran), arrêt, C.I.J. Recueil 1980, p. 45, para. 95; Activités militaires et paramilitaires au Nicaragua et contre celui-ci (Nicaragua c. États-Unis d’Amérique), fond, C.I.J. Recueil 1986, p. 149, para. 292; Projet Gabčíkovo Nagymaros (Hongrie/Slovaquie), C.I.J. Recueil 1997, p. 83, para. 155; Acti­vités armées sur le territoire du Congo (République démocratique du Congo c. Ouganda), arrêt, C.I.J. Recueil 2005, p. 282, para. 385. Dans l’arrêt rendu au fond concernant les Activités militaires et paramilitaires au Nicaragua par exemple, la Cour a énoncé les violations du droit international entraînant l’obligation

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La préférence des Etats pour un règlement diplomatique des questions d’indemnisation est manifeste. Ceux-ci ne demandent guère à la Cour de se prononcer sur celles-ci, quand bien même les négociations s’étalent sur de longues périodes. Cela est sans doute dû au fait que ces négociations ne portent pas nécessairement sur la seule question de l’indemnisation, qui n’est souvent que l’un des éléments de la solution du différend international auquel ce-dernier ne se réduit que rarement. Ainsi, en 2013, les affaires concernant le Projet GabčíkovoNagymaros et les Activités armées sur le territoire du Congo étaient encore pendantes devant la Cour dans l’attente d’un accord sur l’indemnisation, alors que les arrêts au fond, qui reconnaissaient l’obligation de réparation et renvoyaient cette question à la négociation, avaient été rendus respectivement en 1997 et en 2005. En outre, dans la pratique étatique, les négociations relatives à l’indem­ nisation peuvent porter simultanément sur plusieurs différends et donner lieu au versement d’une somme forfaitaire globale. En plus de soixante ans, la Cour n’a été conduite à fixer le montant de l’indemnisation due au titre de la responsabilité internationale qu’à deux reprises, dans l’affaire du Détroit de Corfou en 1949,9 puis, en 2012, dans celle concernant Ahmadou Sadio Diallo.10 Dans la première affaire, la Cour avait retenu la responsabilité de l’Albanie pour les dommages et pertes humaines survenus après que des navires britanniques eurent heurté des mines le 22 octobre 1946 dans les eaux territoriales albanaises.11 La Cour indiqua qu’il incombait aux autorités albanaises de faire connaître l’existence d’un champ de mines dans ses eaux territoriales et d’avertir lesdits navires du danger auquel ils s’exposaient en passant par le détroit de Corfou où ces mines étaient situées. Dans un passage demeuré célèbre, la Cour

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de réparer les préjudices causés au Nicaragua par les Etats-Unis avant de décider, au point 15 du dispositif de l’arrêt, que «les formes et le montant de cette réparation seront réglés par la Cour, au cas où les Parties ne pourraient se mettre d’accord à ce sujet» et de réserver à cet effet la suite de la procédure. Après que les Parties eurent conclu un règlement politique, entraînant le désistement subséquent du Nicaragua de l’instance, l’affaire fut rayée du rôle par l’ordonnance du 26 septembre 1991 sans que la Cour n’eût jamais à se prononcer sur la question de la fixation du montant de l’indemnisation; voir C.I.J. Recueil 1991, p. 47. Détroit de Corfou (Royaume-Uni c. Albanie), Fixation du montant des réparations dues par la République populaire d’Albanie au Royaume-Uni de Grande-Bretagne et d’Irlande du Nord, arrêt, C.I.J. Recueil 1949, p. 244. Ahmadou Sadio Diallo (République de Guinée c. République démocratique du Congo), Indemnisation due par la République démocratique du Congo à la République de Guinée, arrêt, C.I.J. Recueil 2012, p. 324. Détroit de Corfou (Royaume-Uni c. Albanie), fond, arrêt, C.I.J. Recueil 1949, p. 36.

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affirma que ces obligations étaient fondées «non pas sur la Convention VIII de La Haye, de 1907, qui est applicable en temps de guerre, mais sur certains principes généraux et bien reconnus, tels que des considérations élémentaires d’humanité, plus absolues encore en temps de paix qu’en temps de guerre».12 Par l’expression «considérations élémentaires d’humanité», la Cour faisait entrer, sous sa forme coutumière, le droit international des droits de l’homme dans sa jurisprudence, pour en sanctionner la violation par l’Albanie.13 Dans son arrêt, la Cour décida également de statuer sur la question de la fixation du montant des réparations dues par l’Albanie, qui firent l’objet d’un arrêt ultérieur le 15 décembre 1949.14 Dans la seconde affaire, la Cour avait conclu, notamment, à la violation par la République démocratique du Congo (ci-après «la RDC») des articles 13 et 9, paragraphes 1 et 2, du Pacte international relatif aux droits civils et politiques, ainsi que des articles 12, paragraphe 4 et 6 de la Charte africaine des droits de l’homme et des peuples, pour la détention et l’expulsion d’un ressortissant guinéen, M. Ahmadou Sadio Diallo, en faveur duquel la Guinée avait exercé sa protection diplomatique.15 La Cour indiqua, au point 7 du dispositif de l’arrêt, que la RDC avait l’obligation de fournir une réparation appropriée, sous la forme d’une indemnisation, à la Guinée pour les conséquences préjudiciables résultant des violations des obligations internationales susmentionnées.16 Elle décida également que, au cas où les Parties ne pourraient se mettre d’accord à ce sujet dans les six mois à compter de la date de l’arrêt au fond, la question de l’indemnisation due à la Guinée serait réglée par elle,17 ce qu’elle fit dans son arrêt du 19 juin 2012.18 12 13

Ibid., p. 22. P.-M. Dupuy, «Les ‘considérations élémentaires d’humanité’ dans la jurisprudence de la Cour internationale de Justice», in R.-J. Dupuy (ed.), Droit et Justice, Mélanges en l’honneur de Nicolas Valticos, 1999, pp. 117–30; E. Decaux, «La Cour internationale de Justice et les droits de l’homme», in Studi di diriritto internazionale in onore di Gaetano Arangio-Ruiz, Ed. Scientifica, vol. 2, 2003, pp. 921–70. 14 Détroit de Corfou (Royaume-Uni c. Albanie), supra note n°9. 15 Ahmadou Sadio Diallo (République de Guinée c. République démocratique du Congo), fond, arrêt, C.I.J. Recueil 2010, p. 692, para. 165. 16 Ibid., p. 693, para. 165. 17 Ibid. C’est la Guinée, dans ses conclusions finales, qui a demandé à la Cour de laisser la question de l’indemnisation à la négociation pendant six mois, avant de se saisir à nouveau de la question, le cas échéant. 18 Ahmadou Sadio Diallo (République de Guinée c. République démocratique du Congo), Indem­ nisation due par la République démocratique du Congo à la République de Guinée, supra note n°10.

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Ainsi, les deux seules affaires dans lesquelles la Cour eût à procéder au calcul de l’indemnisation dans le cadre de la mise en jeu de la responsabilité internationale d’un Etat portaient, notamment, sur des questions de violation du droit international des droits de l’homme. Les questions qui se posèrent au stade du calcul de l’indemnisation furent très différentes dans ces affaires, mais deux éléments ressortent de leur comparaison. La lecture de ces arrêts, rendus à plus de soixante ans d’écart, révèle l’influence croissante de la logique du droit international des droits de l’homme dans le droit international public et, en particulier, la prise en compte croissante des droits de la victime dans le droit de la responsabilité internationale. A l’indifférence initiale du droit international sur cette question (1.), est venue se substituer progressivement une reconnaissance du bénéfice de l’indemnisation aux victimes des violations des droits de l’homme (2.). 1

L’indifférence traditionnelle du droit de la responsabilité internationale à l’égard de l’indemnisation des personnes privées

Le droit de la responsabilité internationale vise à la régulation des relations interétatiques et demeure traditionnellement indifférent aux questions d’indemnisation des personnes physiques ou morales, qui relèvent du droit interne. Dans le système international classique, les individus apparaissent comme les objets des droits et obligations des Etats (1.1.), ce qui ressort nettement de la jurisprudence de la Cour tout au long du XXe siècle (1.2.). Les personnes privées comme objets dans le droit classique de la responsabilité internationale Le droit de la responsabilité internationale, dans son acception traditionnelle, est indifférent aux individus, et donc aux victimes, qui n’apparaissent qu’en tant qu’objets du droit international. Ceci découle de la nature strictement interétatique du droit international classique qui ne connaît que des relations entre Etats, laissant au droit interne le soin de réguler exclusivement celles entre les individus et l’Etat. En 1906, avant de siéger à la Cour permanente de Justice internationale (ci-après «la Cour permanente» ou la «CPJI»), le professeur Anzilotti pouvait ainsi écrire que le droit des gens n’accordait pas de droits aux individus, mais seulement des devoirs aux Etats concernant leur façon de se comporter vis-à-vis des individus.19 Il en découlait, selon lui, que «[l]es 1.1

19

D. Anzilotti, «La responsabilité internationale des Etats à raison des dommages soufferts par des étrangers», 1906 R.G.D.I.P., 6.

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devoirs et prétentions des Etats entre eux, qui ont trait à une façon d’agir ou de se comporter envers des individus, entraînent une relation d’Etat à Etat, où l’individu n’apparaît que comme l’objet de droits et de devoirs des Etats eux-mêmes».20 Cette logique propre au caractère strictement interétatique du droit international classique a été remise en cause depuis par certaines branches de ce droit, notamment le droit international des droits de l’homme. Les droits de l’homme, en imposant des obligations internationales aux Etats à l’égard des individus, sortent la question du traitement des individus du domaine réservé de l’Etat. Des conventions internationales ont ainsi conféré à l’individu un certain nombre de droits directement invocables dans l’ordre juridique international et mis à sa disposition des voies de recours contre les Etats. S’agissant des règles secondaires, l’indemnisation, dans la construction classique du droit de la responsabilité internationale, est due à l’Etat lésé par l’Etat auteur d’un fait internationalement illicite, et à lui seul. C’est à lui que le dommage est causé, soit directement, soit à travers l’un de ses ressortissants. Comme l’a indiqué la CDI, dans le commentaire de l’article 36 sur la responsabilité de l’Etat pour fait internationalement illicite: [l]es dommages susceptibles d’évaluation financière peuvent être aussi bien des dommages subis par l’Etat lui-même (dommages à ses biens ou à son personnel ou frais raisonnablement encourus par l’Etat pour remédier à des dommages découlant d’un fait internationalement ou les atténuer) que des dommages subis par des ressortissants de cet Etat, qu’il s’agisse de personnes physiques ou de sociétés, au nom desquels il présente une réclamation dans le cadre de la protection diplomatique.21 L’affaire du Détroit de Corfou et l’affaire Diallo se distinguent en cela que les dommages devant donner lieu à indemnisation touchaient différemment les Etats dont les droits avaient été lésés. L’affaire du Détroit de Corfou correspondait à la première hypothèse, tandis que l’affaire Diallo se plaçait dans la seconde. Fondamentalement, ces deux hypothèses ne sont toutefois pas si différentes. Dans la première hypothèse, le dommage est direct puisque l’Etat est touché dans ce qui le personnifie, à savoir ses biens ou ses agents. L’atteinte à un navire de guerre et à son équipage, tout comme l’atteinte à une représentation diplomatique ou à un diplomate, a pour but de causer un préjudice à l’Etat représenté et non à ceux qui l’incarnent. S’agissant de la seconde hypothèse, la 20 Ibid. 21 Ann. CDI 2001, vol. II (Deuxième partie), p. 106.

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situation est beaucoup moins claire puisque le différend qui oppose un Etat à une personne physique ou à une société privée ne trouve pas sa source, dans la plupart des cas, dans les relations entre l’Etat en cause et l’Etat de nationalité de la personne physique ou morale, et que le préjudice n’est pas causé directement à ce dernier. C’est le recours à la fiction de la protection diplomatique qui permet de replacer la situation dans une perspective interétatique, mais au prix d’une transformation des éléments essentiels du différend. La protection diplomatique consiste en l’invocation par un Etat de la respo­ nsabilité internationale d’un autre Etat, pour un préjudice causé par un fait internationalement illicite causé à l’un de ses ressortissants. Elle est fondée sur une fiction: celle qui veut que l’Etat soit touché directement par l’atteinte à son ressortissant, pour lequel il prend fait et cause au niveau international.22 Cette fiction a été énoncée par la Cour permanente de Justice internationale, pour laquelle «en prenant fait et cause pour l’un des siens, en mettant en mouvement, en sa faveur, l’action diplomatique ou l’action judiciaire interna­tionale, cet Etat fait, à vrai dire, valoir son droit propre, le droit qu’il a de faire respecter en la personne de son ressortissant le droit international».23 L’individu n’est traditionnellement pas sujet de droit international, et les juridictions internationales ne lui ont longtemps pas été ouvertes, aussi; par le biais de cette fiction, le préjudice subi par lui peut entraîner la mise en jeu de la responsabilité internationale de l’Etat auteur du dommage devant un organe international. Un glissement s’opère toutefois au contentieux puisque ce n’est pas le dommage subi par l’individu qui doit être directement réparé, mais celui subi par l’Etat à travers sa personne. Au contentieux, comme l’a indiqué la CPJI, le différend est d’abord celui entre un particulier et un Etat, avant que le Gouvern­ement de nationalité de l’individu ne prenne l’affaire en main. A cet instant, le différend entre «dans une phase nouvelle: il [se porte] sur le terrain international»,24 c’est-à-dire interétatique. En outre, c’est de ses obligations internationales que l’Etat auteur du dommage doit répondre, et non de celles découlant de la violation des droits 22

On attribue couramment à Vattel la formulation de ce principe. Celui-ci affirmait en 1758 que «[q]uiconque maltraite un citoyen offense directement l’Etat. Le souverain de celuici doit venger son injure, obliger, s’il le peut, l’agresseur à une entière réparation ou le punir, puisqu’autrement le citoyen n’obtiendrait point la grande fin de l’association civile qu’est la sûreté»; voir E. de Vattel, Le droit des gens ou principes de la loi naturelle appliquée à la conduite et aux affaires des Nations et des Souverains (Londres, 1758), vol. I, Livre II, para. 71, reproduit in Carnegie Institution, The Classics of International Law, Washington D.C., 1916, p. 309. 23 Concessions Mavrommatis en Palestine, C.P.J.I., série A n°2, p. 12. 24 Ibid.

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reconnus à l’individu par son droit interne. Le niveau de protection accordée au particulier face à l’Etat en droit interne ne coïncide pas nécessairement avec celui dont il doit jouir selon le droit international. Un Etat exerçant sa protection diplomatique pour l’un de ses ressortissants n’est pas à même de fonder sa réclamation strictement sur le droit interne de l’Etat auteur du dommage, mais doit se rattacher à une règle internationale. Anzilotti, Membre de la Cour permanente à l’époque de l’arrêt, a personnifié, par ses écrits, cette conception qu’il avait énoncé des années auparavant: Comme les Etats sont tenus d’observer certaines règles établies par le droit international relativement à la condition juridique des sujets d’un Etat étranger, qui se trouvent sur leur territoire, la violation des dites règles peut effectivement constituer un fait contraire au droit international, capable d’engager la responsabilité de l’Etat, auquel il est imputable, envers l’Etat qui avait le droit d’exiger une conduite différente. Cette responsabilité a vraiment sa source dans une violation du droit international, et elle fait naître une relation juridique d’Etat à Etat. L’Etat, qui a violé le droit international, qui l’obligeait à traiter diversement les sujets d’un Etat étranger, par exemple à leur reconnaître certains droits, soit envers lui-même, soit envers les autres membres de la société n’est pas tenu, de ce chef, envers les individus endommagés, mais envers l’Etat auquel ils appartiennent; celui-ci, de son côté ne représente pas les individus qui ont souffert des dommages, et ne fait pas valoir leurs droits, mais son droit propre à lui: le droit à ce que ses sujets soient traités par les Etats étrangers de la façon voulue par le droit international.25 En conséquence, selon cette logique, l’indemnisation n’est pas due à l’individu, mais à l’Etat, puisque c’est lui qui est lésé par la violation d’une obligation internationale par l’Etat auteur du dommage. Comme l’indique Anzilotti «[l]e devoir auquel donne naissance l’acte illicite n’est donc pas une obligation d’indemniser les individus; il consiste dans l’obligation de réparer le tort causé à l’Etat dont les étrangers sont sujets».26 Plus de soixante ans après, la Cour ne dira pas autre chose qu’Anzilotti, en indiquant dans l’affaire de la Barcelona Traction que: dans les limites fixées par le droit international, un Etat peut exercer sa protection diplomatique par les moyens et dans la mesure qu’il juge appropriés, car c’est son droit propre qu’il fait valoir. Si les personnes 25 Anzilotti, supra note n°19, pp. 6–7 (c’est nous qui soulignons). 26 Ibid., p. 308.

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­ hysiques ou morales pour le compte de qui il agit estiment que leur p droits ne sont pas suffisamment protégés, elles demeurent sans recours en droit international.27 Cette fiction, qui permet de replacer le différend dans une relation interétatique, ne peut pas faire abstraction totale de l’individu, mais celui-ci apparaît comme un objet du droit international dans le contentieux international, et à la Cour en particulier. Il est ainsi celui dont le comportement est étudié pour déterminer la compétence de l’organe juridictionnel et la recevabilité de la requête, notamment à travers l’examen de l’épuisement des voies de recours internes. Bien que les faits de la cause le concernent directement, ceci ne lui donne aucun titre à apparaître dans la procédure, comme dans un organe de protection des droits de l’homme, et il n’est pas maître de la position de son Etat de nationalité au cours de l’instance. Enfin, l’indemnisation éventuelle qui serait versée par l’Etat auteur du dommage n’est pas due à l’individu, mais à l’Etat qui a exercé sa protection diplomatique. Comme l’indique Anzilotti: Le dédommagement des individus n’est qu’un effet indirect de la responsabilité internationale: le seul effet direct de cette responsabilité est d’obliger l’Etat responsable à donner à l’Etat lésé une réparation du tort qui a été causé. De là quelques conséquences fort importantes, même pour la solution de certaines difficultés qui se sont présentées à ce sujet devant les tribunaux de certains pays. Il en résulte d’abord que la relation passée entre les Etats ne donne aux individus aucun droit sur la somme que ces Etats ont destinée au dédommagement de ceux-ci. L’Etat qui a reçu la somme pourra, le cas échéant, être tenu envers l’Etat qui l’a payée de s’en servir de la manière prévue dans le règlement de la controverse; mais son obligation est un devoir envers l’Etat, non envers les individus, qui restent entièrement étrangers aux rapports entre les deux Etats. Il s’en suit d’autre part, que des actions judiciaires sont inadmissibles pour obtenir de l’Etat soit le payement de la somme, soit la démonstration de l’usage qu’il en a fait ou de la manière dont il l’a distribuée.28 27

Barcelona Traction, Light and Power Company Limited (Belgique c. Espagne), deuxième phase, arrêt, CIJ Recueil 1970, p. 44, paras. 78–9 (c’est nous qui soulignons). Voir également Nottebohm (Liechtenstein c. Guatemala), deuxième phase, arrêt, C.I.J. Recueil 1955, p. 24: «La protection diplomatique et la protection par voie judiciaire internationale constituent une mesure de défense des droits de l’Etat». 28 Anzilotti, supra note n°19, p. 309 (c’est nous qui soulignons).

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Cette conséquence est logique. Si l’Etat exerce une action en responsabilité internationale en son nom propre aux fins de faire respecter ses droits, il ne saurait être tenu, pas plus que l’auteur du dommage, d’une quelconque obligation à l’égard de l’individu victime du dommage. Celui-ci est l’objet, et non le titulaire, des droits et obligations en cause. Il ne saurait dès lors découler aucune conséquence sur la responsabilité internationale de l’indif­ férence des règles primaires du droit international aux relations entre Etat et individus. L’indifférence initiale de la Cour internationale de Justice à l’égard de l’indemnisation des victimes de violations des droits de l’homme L’arrêt relatif à l’indemnisation dans l’affaire de Corfou est l’expression la plus directe de la nature strictement interétatique de la responsabilité internationale dans sa conception traditionnelle. Dans cette affaire, les «considérations élémentaires d’humanité», auxquelles la Cour s’est référée au fond pour évaluer les manquements de l’Albanie à ses obligations internationales, visaient logiquement à protéger les droits humains des marins britanniques en temps de paix par la reconnaissance de la nature coutumière des droits de l’homme, droits que la Cour a rattachés à la catégorie des «principes généraux». Pour­ tant, cette référence est restée sans conséquences particulières au stade de l’évaluation de l’indemnisation, fondée exclusivement sur les dommages pécuniaires subis par l’Etat. S’agissant des dommages humains, le Royaume-Uni a lui-même indiqué qu’il limitait sa demande aux sommes versées effectivement au titre des pensions et indemnités.29 Le Royaume-Uni a ajouté que, bien qu’il se considérât en droit de le faire, il ne demandait aucune indemnisation concernant les marins décédés n’ayant pas d’ayants-droit.30 Le préjudice causé aux individus par la violation de leurs droits humains est donc envisagé uniquement sous l’angle du dommage pécuniaire à l’Etat amené à effectuer des dépenses au titre des pensions, des indemnités allouées par lui aux victimes ou à leurs ayant-droits, ainsi que des frais d’administration et des traitements médicaux.31 En conséquence, s’agissant des préjudices causés par le manquement de l’Albanie aux «considérations élémentaires d’humanité», la Cour a indiqué ne pas avoir à «exprimer d’opinion à ce sujet», le Royaume-Uni ayant renoncé expressément à en être indemnisé.32 1.2

29

Détroit de Corfou (Royaume-Uni c. Albanie), Réparation, Observations présentées le RoyaumeUni, 28 juillet 1949, para. 6. 30 Ibid. 31 Détroit de Corfou (Royaume-Uni c. Albanie), supra note n°9, p. 249. 32 Ibid., p. 250.

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Ainsi, quand bien même la Cour avait reconnu le préjudice subi par des individus en raison de violations du droit international des droits de l’homme, le contenu de la responsabilité internationale demeurait interétatique, sans que la dimension humaine d’une partie du différend n’ait eu d’influence sur la mise en œuvre de la responsabilité internationale. La Cour est ici dans une logique interétatique au sens strict, tout comme les Parties d’ailleurs, qui correspond à son époque et à la nécessité de ne pas statuer ultra petita. La déclaration universelle des droits de l’homme venait d’être adoptée quatre mois auparavant et l’effectivité de la protection des droits de l’homme en droit international n’en était qu’à ses balbutiements, dans les textes comme dans les esprits. De même, l’arrêt du 24 mai 1980 rendu par la Cour dans l’affaire du Personnel diplomatique et consulaire des Etats-Unis à Téhéran est encore le produit d’une conception similaire du droit de la responsabilité et d’une indifférence relative aux victimes des actes en cause. Pour la Cour: [l]e fait de priver abusivement de leur liberté des êtres humains et de les soumettre dans des conditions pénibles à une contrainte physique est manifestement incompatible avec les principes de la Charte des Nations Unies et avec les droits fondamentaux énoncés dans la déclaration universelle des droits de l’homme. Mais ce qu’il convient de souligner surtout, c’est l’ampleur et la gravité du contraste entre le comportement adopté par l’Etat iranien et les obligations que lui impose l’ensemble de règles internationales constitué par le droit diplomatique et consulaire, dont la Cour doit fermement réaffirmer le caractère fondamental.33 La décision de la Cour sur la réparation est tout à fait traditionnelle puisque celle-ci indique, au point 5 de son dispositif, que «le Gouvernement de la République islamique d’Iran est tenu envers le Gouvernement des Etats-Unis d’Amérique de l’obligation de réparer le préjudice causé à celui-ci par les événements du 4 novembre 1979 et leurs suites».34 La Cour était tenue de rester dans les limites de sa compétence, fondée ici essentiellement sur les conventions de Vienne de 1961 sur les relations diplomatiques, et de 1963 sur les relations consulaires, ainsi que sur le traité d’amitié et de commerce conclus entre les Parties en 1955.35 33 34 35

Personnel diplomatique des Etats-Unis à Téhéran (Etats-Unis d’Amérique c. Iran), arrêt, C.I.J. Recueil 1980, p. 43, para. 91. Ibid., p. 45, para. 95. Ibid., pp. 25–9, paras. 45–55.

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Ce que la Cour exprime n’est pas que les individus qui ont subi des préjudices du fait des violations des droits de l’homme ne peuvent pas prétendre à une indemnisation de manière absolue, mais qu’une telle indemnisation ne saurait se faire sous le régime des traités sur lesquels sa compétence était fondée en l’espèce ou sous le régime coutumier du droit de la responsabilité internationale, qui demeure strictement interétatique. Les accords d’Alger mettant fin à la crise vont ainsi donner naissance à un organe juridictionnel, le Tribunal irano-américain des différends, dont la compétence s’étend aux différends opposant les nationaux américains au gouvernement iranien et les nationaux iraniens au gouvernement américain.36 Cette juridiction internationale a compétence pour rendre des arrêts en indemnisation au bénéfice direct des nationaux des deux Etats. Dans le système traditionnel, l’indemnisation des victimes dépend en définitive de l’existence d’un ordre juridique où les personnes privées peuvent disposer de droits et d’obligations. Il s’agit bien sûr des ordres juridiques internes, mais aussi, de manière exceptionnelle, de certains régimes conventionnels tels que ceux ayant mis en place le Tribunal irano-américain des différends, les organes juridictionnels de protection des droits de l’homme ou les juridictions arbitrales compétentes en matière d’investissements internationaux. Le régime coutumier de la responsabilité internationale en revanche ne connaît que les seuls Etats et organisations internationales, ce qui justifiait l’indifférence de la Cour, dans la mesure où ces questions ne pouvaient relever de sa compétence. 2

La reconnaissance en droit positif du droit des victimes de violations des droits de l’homme au bénéfice de l’indemnisation

La logique du droit international des droits de l’homme a lentement irrigué le droit international, et le traitement par la Cour des questions d’indemnisation reflète cette évolution. En effet, dans les affaires soumises à la Cour mettant en jeu ces questions, l’individu va passer du statut d’objet du droit de la responsabilité internationale à celui de bénéficiaire direct de sa mise en œuvre. La CDI va participer à cette évolution (2.1.), ainsi que l’Assemblée générale des Nations Unies, mais c’est la jurisprudence de la Cour qui va véritablement constituer une reconnaissance de la positivité du droit à l’indemnisation des victimes de violations des droits de l’homme (2.2.). 36

Accords d’Alger conclus entre les Etats-Unis d’Amérique et la République islamique d’Iran, 19 janvier 1981.

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La codification du droit de la responsabilité saisie par les droits de l’homme Plus de cinquante ans après l’affaire du Détroit de Corfou, l’influence des droits de l’homme sur le droit de la responsabilité internationale est manifeste. La Commission du droit international va d’ailleurs indiquer, en 2001, au commentaire de l’article 33 sur la responsabilité des Etats que: 2.1

Lorsqu’une obligation de réparation est due à un Etat, la réparation n’est pas nécessairement effectuée au bénéfice de cet Etat. Par exemple, la responsabilité d’un Etat peut être engagée pour la violation d’une obligation conventionnelle concernant la protection des droits de l’homme envers toutes les autres parties du traité en question, mais les individus concernés doivent être considérés comme les bénéficiaires ultimes et, en ce sens, comme les titulaires des droits en question.37 Ces motifs ont rendu nécessaire, comme l’expose la Commission, l’adoption du paragraphe 2 de l’article 33. Selon le premier paragraphe de cet article, les obligations de l’Etat responsable peuvent être dues «à un autre Etat, à plusieurs Etats ou à la communauté internationale dans son ensemble». La Commission nuance le caractère strictement interétatique de cette disposition en indiquant, au paragraphe 2, que «[l]a présente partie est sans préjudice de tout droit que la responsabilité internationale de l’Etat peut faire naître directement au profit d’une personne ou d’une entité autre qu’un Etat». Le commentaire de la Commission ne dit en rien que l’individu est, en droit coutumier, le bénéficiaire direct de la mise en œuvre de l’indemnisation, mais reconnaît plutôt que le droit conventionnel, essentiellement en matière de protection des droits de l’homme ou des investissements internationaux, peut parfois conférer aux individus le droit d’invoquer la responsabilité d’un Etat en leur nom propre.38 En raison des limitations posées à l’accès de l’individu aux juridictions internationales, à part dans certains cadres procéduraux spécifiques, la mise en jeu de la responsabilité de l’Etat auteur du dommage demeure largement du ressort de l’Etat de nationalité de la victime. S’agissant de la protection diplomatique, le premier rapporteur spécial de la CDI sur ce sujet, Mohamed Bennouna, avait avancé d’emblée l’idée de revisiter le droit classique de la protection diplomatique à la lumière des droits de l’homme. Dès le second paragraphe de son premier rapport, il s’appuyait sur 37 Ann. CDI 2001, vol. II (Deuxième partie), p. 101. 38 Ibid.

