Yearbook Of International Humanitarian Law, Volume 21 (2018) 9462653429, 9789462653429, 9789462653436

Table of contents :
Editorial......Page 7
Contents......Page 10
Weapons Law......Page 12
Abstract......Page 13
1.1 Introduction......Page 14
1.2 The Persistent Need for Non-Lethal Technologies......Page 16
1.3 Non-Lethal Weapons as Valuable Alternatives to Firearms Between International Humanitarian Law and International Human Rights Law......Page 18
1.4 Prohibited Non-Lethal Weapons......Page 21
1.5 Prohibited as a Means or Method of Warfare but Permitted for Law Enforcement: Riot Control Agents......Page 22
1.6 On the Duty to Review and Regulate Non-Lethal Weapons......Page 24
1.7 Concluding Remarks on the Existence of a Duty to Employ Non-Lethal Weapons......Page 26
Articles, Books and Other Documents......Page 28
Treaties......Page 31
Abstract......Page 33
2.1 Introduction......Page 34
2.2.1 The Purpose of Possession of Nuclear Weapons......Page 35
2.2.2 The Size of the Global Nuclear Arsenal......Page 37
2.3 The Legality of Nuclear Deterrence......Page 41
2.3.1.1 The Legality of the Threat of Use of Nuclear Weapons Under Jus ad Bellum......Page 42
2.3.1.2 The Legality of the Threat of Use of Nuclear Weapons Under the Law of Armed Conflict......Page 46
2.3.2 Threaten to Use......Page 51
2.3.3 Prohibited Assistance......Page 52
2.3.3.1 The Prohibition on Assistance Under the NPT......Page 59
2.4 The Effectiveness of Nuclear Deterrence......Page 60
2.5 Concluding Remarks......Page 62
Articles, Books and Other Documents......Page 63
Treaties......Page 66
Abstract......Page 68
3.1 Introduction......Page 69
3.2 Preliminary Considerations......Page 71
3.2.1 Applicable Law......Page 72
3.2.2 A Working Definition of LAWS......Page 73
3.3.1 Distinction......Page 76
3.3.2 Proportionality......Page 83
3.3.2.1 Why LAWS Would or Could be Capable of Acting Proportionately......Page 84
3.3.2.2 Why LAWS Would Not or Could Not Be Capable of Acting Proportionately......Page 85
3.3.2.3 Encountering Proportionality......Page 91
3.3.3 Precautions......Page 93
3.3.4 Humanity......Page 95
3.3.4.2 Superfluous Injury and Unnecessary Suffering......Page 96
3.3.4.3 Weapon Reviews......Page 97
3.3.4.4 The Martens Clause......Page 99
3.4 Conclusion: Compatibility with IHL Remains to Be Yet Achieved, If Ever Possible......Page 100
Articles, Books and Other Documents......Page 102
Treaties......Page 106
Abstract......Page 108
4.1 Introduction......Page 109
4.2 Artificial Intelligence, Machine Learning, and Deep Learning Neural Networks......Page 111
4.3 Autonomous Weapon Systems and the Current Debate......Page 113
4.4 The Inherent Problems of Deep Learning......Page 115
4.4.1 Lack of Context......Page 116
4.4.2 A Lack of Explainability and a Semblance of Correct Functioning......Page 117
4.5.1 Target Recognition in the Context of Algorithmic Decision-Making......Page 120
4.5.2 Target Recognition by Deep Learning-Generated Algorithms......Page 123
4.5.3 Tasks Currently Requiring Human Judgement......Page 126
4.6 Human-Machine Teams......Page 128
4.7 The Challenges Which Deep Learning Presents for Law of Armed Conflict Obligations Requiring Understanding......Page 130
4.7.2 Commander Understanding and Command Responsibility......Page 131
4.7.3 Weapons Reviews......Page 132
4.8 Conclusion......Page 136
Articles, Books and Other Documents......Page 138
Case Law......Page 143
Treaties......Page 144
Other Articles......Page 145
Abstract......Page 146
5.1 Introduction......Page 147
5.2 Antecedents and Background to Ordinances and Articles of War......Page 149
5.2.1 The Origins......Page 152
5.2.2 The First Ordinances......Page 153
5.2.3 Ordinances with International Points of Reference: The Sixteenth and Seventeenth Centuries......Page 156
5.2.4 Between Army Regulations and Laws of War: The Eighteenth and Nineteenth Centuries......Page 159
5.3.1 The Anglo-Scottish Wars and the Hundred Years’ War......Page 161
5.3.2 The Anglo-Spanish War (1585–1604)......Page 162
5.3.3 The English Civil War (1642–1651)......Page 164
5.4 Ius Publicum Europaeum?......Page 165
Articles, Books and Other Documents......Page 167
Treaties......Page 171
6 Year in Review 2018......Page 172
6.1.1 Afghanistan......Page 173
6.1.2 Central African Republic......Page 175
6.1.4 Democratic Republic of the Congo......Page 177
6.1.5 Egypt......Page 179
6.1.6 Iraq......Page 180
6.1.7 Israel/Palestine......Page 182
6.1.8 Libya......Page 184
6.1.9 Mali......Page 185
6.1.10 Myanmar......Page 187
6.1.11 Nigeria......Page 190
6.1.12 Somalia......Page 191
6.1.13 South Sudan......Page 192
6.1.14 Syria......Page 194
6.1.15 Ukraine......Page 200
6.1.16 Yemen......Page 203
6.2.1.1 International Criminal Court......Page 206
6.2.1.2 Mechanism for International Criminal Tribunals......Page 218
6.2.2.1 Republic of Kosovo......Page 220
6.2.2.2 Extraordinary Chambers in the Courts of Cambodia......Page 222
6.2.2.3 Extraordinary African Chambers......Page 224
6.2.2.4 Special Criminal Court in the Central African Republic......Page 225
6.2.2.5 Special Tribunal for Lebanon......Page 226
6.2.3.1 Argentina......Page 227
6.2.3.4 Bosnia-Herzegovina......Page 229
6.2.3.5 Colombia......Page 231
6.2.3.7 Finland......Page 232
6.2.3.8 France......Page 233
6.2.3.9 Germany......Page 235
6.2.3.10 Guatemala......Page 237
6.2.3.12 Netherlands......Page 240
6.2.3.15 Spain......Page 241
6.2.3.16 South Africa......Page 243
6.2.3.18 Sri Lanka......Page 244
6.2.3.19 Sweden......Page 245
6.2.3.21 United Kingdom......Page 246
6.2.3.22 United States......Page 247
6.3.1 Arms Trade......Page 248
6.3.2.1 Convention on Certain Conventional Weapons......Page 249
6.3.2.3 Landmines......Page 250
6.3.3.1 Chemical Weapons......Page 252
6.3.3.2 Biological Weapons......Page 254
6.3.3.3 Nuclear Weapons......Page 255
Articles, Books and Other Documents......Page 258
Cases......Page 264
Treaties......Page 267
INTERNATIONAL......Page 268
NATIONAL......Page 270
Index......Page 273

Citation preview

Yearbook of International Humanitarian Law 2018

Yearbook of International Humanitarian Law Volume 21

More information about this series at http://www.springer.com/series/8912

Terry D. Gill Robin Geiß Heike Krieger Christophe Paulussen •

•

•

Editors

Yearbook of International Humanitarian Law 2018

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Editors Terry D. Gill Criminal Law Section University of Amsterdam Amsterdam, The Netherlands Section Military Law Netherlands Defence Academy Breda, The Netherlands Heike Krieger Department of Law/Public Law Free University of Berlin Berlin, Germany

Robin Geiß School of Law University of Glasgow Glasgow, UK Christophe Paulussen Research Department T.M.C. Asser Instituut The Hague, The Netherlands

The views expressed in this Yearbook are not necessarily those of the members of the Editorial Board, the Board of Advisors to the Editorial Board, the Board of Recommendation and/or those institutions they represent, including the T.M.C. Asser Instituut and T.M.C. Asser Press. ISSN 1389-1359 ISSN 1574-096X (electronic) Yearbook of International Humanitarian Law ISBN 978-94-6265-342-9 ISBN 978-94-6265-343-6 (eBook) https://doi.org/10.1007/978-94-6265-343-6 Published by T.M.C. ASSER PRESS, The Hague, The Netherlands www.asserpress.nl Produced and distributed for T.M.C. ASSER PRESS by Springer-Verlag Berlin Heidelberg © T.M.C. ASSER PRESS and the authors 2020 No part of this work may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher, with the exception of any material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use.cg Cover picture: An MQ-1 Predator unmanned aerial vehicle and F-16 Fighting Falcon return from an Operation Iraqi Freedom combat mission. Both aircraft provide intelligence, search and reconnaissance gathering features, as well as munitions capability to support ground troops and base defense. Photo: U.S. Air Force photo/1st Lt. Shannon Collins. This T.M.C. ASSER PRESS imprint is published by the registered company Springer-Verlag GmbH, DE part of Springer Nature. The registered company address is: Heidelberger Platz 3, 14197 Berlin, Germany

Editorial Board General Editors Prof. Terry D. Gill (Editor-in-Chief), University of Amsterdam/Netherlands Defence Academy Prof. Robin Geiß (Editor), University of Glasgow Prof. Heike Krieger (Editor), Free University of Berlin

Managing Editor Dr. Christophe Paulussen, T.M.C. Asser Instituut, The Hague

Editorial Assistant Kilian Roithmaier LL.M., T.M.C. Asser Instituut, The Hague

Board of Advisors to the Editorial Board Dr. Louise Arimatsu, The Royal Institute of International Affairs, Chatham House, London Dr. William Boothby, Geneva Centre for Security Policy Prof. Geoffrey Corn, South Texas College of Law Prof. Robert Cryer, University of Birmingham Dr. Cordula Droege, International Committee of the Red Cross BGen. Prof. Paul Ducheine, Netherlands Defence Academy/University of Amsterdam Prof. Wolff Heintschel von Heinegg, Europa Universität Viadrina, Frankfurt (Oder) Prof. Dr. Jann K. Kleffner LL.M., Swedish Defence University Prof. Nils Melzer, University of Glasgow/Geneva Academy of International Humanitarian Law and Human Rights Prof. Héctor Olasolo, University of El Rosario, Colombia/The Hague University of Applied Sciences Jelena Pejic, International Committee of the Red Cross Dr. Kinga Tibori-Szabó, Kosovo Specialist Chambers BGen Kenneth W. Watkin (Ret’d)/Former Judge Advocate General, Canada Prof. Gentian Zyberi, Norwegian Centre for Human Rights

Board of Recommendation HRH Princess Margriet of the Netherlands, Honorary President of the Netherlands Red Cross Prof. em. George Aldrich, University of Leiden Prof. Horst Fischer, University of Leiden Dr. Dieter Fleck, Honorary President of the International Society for Military Law and the Law of War H. E. Judge Christopher Greenwood, International Court of Justice H. E. Judge Theodor Meron, International Residual Mechanism for Criminal Tribunals H. E. Judge Fausto Pocar, International Court of Justice Prof. Michael N. Schmitt, United States Naval War College

Editorial

International Humanitarian Law (IHL), law of weaponry and the international arms control architecture as a whole are confronted with a formidable array of challenges. New military technologies are set to revolutionize military affairs and challenge traditional arms control paradigms. At the same time, resurgent big power rivalries and shifting geopolitical power dynamics in the twenty-first century are putting increasing pressure on existing arms control structures many of which are imbued with twentieth century rationales. Nowhere is this more visible than with regard to nuclear weapons where traditional arms control regimes are currently eroding at an alarming pace. With the demise of the Intermediate-Range Nuclear Forces Treaty’s (INF) Treaty and the US’s withdrawal from the Joint Comprehensive Plan of Action, better known as the Iran Nuclear Deal, now even the future of the Non-Proliferation and New Start treaties, both of which are due to be reviewed in 2020 and 2021 respectively, is uncertain. But also beyond the realm of nuclear disarmament there are challenges abound. Prohibited chemical weapons have repeatedly been used in Syria and the possibility of newly emerging generations of biological weapons, based on developments in genetics and genomics, are increasingly a cause of concern. What is more, since Russia’s suspension of the Treaty on Conventional Armed Forces in Europe it is clear that the erosion of arms control is not confined to weapons of mass destruction but similarly affects the broad field of conventional weapons control. In addition, the use of explosive weapons in densely populated areas in warzones such as Syria and Yemen as well as the important issue of arms transfers and their restrictions have increasingly come into focus. Simultaneously, the militarization of artificial intelligence (AI), outer space and cyber space combined with rapid developments in robotics, nano-technology and the field of hypersonic missiles are raising new humanitarian concerns and regulative challenges many of which remain incompletely understood and are in need of further and deeper discussion.

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Editorial

It is against this backdrop, that Volume 21 (2018) of the Yearbook of International Humanitarian Law is devoted to the humanitarian and legal challenges surrounding weapons and new military technologies. The volume starts with a contribution from Mirko Sossai who explores “The Demands of Future Operations and the Promise of Non- or Less-Lethal Weapons” and traces recent developments in this area while considering the specific demands of peace-keeping and law enforcement scenarios and generally military operations aiming to protect the civilian population. Stuart Casey-Maslen then turns to “The Status of Nuclear Deterrence Under International Law in Light of the Treaty on the Prohibition of Nuclear Weapons” and the delegitimizing impact this treaty has on nuclear deterrence at a time where new technological capabilities such as offensive cyber operations are rendering nuclear deterrents increasingly ineffective. Matthias Brenneke in his contribution on “Lethal Autonomous Weapon Systems and Their Compatibility with International Humanitarian Law: A Primer on the Debate” argues that—at least for the time-being—lethal autonomous weapons systems are incompatible with IHL and that therefore humans must stay in or on the loop to retain meaningful human control. Finally, Joshua Hughes looks into another important dimension of the weaponization of AI and explores “The Law of Armed Conflict Issues Created by Programming Automatic Target Recognition Systems Using Deep Learning Methods” cautioning that this programming method contains inherent limitations such as the inability for the resultant algorithms to comprehend context and the near impossibility to retrace the decision-making process of these algorithms. In the second part of the Yearbook Beatrice Heuser adopts a historic perspective and looks into “Ordinances and Articles of War before the Lieber Code, 866–1863: The Long Pre-History of International Humanitarian Law” emphasizing, contrary to the common mainstream narrative of IHL textbooks and reference works which tend to depict the American Lieber Code as the starting point of codified IHL, that the Lieber Code was only one in a series of such ordinances that can be traced back in Europe to the ninth century. As is customary, the Yearbook concludes with a “Year in Review”, this year co-authored by Kilian Roithmaier, Monika Tobjasz and Pauline Bove. Finally, the members of the Editorial Board would like to extend their warm and sincere thanks to Tim McCormack. Timothy McCormack was General Editor of the Yearbook from Volume 6 (2003) up to and including Volume 11 (2008) and has been Editor of the Correspondents’ Reports from Volume 11 (2008) up to and including Volume 20 (2017). His contribution to the Yearbook in both capacities has been very substantial and valuable in a number of ways. Tim is one of the world’s leading authorities on the law of armed conflict and his scholarship, insight and experience have enriched the Yearbook over all the years of his association with it. Moreover, as anyone who has worked with him can testify, he is a warm and generous person who is a pleasure to know and work with and these qualities

Editorial

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were clearly evident during his long association with the Yearbook. Due to his appointment as Dean of the Law School at his alma mater, the University of Tasmania, he has decided to discontinue his activities on the Editorial Board. Tim, many thanks for all your many years with the Yearbook and all the best! Amsterdam/Breda, The Netherlands Glasgow, UK Berlin, Germany The Hague, The Netherlands

Terry D. Gill Robin Geiß Heike Krieger Christophe Paulussen

Contents

Part I

Weapons Law

1 The Demands of Future Operations and the Promise of Non- or Less-Lethal Weapons . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mirko Sossai 2 The Status of Nuclear Deterrence Under International Law in Light of the Treaty on the Prohibition of Nuclear Weapons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Stuart Casey-Maslen 3 Lethal Autonomous Weapon Systems and Their Compatibility with International Humanitarian Law: A Primer on the Debate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Matthias Brenneke 4 The Law of Armed Conflict Issues Created by Programming Automatic Target Recognition Systems Using Deep Learning Methods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Joshua G. Hughes Part II

3

23

59

99

Other Articles

5 Ordinances and Articles of War Before the Lieber Code, 866-1863: The Long Pre-History of International Humanitarian Law . . . . . . . 139 Beatrice Heuser 6 Year in Review 2018 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165 Kilian Roithmaier, Monika Tobjasz and Pauline Bove

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Contents

Table of Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261 Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267

In order to make the Correspondents’ Reports immediately and widely available, they can be accessed online at www.asser.nl/YIHL/correspondentsreports This has the added benefit of the reports being fully searchable, thereby better serving the needs of scholars and practitioners.

Part I

Weapons Law

Chapter 1

The Demands of Future Operations and the Promise of Non- or Less-Lethal Weapons Mirko Sossai

Contents 1.1 Introduction........................................................................................................................ 1.2 The Persistent Need for Non-Lethal Technologies .......................................................... 1.3 Non-Lethal Weapons as Valuable Alternatives to Firearms Between International Humanitarian Law and International Human Rights Law ............................................... 1.4 Prohibited Non-Lethal Weapons ....................................................................................... 1.5 Prohibited as a Means or Method of Warfare but Permitted for Law Enforcement: Riot Control Agents .................................................................................................................. 1.6 On the Duty to Review and Regulate Non-Lethal Weapons........................................... 1.7 Concluding Remarks on the Existence of a Duty to Employ Non-Lethal Weapons ............................................................................................................................ References ..................................................................................................................................

4 6 8 11 12 14 16 18

Abstract Non-lethal technology continues to attract the interest of States, individually and in the context of regional and universal organisations. Peace operations deployed in asymmetric threat environments are in need of equipment more suited to the requirements of such operations: non- or less-lethal weapons might offer a valuable alternative to firearms in certain scenarios, particularly when armed forces are involved in the protection of the civilian population as well as in law enforcement activities. It is important to distinguish between conduct of hostilities and law enforcement scenarios, as different legal paradigms apply with regard to the use of armed force. Moreover, whereas under the latter, there is at least an implicit

Mirko Sossai is Associate Professor of International Law at the Department of Law of the University of Roma Tre. M. Sossai (&) Department of Law, University of Roma Tre, Via Ostiense 139, 00154 Rome, Italy e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2020 T. D. Gill et al. (eds.), Yearbook of International Humanitarian Law 2018, Yearbook of International Humanitarian Law 21, https://doi.org/10.1007/978-94-6265-343-6_1

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M. Sossai

obligation under human rights law to equip State officials with less-lethal weapons, the prevalent view is that no such duty exists under the former. What characterises the most recent developments in the field of the regulation of non- or less-lethal weapons is the effort to offer practical guidance as concerns testing, procurement, training and monitoring, on the assumption that, in a law-enforcement situation, the cumulative principles of legality, necessity, proportionality and precaution govern the use of force by State agents.




Keywords Civilians Conduct of hostilities Non-lethal weapons Proportionality




1.1


Law enforcement
NATO


Introduction

Almost two decades have passed since the North Atlantic Treaty Organization NATO and its member States showed a specific interest in the development and employment of non-lethal technologies. The definition of non-lethal weapons (NLW) provided by the 1999 NATO policy has continued to represent a reference point for any critical assessment of them: they were defined as “weapons which are explicitly designed and developed to incapacitate or repel personnel, with a low probability of fatality or permanent injury, or to disable equipment, with minimal undesired damage or impact on the environment.”1 The lively debate that followed the adoption of the NATO policy—animated essentially by a core group of experts with different backgrounds—challenged the impression that such a category could constitute a fundamentally distinct category of weapons under international humanitarian law (IHL).2 Irrespective of any promises of sparing human lives, existing rules and principles of IHL apply to emerging non-lethal technologies, whether anti-personnel or anti-materiel: under Article 36 of Additional Protocol I, States are under a duty to conduct legal reviews of new weapons in order to determine if their employment “would, in some or all circumstances, be prohibited”.3 Yet, scholars have questioned the analytical value of the concept of “non-lethal” itself:4 the reference to “low probability of fatality” does not seem to constitute a decisive criterion in drawing a clear line between “lethal” and “non-lethal”, given that the danger of fatal injury remains for the use of most weapons.5 Even the term

1

NATO 1999. See, inter alia, Boothby 2016, p. 216. 3 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), opened for signature 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978) (AP I), Article 36. 4 Fidler 1999, p. 97. 5 See Casey-Maslen 2010, p. 9. 2

1 The Demands of Future Operations and the Promise …

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“incapacitation” appears to be misleading, for example in the context of the toxic chemicals known as incapacitating agents. This contributes to explaining—at least partially—the reason why the notion of “less lethal weapons” increasingly emerged, particularly in academic circles. Although there is no agreed meaning in international law, an accepted working definition for law enforcement purposes is based on a comparison with firearms, as weapons having “a lower risk of causing death or serious injury”.6 It remains that the current debate on the regulation of autonomous weapons systems (AWS) has been characterised by the dichotomy lethal/non-lethal, particularly as regards the question whether there exists a specific duty to build AWS only in such a way that they are unable to kill human beings.7 In the last twenty years, several attempts have been made to offer a comprehensive taxonomy of NLW, by referring to both the specific technology they employ as well as the effects on personnel and equipment. Several categories of existing and programmed technologies have been identified by NATO: acoustic systems, such as flash bang and acoustic hand grenades, loud speaker arrays, and underwater acoustic devices; chemical agents, including tear gas, malodorant, pepper spray, and irritants deployed using various means; electromagnetic weapons, comprising optical warning devices, electro-muscular incapacitation, radio frequency vehicle or vessel stopping, disruptive high-power microwaves; mechanical/kinetic devices, such as munitions with blunt impact effects and various counter vehicle nets and barriers.8

6 See Geneva Academy of International Humanitarian Law and Human Rights (2018). See also Institute for Non-Lethal Defense Technologies 2004, p. 182: “technologies, weapons and tactics, which are less likely to result in death or serious injury than conventional firearms”. 7 See the discussion during the 2018 session of the Group of Governmental Experts on emerging technologies in the area of lethal autonomous weapons systems (LAWS), as to the characterisation of this category: whereas

some delegations felt that lethality was an essential characteristic, […] several delegations expressed the view that a focus on lethality would fail to address injuries to persons or damage to objects that are protected by IHL, […] while others felt that the term ‘lethal’ as a characteristic needed to be further examined in the light of the fundamental notion of use of force, which triggers legal obligations under international law irrespective of lethality. Group of Governmental Experts of the High Contracting Parties 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 (2018) Report of the 2018 session of the Group of Governmental Experts on Emerging Technologies in the Area of Lethal Autonomous Weapons Systems, UN Doc. CCW/GGE.1/2018/3, p. 12. 8 Cf. NATO 2009. For a discussion of the relevant non-lethal technologies, see Dahl 2012, pp. 218–228.

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M. Sossai

The Persistent Need for Non-Lethal Technologies

There is no doubt that innovations in science and technology have been a driving factor in the development of NLW. It has also become obvious that the context for military activity has evolved in the last decades. In its 1999 policy paper, the NATO Council identified NLW as a “critical, additional capability needed in order to meet the demands of future operations”.9 As the world urbanises, hostilities are increasingly taking place in densely populated areas, including city centres.10 In recent years, the acquisition of NLW has been regarded as a valuable option to protect the civilian population, as required by the rule of proportionality and the obligation to take all feasible precautions under IHL.11 In Afghanistan the International Security Assistance Force (ISAF), led by NATO, implemented policy changes for its counterinsurgency activities, in order to minimise civilian casualties, recognising that such harm could lead to the loss of support for the mission, undermine longer-term political objectives and, ultimately, affect mission success.12 In particular, a 2011 report for the ISAF Commander recommended “a “deep dive” to identify non-lethal capabilities and options”, as initial data showed a 80–90% reduction in undesired outcomes— including both own force casualties and civilian casualties—when NLW were available.13 Still, the starting point of the NATO S&T studies14 has been the consideration that NLW were successfully used by armed forces not only for the conduct of hostilities, but also in law enforcement activities to maintain or restore public security, law and order:15 in Bosnia and Kosovo, in the context of peace operations, as well as in counter-piracy activities off the coast of Africa.16 However, it is important to distinguish between these two scenarios, as different legal paradigms apply with regard to the use of armed force: whereas jus in bello allows the use of lethal force against lawful targets in the conduct of hostilities, international human

9

NATO 1999. Bernard 2016, p. 2. 11 See AP I, above n 3, Articles 51(5)(b) and 57; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), opened for signature 8 June 1977, 1125 UNTS 609 (entered into force 7 December 1978), Article 13. The principles of proportionality and precautions in attack are considered customary in both international and non-international armed conflicts. See Henckaerts and Doswald-Beck 2005, pp. 46–51, Rules 14–15. 12 Cf., inter alia, Muhammedally 2016, p. 232. 13 Cf. NATO 2017. 14 See, already, NATO 2004. 15 Melzer and Gaggioli 2015, p. 63: “the generic concept of law enforcement comprises all territorial and extraterritorial measures taken by a State or other collective entity to maintain or restore public security, law and order or to otherwise exercise its authority or power over individuals, objects or territory”. 16 On the use of NLW in maritime operations, see Annati 2014. 10

1 The Demands of Future Operations and the Promise …

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rights law (IHRL) protects the right to life during law enforcement activities meaning that lethal armed force may be employed only as a last resort. In the legal assessment of the use of NLW, one should take into account that the principles of necessity, proportionality and precaution operate differently under the two paradigms, although sometimes it may be difficult to draw a clear line between situations governed by the conduct of hostilities framework and those governed by the law enforcement one.17 The deployment of multidimensional UN peacekeeping operations in hostile environment has offered concrete scenarios in which the distinction between the two legal paradigms risks being problematic: it is also for this reason that the availability of non-lethal technologies has been regarded as a promising development. Not only military and police forces are entrusted with the task of performing law-enforcement-type activities,18 there is also an increasing pressure on peacekeepers to use force in defence of the mandate, i.e. to protect civilians under attack or under threat of attack and “to protect the peace agreement and process from “spoilers” wishing to undermine it”.19 The two UN multidimensional integrated stabilisation missions in Mali (MINUSMA) and Central African Republic (MINUSCA) have become the paradigmatic examples of increasingly robust mandates, the tasks of which include, for instance, “to stabili[s]e the key population centres and other areas where civilians are at risk, notably in the North and Centre of Mali, and, in this regard: to enhance early warning, to anticipate, deter and counter threats, including asymmetric threats”.20 It follows that UN peacekeeping operations deployed in asymmetric threat environments are in need of a different set of capabilities.21 This led to a rethinking of the training methodologies and the recognition of the need for more effective equipment, particularly in situations of crowd control.22 The Final Report of the Expert Panel on Technology and Innovation in UN Peacekeeping could not but recognise that, in the past, armed peacekeepers were unable to defuse or control violent and dangerous situations, because they were not well equipped with less-than-lethal technologies.23 As a policy option, NLW could enhance the ability to achieve military tasks in circumstances where the use of lethal force would be either unnecessary or undesired. Other purposes for their development and use have been identified in limiting 17

ICRC 2011, p. 19. See, recently, Wills 2018. 19 White 2014, p. 103. 20 UN Security Council (2018) Resolution 2423 (2018), UN Doc. S/RES/2423, para 38. 21 Kalsrud 2017, p. 1221. 22 The 2015 Report of the UN High-level Independent Panel on Peace Operations held that UN peacekeeping operations “lack the specific equipment, intelligence, logistics, capabilities and speciali[s]ed military preparation required, among other aspects”. UN General Assembly/Security Council (2015) Report of the UN High-level Independent Panel on Peace Operations, UN Doc. A/70/95-S/2015/446, para 119. See also Davison 2013, p. 294. 23 United Nations 2015, p. 76. 18

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M. Sossai

or controlling escalation, improving force protection and minimising damage for the purpose of containing post-conflict reconstruction costs.24 Nevertheless, commentators have questioned whether advances in non-lethal technologies are actually able to keep the promise in reducing lethality and destruction of property.25 The point has been made that their employment may either increase the overall use of force or facilitate a shift towards the militarisation of certain responses, including counter-terrorism.26 In the same vein, an attempt to offer a more systematic ethical discourse on non-lethality has rejected as morally impermissible any use of NLW that sees them as “a method to make war more palatable and easier to use as both a military and political option”.27

1.3

Non-Lethal Weapons as Valuable Alternatives to Firearms Between International Humanitarian Law and International Human Rights Law

The argument that NLW could render war more palatable involves the ethical and legal dilemma as to whether the availability of such technologies might destabilise the foundations of modern jus ad bellum by expanding the circumstances in which force could be used under international law. It goes without saying that the decision to employ non-lethal capabilities in a specific scenario still requires an assessment whether this would amount to the use or threat of armed force in international relations. It remains that the legality of a specific operation under jus ad bellum is distinct from its legality under jus in bello.28 As concerns the compatibility with IHL, legal analysis has first focused on the question whether the development of NLW would generally be limited either by specific treaty prohibitions or by the prohibition not to employ weapons that are of a nature to cause superfluous injury or unnecessary suffering or having excessively injurious or indiscriminate effects.29 There is no doubt that any use of biological and chemical agents as a means or method of warfare is prohibited under the 1972 and 1993 Conventions,30 irrespective of their production method and physical

24

Boothby 2012, p. 273. For the position that the NLW enterprise is worthy of continuation and even expansion to meet more fully its ambitious goals, see Koplow 2015, p. 238. 26 Fidler 2013, pp. 332–334. 27 Kaurin 2014, p. 57. 28 On the relationship between jus ad bellum and jus in bello, see, inter alia, Sassoli 2007. 29 Nystuen 2008, p. 9. 30 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, opened for signature 10 April 1972, 1015 UNTS 163 (entered into force 26 March 1975); Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on 25

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effects. As concerns another type of NLW, Protocol IV of the 1980 Convention on Certain Conventional Weapons bans laser weapons “specifically designed, as their sole combat function or as one of their combat functions, to cause permanent blindness to unenhanced vision”.31 As for other categories of potential NLW, special concern was expressed vis-àvis the way in which a particular type of weapon could be used—i.e. the risk of “misuse”—rather than its inherent characteristics.32 With respect to directed energy weapons, a 2004 NATO report had already warned that “excessive power levels can have serious consequences for human targets”,33 resulting in a prohibited method of warfare that would cause superfluous injury or unnecessary suffering. More generally, two key issues associated with NLW have been discussed: first, their employment in conjunction with traditional conventional weapons to achieve a lethal effect;34 second, the use of such weapons against the civilian population. As for the principle of distinction, notwithstanding the contrary opinion taken by some authors,35 an indiscriminate use of NLW remains unlawful under IHL, irrespective of the fact that the intention was not to kill but simply to temporary incapacitate civilians.36 The position of NATO has been clear: although “NLWs can help minimise incidental injuries to civilians and collateral damage to civilian objects in those operations where combatants and non-combatants are mixed”, their existence should not be construed as to lessen the requirements of the principle of distinction.37 In discussing the question whether NLW might offer a valuable alternative to firearms, international lawyers have turned their attention to potential uses to perform tasks governed by IHL, which do not relate to the conduct of the hostilities, such as the guarding of persons deprived of their liberty or tasks related to crowd control and maintaining public order in occupied territories. This also meant a shift of interest towards the international regulation of law enforcement operations during armed conflict: it is noteworthy that the 1990 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials include an explicit reference to

Their Destruction, opened for signature 13 January 1993, 1975 UNTS 45 (entered into force 29 April 1997) (CWC). 31 Additional Protocol IV 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, opened for signature 13 October 1995, 1380 UNTS 370 (entered into force 30 July 1998), Article 1. See Carnahan and Robertson 1996. 32 Casey-Maslen 2010, p. 73. 33 NATO 2004, p. 3-9. 34 Backstrom and Henderson 2012, pp. 500–501. 35 Mayer 2007; Orbons 2010, p. 81. 36 Fidler 1999, p. 84. 37 NATO 2004, p. 5-2. The point has been made that employment of NLW against a group of persons in order to disperse the civilians and to identify the combatants, that are then targeted with conventional weapons, would be problematic from the viewpoint of the principle of distinction. See Davison 2013, pp. 293–294.

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“the development and deployment of non-lethal incapacitating weapons”.38 The use of force in law enforcement is also governed by IHRL, so the debate on NLW has also necessitated consideration of the complex relationship between IHL and IHRL. The position recently taken by the UN Human Rights Committee in General Comment No. 36 on Article 6 of the International Covenant on Civil and Political Rights reflects the shared view that IHRL continues to apply “in situations of armed conflict to which the rules of international humanitarian law are applicable”: “both spheres of law are complementary, not mutually exclusive”.39 In understanding the dynamics of complementary co-application, it has been convincingly maintained that one body of law should provide the initial reference point when approaching the legal regulation of a situation, while the other body of law will then be applied and interpreted in that context.40 In situations where a State is able to exercise law enforcement, IHRL should find application in the first place. A number of case-studies have been reviewed in assessing the interplay between IHL and IHRL: two examples—riots during armed conflicts and (vehicle) checkpoints—seem to suggest the added value of the employment of NLW. During an armed conflict, if a demonstration turns violent, armed forces should in principle apply the law enforcement paradigm: lethal force may only be used as a last resort and if strictly necessary. In the case of a simultaneous presence of rioting civilians and civilians directly participating in hostilities, complicating the distinction, the ICRC suggests “to deal with the entire situation under law enforcement, and apply an escalation of force procedure with respect to all persons posing a threat.”41 It is in this context that NLW may have an important role to play. Moreover, the value of non-lethal capabilities has been tested in the concrete situation of a vehicle checkpoint. In this scenario too, it might be hard to decide whether the use of force would be governed by the standards of the law enforcement paradigm or by those of the paradigm of hostilities. In the case of an approaching car failing to slow down, it would be difficult to assess whether the driver is a fighter, a civilian directly participating in hostilities, or a civilian protected against direct attack. It has been convincingly argued that, in case of doubt whether an individual is posing a threat, the standards of IHL and IHRL would lead to the same result:42 both the law enforcement and the hostilities paradigms imply that an escalation of force procedure must be applied. In this context, NLW give armed and police forces more flexible responses, which could entail more time and space to safely assess threats, determine intent, and decide whether to employ lethal force.43

38

United Nations 1990, Principle 3. UN Human Rights Committee (2018) General Comment No. 36 on Article 6 of the International Covenant on Civil and Political Rights, on the Right to Life, UN Doc. CCPR/C/GC/36, para 64. 40 Murray 2016, p. 79. 41 ICRC 2015, p. 36. 42 Geiss and Siegrist 2011, pp. 42–43. 43 Cf. NATO 2017. 39

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Prohibited Non-Lethal Weapons

In explaining that the whole distinction is more apparent than real (and definitely not relevant from a legal viewpoint), the point has been made that lethal weapons are frequently non-lethal in their practical effects—considering “the high percentage of wounded combatants who survive injuries caused by such weapons”44—whereas non-lethal weapons do not eliminate the possibility of causing fatalities altogether. Even though the ICRC has found that “military manuals and official statements state that weapons that render death inevitable are prohibited”,45 non-lethality, in and of itself, is not a criterion that ensures lawfulness. On the basis of the absolute prohibitions contained in the relevant treaties, one can easily conclude that the use of both biological and chemical agents46 as well as incapacitating anti-personnel mines, blinding laser weapons and non-detectable fragments are forbidden as means and methods of warfare, irrespective of their lethal or non-lethal nature. Where the regulatory approach based on the application of the general principles of the law of armed conflict is concerned, views differ as to how it can actually be determined whether a weapon falls within one of the prohibited categories: those causing superfluous injury or unnecessary suffering, those intended or that may be expected “to cause widespread, long-term and severe damage to the natural environment”,47 or those that are by nature indiscriminate. As for the prohibition of superfluous injury or unnecessary suffering, the test is whether a proportionate balance exists between the effects of a specific weapon and its military advantage.48 This requires assessing the foreseeable, immediate and long-term consequences. In the view of the ICRC, a relevant factor in establishing whether a weapon is of a nature to cause superfluous injury or unnecessary suffering is the “inevitability of serious permanent disability”.49 It is still debated to what extent the analogy with the prohibition on blinding as a method of warfare could be extended to the permanent deafness caused by the use of certain acoustic weapons. In this regard, IHRL could offer additional criteria for the evaluation of a weapon’s effect.50