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les positions avancées par deux autres membres de la CDI39 pour défendre que «le développement des droits de la personne humaine, à laquelle on reconnaît de plus en plus la qualité de sujet de droit international, dev[ait] amener la Commission à reconsidérer le droit classique en la matière».40 Le rapporteur spécial allait ensuite opérer une critique systématique du système classique et, s’agissant de l’indemnisation de la victime dans ce système, il déplorait le fait qu’ «il import[ait] peu du point de vue du droit international de savoir comment l’individu lui-même a[vait] été indemnisé au final».41 Après avoir retracé les principales étapes de la reconnaissance des droits de l’individu au niveau international, Mohamed Bennouna posait une question qui allait s’avérer fondamentale dans les années à venir: Il reste à se demander, comme le préconise la conception classique, si en agissant de la sorte, l’Etat ‘fait valoir son propre droit’ ou, au contraire, s’il n’est que le mandataire ou le représentant de son ressortissant titulaire ‘d’un intérêt juridiquement protégé’ sur le plan international et donc d’un droit.42 La Commission n’allait pas s’engager dans une révision aussi radicale du droit de la protection diplomatique que celle proposée par Mohamed Bennouna, et le projet d’articles finalement adopté tenter a de trouver un point d’équilibre entre la conception classique et les exigences des droits de l’homme.43 John Dugard, le rapporteur spécial chargé du sujet suite au départ de la Commission de Mohamed Bennouna, s’était également prononcé pour une rénovation du droit de la protection diplomatique, défendant, entre autres, l’obligation pour l’Etat d’exercer sa protection diplomatique à l’égard de son ressortissant ayant subi un préjudice du fait de la violation d’une règle du jus cogens, à la demande de celui-ci.44 C’est ici les droits de l’individu qui étaient au centre 39 40

Interventions de MM. Lukashuk et Pellet devant la C.D.I. (A/AC.4/SR.2513, p. 5 et 10). Rapport préliminaire sur la protection diplomatique, présenté par M.M. Bennouna, rapporteur spécial, document NU A/CN.4/484, reproduit dans Ann. CDI 1998, vol. II (Première partie), p. 319, para. 2. 41 Ibid., p. 321, para. 20. 42 Ibid., p. 324, para. 50. 43 Ann. C.D.I. 2006, vol. II (Deuxième partie), pp. 22–4. 44 Premier rapport sur la protection diplomatique, présenté par M.J.R. Dugard, rapporteur spécial, document NU A/CN.4/506, reproduit dans Ann. CDI 2000, vol. II (Première partie), pp. 238–42, paras. 75–93. John Dugard a qualifié «d’occasion manquée» le rejet par la Commission de son projet d’article 4, lequel, bien que résolument de lege ferenda, constituait pour lui une occasion d’aligner le droit international général sur les développements

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de la protection et le caractère discrétionnaire de la décision de l’Etat d’exercer ou non sa protection, qui était remis en cause. La Commission n’a pas suivi les propositions du rapporteur spécial, préférant placer ses travaux dans la conception traditionnelle. Le texte de l’article 1er adopté en première lecture en 2004 était ainsi rédigé: «La protection diplomatique consiste dans le recours à une action diplomatique ou à d’autres moyens de règlement pacifique par un Etat qui prend fait et cause, en son nom propre, pour l’une des personnes ayant sa nationalité à raison d’un préjudice subi par cette dernière».45 Un siècle plus tard, ce sont les termes même d’Anzilotti que l’on retrouve dans ce projet d’article 1er, ce qui fut vivement critiqué. Ainsi, pour l’un des membres de la Commission, Alain Pellet, «la fiction sur laquelle repose la conception traditionnelle n’a plus lieu d’être: en niant la personnalité juridique internationale des personnes privées, elle relève d’une vision révolue du droit international. La ‘formule Mavrommatis’ n’en est pas moins consacrée dans le projet de la C.D.I., dont l’article 1er reprend le texte sinon mot pour mot, du moins dans son esprit».46 Les critiques d’Alain Pellet ne furent pas vaines et le texte adopté par la Commission en seconde lecture ne fit plus référence aux termes «en son nom propre».47 L’exclusion de l’individu du champ de la responsabilité internationale est d’ailleurs critiquée dans le commentaire du projet d’article 1er sur la protection diplomatique.48 La Commission commence par qualifier d’ «exagération» la fiction de la protection diplomatique qui veut que le préjudice causé à un

45

46

47

48

en matière de droits de l’homme. Voir J.R. Dugard, «Diplomatic Protection and Human Rights: The Draft Articles of the International Law Commission», (2005) 24 Australian Yearbook of International Law, 81–3. Protection diplomatique, Titre et texte des projets d’articles adoptés par la Comité de rédaction en première lecture, NU A/CN.4/L.647, reproduit dans Ann. CDI, 2004, vol. II (Deuxième partie), p. 18, para. 59 (c’est nous qui soulignons). A. Pellet, «Le projet d’article de la C.D.I. sur la protection diplomatique: une codification pour (presque rien)», in M.G. Kohen (ed.), Promoting Justice, Human Rights and Conflict Resolution through International Law/La promotion de la justice, des droits de l’homme et du règlement des conflits par le droit international, Liber Amicorum Lucius Caflisch, 2007, p. 1136. L’article premier des articles de la CDI sur la protection diplomatique est ainsi rédigé: «Aux fins du présent projet d’articles, la protection diplomatique consiste en l’invocation par un État, par une action diplomatique ou d’autres moyens de règlement pacifique, de la responsabilité d’un autre État pour un préjudice causé par un fait internationalement illicite dudit État à une personne physique ou morale ayant la nationalité du premier État en vue de la mise en œuvre de cette responsabilité». Pour une analyse plus détaillée de l’évolution de la CDI entre la première et la seconde lecture du texte voir: A. Pellet, «La seconde mort d’Euripide Mavrommatis? Notes sur le projet de la C.D.I. sur la protection diplomatique», in Droit du pouvoir, pouvoir du droit—Mélanges offerts à Jean Salmon, 2007, pp. 1359–82. Ann. C.D.I. 2006, vol. II (Deuxième partie), p. 25.

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national soit un préjudice causé à l’Etat lui-même. Pour la Com­mission, l’Etat fait bien valoir son droit propre, mais également celui de son national lésé.49 La CDI souligne que l’absence de recours ouvert à l’individu lésé en droit international rendait indispensable la fiction de la protection diplomatique, mais que celle-ci n’était qu’un moyen, «la fin étant la protection d’un national lésé».50 Et la Commission d’ajouter que: «L’exercice par un Etat de sa protection diplomatique au niveau interétatique demeure un instrument important pour protéger les personnes dont les droits de l’homme ont été violés à l’étranger».51 La CDI concluait que la protection diplomatique permettait de replacer le différend dans le cadre de la responsabilité internationale aux fins de permettre de réparer le préjudice causé à un individu par un fait internationalement illicite.52 L’exercice de la protection diplomatique, et donc la mise en jeu de la res­ ponsabilité internationale de l’auteur du dommage, demeure toutefois une prérogative de l’Etat, comme l’indique le projet d’article 2 sur la protection diplomatique. Bien que le droit interne d’un Etat puisse lui imposer d’exercer cette faculté, le droit international coutumier n’impose pas une telle obligation. Et, quand bien même il choisirait de le faire, le droit international reste neutre quant à la question de savoir s’il doit demander la réparation de son préjudice ou de celui subi par le particulier. Le texte adopté par la Commission était d’ailleurs muet sur ce point. Alain Pellet s’en étonnait ainsi et regrettait que la CDI n’ait pas «répudié définitivement» la règle traditionnelle selon laquelle, «puisque l’Etat ‘exerce son propre droit’, il est seul juge de l’opportunité de ‘répercuter’ (ou non) sur le ou les particuliers lésés la réparation obtenue par le moyen de la protection diplomatique».53 Le rôle limité reconnu par le droit international coutumier à la victime du dommage étatique ressort clairement du projet d’articles sur la protection diplomatique adopté en 2006 par la CDI. Ainsi, l’article 19 du projet, intitulé «pratique recommandée», dispose que: Un Etat en droit d’exercer sa protection diplomatique conformément au présent projet d’articles devrait: (a) Prendre dûment en considération la possibilité d’exercer sa protection diplomatique, en particulier lorsqu’un préjudice important a été causé; 49 Ibid. 50 Ibid. 51 Ibid. 52 Ibid. 53 Pellet, supra note n°46, p. 1154.

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(b) Tenir compte, autant que possible, des vues des personnes lésées quant au recours à la protection diplomatique et à la réparation à réclamer; et (c) Transférer à la personne lésée toute indemnisation pour le pré­ judice obtenue de l’État responsable, sous réserve de déductions raisonnables.54 Le langage de cet article n’équivaut qu’à une recommandation et, s’agissant du bénéficiaire de l’indemnisation, la Commission, dans ses commentaires, a indiqué que la logique de la protection diplomatique, telle qu’énoncée dans l’arrêt Mavrommatis, veut que l’Etat qui exerce sa protection «ne soit assujetti à aucune restriction, dans l’intérêt de l’individu concerné, pour ce qui est du règlement de la réclamation ou du versement de l’indemnisation éventuellement reçue».55 Pour cette raison, les recommandations contenues dans le projet d’article 19 relèvent du développement progressif du droit international. La Commission ajoute toutefois que, bien que la pratique étatique ne soit pas uniforme en la matière, les Etats qui limitent leur liberté de disposer comme ils l’entendent des indemnités reçues n’ont pas le sentiment d’obéir à une obligation.56 Mais la Commission ajoute aussitôt que «l’intérêt général, l’équité et le respect des droits de l’homme militent en faveur d’une limitation du pouvoir discrétionnaire de l’Etat en la matière».57 La cristallisation du droit à l’indemnisation des victimes de violations des droits de l’homme en droit international coutumier L’avis consultatif sur les Conséquences juridiques de l’édification d’un mur dans le territoire palestinien occupé, donné le 9 juillet 2004, a posé un jalon supplémentaire dans la mise en œuvre effective de la reconnaissance de l’individu comme bénéficiaire direct de la responsabilité internationale. Dans cette affaire, la Cour avait conclu que, en édifiant un mur en territoire palestinien occupé, Israël avait contrevenu à diverses obligations internationales pesant sur lui, notamment celles dont il était tenu en vertu du droit international humanitaire et du droit international relatif aux droits de l’homme.58 En conséquence, la Cour a indiqué qu’Israël était tenu de respecter ses obligations

2.2

54 Ann. C.D.I. 2006, vol. II (Deuxième partie), p. 24. 55 Ibid., pp. 55–6. 56 Ibid., p. 56. 57 Ibid. 58 Conséquences juridiques de l’édification d’un mur dans le territoire palestinien occupé, avis consultatif, C.I.J. Recueil 2004, pp. 181–94, paras. 114–37.

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internationales et de mettre un terme à leur violation.59 La Cour a également ajouté qu’Israël avait l’obligation «de réparer tous les dommages causés à toutes les personnes physiques ou morales concernées».60 Pour ce faire, la Cour s’est référée aux «modalités essentielles de la réparation en droit coutumier»61 telles que formulées par la Cour permanente dans l’affaire de Chorzów, dont la Cour cite in extenso le passage traditionnel.62 Passant ensuite à la mise en œuvre de ces modalités, la Cour conclut qu’Israël était tenu de restituer les biens saisis à toute personne physique ou morale en vue de l’édification du mur en territoire occupé.63 La Cour ajouta que: [a]u cas où une telle restitution s’avèrerait matériellement impossible, Israël serait tenu de procéder à l’indemnisation des personnes en question pour le préjudice subi par elles. De l’avis de la Cour, Israël est également tenu d’indemniser, conformément aux règles du droit international applicables en la matière, toutes les personnes physiques ou morales qui auraient subi un préjudice matériel quelconque du fait de la construction de ce mur.64 Derrière la référence aux «modalités essentielles de la réparation en droit coutumier» et aux «règles du droit international applicables en la matière», la Cour procède à une réinterprétation novatrice du prononcé de Chorzów, et audelà du droit de la responsabilité internationale, en faisant des personnes physiques et morales les bénéficiaires directs de l’obligation d’indemnisation 59 Ibid., pp. 197–8, paras. 149–51. 60 Ibid., p. 198, para. 152. 61 Ibid. 62 Usine de Chorzów, fond, arrêt n°13, 1928, C.P.J.I., série A, n°17, p. 47: «Le principe essentiel, qui découle de la notion même d’acte illicite et qui semble se dégager de la pratique internationale, notamment de la jurisprudence des tribunaux arbitraux, est que la réparation doit, autant que possible, effacer toutes les conséquences de l’acte illicite et rétablir l’état qui aurait vraisemblablement existé si ledit acte n’avait pas été commis. Restitution en nature, ou, si elle n’est pas possible, paiement d’une somme correspondant à la valeur qu’aurait la restitution en nature; allocation, s’il y a lieu, de dommagesintérêts pour les pertes subies et qui ne seraient pas couvertes par la restitution en nature ou le paiement qui en prend la place; tels sont les principes desquels doit s’inspirer la détermination du montant de l’indemnité due à cause d’un fait contraire au droit international.» 63 Conséquences juridiques de l’édification d’un mur dans le territoire palestinien occupé, supra note n°58, p. 198, par. 153. 64 Ibid.

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comme conséquence de la mise en œuvre de la responsabilité de l’Etat.65 La motivation de la Cour n’est critiquée par aucun des membres de la Cour dans les opinions jointes à l’avis. Ceci est d’autant plus remarquable que, dans l’affaire de Chorzów, la Cour permanente n’avait en rien tiré de telles conclusions et que, dans cette affaire, c’était bien au gouvernement allemand, et non aux personnes morales ayant subi un préjudice, que le gouvernement polonais était tenu de payer une indemnité à titre de réparation, dont le montant correspondait au préjudice subi par ces sociétés.66 La Cour, par ce prononcé, donne un caractère coutumier de lege lata au concept envisagé de lege ferenda par la CDI, dans ses articles sur la responsabilité de l’Etat pour fait internationalement illicite et sur la protection diplomatique. Fait remarquable, ce prononcé, sans force obligatoire en raison de la nature consultative de l’avis, va trouver une application effective du fait de l’Assemblée générale. Dans sa résolution ES 10/17 du 15 décembre 2006, l’Assemblée générale va citer dans le préambule le paragraphe 153 de l’avis consultatif relatif à l’indemnisation des personnes physiques et morales, et créer un mécanisme institutionnel destiné à le mettre en œuvre de manière effective: le ‘Registre de l’Organisation des Nations Unies concernant les dommages causés par la construction du mur dans le territoire palestinien occupé’.67 L’avancée est de taille, mais plusieurs éléments doivent conduire à la nuancer. Le contexte de cette affaire était particulier, puisque les victimes en cause n’étaient pas des ressortissants d’un Etat reconnu, à l’époque, par l’Etat auteur du dommage ou par les Nations Unies, ce qui empêchait de replacer le différend dans une perspective strictement interétatique. En outre, dans une procédure consultative, la Cour n’est pas limitée par les conclusions des participants à la procédure, ce qui lui permet de procéder, si elle le souhaite, à de tels développements sans risquer de statuer ultra petita. Enfin, l’effectivité du bénéfice de l’indemnisation a été le fait de l’Assemblée générale, et non de la Cour, dont la mission consistait uniquement à donner à celle-ci un avis sans force obligatoire. Quelques mois plus tard, l’Assemblée générale a également contribué au développement normatif du droit des victimes à la réparation. Le 16 décembre 2005, suite aux long travaux de la Commission des droits de l’homme initiés en 1988, elle a adopté la résolution 60/147 intitulée ‘Principes fondamentaux et directives concernant le droit à un recours et à réparation des victimes de 65

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S. Villalpando, «La codificateur et le juge face à la responsabilité internationale de l’Etat: interaction entre la CDI et la CIJ dans la détermination des règles secondaires», (2009) A.F.D.I., 55. Usine de Chorzów, fond, arrêt n°13, supra note 62. Résolution ES 10/17 de l’Assemblée générale, 15 décembre 2006.

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violations flagrantes du droit international des droits de l’homme et de violations graves du droit humanitaire’.68 L’idée de justice réparatrice est au cœur de cette résolution, qui énonce les obligations des Etats concernant les situations de violations des droits de l’homme et du droit humanitaire et les conséquences juridiques attachées à ces violations. Cette résolution conclut une évolution amorcée au sein de la Commission des droits de l’homme. Les Principes fondamentaux et directives, qui y sont annexés, énoncent, en premier lieu, les obligations des Etats en la matière et les conséquences juridiques découlant des violations du droit international des droits de l’homme et du droit international humanitaire. En second lieu, les principes fondamentaux et directives font un certain nombre de recommandations, dénués de force obligatoire et relevant de la lex ferenda, touchant aux questions du droit à un recours et à la réparation des victimes de violations flagrantes du droit international des droits de l’homme et du droit international humanitaire. Bien que très développée, la question de l’indemnisation des victimes, tout comme celles des autres formes de réparation des victimes énoncées, est clairement située dans la seconde catégorie. Le paragraphe 20 des Principes fondamentaux et directives, indique ainsi qu’ «une indemnisation devrait être accordée» aux victimes de violations des droits de l’homme et du droit humanitaire, avant de détailler les différents types de dommages devant être indemnisés.69 Le paragraphe 20 de la résolution 60/147 sera invoqué par la Guinée, dans l’affaire Diallo, pour fonder ses prétentions concernant l’indemnisation du préjudice subi par son ressortissant du fait, notamment, de la violation de plusieurs instruments de protection des droits de l’homme.70 Dans son arrêt, la Cour ne fera pour sa part aucune référence à cette résolution.71 Il n’empêche que celui-ci va poser un jalon supplémentaire vers la reconnaissance, en droit international coutumier, du bénéfice de l’indemnisation aux victimes de violations des droits de l’homme. Au fil de l’instance, cette affaire s’est progressivement focalisée sur les questions découlant du préjudice subi par M. Diallo du fait des conditions de sa détention et de son expulsion du territoire congolais. En 1998, dans sa requête, la Guinée prétendait obtenir près de trente-et-un milliards de dollars des 68 69 70

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Résolution 60/147 de l’Assemblée générale, 16 décembre 2005. Ibid., c’est nous qui soulignons. Ahmadou Sadio Diallo (République de Guinée c. République démocratique du Congo), Indemnisation due par la République démocratique du Congo à la République de Guinée, Mémoire de la République de Guinée, 23 mars 2001, p. 7. Ahmadou Sadio Diallo (République de Guinée c. République démocratique du Congo), Indemnisation due par la République démocratique du Congo à la République de Guinée, supra note n°10.

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Etats-Unis au titre des dommages subis par M. Diallo et près de cinq milliards de dollars des Etats-Unis supplémentaires à titre de dommages et intérêts.72 Ces prétentions étaient fondées presque exclusivement sur une estimation du dommage qualifié de «financier» par la Guinée, prenant en compte les pertes des sociétés Africom-Zaïre et Africontainers-Zaïre dont M. Diallo était le gérant et actionnaire.73 La Cour, dans son arrêt rendu en 2007 au stade des exceptions préliminaires, a retenu les exceptions d’irrecevabilité soulevées par la RDC ayant trait aux atteintes alléguées au droit de ses sociétés, à l’égard desquelles elle a jugé que la Guinée ne pouvait pas exercer sa protection diplomatique.74 Ce sont donc sur les violations alléguées des droits propres de M. Diallo que l’instance s’est ensuite concentrée. Au fond, la Cour a conclu que, s’agissant des conditions des arrestations et détentions de M. Diallo, ainsi que de son expulsion, la RDC avait violé, notamment, diverses dispositions du Pacte international relatif aux droits civils et politiques et de la Charte africaine des droits de l’homme et des peuples. En conséquence, elle a dit que «la République démocratique du Congo a[vait] l’obligation de fournir une réparation appropriée, sous la forme d’une indemnisation, à la République de Guinée pour les conséquences préjudiciables résultant».75 Cette décision, qui prévoit l’indemnisation de l’Etat national de la victime par l’Etat auteur du dommage, relève du droit classique de la protection diplomatique. Il ne pouvait de toute façon en être autrement, eu égard à la nature strictement interétatique de la compétence de la Cour. Pourtant au stade de l’indemnisation, la Cour va écarter en partie les conséquences logiques traditionnellement attachées à la fiction de la protection diplomatique, et se replacer très largement dans le contexte d’un différend entre un Etat et un individu. A ce stade de l’instance, la Guinée demandait que lui soit adjugé 11 590 148 dollars des Etats-Unis au titre des préjudices subis par M. Diallo ainsi que 500 000 dollars des Etats-Unis au titre des frais engagés pour conduire la procédure devant la Cour.76 La RDC, pour sa part, a considéré que le versement de 30 000 dollars des Etats-Unis permettrait de réparer le préjudice subi par M. Diallo. 72 73 74 75 76

Requête introductive d’instance de la République de Guinée, 28 décembre 1998. Ibid.; voir également le Mémoire de la République de Guinée, 23 mars 2001. Ahmadou Sadio Diallo (République de Guinée c. République démocratique du Congo), exceptions préliminaires, arrêt, C.I.J. Recueil 2007, p. 617, para. 98. Ahmadou Sadio Diallo (République de Guinée c. République démocratique du Congo), fond, arrêt, C.I.J. Recueil 2010, p. 693, para. 165 (les italiques sont de nous). Ahmadou Sadio Diallo (République de Guinée c. République démocratique du Congo), Indemnisation due par la République démocratique du Congo à la République de Guinée, supra note n°10, p. 330, para. 10.

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Pour calculer l’indemnisation due dans cette affaire, la Cour s’est concentrée sur les différents types de dommage subis par M. Diallo lui-même. Pour procéder à ce calcul, la Cour, face à la paucité de sa jurisprudence en la matière, s’est fondée essentiellement sur la pratique d’autres organes internationaux.77 Elle a également fait jouer certaines considérations d’équité. La Cour a conclu que la RDC devait à la République de Guinée 95 000 dollars des Etats-Unis pour les préjudices subis par M. Diallo et a rejeté intégralement la demande de la Guinée en ce qui concernait les frais de procédure.78 La Cour a toutefois, dans ses motifs, inséré une précision absolument remarquable quant au destinataire réel de cette indemnité. Au paragraphe 57 de l’arrêt, la Cour a tenu à rappeler que: «l’indemnité accordée à la Guinée, dans l’exercice par celle-ci de sa protection diplomatique à l’égard de M. Diallo, est destinée à réparer le préjudice subi par celui-ci».79 La fiction de la protection diplomatique est ici écartée au profit d’une indemnisation directe de la victime des violations des droits de l’homme. Le préjudice de l’Etat subi à travers la personne de son ressortissant n’existe pas, seul subsiste celui subi directement par la victime. La Guinée est bien visée au dispositif en sa qualité de partie à l’instance, mais le bénéficiaire de la décision est M. Diallo lui-même, auquel la Cour reconnaît certains droits découlant de la mise en œuvre de la responsabilité internationale. Les juges de la Cour sont plus explicites dans les opinions qu’ils ont jointes à l’arrêt, et nul ne prendra la plume pour indiquer que l’indemnisation est à la libre disposition de la Guinée. Ainsi, pour le juge Greenwood: Même si c’est dans l’exercice de sa protection diplomatique que la Guinée a saisi la Cour, la présente espèce concerne essentiellement les droits de l’homme de M. Diallo. Les dommages-intérêts que la Cour a ordonné à la République démocratique du Congo (RDC) de verser à la Guinée, et dont le montant a été établi en fonction de la perte subie par 77

78 79

Ibid., p. 331, para. 13: «La Cour tient compte de la pratique d’autres juridictions et commissions internationales (telles que le Tribunal international du droit de la mer, la Cour européenne des droits de l’homme (CEDH), la Cour interaméricaine des droits de l’homme (CIADH), le Tribunal des réclamations Etats-Unis/Iran, la Commission des réclamations entre l’Erythrée et l’Ethiopie et la Commission d’indemnisation des Nations Unies), qui ont appliqué les principes généraux régissant l’indemnisation lorsqu’elles ont été appelées à fixer le montant d’une indemnité, notamment à raison du préjudice découlant d’une détention ou d’une expulsion illicites.» Ibid., p. 345, para. 61. Ibid., p. 344, para. 57 (c’est nous qui soulignons).

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M. Diallo, sont destinés à indemniser ce dernier, et non l’Etat auquel il ressortit.80 Le Juge Cançado Trindade partage cette interprétation de l’arrêt, allant jusqu’à défendre la thèse selon laquelle l’individu serait devenu un véritable sujet du droit international.81 Pour ce dernier: L’Etat responsable doit réparation aux victimes individuelles […] Le droit de l’individu à réparation est bien établi en droit international des droits de l’homme—il suffit de lire l’abondante jurisprudence développée en la matière par les Cours interaméricaine et européenne des droits de l’homme. […] Partant, lorsque des violations de droits de l’homme sont en jeu, le régime de réparation ne saurait s’épuiser au niveau interétatique, laissant en définitive la personne victime privée de toute forme de réparation, complètement à la merci de l’Etat fautif.82 Ce juge s’est référé ici à des régimes conventionnels reconnaissant des droits étendus aux individus dans l’ordre international, mais la Cour évoluait dans les limites prétendument plus étroites du droit international coutumier. A cet égard, la comparaison entre cet arrêt et les articles de la CDI sur la protection diplomatique est éloquente. La Cour a reconnu la nature coutumière du bénéfice de l’indemnisation à la victime de violation des droits de l’homme, qui n’était, selon l’article 19 du projet de la CDI sur la protection diplomatique, que l’objet de cette protection auquel l’Etat exerçant sa protection diplomatique «devrait transférer […] toute indemnisation pour le préjudice de l’Etat responsable, sous réserve de déductions raisonnables» (c’est nous qui soulignons). Dans l’affaire Diallo, la Cour a ainsi fait passer de la lex ferenda à la lex lata le droit au bénéfice de l’indemnisation des victimes de violations des droits de l’homme. La Cour n’a pas motivé l’énoncé du droit des victimes de violations des droits de l’homme au bénéfice de l’indemnisation, qu’elle a simplement affirmé. Elle ne s’est pas fondée sur un examen approfondi des comportements des Etats pour justifier l’apparition d’une telle règle en droit coutumier. Au regard des conclusions de la CDI sur cette question, dans son commentaire de l’article 19 sur la protection diplomatique, un tel examen n’aurait d’ailleurs certainement 80 81 82

Déclaration de M. le juge Greenwood, C.I.J. Recueil 2012, p. 391, para. 1. Opinion individuelle de M. le juge Cançado Trindade, C.I.J. Recueil 2012, pp. 349–51, paras. 4–13. Ibid., pp. 360–1, paras. 35–6.

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pas conduit au résultat auquel la Cour est parvenue. Celle-ci a en réalité procédé au développement progressif du droit international à l’occasion de l’exercice de sa compétence contentieuse. Ce développement, proposé par la Commission, puis l’Assemblée générale, a été cristallisé par la Cour. Cette règle n’est pas déduite d’une modification sensible de la pratique des Etats, mais constitue le fruit d’un dialogue normatif entre la CDI, l’Assemblée générale et la Cour. Ce qui paraît avoir été déterminant pour la Cour, est justement la question de la violation des droits de l’homme, qui a occupé une place centrale dans les analyses de la CDI et de l’Assemblée générale. Dans ce cadre, le préjudice subi est particulier, puisqu’il touche les individus dans ce qu’ils ont de plus intime et que c’est toujours un Etat qui est à l’origine de ce préjudice. Ainsi, pour décrire le préjudice immatériel subi par M. Diallo, la Cour a successivement évoqué ses souffrances morales, l’atteinte à ses sentiments, l’humiliation, la honte, la dégradation, la perte de sa position sociale, l’atteinte portée à son crédit ou à sa réputation, ainsi que la détresse et la souffrance, l’atteinte aux valeurs fondamentales de la victime et les bouleversements de nature non pécuniaire provoqués dans sa vie quotidienne.83 En outre, les instruments de protection des droits de l’homme prévoient toujours le droit à l’indemnisation de la victime. La Cour a semblé considérer, dans l’affaire Diallo, qu’il s’agissait là d’un principe général en droit international qu’elle pouvait appliquer à toute situation de violation des droits de l’homme sans devoir se fonder sur un régime conventionnel spécifique. Ceci permet aussi de limiter la portée du droit reconnu à l’individu, qui ne semble applicable que dans des situations de violation de ses droits humains. En outre, la Cour a établi une séparation stricte, dans le cadre de l’indemnisation, entre la question du bénéfice des sommes versées au titre du préjudice de l’Etat et celle du préjudice subi par l’individu. La mention des «déductions raisonnables» faite à l’article 19 du projet de la CDI est expliquée ainsi dans le commentaire correspondant: L’alinéa c reconnaît qu’il ne serait pas inconvenant qu’un Etat opère des déductions raisonnables de l’indemnisation transférée aux personnes lésées. La justification la plus évidente d’une telle mesure serait qu’elle permettrait à l’Etat de recouvrer les sommes déboursées au titre des démarches qu’il a effectuées pour obtenir une indemnisation pour le 83

Ahmadou Sadio Diallo (République de Guinée c. République démocratique du Congo), Indemnisation due par la République démocratique du Congo à la République de Guinée, supra note n°10, p. 333, para. 18.

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compte de ses nationaux, ou de recouvrer le coût des biens et services qu’il leur a fournis.84 Dans cette affaire, les sommes réclamées au titre des frais de justice étaient largement supérieures à l’indemnisation due à la personne lésée. Il n’empêche que la Cour a pourtant indiqué à l’Etat ayant exercé sa protection diplomatique qu’il devrait supporter ses propres frais de procédure. Il en découle, au regard de l’indication de la destination de l’indemnisation, que la Guinée ne pouvait retenir l’indemnisation due à M. Diallo à ce titre. Cet Etat est en réalité considéré comme l’agent international de M. Diallo et c’est, en outre, le respect de la légalité objective qui est protégé par son recours aux mécanismes contentieux internationaux. C’est ici la conception de la protection diplomatique comme droit de l’homme, plutôt que comme droit de l’Etat, qui semble avoir prévalu.85 A cet égard, le juge ad hoc Mahiou a fait remarquer que: s’agissant des frais encourus pour l’assistance en justice, notons d’abord qu’avec ce chef d’indemnisation, on quitte la situation personnelle de M. Diallo pour passer à une autre situation impliquant l’Etat guinéen. En effet, avec la mise en œuvre de la protection diplomatique, c’est l’Etat guinéen qui est demandeur dans la présente affaire et qui a engagé les frais adéquats pour défendre les droits et intérêts de son ressortissant.86 * La Cour, dans l’affaire Diallo, a donné un contenu substantiel à la situation laissée ouverte par le paragraphe 2 de l’article 33 de la CDI sur la responsabilité des Etats pour fait internationalement illicite et à l’article 19 des articles sur la protection diplomatique. L’article 33 visait essentiellement des situations propres à des régimes conventionnels particuliers. Il est désormais reconnu que, dans des situations de violation des droits de l’homme, l’individu est le bénéficiaire de l’indemnisation. A ce droit correspondent des obligations distinctes pesant sur l’Etat à l’origine du préjudice et sur celui ayant un titre à exercer la protection diplomatique. L’indemnisation est due en premier lieu par l’Etat auteur du préjudice, sur lequel pèse l’obligation de le réparer. C’est dans son ordre juridique interne qu’il est tenu par plusieurs obligations positives énoncées au paragraphe 3 des 84 Ann. C.D.I. 2006, vol. II (Deuxième partie), p. 56. 85 Dugard, supra note n°44, p. 76. 86 Opinion individuelle de M. le juge ad hoc Mahiou, C.I.J. Recueil 2012, p. 402, para. 19.