44

Dinstein 2016, p. 65. Henckaerts and Doswald-Beck 2005, p. 241. However, see Dinstein 2016, p. 65, who has argued that “the employment of weapons that leave no chance of survival (such as fuel air explosives) is not automatically in breach of the cardinal principle”. 46 One might question whether malodorants fall within the definition of toxic chemicals under the 1993 CWC, above n 30. It has been argued that they should be considered as falling within the category of riot control agents, at least in terms of their regulation. Cf. Crowley 2016. 47 AP I, above n 3, Article 35(3). Moreover, cf. Henckaerts and Doswald-Beck 2005, p. 151, Rule 45. For the present purposes it is not relevant to enter into the discussion over the customary nature of the prohibition. 48 Cf. Bothe et al. 1982, p. 196. 49 Henckaerts and Doswald-Beck 2005, p. 241. 50 Murray 2016, p. 166. 45

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In recent years, more emphasis has been given to human rights standards in determining whether the inherent character of a specific weapon would make it unlawful both in law enforcement and hostilities scenarios. More specifically, the obligation to prevent human rights violations—including an arbitrary deprivation of life or an infliction of torture or other cruel, inhuman or degrading treatment— implies that States are under a duty to test NLW for law enforcement purposes in order “to establish their lethality and the extent of likely injury, and of monitoring appropriate training and use of such weapons”.51 A list of unlawful weapons, insofar as they are “specifically designed or of a nature […] to: (a) employ unnecessary, excessive or otherwise unlawful force against persons; or (b) to inflict pain and suffering on powerless individuals”,52 comprises body-worn conducted electrical weapons,53 spiked or electrified batons, rubber-coated metal bullets and lasers designed to burn skin or hair as a means of pain compliance.54

1.5

Prohibited as a Means or Method of Warfare but Permitted for Law Enforcement: Riot Control Agents

The ban on a specific weapon as a means or method of warfare should not be necessarily construed in absolute terms, in the sense that it does not exclude its possible lawful use in other situations. Riot-control agents (RCA), together with expanding bullets, belong to the restricted category of weapons that, although prohibited for the conduct of hostilities, are used for law enforcement purposes.55 Under Article I(5) of the 1993 Convention on Chemical Weapons (CWC), States Parties undertake “not to use riot control agents as a method of warfare”, whereas Article II(9)(d) permits the use of chemicals for “law enforcement including domestic riot control purposes.”56 The recourse to RCA against combatants during

51 UN General Assembly (2014) Human Rights Council: Resolution 25/38. The promotion and protection of human rights in the context of peaceful protests, UN Doc. A/HRC/RES/25/38, para 15. 52 UN General Assembly (2017) Human Rights Council: Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment: Extra-custodial use of force and the prohibition of torture and other cruel, inhuman or degrading treatment or punishment, UN Doc. A/72/178, para 51. 53 Amnesty International and Omega Research Foundation 2015, p. 24. See also European Council Regulation (EC) No. 1236/2005 of 27 June 2005 concerning trade in certain goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment, I OJ L 200/1. 54 Geneva Academy of International Humanitarian Law and Human Rights 2018, p. 19. 55 See Watkin 2006. 56 CWC, above n 30, Articles I(5), II(9)(d).

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an armed conflict is prohibited, for two essential reasons: to prevent their use in combination with conventional weapons, for instance as a method of cave combat, and to avoid the risk of escalation to an exchange of lethal chemical agents.57 On the other hand, the use of such chemicals for law enforcement is not limited to domestic riot control: the Convention allows States to employ them for the maintenance of public order and safety in situations of belligerent occupation and in the course of peace operations, provided that “types and quantities” are consistent with such purpose.58 One of the aspects that remain ambiguous under the CWC is the determination of the specific features that delivery systems should have to allow the dissemination of appropriate “types and quantities” of RCA: the European Court of Human Rights has noted that the use of a particular RCA in high doses “can cause necrosis of the tissue in the respiratory tract and the digestive system, pulmonary oedema and internal bleeding (haemorrhaging of the suprarenal glands)”.59 Of particular concern is the development of “remote control” means of delivery including indoor fixed-installation dispersion devices as well as mechanisms mounted on unmanned ground vehicles and unmanned aerial vehicles or drones. The other main interpretative issue is whether state officials are allowed to use other chemical agents, apart from riot control agents, in certain law enforcement scenarios (for instance in hijacking and hostage taking situations). The potential use of incapacitating chemical agents (ICA)—toxic chemicals that target the central nervous system—have been discussed by experts in numerous forums.60 There is agreement that such chemicals in principle do not possess the qualitative and quantitative characteristics for their employment in “law enforcement”:61 in particular States are not able to ensure adequate control over the individual dosage and the exposure

57

Longuet 2016, p. 250; Marauhn 2016. Sossai 2010, p. 20. For the position that RCA reliance by UN forces would be potentially illegal, see Fry 2010. A 2004 amendment to Germany’s Law Implementing the Chemical Weapons Convention allows the use of RCAs “by the Federal Armed Forces in deployments within the framework of a system of mutual collective security”. See ICRC 2019. 59 ECtHR, Abdullah Yaşa and Others v Turkey, Judgement, 16 July 2013, Application No. 44827/ 08, para 30. Moreover, the Court distinguished between the use of RCA and the launching of a tear-gas grenade at the demonstrators, by stressing that “firing a grenade by means of a launcher generates the risk of causing serious injury, as in the instant case, or indeed of killing someone, if the grenade launcher is used improperly”. Ibid., para 42. In addition, see ECtHR, Ataykaya v Turkey, Judgement, 22 July 2014, Application No. 50275/08, para 73: 58

The Court notes that the violation of the right to life of the applicant’s son, as guaranteed by Article 2 of the Convention, originates once again in a problem stemming from the absence of guarantees as to the proper use of tear-gas grenades. Consequently, the Court emphasises the need to strengthen those guarantees, without delay, in order to minimise the risks of death and injury related to the use of tear-gas grenades. 60 61

See, e.g., ICRC 2013a. Cf. Crowley 2016.

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conditions, as required also by the relevant obligations under IHRL.62 Various States Parties too have expressed their concern that ICAs pose a serious challenge to the CWC: “[g]iven the difficulties associated with uniformly disseminating these agents outside of a clinical setting, it is extremely challenging (if not impossible) to control an aerosolised dose received by an individual (or group of people).”63

1.6

On the Duty to Review and Regulate Non-Lethal Weapons

Recognising that IHL does not address NLW as a specific category of weapons, they should be subjected to legal review, like all other new weapons, means, and methods of warfare. Article 36 of Additional Protocol I requires contracting parties to ensure a domestic assessment mechanism64 to determine whether a new weapon complies with any rule of international law that is applicable to a particular state. This requires the involvement of experts belonging to various disciplines, and an examination of “all relevant empirical information pertaining to the weapon, such as its technical description and actual performance, and its effects on health and the environment”.65 It has been argued that all weapons, irrespective of the purpose and the context in which they are used, should be explicitly adjudged under both IHL and IHRL, which reinforce each other in most cases.66 An obligation to carefully evaluate “the development and deployment of non-lethal incapacitating weapons […] in order to minimise the risk of endangering uninvolved persons” has been already contained in the Basic Principles on the Use of Force and Firearms by Law Enforcement 62 The ICRC has expressed criticism with respect to the conclusions reached in ECtHR, Finogenov and others v Russia, Judgement, 20 December 2011, Applications Nos. 18299/03 and 27311/03: in relation to the use of Fentanyl by the Russian special forces during the Moscow theatre siege incident of 2002,

the Court was not provided information about the specific toxic chemicals used and thus was in a difficult position to judge whether the adverse effects of their use should have been foreseen. The dangerous effects of anaesthetic and sedative chemicals are well known, and were illustrated by the deaths of 129 hostages in this incident and permanent disabilities suffered by survivors. In addition, it is evident that the ‘dose’ of a chemical delivered cannot be controlled in such a tactical situation and that it is extremely difficult, if not impossible, in such situations to provide the immediate medical care that might be characterised as adequate to protect life. ICRC 2013a, p. 155. OPCW (2017) Joint Paper Aerosolisation of Central Nervous System-Acting Chemicals for Law Enforcement Purposes, Doc. C-22/NAT.5. 64 See Daoust et al. 2002. 65 ICRC 2006. 66 Casey-Maslen et al. 2014, p. 412. 63

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Officials.67 Assuming that States are under an obligation to take all appropriate measures—of legislative, administrative, judicial or other character—to prevent the employment of a weapon in violation of IHRL, it has been argued that this entails a specific duty to regulate and review the development, acquisition, trade and use of weapons.68 The existence of a specific duty to regulate and review less-lethal weapons has been affirmed by the UN Human Rights Committee in regard to the right to life. Strict independent testing is considered as implementing the obligation to “evaluate and monitor the impact on the right to life of weapons […], which are designed for use or are actually used by law enforcement officials, including soldiers charged with law enforcement missions”. The Committee has further clarified that “[t]he use of such weapons must be restricted to law enforcement officials who have undergone appropriate training, and must be strictly regulated in accordance with applicable international standards”.69 Moreover, the importance of “thorough and independent testing of less-lethal weapons prior to procurement and deployment to establish their lethality and the extent of likely injury, and of monitoring appropriate training and use of such weapons” has been recently reiterated by the UN Human Rights Council.70 What characterises the most recent developments in the field of the regulation of non- or less-lethal weapons is the effort to offer practical guidance as concerns testing, procurement training and monitoring, on the assumption that, in a law enforcement situation, the cumulative principles of legality, necessity, proportionality and precaution govern the use of force by State agents.71 Therefore, testing comprises an evaluation of the effects of all anticipated uses through a multidisciplinary approach, which, in particular, includes an assessment of the potential consequences on vulnerable groups.72 Concern has been raised over the infliction of pain or suffering, as a form of punishment or as a means of coercing the targeted persons, associated with the use of conducted electrical weapons, including tasers, which

67

United Nations 1990, Principle 3. UN General Assembly (2017) Human Rights Council: Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment: Extra-custodial use of force and the prohibition of torture and other cruel, inhuman or degrading treatment or punishment, UN Doc. A/72/178, p. 20. 69 UN Human Rights Committee (2018) General Comment No. 36 on Article 6 of the International Covenant on Civil and Political Rights, on the right to life, UN Doc. CCPR/C/GC/36, para 14. In addition, see Casey-Maslen and Connolly 2017, p. 156. 70 UN General Assembly (2018) Human Rights Council: Resolution 38/11 The promotion and protection of human rights in the context of peaceful protests, UN Doc. A/HRC/RES/38/11, para 16. 71 UN General Assembly (2014) Human Rights Council: Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, UN Doc. A/HRC/26/36. 72 Geneva Academy of International Humanitarian Law and Human Rights 2018, p. 15. 68

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could amount to cruel, inhuman or degrading treatment. Other NLW—including irritant chemicals and acoustic weapons and equipment—might pose a particular risk to the principle of distinction and proportionality because of their indiscriminate effects in certain circumstances, for instance when they are used for maintaining public order during assemblies and demonstrations, because of the difficulties in distinguishing between the targeted individuals and the crowd.

1.7

Concluding Remarks on the Existence of a Duty to Employ Non-Lethal Weapons

The regulatory approach based on a combination of explicit prohibitions and general criteria prohibiting means and methods of warfare causing unlawful consequences seems to reflect the idea of the reactive character of IHL vis-à-vis new weapons, with few exceptions. It is a feature of this branch of international law, which has been criticised for its lack of proactive perspective. Lawyers too— according to this line of reasoning—appear more interested in limiting new technology rather than participating in the development of new ones, including technology with non-lethal capabilities.73 This position appears too severe, as it does not take into consideration the broad temporal application of Article 36 of Additional Protocol I, which requires an assessment of the legality of new weapons at the stages of their “study, development, acquisition or adoption”: it means that it covers all stages of the weapons procurement process, including the initial stages of research (i.e. conception, study) and development (i.e. development and testing of prototypes).74 The content of the second basic principle of the 1990 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials has been regarded as a sort of “unqualified endorsement” for NLW, since it invites governments and law enforcement agencies to develop “non-lethal incapacitating weapons for use in appropriate situations, with a view to increasingly restraining the application of means capable of causing death or injury to persons”.75 The existence of a specific duty to equip law-enforcement officials with self-defensive equipment as well as less-than-lethal weapons is also an expression of the requirements of necessity,

73 74 75

See Megret 2008, p. 46. ICRC 2006, p. 951. United Nations 1990, Principle 2.

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precaution76 and proportionality in the use of force, which derive from the protection of the right to life.77 By way of conclusion, it is important to briefly discuss whether States are obliged to employ non-lethal capabilities, before the use of lethal force, in the course of an armed conflict.78 The position of the NATO policy is clearly in the negative: Neither the existence, the presence nor the potential effect of Non-Lethal Weapons shall constitute an obligation to use Non-Lethal Weapons, or impose a higher standard for, or additional restrictions on, the use of lethal force. In all cases NATO forces shall retain the option for immediate use of lethal weapons consistent with applicable national and international law and approved Rules of Engagement.79

Although it has been predicted that “in the future NLWs would indeed raise the threshold for use of lethal force”,80 a fundamental distinction between the conduct of hostilities paradigm and law enforcement remains that the former “does not suppose the use, if possible, of less-than-lethal weapons”.81 The issue has been raised again with respect to the potential existence of an obligation to deploy combat robots only as non-lethal systems:82 however, in order to support that view, it would be necessary to accept the still controversial position according to which IHL has already evolved—driven by both the principles of military necessity and humanity—to the extent that even in armed conflict lethal force should be used only if no other less harmful alternative is available.83

76

Cf. ECtHR, McCann and Others v The United Kingdom, Grand Chamber Judgement, 27 September 1995, Application No. 18984/91, para 194. 77 See UN Human Rights Committee (2018) General Comment No. 36 on Article 6 of the International Covenant on Civil and Political Rights, on the right to life, UN Doc. CCPR/C/GC/36, para 13: among the measures intended to prevent arbitrary deprivations of life, the Committee mentions, “supplying of forces responsible for crowd control with effective ‘less-lethal’ means and adequate protective equipment in order to obviate their need to resort to lethal force”. Moreover, see UN General Assembly (2016) Human Rights Council: Joint Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of assemblies, UN Doc. A/HRC/31/66, para 54. 78 Cf. Boothby 2016, p. 237. 79 NATO 1999. See Massingham 2012, p. 683. 80 See the comments by David Koplow, quoted in Davison and Lewer 2005, p. 27. 81 ICRC 2013b, p. iv. 82 Geiss 2015, p. 19. 83 Melzer 2009, p. 78; Goodman 2013. Contra, Schmitt 2013. Moreover, see UN Human Rights Committee (2018) General Comment No. 36 on Article 6 of the International Covenant on Civil and Political Rights, on the right to life, UN Doc. CCPR/C/GC/36, para 64: “States parties should, in general, disclose the criteria for attacking with lethal force individuals or objects whose targeting is expected to result in deprivation of life, including […] whether less harmful alternatives were considered”. It is noteworthy that the text adopted by the Committee on the first reading contained a reference to the notion of “non-lethal”: “whether non-lethal alternatives for attaining the same military objective were considered”.