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‘Principes fondamentaux et directives concernant le droit à un recours et à réparation des victimes de violations flagrantes du droit international des droits de l’homme et de violations graves du droit international humanitaire’ qui dispose: L’obligation de respecter, de faire respecter et d’appliquer le droit international des droits de l’homme et le droit international humanitaire, telle qu’elle est prévue dans les régimes juridiques pertinents, comprend, entre autres, l’obligation: (a) De prendre les mesures législatives et administratives appropriées ainsi que d’autres mesures appropriées pour prévenir les violations; (b) D’enquêter de manière efficace, rapide, exhaustive et impartiale sur les violations et de prendre, le cas échéant, des mesures contre les personnes qui en seraient responsables, conformément au droit interne et au droit international; (c) D’assurer à ceux qui affirment être victimes d’une violation des droits de l’homme ou du droit humanitaire l’accès effectif à la justice, dans des conditions d’égalité, comme il est précisé ci-après, quelle que soit, en définitive, la partie responsable de la violation; (d) D’offrir aux victimes des recours utiles, y compris la réparation, comme il est précisé ci-après.87 Les obligations de l’Etat auteur du dommage pèsent également sur celui-ci dans l’ordre juridique international, mais la sanction de leur violation ne peut être exigée que de deux façons. Si l’individu ne peut faire valoir ses droits dans le cadre d’un régime conventionnel particulier lui ouvrant des voies de recours internationales, c’est le mécanisme classique de la protection diplomatique qui peut seul permettre une telle sanction. L’Etat qui choisit d’exercer sa protection est également tenu par certaines obligations du fait de la reconnaissance du droit de l’individu au bénéfice de l’indemnisation versée au titre des préjudices subis par lui en violation de ses droits de l’homme. Il découle de l’arrêt Diallo que, si une indemnisation est versée par l’auteur du dommage, l’Etat ayant exercé sa protection diplomatique a l’obligation de la reverser intégralement à la victime. Le droit à l’indemnisation est opposable à l’Etat de nationalité qui pourrait se voir ainsi empêché de récupérer une partie de ses frais de justice ou de procéder à un 87

Résolution 60/147 de l’Assemblée générale, 16 décembre 2005, Annexe.

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arrangement amiable avec l’auteur du préjudice portant sur le versement d’une somme forfaitaire différente de celle décidée par une juridiction internationale. Reconnaître un droit au bénéfice de l’indemnisation à la victime revient logiquement à priver l’Etat de ce droit. Il ne peut donc en disposer en renonçant au bénéfice de l’indemnisation, en tout ou en partie, à la place de la victime elle-même. Ceci pourrait conduire à empêcher les Etats de conclure des accords visant au versement d’une somme globale au titre de l’indemnisation des violations des droits de l’homme subies par un groupe d’individus. Il en ressort que l’indemnisation qu’un Etat exerçant une action en protection diplomatique pourrait obtenir pour son propre compte est ainsi limité à la réparation des préjudices directs qu’il aurait pu subir du fait de l’atteinte aux droits propres reconnus à son ressortissant dans l’ordre juridique international. La logique du droit international des droits de l’homme modifie ainsi la logique du droit de la protection diplomatique qui, si elle demeure un droit de l’Etat, a désormais vocation, en partie, à assurer le respect de la légalité objective. La reconnaissance des droits de l’homme au niveau international a entraîné une modification significative des règles primaires du droit international. La «formule Mavrommatis» est le reflet d’une époque où les règles primaires du droit international ne régulaient que les relations interétatiques et la fiction de la protection diplomatique permettait de pallier aux insuffisances du système juridique international.88 Avec l’évolution des règles primaires, et la reconnaissance progressive d’un ensemble de droits aux individus dans l’ordre juridique international, ce sont les règles secondaires du droit international qui devaient s’adapter. Un tel développement progressif des règles classiques de la responsabilité internationale n’est rien d’autre que la conséquence nécessaire, presque logique, de la construction normative en matière de droits de l’homme. Le projet des droits de l’homme est de réguler les rapports entre l’individu et l’Etat en limitant les prérogatives de ce dernier. En reconnaissant le droit à l’indemnisation aux victimes des violations des droits de l’homme, tirant ainsi certaines conséquences en droit de la responsabilité internationale de la reconnaissance des droits de l’homme en droit positif, c’est bien à cet objectif que la Cour a contribué. 88 Voir supra note n°23.

chapter 15

The icc Reparations Scheme: Promise for Victims or Recipe for Failure?—A Critical Discussion of Joakim Dungel’s Unpublished Article ‘Reparations and the icc: Is the Court Ready for the Job?’ Philipp Ambach* 1

Introductory Note

On 3 March 2015, the Appeals Chamber of the International Criminal Court (icc) issued its judgment in the case against Thomas Lubanga Dyilo, deciding the appeals against the Trial Chamber’s decision establishing the principles and procedures to be applied to reparations, after having confirmed his convic­ tion and sentence in December 2014. In doing so, the Appeals Chamber amended the Lubanga Trial Chamber’s decision on reparations and the corre­ sponding order on how to award them. It also and confirmed a number of prin­ ciples governing reparations to victims of atrocity crimes. The following chapter—written before the above appeal judgment was ­rendered—deals with the challenges of the icc’s reparations scheme, as Joakim had identified them long before the Lubanga Trial Chamber even con­ sidered the issue of reparations. The new icc jurisprudence has affirmed what both Joakim and the author have identified as some of the key issues that need to be settled in order to achieve an effective and equitable reparations system at the icc, bringing justice and reconciliation to affected communities through meaningful redress. The Appeals Chamber sheds authoritative light on some of the areas dealt with herein that required clarification. The work of the Lubanga Appeals Chamber therefore complements the chapter and, more importantly, confirms the relevance of Joakim’s work on this topic.

* Dr iur. Philipp Ambach, Special Assistant of the President the International Criminal Court. Previously, the author was employed as an associate legal officer in the Appeals Chamber of the International Criminal Tribunals for the former Yugoslavia and Rwanda, after having been admitted nationally as prosecutor in the Office of the Public Prosecutor of Cologne, Germany. The views expressed herein are those of the author alone and do not reflect the views of the International Criminal Court.

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The main issues that the Lubanga Appeals Chamber has clarified that are of relevance for the ensuing discussion are contained within a final note to this Chapter. The concept of reparations for victims for past atrocities is not a novelty; in fact, it may be as old as many other fundamental concepts of law, stemming from times long before the first international treaty instrument attempted to codify a reparations regime for the benefit of atrocity victims.1 The Treaty of Frankfurt of 10 May 1871 marking the end of the Franco-Prussian War, the Treaty of Versailles of 28 June 1919 after the end of the First World War, or the findings on German reparations to the Allied Powers during the Potsdam Conference in July/August 1945 in the wake of the Second World War are exam­ ples of the more recent past where international treaties dealt with repara­ tions. However, the purpose of these treaties was not to have atrocity victims benefit from a reparations scheme; rather the reparations established were meant to serve as retribution for the losing side of the war. As opposed to these examples of predominantly regional reparative justice initiatives, the 1907 Hague Convention IV and the 1984 Torture Con­ vention establish universally binding international instruments conferring a duty on states to afford reparations to victims in certain ­circumstances— instruments which have since been accepted as international customary law.2 It has to be noted, however, that the aforementioned reparations regimes were agreed among—and conferring duties and obligations on— states; individuals and the physically affected communities would only ben­ efit indirectly if at all. Focusing, in contrast, on the individual as a victim of crimes, a number of national legal systems provide for reparations for indi­ vidual victims of crimes in that the same court that determines the criminal 1 In ancient times, it was not unusual that the winning party imposed reparations upon the defeated enemy in the form of tributes. As an example, Rome imposed large indemnities on Carthage after the First and Second Punic Wars. T. Livy, ‘The Early History of Rome’, books I–V, The History of Rome from its Foundation, 1976. 2 Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, The Hague, 18 October 1907, Art. 3; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punish­ ment, un Doc. A/39/41 (1984), entered into force on 26 June 1987, Art. 14. As for the interna­ tional customary acceptance of State responsibility to afford reparations for violations of international humanitarian law see Henckaerts and Doswald-Beck, supra note 31, Customary ihl Rule 150 ‘Reparation’ (‘A State responsible for violations of international humanitarian law is required to make full reparation for the loss or injury caused’.). www.icrc.org/customary -ihl/eng/docs/v1_cha_chapter42_rule150 (last accessed 1 July 2014).

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guilt of an accused also hears and decides on the individual victims’ claims for damages.3 However, the first institutions in the field of international criminal justice have largely focused on the retributive elements of criminal justice, leaving aspects of reparative or restorative justice aside. The International Military Tribunal of 19454 in reaction to the Second World War Nazi atrocities repre­ sents, alongside its contemporary counterpart, the International Military Tribunal for the Far East in 19465 for crimes committed by the Japanese forces during the war, a revolution in the history of international criminal justice since it represented the first international criminal tribunal trying individuals for a set of international crimes.6 However, the Tribunal did not provide for a victim-oriented justice component such as victim participation or repara­ tions—despite the facts that victims of Nazi crimes were in the millions.7 The next truly international tribunals, the International Criminal Tribunal for the

3 See, e.g., Section  22:1 rb (Code of Civil Procedure, Sweden); Article 371 of the Code de Procedure Pénale (Code of Criminal Procedure, France); § 403 Strafprozessordnung (Code of Criminal Procedure, Germany) and § 46a Strafgesetzbuch (Criminal Code, Germany, section titled ‘Täter-Opfer-Ausgleich, Schadenswiedergutmachung’) regarding a facultative reduc­ tion of sentence if the perpetrator has afforded reparations to the victim(s) of his or her crimes. 4 The Charter of the International Military Tribunal (‘imt’) is based on the London Agreement of 8 August 1945 by the Allied Powers; 1945 American Journal of International Law (39), Suppl. 257. See the Charter of the imt at http://avalon.law.yale.edu/imt/imtconst.asp (last accessed 1 August 2014). 5 The International Military Tribunal for the Far East (‘imtfe’) was created for crimes commit­ ted by the Japanese forces in line with its aggressive policies during World War II. Although the imtfe was not established by an international treaty but rather by a directive of the Commander-in-Chief of the Allied Forces (Douglas MacArthur) of 19 January 1946, the Charter of the imt at Nuremberg (see supra note 4) served as a model for the governing legal framework and applicable law at the imtfe. J. Pritchard and S.M. Zaide (eds), The Tokyo War Crimes Trial (1981), Vol. 1; G. Werle, Principles of International Criminal Law, Second Edition (2009), para. 32. 6 G. Werle, ibid., para. 15. The Charter stipulated—as the first international treaty document to do so—that crimes against peace, war crimes, and crimes against humanity entail individual criminal responsibility under international law. The Charter of the imtfe follows the Charter of the imt at Nuremberg almost verbatim; Prichard and Zaide, supra note 5, Vol. 1. 7 Articles 26 to 29 of the Charter of the imt relevant to the judgment and sentence remain silent as to reparations for victims. So do the Rules of Procedure (adopted 29 October 1945), available at http://avalon.law.yale.edu/imt/imtconst.asp (last accessed 1 August 2014).

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former Yugoslavia (‘icty’, in 1993)8 and the International Criminal Tribunal for Rwanda (‘ictr’, in 1994),9 likewise did not make provision in their governing texts for any direct court-ordered reparations to victims of international crimes.10 It is only with the establishment of the permanent International Criminal Court11 in 2002 that the system of international criminal justice—which has rapidly evolved since the establishment of the icty and ictr12—was enhanced by the reparative justice component of victim participation and reparations in the icc procedural framework.13 The regulatory framework provides rather far-reaching procedural participatory rights, albeit with certain restrictions, introducing victims’ legal representatives into the proceedings. The repara­ tions regime provides for a Chamber-controlled repartition scheme of a con­ vict’s goods and assets to victims who have suffered harm as a result of the crimes subject to the conviction. Finally, the Rome Statute establishes a Trust 8 www.icty.org/. 9 www.unictr.org/. 10 The procedural rules of the icty and ictr as well as for the Special Court for Sierra Leone (‘scsl’) provide for compensation to victims. However, an action for such compensation cannot be filed before the tribunals themselves. Rather, Rule 106 of the Rules of Procedure and Evidence provides that ‘[p]ursuant to the relevant national legislation, a victim or per­ sons claiming through the victim may bring an action in a national court or other compe­ tent body to obtain compensation’, Rule 106 (B), IT/32/Rev. 49, of 22 May 2013, www.un.org/ icty/legaldoc-e/index.htmRPE (last accessed 1 August 2014); ictr Rules of Procedure and Evidence, Rule 106 (B), un Doc. ICTR/3/Rev. 1 (adopted on June 29, 1995, as last amended on 1 October 2009) http://www.unictr.org/sites/unictr.org/files/legal-library/130410_rpe_ en_fr.pdf (last accessed 1 August 2014); United Nations Mechanism for International Criminal Tribunals, Rules of Procedure and Evidence, Rule 130 (B) (mict/1 adopted on 8 June 2012); scsl Rules of Procedure and Evidence, Rule 105 (B) (adopted on Jan. 16, 2002, as amended) https://www1.umn.edu/humanrts/instree/SCSL/Rules-of-proced-SCSL.pdf (last accessed 1 July 2014). A similar approach to compensation to victims is envisaged by the Special Tribunal for Lebanon. See Statute of the Special Tribunal for Lebanon, S/RES/ 1757 (2007), Attachment, Art. 25 (3) www.stl-tsl.org/en/documents/statute-of-the-tribunal/ statute-of-the-special-tribunal-for-lebanon (last accessed 1 August 2014). 11 Hereinafter ‘icc’ or ‘the Court’. 12 G. Werle, supra note 5, para. 62. 13 Articles 68(3), 75 of the Rome Statute of the International Criminal Court, originally cir­ culated as document A/CONF.183/9 of 17 July 1998 and corrected by procès-verbaux of 10 November 1998, 12 July 1999, 30 November 1999, 8 May 2000, 17 January 2001 and 16 January 2002 (‘Rome Statute’), un Treaty Series, vol. 2187, No. 38544, as last amended in 2010. See www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute _english.pdf (last accessed 1 August 2014).

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Fund for Victims in Article 79 of the Rome Statute, which may assist in imple­ menting reparations to victims. 2

Setting the Scene

In 2008, Joakim and I worked as colleagues and friends together at the icty. One day, he asked me to proofread a piece he had written on the reparations regime of the icc, to be submitted to a renowned law journal upon comple­ tion. The article had the following title: ‘Reparations and the icc: Is the Court Ready for the Job?’ The article caught my immediate attention and amazement for I had been unaware that Joakim had undertaken extensive research and analytical efforts in order to get to the bottom of the new—and then still untested—reparations regime as proposed by the icc in its regulatory frame­ work. And he did get to the bottom of it. Two internships at the icc and aca­ demic works on the Court had provided me with some experience with the specific—and distinct—features of the icc vis-à-vis the un ad hoc Tribunals icty and ictr, which are, unlike the icc, of a temporary nature and will cease to exist with the completion of their mandates.14 While proofreading his piece, I appreciated Joakim’s lucid analysis of such a complex matter. With much admiration (and very few comments) I gave the article back to him. Unfortunately, Joakim left the icty soon thereafter and somehow the ultimate fine-tuning of the piece was left undone. The article was never published. In the following, I want to display the essential parts of his analysis and demonstrate how his thoughts and ideas regarding the icc’s reparation regime have remained the most pressing challenges for the Court today, more than five years later, with reparation proceedings waiting to be implemented in one case,15 and with other reparations proceedings well underway at the time of 14

15

icty and ictr are succeeded by the United Nations Mechanism for International Criminal Tribunals (‘mict’), which was established by the United Nations Security Council on 22 December 2010 to carry out a number of essential functions of the un ad hoc Tribunals after the completion of their mandates. The mict is also a temporary body, tasked with continuing the ‘jurisdiction, rights and obligations and essential functions’ (unsc Resolution S/RES/1966 (2010) of 22 December 2010, op 4) of the ictr and the icty, and maintaining the legacy of both institutions. http://unmict.org/about.html. The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06 (Situation in Democ­ ratic Republic of the Congo). Mr Lubanga was found guilty, on 14 March 2012, of the war crimes of enlisting and conscripting of children under the age of 15 years and using them to participate actively in hostilities. He was sentenced on 10 July 2012 to a total of 14 years of imprisonment. Appeals proceedings are presently ongoing.

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writing this chapter.16 I will discuss his arguments and conclusions in the light of the current legal framework, as well as the jurisprudence that has evolved since. The parts from Joakim’s article cited herein are clearly indicated as such and have not been amended in respect of content or footnotes. In his introduction, Joakim set the scene for his discussion as follows: The icc has dual functions as an instrument for transitional justice. On the one hand, it is charged with trying serious international crimes. In this respect, the icc is not fundamentally different from other interna­ tional tribunals employing prosecutions as a means for dealing with past mass-atrocities. On the other hand, in addition to its prosecutorial func­ tion, the icc is uniquely endowed with administering a system of repara­ tions to victims. Article 75 of the Rome Statute empowers the icc to order a convicted person to pay reparations to victims in the form of ‘res­ titution, compensation and rehabilitation’. Such reparations may be made through a Trust Fund, which has been established by the Assembly of States Parties to the Rome Statute.17 At first glance, it appears both logical and practical that the icc, being the body that determines the guilt in relation to a crime, also decides the appropriate reparations to the victims of that crime. Indeed, in some dome­ stic legal systems, the same court that determines the criminal guilt of the accused also hears and decides the individual victims’ claims for dam­ ages.18 However, the icc differs significantly from national courts in terms of the magnitude of the cases with which it is concerned. It will hear cases potentially involving thousands of victims and having implications for entire regions. Providing adequate reparations in such cases will require considerations reaching beyond damages to individual victims, into the societal transition progress following in the wake of mass atrocities. This article inquires whether and how the rules governing the icc’s reparations scheme, including the Trust Fund [for victims], anticipate 16

The Prosecutor v. Germain Katanga, Case No. ICC-01/04-01/07 (Situation in Democratic Republic of the Congo). On 7 March 2014, Trial Chamber II found Mr Katanga guilty, pur­ suant to Àrticle 25(3)(d) of the Rome Statute, of crimes against humanity (murder), and war crimes (murder, attacking a civilian population, destruction of property, and pillag­ ing), Jugement rendu en application de l’Article 74 du Statut, Case No. ICC-01/04-01/073436. He was sentenced on 23 May 2014 to 12 years of imprisonment, see The Prosecutor v. Germain Katanga, Décision relative à la peine (Article 76 du Statut), Case No. ICC-01/0401/07-3484. The Prosecutor and the Defence have appealed the judgment. 17 Rome Statute, Arts. 75, 79. 18 See supra note 3.

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the important role icc reparations may come to play in such ‘transitional reparatory justice’.19 Part I describes the construction of the icc’s repara­ tions scheme. Part II analyses two paradigms facing the application of this scheme as an instrument of transitional justice, namely, first, the massive scope of the cases likely to come before the Court, and, second, the fact that icc reparations are based on the specific acts of an accused. These two paradigms, it is contended, may force the icc into the political arena and make it perceived as biased by victims. In Part III, some recom­ mendations are suggested in light of the preceding analysis. Finally, a brief concluding remark is offered in Part IV, proposing an answer to the question posed: “Is the icc ready for the job?” In order to follow the flow of Joakim’s argument in particular in Parts II to IV, the structure of his original submission shall be broadly retained in the present chapter under Sections 4 to 6 below (the following section corresponding to Joakim’s Part I). 3

The Reparations Regime at the International Criminal Court

The right of an individual to reparations is a fundamental part of the inalien­ able right to an effective remedy.20 Despite the fact that the right of victims to reparations represents the direct mirror to the many examples of interna­ tionally recognised authorities conferring reparation duties on states for past atrocities,21 the insertion of a reparations regime in the Rome Statute was not without controversy. It was only upon active efforts of a number of govern­ mental delegations and civil society, gathered in the ‘Victims’ Rights Working Group’ of the Coalition for the icc, that a previously deleted provision on repa­ rations for victims was re-inserted in 1997 into the draft text of the Rome Statute.22 This development was paralleled by the somewhat less controversial debate that victims before the icc should receive a more prominent role than 19 20

21 22

The term is taken from R.G. Teitel, Transitional Justice (2000), at 146. Donat-Cattin, ‘Article 75’, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court—Observers’ Notes, Article by Article (2008), Vol. 2, para. 4; see also 1966 International Covenant on Civil and Political Rights, General Assembly resolu­ tion 2200A (XXI) of 16 December 1966, entry into force 23 March 1976, Art. 2(3). See only 1907 Hague Convention IV, Art. 3, and the 1984 Torture Convention, Art. 14, supra note 2. Donat-Cattin, ‘Article 75’, in O. Triffterer, supra note 20, paras. 6–7. See for the Victims’ Rights Working Group http://www.vrwg.org/home/home.

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before the un ad hoc Tribunals where victims could only participate in the proceedings as witnesses.23 Reflective of these developments, the Rome Statute contains rather little guid­ ance on the participation of victims in the proceedings and on their entitlement to claim reparations as a form thereof. A single paragraph of one of the Rome Statute’s 128 articles regulates victim participation in the proceedings: Article 68(3) stipulates in relevant part that ‘[w]here the personal interests of the vic­ tims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial’. The Court’s Rules of Procedure and Evidence contain further guidance;24 and, central to the present discussion, Article 75 of the Rome Statute establishes the reparation regime of the icc. Article 75(1) of the Rome Statute stipulates that ‘[t]he Court shall establish principles relating to reparations to, or in respect of, victims, including restitu­ tion, compensation and rehabilitation. On this basis, in its decision the Court may, either upon request or on its own motion in exceptional circumstances, determine the scope and extent of any damage, loss and injury to, or in respect of, victims and will state the principles on which it is acting’.25 This provision contains three fundamental elements which need further clarification: (a) Principles relating to reparations to, or in respect of, victims,26 need to be established by ‘the Court’; what remains unclear is (i) whether the principles need to be established prior to the first reparations proceed­ ings; and (ii) which body of the icc is meant with the term ‘the Court’; (b) Reparations may ‘includ[e] restitution, compensation and rehabilita­ tion’. The Statute and the Rules are devoid of a more detailed definition of 23 24

25 26

Donat-Cattin, ‘Article 68’, in O. Triffterer, supra note 20, paras. 3, 35–7. Rule 89 of the Court’s Rules of Procedure and Evidence (ICC-ASP/1/3 and Corr.1; in the following: ‘icc Rules’) outlines the application process for victims’ participation in the proceedings; Rules 90 and 91 regulate the regime of legal representation of victims as well as the participation of these legal representatives in the court proceedings on behalf of their client. Rule 92 of the icc Rules determines notification rights of the victims (and their legal representatives), mirrored by notification obligations of the Court. Finally, Rule 93 provides the Chamber with the liberty to seek victims’ submissions on a number of procedural matters as well as any matter the Chamber deems appropriate. Rome Statute, Art. 75(1). The words ‘in respect of’ in Article 75(1) of the Rome Statute were included to extend the scope of application of Article 75 to indirect victims such as the victims’ families and suc­ cessors. Report of the Working Group on Procedural Matters, un Doc. A/CONF.183/C.1/ WGPM/L.2/Add.7 (‘Report of the Working Group on Procedural Matters’), p. 5. See also Donat-Cattin, ‘Article 75’, in O. Triffterer, supra note 20, para. 9.

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these terms; further, it is unclear from the regulatory framework whether also other forms of reparations than restitution, compensation, and reha­ bilitation can be included in the Court’s repertoire of measures. (c) It is the Court that ‘may’ determine the scope and extent of victims’ dam­ age, loss, and injury resulting from the crimes. It is unclear from the Rome Statute itself how the term ‘may’ is to be understood; does it leave the choice to the Court whether or not it wants to make a determination in ongoing reparation proceedings? These three fundamental issues shall be addressed in turn. They will be fol­ lowed by some considerations on the subjects of reparations, the procedure for victims to obtain reparations, and the icc’s Trust Fund for Victims. 3.1 Reparations Principles In 2011, the icc’s Assembly of States Parties27 (‘Assembly’) Study Group on Governance (‘Study Group’)28 discussed the issue of reparations in its Hague Working Group at the premises of the icc, together with representatives of the Court.29 Discussions quickly focused on two crucial matters: is there a need to develop principles relating to reparations prior to the first relevant reparations proceedings before the Chambers? And what is the competent body to do so? During exhaustive discussions between States Parties and the Court in the Study Group, the Presidency explained that the issue of development of prin­ ciples relating to reparations had been discussed by the plenary of judges on two occasions in 2006 and 2008. As a result of these discussions, the establish­ ment of principles relating to reparations was left to the competent Chambers when the question of reparations would arise subsequent to a conviction of an accused in legal proceedings before the Court.30 An analysis of the term ‘the Court’ as used in Article 75 of the Rome Statute would appear to support such reading. Paragraph 2 of Article 75 of the Rome 27 28

29 30

See Rome Statute, Art. 112. The Study Group was established via a resolution of the Assembly of States Parties in December 2010 (ICC-ASP/9/Res.2) ‘to conduct a structured dialogue between States Parties and the Court with a view to strengthening the institutional framework of the Rome Statute system and enhancing the efficiency and effectiveness of the Court while fully preserving its judicial independence…’; and ‘to facilitate the dialogue referred to in paragraph 1 with a view to identifying issues where further action is required, in consultation with the Court, and formulating recommendations to the Assembly through the Bureau’. See Report of the Bureau on the Study Group on Governance, ICC-ASP/10/30, of 22 November 2011, para. 23. Report of the Court on principles relating to victims’ reparations, ICC-ASP/12/39 of 8 October 2013, para. 3.

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Statute commences with the words ‘[t]he Court may make an order […]’; similar language is repeated in paragraphs 2 and 3. It is clear from the Statute that it is only a Chamber that is vested with the power to issue orders in the proceed­ ings.31 Further, the synonymous use of the term ‘Court’ if in fact the competent Chamber is addressed can be observed throughout the Rome Statute,32 and spe­ cifically in Part VI of the Rome Statute (‘The Trial’) where Article 75 is located.33 Despite these legal considerations—which were brought to general attention—, in its Resolution on Reparations of 20 December 2011, the Assembly requested the Court ‘to ensure that Court-wide coherent principles relating to reparations shall be established in accordance with Article 75, paragraph 1, [of the Rome Statute] based on which the Court may issue individual orders for reparations’.34 The Assembly thus made clear its expectation that principles regarding reparations should be established in a general fashion (and equally applicable to all cases) prior to being applied in individual cases. On 7 August 2012, Trial Chamber I issued its decision on principles and pro­ cedures for reparations in the Lubanga case.35 The decision defined a number of principles regarding reparations36 on a variety of sub-topics, including a number of procedural issues, covering the ground in a rather comprehensive manner.37 The Chamber also determined the approach to be taken for the implementation of its decision. Although the Chamber underlined that the 31

32 33

34 35

36

37

The Statute explicitly confers the authority to issue orders to Chambers of all three Divisions: Arts. 56, 57, 61 and 72(7)(b) for the Pre-Trial Chambers; Arts. 64(6), 65(3), 68, 72(7)(b) for the Trial Chambers; Art. 82(3) of the Rome Statute for the Appeals Chamber. For a similar reading that the establishment of principles relating to reparations is con­ ferred upon the competent Chamber see Donat-Cattin, ‘Article 75’ in O. Triffterer, supra note 20, para. 13, speaking of ‘the Court’s decision establishing principles’. See only Rome Statute, Arts. 19(9), 58(4), 93 and 95. See Rome Statute, Arts. 68(2), 77(2), 78(2), 79(2). Conspicuously, Arts. 74 and 76 explicitly refer to the ‘Trial Chamber’ whereas Art. 75 does not. This can, however, be explained by the fact that, during the drafting history of the Rome Statute, it was unclear until rather late in the negotiations where the provision regarding victims’ reparations—a provision not included in the earlier drafts of the Statute—should be located. Its positioning inbetween the requirements for the trial judgment and provisions on sentencing is therefore rather ‘coincidental’. See Donat-Cattin, ‘Article 75’ in O. Triffterer, supra note 20, para. 7. Resolution ICC-ASP/10/Res.3, ICC-ASP/10/20, 20 December 2011, operative paragraph 1. The Prosecutor v. Thomas Lubanga Dyilo, Decision Establishing the Principles and Procedures to be Applied to Reparations, 7 August 2012 (‘Lubanga Reparations Decision’), Case No. ICC-01/04-01/06-2904. Ibid., paras. 182–259. The Chamber underlined that the principles are ‘limited to the cir­ cumstances of the present case’. Ibid., para. 181. Principles established by one trial cham­ ber do not create a stare decisis effect on future trial chambers. Ibid., paras. 260–88.

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principles are ‘limited to the circumstances of the present case’38 (and thus arguably not what the Assembly had in mind when calling for ‘Court-wide coherent principles relating to reparations’ in its December 2011 Resolution), an analysis of the authorities used and the manner in which the principles were formulated shows that the Chamber in fact created a rather robust set of principles that find general application because they display many essential principles already enshrined in a number of international treaties. 3.1.1 Legal Authorities Underlying the Lubanga Chamber’s Findings More concretely, the Chamber did not only apply the Rome Statute and Rules and Regulations of the Court,39 but also recalled universal and regional human rights treaties and declarations,40 which enshrine ‘the right to reparations [as] a well-established and basic human right’.41 In addition, the Chamber sought guidance from other international instruments42 tailored to the question of victims’ reparations including: • the 2006 un Basic Principles on Reparations;43 • the un Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power;44 38 39 40

Ibid., para. 181. Ibid., para. 182. Ibid., para. 185, citing to: Article 8 of the Universal Declaration of Human Rights which contains provisions relating to the right of every individual to an ‘effective remedy’ for acts violating fundamental rights; Article 9(5) of the International Covenant on Civil and Political Rights which refers to an ‘enforceable right to compensation’; Article 6 of the International Convention on the Elimination of All Forms of Racial Discrimination which provides for a right to ‘seek…just and adequate reparations or satisfaction for any dam­ ages suffered’; Article 14(1) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment which provides for ‘an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible’; Article 21(2) of the African Charter on Human and Peoples’ Rights which refers to a right to recovery of property and adequate compensation, and Article 63(1) of the American Convention on Human Rights which calls for the situation giving rise to the breach of a right or freedom ‘be remedied’ and that ‘fair compensation be paid to the injured party’. 41 Lubanga Reparations Decision, supra note 35, para. 185. 42 Ibid. 43 United Nations Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, United Nations General Assembly, Resolution A/RES/60/147, 21 March 2006, Annex (‘2006 Basic Principles on Reparations’). 44 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, United Nations General Assembly, Resolution A/RES/40/34, 29 November 1985.

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• the Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime;45 • the Nairobi Declaration on Women’s and Girls’ Right to a Remedy and Reparation;46 • the Cape Town Principles and Best Practices on the Recruitment of Children into the Armed Forces and on Demobilization and Social Reintegration of Child Soldiers in Africa;47 and • the Principles and Guidelines on Children Associated with Armed Forces or Armed Groups.48 Finally, the Chamber took into account the jurisprudence of regional human rights courts, national and international mechanisms and practices, and sig­ nificant human rights reports49 specifically addressing the issue.50 3.1.2 The Lubanga Chamber’s Reparations Principles On the basis of the above authorities, the Chamber outlined the following principles applicable in the Lubanga proceedings:

45 46

47

48 49

50

Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime, United Nations Economic and Social Council, Resolution 2005/20, 22 July 2005. Nairobi Declaration on Women’s and Girls’ Right to a Remedy and Reparation, adopted at the International Meeting on Women’s and Girls’ Right to a Remedy and Reparation, held in Nairobi from 19 to 21 March 2007. Cape Town Principles and Best Practices, Adopted at the Symposium on the Prevention of Recruitment of Children into the Armed Forces and on Demobilization and Social Reintegration of Child Soldiers in Africa, Cape Town, unicef, 27–30 April 1997. Principles and Guidelines on Children Associated with Armed Forces or Armed Groups, unicef, February 2007. Lubanga Reparations Decision, supra note 35, para. 185, citing: Study concerning the right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms Final report, submitted by T. van Boven, Special Rapporteur to United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities, E/CN.4/Sub.2/1993/8, 22 July 1993. The right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms, Final report of the Special Rapporteur M.C. Bassiouni to the Commission on Human Rights, E/CN.4/2000/62, 18 January 2000 (‘Bassiouni Report’); The rule of law and transitional justice in conflict and post-conflict societies, Report of the United Nations Secretary-General S/2004/616, 23 August 2004; The rule of law and transitional justice in conflict and post-conflict societies, Report of the un Secretary General, S/2011/634, 12 October 2011. Lubanga Decision on Reparations, supra note 35, paras. 185–6.

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• dignity, non-discrimination, and non-stigmatisation: all victims are to be treated fairly and equally irrespective of whether they participated in the trial proceedings; particular attention must be paid to the needs of victims in a particularly vulnerable situation such as children or victims of sexual or gen­ der-based violence; reparations should be granted avoiding further stigmati­ sation of the victims and discrimination by their families and communities.51 • beneficiaries of reparations: reparations may be granted to direct and indi­ rect victims, including the family members of direct victims; anyone who attempted to prevent the commission of one or more of the crimes under consideration; and legal entities.52 • accessibility and consultation with victims: reparations principles and proce­ dures should have a gender-inclusive approach; victims of crimes, together with families and communities, should be able to participate throughout the reparations process with adequate support; and the Court should consult with victims on reparations issues, such as participation in the proceedings, the identity of beneficiaries, priorities, and obstacles to securing reparations.53 • victims of sexual violence: appropriate reparations awards should be pro­ vided to victims of sexual and gender-based violence; gender-sensitive mea­ sures shall be implemented to ensure that women and girls are enabled to participate in a significant and equal way in the design and implementation of reparations orders.54 • child victims: the age-related harm of victims as well as any differential impact of crimes on boys and girls shall be taken into account; all repara­ tions decisions concerning children should be guided by the Convention on the Rights of the Child55 and should reflect a gender-inclusive perspective; special measures should be taken for the development, rehabilitation, and reintegration of child soldiers in reparations proceedings; comprehensible information about reparations proceedings shall be provided to child vic­ tims and those acting on their behalf; and child victims shall be consulted regarding reparations decisions.56 • scope of reparations: reparations may be awarded to individuals or groups; a collective approach should be utilised to ensure that reparations reach 51 52 53 54 55 56

Ibid., paras. 187–93, 200–1. Ibid., paras. 194–9. See also the general definition of victims in Rule 85 of the icc Rules. Ibid., paras. 202–6. S for the consultation of victims see also Rules 94(2), 95, 96 of the icc Rules. Ibid., paras. 207–9. un General Assembly Resolution 44/25 of 20 November 1989, entry into force on 2 September 1990. Lubanga Decision on Reparations, supra note 35, paras. 210–6.

468

•

•

•

•

•

57 58 59 60 61

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unidentified victims; individual and collective reparations may be awarded concurrently; individual reparations should avoid creating tensions within communities; collective reparations should address harm suffered by vic­ tims on an individual and collective basis; and the Court should consider providing medical services, general rehabilitation, housing, education, and training.57 modalities of reparations: the forms of reparations outlined in Article 75 of the Rome Statute, namely restitution, compensation, rehabilitation, and other types of reparations as appropriate, including those with symbolic, preventative, or transformative value.58 proportional and adequate reparations: victims should receive adequate, appropriate, and prompt reparations; reparations awards should be pro­ portionate to the harm, injury, loss, and damage established by the Court in light of the particular context of a case and circumstances of the vic­ tims; reparations should aim at reconciling victims with their families and communities at large; reparations should reflect local cultural and custom­ ary practices without being discriminatory or unequal; and reparations should support programmes that are self-sustaining over an extended period of time.59 causation: the causal link between the crime and relevant harm which forms the basis of a reparations claim shall not be limited to ‘direct’ harm or ‘imme­ diate effects’; rather, there should be a ‘but/for’ relationship; and the crime must be the ‘proximate cause’ of the harm for which reparations are sought.60 standard and burden of proof: the Trial Chamber determined that a standard of ‘a balance of probabilities’ is sufficient and proportionate to establish the facts relevant for a reparations order ‘when it is directed against the con­ victed person’.61 rights of the defence: nothing in the above-listed principles will prejudice or be inconsistent with the rights of a convicted person to a fair and impartial trial.62 Ibid., paras. 217–21. Ibid., paras. 222–41. Ibid., paras. 242–6. Ibid., paras. 247–50. It bears noting that the Trial Chamber’s finding in this respect is cur­ rently under appeal. Ibid., para. 253; see also ibid., footnote 439. The Trial Chamber held that, when reparations are awarded from the resources of the Trust Fund for Victims or from any other source, ‘a wholly flexible approach to determining factual matters is appropriate’. Ibid., para. 254. It bears noting that the Trial Chamber’s findings in this respect are currently under appeal. Ibid., para. 255.

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• states and other stakeholders: States Parties are obliged to cooperate fully and not prevent the enforcement or implementation of reparations orders and awards; and reparations under the Rome Statute do not interfere with states’ responsibilities to award reparations to victims under other treaties or national law.63 • publicity of the principles: the Registrar of the Court is responsible for taking all necessary measures to publicise reparations principles and proceedings; reparations proceedings shall be transparent; and measures should be adopted to ensure that all victims have detailed and timely notice of repara­ tions proceedings and access to any awards.64 Victims participating in the proceedings, as well as the convict Mr Lubanga, appealed the Lubanga Reparations Decision in early 2013. Specific issues under appeal mostly relate to procedural matters established in the Lubanga Repara­ tions Decision.65 A final decision on these matters by the Appeals Chamber is still outstanding at the time of writing this chapter, and depends first and fore­ most on the Appeals Chamber’s findings regarding the Defence’s appeal of the merits of the trial judgment.66 However, already at this stage it can be safely said that the Lubanga Reparations Decision was an important step towards the establishment by the Court of a comprehensive framework for general princi­ ples relating to victims’ reparations in accordance with Article 75, paragraph 1, of the Rome Statute. The Chamber distilled a broad set of general principles on 63 Ibid., paras. 256–7. 64 Ibid., paras. 258–9. 65 See The Prosecutor v. Thomas Lubanga Dyilo, Document déposé à l’appui de l’appel à l’enc­ ontre de la « Decision establishing the principles and procedures to be applied to reparations » délivrée par la Chambre de première instance I le 7 août 2012, Case No. ICC-01/04-01/06, 5 February 2013, paras. 22–65 ; The Prosecutor v. Thomas Lubanga Dyilo, Mémoire de la Défense de M. Thomas Lubanga relatif à l’appel à l’encontre de la « Decision establishing the principles and procedures to be applied to reparations », rendue par la Chambre de première instance le 7 août 2012, Case No. ICC-01/04-01/06, 5 February 2013, paras. 5–188; The Prosecutor v. Thomas Lubanga Dyilo, Document à l’appui de l’appel contre la « Decision establishing the principles and procedures to be applied to reparations » du 7 août 2012, Case No. ICC-01/04-01/06, 5 February 2013, paras. 10–59. 66 If the conviction decision is overturned, the reparation appeals may be considered moot, given that ‘an order for reparations depends upon there having been a conviction’. See The Prosecutor v. Thomas Lubanga Dyilo, Decision on the admissibility of the appeals against Trial Chamber I’s ‘Decision establishing the principles and procedures to be applied to reparations’ and directions on the further conduct of proceedings, Case No. ICC-01/0401/06 (A A2 A3 OA21), 14 December 2012, para. 86.

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reparations from the most relevant authoritative international and regional instruments that can serve as a source of law for the findings of the Court.67 The Trial Chambers in the Katanga68 and Bemba69 cases are likely to at least consider the Lubanga Chamber’s analysis.70 However, given the different legal cultures coming together at the Court, its task of elaborating principles for reparations will continue to face the challenge of reconciling a broad range of possibly differing views of different Trial Chambers on the optimal principles for reparations.71 3.2 Forms of Reparations Article 75 of the Rome Statute specifies that the icc can award reparations to the victims in various forms, ‘including restitution, compensation and rehabilitation’.72 Neither the Statute nor the Rules of Procedure and Evidence or the Regulations of the Trust Fund73 specify the content of these terms any further. It has been submitted that the concept of reparations has been intro­ duced in the Rome Statute in a flexible and broad manner in order to ‘allow the judges to decide upon the widest possible range of means of remedy to victims’ rights violations’.74 While this assessment is surely not without merit, there are a number of authorities that may guide the Court in defining the precise content of the different forms of reparations it may award.75 In par­ ticular, the 2006 un Basic Principles on Reparations76 stipulate that full and effective reparations include ‘restitution, compensation, rehabilitation, satis­ faction and guarantees of non-repetition’.77 The same forms of reparations 67 68 69 70

See Rome Statute, Art. 21. The Prosecutor v. Germain Katanga, Case No ICC-01/04-01/07. The Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08. Through the Lubanga Reparations Decision, quite a number of questions formulated in the Bassiouni Report (supra note 49) have been answered. However, future Trial Chambers may put findings of the Lubanga Trial Chamber in question and follow a different logic. 71 See C. Ferstman, ‘The Reparation Regime of the International Criminal Court: Practical Considerations’, 15 Leiden Journal of International Law (2002), 667, at 671. 72 See Rome Statute, Art. 75(1) and (2). 73 ICC-ASP/4/Res.3, Regulations of the Trust Fund for Victims (Dec. 3, 2005) (‘Regulations of the Trust Fund’). 74 See Donat-Cattin, ‘Article 75’, in O. Triffterer, supra note 20, paras. 9, 13. 75 Where the Rome Statute and the icc Rules of Procedure and Evidence fail to give guid­ ance on a particular issue, the Court may have recourse to ‘principles and rules of interna­ tional law’. Rome Statute, Art. 21(1)(b). 76 See supra note 43. 77 Ibid., § 18.

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had been enume­rated in the so-called ‘Van Boven Principles’ of 1996.78 The drafters of the Rome Statute took into account the Van Boven Principles when elaborating Article 75.79 In a similar vein, the Lubanga Trial Chamber defined the explicitly enumerated measures of ‘restitution, compensation and rehabilitation’. 3.2.1 Restitution, Compensation and Rehabilitation The following definitions and examples of the reparation modalities explicitly enunciated in Article 75(1) of the Rome Statute reflect not only the Lubanga findings but also the Van Boven Principles and the un Basic Principles on Reparations:80 Restitution: restitutive efforts seek to restore the victim to the original situa­ tion before the violation occurred. Whenever possible, restitutio in integrum (full restitution) should be awarded. Restitution includes: (a) (b) (c) (d) (e)

restoration of liberty; enjoyment of human rights, identity, family life and citizenship; return to one’s place of residence; restoration of employment; and return of property.81

Compensation: compensation can be awarded for any economically assessable damage and should be proportional to the gravity of the violation and the cir­ cumstances of each case (case-specific assessment per victim). Examples include: (a) (b) (c) (d)

physical or mental harm; lost opportunities, including employment, education, and social benefits; material damages and loss of earnings, including loss of earning potential; moral damage; and

78

Commission on Human Rights (Sub-Commission on Prevention of Discrimination and Protection of Minorities), Basic Principles and Guidelines on the Right to Reparation for Victims of Gross Violations of Human Rights and Humanitarian Law, Appendix 8, E/CN.4/ Sub.2/1996/17 (‘Van Boven Principles’). The Working Group on Procedural Matters referred to the Van Boven Principles (ibid.) for the definition of the term ‘reparations’. Report of the Working Group on Procedural Matters, supra note 26, at p. 5, fn. 24. Van Boven Principles, supra note 79, paras. 12–4; 2006 Basic Principles on Reparations, supra note 43, paras. 19–21; Lubanga Reparation Decision, supra note 34, paras. 222–36. Lubanga Reparation Decision, supra note 34, paras. 223–5.

79

80 81

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(e) costs required for legal or expert assistance, medicine and medical ser­ vices, and psychological and social services.82 Rehabilitation: measures include medical and psychological care as well as legal and social services. Examples are the re-insertion of former child soldiers into society or development measures for specific groups.83 3.2.2 Other Forms of Reparations The fact that the Rome Statute or the pertinent Rules of Procedure and Evidence do not mention ‘satisfaction and guarantees of non-repetition’ has been interpreted by some, including Joakim in his article, to indicate that the ‘drafters did not intend to enable the icc to order measures that would fall under this category of reparations’.84 The Lubanga Reparations Decision has brought some clarity to the debate. It stipulates that ‘[a]lthough Article 75 of the Statute lists restitution, compen­ sation and rehabilitation as forms of reparations, this list is not exclusive. Other types of reparations, for instance those with a symbolic, preventative or transformative value, may also be appropriate’.85 In other words, the long list of measures outlined in the un 2006 Basic Principles on Reparations and the Van Boven Principles may apply, as appropriate.86 The Lubanga Chamber enumer­ ated some specific forms of such measures, starting with the wide publication of the trial judgment,87 as well as establishing or assisting campaigns that are designed to improve the position of victims; by issuing certificates that acknowledge the harm particular individuals experienced; setting up outreach and promotional 82 83 84 85

86

87

Ibid., paras. 226–31. Ibid., paras. 233–6. See also Bassiouni Report, supra note 49, para. 68. Lubanga Reparations Decision, supra note 35, para. 222. The Chamber justified this inter­ pretation with ‘its broad competence and jurisdiction’. Ibid., para. 239. Indeed, Art. 75(1) keeps the list of possible reparations measures open in using the introductory term ‘including’. These entail: (a) cessation of continuing violations; (b) public apologies and acknowledg­ ment of responsibility; (c) commemorations to the victims; (d) efforts in education to accurately describe the past human rights violations; (e) ensuring effective civilian con­ trol over military and security forces; (f) protecting legal professionals and human rights defenders; or (g) strengthening the judiciary’s independence. See Van Boven Principles, supra note 78, para. 15; 2006 Basic Principles on Reparations, supra note 43, paras. 22–3. Lubanga Reparations Decision, supra note 35, para. 239.

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programmes that inform victims as to the outcome of the trial; and edu­ cational campaigns that aim at reducing the stigmatisation and margin­ alisation of the victims of the present crimes.88 Further measures are possible under the heading of satisfaction, such as sym­ bolic options of reparation for ‘moral harm’, including full public disclosure of the ‘truth’ through a judicial decision restoring victims’ dignity and/or a public apology by the perpetrator(s); search of whereabouts of the disappeared; and naming of streets or monuments after victims or victim groups. In his analysis of these two sets of reparation measures, Joakim made an interesting observation, which I want to display below in full: At first glance, the measures falling under the ‘restitution, compensation and rehabilitation’ category (‘Category 1’) would appear to relate directly to the individual victim, whereas those under the ‘satisfaction and guar­ antees of non-repetition’ category (‘Category 2’) seem more focused on societal reform. Moreover, while Category 1 measures appear aimed at recompensing individuals for past damage, Category 2 seems to be for­ ward-looking for society as a whole. However, a closer scrutiny reveals that the two categories cannot be viewed in isolation from one another; the individual reparation measures that the icc can order are interlinked with the societal structures in which they are to be implemented. Consider, for example, victims of deportation, a crime regrettably common in contemporary armed con­ flicts. How can they be granted ‘return to one’s place of residence’ (a Category 1 measure) without ‘cessation of continuing violations’ (a Category 2 measure)? How can ‘return of [their] property’ (Category 1) be ensured without ‘strengthening the judiciary’ (Category 2)? More pro­ foundly, how can victims ever be truly rehabilitated (Category 1) unless society acknowledges their suffering (e.g. through the Category 2 mea­ sures of public apologies, commemoration and accurate education of history)?89 Joakim then concluded that, while the Rome Statute explicitly only extends to measures of ‘restitution, compensation and rehabilitation’, icc reparations

88 89

Ibid., para. 240. As to the avenues available within the icc reparations scheme to address such questions, see infra Section 3.5.2—Assessment.

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may entail considerations beyond the suffering of the individual victim, extending into the realm of societal structures. The Lubanga Reparations Decision proved Joakim right; in its discussion of what Joakim coined ‘Category 2’ reparation measures, the Chamber made it clear that these are directed at the deterrence of future crimes and societal recovery and reconciliation.90 Specifically, the Chamber held that ‘the Court’s reparations strategy should, in part, be directed at preventing future conflicts and raising awareness that the effective reintegration of the children requires eradicating the victimisation, discrimination and stigmatisation of young people in these circumstances’.91 Finally, experience of reparation proceedings and awards at the Extraor­ dinary Chambers in the Courts of Cambodia92 and the frequent lack of means of the convict (such as presently the case for Messrs Lubanga and Katanga at the icc) for reparations awards at the Court93 demonstrate that Category 1 reparation measures will often be the more difficult to award evenly to an entire victim community due to scarceness of funds—even with the Trust Fund for Victims possibly adducing some funds from other sources.94 Category 2 reparations however often require only limited financial means, if any at all: take ‘satisfaction’ measures such as full public disclosure of ‘the truth’, possibly through a judicial decision; restoring victims’ dignity; public apology by the perpetrator(s); publication of the victims’ names in news media; or the nam­ ing of streets or monuments after victims or victim groups. It follows that repa­ ration measures that can be subsumed under the ‘satisfaction’ heading will presumably become a standard ingredient of a reparations award package in future icc reparations proceedings, flanked—as far as funds are available—by Category 1 measures. This, however, has to be communicated to victim com­ munities in order to manage expectations—an item that is at the very heart of the icc’s operations in the field. 3.3 Trial Chamber’s Discretion Regarding Reparation Proceedings Article 75(1) of the Rome Statute stipulates that ‘[on the basis of reparations principles], in its decision the Court may […] determine the scope and extent 90 91 92

Lubanga Reparations Decision, supra note 35, paras. 236, 238–9. Ibid., para. 240. Extraordinary Chambers in the Courts of Cambodia, The Prosecutor v. Kaing Guek Eav alias Duch, Trial Judgment, Case File/Dossier No. 001/18-07-2007/ECCC/TC, 26 July 2010, Section ‘Civil Party Reparations’, at 217–43. 93 More than 60% of all icty and ictr accused have been declared indigent either at the outset or at some time during their proceedings. See the Section on Legal Aid on the icty’s homepage at www.icty.org/sid/163 (last accessed 1 August 2014). 94 See infra, Section 3.6.

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of any damage, loss and injury to, or in respect of victims’. Further, Section (2) of Article 75 holds that ‘[t]he Court may make an order directly against a con­ victed person […]’. The use of the term ‘may’ could suggest that the drafters wanted to leave the Trial Chamber in question with some degree of discretion whether or not to commence reparations proceedings after the criminal trial.95 The conscious use of the word ‘may’ seems to be supported by the fact that in Article 75(1) first sentence the Rome Statute uses the word ‘shall’, there­ fore clearly distinguishing between the two terms and the level of coercion/ discretion attached to each. Such reading may also be reasonable from the teleological aspect that where it is evident that a convicted person has no assets whatsoever to afford reparations to victims, expectations of the latter should not be needlessly generated through the commencement of repara­ tion proceedings despite the absence of any funds for reparations. Further, Rule 95(1) of the icc Rules envisages ‘cases where the Court intends to pro­ ceed on its own motion pursuant to Article 75, paragraph 1’ (emphasis added). In the absence of victims claiming reparations, for instance, the provision would allow for situations where a reparations phase does not automatically follow a conviction.96 This may in particular be the case in proceedings regard­ ing offences against the administration of justice pursuant to Article 70 of the Rome Statute, where there will often be no direct physical victim of the crime in question (e.g., giving false testimony, presenting false or forged evidence, accepting a bribe).97 These considerations would advocate for the Trial Chamber’s discretion to assess whether or not the circumstances of a given case warrant reparation proceedings. However, the language of Article 75(1) also permits a somewhat different reading: the provision states that ‘[…] in its decision the Court may […] deter­ mine the scope and extent of any damage, loss and injury to, or in respect of

95

96

97

It is noted that the term ‘the Court’ in the aforementioned portions of Art. 75 of the Rome Statute refers to the Trial Chamber as it is in the Chamber’s sole competence to issue (judicial) orders. See only Rome Statute, Arts. 56, 57, 61, 65. See also Rule 95(2)(b) of the icc Rules, providing for a victim’s right to request that ‘the Court does not make an order for reparations’, at least not for the requesting victim. See Rome Statute, Art. 70(1)(a), (b), (f); reparations proceedings following a conviction under Art. 70 would however not seem prohibited; Rule 163(1) of the icc Rules prescribes that ‘[…] the Statute and the Rules shall apply mutatis mutandis to the Court’s investiga­ tion, prosecution and punishment of offences defined in Article 70’; it could be argued that this encompasses reparations if one follows the Lubanga Trial Chamber in that repa­ ration proceedings are an integral part of the criminal trial before the icc. Lubanga Reparations Decision, supra note 35, para. 260.

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victims […]’.98 It does not say that the Court may decide; in other words, the discretionary term ‘may’ would rather appear to link the Chamber’s discretion towards the level of detail with which it intends to issue its decision—simply ruling that reparations have to be afforded according to certain reparation principles or rather making a detailed case-specific determination regarding the scope and extent of the victims’ damage, loss and injury.99 The discretion would not extend to the question whether or not to issue such a decision in case of a conviction. Read this way, also the further use of the word ‘may’ in Article 75(2) for the reparations order (and Rules 97 and 98 of the icc Rules) could be understood to refer to the content of the Trial Chamber’s decision and the question which content the ensuing order will have (e.g., directly against the convicted person or through the Trust Fund), and not to any discretion whether or not to issue a decision at all. Much speaks for the absence—or at least only a very slim margin—of the Chamber’s discretion on the question whether to carry out reparation proceed­ ings after a conviction whenever victims in a given case have validly100 requested reparations.101 The regulatory framework makes it clear that reparations are an essential feature relevant already during the trial: Article 57(3)(e) of the Rome Statute provides that, already at the pre-trial stage of the proceedings, State cooperation may be sought ‘to take protective measures for the purpose of for­ feiture, in particular for the ultimate benefit of victims’. Rule 94(2) of the icc Rules stipulates that any requests for reparations pursuant to Article 75 of the Rome Statute received by the Registry shall be communicated to the parties at the commencement of trial; Regulation 56 of the Regulations of the Court102 provides that the Trial Chamber may gather reparations-related evidence already during trial proceedings; further, an accused person’s assets can be col­ lected already during the trial and transferred to the Trust Fund by a Trial Chamber’s order.103 Finally, the existence of the Trust Fund and its capacity to award reparations from its own funds, even where a convict has no funds or 98 99 100 101

Emphasis added. Donat-Cattin, ‘Article 75’, in O. Triffterer, supra note 20, para. 15. See Rule 94(1) of the icc Rules; see also infra, Section 3.5. Similarly Donat-Cattin, ‘Article 75’, in O. Triffterer, supra note 20, para. 15; E. Vandebroek, ‘Art. 75. Reparations to victims’, in: P. De Hert, Jean Flamme, Mathias Holvoet, Olivia Struyven (eds), Code of International Criminal Law and Procedure, Annotated (2013), para. 3. 102 ICC-BD/01-02-07, 26 May 2004, as last amended on 14 November 2009. 103 Art. 79(2) of the Rome Statute; such assets shall be considered (by the Presidency) in the first place for the benefit of victims’ reparations, Rule 221(2) of the icc Rules.

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assets for the purpose of reparations,104 support the argument that the Trial Chamber’s obligatory attention to victims’ rights105 will normally reduce the Trial Chamber’s discretion to almost zero if and when victims have validly applied for reparations. 3.4 Subjects of Reparations and their Nexus to Reparative Damage In reparations proceedings, there are two main stakeholders/participants: the convicted person and the victim (community).106 Article 75(2) of the Rome Statute stipulates that ‘[t]he Court may make an order directly against a con­ victed person specifying appropriate reparations to, or in respect of, victims […]’. These two subjects—convicted persons and victims—will be addressed in turn; further, their respective connection to the crimes will be discussed briefly. 3.4.1 The Convicted Person An order to provide reparations can only be made against a person convicted by the icc, and it is ultimately based on the crimes subject to the conviction.107 This limitation is reasonable from the perspective of the principle of individ­ ual guilt since a convicted person can only be made responsible to indemnify victims of those crimes that fall beyond reasonable doubt into the responsibil­ ity sphere of the convicted person. Only then may a reparations order dispose of his or her goods and assets. However, such a result can also be quite dissat­ isfying for victims of crimes that were, while committed in some temporal and geographic connection to the crimes subject to the judges’ determination, simply not part of the Prosecutor’s charges. In the Lubanga case, this problem is in fact very real; it seems to be undisputed that, in the specific situation and circumstances out of which the charges against Mr Lubanga arose, cases of sexual violence occurred and generated a victim community large enough to 104 Regulations of the Trust Fund for Victims, Resolution ICC-ASP/4/Res.3, 3 December 2005, Regulation 56. See also infra, Section 3.6—The Trust Fund for Victims. 105 Pursuant to Rule 97(3) of the icc Rules, the Court is held to always ‘respect the rights of victims and the convicted person’. 106 Crimes of the magnitude as those listed in Article 5 of the Rome Statute often have the effect that entire communities become victims of these crimes (see Donat-Cattin, ‘Article 68’, in Triffterer, supra note 20, para. 22), which, if they represent identifiable groups, hold participatory rights in icc proceedings. 107 Rome Statute, Art. 75(2); icc Rules, Rule 98(1). See also The Prosecutor v. Thomas Lubanga Dyilo, Judgment on the appeals of The Prosecutor and The Defence against Trial Chamber I’s Decision on Victims’ Participation of 18 January 2008, Appeals Chamber, Case No. ICC01/04-01/06-1432 (oa 9 oa 10), 11 July 2008, para. 63.

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be repeatedly acknowledged—at least indirectly—by the Lubanga Trial Chamber in the Reparations Decision.108 However, the Prosecutor had refrained from pressing charges for sexual violence crimes, possibly also as part of his prosecutorial strategy at the time. This strategy focused on stream­ lined, straight-forward case matrixes with only those crimes charged for which a conviction could be secured with a high degree of certainty.109 While such a strategy may be conducive to secure a ‘timely’ conviction in cases which usu­ ally take years before the trial chambers due to the sheer complexity of macro criminality trials, such a prosecutorial strategy, in cases with extensive crime bases, will leave a number of crimes unmentioned and a corresponding num­ ber of victims unaccounted for. The prosecutorial strategy was amended quite substantially in 2013, as part of a comprehensive revision of the icc Prosecutor’s performance over the first ten years. As a result, the Office of the Prosecutor now undertakes ‘in-depth, open-ended investigations while maintaining focus’,110 diversifying its collection of evidence so as to meet a higher standard and quality of evidence. It also applies ‘multiple case hypotheses throughout the investigation’,111 which does not only strengthen the decision-making in relation to ensuing prosecutions but also potentially captures the criminality of a given situation more comprehensively. This approach promises to be to the benefit of future victim communities in proceedings before the icc. However, it remains a fact that a case against one or more of the lead perpetra­ tors in a mass violence scenario will only cover a percentage of the crimes committed on the ground. Victims of the crimes that remain unnamed in the final judgment may not be able to benefit from reparations. Here, the Trust Fund for Victims may be called upon to close gaps through its assistance man­ date, which will be discussed in more detail below.112 Another interesting question is whether reparations should reflect the form or level of criminal responsibility incurred by the convicted person. I will reproduce Joakim’s astute consideration of the matter: 108 Lubanga Reparations Decision, supra note 34, paras. 200, 207–9, 240 and footnote 431. The Chamber also made some general findings regarding the gender-(crimes) sensitive approach taken by the drafters of the Rome Statute, in particular in Art. 68 of the Rome Statute and Rule 86 of the icc Rules; ibid., footnote 371. 109 So-called ‘focused’ investigations and corresponding prosecutions. See International Criminal Court, Office of the Prosecutor: Strategic plan June 2012–2015 of 11 October 2013, para. 4. a (‘otp Strategic Plan’); available on www.icc-cpi.int. 110 Ibid. 111 Ibid. 112 See infra, Section 5.