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References Articles, Books and Other Documents Amnesty International, Omega Research Foundation (2015) The human rights impact of less lethal weapons and other law enforcement equipment. https://www.amnesty.org/download/ Documents/ACT3013052015ENGLISH.PDF. Accessed 29 October 2018 Annati M (2014) The Role of Non-Lethal Weapons in Maritime Operations. NATO-NMIOTC Maritime Interdiction Operations Journal 9:38–41 Backstrom A, Henderson I (2012) New capabilities in warfare: An overview of contemporary technological developments and the associated legal and engineering issues in Article 36 weapons reviews. International Review of the Red Cross 94(886):483–514 Bernard V (2016) War in Cities: The spectre of total war. International Review of the Red Cross 98:1–11 Boothby WH (2012) The Law of Targeting. Oxford University Press, Oxford Boothby WH (2016) Weapons and the Law of Armed Conflicts. Oxford University Press, Oxford Bothe M, Partsch KJ, Solf WA (1982) New Rules for Victims of Armed Conflict: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949. Martinus Nijhoff Publishers, Leiden/Boston Carnahan B, Robertson M (1996) The Protocol On “Blinding Laser Weapons”: A New Direction for International Humanitarian Law. American Journal of International Law 90:484–490 Casey-Maslen S (2010) Non-kinetic energy weapons termed ‘non-lethal’: A Preliminary Assessment under International Humanitarian Law and International Human Rights Law. Geneva Academy of International Humanitarian Law and Human Rights, Geneva. https:// www.geneva-academy.ch/joomlatools-files/docman-files/Non-Kinetic-Energy%20Weapons. pdf. Accessed 29 October 2018 Casey-Maslen S, Connolly S (2017) Police Use of Force under International Law. Cambridge University Press, Cambridge Casey-Maslen S, Corney N, Dymond-Bass A (2014) The review of weapons under international humanitarian law and human rights law. In: Casey-Maslen S (ed) Weapons under International Human Rights Law. Cambridge University Press, Cambridge, pp. 411–447 Crowley M (2016) Chemical Control: Regulation of Incapacitating Chemical Agent Weapons, Riot Control Agents and their Means of Delivery. Palgrave, Basingstoke Dahl AW (2012) New Technologies in Counter-Terrorism and Counter-Insurgency Operations. Israel Yearbook on Human Rights 42:215–230 Daoust I, Coupland R, Ishoey R (2002) New wars, new weapons? The obligation of states to assess the legality of means and methods of warfare. International Review of the Red Cross 84:345–363 Davison N (2013) New Weapons: Legal and Policy Issues Associated with Weapons Described as ‘Non-Lethal’. In: Saxon D (ed) International Humanitarian Law and the Changing Technology of War. Martinus Nijhoff Publishers, Leiden/Boston, pp. 281–313 Davison N, Lewer N (2005) Bradford Non-Lethal Weapons Research Project (BNLWRP). Research Report No. 7. University of Bradford, Department of Peace Studies, Centre for Conflict Resolution. https://bradscholars.brad.ac.uk/bitstream/handle/10454/3999/BNLWRPResearchReportNo7_ May05.pdf?sequence=1&isAllowed=y. Accessed 11 April 2019 Dinstein Y (2016) The Conduct of Hostilities Under the Law of International Armed Conflict, 3rd edn. Cambridge University Press, Cambridge European Council Regulation (EC) No. 1236/2005 of 27 June 2005 concerning trade in certain goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment, I OJ L 200/1

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Fidler DP (1999) The International Legal Implications of “Non-Lethal” Weapons. Michigan Journal of International Law 21:51–100 Fidler DP (2013) The Path to Less Lethal and Destructive War? In: Saxon D (ed) International Humanitarian Law and the Changing Technology of War. Martinus Nijhoff Publishers, Leiden/ Boston, pp. 315–336 Fry JD (2010) Gas Smells Awful: U.N. Forces, Riot-Control Agents, and the Chemical Weapons Convention. Michigan Journal of International Law 31:475–558 Geiss R, Siegrist M (2011) Has the armed conflict in Afghanistan affected the rules on the conduct of hostilities? International Review of the Red Cross 93(881):11–46 Geiss R (2015) The International-Law Dimension of Autonomous Weapons Systems. Documentation. Friedrich Ebert Stiftung. http://library.fes.de/pdf-files/id/ipa/11673.pdf. Accessed 29 October 2018 Geneva Academy of International Humanitarian Law and Human Rights (2018) Geneva Guidelines on Less-Lethal Weapons and Related Equipment for Law Enforcement. https:// www.geneva-academy.ch/joomlatools-files/docman-files/Geneva%20Guidelines%20on% 20Less-Lethal%20Weapons%20and%20Related%20Equipment%20in%20Law% 20Enforcement.pdf. Accessed 29 October 2018 Goodman R (2013) The Power to Kill or Capture Enemy Combatants. European Journal of International Law 24:819–853 Group of Governmental Experts of the High Contracting Parties 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 (2018) Report of the 2018 session of the Group of Governmental Experts on Emerging Technologies in the Area of Lethal Autonomous Weapons Systems, UN Doc. CCW/GGE.1/2018/3 Henckaerts JM, Doswald-Beck L (2005) Customary International Humanitarian Law, Volume I: Rules. Cambridge University Press, Cambridge ICRC (2006) A Guide to the Legal Review of New Weapons, Means and Methods of Warfare: Measures to Implement Article 36 of Additional Protocol I of 1977. International Review of the Red Cross. 88(864):931–956 ICRC (2011) International Humanitarian Law and the challenges of contemporary armed conflicts. https://www.icrc.org/en/doc/assets/files/red-cross-crescent-movement/31st-internationalconference/31-int-conference-ihl-challenges-report-11-5-1-2-en.pdf. Accessed 29 October 2018 ICRC (2013a) “Incapacitating chemical agents”: Law enforcement, human rights law and policy perspectives. Expert Meeting. https://www.icrc.org/eng/assets/files/publications/icrc-002-4121. pdf. Accessed 29 October 2018 ICRC (2013b) The Use of Force in Armed Conflicts: Interplay Between the Conduct of Hostilities and Law Enforcement Paradigms. Expert Meeting. https://www.icrc.org/eng/assets/files/ publications/icrc-002-4171.pdf. Accessed 29 October 2018 ICRC (2015) International humanitarian law and the challenges of contemporary armed conflicts. https://www.icrc.org/en/download/file/15061/32ic-report-on-ihl-and-challenges-of-armedconflicts.pdf. Accessed 29 October 2018 ICRC (2019) Germany: Practice Relating to Rule 75. Riot Control Agents. ICRC IHL Database. https://ihl-databases.icrc.org/customary-ihl/eng/docs/v2_cou_de_rule75. Accessed 1 May 2019 Institute for Non-Lethal Defense Technologies (2004) Report on the Third International Law Enforcement Forum: Minimal Force Options and Less-Lethal Technologies. Institute for Non-Lethal Defense Technologies, Applied Research Laboratory of the Pennsylvania State University. https://www.ncjrs.gov/pdffiles1/nij/grants/232752.pdf. Accessed 1 May 2019 Karlsrud J (2017) Towards UN counter-terrorism operations? Third World Quarterly 38:1215– 1231 Kaurin P (2014) The Warrior, Military Ethics and Contemporary Warfare: Achilles Goes Asymmetrical. Ashgate, Farnham

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Koplow DA (2015) Red-Teaming NLW: A Top Ten List of Criticisms About Non-Lethal Weapons. Case Western Reserve Journal of International Law 47:229–238 Longuet S (2016) Permitted for law enforcement purposes but prohibited in the conduct of hostilities: The case of riot control agents and expanding bullets. International Review of the Red Cross 98(901):249–274 Marauhn T (2016) Chemical Weapons and Warfare. In: Max Planck Encyclopedia of Public International Law Massingham E (2012) Conflict without casualties… a note of caution: non-lethal weapons and international humanitarian law. International Review of the Red Cross 94(886):673–685 Mayer C (2007) Nonlethal Weapons and Non-Combatant Immunity: Is it Permissible to Target Noncombatants? Journal of Military Ethics 6:221–231 Megret F (2008) Non-Lethal Weapons and the Possibility of Radical New Horizons for the Laws of War: Why Kill, Wound and Hurt (Combatants) at All? https://ssrn.com/abstract=1295348. Accessed 29 October 2018 Melzer N (2009) Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law. ICRC, Geneva Melzer N, Gaggioli G (2015) Conceptual distinction and overlaps between law enforcement and the conduct of hostilities. In: Gill TD, Fleck D (eds) The Handbook of the International Law Military Operations, 2nd edn. Oxford University Press, Oxford, pp. 63–92 Muhammedally S (2016) Minimizing civilian harm in populated areas: Lessons from examining ISAF and AMISOM policies. International Review of the Red Cross 98(901):225–248 Murray DP (2016) Practitioner’s Guide to Human Rights Law in Armed Conflict. Oxford University Press, Oxford NATO (1999) Policy on non-lethal weapons. https://www.nato.int/cps/ic/natohq/official_texts_ 27417.htm?selectedLocale=en. Accessed 29 October 2018 NATO (2004) Non-Lethal Weapons and Future Peace Enforcement Operations. https://www.sto. nato.int/publications/STO%20Technical%20Reports/RTO-TR-SAS-040/TR-SAS-040-$$ALL. pdf. Accessed 11 April 2019 NATO (2009) Non-Lethal Weapons Effectiveness Assessment Development and Verification Study. https://www.sto.nato.int/publications/STO%20Technical%20Reports/RTO-TR-SAS060/$$TR-SAS-060-ALL.pdf. Accessed 11 April 2019 NATO (2017) Analytical Support to the Development and Experimentation of NLW Concepts of Operation and Employment. TO Technical Report, Doc. STO-TR-SAS-094 Nystuen G (2008) Non-lethal weapons and international humanitarian law. http://www.legal-tools. org/doc/80f124/pdf/. Accessed 11 April 2019 OPCW (2017) Joint Paper Aerosolisation of Central Nervous System-Acting Chemicals for Law Enforcement Purposes, Doc. C-22/NAT.5 Orbons S (2010) Do Non-Lethal Capabilities License to ‘Silence’? Journal of Military Ethics 9:78–89 Sassoli M (2007) Ius ad Bellum and Ius in Bello—The Separation between the Legality of the Use of Force and Humanitarian Rules to be Respected in Warfare: Crucial or Outdated? In: Schmitt M, Pejic J (eds) International Law and Armed Conflict: Exploring the Faultlines, Essays in Honour of Yoram Dinstein. Martinus Nijhoff, Leiden/Boston, pp. 242–264 Schmitt M (2013) Wound, Capture, or Kill: A Reply to Ryan Goodman’s ‘The Power to Kill or Capture Enemy Combatants’. European Journal of International Law 24:855–861 Sossai M (2010) Drugs as Weapons: Disarmament Treaties Facing the Advances in Biochemistry and Non-Lethal Weapons Technology. Journal of Conflict and Security Law 15:5–24 UN General Assembly (2014) Human Rights Council: Resolution 25/38, The promotion and protection of human rights in the context of peaceful protests, UN Doc. A/HRC/RES/25/38 UN General Assembly (2014) Human Rights Council: Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, UN Doc. A/HRC/26/36

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UN General Assembly (2016) Human Rights Council: Joint Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of assemblies, UN Doc. A/HRC/31/66 UN General Assembly (2017) Human Rights Council: Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment: Extra-custodial use of force and the prohibition of torture and other cruel, inhuman or degrading treatment or punishment, UN Doc. A/72/178 UN General Assembly (2018) Human Rights Council: Resolution 38/11 The promotion and protection of human rights in the context of peaceful protests, UN Doc. A/HRC/RES/38/11 UN Human Rights Committee (2018) General Comment No. 36 on Article 6 of the International Covenant on Civil and Political Rights, on the right to life, UN Doc. CCPR/C/GC/36 UN Security Council (2018) Resolution 2423 (2018), UN Doc. S/RES/2423 UN General Assembly/Security Council (2015) Report of the UN High-level Independent Panel on Peace Operations, UN Doc. A/70/95-S/2015/446 United Nations (1990) Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. https://www.un.org/ruleoflaw/files/BASICP*3.PDF. Accessed 11 April 2019 United Nations (2015) Final Report of the Expert Panel on Technology and Innovation in UN Peacekeeping. https://peacekeeping.un.org/sites/default/files/performance-peacekeeping_ expert-panel-on-technology-and-innovation_report_2015.pdf. Accessed 11 April 2019 Watkin K (2006) Chemical Agents and Expanding Bullets: Limited Law Enforcement Exceptions or Unwarranted Handcuffs? Israel Yearbook of Human Rights 36:43–69 White ND (2014) Security Council mandates and the use of lethal force by peacekeepers: What place for the laws of war? In: Harvey C, Summers J, White ND (eds) Contemporary Challenges to the Laws of War: Essays in Honour of Professor Peter Rowe. Cambridge University Press, Cambridge, pp. 95–116 Wills S (2018) Use of Deadly Force by Peacekeepers Operating Outside of Armed Conflict Situations: What Laws Apply? Human Rights Quarterly 40:663–702

Case Law ECtHR, McCann and Others v The United Kingdom, Grand Chamber Judgement, 27 September 1995, Application No. 18984/91 ECtHR, Finogenov and others v Russia, Judgement, 20 December 2011, Applications Nos. 18299/ 03 and 27311/03 ECtHR, Abdullah Yaşa and Others v Turkey, Judgement, 16 July 2013, Application No. 44827/08 ECtHR, Ataykaya v Turkey, Judgement, 22 July 2014, Application No. 50275/08

Treaties Additional Protocol IV 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, opened for signature 13 October 1995, 1380 UNTS 370 (entered into force 30 July 1998) Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, opened for signature 10 April 1972, 1015 UNTS 163 (entered into force 26 March 1975) Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, opened for signature 13 January 1993, 1975 UNTS 45 (entered into force 29 April 1997)

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Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), opened for signature 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978) Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), opened for signature 8 June 1977, 1125 UNTS 609 (entered into force 7 December 1978)

Chapter 2

The Status of Nuclear Deterrence Under International Law in Light of the Treaty on the Prohibition of Nuclear Weapons Stuart Casey-Maslen

Contents 2.1 Introduction........................................................................................................................ 2.2 The Nature and Extent of Nuclear Deterrence ................................................................. 2.2.1 The Purpose of Possession of Nuclear Weapons .................................................. 2.2.2 The Size of the Global Nuclear Arsenal................................................................ 2.3 The Legality of Nuclear Deterrence ................................................................................. 2.3.1 Threat of Use.......................................................................................................... 2.3.2 Threaten to Use ...................................................................................................... 2.3.3 Prohibited Assistance.............................................................................................. 2.4 The Effectiveness of Nuclear Deterrence.......................................................................... 2.5 Concluding Remarks ......................................................................................................... References ..................................................................................................................................

24 25 25 27 31 32 41 42 50 52 53

Abstract Nuclear deterrence is not illegal under international law but is being delegitimised, in part as a result of the adoption of the United Nations Treaty on the Prohibition of Nuclear Weapons. The Treaty prohibits not only possession, control over, threat of use, and use of nuclear weapons or other nuclear explosive devices; it also precludes a state party from encouraging and assisting anyone to engage in such prohibited activities. Moreover, artificial intelligence, offensive cyber operations, and enhanced non-nuclear weapons with strategic impact are combining to render nuclear deterrents ineffective while greatly increasing the risks of unintended Stuart Casey-Maslen is Honorary Professor at the Institute for International and Comparative Law in Africa (ICLA) of the University of Pretoria and, at the time of writing this chapter, was Policy and Research Coordinator for the International Campaign to Abolish Nuclear Weapons (ICAN). S. Casey-Maslen (&) Institute for International and Comparative Law in Africa (ICLA), University of Pretoria, Hatfield Campus, Pretoria, South Africa e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2020 T. D. Gill et al. (eds.), Yearbook of International Humanitarian Law 2018, Yearbook of International Humanitarian Law 21, https://doi.org/10.1007/978-94-6265-343-6_2

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or accidental use. Conflict in February 2019 between two nuclear-armed states, India and Pakistan, has shown the dangers and frailties of nuclear deterrence. Nonetheless, nuclear-armed states are engaging in major nuclear weapon modernisation programmes, resulting in a new nuclear arms race. This new race is characterised by the development and deployment of hypersonic missiles containing multiple independently targetable warheads as well as by variable-yield nuclear weapons. Nuclear disarmament, which was negotiated by statesmen at the height of the Cold War, is urgently needed.







Keywords Nuclear weapons Nuclear deterrence Treaty prohibition disarmament International humanitarian law Conventional weapons




2.1





Nuclear

Introduction

The North Atlantic Treaty Organization (NATO)’s latest Strategic Concept, adopted in November 2010, commits the organisation to “the goal of creating the conditions for a world without nuclear weapons” while at the same time reconfirming that “as long as there are nuclear weapons in the world, NATO will remain a nuclear alliance.”1 The Strategic Concept further recalls that deterrence, “based on an appropriate mix of nuclear and conventional capabilities, remains a core element of [NATO’s] overall strategy.”2 In 2016, however, prior to the negotiation within the United Nations of the Treaty on the Prohibition of Nuclear Weapons (TPNW),3 the United States of America (US) drafted a “Non-Paper” on the ramifications it foresaw of the future treaty prohibition of nuclear weapons.4 In it, the US argued that the future treaty “could […] destroy the basis for […] nuclear extended deterrence”.5 This chapter discusses the legality of nuclear deterrence under international law, taking into account the recently adopted TPNW as well as the 1968 Treaty on the Non-Proliferation of Nuclear Weapons (NPT).6 It considers whether deterrence

1

NATO 2010, Preface and para 17. Ibid., para 17. 3 Treaty on the Prohibition of Nuclear Weapons, opened for signature 20 September 2017, https:// treaties.un.org/doc/Treaties/2017/07/20170707%2003-42%20PM/Ch_XXVI_9.pdf (not yet entered into force) (TPNW). 4 United States 2016. 5 Ibid., para 4. 6 Treaty on the Non-Proliferation of Nuclear Weapons, opened for signature 1 July 1968, 792 UNTS 161 (entered into force 5 March 1970) (NPT). 2

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amounts to an unlawful threat of force under the Charter of the United Nations (UN Charter)7 or customary international law, mindful of the International Court of Justice (ICJ)’s 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons.8 It further assesses whether the undertaking by each state party to the TPNW never under any circumstances to threaten to use any nuclear explosive device or to assist or encourage anyone to engage in prohibited activities (control, possession, stockpiling, transfer, or use of any nuclear explosive device, among others) would preclude continued membership of a nuclear alliance such as NATO. Before opening these discussions, however, it is necessary to define nuclear deterrence as it exists in defence doctrine in a number of states.

2.2 2.2.1

The Nature and Extent of Nuclear Deterrence The Purpose of Possession of Nuclear Weapons

The possession of nuclear weapons is typically described not in terms of their hostile use9 but as a form of shield to dissuade potential aggressors: the ultimate weapon as the ultimate insurance policy. This was articulated by NATO in 2016 in the following manner: “for the Alliance, nuclear weapons play a unique and specific role in its deterrence posture. Their role is to prevent major war, not to wage wars.”10 The strategic aim of deterrence is thus to prevent an armed attack against sovereign territory, especially—but not only—by foreign states. That said, however, the US plans not only to survive an initial nuclear exchange, but also to “win” the resultant conflagration, in an approach sometimes referred to as “counterforce strategy”.11

7 Charter of the United Nations, opened for signature 26 June 1945, 1 UTS XVI (entered into force 24 October 1945). 8 ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, [1996] ICJ Rep 226 (Nuclear Weapons Advisory Opinion). 9 As NATO doctrine declares, for instance, “[t]he circumstances in which any use of nuclear weapons might have to be contemplated are extremely remote.” NATO 2010, para 17. 10 NATO 2016. 11 See United States Office of the Secretary of Defense 2018, p. 20. See also, e.g., Blair et al. 2018, in particular pp. 8–9.

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In addition to the three nuclear-armed states within NATO (France, the United Kingdom, and the US), the other twenty-six members of the Alliance are all protected by what is often described as the US nuclear “umbrella”.12 So, too, are Australia, Japan, and the Republic of Korea. Armenia appears to be protected by the Russian Federation’s nuclear umbrella.13 As has been explained, “[t]he related concept of ‘extended nuclear deterrence’ may be understood as the intended effect of a nuclear umbrella.”14 As Michael Mazarr has observed, the “challenge of deterrence—discouraging states from taking unwanted actions, especially military aggression—has again become a principal theme in U.S. defense policy.” He cautions, however, that if “deterrent threats come to be perceived as a general policy of hostility, they may lose their ability to be applied to deter specific actions.”15 In his work for the RAND Corporation on the notion of “comprehensive deterrence”,16 Sir Lawrence Freedman observed that deterrence’s positive aura was acquired during the Cold War when it is generally held to have worked well. Since 1990 there have been regular discussions of the possibility of achieving comparable results through reconceptualizing deterrence and applying it to the security challenges of the post–Cold War world. The two sets of circumstances, however, appear to be very different. Cold War deterrence was about superpower confrontations and nuclear exchanges. Now the threats are many and varied, posed by states large and small, non-state actors, and even individuals, such as ‘lone-wolf’ terrorists.17

12

According to one definition, a nuclear umbrella is a security arrangement under which the participating states consent to or acquiesce in the potential use of nuclear weapons in their defence. In turn, a “nuclear umbrella state” is a state without nuclear weapons but under the supposed protection of the nuclear weapons of another state. See International Law and Policy Institute 2016a. Switzerland may seek to add its name to the list of umbrella states. Switzerland has been a neutral state since the Treaty of Paris in 1815, holding the record for the longest uninterrupted period of neutrality of any modern nation. It joined the United Nations as a member state only in 2002. In its national assessment of whether or not to adhere to the Treaty on the Prohibition of Nuclear Weapons, published in August 2018, the Swiss Government decided to leave open the option of being protected by a nuclear alliance, presumably NATO: “as a party to the TPNW, Switzerland would reduce its freedom of action and abandon the option of explicitly placing itself under a nuclear umbrella within the framework of such alliances.” Swiss Confederation 2018, p. 6. Such a move would put a decisive end to Swiss neutrality. However, Switzerland has never publicly been offered, let alone accepted, a nuclear security guarantee from any state. 13 See, e.g., Norwegian People’s Aid 2018a, pp. 15, 36. 14 International Law and Policy Institute 2016a. 15 Mazarr 2018, pp. 1 and 9. 16 According to a 2015 draft joint United States (US) Army Special Operations Command (USASOC) and US Special Operations Command (USSOCOM) definition, “comprehensive deterrence” is the “prevention of adversary action through the existence of credible and proactive physical, cognitive and moral capabilities (loosely defined as willpower) that raise an adversary’s perceived cost to an unacceptable level of risk relative to the perceived benefit.” See Wasser et al. 2018, p. ix. 17 Freedman 2018, p. 25.

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Indeed, NATO acknowledges that “minor” wars will not be deterred by the possession of nuclear weapons. As a consequence of this, if an (undefined) “major” armed attack occurs against a NATO member, deterrence has failed by the Alliance’s own terms. The principal legal question in such a scenario is whether nuclear weapons may lawfully be used in self-defence against the attack or as a belligerent reprisal, and, if so, under which conditions.

2.2.2

The Size of the Global Nuclear Arsenal

In terms of global nuclear stockpiles, as of November 2018 the nine nuclear-armed states—China, France, India, Israel, the Democratic People’s Republic of Korea (DPR Korea), Pakistan, the Russian Federation, the United Kingdom, and the US— were believed to possess a combined total of less than 14 500 nuclear warheads. Of this total, more than 5 000 weapons were awaiting dismantlement.18 The vast majority of all nuclear weapons are in either Russian or American hands. As a whole, the global arsenal of nuclear weapons has seen a dramatic and continued reduction in number since the estimated peak of around 70 000 warheads in 1986. This is the result of bilateral agreements between the Union of Soviet Socialist Republics (USSR)/Russian Federation and the US, beginning in the Cold War with the interim Strategic Arms Limitation Treaty (SALT I) signed by US President Richard Nixon and Soviet General Secretary Leonid Brezhnev in 1972.19 This five-year agreement effectively capped the number of inter-continental ballistic missile (ICBM) launchers and submarine-launched ballistic missiles (SLBMs) that could be held by either side.20 At the same time, because the SALT agreement limited only the number of ICBM launchers or missiles that the two superpowers possessed, both went on to develop ICBMs and SLBMs that incorporated several warheads: multiple independently targetable re-entry vehicles (MIRVs).21 The Treaty on the Reduction and Limitation of Strategic Offensive Arms (START I),22 signed by US President George H. W. Bush and Soviet General Secretary Mikhail Gorbachev in 1991, imposed a ceiling of 6 000 strategic nuclear warheads. This represented a very significant reduction from highs of the Cold War.

18

Kristensen and Norris 2018. Interim Agreement Between The United States of America and The Union of Soviet Socialist Republics on Certain Measures With Respect to the Limitation of Strategic Offensive Arms, opened for signature 26 May 1972, https://www.state.gov/t/isn/4795.htm#treaty (entered into force 3 October 1972). 20 See, e.g., JRank 2018. 21 Ibid. 22 Treaty Between the United States of America and the Union Soviet Socialist Republics on Strategic Offensive Reductions, opened for signature 31 July 1991, https://media.nti.org/ documents/start_1_treaty.pdf (entered into force 5 December 1994, terminated 5 December 2009). 19

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Short- and intermediate-range nuclear missiles were eliminated from Europe in the early 1990s following the signature of the Intermediate-Range Nuclear Forces Treaty (INF Treaty)23 by Mikhail Gorbachev and US President Ronald Reagan in 1987. The Strategic Offensive Reduction Treaty (SORT),24 signed by Russian President Vladimir Putin and US President George W. Bush in 2002, and the New START Treaty,25 signed by US President Barack Obama and Russian President Dmitry Medvedev in 2010, further lowered strategic nuclear force levels to 1550 warheads.26 In 2011, the US Department of State wrote that “the end of the Cold War-era nuclear arms race has permitted Russia and the United States to continue reducing their holdings of nuclear weapons to levels unthinkable just a few decades ago.”27 But the total number of nuclear weapons in the world is only one dimension of the nuclear threat. Proliferation that is both vertical and horizontal in nature has occurred over the course of the last 50 years. With regard to horizontal proliferation, three states have become nuclear-weapons powers since the entry into force of the NPT: India and Pakistan in the late 1990s, and, more recently, DPR Korea. Israel, which is believed to have possessed nuclear weapons prior to the NPT’s entry into force, expanded the arsenal after the NPT’s entry into force. Also integral to an assessment of the nature and extent of the global arsenal is vertical proliferation, which occurs not only in the number of warheads that states possess but also in the size of explosive yield of each of those warheads.28 Moreover, at least eight of the nine nuclear-armed states are currently engaged in major nuclear-weapon modernisation projects (the status of DPR Korea’s nuclear weapons development programme was unclear, as of writing).29 The United States alone 23 Treaty Between the United States of America and the Union of Soviet Socialist Republics on the Elimination of Their Intermediate-Range and Shorter-Range Missiles, opened for signature 8 December 1987, 1657 UNTS 2 (entered into force 1 June 1988). The Russian Federation is bound as the successor state to the Soviet Union. 24 Treaty Between the United States of America and the Russian Federation on Strategic Offensive Reductions, opened for signature 24 May 2002, https://www.state.gov/t/isn/10527.htm (entered into force 1 June 2003, terminated 31 December 2012). 25 Treaty between the United States of America and the Russian Federation on Measures for the Further Reduction and Limitation of Strategic Offensive Arms, opened for signature 8 April 2010, https://www.state.gov/documents/organization/140035.pdf (entered into force 5 February 2011). 26 United States Office of the Secretary of Defense 2018, p. 1. 27 United States 2010, p. 6. 28 This yield is typically measured in kilotons (kt) or megatons (MT) of 2,4,6-Trinitrotoluene (TNT). The Hiroshima and Nagasaki bombs were less than 20 kt. Bombs in the megaton range are at least 100 times more powerful. 29 A second summit between President Trump and Chairman Kim to discuss denuclearisation of the Korean peninsula took place on 27–28 February 2019. While it did not end in any new agreement, the two parties were continuing to talk, and President Trump claimed that North Korea would not be pursuing further nuclear testing. See, e.g., Johnson J (2019) ‘Sometimes you just have to walk’: Trump, Kim fail to reach nuke deal at second summit. https://www.japantimes.co. jp/news/2019/02/28/asia-pacific/politics-diplomacy-asia-pacific/trump-says-hes-no-rush-nucleardeal-second-meeting-north-koreas-kim/#.XH1USJBCfX5. Accessed 4 March 2019.

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is expected to spend more than USD 1.2 trillion on the development and production of nuclear weapons in the coming three decades, while the United Kingdom is dedicating programme costs of some USD 230 million over the same period to its renewal of its submarine-based nuclear deterrent.30 Variable-yield nuclear weapons are being incorporated to both Russian and US arsenals.31 In fact, rather than continuing to reduce nuclear stockpiles, instead the world finds itself on the verge of a new nuclear arms race, in potential violation of Article VI of the NPT.32 This race is reflected less in terms of the total number of warheads and more in the sophistication of weapons delivery technologies, specifically those intended to defeat or overwhelm missile defences.33 MIRV capabilities, combined with countermeasures (such as decoys designed to confuse sensors),34 allow a single nuclear weapon’s multiple warheads to each hit a distinct target. When hypersonic speed of weapon delivery is added into the mix, as is the case with Russia’s new Avangard missile, which can reportedly glide down from the upper atmosphere at speeds of up to Mach 20,35 no missile defence system in existence can effectively protect against a major attack.36 No one should be surprised at this renewed nuclear arms race: the roots can be tracked back to the US decision in 2001 to withdraw from the 1972 Anti-Ballistic Missile Treaty (ABM Treaty)37 with the USSR, with the warning signs there for all to see on both sides of the East-West divide.38 Announcing the Russian

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See, e.g., Blunt 2016. See, e.g., Collina 2018. See also Schneider 2018. The Russian Federation tends to refer to “flexible” yield instead of variable yield. 32 NPT, above n 6, Article VI obligates all states parties to “pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament”. 33 See, e.g., Hugo et al. 2017, in particular pp. 8–14. 34 See, e.g., Union of Concerned Scientists undated. 35 See, e.g., Campbell M (2018) Avangard and Poseidon: Russia’s 15,000 mph missile and sea drone are too quick for the West. https://www.thetimes.co.uk/article/828c212a-ea9e-11e8-ae8b93697427c437. Accessed 4 March 2019; Peck 2018. 36 See, e.g., Pifer 2015 and Becker R (2017) Could the US stop a nuclear missile attack? https:// www.theverge.com/2017/5/30/15713966/ballistic-missile-attack-department-of-defense-pentagonnorth-korea. Accessed 4 March 2019. 37 Treaty between the United States of America and the Union of Soviet Socialist Republics on the Limitation of Anti-Ballistic Missile Systems, opened for signature 26 May 1972, 1977 UNTS 424 (entered into force 3 October 1972, US withdrawal 2002). 38 See, e.g., Daalder and Lindsay 2001; Korb LJ (2018) Putin’s Exotic New Missiles Didn’t Come From Nowhere. What Can the US Do in Response? https://thediplomat.com/2018/03/ putins-exotic-new-missiles-didnt-come-from-nowhere-what-can-the-us-do-in-response/. Accessed 4 March 2019; People’s Daily (China) (2001) Russia Responses to US Withdrawal From ABM. http://www.china.org.cn/english/FR/23599.htm. Accessed 4 March 2019; Russian Life (2001) Pres. Putin’s Response to US ABM Withdrawal: Statement by Russian President Vladimir Putin. https://russianlife.com/stories/online/putin-abm-withdrawal/. Accessed 4 March 2019. 31

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Federation’s new nuclear weapons at the beginning of March 2018, President Putin again said they were a direct response to the US’s withdrawal from the ABM Treaty and its continued development of ballistic missile defences—which the Russian government has argued undermine the strategic deterrent value of Russia’s existing nuclear force. “No one has listened to us”, said Putin. “Listen to us now.”39 Later that month, Lawrence Korb, the erstwhile US Assistant Secretary of Defense, claimed that the Trump administration had “made the situation with Russia worse”.40 He observed that the latest (2018) US Nuclear Posture Review included the news that the US was not only modernising all three legs of its nuclear triad, but was also adding two new low-yield nuclear weapons that it would be prepared to use even against cyberattacks.41 The US’ withdrawal from the bilateral 1987 INF Treaty with the USSR (and later the Russian Federation, its successor state), first announced in October 2018, is likely to lead to further production and deployments of short- and intermediate-range nuclear weapons, both in Europe and in Asia. The INF Treaty was the last remaining Cold War-era nuclear arms control agreement still in force. In addition, the US administration has recently rebuffed the offer by President Putin to extend the New START Treaty for five years beyond its impending expiration in February 2021.42 This Treaty, which was signed in 2010, caps deployable strategic nuclear warheads and bombs at 155043 for each of the Russian Federation and the United States of America. No such limits will apply to either party once the agreement expires. Given this new geopolitical environment, it must be expected that the Russian Federation will feel it has no alternative but to find trillions of Russian rubles to match US expenditure on its own nuclear arsenal, out of fear that it faces an existential threat from US aggression. Concerned about Chinese expansionism in the South China Sea, the US may well seek to deploy short- and intermediate-range nuclear missiles in South Asia.44 China will naturally respond by increasing the size Gallagher S (2018) Putin boasts new strategic weapons will make US missile defense “useless”. https://arstechnica.com/tech-policy/2018/03/putin-boasts-new-strategic-weapons-will-makeus-missile-defense-useless/. Accessed 4 March 2019. 40 Korb LJ (2018) Putin’s Exotic New Missiles Didn’t Come From Nowhere. What Can the US Do in Response? https://thediplomat.com/2018/03/putins-exotic-new-missiles-didnt-come-fromnowhere-what-can-the-us-do-in-response/. Accessed 27 March 2019. 41 United States Office of the Secretary of Defense 2018, pp. II–III and X–XIII. 42 Reuters (2018) Putin says he told Trump that Russia prepared to extend START treaty: Fox News. https://www.reuters.com/article/us-usa-russia-summit-start/putin-says-he-told-trump-thatrussia-prepared-to-extend-start-treaty-fox-news-idUSKBN1K62UU. Accessed 27 March 2019. 43 Each heavy bomber, however, is counted as one warhead even if its load bay in fact holds multiple warheads. 44 See, e.g., Savitsky A (2018) US Withdrawal from INF Treaty: Implications for Asia Pacific. https://www.strategic-culture.org/news/2018/10/23/us-withdrawal-from-inf-treaty-implicationsfor-asia-pacific.html. Accessed 4 March 2019; Kuo MA (2018) US Withdrawal From INF Treaty: Impact on China. https://thediplomat.com/2018/11/us-withdrawal-from-inf-treaty-impact-onchina/. Accessed 4 March 2019. 39

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of its nuclear arsenal.45 India in turn will respond to China’s greater nuclear power by increasing its own holdings of nuclear weapons, leading Pakistan to accelerate its own production schedule. Some of these new deployments may take place in space (treaty prohibitions notwithstanding).46 At the same time, any faint vestiges of the prospects for a disarmed DPR Korea will fade away into oblivion, and the regime in Pyongyang will pursue further vertical nuclear proliferation. Iran and Saudi Arabia stand waiting in the wings. In late January 2019, it was reported in the media that a secret ballistic missile base had been detected inside Saudi Arabia, a possible precursor to the development of nuclear weapons.47 In this way, deterrence yields to domino theory, spurring renewed vertical and horizontal proliferation. In such circumstances, those who laud the success of the NPT—the “cornerstone” of the nuclear non-proliferation regime48—may feel constrained to reassess their views.

2.3

The Legality of Nuclear Deterrence

Set against this backdrop of gargantuan weapons expenditure, it is appropriate to question to what extent it is lawful to possess an arsenal of weapons each of which is capable of killing hundreds of thousands of people in an instant? And, if it is, are there any constraints that are imposed on the development, maintenance, and application of these weapons by international law? This demands critical investigation of the law applicable both ad bellum and in bello.

Moreover, there are discussions among Chinese policymakers about China moving to a “launch on warning” nuclear stance. Remarks at the European Union conference on non-proliferation and disarmament, Brussels, 18 December 2018, by Tong Zhao, a Beijing expert on cyber operations, (author’s notes). Launch on warning is a “hair-trigger” alert designed to ensure a response to an incoming nuclear strike, but it also hugely augments the likelihood of a launch in error. 46 States parties to the 1967 Outer Space Treaty “undertake not to place in orbit around the Earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in outer space in any other manner”. Treaty on principles governing the activities of states in the exploration and use of outer space, including the moon and other celestial bodies, opened for signature 27 January 1967, 610 UNTS 205 (entered into force 10 October 1967), Article 4. The five permanent members of the UN Security Council are all party to the Treaty. 47 Gambrell J (2019) Satellite imagery appears to show Saudi ballistic missile program: experts. https://globalnews.ca/news/4893032/saudi-arabia-ballistic-missiles/. Accessed 4 March 2019. 48 United States 2010, p. 6. Affirmation repeated in TPNW, above n 3, Preamble. 45

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2.3.1

Threat of Use

At the heart of nuclear deterrence is the warning that nuclear weapons will be launched in a more or less well-defined set of circumstances against military objectives or civilian objects. The threat of use of nuclear weapons may violate the law on inter-state use of force (jus ad bellum) as well as the law of armed conflict (the mainstay of jus in bello). These branches of law are discussed in turn.

2.3.1.1

The Legality of the Threat of Use of Nuclear Weapons Under Jus ad Bellum

As is well known, the bedrock of contemporary jus ad bellum is Article 2(4) of the UN Charter, which stipulates: “all Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” This represents a general—and very broad—prohibition on the threat of force by one state against or on the territory of another.49 Not all threatened force, though, is unlawful under Article 2(4) of the UN Charter. The so-called Brownlie formula on the legality of a threat to use force holds that only if a government promises to use force “in conditions for which no justification for the use of force exists, the threat itself is illegal”.50 This doctrine has been endorsed by the ICJ. In its 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the Court stated as follows: “if the envisaged use of force is itself unlawful, the stated readiness to use it would be a threat prohibited under Article 2, para 4.”51 Later in the same paragraph of its Advisory Opinion, the Court returned to the same theme, affirming that: The notions of ‘threat’ and ‘use’ of force under Article 2, para 4, of the Charter stand together in the sense that if the use of force itself in a given case is illegal—for whatever reason—the threat to use such force will likewise be illegal. In short, if it is to be lawful, the declared readiness of a State to use force must be a use of force that is in conformity with the Charter.52

Most obviously, therefore, a threat by one state to defend itself by all lawful means following an armed attack by another state would not violate Article 2(4) of the UN Charter.53 This demands compliance with the ad bellum principles of

49 50 51 52 53

Dinstein 2017, paras 255–258. Brownlie 1963, p. 364. Nuclear Weapons Advisory Opinion, above n 8, para 47. Ibid. Dinstein 2017, para 249.