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Reparations orders are not limited to persons incurring a certain level or form of criminal responsibility. As a result, any person convicted under any form of individual criminal liability can be ordered to provide repara­ tions. This legal design would appear to make possible reparations to a very large number of victims resulting from a single convicted person’s acts. For example, in addition to the victims of crimes that a perpetrator might have ordered113 or carried out,114 a military commander who incurs criminal liability under the theory of command responsibility115 would also be responsible toward the victims of those crimes for which his or her subordinates are responsible. If the convicted person was of high rank, e.g., commanding several thousand troops, the ‘scope’ of his or her responsibility—and consequently the number of victims—may be immense. Similarly, as shown by the jurisprudence of the icty, a highranking civilian official who is convicted under the ‘common purpose’ liability doctrine116 (also referred to as ‘joint criminal enterprise’) may be responsible for a vast number of victims. However, transposing the scope of (criminal) liability resulting from command responsibility and joint criminal enterprise into the realm of (civil) liability for reparations is not without complications. Command responsibility arises from a superior’s failure to prevent or punish subor­ dinates’ criminal conduct.117 In the case of a military superior, the required mens rea is that he ‘knew or should have known’ that the subor­ dinates’ were committing crimes.118 This raises the question whether a distinction should be made in terms of liability for reparations between crimes which the superior (a) failed to prevent, (b) failed to punish, and between crimes of which he (c) knew, and (d) should have known. For its part, a joint criminal enterprise legally requires, among others, a plurality of persons.119 The individuals participating in a given joint criminal 113 Rome Statute, Art. 25(3)(b). 114 Ibid., Art. 25(2). 115 Ibid., Art. 28. In essence, under this form of liability a superior can be held criminally responsible for crimes of his subordinates if he knew or should have known that the sub­ ordinates were committing crimes, but failed to take all necessary and reasonable mea­ sures to prevent or repress their commission. 116 Ibid., Art. 25(3)(d). Cursorily described, under this form of responsibility a person can incur criminal responsibility by contributing to a crime through a group of people acting with a common criminal purpose. 117 Rome Statute, Art. 28. 118 Ibid. 119 Prosecutor v. Duško Tadić, Appeal Judgement, IT-94-1-A, 15 July 1999, paras. 190–228.

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enterprise may not all have been brought to trial, and, if they have, may not have been tried in the same case. For instance, the Trial Chamber in Krajišnik found that the crimes established were committed in further­ ance of a joint criminal enterprise which included, among others, Radovan Karadžić, Biljana Plavšić and the accused, Momćilo Krajišnik.120 However, the Trial Chamber’s conviction—which under the icc’s repara­ tions scheme would be the basis for future reparations—only covered the acts and conduct of Momćilo Krajišnik. Any delineation of his liabil­ ity for reparations would therefore necessarily risk pre-determining the scope of Radovan Karadžić’s liability for the same crimes. Conversely, if the Court in such a case were to defer the issue of reparations liability until all accused have been tried,121 the victims may have to wait for an unreasonably long time before seeing their damage repaired. Moreover, as the icty and ictr have interpreted the joint criminal enterprise d­octrine, it covers not only crimes forming part of the enterprise’s com­ mon purpose, but also crimes which were a ‘natural and foreseeable ­consequence’ of it, provided the accused was subjectively in a position to be able to foresee the outcome.122 Similarly to the situation in command responsibility cases, the question arises also here whether a distinction should be made between liability for reparations regarding (a) crimes forming part of the common purpose [and therefore intended]123 and (b) crimes not part of the common purpose, but being a natural and foresee­ able consequence of it. These issues call for clear guidelines as to the nexus required between the convicted person’s criminal conduct and the damage for which reparations are sought, and the evidentiary standard for such a nexus. Again, the Lubanga case bears witness to Joakim’s prescience for future prob­ lems related to the icc’s reparations regime. Neither the Rome Statute nor the Rules define the precise requirements of the causal link between the crime and the relevant harm for the purposes of reparations—let alone any 120 Krajišnik Trial Judgment, supra note 117, paras. 1079–121. 121 See M. Henzelin, V. Heiskanen, G. Mettraux, ‘Reparations to Victims Before the International Criminal Court: Lessons from International Mass Claims Processes’, 17 Criminal Law Forum (2006), 317, at 326. 122 The Prosecutor v. Elizaphan Ntakirutimana and Gerard Ntakirutimana, Case Nos. ICTR-9610-A and ICTR-96-17-A, Judgement, 13 December 2004, paras. 465, 467; Prosecutor v. Momčilo Krajišnik, IT-00-39-A, Appeal Judgment, 17 March 2009, paras. 162–3. 123 Addition by the author.

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gradation regarding the perpetrator’s conduct that describes the link between the crime and the individual contribution. Moreover, it is unclear whether there is a settled view in international law on the approach to be taken to cau­ sation.124 The Lubanga Chamber found that reparations should not be limited to ‘direct’ harm or the ‘immediate effects’ of the crimes but rather that a stan­ dard of ‘proximate cause’ should be applied.125 However, it needs to be noted that this particular finding of the Chamber has been appealed and a determi­ nation of the Appeals Chamber is still outstanding.126 Further, even if the cau­ sation standard of ‘proximate cause’ were to be accepted, this does not answer the question of a possible gradation of reparations obligations of a convict in light of his mode of liability. Further, would this be for the Trial Chamber to consider within its discretion, comparable to its margin of appreciation in ­sentencing? These questions remain unsettled at present. However, it should not be forgotten that any conviction for an international crime necessarily entails a high degree of gravity—even an aider and abettor should not be taken as a ‘lesser criminal’, as the verdict against former Liberian President Charles Taylor before the Special Court for Sierra Leone demonstrates.127 Even if an 124 Lubanga Reparations Decision, supra note 35, para. 248; but see The Prosecutor v. Thomas Lubanga Dyilo, Mémoire de la Défense de M. Thomas Lubanga, supra note 65, paras. 175–8, where the Lubanga Defence refers to a number of international authorities that apply a seemingly causation ratio between the crime and the harm resulting from it. It bears noting, however, that the Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia in the Duch case defines that ‘[t]he injury suffered must result directly from the criminal conduct of the Accused’ but in that same Section acknowl­ edges that ‘harm alleged by members of a victim’s extended family may, in exceptional circumstances, amount to a direct and demonstrable consequence of the crime where the applicants are able to prove both the alleged kinship and the existence of circum­ stances giving rise to special bonds of affection or dependence on the deceased’. eccc, the Prosecutor v. Kaing Guek Eav alias ‘Duch’, Judgment, Case File/Dossier No. 001/18-072007/ECCC/TC, 26 July 2010, paras. 642–3. 125 Lubanga Reparations Decision supra note 35, para. 249. Balancing the divergent interests of the convicted person on the one side and the victims on the other, the Chamber held that ‘at a minimum the Court must be satisfied that there exists a “but/for’ relationship between the crime and the harm and, moreover, the crimes for which Mr Lubanga was convicted were the “proximate cause” of the harm for which reparations are sought’. Ibid., para. 250. 126 The Prosecutor v. Thomas Lubanga Dyilo, Mémoire de la Défense de M. Thomas Lubanga, supra note 65, paras. 123, 172–9. 127 See The Prosecutor v. Charles Ghankay Taylor, Case No. SCSL-03-01-A-1389, Appeal Judgement, 26 September 2013. The sentence of 50 years of imprisonment for the mode of liability of ‘aiding and abetting’ was upheld. Ibid., Disposition.

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incident of (mass) victimization was a mere ‘foreseeable consequence’ of the perpetrator’s conduct, he or she should stand responsible towards the victims of these crimes. Finally, a note should be made on the issue of guilty pleas, as foreseen by Article 65 of the Rome Statute. In this regard, Joakim found the following: Article 65(1) and (2) of the Rome Statute provides that, where certain cri­ teria are met, the icc may convict an accused on the basis of his or her admission of guilt together with any additional evidence presented. These criteria do not contain explicit reference to reparations.128 However, where the Court considers that ‘the interests of justice, in par­ ticular the interests of the victims’ requires a more complete presenta­ tion of the case, Article 65(4) allows it to request additional evidence or order that the trial continues under the ordinary trial procedures.129 Under this legal design, it appears that the icc can disregard a compliant guilty plea on the basis that the resulting conviction would not afford the desired amount of reparations to victims. In such a case, the primary pur­ pose of the ensuing trial proceedings would effectively be to obtain a reparations award, not a criminal conviction, and the nexus issue described above would not be as pressing. Joakim had left this point without further elaboration in his draft but with a note in the text to come back to it later. It is not surprising that this provision remained in Joakim’s focus since Article 65(4) of the Rome Statute creates an interesting tension between the (potential) interests of victims on the one hand and the accused’s right to be tried without undue delay130 on the other. Pursuant to Article 65(1)(c)(i) of the Rome Statute a guilty plea can only be validly made ‘if supported by the facts that are contained in […][t]he charges brought by the Prosecutor and admitted by the accused’; this would suggest that, in the event of a guilty plea on all counts, victims recognized by the trial chamber would get the largest possible platform for reparations claims—a conviction on all charges submitted to trial. The right of the Chamber to hear additional witnesses only for ‘the interests of the victims’ (Article 65(4) of the Rome Statute), even if and where a valid guilty plea has been submitted, may still be justified on the ground that the limited additional duration of trial is in 128 See also icc Rules, Rule 139. 129 In addition, any discussions between the Prosecution and the Defence regarding modifi­ cation of the charges are not binding on the Court. Rome Statute, Art. 65(5). 130 Rome Statute, Art.67(1)(c).

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proportion to, in particular, victim witnesses telling their story and document­ ing the victimization through the eyes and words of those most directly ­concerned.131 Furthermore, in case of a plea bargain on some of the charges, the Chamber may want to continue proceedings in order to ascertain all facts of the case, and not content itself with just the ones agreed between the ­parties.132 However, it is a more delicate matter how the Chamber’s right to disregard an admission of guilt and continue trial proceedings pursuant to Article 65(4)(b) of the Rome Statute can be reconciled with the accused’s right to a speedy trial if the Chamber takes such a decision solely for victims’ (reparation) interests.133 3.4.2 The Victims Victims as understood by the icc are defined in Rule 85 of the Rules of Procedure and Evidence, which stipulates that for the purposes of the Statute and the Rules of Procedure and Evidence: (a) ‘Victims’ means natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court; (b) Victims may include organizations or institutions that have sus­ tained direct harm to any of their property which is dedicated to religion, education, art or science or charitable purposes, and to their historic 131 It is, however, not clearly established whether the forum to give testimony will always be the victim-witnesses’ preference given the stress of giving evidence (possibly at multiple occasions) and being subjected to cross-examination; in particular victims of excessive (sexual) violence may suffer renewed trauma when testifying. See also icty, Prosecutor v. Milan Simić, Sentencing Judgement, 17 October 2002, Case No. IT-95-9/2-S, para. 84; F. Guariglia/G. Hochmayr, ‘Article 65 Proceedings on an admission of guilt’, in O. Triffterer, supra note 20, paras. 7, 37. 132 Furthermore, the presentation of evidence by both parties displays arguably a more reli­ able picture of the facts of the case, contributing also the formation of a historical record. See icty, Prosecutor v. Momir Nikolić, Sentencing Judgement, 2 December 2003, Case No. IT-02-60/1-S, para. 61; F. Guariglia/G. Hochmayr, ibid., para. 5. As established in the Nikolić case by the icty, guilty pleas through plea agreements may be welcome since they save time and resources, but this consideration should not be the main reason and ‘such agree­ ments should be used only when doing so would satisfy the interests of justice’. icty, Prosecutor v. Momir Nikolić, Sentencing Judgement, supra in this same note, para. 73. 133 This does not prejudice the Chamber’s right to order the continuation of the trial for any other reason encompassed by the ‘interests of justice’, for instance relating to the charges or their possible recharacterisation pursuant to Regulation 55 of the Regulations of the Court.

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monuments, hospitals and other places and objects for humanitarian purposes. This definition alone does not answer the question whether also ‘indirect’ ­victims, i.e., family members and successors of victims, would be entitled to reparations despite not having been a direct recipient of violent acts carried out or ordered by the convicted person before the icc. However, the prepara­ tory works of the Rome Statute suggest that both families and successors of victims would be entitled to reparations.134 Further, the Rome Statute itself lends weight to the assumption that the drafters had a larger circle of victims in mind when they inserted Article 79 introducing the Trust Fund for Victims. Article 79(1) stipulates that a Trust Fund shall be established ‘for the benefit of victims of crimes within the jurisdiction of the Court, and of the families of such victims’.135 The Lubanga Reparations Decision has given further clarifica­ tion on this point: Pursuant to Rule 85 of the Rules, reparations may be granted to direct and indirect victims, including the family members of direct victims […]; anyone who attempted to prevent the commission of one or more of the crimes under consideration; and those who suffered personal harm as a result of these offences, regardless of whether they participated in the trial proceedings.136 In order to determine whether an ‘indirect victim’ is linked closely enough to the direct victim(s) in order to benefit from the reparations scheme, the Chamber held that there needed to be a ‘close personal relationship between the indirect and direct victim, for instance as exists between a child soldier and his or her parents’.137 The Chamber added that the applicable social and

134 Report of the Working Group on Procedural Matters, supra note 26, at 5. For a similar interpretation, see Henzelin et al., supra note 122, at 323. 135 Emphasis added. 136 Lubanga Reparations Decision, supra note 35 para. 194, referring to The Prosecutor v. Thomas Lubanga Dyilo, Decision on victims’ participation, 18 January 2008, ICC-01/0401/06-1119; Judgment on the Appeal of The Prosecutor and the Defence against Trial Chamber I’s Decision on Victims’ Participation of 18 January 2008, 11 July 2008, ICC-01/0401/06-1432; Redacted Version of ‘Decision on “indirect victims”’, 8 April 2009, ICC-01/04-01/06-1813. 137 Lubanga Reparations Decision, supra note 35, para. 195, referring to The Prosecutor v. Thomas Lubanga Dyilo, Judgment on the Appeal of The Prosecutor and the Defence

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familial structures would have to be given due consideration.138 This definition is in line with relevant international conventions.139 However, Joakim observed a number of practical and procedural questions that remained unsolved at the time he wrote his piece: The Rome Statute, the [Rules of Procedure and Evidence] and the Regulations of the Trust Fund do not include rules regarding the required degree of causality between the harm suffered by the victim and the acts of convicted person, whether a minimum level of harm is required, and the standard of proof that a particular victim must meet in order to be eligible for reparations. Presumably, a victim specifically mentioned in a judgment (for example, ‘the accused is found guilty of having tortured victim A’) would meet any standards in this respect. But the exact identi­ ties of all the victims who have suffered harm as a result of crimes of such magnitude as those within the icc’s jurisdiction cannot always practica­ bly be enumerated in a judgment. It remains open according to which principles the icc will determine whether those victims have ‘suffered harm as a result of [an icc] crime’140 within its jurisdiction. These points have been addressed in the meantime by the Lubanga Chamber. According to the Chamber, the required degree of causality between the harm suffered by the victim and the acts of convicted person is the one of ‘proximate cause’ as outlined supra in this article.141 Regarding the standard and burden of proof of the nexus between the harm and the crime(s), the Lubanga Chamber found that, given that the trial phase with a rather strict standard of proof had been finalised, ‘the standard of “a balance of probabilities” [was] sufficient and proportionate to establish the facts that are relevant to an order for reparations when it is directed against the convicted person’.142 It went on to find that, in the event that reparations were awarded from resources of the Trust Fund for Victims or from any other source, ‘a wholly flexible approach to determining against Trial Chamber I’s Decision on Victims’ Participation of 18 January 2008, 11 July 2008, ICC-01/04-01/06-1432, para. 32. 138 Ibid., To the Chamber, this includes spouses and children of a victim (as the successors) as well as individuals who suffered harm when helping or intervening on behalf of direct victims; ibid., para. 196. 139 2006 Basic Principles, supra note 43, principle 8. 140 Rule 85(a) of the icc Rules. 141 See supra Section 3.3.1—The convicted person. 142 Lubanga Reparations Decision, supra note 35, para. 253, with further explanations in the footnote (note 439, ibid.).

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factual matters [was] appropriate’.143 The Chamber refrained from attempting to define a minimum level of harm in respect of gravity—problems in this area may be solved through the assessment of the victim’s proximity to the direct harm suffered. While the Lubanga findings appear to at least give an initial answer to the truly crucial points raised by Joakim warranting a final determination, it should not be forgotten that the Lubanga findings have no binding effect on future Chambers.144 In addition, both findings on the causal link between crime and harm and the standard of proof are subject to ongoing appeal proceedings.145 It can therefore be hoped that—if a conviction against Mr Lubanga is upheld on appeal—the Appeals Chamber will authoritatively settle these issues. What can be safely said is that Joakim adroitly identified, at an extremely early stage, these two points as the most relevant topics to settle regarding the link between the harm and the victim(s). As a final remark, wisdom can be gained from the Extraordinary Chambers in the Courts of Cambodia (‘eccc’), where the issue of causality and standard of proof have been subject to litigation on appeal. The Supreme Court Chamber (i.e., the appeals chamber of the eccc) confirmed the standard of proof applied by the Trial Chamber, namely, ‘more likely than not to be true’ or ‘pre­ ponderance of evidence’, as in accordance with the law.146 It undertook a com­ parative analysis of other national and international bodies providing a reparations regime and concluded that ‘[t]his standard [was] common to civil claims across the world’.147 The standard applied by the Lubanga Chamber is precisely the same as the one applied by the eccc Trial Chamber.148 In light of 143 Ibid., para. 254. 144 See ibid., para. 181. Although in this decision the Trial Chamber has established certain principles relating to reparations and the approach to be taken to their implementation, these are limited to the circumstances of the present case. This decision is not intended to affect the rights of victims to reparations in other cases, whether before the icc or national, regional, or other international bodies. 145 The Prosecutor v. Thomas Lubanga Dyilo, Mémoire de la Défense de M. Thomas Lubanga, supra note 65, paras. 83–8, 171–9. 146 eccc Supreme Court Chamber, Kaing Guek Eav alias Duch, Appeal Judgement (‘Duch Appeal Judgement’), Case File/Dossier No. 001/18-07-2007-ECCC/SC, 3 February 2012, para. 531. Available at www.eccc.gov.kh/sites/default/files/documents/courtdoc/Case%20 001AppealJudgementEn.pdf (last accessed 1 August 2014). 147 Ibid., paras. 520–31. 148 Ibid., para. 523. See for an illustrative discussion of the applicable test Prosecutor v. Nikola Šainovic and Dragoljub Ojdanic, Case No. IT-99-37-AR65, ‘Decision on Provisional Release’, ‘Separate Opinion of Judge Shahabuddeen’, Appeals Chamber, 30 October 2002, para. 37.

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the Supreme Court Chamber’s comparative analysis—which preceded the Lubanga Decision by six months and can therefore be considered as in the Lubanga Chamber’s focus—, there seems to be no cogent reason to depart from this standard. As for the causality link between the crime and the victim’s harm, the eccc Supreme Court Chamber confirmed that, in the context of the eccc, it required ‘presence of an injury suffered as a direct consequence of the crime’.149 This seems to be at odds with the Lubanga Chamber’s standard of ‘proximate cause’.150 In particular, the much disputed question of whether victims of sex­ ual violence should benefit from reparations in Lubanga despite such crimes not being part of Mr Lubanga’s conviction151 (and not even part of the Prosecutor’s charges)152 may demonstrate the possible, different results.153 If the victim’s harm needs to be a direct consequence of the crimes for which the accused was convicted, victims of sexual abuse may fall outside the scope of reparations since sexual violence is not a necessary by-product of the war crime of conscripting or enlisting of child soldiers under Article 8 of the Rome

149 Duch Appeal Judgement, supra note 146, para. 699 (emphasis added); see also the eccc’s Internal Rules (of Procedure and Evidence), Rule 23 bis(1)(b) (Rev. 8). The Supreme Court Chamber notes that a less rigid causality standard is being applied by international human rights courts such as the European Court of Human Rights (echr) and the InterAmerican Court of Human Rights (iachr) due to their differing and wider injury -oriented mandate. Ibid., paras. 433–4. 150 Lubanga Reparations Decision, supra note 35, para. 249. ‘Reparations should not be lim­ ited to “direct” harm or the “immediate effects” of the crimes of enlisting and conscripting children under the age of 15 and using them to participate actively in the hostilities, but instead the Court should apply the standard of “proximate cause”’. 151 The Prosecutor v. Thomas Lubanga Dyilo, Mémoire de la Défense de M. Thomas Lubanga, supra note 65, paras.123-36. See also A. Wiersing, Lubanga and its Implications for Victims Seeking Reparations at the International Criminal Court, 2012 Amsterdam Law Forum Vol. 4, No. 3, 21–39, available under http://amsterdamlawforum.org/article/viewFile/278/ 459 (last accessed August 2014). 152 The Prosecutor v. Thomas Lubanga Dyilo, Warrant of arrest, ICC-01/04-01/06-2, 10 February 2006. 153 This discussion is not to be confused with the discussion of ‘direct’ vs. ‘indirect’ victims. The eccc Supreme Court Chamber clarified that also indirect victims could benefit from reparations as long as ‘special bonds of affection or dependence’ connecting the appli­ cant with the direct victim could be proven; Duch Appeal Judgement, supra note 146, paras. 443–50. In other words eccc and icc jurisprudence (Lubanga Reparations Decision, supra note 35, para. 195: ‘close personal relationship between the indirect and direct victim’) seem to apply comparable standards here.

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Statute.154 If however one were to accept a less strict standard of proximate cause, it could be argued that, if sexual violence were committed at the occasion of the conscription and enlistment of child soldiers, the standard would be met.155 In the Lubanga case this would have the result that, despite the icc’s established jurisprudence that reparations can only be awarded to victims of the crimes subject to conviction, victims of sexual violence would somewhat ‘through the back door’ be entitled to reparations by way of the lax application of the causation standard. A convicted person would have to disburse his own funds (if he/she has any) in order to pay reparations to victims of crimes for which he/she was not convicted. In light of this consideration, there would appear to be merit in seeking guidance in the jurisprudence of the eccc with its rather more stringent standard of direct cause. In addition, situations as the one for victims of sexual violence in the Lubanga case could be avoided in the future through a more comprehensive charging strategy by the Prosecutor—a strategy which the icc otp’s new Strategic Plan would appear to explicitly include.156 3.5 Procedure for Obtaining Reparations The procedure for obtaining reparations under the icc reparations scheme is stipulated in the Rules and Regulations of the Court. It consists of three steps: (a) a request is made (b) which is assessed by the Court (c) and decided upon in the form of a reparations order. The three steps are outlined in turn below. 3.5.1 Request The icc may award reparations either upon request by an individual victim or upon its own initiative.157 Families and successors of victims also can make 154 See icc Elements of Crimes, ICC-ASP/1/3(part II-B), 9 September 2002, Article 8(2)(b) (xxvi) and (2)(e)(vii) (for internal armed conflict), not mentioning any sexual component to the crime. In the Trial Judgment, the Lubanga Chamber leaves this point open: The Prosecutor v. Thomas Lubanga Dyilo, Judgment pursuant to Article 74 of the Statute, ICC01/04-01/06-2842, 14 March 2012 (‘Lubanga Trial Judgment’), para. 630; cf. Separate and Dissenting Opinion of Judge Odio Benito, ibid., paras. 6–8. 155 The Lubanga Camber finds that the ‘but/for’ test of approximate cause is to be applied (Lubanga Reparations Decision, supra note 35, para. 250); in the current example, it would only have to be demonstrated that but for the conscription and enlistment of child soldiers, the sexual violence would not have happened. If the victims of that violence are the child soldiers themselves (as the Trial Judgment suggests, see Lubanga Trial Judgment, ibid., paras. 16, 890–96,913, and footnote 54), this standard would obviously be met. 156 otp Strategic plan, supra note 109, para. 4. 157 Rome Statute, Art. 75(1); Rule 95 of the icc Rules.

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reparations requests to the extent that they are entitled to reparations.158 A request by an individual must be filed in writing with the icc Registrar. It must contain, inter alia, ‘[a] description of the injury, loss or harm’, as well as ‘[t]he location and date of the incident and, to the extent possible, the identity of the person or persons the victim believes to be responsible for the injury, loss or harm’.159 If restitution of assets or property is sought, they must be described,160 and any claims for compensation or rehabilitation must be made in the request.161 Finally, the request must, to the extent possible, include supporting documentation, including names and addresses of witnesses.162 The icc’s power to request reparations on its own initiative is limited to ‘exceptional cir­ cumstances’.163 In addition, the Court may not proceed with such an order against the will of the individual victim whom the order concerns.164 The period of time open to eligible persons to file their reparations request necessarily affects the scope of the reparations award. Consistent with the Basic Principles on Reparations165 and the fact that the core crimes within the icc’s jurisdiction166—which form the basis for icc reparations—are not sub­ ject to any statute of limitations,167 the Rome Statute, the Rules, and the Regulations of the Trust Fund do not provide explicitly for a cut-off date for reparations requests following a conviction. However, the absence of such spe­ cific rules notwithstanding, it would appear that the Court could order time limits for the filing of reparations requests under its general power to make ‘any order setting time limits regarding the conduct of any proceedings’, pro­ vided it has regard to the rights of the defence and the victims.168 In any case, once the Trial Chamber has issued its reparations order and validated the Trust Fund’s proposed implementation plan where applicable, it will in practice 158 159 160 161 162 163 164 165

Lubanga Reparations Decision, supra note 35, paras. 194–6. icc Rules, Rule 94(1)(b), (c). Ibid., Rule 94(1)(d). Ibid., Rule 94(1)(e), (f). Ibid., Rule 94(1)(g). Rome Statute, Art. 75(1). icc Rules, Rule 95(2)(b). The 2006 Basic Principles on Reparations do not themselves contain a time-limit for filing of reparation claims and states that domestic statute of limitations applicable to civil claims should not be unduly restrictive. 2006 Basic Principles on Reparations, supra note 43, para. 7. 166 Rome Statute, Art. 5. 167 Rome Statute, Art. 29. 168 icc Rules, Rule 101. The Lubanga and the Katanga Chambers have, however, not (yet) made explicit use of this rule.

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become more difficult for ‘new’ victims to register with the Court the more time lapses, and close to impossible to have any ruling by the Chamber in their respect since the Chamber can be expected to be dissolved once the imple­ mentation of reparations is well underway in a given case. 3.5.2 Assessment In assessing a reparations claim, the Court must take into account ‘the scope and extent of any damage’.169 Further, while neither the Rome Statute nor the icc Rules contain any provisions to that effect, there is international legal authority for the proposition that ‘[r]eparation should be proportional to the gravity of the violations and the harm suffered’.170 The Lubanga Reparations Decision has explicitly endorsed this general standard.171 In contrast to the assessment of imposition of fines,172 the Court is not obliged to take into account the convicted person’s financial capacity when ordering reparations. This is logical since fines are a form of penalty against the convicted person,173 whereas reparations exist for the benefit of the victims. In all cases, the icc is bound to ‘respect the rights of victims and the convicted person’ in assessing a claim.174 To assist it in its assessment, the icc ‘may invite and shall take account of representations from or on behalf of the convicted person, victims, or other interested persons or interested States’.175 The Court may also conduct a fur­ ther hearing for the reparations claims before the completion of the trial176 in which victims may apply for participation.177 In addition, the Court can appoint experts who may ‘suggest various options concerning the appropriate types and modalities of reparations’.178 If it does, the Court must invite, as appropriate, victims or their legal representatives, the convicted person, and 169 Ibid., Rule 97(1). 170 2006 Basic Principles on Reparations, supra note 43, paras. 15, 18; Van Boven Principles, supra note 78, para. 7. 171 Lubanga Reparations Decision, supra note 35, paras. 242–6. 172 See Rule 146(1) of the icc Rules. When determining a fine, however, the Court shall con­ sider, ‘as appropriate, any orders for reparation’. 173 However, the Court can order fines and forfeiture to be transferred to the Trust Fund, which pools them and utilises them for the benefit of victims. Rome Statute, Art. 79(2); see infra, Section 3.6 under the heading entitled ‘Trust Fund’. 174 icc Rules, Rule 97(3). 175 Rome Statute, Art. 75(3). 176 Ibid., Art. 76(2), (3); icc Rules, Rule 143. 177 icc Rules, Rule 89. 178 Ibid., Rule 97(2).