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necessity and proportionality54 and, by extension, if the dicta by the ICJ in the Oil Platforms case are correct,55 that the threatened targets of force must also be lawful military objectives under the law of armed conflict.56 That said, the majority decision of the Court in the 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, whereby the Court was unable to “conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake”, can be read in different ways.57 In contrast, it is assuredly true that, as the ICJ has also observed, “it would be illegal for a State to threaten force to secure territory from another State, or to cause it to follow or not follow certain political or economic paths.”58 But what act or omission, statement or implication, constitutes a threat, however, has never been the subject of either clarity or consensus. For Brownlie, a threat of force “consists in an express or implied promise by a government of a resort to force conditional on non-acceptance of certain demands of that government”.59 This is too narrow. A threat could equally well be gratuitous, vindictive, or punitive, pledging a certain course of action at the whim of the sovereign without making either general or specific demands on another state.60 In September 2017, for instance, following the tightening of UN Security Council sanctions against DPR Korea, the Korea Asia-Pacific peace committee, which oversees the nation’s relations with the outside world, said in a statement: “the four islands of the [Japanese] archipelago should be sunken into the sea by the nuclear bomb of Juche.” It also called for the US mainland to be reduced to “ashes and darkness”. “Let’s vent our spite, the statement continued, “with mobilisation of all retaliation means which have been prepared till now”.61 This was clearly an unlawful threat of force (and no demands were made of either Japan or the US). For, as the ICJ duly noted, “no State—whether or not it defended the policy of

54 ICJ, Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America), Judgment (Merits), 27 June 1986, [1986] ICJ Rep 14 (Nicaragua case), para 194. 55 ICJ, Oil Platforms case (Iran v United States of America), Judgment (Merits), 6 November 2003, [2003] ICJ Rep 161, para 76. 56 See Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), opened for signature 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978) (AP I), Article 52(2). Dinstein 2017, para 490 dismisses the stance of the ICJ as wrongly crossing the frontier between ad bellum and in bello, but there is logic in the Court’s approach. 57 Nuclear Weapons Advisory Opinion, above n 8, dispositif E. 58 Ibid., para 47. 59 Brownlie 1963, p. 364. 60 Dinstein 2017, para 252. 61 See, e.g., McCurry J (2017) We will sink Japan and turn US to ‘ashes and darkness’, says North Korea. https://www.theguardian.com/world/2017/sep/14/north-korea-threat-sink-japan-usashes-darkness. Accessed 4 March 2019.

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deterrence—suggested to the Court that it would be lawful to threaten to use force if the use of force contemplated would be illegal.”62 In contradistinction, the ICJ’s categorisation of what amounts to a threat was oblique, to say the least. The Court said that: “whether a signalled intention to use force if certain events occur is or is not a ‘threat’ within Article 2, para 4, of the Charter depends upon various factors.”63 It refrained, though, from elucidating on what the constituent elements might be of “a signalled intention to use force”. While overt pledges of future force such as the North Korean example offered above clearly meet the criteria, in other cases it might not be so clear. What, for instance, is one to make of the question posed by a spokesperson for the Ministry of Foreign Affairs of the Russian Federation in March 2018, following the attempted murder of a former Russian double-agent and his daughter in Salisbury in the United Kingdom: “who does Britain think it is, issuing ultimatums to a nuclear power?”64 In the late 1980s, Sadurska described a threat as “an act that is designed to create a psychological condition in the target of apprehension, anxiety and eventually fear, that will erode the target’s resistance to change or will pressure it toward preserving the status quo”.65 The nature of the threat may be implicit as well as explicit. Sadurska describes an explicit threat as one that is “articulated […] orally or in a document or communiqué”.66 But so too may be an implicit threat, as Russia’s rhetorical question demonstrates.67 More debatably, Sadurska suggests that adherence to a military alliance may in and of itself amount to such a threat.68 Of course, it may be that a military alliance —and by extension its members—threatens the use of force in particular circumstances. It is not, however, the membership per se of that alliance that constitutes the threat, just as the possession of weapons does not automatically amount to a threat of the use of force under international law. Here, too, the ICJ’s analysis in its 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons left a lot to be desired. The Court stated: Some States put forward the argument that possession of nuclear weapons is itself an unlawful threat to use force. Possession of nuclear weapons may indeed justify an inference of preparedness to use them. In order to be effective, the policy of deterrence, by which those States possessing or under the umbrella of nuclear weapons seek to discourage

62

Nuclear Weapons Advisory Opinion, above n 8, para 47. Ibid. 64 See, e.g., Gourtsoyannis P (2018) Russia warns UK. https://www.scotsman.com/news/uk/ russia-warns-uk-no-one-should-threaten-a-nuclear-power-1-4705019. Accessed 4 March 2019. 65 Sadurska 1988, p. 241. 66 Ibid., p. 242. 67 See, also with respect to implicit threats: PCA, Award in the arbitration regarding the delimitation of the maritime boundary between Guyana and Suriname, Award, 17 September 2007, XXX RIAA 1, paras 432–39. Surprisingly, however, the Court of Arbitration designated the rather opaque statement “the consequences will be yours” as an overt threat to use force. 68 Sadurska 1988, p. 243. 63

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military aggression by demonstrating that it will serve no purpose, necessitates that the intention to use nuclear weapons be credible.69

But an intention is not a synonym for a threat: intention is substantially broader in scope. As also argued by Casey-Maslen,70 a threat of use of a nuclear weapon occurs when it is averred or implied, by declaration or deed, that the weapon will be used proximately in time, against or on the territory of another state. This is so, whether or not action is required of the target state if use is ostensibly to be avoided. But the threat must indeed be credible. A state that is clearly engaging in empty political gesturing (for instance, because it does not itself have a nuclear weapon nor hold sway over its use by another) does not breach its international legal obligations. A tacit threat may, as Dinstein affirms, exist through a demonstration of military capability in a provocative manner.71 This would not, however, normally occur in a routine military operation or exercise.72 Thus, in its judgment in the Nicaragua case, the ICJ held that US military exercises conducted jointly with Honduras near the border with Nicaragua “in the circumstances in which they were held” did not constitute an unlawful threat of force.73 Similarly, in 1949, in the Corfu Channel case, the Court did not consider that certain actions at the time of the British Navy had amounted to “a demonstration of force for the purpose of exercising political pressure” on Albania, but as a legitimate protective measure.74 A clear instance of where acts related to nuclear weapons might amount to an implicit—and potentially unlawful—threat of force is in the nuclear tests conducted by India and Pakistan in 1998. While, arguably, India’s tests were also intended as a warning to China,75 India and Pakistan were sending a clear signal to each other through the multiple tests. Indeed, in the subsequent discussions on the tests in the UN Security Council, Ambassador Robert Fowler of Canada said that India and Pakistan had “returned the world to the dark threat of nuclear terror”.76 India’s Minister of Home Affairs, L. K. Advani, stated at the time: “Islamabad should realise the change in the geo-strategic situation in the region and the world. It must roll back its anti-India policy especially with regard to Kashmir. Any other course will be futile and costly for Pakistan.”77 Then on 2 June 1998, at a Special

69

Nuclear Weapons Advisory Opinion, above n 8, para 48. Casey-Maslen 2019, para 1.82. 71 Dinstein 2017, para 253. 72 See ibid., citing the Report of the Independent International Mission on the Conflict in Georgia. 73 Nicaragua case, above n 54, paras 92 and 227. 74 ICJ, Corfu Channel case (United Kingdom v Albania), Judgment (Merits), 9 April 1949, [1949] ICJ Rep 4, p. 35. 75 See, e.g., Keck 2013. 76 United Nations (1998) Security Council Condemns Nuclear Tests by India and Pakistan. https://www.un.org/press/en/1998/sc6528.doc.htm. Accessed 4 March 2019. 77 Cited in Inderjit S (2017) Advani Tells Pakistan to Roll Back Its Anti-India Policy. Times of India. 19 May. 70

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Session of the Conference on Disarmament, Indian Ambassador Savitri Kunadi delivered a statement in which she said that her country did “not intend to use these weapons for aggression or for mounting threats against any country; these are weapons of self-defence, to ensure that India is not subjected to nuclear threats or coercion. We do not intend to engage in an arms race.”78 In response, Pakistan’s Ambassador, said: For many years, Pakistan has been trying to draw the attention of the international community and of this body to the dangers of conflict, including the nuclear threat emanating from India. […] India conducted its tests on 11 and 13 May 1998. As we found, these tests were soon followed with provocative statements and threats against Pakistan. These threats culminated in reports of a planned pre-emptive strike against Pakistan’s sensitive facilities in the night of 28 May 1998. […] Our decision to test, Mr. President, became virtually inevitable because of three factors: firstly, the steady escalation in the provocations and threats emanating from India. We were told that India is a nuclear-weapon state. We have just heard that repeated here today. We were told India would use nuclear weapons. We were told that the strategic balance had been altered by India’s tests, and now India could teach Pakistan a lesson. We had to take that into account. Secondly, there was the weak and partial response of the world community to India’s tests and threats. Obviously, no-one was—and no-one is—willing to underwrite Pakistan’s security. We have to do it ourselves. Therefore, the criticism which has been voiced by some of our friends, who enjoy the NATO security umbrella, of Pakistan’s testing; this we believe was not even-handed. The third factor relevant to our decision was the realization that, given the nature of the Indian regime, we could not leave them in any doubt about the credibility of our capability to deter and respond devastatingly to any aggression against our country or pre-emptive [strike] against our facilities.79

2.3.1.2

The Legality of the Threat of Use of Nuclear Weapons Under the Law of Armed Conflict

Denial of Quarter There are very few instances in which a threat of force (as opposed to its use) is addressed by the law of armed conflict. One such act in bello, however, is the denial of quarter—“we will be taking no prisoners”—where it is announced that all those who seek to surrender will be summarily executed. Rule 46 of the International Committee of the Red Cross (ICRC)’s Study of Customary International Humanitarian Law, published in 2005, holds that: “ordering that no quarter will be given, threatening an adversary therewith or conducting hostilities on this basis is

78 79

Acronym Institute 1998 (emphasis added). Ibid. (emphasis added).

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prohibited.”80 This rule, the ICRC states, applies to all armed conflicts, whether international or non-international in character.81 It could be argued that threatening to use a nuclear weapon against a military garrison or a defended city (if one further assumes, for the sake of argument, that the city has been evacuated of all civilians) is tantamount to threatening that there will be no survivors. This would be, though, to misconstrue the rule. As noted above, the rule is actually dictating that those taking a direct part in hostilities who seek to surrender must be allowed to do so and must be respected and protected. But it is not unlawful to kill such fighters before an attempted act of surrender, for instance by bombardment, and even potentially through the use of a nuclear weapon.82 Terrorisation of the Civilian Population More problematic for the potential user of a nuclear weapon is the second rule that governs threatened use of force: the prohibition on threats of violence whose main aim is to spread terror among the civilian population. This rule, which applies to all armed conflicts, holds that: “acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.”83 In its judgment in the Galić case, the Appeals Chamber declared its satisfaction that the prohibition of terror against the civilian population as enshrined in the two 1977 Additional Protocols to the Geneva Conventions was a norm of customary international law “from the time of its inclusion in those treaties”.84 While Judge Wolfgang Schomburg dissented from the majority’s finding that the prohibition of terror attracted individual criminal responsibility under international criminal law, he did agree that there could be “no doubt” that the primary rule per se was part of customary international law.85 Perhaps surprisingly, the ICJ did not consider this prohibition in assessing which rules of the law of armed conflict could act to render nuclear weapons illegal (especially given its contentious finding that possession on its own may amount to a threat of use). A threat to use a nuclear weapon against a populated area, such as a city, would be highly likely to infringe the customary prohibition on threatening terror. The Special Court for Sierra Leone (SCSL) judged Charles Taylor, the former President of Liberia, for his involvement in the non-international armed conflict in Sierra Leone in the late 1980s and the 1990s. In dismissing his appeal against conviction for complicity, the Appeals Chamber declared itself satisfied that 80

ICRC 2005b. Ibid. 82 Provided, of course, that the use of weapon did not violate the rules of proportionality in attack and the prohibition on means and methods of warfare of a nature to cause superfluous injury or unnecessary suffering. 83 ICRC 2005a. 84 ICTY, Prosecutor v Stanislav Galic, Judgement, 30 November 2006, Case no. IT-98-29-A, para 86. 85 Ibid., Dissenting Opinion of Judge Wolfgang Schomburg, para 2. 81

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Revolutionary United Front (RUC)/Armed Forces Revolutionary Council (AFRC) used acts of terror as its “primary modus operandi”: The RUF/AFRC pursued a strategy to achieve its goals through extreme fear by making Sierra Leone ‘fearful’. The primary purpose was to spread terror, but it was not aimless terror. Barbaric, brutal violence was purposefully unleashed against civilians because it made them afraid – afraid that there would only be more unspeakable violence if they continued to resist in any way, continued to stay in their communities or dared to return to their homes. It also made governments and the international community afraid—afraid that unless the RUF/AFRC’s demands were met, thousands more killings, mutilations, abductions and rapes of innocent civilians would follow. The conflict in Sierra Leone was bloody because the RUF/AFRC leadership deliberately made it bloody.86

Given the destructive power of nuclear weapons, whether in the kiloton or megaton range, what this means is that a threatened use of a nuclear weapon against a city could be a serious violation of the law of armed conflict, even if that threat does not materialise into use. The evidentiary threshold may, though, prove tricky to meet. First, it is not enough that spreading terror be a reasonably foreseeable consequence of the threat, it must be the primary purpose (though not necessarily the sole purpose). The threat must also occur in the context of an armed conflict and with sufficient nexus to it. Belligerent Reprisals The further claim for potentially lawful use against a populated area, when the rules of distinction and proportionality are not complied with, is as a belligerent reprisal. Belligerent reprisals refer to acts by one party that would normally be unlawful under the law of armed conflict, but which are not prohibited on the basis that they seek, within defined conditions, to bring an adverse party back into compliance with the law. They are, in the words of the International Criminal Tribunal for the former Yugoslavia (ICTY), “inherently a barbarous means of seeking compliance with international law”.87 Nonetheless, they are one of the few means by which a party to an armed conflict may realistically seek compliance with the law of armed conflict while hostilities continue on the battlefield. Regrettably, in its 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the ICJ declined to consider the legality of threat or use of belligerent reprisals, claiming that it did not “have to pronounce on the question of belligerent reprisals save to observe that in any case any right of recourse to such reprisals would, like self-defence, be governed, inter alia, by the principle of proportionality.”88 Given that the use of ICBMs is typically threatened against population centres in the context of belligerent reprisals, and that the Court was asserting that a threat of force could only be lawful if the force would itself be 86

SCSL, Prosecutor v Charles Ghankay Taylor, Judgment, 26 September 2013, Case No. SCSL-03-01-A, para 300. 87 ICTY, Prosecutor v Zoran Kupreškić and others, Judgment, 14 January 2000, Case No. IT-95-16-T, para 528. 88 Nuclear Weapons Advisory Opinion, above n 8, para 46.

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lawful if the threat were carried out (i.e. the Brownlie formula), the Court’s reticence in this regard is hard to fathom. There are six conditions that must all be fulfilled for a belligerent reprisal to be lawful. These conditions are as follows: (1) an act of reprisal by one party must be in response to a prior unlawful act by an adverse party, (2) the act of reprisal must be in response to serious violations of the law of armed conflict, (3) recourse to a reprisal must be necessary in the circumstances, (4) the primary intent of the reprisal must be to end the adverse party’s serious violations of the law of armed conflict, (5) the act of reprisal must be proportionate to those serious violations, and (6) reprisals must not be committed against prohibited targets. First, a reprisal may only be conducted in response to a prior act or acts that violate the law of armed conflict. Thus, the mass killing of combatants on the battlefield (including by a nuclear weapon) would not meet this test. A violation of jus ad bellum, even if it were serious, such as in the case of aggression, would equally not found the right to conduct a belligerent reprisal under the law of armed conflict. Moreover, the act or acts in bello must be clearly unlawful, meaning that they must be deliberate; a mistake in targeting would not suffice. Second, a reprisal is only possible in response to serious violations of the law of armed conflict, such as war crimes. An individual violation will not suffice unless it is exceptionally grave, for instance when many civilians are intentionally killed in a single attack that is not targeted at a lawful military objective (which could of course be a nuclear attack on a city). Third, the reprisal must be necessary, meaning that if other, less brutal means can reasonably be expected to achieve the aim of returning an enemy to compliance with the law of armed conflict they must first be pursued. Such measures would normally include a warning to the offending party to cease its unlawful behaviour, combined with a reasonable time period within which a commitment to renewed compliance must be confirmed. The warning should identify clearly the acts that are the basis for a possible future reprisal and make explicit the potential consequences of a failure to respond positively to the warning. Fourth, belligerent reprisals must be conducted with a view to bringing the adverse armed force back into compliance with the law of armed conflict. In its judgment in the Martić case, the ICTY Trial Chamber claimed that this aim must be the sole purpose of the acts taken.89 There is only very limited state practice to support this position, and it must be considered an inexact appraisal of the law. Acts carried out purely in revenge or as a form of collective punishment remain unlawful. But ignoble secondary motivations would not serve to prohibit a lawful reprisal as long as its primary purpose is to promote renewed compliance with the law by the adverse party. Fifth, as the ICJ observed, acts of belligerent reprisal must be proportionate to the original serious violations of the law of armed conflict (while also being such as to engender a return to compliance by the offending party). Excessive use of force is

89

ICTY, Prosecutor v Milan Martić, Judgment, 2 June 2007, Case No IT-95-11-T, para 465.

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unlawful, and acts of reprisal must cease as soon as their objective, the return to compliance with the law of armed conflict, have been achieved. As Christopher Greenwood has asserted, reprisals “should exceed neither what is proportionate to the prior violation nor what is necessary if they are to achieve their aim of restoring respect for the law.”90 Sixth, and finally, reprisals must not be committed against prohibited targets. Treaty and custom has designated certain persons (e.g., prisoners of war) or objects (e.g., hospitals) that may never be targeted with reprisals. Whether reprisals against civilians in enemy territory are prohibited, though; is contentious. There is a treaty prohibition in the 1977 Additional Protocol I, which provides that: “attacks against the civilian population or civilians by way of reprisals are prohibited.”91 In its 1987 commentary on this provision, the ICRC overreached in asserting that the prohibition “is not subject to any conditions and it therefore has a peremptory character.”92 Given the strong opposition by a small number of specially affected states, however, voiced both at the time and subsequently, it is not possible to state with certainty that the norm is of a customary nature, let alone that it has attained the status of jus cogens. Indeed, the ICRC’s own study of customary law, published in 2005, concluded that: “because of existing contrary practice, albeit limited, it is difficult to conclude that there has yet crystallized a customary rule specifically prohibiting reprisals against civilians during the conduct of hostilities. Nevertheless, it is also difficult to assert that a right to resort to such reprisals continues to exist based on the practice of only a limited number of States, some of which is also ambiguous. Hence, there appears, at a minimum, to exist a trend in favour of prohibiting such reprisals.”93 Among relevant practice, the United States of America, a state not party to the 1977 Additional Protocol I, has expressed its view that the provisions in the Protocol on reprisals are “counterproductive” and that “they remove a significant deterrent that protects civilians and war victims on all sides of a conflict”.94 In 1998, the United Kingdom attached an “understanding” to its ratification of the Protocol whereby it would accept prohibitions on targeting civilians on the basis that any adverse party against which the United Kingdom might be engaged will itself scrupulously observe those obligations. If an adverse party makes serious and deliberate attacks […] against the civilian population or civilians or against civilian objects, […] the United Kingdom will regard itself as entitled to take measures otherwise prohibited by the Articles in question to the extent that it considers such measures necessary for the sole purpose of compelling the adverse party to cease committing violations under those Articles.95 90 91 92 93 94 95

Greenwood 1989, p. 44. AP I, above n 56, Article 51(6). Sandoz et al. 1987, para 1984. ICRC 2005c. Sofaer 1987, p. 469. United Kingdom 1998, para m.

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France, also a state party to the 1977 Additional Protocol I, has declared that it will respect the prohibition on reprisals against enemy civilians insofar as it “does not constitute an obstacle to the use, according to international law, of the means which it considers indispensable to protect its civilian population against grave, clear and deliberate violations of the 1949 Geneva Conventions and of the Protocol by the enemy.”96 Egypt,97 Germany,98 and Italy99 have also reserved the right to react to serious violations of the Protocol with any means permitted by international law to prevent further violations. The list of specially affected states seemingly precludes the existence of a customary prohibition on belligerent reprisals against civilians in enemy territory. However, can one truly say that a massive nuclear response targeted at cities in response to prior devastation of one’s own population centres is actually intended to bring the enemy back into compliance with the law of armed conflict? Or is it not just an act of revenge, pure and simple?

2.3.2

Threaten to Use

No such reservations about the law apply with respect to the TPNW (not yet in force as of writing). Article 1(1)(d) of the Treaty obligates each state party “never under any circumstances to: […] threaten to use nuclear weapons or other nuclear explosive devices” while also outlawing their development, possession, stockpiling, and transfer. The nature of the undertaking “never under any circumstances” in the chapeau of Article 1(1) is all-encompassing, permitting no exception, even in response to aggression (ad bellum) or as a belligerent reprisal (in bello). In the negotiation of the provision, a number of states had called for a prohibition on the “threat of use” of nuclear weapons. Such a construction would have been considerably wider, going to the heart of reliance on a nuclear umbrella, but would have fallen foul of the well-established principle against binding states not party to the treaty without their consent: pacta tertiis nec nocent nec prosunt.100 Accordingly, the obligation never under any circumstances to threaten to use a nuclear weapon under Article 1(1)(d) of the TPNW is not transgressed by the mere fact of adherence to a nuclear alliance. It even does not occur per se owing to the fact of possessing a nuclear weapon. That much may be discerned from the wording of Article 2(1)(b) of the Treaty, which requires a state party to declare whether it 96 France 2001, para 11. Moreover, both France and the United Kingdom do not believe that AP I governs the use of nuclear weapons. 97 Egypt 1992. 98 Germany 1991. 99 Italy 1986. 100 According the 1969 Vienna Convention on the Law of Treaties (“General rule regarding third States”): “[a] treaty does not create either obligations or rights for a third State without its consent.” Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980) (VCLT), Article 34.

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owns, possesses or controls any nuclear weapons or other nuclear explosive devices, “[n]otwithstanding Article 1(a)”. The absence of any reference to Article 1(1)(d) of the Treaty is notable, indicating that possession does not equate to a prohibited threat to use.101 To threaten to use a nuclear weapon is an act of only the state party itself, and not that of another state, entity, or actor threatening use against a designated target. As is the case with the general prohibition on the threat of use of force, discussed above, there does not need to be a demand for certain action to be taken for a violation to arise. Pure malevolence, for instance, or a desire to distract from political problems at home would suffice, even if no action was demanded on the part of the target state or states.102

2.3.3

Prohibited Assistance

This does not mean, however, that a state may adhere to the TPNW and continue to enjoy the protection it believes is afforded by extended nuclear deterrence. Under Article 1(1)(e) of the TPNW, each state party undertakes “never under any circumstances to: […] Assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Treaty”. This prohibition on assistance or encouragement is not an innovation in disarmament law. An undertaking not to assist, encourage, or induce, in any way, the conduct of activities prohibited to a state party was first included in Article III of the 1971 Biological Weapons Convention.103 There, however, it was formulated in less restrictive terms, precluding assistance or encouragement only for manufacture or acquisition. Moreover, the scope of the restraint was specifically limited to “any State, group of States or international organisations” and thus did not explicitly outlaw such assistance when provided to natural persons (i.e. individuals) or legal persons, such as corporations.104 A considerably broader construction was incorporated in the 1992 Chemical Weapons Convention, whereby each state party “undertakes never under any circumstances: […] To assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this

101

Cf. Stürchler 2007, pp. 83–85. Casey-Maslen 2019, para 1.81. 103 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, opened for signature 10 April 1972, 1015 UNTS 163 (entered into force, 26 March 1975). 104 Under Article III of the Convention, each state party “undertakes not … in any way to assist, encourage, or induce any State, group of States or international organisations to manufacture or otherwise acquire any of the agents, toxins, weapons, equipment or means of delivery specified in Article I of the Convention”. Ibid., Article III. 102

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Convention.”105 This wording was reproduced in the 1997 Anti-Personnel Mine Ban Convention106 as well as in the TPNW itself. The scope of the undertaking in Article 1(1)(e) of the TPNW is broad. This is evidenced by the phrase “in any way”, which encompasses indirect as well as direct actions. Potentially, this pertains not only to prohibited activities with respect to an assembled nuclear explosive device, but also to its key components. This is so, at least where there was knowledge on the part of the state party of the recipient’s intent. The word “anyone” is similarly to be construed broadly, as is the case with respect to the 1992 Chemical Weapons Convention.107 In the TPNW, it means any natural or legal person108 (including not only a company but also an international organisation)109 as well as any state (whether party or not to the Treaty) and any non-state actor.110 The term is intended to be comprehensive.111 The prohibited activities are those set out in the other subparagraphs of Article 1(1) of the TPNW, namely to: develop, test, produce, manufacture, otherwise acquire, possess or stockpile nuclear weapons or other nuclear explosive devices; transfer to any recipient whatsoever or control over such weapons or explosive devices directly or indirectly; receive the transfer of or control over such weapons or other devices directly or indirectly; use or threaten to use such weapons or devices; allow any stationing, installation or deployment of any nuclear weapons or other nuclear explosive devices in its territory or at any place under its jurisdiction

105 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, opened for signature 13 January 1993, 1975 UNTS 45 (entered into force 29 April 1997), Article I(1)(d). 106 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction, opened for signature 3 December 1997, 2056 UNTS 211 (entered into force 1 March 1999) (Anti-Personnel Mine Ban Convention), Article 1(1) (c). 107 Krutzsch and Trapp 1994, p. 18. 108 See, e.g., Portmann 2013. 109 An international organisation is defined by the International Law Commission, for the purpose of its 2011 draft articles on their responsibility under international law, as an “organization established by a treaty or other instrument governed by international law and possessing its own international legal personality. International organizations may include as members, in addition to States, other entities”. International Law Commission 2011, Article 2(a). See also Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, opened for signature 21 March 1986, UN Doc. A/CONF.129/15 (not yet entered into force), Article 2(1)(i), which defines an international organisation simply as “an intergovernmental organization”. 110 UN Security Council Resolution 1540 defines a non-state actor, albeit for the purpose of that resolution only, as an “individual or entity, not acting under the lawful authority of any State in conducting activities which come within the scope of this resolution”. UN Security Council (2004) Resolution 1540 (2004), UN Doc. S/RES/1540, unnumbered footnote. 111 With regard to non-state actors, Resolution 1540 decided “that all States shall refrain from providing any form of support to non-State actors that attempt to develop, acquire, manufacture, possess, transport, transfer or use nuclear, chemical or biological weapons and their means of delivery.” UN Security Council (2004) Resolution 1540 (2004), UN Doc. S/RES/1540, para 1.

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or control; and to seek or receive any assistance, in any way, from anyone to engage in any of the above activities. What is the nature of assistance for the purpose of Article 1(1)(e)? The notion of prohibited assistance by a state is well known under public international law as it pertains to state responsibility, even if the precise contours of the prohibition are disputed. Article 16 of the International Law Commission’s 2001 draft articles on the Responsibility of States for Internationally Wrongful Acts112 provides that: A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) that State does so with knowledge of the circumstances of the internationally wrongful act; and (b) the act would be internationally wrongful if committed by that State.

In its judgment of 2007 in the case brought by Bosnia and Herzegovina against Serbia and Montenegro alleging responsibility for genocide, the ICJ found that draft Article 16 of the draft articles represented customary international law, and is therefore binding upon every state.113 With respect to the prohibition on assistance, the question of intent inevitably arises. Must the state party assisting another to engage in a prohibited activity intend that this other party so engage? The International Law Commission’s Special Rapporteur, James Crawford, clearly believed so. He stated in his official commentary on draft Article 16 that: “[a] State is not responsible for aid or assistance under article 16 unless the relevant State organ intended, by the aid or assistance given, to facilitate the occurrence of the wrongful conduct and the internationally wrongful conduct is actually committed by the aided or assisted State.”114 I would respectfully submit that on this particular point Professor Crawford does not reflect extant international law. Such a threshold is not within the wording of Article 16, which talks only of “knowledge of the circumstances of the internationally wrongful act”. This threshold is further evidenced by the views of the ICJ on such assistance. In its 2007 judgment in the Genocide case, the Court declared that: There is no doubt that the conduct of an organ or a person furnishing aid or assistance to a perpetrator of the crime of genocide cannot be treated as complicity in genocide unless at the least that organ or person acted knowingly, that is to say, in particular, was aware of the specific intent (dolus specialis) of the principal perpetrator.115

This is the correct test for complicity under international law: to be internationally responsible, a state assisting another party (the assistor) to commit an internationally wrongful act (the assistee), must at least be aware of the assistee’s

112

International Law Commission 2001. ICJ, Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment, 26 February 2007 (Bosnia Genocide), [2007] ICJ Rep 43, para 420. 114 ILC 2001, p. 66, para 5 (emphasis added). 115 Bosnia Genocide, above n 113, para 421 (emphasis added). 113

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intent to engage in a prohibited activity. But the assistor does not need, itself, to actually intend that the assistee so engage: knowledge of what the assistee is planning to do suffices.116 This is the same standard that applies in relation to activities prohibited under Article 1(1)(e) of the TPNW. The types of activities that will amount to prohibited conduct are also broad in scope. A commentary on the corresponding provision in the 1992 Chemical Weapons Convention states that assistance “can be given by material or intellectual support […] but also financial resources, technological-scientific know-how or provision of specialised personnel, military instructions, etc. to anybody who is resolved to commit such prohibited activity or by support in the concealment of such activities”.117 Thus, for instance, providing technical or material or financial assistance for the enrichment of uranium-235 to weapons-grade purity or the equivalent reprocessing of plutonium, where the future use of this fissile material in nuclear weapons is known by the assistor, would constitute prohibited assistance for development and possibly also for production. Depending on the circumstances, it could also amount to assistance in threatening to use. The same consequence would occur with respect to the provision of ballistic missile technology, again where it was known that the assistee’s missile programme was intended for the delivery of nuclear weapons. It has been suggested that another case of “apparent non-compliance” is the Marshall Islands’ hosting of the US Reagan Missile Test Site on Kwajalein Atoll; the site—located on land that the United States leases from the Marshall Islands—is frequently used for ICBM tests. This could amount to assistance to develop nuclear weapons.118 Considerably trickier to assess is the case of adhering to a multinational alliance that explicitly foresees the use of nuclear weapons in a situation where the potential “encourager” does not allow nuclear weapons to be stationed, installed, or deployed in any place under its jurisdiction or control (and of course does not possess or stockpile them itself). This may occur with respect to NATO or to the Collective Security Treaty Organization (CSTO).119 The CSTO, formed under the framework of the Commonwealth of Independent States, serves as a mutual defence alliance among the Russian Federation, Armenia, Belarus, Kazakhstan, Kyrgyzstan, and Tajikistan.120 Article 4 of the 1992 Collective Security Treaty, as amended in 2010, which is its “key part”, reads as follows:

116 This dilemma does not arise with respect to encouragement or inducement—at least to anything like the same degree—as it is far more difficult to envisage scenarios where one state encourages or induces another to, for example, produce or use a nuclear weapon without inevitably demonstrating the requisite intent. 117 Krutzsch and Trapp 1994, p. 17. 118 Norwegian People’s Aid 2018b, p. 25. 119 Collective Security Treaty (as amended by the Protocol on amendments to the Collective Security Treaty, signed on 10 December 2010), opened for signature 15 May 1992, http://www. odkb-csto.org/documents/detail.php?ELEMENT_ID=1897 (entered into force, 20 April 1994), Article 4. 120 Global Security 2014.

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S. Casey-Maslen If one of the Member States undergoes aggression (armed attack menacing to safety, stability, territorial integrity and sovereignty), it will be considered by the Member States as aggression […] to all the Member States of this Treaty. In case of aggression commission […] to any of the Member States, all the other Member States at request of this Member State shall immediately provide the latter with the necessary help, including military one, as well as provide support by the means at their disposal in accordance with the right to collective defence pursuant to Article 51 of the UN Charter.

The CSTO has “been described as a nuclear alliance”.121 Indeed, the Secretary-General of the organisation has suggested that the Russian Federation has extended a “nuclear umbrella” over all members of the alliance.122 In fact, three of the CSTO’s members “have actively distanced themselves from nuclear deterrence.”123 Through their adherence to the 2006 Treaty of Semipalatinsk, Kazakhstan, Kyrgyzstan, and Tajikistan have committed never to “assist or encourage” the development, manufacture, or possession of nuclear weapons.124 Kazakhstan has also signed and ratified the TPNW. With respect to NATO, as noted above, the Alliance’s Strategic Concept of November 2010 notes that deterrence, “based on an appropriate mix of nuclear and conventional capabilities, remains a core element” of the Alliance’s overall strategy.125 It is certainly lawful for a member of NATO to sign the TPNW. But would a NATO member state that ratifies or accedes to it be in violation of its obligations under the TPNW? In particular, would it be held to be encouraging others to engage in prohibited conduct (at least possession and stockpiling, and potentially also development and production)? To encourage something is ordinarily to seek to persuade someone to do something, or to continue to do it, by the provision of support or advice.126 It is not required that this encouragement be successful, for “to encourage” is not a synonym for “to persuade”. Is membership of NATO therefore tantamount to endeavouring to persuade the US to continue to possess nuclear weapons and to maintain a nuclear weapon stockpile? In a respected commentary on the corresponding provision in the 1992 Chemical Weapons Convention it was said that the prohibition on encouraging or inducing “means contributing to the emergence of resolve of anybody to commit a prohibited activity by instigating, promising assistance.”127 This is materially narrower in ambit than is the understanding of the verb “to encourage” in ordinary parlance. Thus, it may be that such an understanding is too narrow, at least with regard to the TPNW. 121

See, e.g., Norwegian People’s Aid 2018b, p. 10. Reported in International Law and Policy Institute 2016b. 123 Norwegian People’s Aid 2018b, p. 10. 124 Treaty on a Nuclear-Weapon-Free Zone in Central Asia, opened for signature 8 September 2006, 2970 UNTS 485 (entered into force 21 March 2009), Article 1(1)(c). 125 NATO 2010, para 17. 126 “Encourage” as defined by English Oxford Dictionary (2018) Definition of encourage in English. https://en.oxforddictionaries.com/definition/encourage. Accessed 27 March 2019. 127 Krutzsch and Trapp 1994, p. 17. 122