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interested persons and States to make observations on the reports of the experts.179 Interestingly, the icc is not required to consult the Trust Fund, which may possess valuable expertise in relation to reparations in general, in its assessment of appropriate reparations,180 although it is certainly not pre­ cluded from doing so. The Lubanga proceedings give an indication that in practice the Trust Fund will play a prominent role in the assessment of appro­ priate reparation measures for the previously determined damage, loss, and injury181 in particular in those cases where the convicted person has no means to award or even complement any reparations measures. This is on the one hand due to its case-specific expertise by virtue of its central role in restorative justice efforts in situation countries through its assistance mandate; on the other hand, it is only the Trust Fund that may hold any means, collected in the first place through voluntary contributions, which could be distributed to the victim community.182 3.5.3 Order Once the Court has assessed the appropriate reparations to be made, it may issue an order for reparations against the convicted person under Article 75(2) of the Rome Statute. Pursuant to Rule 97(1) of the icc Rules, reparations can be ordered either on an individual or collective basis, or both. In other words, reparations can be awarded both to individual victims and to a collectivity of victims. Collective reparations appear appropriate especially in cases where there are a large number of victims because in such cases it will be difficult to award individual reparations with sufficient accuracy. Further, in situations where no funds can be expected from the convict and the amount of disburs­ able reparations funds is limited, collective reparations can be more effective. As will be explained below, the Trust Fund plays an important role in tailoring collective reparations. In the same vein, the specifics of a situation may render individual awards more effective and appropriate, for instance in cases 179 Ibid., Rule 97(2). 180 Only where reparations are to be made through the Trust Fund to an organisation approved by the Trust Fund does the icc appear to be under some form of obligation to consult with the Trust Fund. See icc Rules, Rule 98(4). 181 See only The Prosecutor v. Thomas Lubanga Dyilo, Decision on the admissibility of the  appeals against Trial Chamber I’s ‘Decision establishing the principles and pro­ cedures to be applied to reparations’ and directions on the further conduct of proceed­ ings, ICC-01/04-01/06-2953 (Appeals Chamber), 14 December 2012, Disposition, para. 7. 182 See infra, Section 3.6—The Trust Fund for Victims.

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where  individual victims have been singled out and separated from their communities.183 3.6 The Trust Fund for Victims Article 79(1) of the Rome Statute entrusts the Assembly of States Parties184 with the establishment of a Trust Fund ‘for the benefit of victims of crimes within the jurisdiction of the Court, and of the families of such victims’. The regulatory framework of the Trust Fund provided by the Assembly185 indicates that its functioning is meant to be distinct from the Court’s governance struc­ ture. Its Board of Directors is directly accountable to the Assembly for the over­ all management of the Trust Fund resources and activities.186 However, at the same time, the Trust Fund is inextricably linked to the Court since its activities depend on the Court’s jurisdiction and its judicial decisions: regarding the Court’s jurisdiction, Article 79 of the Rome Statute stipulates that the Trust Fund is established for victims (and their families) of crimes ‘within the jurisdiction of the Court’,187 clearly pointing at the Court’s core crimes under Article 5 of the Rome Statute as well as the definition of victims as outlined in Rule 85 of the Rules.188 In other words, the Trust Fund can only operate in situations where icc crimes have been committed. As for the Trust Fund’s link to judicial decisions, one of the Trust Fund’s founding resolutions provides that ‘[t]he Board shall […] establish and direct the activities and projects of the Trust Fund and the allocation of the property and money available to it, bearing in mind available resources and subject to the decisions taken by the Court’. This is 183 See The Prosecutor v. Thomas Lubanga Dyilo, Public Redacted Version of ICC-01/04-01/062803-Conf-Exp-Trust Fund for Victims’ First Report on Reparations, ICC-01/04-01/062803-Red, 23 March 2012 (the original confidential filing dates of 1 September 2011), in particular paras. 16–26. 184 The Assembly of States Parties (hereinafter ‘Assembly’) is the founding and overall gov­ erning body of the icc. Pursuant to Article 112 of the Rome Statute it carries out a number of essential governing tasks such as management oversight to the organs of the icc, the decision over the Court’s annual budget, and any other function conferred to it by the Rome Statute or the icc Rules (arts. 112(2)(b), (d) and (g)). 185 Establishment of a fund for the benefit of victims of crimes within the jurisdiction of the Court, and of the families of such victims, Resolution ICC-ASP/1/Res.6, 9 September 2002. See in particular the Regulations of the Trust Fund for Victims, supra note 73. 186 Regulations 76 and 77 of the Regulations of the Trust Fund, supra note 73. See also Summary of the draft tfv Strategic Plan 2014–2017, page 2, at www.trustfundforvictims .org/. 187 Rome Statute, Art. 79(1) (emphasis added). 188 See also Regulations 20, 42, 48 (with regard to the ‘other resources’ under Rule 98(5) of the icc Rules) of the Regulations of the Trust Fund, supra note 73.

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mirrored in the Trust Fund’s Regulations.189 Further, Article 75(2) of the Rome Statute as well as Rule 98 of the icc Rules determine the Trial Chamber’s— exclusive—triggering function for reparations activities of the Trust Fund. The Trust Fund has four possible funding sources: (a) Voluntary contributions from governments, international organisations, individuals, corporations, and other entities, in accordance with relevant criteria adopted by the Assembly of States Parties; (b) Money and other property collected through fines or forfeiture trans­ ferred to the Trust Fund if ordered by the Court pursuant to Article 79(2) of the Rome Statute; (c) Resources collected through awards for reparations if ordered by the Trial Chamber pursuant to Rule 98 of the icc Rules; (d) Resources other than assessed contributions ‘as the Assembly of States Parties may decide to allocate to the Trust Fund’.190 3.6.1 The Assistance and Reparations Mandates of the Trust Fund These funding sources serve to enable the Trust Fund to carry out its two insti­ tutional mandates as set out in its Regulations: 1. 2.

to provide physical or psychological rehabilitation or material support for the benefit of victims and their families (‘assistance mandate’);191 and when the Court makes an order for reparations against a convicted per­ son and orders that the award be deposited with or made through the Trust Fund192 (‘reparations mandate’).193

The assistance mandate is somewhat implicitly provided for in Rule 98(5) of the icc Rules, which stipulates that ‘[o]ther resources of the Trust Fund [than those used for reparation orders pursuant to Rule 98(1) to (4) of the icc Rules] may be used for the benefit of victims […]’. These ‘other resources’ are in most relevant part voluntary contributions from external parties as outlined

189 Resolution ICC-ASP/1/Res.6, supra note 189, Annex to the resolution, para. 7 (emphasis added); Regulation 44 and Section III of the Regulations of the Trust Fund, ibid. 190 Resolution ICC-ASP/1/Res.6, ibid., para. 2, and Regulation 21 of the Regulations of the Trust Fund, ibid. 191 Regulation 50(a) of the Regulations of the Trust Fund, ibid. 192 Pursuant to rule 98(2)-(4) of the icc Rules. 193 Regulation 50(b) of the Regulations of the Trust Fund, supra note 73.

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above,194 which are not directly linked to reparations proceedings.195 Activities in the field pursuant to this mandate can commence as early as the situation stage when the Prosecutor has commenced an investigation into possible crimes under the Rome Statute in a certain situation before the Court pursuant to Article 13 of the Rome Statute, and no case has evolved yet in accordance with Article 58(1) of the Rome Statute. Activities pursuant to the assistance mandate are therefore not linked to a specific procedural stage196 in court and merely require that the beneficiaries are victims of Rome Statute crimes and their families.197 Since 2008, the Trust Fund has been engaged in field opera­ tions under the assistance mandate in northern Uganda and Democratic Republic of Congo. In relation to reparation awards, representing the second leg of the Trust Fund’s institutional mandate, the Trust Fund can take on three roles, which are best described in Joakim’s own words: First, it can act as a depository when, at the time of the reparations order, ‘it is impossible or impracticable to make individual awards directly to each victim’.198 In this role, the Trust Fund merely receives the reparation funds from the convicted person on behalf of the victims199 and must forward the deposited awards to each individual victim as soon as possi­ ble.200 Second, reparations can ‘be made through’ the Trust Fund as an intermediary when ‘the number of the victims and the scope, forms and modalities of reparations makes a collective award more appropriate’.201 194 See ibid., Regulation 47, pursuant to which ‘other resources of the Trust Fund’ refer to ‘resources other than those collected from awards for reparations, fines and forfeitures’. 195 Regulation 27 (ibid.) originally stipulated that ‘[v]oluntary contributions from govern­ ments shall not be earmarked’ for a specific assistance or reparations activity. This limita­ tion has since been amended by the Assembly of States Parties to the effect that it now allows for the possibility of earmarked contributions by governments and other sources when the funds have been raised at the initiative of the members of the Board of Directors and/or the Executive Director. Resolution ICC-ASP/6/Res.3, 14 December 2007. 196 Regulation 50(a) (ibid.) stipulates that the Trust Fund is obliged to liaise with the compe­ tent Chamber prior to commencing any activities under its assistance mandate in order not to ‘predetermine any issue to be determined by the Court’. 197 Rome Statute, Art. 79(1); icc Rules, Rule 98(5); Regulation 50(a), ibid. 198 icc Rules, Rule 98(2). 199 See T. Ingadottir, ‘The Trust Fund of the icc’, International Crimes, Peace, and Human Rights 149 (2000), 150–1. 200 icc Rules, Rule 98(2). 201 Rome Statute, Art. 75(2); icc Rules, Rule 98(3).

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In these cases, the reparations from the convicted person are first trans­ ferred to the Trust Fund, which then proposes how to distribute them to the victims.202 Third, as a variant of this ‘intermediate’ role, reparations can be made through the Trust Fund to an intergovernmental, interna­ tional or national organization.203 When seized of a reparations order pursuant to Article 75 of the Rome Statute, the Trust Fund shall prepare an implementation plan for it, tak­ ing into account, inter alia, ‘the nature of the crimes, the particular inju­ ries to the victims and the nature of the evidence to support such injuries, as well as the size and location of the beneficiary group’.204 In cases where the Trust Fund acts as an ‘intermediary’ for collective awards, the imple­ mentation plan ‘shall set out the precise nature of the collective award(s) […] as well as the methods for its/their implementation’.205 For this pur­ pose, the Trust Fund may consult victims, their families and competent experts.206 It may also identify intermediaries or partners, or invite pro­ posals for the implementation of the collective award.207 In cases where reparations are made through the Trust Fund to an organization, the implementation plan shall set out, inter alia, the specific functions that the concerned organization is to undertake.208 The Trust Fund oversees the work of the organization but still remains subject to the overall over­ sight of the relevant Chamber.209 3.6.2 Financing of Reparations Out of the Trust Fund’s Resources In the following, Joakim described a problem that has indeed become a very live issue in the Lubanga and Katanga reparations proceedings before the icc: A crucial question of the Trust Fund’s role arises in cases where, despite any measures potentially taken by the Court to ensure that assets for future reparations are obtained,210 the convicted person lacks the financial means to compensate all the victims [or any victims for that 202 Regulations of the Trust Fund, supra note 73, paras. 43–4. 203 icc Rules, Rule 98(4). It is on the Trust Fund to previously approve the recipient organization. 204 Regulations of the Trust Fund, supra note 73, paras. 54, 5. 205 Ibid., para. 69. 206 Ibid., para. 70. 207 Ibid., para. 71. 208 Ibid., para. 73. 209 Ibid., paras. 55, 57, 58, 69, 74. 210 See Rome Statute, Arts. 57(3)(e), 75(4) and 93(1)(k); icc Rules, Rule 99(1).

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matter].211 Given that most of the accused in other international criminal tribunals have been indigent and in light of the sheer scale of the crimes before the icc, this is not an unlikely scenario.212 The question is whether the Trust Fund in such a situation can step in and provide funds from its own resources collected pursuant to the assistance mandate in order to meet the convicted person’s obligations under a reparations order. As Joakim rightly observes, the Rome Statute and the icc Rules do not expressly provide that the Trust Fund can—or shall—use its resources to compensate for insufficient reparations by a convicted person. From the four sources at its disposition,213 it would appear logical that resources collected through awards for reparations as well as assets collected through fines or forfeiture shall be brought to the Trial Chamber’s disposition for reparations as those assets stem directly from the accused and can only disposed over in case of a conviction.214 The question is whether the Trial Chamber can, if the 211 Bracketed text added by the author. 212 The un Compensation Commission provides a drastic example. The Commission was established by the un Security Council by S/RES/687 (1991) to pay compensation for death, injury, loss of or damage to property, commercial claims, and claims for environ­ mental damage resulting from Iraq’s unlawful invasion and occupation of Kuwait in 1991. It received a staggering 2.7 million claims seeking around u.s. $352.5 billion in compensa­ tion. In addition, these claims were based on State responsibility, and not, as would be the case in the icc, the responsibility of individuals who normally lack the financial capacity of States. S/RES/687, § 16. Admittedly, until an agreement on the crime of aggression has been reached (see Rome Statute, Art. 5(2)), crimes relating to aggressive wars of this type may not come before the Court. Nevertheless, the 920,000 claims of persons who had to leave Kuwait or Iraq between August 2, 1990 and March 2, 1991 alone amounted to approx­ imately u.s. $3.6 billion. By comparison, according to the International Commission of Inquiry on Darfur, the Darfur situation referred to the icc had in 2004 resulted in 1.65 million internally displaced persons and more than 200,000 refugees in Chad. Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General Pursuant to Security Council Resolution 1564 of 18 September 2004 (‘Report of the International Commission of Inquiry on Darfur’), at 3 (Executive Summary), www.un.org/ news/dh/sudan/com_inq_darfur.pdf (last accessed on 1 July 2014). 213 See supra Section 3.6: (i) voluntary contributions; (ii) assets collected through fines or forfeiture; (iii) resources for reparations awards; and (iv) other resources allocated by the Assembly. See Regulations of the Trust Fund, supra note 73, para. 21. 214 Regarding resources collected through awards for reparations, Regulation 46 of the Regulations of the Trust Fund (supra note 73) is clear that these can only go to victims affected by the crimes ‘committed by the convicted person’, i.e., reparations in the strict sense. For resources collected through fines or forfeiture this is somewhat less explicit;

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aforementioned resources are non-existent, disperse those ‘other resources’ of the Trust Fund that are meant to fund activities under the assistance mandate: (a) voluntary contributions and (b) funds from the Assembly other than assessed contributions.215 Regulation 56 of the Regulations of the Trust Fund provides some guidance on the matter in that it determines that ‘[t]he Board of Directors shall determine whether to complement the resources collected through awards for reparations with “other resources of the Trust Fund” and shall advise the Court accordingly’. This wording makes clear that indeed, as Joakim concluded, ‘the Trust Fund would not be pre­ vented from providing additional funding when a convicted person cannot pay all claims.’216 However, the question remains where the prerogative lies for a decision to complement any moneys to reparation activities. While the first part of Regulation 56, as cited supra, suggests that the Board of Directors holds full control over the funds under the ‘other resources’ heading (‘[t]he Board of Directors shall determine’217), the second part of the provision appears to make such a conclusion less evident. It provides that [w]ithout prejudice to its activities under [the assistance mandate], the Board of Directors shall make all reasonable endeavours to manage the Fund taking into consideration the need to provide adequate resources to complement payments for awards under rule 98, sub-rules 3 and 4 of the Rules of Procedure and Evidence and taking particular account of ongoing legal proceedings that may give rise to such awards. The ‘need to provide adequate resources to complement payments for [repara­ tions] awards’ could be read as establishing a general obligation to comple­ ment reparation awards, an obligation that is not at the Board of Director’s discretion. The Lubanga Trial Chamber sought to settle this tension in its Reparation Decision. As Mr Lubanga had been found indigent at trial, the Trial however, Regulations 43 and 44 of the Regulations of the Trust Fund (supra note 179) sug­ gest that those resources will also be used for reparations. The Trust Fund endorses this reading of the Regulations in its draft Strategic Plan 2014–2017, supra note 187. 215 Regulation 47 of the Regulations of the Trust Fund (supra note 73) provides that ‘other resources of the Trust Fund’, i.e., those resources that fund the assistance mandate, refer to ‘resources other than those collected from awards for reparations, fines and forfeitures’. 216 For a similar conclusion, see Ferstman, supra note 71, 685. 217 Regulation 56 of the Regulations of the Trust Fund, supra note 73.

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Chamber considered him unable to contribute to any monetary reparations.218 As a substitute mechanism for delivering reparations in this case, the Chamber referred to the Trust Fund, holding that the latter ‘is well placed to determine the appropriate forms of reparations and to implement them’.219 Relevant to the Trust Fund’s resources for reparations proceedings, the Chamber held: […] when the convicted person has no assets, if a reparations award is made ‘through’ the Trust Fund, the award is not limited to the funds and assets seized and deposited with the Trust Fund, but the award can, at least poten­ tially, be supported by the Trust Fund’s own resources. […] In the Chamber’s view, the wording of Regulation 56 of the Regulations of the [Trust Fund] suggests that the ‘need to provide adequate resources’ includes the need to fund reparation awards. In circumstances when the Court orders repara­ tions against an indigent convicted person, the Court may draw upon ‘other resources’ that the [Trust Fund] has made reasonable efforts to set aside.220 The Chamber then concluded that, ‘pursuant to Regulation 56 of the Regulations of the [Trust Fund], the [Trust Fund] shall complement the fund­ ing of a reparations award, albeit within the limitations of its available resources and without prejudice to its assistance mandate’.221 This conclusion arguably limits the discretion of the Board of Directors ‘whether to complement’ a reparations award quite substantially but does not eliminate the Trust Fund’s independence in particular with regard to its assis­ tance mandate. In light of the fact that the icc’s reparations regime stands at the forefront as one of the central features of the Rome Statute system, it is not surprising that the Court’s Chambers see the Trust Fund’s primary function in safeguarding meaningful reparations.222 For the time being, the Lubanga Trial 218 Lubanga Reparations Decision, supra note 35, para. 269. 219 Ibid., para. 266. 220 Ibid., para. 271, referring also to the French version of Regulation 56 of the Regulations of the Trust Fund: ‘Le Conseil de direction détermine s’il faut compléter le produit de l’exécution des ordonnances de réparation par d’«autres ressources du Fonds» et en informe la Cour’. 221 Ibid., para. 273 (underlining in the original; footnote omitted). 222 See The Prosecutor v. Thomas Lubanga Dyilo, Decision on the Notification of the Board of Directors of the Trust Fund for Victims in accordance with Regulation 50 of the Regulations of the Trust Fund, ICC-01/04-492, Pre-Trial Chamber I, 11 April 2008, page 7: ‘[…] the responsibility of the Trust Fund is first and foremost to ensure that sufficient funds are available in the eventuality of a Court reparation order pursuant to Article 75 of the Statute’.

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Chamber’s interpretation stands, arguably limiting the Trust Fund’s self-per­ ceived independence from the Chambers in a very relevant aspect. It remains to be seen whether future Trial Chambers endorse this reading and/or whether the Assembly wishes to clarify the matter, e.g., by amending the Regulations of the Trust Fund. Looking at Trust Fund’s capacities from a more practical perspective, its resource base currently lies at €9.6 million as at June 2014.223 Of this overall amount, the Fund currently holds a reparations reserve in the amount of €3.6  million,224 which may be used to complement Court-ordered awards. This  reserve includes states’ earmarked voluntary contributions as well as unrestricted funds.225 Despite these rather encouraging figures, Joakim’s ­conclusion still stands: It remains to be seen whether the resources of the Trust Fund will suffice to afford all reparations that may be necessary in a given case.226 It may be that the Trust Fund will have to settle for fixed amounts less than ‘full compensation’ for victims within specified categories.227 223 This encompasses a one million British Pound donation by the United Kingdom ear­ marked to assist victims of sexual and gender based violence on 12 June 2014 at the occa­ sion of the Global Summit to End Sexual Violence in Conflict in London, uk, 11–13 June 2014. 224 Trust Fund for Victims, ‘tfv Board of Directors approves draft Strategic Plan, raises repa­ rations reserve with €1 million’, News Article, 20 May 2014, www.trustfundforvictims.org/ news/tfv-board-directors-approves-draft-strategic-plan-raises-reparations-reserve -%E2%82%AC-1-million (last accessed on 1 July 2014). 225 Ibid. 226 See D.L. Shelton, ‘Reparations for Victims of International Crimes’, International Crimes, Peace, and Human Rights (2000) 137, 144 (‘Actions within the jurisdiction of the Court are likely to accompany internal armed conflicts, where the sheer number of victims and perpetrators may overwhelm the best efforts to provide full redress to victims’.). 227 This was done by the un Compensation Commission. It divided claims into six catego­ ries. For instance, Category A encompassed claims submitted by individuals who had to depart from Kuwait or Iraq between the date of Iraq’s invasion of Kuwait on August 2, 1990 and the date of the cease-fire on March 2, 1991. Compensation for successful claims in this category was set by the Governing Council at the fixed sum of u.s. $2,500 for indi­ vidual claimants and u.s. $5,000 for families; http://www.uncc.ch/claims (last accessed on 1 July 2014). The u.s. class-action case against the estate of former Philippine dictator Ferdinand Marcos provides another example. Here, 137 claims were randomly selected out of the received 10,059 claims. The selected claims were divided into categories for torture, summary executions, and disappearances, and an expert recommended the amount to be awarded for claims in each category. Maximo Hilao, Class Plaintiffs v. Estate of Ferdinand Marcos, 103 F.3d 767, 782–4 (9th Cir. 1996).

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Part of such compromise solutions where the number of victims largely sur­ passes the assets available for their relief will be a sound strategy in the man­ agement of expectations. Victims need to be informed at the earliest stages what they can expect from the icc’s victim participation and reparations regime, as well as the Trust Fund. In the event that victims and victim com­ munities do not differentiate between the different sections of the icc Registry and the Trust Fund, efficient internal communication and cooperation and a joint strategy towards outside stakeholders are key for both the Court and the Trust Fund. 4

Application of the icc Reparations Scheme

The abovementioned features of the icc’s reparations scheme encompass, as outlined, a number of challenges that the Court is still to face as the practical implementation of the system has so far been limited to two cases. However, two salient features from the international criminal process have a determina­ tive effect on reparations proceedings which rather belong to the type of pro­ ceedings heard in civil courts: first, the nature of the crimes subject to the icc’s jurisdiction; and second, the basis for reparations awards in a given case before the icc. Both issues, which Joakim termed ‘paradigms’, pose a challenge not only to the meaningful application of the reparations scheme as such but also its legitimacy and, in consequence, the legitimacy of the icc as a mechanism rendering not only retributive but also reparative justice. 4.1 First Paradigm: The Nature of the Crimes The crimes within the icc’s jurisdiction have often been coined as the ‘interna­ tional core crimes’228 since they indeed represent the essence of macro-crimi­ nality that all states agree has to be suppressed and abolished.229 The specific danger of these crimes lies in their large scale, expressed through the chapeau 228 G. Boas, J.L. Bischoff, and N.L. Reid, ‘International Criminal Law Practitioner Library, Volume 2.—Elements of Crimes under International Law’ (2009), at 2–3; M. Bergsmo, M.  Harlem, and N. Hayashi (eds), ‘Importing Core International Crimes into National Criminal Law’, ficjc Publications No. 1 (2007). 229 See Rome Statute, Art. 5: ‘The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole’, namely, genocide, crimes against humanity, war crimes and the crime of aggression. As for the latter crime, jurisdic­ tion will be activated in 2017 at the earliest. See asp Resolution at the Review Conference in Kampala in 2010, RC/Res.6 of 11 June 2010.

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elements of these crimes: the intent to destroy a protected group ‘as such’,230 a ‘widespread or systematic attack against a civilian population’,231 or a ‘plan or policy’ to commit war crimes.232 However, the consequence of mass criminal­ ity is mass victimization. The nature of the crimes within the icc’s jurisdiction will confront the Court with cases implicating not only individual victims, but also entire societies. In particular the Bemba case before the icc illustrates this: the indictment alleges that from 25 October 2002 until 15 March 2003 the Mouvement de Libération du Congo (‘mlc’) led by Mr Jean-Pierre Bemba ­committed a number of war crimes and crimes against humanity at multiple occasions and locations on the territory of the Central African Republic.233 Despite the rather small time window, today more than 6,000 victim applica­ tions for participation in the proceedings, often including reparations, have been received.234 Further, the icc Prosecutor generally follows a prosecutorial ­strategy similar to that of the Special Court for Sierra Leone of focusing inves­ tigations on high-ranking persons who bear the ‘greatest responsibility’ for the crimes.235 Joakim described the resulting situation as follows: As a result, similarly to the icty,236 many cases before the icc will involve a very large number of victims of a vast criminal design, possibly 230 Rome Statute, Art. 6 (genocide). While the definition of genocide does not require a large number of victims or an underlying plan, inferences of the genocidal intent often depend on such showings. 231 Rome Statute, Art. 7 (crimes against humanity). 232 Rome Statute, Art. 8 (war crimes). 233 The Prosecutor v. Jean-Pierre Bemba Gombo, Warrant of Arrest for Jean-Pierre Bemba Gombo Replacing the Warrant of Arrest Issued on 23 May 2008, ICC-01/05-01/08-15-tENG, 10 June 2008 (Pre-Trial Chamber III), paras. 12–17. 234 ICC Case Information Sheet, ICC-PIDS-CIS-CAR-01-009/12_Eng. 235 Agreement Between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, 16 January 2002, Annex, Art. 1. However, according to the otp Strategic plan, supra note 109, (Section 4(a)), ‘[t]he required eviden­ tiary standards to prove the criminal responsibility of the most responsible might force the otp sometimes to change its approach due to limitations on investigative possibilities and/or a lack of cooperation. A strategy of gradually building upwards might then be needed in which the Office first investigates and prosecutes a limited number of mid- and high-level perpetrators in order to ultimately have a reasonable prospect of conviction for the most responsible’. 236 See, e.g., Krajišnik Trial Judgment, supra note 117, para. 1151 (‘Immense suffering was inflicted upon the victims in this case, and the consequences that the crimes have had on the entire Muslim and Croat community in Bosnia-Herzegovina have been profound. The consequences of the crimes of which Momčilo Krajišnik has been found guilty as a

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pertaining to a whole community or region.237 Moreover, in a reparations case, the victims may be joined by their families and/or successors in the group of persons entitled to reparations.238 Providing adequate reparations to all these persons may entail mea­ sures well beyond compensation for individual physical suffering. The criminal enterprise within which the crimes were committed may have devastated the infrastructure and the educational, political and commer­ cial system of an entire region. As mentioned above,239 for restitution, compensation and rehabilitation to individual victims to be meaningful in such cases, these societal structures will have to be rebuilt. Two challenges follow from this paradigm. First, the greater the num­ ber of victims, the less the reparations can be distributed with pinpoint accuracy.240 Second, and more important for this article, the broader a criminal enterprise is, the greater the societal considerations must be when awarding reparations to victims of that enterprise. Taking these challenges seriously is essential for determining what type of reparations may be adequate in massive cases. co-perpetrator in a [joint criminal enterprise] will persist in Bosnia-Herzegovina for decades, affecting hundreds of thousands of people’.); Prosecutor v. Blagoje Simić, Case No. IT-95-9-A, Appeal Judgment, 28 November 2006, para. 2 (relating to forcible take-over of an entire municipality and ensuing persecutions of non-Serb population); Prosecutor v. Vojislav Šešelj, Case No. IT-03-67, 15 July 2005, Modified Amended Indictment, para. 6 (alleging a joint criminal enterprise with the purpose of forcibly removing the non-Serb population from approximately one-third of Croatia, and large parts of BosniaHerzegovina, and from Vojvodina in Serbia). 237 For example, the previous icc Prosecutor alleged that Joseph Kony founded and led the Lord’s Resistance Army (‘lra’) in Uganda; ‘that, in pursuing its goals, the lra has engaged in a cycle of violence and established a pattern of “brutalization of civilians” by acts including murder, abduction, sexual enslavement, mutilation, as well as mass burnings of houses and looting of camp settlements; that abducted civilians, including children, are said to have been forcibly “recruited” as fighters, porters and sex slaves to serve the lra and to contribute to attacks against the Ugandan army and civilian communities’. Situation in Uganda, ICC-02/04-01/05, 27 September 2005, Public Redacted Version of Warrant of Arrest for Joseph Kony Issued on 8 July 2005 as Amended on 27 September 2005, para. 5. 238 See supra Section 3.4.2—The victims. 239 See supra Section 3.2—Modalities of reparations. 240 See un Secretary-General, Report of the Secretary-General on the rule of law and transitional justice in conflict and post-conflict societies, delivered to the Security Council, S/2004/616, 23 August 2004, paras. 54–5 (‘Material forms of reparation present perhaps the greatest challenges, especially when administered through mass government

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However, addressing detailed societal structures through reparations would arguably entail reparations measures of broader socio-economic implications aimed at, for example, strengthening the judiciary, ending hostilities, promot­ ing education about the past, or ensuring civilian control over military and security forces. In Joakim’s assessment, those measures would involve questions of a more political than judicial nature.241 For example, which schools should receive funding from a reparations award? Which historical version of the past mass-atrocities should they teach? Should the judicial staff be replaced as a condition for awards to benefit the judiciary? Where ought funds to be placed in order to estab­ lish civilian authority over the security forces? And so forth. While the icc may have the capacity to establish truth and responsibility in cases regarding massive criminal enterprises,242 it is questionable whether a panel of three Judges243 in The Hague is well-poised to decide the micromanagerial and political issues entwined with providing adequate reparations in such cases. The icc’s reparations scheme does provide for an extensive and elaborate assessment procedure, including external advice, before determining what reparations may be appropriate in a given case.244 However, this does not detract from the fact that the programmes. Difficult questions include who is included among the victims to be com­ pensated, how much compensation is to be rewarded, what kinds of harm are to be cov­ ered, how harm is to be quantified, how different kinds of harm are to be compared and compensated and how compensation is to be distributed. No single form of reparation is likely to be satisfactory to victims. Instead, appropriately conceived combinations of reparation measures will usually be required, as a complement to the proceedings of criminal tribunals and truth commissions’.). In addition, the sheer number of victims and scarcity of resources may render it impracticable to award as high reparations for victims of massive violations as would have been possible in an individual case. See P. de Greiff, ‘Justice and Reparations’, in The Handbook of Reparations (2006), 451, at 454. 241 Ibid., at 454–5. 242 Cf. supra Section 3—The Reparations Regime at the International Criminal Court. The debate as to whether international criminal tribunals can provide a comprehensive and accurate account of history and responsibility is not specifically addressed in this article. See, e.g., S. Landsman, ‘Accountability for International Crime and Serious Violations of Fundamental Human Rights: Alternative Responses to Serious Human Rights Abuses: Of Prosecution and Truth Commissions’, 59 Law and Contemporary Problems (1996), 81, 85–6. 243 Or five judges, depending on whether the reparations order is appealed under Art. 82(4) of the Rome Statute. Arts. 39(2)(b)(ii), 39(1), 39(2)(b)(i). 244 See supra Section 3.5—Assessment.

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Court as a judicial institution would engage in a political exercise were it to address, directly or indirectly, societal structures in its reparations awards. 4.2 Second Paradigm: The ‘Prosecutorial Basis’ for Reparations A reparations award under the icc scheme will necessarily be linked to the crimes subject to the conviction of an accused. This is a consequence of the fact that a reparations order will be issued ‘directly against the convicted person’,245 thus making it the primary responsibility of a convicted person to pay or otherwise afford reparations to victims. Since such reparation awards will come directly from the convicted person’s assets, the underlying legal obligation can only result from crimes of which (s)he has been convicted.246 An icc reparations award is thus inextricably linked to, and based on, the criminal acts of a certain convicted person as presented and established in the case against him or her.247 The conviction-based nature of any reparation award under Article 75 of the Rome Statute is problematic in its exclusivity. Joakim described this as the ‘prosecutorial basis’ for icc reparations. Here is his analysis of the problem: Experience shows that the situations in which the crimes within the icc’s jurisdiction normally take place are not limited to the acts of a handful of persons. Genocide and crimes against humanity often occur in the context of an armed conflict involving several well-organized war­ ring factions.248 As to war crimes, the existence of an armed conflict is an 245 Article 75(2) of the Rome Statute; Rule 98 of the icc Rules. 246 It would be irreconcilable with the legal principle of individual guilt if a convicted person were to afford reparations for crimes (s)he has not committed. See supra Section 3.4.1. 247 This is also reflected in the Regulations of the Trust Fund (supra note 73), in particular Regulation 46: ‘Resources collected through awards for reparations may only benefit vic­ tims as defined in rule 85 of the Rules of Procedure and Evidence, and, where natural persons are concerned, their families, affected directly or indirectly by the crimes committed by the convicted person’. (emphasis added); see also Prosecutor v. Thomas Lubanga Dyilo, Judgment on the appeals of The Prosecutor and The Defence against Trial Chamber I’s Decision on Victims’ Participation of 18 January 2008, Case No. ICC‐01/04‐01/06‐1432 (oa 9 oa 10), Appeals Chamber, 11 July 2008, para. 63. 248 See, e.g., Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgment, 2 August 2001, paras. 11–7, 599 (holding that genocide occurred in Srebrenica in July 1995 during conflict between Bosnian Serb Army and Army of Bosnia-Herzegovina); affirmed in Prosecutor v. Radislav Krstić, Case No. IT-98-33-A, Judgment, 9 April 2004, para. 39; The Prosecutor v. Edouard Karemera, Mathieu Ngirumpatse and Joseph Nzirorera, Decision on Prosecutor’s Interlocutory Appeal of Decision on Judicial Notice, Case No. ICTR-98-44-AR73(C),

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element of the crime.249 It is inconceivable that all culprits from all sides of a conflict could be brought to justice before the icc; the ad hoc tribu­ nals, having jurisdiction in relation to only one specific area of conflict each, have not accomplished this.250 Therefore, a decision must be made as to which persons and acts are to be tried in a given case. Such a decision ultimately rests, as the case may be, with the competent authority of a State Party or the un Security Council in referring a situation to the Court, or with the icc Prosecutor in initiating an investigation.251 The extent to which a case might ­ultimately yield reparations may play a part in making that decision, but,  other considerations might weigh more heavily. For example, the icc Prosecutor may have insufficient evidence in relation to some acts or  persons, he may be under time pressure to rapidly commence ­proceedings or he may simply be unable to follow-up all leads in an ­investigation.252 Additionally, a trial before the icc does not guarantee a conviction. It may well be that, while the icc Prosecutor succeeds in establishing that atrocities took place, he nevertheless fails in linking the accused thereto. In such a case, the Court may be unable to award repara­ tions because there is no conviction on which to base a reparations order.

249 250

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16 June 2006, para. 57 (ordering the Trial Chamber to take judicial notice that between 1 January 1994 and 17 July 1994 in Rwanda there was an internal armed conflict during which period genocide and a widespread and systematic attack against Tutsi population occurred; affirmed in Prosecutor v. Edouard Karemera, Mathieu Ngirumpatse and Joseph Nzirorera, Decision on Motions for Reconsideration, ICTR-98-44-AR73(C), 1 December 2006, para. 28). Rome Statute, Art. 8(2). Even the national efforts in Rwanda to let the conventional judicial system prosecute all who were responsible for the genocide proved unrealistic. William A. Schabas, ‘The Rwanda Case: Sometimes It’s Impossible’, in M.C. Bassiouni (ed.), Post Conflict Justice (2002), 499, 499–500. See the so-called ‘trigger mechanisms’ under the Rome Statute, Art. 13. A reason for the latter lies in the difficulties of conducting investigations in a war zone. As noted by the icc Prosecutor in relation to the lra case: ‘We will face extreme challenges in attempting to investigate in a war zone. Ensuring the safety and security of my investi­ gation teams is a fundamental priority. We are working to obtain immunity agreements’. Remarks by icc Prosecutor Luis Moreno-Ocampo, 27th Meeting of the Committee of Legal Advisors on Public International Law, Strasbourg, 18 March 2004, cited in M.H. Arsanjani and W.M. Reisman, ‘Developments at the International Criminal Court: The Law-InAction of the International Criminal Court’, 99 American Journal of International Law (2005), 385, 395.

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It follows that convictions by the icc and their concomitant repara­ tions orders may not be able to cover all victims of a conflict. Some groups of victims will therefore be left outside the icc’s reparations scheme. The same problem exists in relation to prosecution as a basis for providing truth and accountability; icc prosecutions cannot provide the truth about and accountability for all crimes committed in a conflict.253 As a result, the victims whose suffering could not be described in a judgment and whose antagonists escape justice may feel that the icc is not address­ ing their plights. That sentiment would be exacerbated if the excluded victims are also deprived of reparations, while the victims who had their cases tried by the icc would receive reparations. In addition, on a practi­ cal level, the icc reparations may put the excluded victims at a financial disadvantage vis-à-vis the victims receiving reparations. In the end, these consequences of the icc’s reparations scheme may lead the excluded vic­ tims to perceive it, and potentially the icc as a whole, as biased against them. That would be an unfortunate result for the reputation and per­ ceived legitimacy of the icc which, as a judicial institution, should strive to be perceived as neutral. This problem is not of a mere academic nature but in fact a hotly debated real­ ity in the Lubanga case. As briefly addressed above,254 sexual violence was a common feature in the general situation which gave rise to the Lubanga case. This generated a victim community large enough to be acknowledged by the Lubanga Trial Chamber in the Trial Judgment255 as well as in the Reparations Decision.256 However, the Prosecutor had refrained from pressing charges for sexual violence crimes, thereby arguably excluding those victims from the cir­ cle of direct beneficiaries of any Court-ordered reparations.257

253 See, e.g., Landsman, supra note 242, at 85–6. 254 See supra Section 3.4.2—The victims. 255 Lubanga Trial Judgment, supra note 15, paras. 16, 890–6, 913. 256 Lubanga Reparations Decision, supra note 35, paras. 200, 207–9; 240 and footnote 431. The Chamber also made some general findings regarding the gender (−crimes) sensitive approach taken by the drafters of the Rome Statute, in particular in Article 68 of the Rome Statute and Rule 86 of the icc Rules; Lubanga Reparations Decision, ibid., footnote 371. 257 It is currently subject to ongoing appeals proceedings whether the Lubanga Chamber in fact included victims of sexual violence in the circle of potential reparations recipients contra legem; see Mémoire de la Défense de M. Thomas Lubanga, supra note 65, paras. 125–36, referring to the Lubanga Reparations Decision. Ibid., para. 207.

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4.3 Practical Implications of the Two Paradigms Joakim described the implications of the two paradigms in the following hypo­ thetical case, followed by an assessment of this case under the two paradigms and addressing a potential tension between those paradigms: Assume that A and B are warring parties in an internal armed conflict. A policy of ‘ethnic cleansing’ on both sides has devastated the country’s infrastructure, commercial system and judiciary. As part of this policy, the forces of both sides are reported to have committed, inter alia, depor­ tation, unlawful imprisonment and torture as part of a systematic attack against the other side’s civilian population.258 While the war is still rag­ ing, the situation has been referred to the icc by the u.n. Security Council. Given the scale of the atrocities on both sides and limited resources, the icc Prosecutor cannot practicably investigate all crimes. He chooses to indict three high-ranking commanders from each side whom he deems bear the greatest responsibility for the alleged crimes. During the trial, it becomes clear that A and B have carried out at least thirty operations of deportation displacing in total 100,000 people, in effect ridding entire regions of ‘enemy population’. It also transpires that both A and B have unlawfully imprisoned approximately 10,000 of its adversary’s civilians, each in concentration camps. It is undisputed that torture of civilians has occurred in these camps. The Court acknowledges these events as facts in the background sec­ tion of its judgment. In the operative part of the judgment, however, it finds that the six accused where involved in ‘only’ ten instances of depor­ tation (five by A and five by B), displacing approximately 30,000 people. It further finds the three accused from the A side responsible for the incarceration of the 10,000 B civilians in A’s concentration camps, but holds that there is insufficient proof that the accused from the B side are responsible for unlawful detention of A civilians. The evidence is also insufficient to establish any responsibility on behalf of the accused for the incidents of torture. The Court convicts the accused accordingly. The icc reparations scheme is based on convictions, and so repara­ tions can be awarded as follows. The victims of the ten instances of deportation may claim reparations. The victims of the other twenty deportations established in the judgment, in total around 70,000 people, are left without reparations. The B civilians detained in A’s concentration 258 Rome Statute, Arts. 7(1)(d), 7(2)(d) (deportation), 7(1)(e), 7(2) (unlawful imprisonment), and 7(1)(f), 7(2)(e) (torture).

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camps are entitled to reparations, but the 10,000 A civilians in B’s concen­ tration camps are not. None of the torture victims can claim reparations for the crimes against them. The victims of other crimes committed in the course of the ethnic cleansing campaigns are likewise ineligible for icc reparations. The first paradigm—related to the nature of the crimes—has implica­ tions for the 40,000 victims who could seek reparations. The first and obvious question is how and on what basis reparations to these victims should be assessed and whether, in light of the limited resources avail­ able, reparations can be awarded with pinpoint accuracy. For example, does the experience of being held in a concentration camp inflict suffer­ ing which merits higher reparations than the harm caused by being uprooted from one’s home and deported? Can each victim’s harm feasi­ bly be individualized? The icc’s reparations scheme is prepared for such questions. It provides for an elaborate process of assessing appropriate reparations, in which victims, convicted persons, States and experts can be consulted. This allows the Court to take into account experience from its previous decisions on the matter.259 Further, it can award reparations to a collectivity of victims through the Trust Fund.260 The Trust Fund, in turn, can use resources collected through fines, forfeiture, [awards for reparations] and voluntary contributions to cover those parts of the r­eparations that the convicted persons lack sufficient means to pay t­hemselves.261 There is thus a mechanism in place allowing the icc to tailor appropriate reparations to the individual victims as far as possible. Problems arise, however, in the implementation of the reparations scheme. The crimes committed against the victims (deportation and unlawful imprisonment) formed an integral part of the ‘ethnic’ conflict between A and B, which has devastated the country, and which might still be ongoing.262 In other words, the crimes for which reparations are sought are of such nature that their consequences extend beyond indi­ vidual suffering, into the very foundations of society. Under these cir­ cumstances, reparations awarding the victims of deportation restitution 259 260 261 262

See Regulations of the Trust Fund, Regulation 44; Ingadottir, supra note 200, at 155. Rule 98(3) of the icc Rules. See Regulations of the Trust Fund, supra note 73, Regulations 43–6, 56. In such situations, ‘law is caught between the past and the future, between backwardlooking and forward-looking, between retrospective and prospective, between the indi­ vidual and the collective’. Teitel, supra note 19, at 6.

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of and return to their property will be of reduced value, unless the judi­ ciary is strengthened to protect their property rights. Awards pertaining to the rehabilitation of the detainees will also be of little use if ethnic cleansing is still taking place or if its underlying ideology still thrives. Even pure monetary compensation will not have much effect for the vic­ tims unless the country’s commercial system is functioning. This confronts the Court with a Hobson’s choice. On the one hand, it can interpret its mandate to award reparations in the form of ‘restitution, compensation, and rehabilitation’ very broadly, to include also measures to improve the societal underpinnings necessary for its reparations to be meaningful. However, if it does so and awards reparations aimed at strengthening the judiciary, ending the hostilities, preventing revision­ ism or improving the commercial infrastructure, it may be forced to leave its judicial role and stray into the political arena.263 On the other hand, if the Court concludes that such forms of reparations fall outside its repara­ tory scheme, it might award reparations in vain. The second paradigm relates to the victims who are left without repa­ rations. In cases of massive criminal enterprises, people may feel that they are victims of similar systems of oppression (here, the policies of ‘ethnic cleansing’). This makes them likely to compare the outcomes of a reparatory scheme.264 In the hypothetical above, the A detainees may well be outraged by the fact that the B detainees receive reparations while they do not, although they allegedly have suffered as much as the B detainees. In addition, the A detainees’ alleged suffering remains untold by the icc and their antagonists purportedly have escaped justice. Any cunning leader of A will know how to use this popular frustration in his propaganda against B and against the icc’s conviction of A’s command­ ers. While having a benign purpose, icc reparations in such case could in effect worsen the conflict and endanger the perceived legitimacy of the Court. Such adverse attitudes against the icc may be further aggravated by the victims of those crimes committed during the ‘ethnic cleansing’ which the icc did not try at all. These victims may feel entirely neglected by the Court. A final point should be made regarding what appears to be a tension between the two paradigms. Assume in the A and B hypothetical that the Court in its background findings still acknowledges that deportation, 263 See supra, text accompanying note 240 and 241, under Section 4.1—First paradigm: nature of the crimes. 264 See de Greiff, supra note 240, at 458.

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unlawful detention and torture have occurred, but that the evidence only supports a conviction for the unlawful detention of B civilians. The icc realizes the problems of the ‘prosecutorial basis’ paradigm and wants to afford reparations to as many victims as possible. To this effect, it inter­ prets the requirement that a victim must suffer harm as a result of a ‘crime’ broadly, and employs a low standard for the required causality.265 The Court reasons that it is clear from its judgment that the crimes for which no conviction was entered (i.e. the deportations, the unlawful detention of A civilians, and the torture in the concentration camps) were committed by someone. The fact that the perpetrators remain unidentified, it holds, does not prevent these events from being consid­ ered ‘crimes’ in the context of reparations. Under this broad interpreta­ tion, all persons who can show that they were victims of the deportations, unlawful detention and torture established in the judgment’s background section are entitled to reparations. The Court orders that these repara­ tions be paid out of the Trust Fund. Were the Court to follow this approach, it would no longer be seized solely with awarding reparations for the (relatively limited) instances of unlawful detention of B civilians. Rather, it would be confronted with the task of designing a comprehensive reparations scheme in response to criminal enterprises affecting entire regions and victimizing over 120,000 people. As a result, the Court would be facing much larger societal factors in determining appropriate reparations, rather than what would have been the case for reparations ‘only’ to the unlawfully detained B civilians. This may make the icc susceptible to the criticism that it is a political body under the ‘nature of the crimes’ paradigm. This is an extreme exam­ ple, but it illustrates how the icc, in trying to remedy the effects of the ‘prosecutorial basis’ paradigm, could glide into the pitfalls of the ‘nature of the crimes’ paradigm. Conversely, if it tries to overcome the problems related to the ‘nature of the crimes’ paradigm, the Court could become vulnerable to criticism under the ‘prosecutorial basis’ paradigm. Assume that the icc constructs its reparations scheme narrowly266 to avoid having to deal with the abovementioned societal implications. This would exclude large groups 265 icc Rules, Rule 85(a). See supra Section 3.4.2—The victims. 266 For example, by a narrow interpretation of the causality requirement that persons must have suffered harm ‘as a result of’ a crime, or by a narrow interpretation of the different forms of reparations explicitly listed in Art. 75(1) of the Rome Statute (‘restitution, c­ompensation, and rehabilitation’).

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of victims, and the Court could become vulnerable to criticism that it is biased in favor of certain victims. However, the problems associated with the application of the icc reparations scheme described above are not insurmountable. The subse­ quent section offers some suggestions on how they may be overcome or at least lessened. 5 Recommendations In conclusion, although Joakim acknowledges that the particularities of each reparations case may render any generalisation ‘difficult, if not inappropriate’, he nevertheless offers three recommendations on how the Court could tackle the specific problems related to the two paradigms outlined above: First, and most importantly, the icc should to the extent possible cooper­ ate with other reparations schemes. As these schemes, of themselves or together with the icc’s reparations scheme, are likely to have a broader reach than icc reparations alone, the problem of perceived bias resulting from the ‘prosecutorial basis’ paradigm could be reduced. Also, if the icc cooperates with other reparations schemes, the burden under the ‘nature of the crimes’ paradigm in making political judgments related to address­ ing the societal implications of reparations would not fall solely on the Court’s shoulders. Cooperation could take place, for example, by making reparations through the Trust Fund to an international organization,267 or by synchronizing reparations with the Trust Fund’s other beneficiary activities. In addition, the un Security Council should consider establish­ ing a compensation commission, separate from but complimentary to the icc’s reparations scheme, when it refers a situation to the icc.268 To enable the implementation of the aforementioned suggestions, the mere fact that 267 icc Rules, Rule 98(4). See supra Section 3.5—Trust Fund for Victims. 268 The International Commission of Inquiry of Darfur made such proposal in its report. Report of the International Commission of Inquiry on Darfur, supra note 215, at paras. 570, 590–603. In its referral, however, the un Security Council was content in ‘recalling Articles 75 and 79 of the Rome Statute and encouraging States to contribute to the icc Trust Fund for Victims’. S/RES/1593 (2005), preamble, para. 3. For a critical analysis of this aspect of the referral, see N.J. Udombana, ‘Payback Time in Sudan? Darfur in the International Criminal Court’, 13 Tulsa Journal of Comparative and International Law 1 (2005), 45–6 (‘With this abdication of responsibility by the unsc, the icc now carries the burden of ordering reparations and compensations for victims of the Darfur mayhem’.).

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a situation has been referred to the icc should not necessarily be under­ stood as the final word on reparations regarding that situation. Second, in order to further stem misconceptions about the icc’s neu­ trality as a result of its reparations distribution, the Court and the Trust Fund should continue to take their outreach programs seriously.269 Those programs should not be limited to raising funds, but should also make every effort to explain the basis for the reparations as well as the mandate and role of the Court in the relevant region. Third, within the icc’s reparations scheme itself, proper assessment is essential. In assessing reparations, the Court will have to analyze situa­ tions before it beyond ‘the scope and extent of any damage’.270 It may have to consider questions such as the following: would collective repara­ tions to only one group of victims of a conflict re-ignite the conflict; would monetary compensation to victims be in vain because there are no societal structures within which the victims can invest and avail them­ selves; or, would rehabilitation be useless if societal attitudes have not changed? In short, care should be taken to award reparations in a way that benefits victims the most in a long term perspective. To properly assess these and other questions related to broader societal implications, the Court should consult the Trust Fund and external experts in all cases concerning collective reparations, and give great deference to their expertise. If the icc determines that proper reparations would be too complex for it to handle (and cooperation with other reparations schemes not readily feasible), then, as a last resort, it may consider exercising its discretion to not make any specific reparations awards. In such a case, the Court could recognize that its judgment gives rise to reparations, but defer the decision on the exact awards to a more proper forum.271 Joakim’s suggestions contain a number of highly relevant elements. His first recommendation contains elements within the icc’s remit of control (in 269 See Regulations of the Trust Fund, supra note 73, Regulations 51–2; www.icc-cpi.int/ en_menus/icc/structure%20of%20the%20court/outreach/Pages/outreach.aspx (last accessed 1 August 2014). 270 icc Rules, Rule 97(1). 271 For example, in massive cases pertaining to a region where hostilities have ceased and the civilian administration is beginning to function again, referral to local authorities may be an option. Cf. the approach taken in the ad hoc tribunals, supra note 10. But see supra note 250; Ferstman, supra note 71, 671 (noting the vast amounts of damages awarded under Rwanda’s laws recognising reparations to victims of genocide and emphasising that lack of funds has inhibited their enforcement).

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coordination with the Trust Fund) as well as some that are outside of the Court’s control and thus more uncertain to achieve. Picking up one particular sub-recommendation dealing with an internal element, the idea of ‘synchro­ nizing reparations with the Trust Fund’s other beneficiary activities’, Joakim in fact outlined a possible solution to make the Court’s reparation regime viable, balanced, and effective even if there are no external factors supplementing the scheme. A reparations order in a given case that is both limited in scope (due to limited resources) and selective (due to the limited amount of crimes sub­ ject to conviction) could be backed up through (funds from) the Trust Fund’s assistance mandate. Further resources could be injected into the implementa­ tion of a reparations award in such a case (in particular if the convicted person has little or no disposable means) to realize measures that go beyond those within the confines of the reparations-related scheme. Further assistance measures could be added to the reparations-related activities, rendering the overall victim redress more comprehensive and effective in scope and reaching out to an entire victim community not limited to icc convictions. However, caution is warranted: the above solution would lead to two parallel reparations schemes: as part of the first scheme, beneficiaries of a reparations award would have gone through a verification process as regards their entitlement to repara­ tions out of the means of the convicted person. Those beneficiaries would have to be victims of the crimes subject to the conviction in a given case; their link to the crime would have to be proven.272 As part of the second, parallel scheme, victims who are part of similar or related victim communities would receive comparable ‘reparation’ awards despite not having undergone the formal veri­ fication process as a reparations recipient. While this would prima facie not appear to bear a legal problem, it still feels awkward in terms of efficiency and transparency. In addition, how would victims differentiate between those ben­ efitting from the convicted person’s proceeds and those enjoying awards that come from the Trust Fund’s assistance mandate? As a further means to render reparations more meaningful, principles estab­ lished pursuant to Article 75(1) of the Rome Statute may be used as guidelines for ad hoc arrangements with national or international authorities where the large number of victims paired with the limited assets (or the absence thereof) of the convicted person make reparations from resources accessible to the Court insignificant.273 States’ general cooperation duties under Article 75(5) of the Rome Statute as well as the Trust Fund’s possible additional resources from 272 Lubanga Reparations Decision, supra note 35, paras. 247–50. It bears noting that the Trial Chamber’s finding in this respect is currently under appeal. 273 Donat-Cattin, ‘Article 75’, in O. Triffterer, supra note 20, para. 10.

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voluntary contributions can add to a viable reparations regime in a given case. However, it remains one of the icc’s biggest challenges to generate action on the part of national or international authorities to initiate wider reparations schemes, particularly in the current geopolitical climate and general financial austerity; further, it remains to be defined what part the Court could play in this. With respect to Joakim’s second recommendation, some caution has to be applied in the Trust Fund’s outreach mandate and activities: Section 2 of the Trust Fund’s Regulations limits the Trust Fund’s outreach activities to those geared at raising voluntary contributions.274 Further, the Trust Fund engages in a number of outreach activities predominantly explaining its own role and mandate in the proceedings of the Court, regarding both its assistance and the reparations mandate.275 Outreach regarding the Court’s function and mandate with regard to victim participation and reparations is generally carried out by the Registry’s Public Information and Documentation Section (pids) in close coordination with the Victim Participation and Reparations Section (vprs).276 pids is adequately mandated to do so as part of an organ of the icc alongside vprs and well represented in the field in all relevant situation countries. The Trust Fund’s role should not be confused with vprs’ strictly Court-related mandate assisting victims and groups of victims to participate in the proceed­ ings pursuant to Rule 89 of the icc Rules. Having said that, Joakim’s point still stands that the Court and the Trust Fund are well advised to coordinate their messages and outreach activities in order to maximise transparency and effec­ tiveness of the icc’s impact on victim communities. Finally, Joakim’s third recommendation regarding a case-specific assess­ ment of most appropriate reparations measures has become a jurisprudential reality in that the Lubanga Trial Chamber established the principle of propor­ tional and adequate reparations for icc reparations proceedings.277 Further, the Chamber recommended that, pursuant to Rule 97(2) of the Rules, a multi­ disciplinary team of experts be retained to provide assistance to the Court, inter alia, in order to help identify the most appropriate form of reparations in the case at hand.278 The Chamber sought the Trust Fund’s input on the most appropriate form of reparations and followed its recommendations.279 In 274 Regulations of the Trust Fund, supra note 73, Regulations 51–3. 275 See only the multitude of projects of the Trust Fund as outlined in detail on its homepage at www.trustfundforvictims.org/projects (last accessed 1 August 2014). 276 See Regulation 86(9) of the Regulations of the Court. 277 Lubanga Reparations Decision, supra note 35, paras. 242–6. 278 Ibid., para. 263. 279 Ibid., paras. 264, 274–5.

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doing so the Lubanga Chamber has at no point been accused of letting politi­ cal aspects govern its reparations considerations, a danger that to date has been successfully avoided. 6

Conclusion—‘Is the Court Ready for the Job?’

Joakim’s leading motive was the question whether the icc ‘is ready for the job’. He observed the icc’s reparations regime from a purely theoretical angle as even initiatives pursuant to the Trust Fund’s assistance mandate commenced only in 2008;280 the first decision on reparations under Article 75 of the Rome Statute was rendered only in 2012. Many of his conclusions have proven true, many of the problems he saw at the horizon have indeed materialised, and some of them have been solved in a manner consistent with his prescient rec­ ommendations. Interestingly, even with the Lubanga Reparations Decision, the issue of reparations at the icc still remains purely hypothetical since even the Lubanga reparations regime as proposed by the Trust Fund and accepted by the Trial Chamber281 has not (yet) been put in place due to pending appeals proceedings. As briefly mentioned earlier,282 the Court and with it the Trust Fund (and arguably also States Parties) have to carefully manage victims’ expectations in such a delicate field of reparative justice. If reparations are applied the wrong way they can generate the very adverse effect of what they were meant to achieve and put oil on the fire of remaining societal divide rather than satisfy­ ing victims and instilling peace and reconciliation by satisfaction and forgiveness. At last, I return to the first question raised in the title of this chapter: ‘prom­ ise for victims or recipe for failure?’ The analysis undertaken above provides an ambivalent picture: the icc reparations scheme in theory provides elements of both—it can bring equitable and meaningful redress to victims but it also bears the potential for failure. Mindful of the current—early—stage in the application of the icc’s reparations scheme, the question cannot be answered 280 The Trust Fund for Victims, Programme Progress Report November 2009, http://www .trustfundforvictims.org/sites/default/files/imce/TFV%20Programme%20Report%20 November%202009.pdf (last accessed 1 August 2014). 281 Lubanga Reparations Decision, supra note 35, paras. 281–8, referring to the Trust Fund’s Observations on Reparations in Response to the Scheduling Order of 14 March 2012, Case No. ICC-01/04-01/06-2872, 25 April 2012, paras. 181–217. 282 See supra Section 3.6.2—Financing of reparations out of the Trust Fund’s resources.

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conclusively just yet. Any attempt to do so would be prone to failure much more than the scheme itself. In contrast, Joakim’s final conclusion is still as valid now as it was six years ago, and I want to end with these words of his: The icc is not an inappropriate forum for ordering reparations, and the drafters of the Rome Statute adopted this position when negotiating the multi-lateral treaty.283 Rather, the icc may be an insufficient forum to award reparations in massive cases. Therefore, the answer to the question posed, ‘Is the Court ready for the job?’ is not ‘yes’ or ‘no’. Instead, it is sug­ gested that the answer is: ‘Yes, but it would need some assistance’. This conclusion is not at odds with the ‘historical possibility [which the creation of the icc has given] to the world community to recognise and enforce the right of victims to reparations’.284 It is precisely with this right in mind that the icc should exercise its power to award reparations diligently, and the recommendations herein may assist the Court in real­ izing this objective. 7

Final Note

In its 3 March 2015 appeal judgment in the Lubanga case,285 the Appeals Chamber defined a number of principles regarding reparations to victims before the icc and the tfv’s role, established requirements for a reparations 283 The International Law Commission had proposed to delete the provision on reparations from its 1994 Draft Statute, arguing that the icc was not the appropriate forum in which to order reparations. Report of the International Law Commission on the Work of its FortySixth Session, Draft Statute for an International Criminal Court, p. 60 (May 2–July 22, 1994), un Doc. A/49/10 (1994). This proposal was obviously rejected, seeing as the Rome Statute, as adopted, provides for reparations. 284 Donat-Cattin, ‘Article 75’, in O. Triffterer, supra note 20, para. 1. 285 The Prosecutor v. Thomas Lubanga Dyilo, Judgment on the appeals against the “Decision establishing the principles and procedures to be applied to reparations” of 7 August 2012 with AMENDED order for reparations (Annex A) and public annexes 1 and 2, Case No. ICC-01/04-01/06-3129, 3 March 2015 (‘Appeals Chamber’s Reparations Judgment’), follow­ ing its judgment on The Prosecutor v. Thomas Lubanga Dyilo, Public redacted Judgment on the appeal of Mr Thomas Lubanga Dyilo against his conviction, Case No. ICC-01/04-01/063121-Red, 1 December 2014; id., Judgment on the appeals of the Prosecutor and Mr Thomas Lubanga Dyilo against the “Decision on Sentence pursuant to Article 76 of the Statute”, Case No. ICC-01/04-01/06-3122, of the same date.

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order, and amended the Trial Chamber’s Reparations Decision accordingly.286 The Appeals Chamber also instructed the tfv to draft an implementation plan to implement collective reparations.287 Many of the Appeals Chamber’s authoritative determinations on these topics are of relevance to the discussion in this chapter and shall therefore be briefly outlined below in order to provide the reader with a full picture of how Joakim’s prescient analysis has been set­ tled by the Appeals Chamber of the icc—more often than not in a manner as he had predicted or recommended. Importantly, the Appeals Chamber authoritatively defined that ‘principles relating to reparations’ in article 75(1) of the Statute should be general con­ cepts that, while formulated in light of the circumstances of a specific case (as in Lubanga), could nonetheless be applied, adapted, expanded upon, or added to by future Trial Chambers. These general concepts are to be distinguished from a Chamber’s order for reparations, i.e., the Chamber’s ‘holdings, determi­ nations and findings based on those principles’.288 The Appeals Chamber therefore did not deny that principles could be developed by Trial Chambers in their jurisprudence as long as they were formulated in a way and spirit of an abstract, general provision allowing for future application in other cases.289 The Appeals Chamber confirmed a number of principles governing repara­ tions for victims, including the fact that all victims are to be treated fairly and equally as regards reparations,290 irrespective of whether they participated in the trial proceedings. It also confirmed the Lubanga Trial Chamber’s find­ ing  that, whenever possible, reparations should reflect local cultural and customary practices unless these were discriminatory or otherwise to the detriment of victims’ access to redress291—much along the lines of Joakim’s considerations.

286 Appeals Chamber’s Reparations Judgment, paras. 44–243; The Prosecutor v. Thomas Lubanga Dyilo, Order for Reparations (annexed to the Appeals Chamber’s Reparation Judgment), ICC-01/04-01/06-3129-AnxA, 3 March 2015 (‘Lubanga Reparations Order 2015’). 287 Appeals Chamber’s Reparations Judgment, paras. 237–43, 252; Lubanga Reparations Order 2015, paras. 53 et seq. 288 Appeals Chamber’s Reparations Judgment, paras. 3, 50. 289 The Appeals Chamber did, however, rectify that the Trial Chamber’s findings on the appli­ cable standard and burden of proof for victimhood are not ‘principles’ but rather the Trial Chamber’s determinations. Ibid., para. 77. 290 This included measures to reintegrate former child soldiers in the affected societies as well as a gender-inclusive approach to the design of reparation measures. Ibid., paras. 199, 202–3. 291 Lubanga Reparations Order 2015, para. 47.

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As the centerpiece of its judgment, the Appeals Chamber established a number of minimum elements required for a reparations order pursuant to article 75 of the Statute. It held that such an order had to contain, at a mini­ mum, five essential elements: (1) it must be directed against the convicted per­ son; (2) it must establish and inform the convicted person of his or her liability with respect to the reparations awarded in the order; (3) it must specify, and provide reasons for, the type of reparations ordered, either collective, individ­ ual or both, pursuant to rules 97(1) and 98 of the Rules of Procedure and Evidence; (4) it must define the harm caused to direct and indirect victims as a result of the crimes for which the person was convicted, as well as identify the modalities of reparations that the Trial Chamber considers appropriate based on the circumstances of the specific case before it; and (5) it must identify the victims eligible to benefit from the awards for reparations or set out the criteria of eligibility based on the link between the harm suffered by the victims and the crimes for which the person was convicted.292 These minimum requirements were presaged by both Joakim and the author in this chapter. First, the Appeals Chamber emphasised that the right to reparation derived from the personal liability of the convicted person293 and any reparation order had to be made against the convicted person, even if facilitated through the tfv. Moreover, the right to reparation was irrespective of the monetary situation of the convict.294 The Appeals Chamber held that reparation orders had to establish and inform the convicted person of this per­ sonal liability with respect to the reparations awarded in an order. The con­ victed person’s inability at the moment of conviction to pay (or contribute to) any reparation awards to victims did not relieve him or her from the duty to pay if funds became available at a later stage. Consequently, if the tfv advanced its resources in order to enable the implementation of a reparations order, the tfv would be able to claim those advanced resources from the convicted per­ son at a later date if any funds became available.295 Another debated issue after the Lubanga Reparations Decision was the question whether the tfv had full discretion in its determination, pursuant to regulation 56 of the Regulations of the Trust Fund, whether or not to allocate its ‘other resources’ received through its assistance mandate for purposes of complementing reparations awards. The Appeals Chamber held that that this

292 293 294 295

Appeals Chamber’s Reparations Judgment, para. 30. Ibid., para. 99. Ibid., paras. 76, 105. Ibid., para. 5.

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determination fell solely within the discretion of the tfv’s Board of Directors— and not into the competence of the Chamber.296 The Appeals Chamber found that a convicted person’s liability for repara­ tions had to be proportionate to the harm caused and, inter alia, his or her participation in the commission of the crimes for which he or she was found guilty, in the specific circumstances of the case.’297 This finding perfectly reflected Joakim’s assessment that the perpetrator’s form of liability should be somehow considered in the assessment of reparations. On the standard of cau­ sation between crime and harm, the Appeals Chamber validated the Lubanga Trial Chamber’s ‘approximate cause’ standard, albeit without finding that the eccc’s stricter standard was erroneous.298 Regarding the question of disbursement of reparations in a collective versus an individualised fashion, the Appeals Chamber highlighted the fact that a high number of victims was an important factor in determining that repara­ tions on a collective basis might be more appropriate299—as previously argued in this chapter. The Appeals Chamber held that, in the case of collective repa­ rations, the Trial Chamber was relieved of its duty to rule on the merits of individual requests for reparations, solving a major logistic and resource problem.300 The Appeals Chamber confirmed the principle that reparations were to be awarded based on the harm suffered as a result of the commission of any crime within the jurisdiction of the Court.301 This includes that any reparations are awarded to the specific crimes subject to conviction,302 as has been postulated in this chapter. In particular, the Appeals Chamber assessed whether sexual violence could be defined as a ‘harm’ resulting from the crime of conscription and use of child soldiers for which Lubanga was convicted. It considered that sexual violence was not considered by the Trial Chamber as a salient feature of the particulars of the case, or in its consideration of the gravity of the crimes 296 297 298 299

Ibid., paras. 4, 111, 114. Ibid., paras. 6, 118. Ibid., paras. 126–9. The Appeals Chamber confirmed the Trial Chamber’s findings in this regard. Appeals Chamber’s Reparations Judgment, para. 153. The Appeals Chamber also clarified which legal regime in the icc Rules applies to which type of reparations. See ibid., para. 149. 300 Appeals Chamber’s Reparations Judgment, paras. 152, 154–6. 301 Ibid., paras. 169 et seq. 302 Appeals Chamber’s Reparations Judgment, para. 199. For the standard of proof, the Appeals Chamber held that the standard of ‘balance of probabilities’ is accurate and simi­ larly applicable for reparations ordered directly against the convict or through the tfv. Appeals Chamber’s Reparations Judgment, paras. 83–4.

520

Ambach

for which Lubanga was convicted. It thus held that sexual violence fell outside of the remit of reparations in this particular case.303 Interestingly, the Appeals Chamber went on to consider that its finding did not preclude victims of sex­ ual violence from being able to benefit from assistance activities of the tfv pursuant to its assistance mandate.304 In conclusion, the Appeals Chamber’s Reparations Judgment not only marks a milestone regarding the issue of reparations before the icc, but also attests to the professional foresight of Joakim in these matters. 303 Appeals Chamber’s Reparations Judgment, para. 199. 304 Ibid.

Index Afghanistan 1, 3, 9, 15, 54, 56n10, 59, 71, 103, 105, 136–199, 138n10, 139n11, 139n13, 140n15, 140n17, 141n19, 141n20, 142n22, 143n23, 143n25, 144n29, 148n42, 150n45, 150n46, 150n48, 151n51, 153n63, 154n68, 154n70, 157n80, 158n83, 159n87, 159n88, 159n89, 160n93, 161n97, 161n98, 162n100, 162n101, 163n105, 163n107, 167n3, 168n7, 169n13, 169n17, 170n23, 171n25, 179n73, 194n154, 244n57, 244n59, 282n104, 419n133, 419n134, 419n136, 419n138 Afghan National Security Forces 141, 144, 147, 148, 151, 162, 164, 193 African Charter on Human and Peoples’ Rights 210, 210n71, 210n72, 227n184, 228n188, 333, 333n5, 337n185, 388n9, 394n34, 465n40 African Court on Human and Peoples’ Rights 4, 331–382, 333n5, 333n6, 334n15, 339n37, 379n181, 380n198, 381n200 Al-Nusrah Front 130, 131 Al-Qaeda 54n4, 58n15 Al-Qaida in the Islamic Maghreb 113 American Articles of War 31 American Civil War 17, 25–27 American Indian Wars 15, 27 Analytical Support and Sanctions Monitoring Team (supporting the work of the Al-Qaida Sanctions Committee) 102n2, 107n25, 110n37, 122n90, 125n102 Ansar Eddine 123, 123n100, 124, 131 Armed conflict 53–67, 71–100, 249–259, 331–382, 385–427 Armed opposition groups 139, 268–271 Arms embargo 102–105, 111, 132 Assets freeze 103–105, 105n15, 113, 119–122, 119n78, 126 Badlands 18, 23 Battle of the Little Bighorn 19, 19n27, 30 Big Foot. See Spotted Elk (Big Foot) Binding obligations 333, 349n79, 370–371 Black Hills Gold Rush 15

Capacity building 43, 122, 193, 193n151, 400n57 Casualties 3, 7, 24n56, 29, 32, 54, 54n6, 55, 55n8, 65, 67, 129, 137, 140–149, 151–158, 154n68, 158n84, 159n88, 160–164, 187, 193–196, 264–266, 273, 274, 277, 278, 283, 286, 290, 292, 293, 407n85, 419 Chicago Principles on Post-Conflict Justice 45, 45n28 Chief Sitting Bull 17 Children and armed conflict 2, 71, 73, 73n13, 74–84, 80n53, 84n70–n72, 85, 86, 86n80, 88, 95, 96, 96n121, 97n125, 99, 100, n54, n126 Child soldiers 73n13, 75, 77, 78, 80, 81, 88, 395, 465, 465n67, 467, 471, 487, 587n155 Civilians 2, 19, 34, 54n4, 71, 101–135, 136n1, 166–200, 233n7, 261n2, 297–382, 393n29, 459n16 Code of Crimes against International Law 173 Combatants 6, 6n1, 28–30, 33, 54, 60, 64, 64n38, 65n39, 66, 72, 76, 77, 97, 137, 138, 141, 142, 146, 148, 157, 161, 163, 175, 176, 188, 213n92, 232, 241, 250n87, 260, 264, 268, 290, 292 Command responsibility 2, 8n6, 31, 31n71, 32, 34, 35, 35n4, 37, 47, 48, 48n30, 50, 51, 257, 287, 298n5, 478–480 Common Article 3 of the Geneva Conventions 63, 200, 258 Compensation [indemnisation] 5, 6, 16, 44, 125, 152, 188, 193, 194, 209, 331, 345, 361, 365n143, 381, 381n201, 386–389, 392, 392n25, 394, 394n32, 396, 396n41, 398, 402, 405, 406n82, 409, 416, 417n120, 422, 427, 457n10, 459, 461, 462, 464n40, 465n40, 466n49, 467, 469–473, 488, 495n212, 499, 499n227, 501, 502, 502n240, 508, 510n266, 511, 511n268, n34 Complementarity 43, 46, 87n86, 91–95, 247, 248 1864 Convention for the Amelioration of the Condition of the Wounded in Armies in the Field 27, 188n137

522 Corfu Channel case [arrêt du Détroit de Corfou] 250n87 Crimes against humanity 2, 9n6, 38, 38n10, 41n16, 42, 42n21, 44, 89, 200, 205, 216, 217, 217n107, 218–223, 225, 225n175, 226, 230, 239n38, 340n42, 353n94, 360, 370, 428n1, 457n6, 459n16, 500, 500n229, 504, n109, n231 Criminalisation 37, 200, 216, 217, 219–221, 223, 225, 228, 230, 271, 281–283, 281n97 Customary international law [droit international coutumier] 4, 51, 73, 76, 174, 175, 187n131, 188n134, 190, 202, 205, 220, 235, 240n40, 246n68, 263, 268, 272, 281, 282n104, 298n7, 299, 301, 304, 308, 311n71, 318–320, 322, 323, 327–330 Denial of fair trial 200, 205, 206, 216, 220, 223, 226n180, 227 Deterrence 3, 39, 40, 43, 92, 194, 248, 473 Diallo case [l’arrêt Diallo] 453 Diplomatic protection [protection diplomatique] 442n44 Direct participation in hostilities 2, 63–64, 64n36, 98, 99, 269, 269n39, 270, 270n41 Disproportionate attack 4, 261–296, 272n49, 286n114, 287n123, 289n132, 292n144 Distinction 6, 46, 51, 51n36, 55, 55n9, 58, 59, 64, 75, 77, 98, 167, 242n49, 250, 263–265, 268, 268n28, 268n32, 269, 271, 276, 307, 308, 311–313, 362, 479, 480 Drones 2, 53–67, 54n6, 54n7, 56n10, 150n48 Duty to prevent 9n6, 31n71, 35, 35n4, 51 Duty to punish 32, 48, 49, 51, 51n36, 389 Enforcement of international humanitarian law 71, 71n1, 73, 74, 78, 81, 83, 85, 87, 91, 99, 100 European Court of Human Rights 106n18, 214n96, 223, 331, 335n19, 337, 341, 341n47, 342n57, 342n52, 343n58–n60, 350n85, 351, 354, 356n111, 359n123, 360n124, 361, 361n131, 366, 366n145–n148, 367n149, 367n150, 369n159, 370n160, 372, 373n170, 373n173, 376n180, 381, 385, 486n149 Fair trial 3, 39, 200–230, 201n4, 202n5, 205n32, 205n34, 205n37, 209n69, 210n73, 210n75, 211n76, 213n89, 215n103, 216n104,

Index 224n165, 224n167, 225n176, 226n180, 228n192, 229n195, 229n196, 257n193, 363n134, 366, 368, 377 Federal Public Prosecutor (Germany) 168n6, 183 Financial Action Task Force 120 Forces 8, 8n6, 9, 27n66, 37n7, 39, 41, 56–59, 57n12, 58n15, 61, 64, 67, 86, 88, 90, 95n117, 110n37, 112, 120, 130, 130n127, 134, 136–138, 136n1, 139n11, 140–142, 144, 147, 151n55, 153, 154, 163, 167, 168, 171, 173, 179, 182, 184, 196, 206n48, 213n94, 234n11, 239n34, 239n38, 247n75, 261n3, 290n133, 292n144, 293n150, 295, 301, 333n4, 336, 336n26, 337n29, 338n32, 345n65, 352n92, 354, 360, 377, 379, 398n48, 399n54, 400n58, 401n62, 446, 447, 456n2, 460, 460n20, 467n55, 501n235 Freiburger Juristenerklärung 166n1, 172n32, 179n71 Geneva Conventions 27, 36, 51n36, 55n9, 63, 74n16, 75n28, 76–82, 76n32, 82n61, 87, 90, 95, 96, 98, 99, 137n6, 161n2, 187–190, 200, 206, 206n47, 206n48, 208, 209, 215, 223, 227, 230, 233, 235, 235n17, 236, 236n18, 240, 240n40, 245, 245n64, 245n65, 246, 246n71, 251, 257, 258, 258n126, 259, 259n130, 263n6, 264, 266, 267, 268n29, 271, 282, 298, 299, 319, 330, 388n9 Genocide Convention 40, 42, 312n76, 319, 319n120 Ghost Dance 16, 17 Goldstone Report 262n5, 282, 282n100, 282n103, 294, 294n154 Grave breaches 82, 90, 200, 206, 208, 223, 235, 236n18, 240, 243n52, 251, 257–259, 266, 266n22, 267, 271, 283, 298n6, 319, 374n175 Gravity 4, 5, 216, 217, 221–223, 229, 333, 335, 335n18, 336, 357, 360–362, 364n139, 365, 379, 392n24, 409, 417, 481, 485, 489 Hors de combat 188, 282n102 Human rights 2, 34n1, 38, 53n1, 71, 101, 137n6, 170, 200, 231, 292, 298n4, 331–382, 385–427, 442n44, 464n40

Index Imminence 62, 359 Imminent risk 357–360, 369 Independent judiciary 43, 45–47 Individual criminal responsibility 1, 31, 36, 39, 47, 48, 185, 190, 201, 202, 206, 223, 229, 232, 236, 236n21, 239, 258, 267, 271, 272, 283, 294n153, 295, 457n6 Individual petition 371–373, 375, 376n180, 378, 381n201 Inter-American Court of Human Rights 335, 337, 338, 344n63, 350n85, 351, 351n89, 354n103, 355n103, 359n121, 359n122, 362n133, 363n135, 364n139, 486n149 Interim measures 331, 332n1, 335–338, 335n15, 335n19, 337n31, 338n33, 341, 341n46, 341n47, 342, 343, 343n58, 343n59, 343n60, 346n71, 347, 349n80, 351, 354, 354n99, 355n103, 356n111, 359–361, 361n131, 363n135, 366n145, 366n147, 366n148, 367, 367n150, 369n159, 371–373, 373n174, 374n174, 374n175, 375–377, 375n178, 375n179, 381, 381n201 International Court of Justice [Cour internationale de Justice] 4, 5, 240n40, 250n87, 264n12, 298n7, 299, 300, 307n47, 310, 316n106, 332n1, 336, 338, 345, 354n99, 391 International Criminal Court 4, 9n6, 44, 71, 73, 81n60, 88, 88n89, 90n102, 92n106, 93n109, 175, 189, 200n1, 231n3, 233, 233n8, 235n16, 243n52, 258n122, 262, 267n23, 281n98, 284n109, 288n128, 292n144, 297, 298n3, 299n8, 316n106, 322n136, 323n139, 330, 352, 388n6, 388n9, 393, 394n32, 395n40, 428n1, 457, 458n13, 460, 460n20, 469n71, 477n109, 479n121, 487n151, 502n242, 505n252, 511n268, 515n283 International criminal justice 7, 7n4, 33, 92n109, 94n112, 94n114, 231, 242n50, 297, 316n106, 319n121, 330, 456, 457 International criminal law 2–4, 7, 26n61– n63, 34, 36, 39, 40, 47, 71–100, 81n60, 91n103, 167, 173, 175, 183, 188–191, 194, 199, 204n31, 215, 217, 217n110, 223, 229, 231–260, 243n52, 246n68, 251n91, 253n100, 258n152, 260n132, 261–296,

523 295n156, 298n6, 299n8, 300, 309, 311, 316, 318, 325, 328, 331, 388n9, 394, 395, 404, 456n5, 476n101, 500n228 International humanitarian law 2, 35n2, 55, 71, 137n6, 167, 200, 231–260, 261n1, 297, 331, 385n2, 456n2 International human rights law [droit international des droits de l’homme] 2, 3, 5, 42n18, 45n28, 56, 60, 61, 63, 74, 87n86, 112, 114, 115, 135, 215, 231, 233n6, 240, 244n61, 257n119, 382, 385n2, 387, 389, 391, 392n24, 393n28, 393n29, 395, 410n98, 465n43 International Law Commission [Commission du droit international] 322, 442n44, 515n283 International Security Assistance Force in Afghanistan 167 International Security Assistance Forces 138 Inter-state cases 375, 375n179, 376, 380 Irreparable harm 5, 331, 332n2, 333, 335–338, 360–363, 360n127, 365n141, 367, 367n154, 368, 369n158, 379 James W. Forsyth, Colonel 18, 31 Judicial protection 113, 204, 205 Justice 1, 13, 33, 62, 87, 103, 161n98, 172, 201n3, 231n2, 262, 297, 332n1, 385, 428–455 Kill lists 66 Klein, Colonel 168n6, 174, 176, 179, 179n73, 181–188, 190, 196, 198, 199 La Grand Judgment of the International Court of Justice 434n22 Lakota 14–24, 22n36, 22n39, 24n56, 28–30, 29n68, 32, 32n75, 33 Lashkar-e-Tayyiba 128 Law of armed conflict 53–67, 244n61, 245n62, 247n72, 247n74, 249n85, 251, 252, 254n106, 261n3, 292n149, 310n66 Legal advisers 243, 246, 246n71, 247, 259 Libya case of the African Court on Human and Peoples’ Rights (In the matter of African Commission on Human and Peoples’ Rights vs. Great Socialist People’s Libyan Arab Jamahiriya, Appl. No. 4/2011) 332n3 Lieber Code 25, 26, 26n64, 28, 30, 30n70, 31, 55n9

524 Mamatkulov Judgment of the European Court of Human Rights 361n131, 366n145 Military operations law 254–256 National Human Rights Institutions 385– 427, 402n68, 402n70, 408n110, 413n108, 415n112, 415n114, 415n115, 416n116, 416n118, 418n128 Native American 1, 14–16, 18, 23, 25, 27–29 Non-combatants 6, 28, 30, 33, 54, 60, 64, 66, 138, 142, 148, 150, 157, 161, 163, 188, 232, 260, 270, 290, 292 North Atlantic Treaty Organisation 139n11 Nullum crimen sine lege 300, 301 Obligation to act 36 Ombudsperson (of Al-Qaida Sanctions Committee) 108, 114, 115n59 Operation Enduring Freedom 139, 139n11, 141, 154n70, 167, 167n3, 170n23 Peace 2, 3, 17, 27, 36, 37, 39, 41, 44, 44n24, 44n25, 45, 46, 52, 87n86, 91–95, 92n105, 92n109, 101–103, 105, 108, 110–112, 116, 123, 124, 129, 134, 135, 138, 138n8, 139n12, 140, 140n15, 167, 168, 171, 172, 189, 198, 200, 223, 230, 231n2, 237n25, 243, 250n87, 268n28, 292n150, 311n74, 319, 340, 344, 344n63, 352, 360n127, 363, 364n136, 367, 368, 415, 415n114, 415n115, 417–419, 418n127, 418n130, 421, 421n147, 457n6, 494n199, 498n226, 515 Permanent Court of International Justice [Cour permanente de Justice internationale] 302n21, 303, 306n42 Pine Ridge Indian Reservation 17, 23 Plains Wars 14–16 Prima facie jurisdiction 353–355 Principle of distinction 6, 55n9, 58, 264, 264n12, 265, 268, 268n28, 268n32, 270 Principles relating to reparations 394n32, 461–464, 463n31, 485n144 Proportionality 6, 55, 58, 60, 64–66, 95n117, 159, 247n76, 250, 255n110, 263, 265n16, 266, 268, 268n30, 273, 274, 276n75, 277, 278, 280, 282, 282n104, 290n133, 291n137, 292, 292n144, 293, 293n150, 293n152, 295, 296, 296n158

Index Proprio motu competence 351, 352 Prosecutor v. Enver Hadžihasanović 48n30 Prosecutor v. Milomir Stakić 39n12 Prosecutor v. Naser Orić 48–50 Prosecutor v. Radislav Krstić 40n13, 222n157, 504n248 Prosecutor v. Slobodan Milošević 13 Prosecutor v. Stanislav Galić 51n36, 272n51 Protected persons 98, 158, 185–187, 215, 299, 299n11 Protection 3, 26n64, 34, 53n1, 71, 109, 136n1, 167, 200, 232, 261n2, 297, 331–382, 388n9, 429n3, 466n49 Provisional measures 4, 5, 312n76, 331–382, 332n1–n3, 335n18 Rehabilitation 6, 392, 392n25, 394n32, 394n34, 395, 396, 398–402, 399n57, 401n60, 401n61, 401n63, 402n65, 422, 459, 461, 465n40, 466n49, 467, 470–473, 488, 493, 502, 508, 510n266, 511 Reparations [réparation] 155, 189n140, 194, 307n52, 365n43, 385, 391–397, 428, 456n2, 474–488 Reparative justice 425, 455, 457, 499, 515 Repression (of violations of international humanitarian law) 3–4, 232–249 Responsibility 1, 5, 8n6, 9, 25, 31–52, 35n4, 38n9, 38n10, 48n30, 89, 97, 98, 111, 112n46, 140, 147, 151n54, 158, 160, 162, 168, 170, 179n73, 182n56, 183, 183n101, 185, 190, 198, 201–209, 223, 229, 236, 239, 240, 246n68, 247, 248, 257, 258, 267, 272, 283, 287, 290n133, 294, 294n153, 295, 298n4, 298n5, 299n10, 317, 372, 388, 388n7, 393n28, 418n128, 456n2, 457n6, 472n86, 478–480, 479n116, 495n212, 498n222, 500, 501n235, 502, 503, 503n242, 506, 507, 511n268 Responsibility to Protect 34, 38–44, 38n9, 38n10, 111, 112n46, 418n128 Restitution 5, 388, 389, 392n25, 394, 394n32, 398, 405, 429, 445, 445n62, 462, 466n49, 467, 469–473, 488, 501, 508, 510n266 Revolutionary War 31 Right to a defence 230 Right to life 78, 112, 112n50, 113, 210n73, 343, 359, 362, 363, 365n143, 367–369, 369n159

Index Right to request provisional measures 347–350 Roadblock, killing at 179–181 Rwanda 4, 9, 34, 41–43, 42n19, 42n20, 88, 136, 189, 190n141, 207n49, 231n3, 297, 298n3, 298n7, 334n7, 337n10, 355, 355n105, 391n20, 404, 404n73, 405, 421, 421n148, 422, 423n148, 426, 455, 457, 504n248, 504n250, 512n271 Sanctions, targeted 3, 101–110, 110n36, 116–135, 125n103 Scope of protection 298, 344n62, 363–370 Security Council 3, 38, 38n10, 57, 63, 72n4, 73n13, 82, 84–86, 86n80, 87, 87n82, 88, 90, 91, 93–97, 97n126, 101–118, 102n1, 104n10, 121–123, 123n100, 124, 126n109, 127, 128, 130, 130n127, 131, 135–138, 138n9, 139n12, 140, 142–144, 164, 167, 167n2, 168, 168n5, 172, 173, 175n46, 180, 206n49, 236, 237, 237n25, 271n45, 297, 340, 340n42, 352, 360, 367, 415, 458n14, 495n212, 504, 506, 511, 511n268 Security Council Committee pursuant to resolutions 1267 (1999) and 1989 (2011) concerning Al-Qaida and associated individuals and entities 128n115 Self-defence 2, 55, 58, 61–64, 167, 171, 172, 179, 180 Siege of Sarajevo 274, 280 Sioux 14–16, 15n4, 15n5, 15n7, 16n10, 25, 29 Sources of international law 4, 297–330, 302n18, 306n45, 308n56, 317n111, 388n9 Spotted Elk (Big Foot), 17–20, 19n26, 23 Standing Rock Reservation 17 State responsibility [responsabilité internationale] 372 Taliban 3, 59, 63, 102, 102n1, 103, 105, 111, 129, 138–141, 142n22, 146–148, 147n39, 147n40, 151n50, 153, 153n63, 153n66, 155–165, 156n75, 156n77, 157n79, 157n80, 158n84, 158n86, 159n87, 159n90, 160n91, 160n94, 161n98, 162n99, 162n100, 167–170, 181, 185–187, 244, 244n58 Targeted Sanctions Consortium 101, 110n36, 124–133 Targeting 3, 6, 7, 56, 59, 63, 64, 65n39, 66, 81, 101, 111, 125, 133–135, 146, 148, 157, 159,

525 160, 244, 244n60, 247, 249n83, 252n98, 254n104, 255n111, 259n131, 262, 268n30, 276, 290n133, 420 Train-the-trainer 190 Transitional Justice 2, 34, 42, 44–47, 90n102, 94n113, 390, 390n17, 390n18, 410, 414–416, 415n112, 415n115, 416n116, 418–420, 424, 425, 427, 459, 460, 460n19, 466n49 Travel Ban 102–105, 113, 122 Trust Fund for Victims 458, 460, 462, 468n61, 470n73, 474, 476n104, 478, 483, 485, 490, 490n182, 491–499, 491n183, 491n185, 498n222, 498n224, 511n267, 511n268, 514n280 United Nations 2, 34, 38, 38n10, 39, 40n14, 61n22, 71, 73, 82–84, 84n69, 86–88, 88n91, 90, 96n124, 101–168, 110n36, 110n37, 122n91, 126n108, 136n1, 138n8, 139n13, 140n15, 141n21, 146n35, 151n52, 152n57, 154n70, 155n72, 160n91, 160n95, 171, 172, 175, 175n46, 178–180, 191, 191n144, 197n173, 204, 204n31, 209n69, 211n78, 213n89, 227n184, 233n6, 237n25, 252, 257n119, 261, 262, 262n5, 282, 312n75, 331, 340n42, 352, 352n94, 385n2, 390n14, 390n16, 391n20, 391n23, 393n41, 396n44, 398n48, 398n49, 399n54, 400n58, 401n61, 401n62, 412n107, 457n10, 458n14, 465n43, 465n44, 466n49, 495n212, 500n235 United Nations Assistance Mission in Afghanistan 9, 143n23, 143n25, 148n42, 158n83, 159n89, 160n93, 232, 426n161 United Nations High Commissioner for Refugees 195 United Nations International Criminal Tribunal for Rwanda 4, 42, 189, 190n141, 231n3, 297, 298n3, 457 United Nations International Criminal Tribunal for the former Yugoslavia 2, 9, 9n6, 13, 34, 111, 166, 174, 175, 189, 190n141, 206n49, 231n3, 257n119, 261, 262, 269n35, 271n45, 282n102, 297, 298n3, 299n10, 331, 455, 457 United Nations Special Rapporteur on the Promotion and Protection of Human

526 Rights and Fundamental Freedoms While Countering Terrorism 112, 113n51, 115n62, 116n65, 117n68, 127, 128n113 Unmanned aerial vehicles 2, 53 Victims [victimes] 19, 34, 72, 81, 112, 137n6, 167, 201, 231n3, 232, 298, 334n8, 385–515 War crimes 2, 4, 37n5, 38, 38n10, 41n16, 65, 82, 90, 94n112, 98, 142n22, 159, 175, 184n103, 185, 199–202, 201n3, 204–209,

Index 204n31, 208n59, 216–218, 218n112, 218n113, 223, 227, 230, 241, 242, 242n51, 248, 249, 257, 258, 262, 266, 268, 272, 278, 280–284, 281n98, 284n109, 288, 294n153, 295, 296, 298, 299, 318, 319, 322n139, 327, 329, 456n5, 457n6, 459n15, 459n16, 487, 500, 500n229, 500n232, 504 Wilhelm, First Sergeant 174, 176, 181, 183, 187, 188, 190 World War II 170, 456n5 Wounded Knee Creek 1, 13, 14, 18, 23, 25, 28