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NATO’s 2010 Strategic Concept explicitly envisages the possession and potential use by certain members of a “nuclear alliance”. Indeed, the Strategic Concept stipulates that NATO members “will ensure that NATO has the full range of capabilities necessary to deter and defend against any threat to the safety and security of our populations. Therefore, we will […] maintain an appropriate mix of nuclear and conventional forces.”128 It is hard not to view this as an overt and official form of encouragement to continued possession and stockpiling by other members. That said, there is an argument that adhering to an international treaty overrides, as a matter of international law, commitment to an earlier political declaration, such as the 2010 NATO Strategic Concept. Indeed, there is a certain irony in the position that a nuclear-weapon state may adhere to the TPNW and be in conformity with it (subject, of course, to its compliance with the disarmament actions required by Articles 2 and 4 and most of Article 1), but an umbrella state would not. It would, though, be sufficient legally—and straightforward practically —for a nuclear umbrella state to disavow all support for nuclear weapons in a declaration appended to its instrument of ratification or accession and then to comply with the rest of the Treaty. This would represent good faith application of its international legal obligations. State practice will also be relevant in relation to the interpretation of the notion “encourage” in Article 1(1)(e).129 It is the position of Austria, for instance, repeatedly stated in the negotiations leading to the adoption of the Treaty, that ‘assisting, encouraging or inducing’ is to be understood as referring to measures taken by states parties with the object and purpose of actively supporting, in particular, the possession, use, or threat to use of nuclear weapons or other nuclear explosive devices.130

Austria also believes that the “mere fact of belonging to a military alliance together with nuclear weapons states or of participating in military manoeuvres with such states, without actively assisting in, encouraging or inducing the deployment of nuclear weapons, does not fall under the prohibition of Article 1(1)(e) of the Treaty.”131 This is certainly correct. In the context of the 1997 Anti-Personnel Mine Ban Convention,132 the issue arose as to whether the corresponding prohibition on assistance or encouragement under that treaty would act to prevent a state from lawfully engaging in military cooperation with the United States. Several NATO members, in adhering to the 1997 Convention, made explicit their interpretation of the provision. The Czech Republic, for instance, stated its understanding as follows:

128

NATO 2010, para 19. VCLT, above n 100, Article 31(3)(b). 130 Amb. Thomas Hajnoczi, Head, Disarmament Department, Austrian Ministry of Foreign Affairs, 19 April 2018 (email to the author). 131 Ibid. 132 Anti-Personnel Mine Ban Convention, above n 106, Article 1(1)(c). 129

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S. Casey-Maslen [T]he mere participation in the planning or execution of operations, exercises or other military activities by the Armed Forces of the Czech Republic, or individual Czech Republic nationals, conducted in combination with the armed forces of States not party to the [Convention], which engage in activities prohibited under the Convention, is not, by itself, assistance, encouragement or inducement for the purposes of Article 1, para 1(c) of the Convention.133

Reservations to the 1997 Anti-Personnel Mine Ban Convention are expressly prohibited by its Article 19. But no state party to the 1997 Anti-Personnel Mine Ban Convention has objected to this understanding or otherwise suggested that it is unlawful. Thus, in a similar vein, the armed forces of a state party to the 2017 TPNW could lawfully participate in the planning or execution of operations, exercises, or other military activities, where these were conducted in combination with the armed forces of a state not party to the Treaty that possesses nuclear weapons. Sweden, for example, were it to adhere to the TPNW, could lawfully pursue military exercises such as Aurora 17, which took place in Sweden on 11–29 September 2017 with the participation of the United States of America and other NATO states, including Germany (which hosts US nuclear weapons on its territory).134 Moreover, wording in the Strategic Concept whereby NATO members commit to ensuring “the broadest possible participation of Allies in collective defence planning on nuclear roles, in peacetime basing of nuclear forces, and in command, control and consultation arrangements” demonstrates that it is possible to be a NATO member without engaging in any of these activities, which would be unlawful for a state party to the TPNW. Whether a NATO member could disavow its support for nuclear weapons and remain a member of that “nuclear alliance” is a moot point. But it would always be open to a NATO member to adhere to the Treaty and await the reaction of the other states parties (and other NATO members). Any state may, though, lawfully sign the Treaty, irrespective of whether it possesses nuclear weapons. Of course, signature of the Treaty has legal consequences. As the Vienna Convention on the Law of Treaties stipulates: “[a] State is obliged to refrain from acts which would defeat the object and purpose of a treaty when: […] (a) it has signed the treaty […] until it shall have made its intention clear

133

This and other relevant declarations of understanding with respect to the Anti-Personnel Mine Ban Convention, are available at United Nations 2019. 134 United States Department of Defense (2017) U.S. Forces Participate in Swedish Military Exercise. https://dod.defense.gov/News/Article/Article/1316420/us-forces-participate-in-swedishmilitary-exercise/. Accessed 1 March 2019. The exercises took place against the backdrop of bellicose statements by Russia’s President, Vladimir Putin. In June 2017, President Putin told the Russian state news agency, Itar-Tass: “[i]f Sweden joins NATO this will affect our relations in a negative way because we will consider that the infrastructure of the military bloc now approaches us from the Swedish side. […] We will interpret that as an additional threat for Russia and we will think about how to eliminate this threat.” Mortimer C (2017) Sweden to hold ‘biggest military exercise in decades’ with Nato amid fears over Russia. https://www.independent.co.uk/news/ world/europe/sweden-nato-military-exercises-russia-tensions-baltic-states-putin-europe-a7858736. html. Accessed 4 March 2019.

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not to become a party to the treaty”.135 Acts which would defeat the object and purpose of the Treaty136 would certainly include any use of a nuclear weapon or other nuclear explosive device,137 as would, in all likelihood, a test detonation.138 The departure from practice in allowing signature even after the Treaty’s entry into force allows members of a nuclear alliance such as NATO to legitimately sign at any time without the need for any change in policy. In contrast, they would not, in all likelihood, be in full compliance with their international legal obligations if they were constrained to accede to the Treaty directly and without any action on their part to disassociate themselves from the US nuclear umbrella.

2.3.3.1

The Prohibition on Assistance Under the NPT

In contrast to the TPNW, the NPT only prohibits the five nuclear-weapon states designated under the Treaty from assisting other states to acquire nuclear weapons.139 No such comprehensive undertaking is imposed on the non-nuclear-weapon states parties. They are, however, precluded from providing fissile material to any other non-nuclear-weapon state unless it is for peaceful purposes and the recipient state has a safeguards agreement in place with the International Atomic Energy Agency (IAEA).140 The NPT thus only prohibits certain forms of assistance with respect to horizontal proliferation and none with respect to vertical proliferation of China, France, the Russian Federation, the United Kingdom, and the United States of America.

135

VCLT, above n 100, Article 18. Casey-Maslen 2019, para 13.4. 137 This is supported by the second preambular paragraph of the 2017 TPNW, see above n 3, which talks of the states parties’ deep concern “about the catastrophic humanitarian consequences that would result from any use of nuclear weapons, and recognizing the consequent need to completely eliminate such weapons, which remains the only way to guarantee that nuclear weapons are never used again under any circumstances”. It is further evidenced by the claim in the tenth preambular paragraph that “any use of nuclear weapons would be contrary to the rules of international law applicable in armed conflict, in particular the principles and rules of international humanitarian law”, while in the eleventh preambular paragraph, states parties reaffirm that “any use of nuclear weapons would also be abhorrent to the principles of humanity and the dictates of public conscience”. 138 In the sixth preambular paragraph of the 2017 TPNW, see above n 3, states parties are mindful “of the unacceptable suffering of and harm caused to […] those affected by the testing of nuclear weapons”. Explosive testing is unequivocally prohibited under Article 1(1) of the Treaty. 139 NPT, above n 6, Article I. 140 Ibid., Article III(2). 136

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The Effectiveness of Nuclear Deterrence

The Cuban Missile Crisis of 1962 provided a stark example of both the precariousness and, ultimately, the effectiveness of deterrence at the time. In 1983, the Soviet Union’s leadership, and especially its ailing premier, Yuri Andropov, was becoming convinced that Reagan’s bellicose rhetoric, combined with the large-scale US military exercises in Western Europe codenamed Autumn Forge, meant that a US first strike was coming. One analyst has termed 1983 “the moment of maximum danger of the late Cold War”.141 Despite the horrendous risks, deterrence did, though, serve to prevent all-out war between the United States and the Soviet Union during the Cold War. Since 1990, however, the nature of the nuclear threat has changed dramatically. Writing in 2012, Patrick Morgan argued that insufficient appreciation existed of “how and why Cold War conceptions of deterrence are of limited relevance now and also of the ways in which Cold War deterrence thinking remains relevant.”142 Since the end of the Cold War, he asserts, the dominant political relationships among leading states have become quite different in character: “[t]o the great powers, and most other states, deterrence is not an everyday necessity standing between them and disastrous attacks.”143 One of the greatest nuclear fears today is that nuclear weapons find their way into the hands of terrorists or “rogue states”, either through autonomous programmes of development or as a result of technology passed on from scientists in nuclear-weapon states.144 But a policy of deterrence has been described as “useless” against terrorists.145 It did not prevent al-Qaeda from attacking the United States on 11 September 2001. The proven ability of a nuclear deterrent to prevent an armed non-nuclear attack by another state is also quite poor. It did not prevent Argentina’s invasion of the Falkland Islands/Malvinas in 1981, for instance, despite the United Kingdom’s independent deterrent. More recently, it did not preclude Turkey from deciding to shoot down a Russian plane engaged in the Syrian conflicts in 2015.146 Nor did it prevent Russia from sending agents to kill Alexander Litvinenko in 2006 or to use a chemical weapon known as Novichok in Salisbury against a Soviet defector in

141

See, e.g., Birch D (2013) The U.S.S.R. and U.S. Came Closer to Nuclear War Than We Thought. https://www.theatlantic.com/international/archive/2013/05/the-ussr-and-us-came-closerto-nuclear-war-than-we-thought/276290/. Accessed 4 March 2019. 142 Morgan 2012, p. 85. 143 Ibid., pp. 87–88. 144 Politics.co.uk undated. 145 Ibid. 146 See, e.g., Gibbons-Neff T (2015) The last time a Russian jet was shot down by a NATO jet was in 1952. The Washington Post, 24 November.

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2018.147 In late February 2019, India was bombing areas in Pakistani-controlled Kashmir:148 one nuclear-armed state using considerable conventional force on the territory of another nuclear-armed state. Large-scale intervention in the US presidential elections—not an armed attack of course, but nonetheless a violation of international law—were similarly not dissuaded by the United States’ massive nuclear arsenal. In 2010, Colin Powell, who at one stage of his career had 28 000 nuclear weapons potentially under his authority, robustly assailed their effectiveness: The one thing that I convinced myself after all these years of exposure to the use of nuclear weapons is that they were useless. They could not be used. If you can have deterrence with an even lower number of weapons, well then why stop there, why not continue on, why not get rid of them altogether […]?149

Offensive cyber operations may also serve to reduce the effectiveness of the nuclear deterrent in the future. In September 2018, the Nuclear Threat Initiative (NTI) reported on the results of its Cyber-Nuclear Weapons Study Group, established two years earlier. The Study Group, which included high-level former and retired government officials, military leaders, and experts in nuclear systems and policy, drew the chilling conclusion that a successful cyberattack on nuclear weapons or related systems could have catastrophic consequences. Cyber threats to nuclear weapons systems increase the risk of use as a result of false warnings or miscalculation and increase the risk of unauthorized use of a nuclear weapon.150 The report ultimately questions whether, in the age of cyberwarfare, nuclear deterrence has become dangerously obsolete.151 In 2016, Crispin Blunt, the Chairman of the Foreign Affairs Committee in the British Parliament—and a staunch defender of the United Kingdom’s unilateral nuclear deterrent—voted against the renewal of the UK’s continuous-at-sea deterrent as he believed that the system was, or would become, vulnerable to cyber attack.152 He believed that the United Kingdom was committing £180 billion of programme costs for a deterrent that might simply be rendered useless. In the meantime, British armed forces are being starved of the resources necessary to fight

147

While some argue that assassination falls below the threshold of an armed attack, unless it targets state officials, the UK Prime Minister categorised the events in Salisbury as “an unlawful use of force by the Russian State against the United Kingdom”. United Kingdom 2018. 148 Safi M (2019) India-Pakistan tensions escalate with airstrikes across Kashmir border. https:// www.theguardian.com/world/2019/feb/26/pakistan-india-jets-breached-ceasefire-line-kashmirbomb. Accessed 4 March 2019; Business Insider (2019) Indian fighter jets drop a ton of bombs across the Line of Control: Reports. https://www.businessinsider.in/indian-fighter-jets-drop-a-tonof-bombs-across-the-line-of-control-reports/articleshow/68163111.cms. Accessed 4 March 2019. 149 Bergmann M (2010) Colin Powell: ‘Nuclear Weapons Are Useless’. https://thinkprogress.org/ colin-powell-nuclear-weapons-are-useless-4ab6657759c7/. Accessed 4 March 2019. 150 Nuclear Threat Initiative 2018, p. 7. 151 Ibid., p. 29. 152 Blunt 2016.

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a conventional war (making recourse to nuclear weapons more likely).153 Even the United States recognises that its existing nuclear command-and-control systems may become vulnerable to cyber attack.154 At the same time, Bruce Blair argues that between 30 and 50 per cent of US strategic targets in the event of conflict with Russia or China could be effectively neutralised by conventional or cyber attacks rather than nuclear weapons.155

2.5

Concluding Remarks

Nuclear deterrence is not illegal but it is, as the United States feared, being delegitimised. The regional nuclear-free zones and the global TPNW are indeed operating towards achieving this goal. Meanwhile, states continue to cling to outdated notions of nuclear deterrence just as there is increasing evidence of their looming ineffectiveness. Ever-increasing artificial intelligence, offensive cyber operations, and enhanced non-nuclear weapons with strategic impact will one day combine to render the nuclear deterrent ineffective and the weapons obsolete. Until that time, states, including the United States, need to initiate negotiations for reductions in both arsenals and capabilities with the other nuclear-armed states. Instead, capabilities are being ramped up with eye-watering sums of money being expended in both state and private corporations. The starting pistols have been fired on a new nuclear arms race. Nixon, Carter, Brezhnev, Reagan, Gorbachev, Clinton, Obama, Medvedev, and others had, at crucial times, the foresight and the political courage to see that ever-greater numbers of nuclear weapons did not make anyone safer. Disarmament was a good path then, and it is an even better path now.

153 United Kingdom House of Commons Defence Committee 2018. See also Sengupta K (2018) UK ‘would struggle to match’ military strength of countries like Russia unless it invests in defence, army chief warns. https://www.independent.co.uk/news/uk/home-news/british-armymilitary-strength-cyber-attacks-russia-defence-spending-general-sir-nick-carter-a8170996.html. Accessed 4 March 2019. 154 United States Office of the Secretary of Defense 2018, pp. XIII and 57. 155 Blair et al. 2018, p. 6.

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References Articles, Books and Other Documents Acronym Institute (1998) India and Pakistan Nuclear Tests: Statements to a Special Session of the CD, 2 June 1998. http://www.acronym.org.uk/old/archive/spstat.htm. Accessed 27 March 2019 Blair BG, Sleight J, Foley EC (2018) The End of Nuclear Warfighting: Moving to a Deterrence-Only Posture: An Alternative U.S. Nuclear Posture Review. Princeton University/Global Zero. https://www.princeton.edu/sgs/publications/articles/ANPR-FinalBlair.pdf. Accessed 28 March 2019 Blunt C (2016) Crispin Blunt MP: Why I will be voting against Trident renewal today. PoliticsHome. https://www.politicshome.com/news/uk/defence/defence-funding/opinion/ house-commons/77421/crispin-blunt-mp-why-i-will-be-voting. Accessed 27 March 2019 Brownlie I (1963) International Law and the Use of Force by States. Oxford University Press, Oxford Casey-Maslen S (2019) The Treaty of the Prohibition of Nuclear Weapons: A Commentary. Oxford University Press, Oxford Collina TZ (2018) Trump’s New ‘Low-Yield’ Nuclear Weapon: Two Bad Ideas Rolled into One. The National Interest. https://nationalinterest.org/blog/the-buzz/trumps-new-low-yield-nuclearweapon-two-bad-ideas-rolled-one-24806. Accessed 4 March 2019 Daalder IH, Lindsay JM (2001) Unilateral Withdrawal From the ABM Treaty Is a Bad Idea. Brookings. https://www.brookings.edu/opinions/unilateral-withdrawal-from-the-abm-treaty-isa-bad-idea/. Accessed 4 March 2019 Dinstein Y (2017) War, Aggression and Self-Defence, 6th edn. Cambridge University Press, Cambridge Egypt (1992) Declaration of 9 October 1992 upon ratification of Additional Protocol I. ICRC International Humanitarian Law Database. https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/ Notification.xsp?action=openDocument&documentId=AF3791A0FF167FFDC1256402003FB 393. Accessed 28 March 2019 France (2001) Declaration of 11 April 2001 upon ratification of Additional Protocol I. ICRC International Humanitarian Law Database. https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/ Notification.xsp?action=openDocument&documentId=D8041036B40EBC44C1256A3400489 7B2. Accessed 28 March 2019 Freedman L (2018) The Limits of Deterrence. In: Wasser B, Connable B, Atler A, Sladden J (eds) Comprehensive Deterrence Forum. https://www.rand.org/content/dam/rand/pubs/conf_ proceedings/CF300/CF345/RAND_CF345.pdf. Accessed 26 March 2019 Germany (1991) Declaration of 14 February 1991 upon ratification of Additional Protocol I. ICRC International Humanitarian Law Database. https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/ Notification.xsp?action=openDocument&documentId=3F4D8706B6B7EA40C1256402003FB 3C7. Accessed 28 March 2019 Global Security (2014) Collective Security Treaty Organization (CSTO). https://www. globalsecurity.org/military/world/int/csto.htm. Accessed 27 March 2019 Greenwood C (1989) The twilight of the law of belligerent reprisals? Netherlands Yearbook of International Law 20:35–69 Hugo TG, Casey-Maslen S, Nystuen G (2017) The Nuclear Weapons Criterion: An evaluation of the investment criterion of the Norwegian Government Pension Fund Global (GPFG) as it pertains to nuclear weapons (on file with the author) ICRC (2005a) Rule 2. Violence Aimed at Spreading Terror among the Civilian Population. Study of Customary International Humanitarian Law. https://ihl-databases.icrc.org/customary-ihl/ eng/docs/v1_rul_rule2. Accessed 1 March 2019

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ICRC (2005b) Rule 46. Orders or Threats that No Quarter Will Be Given. Study of Customary International Humanitarian Law. https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_ rule46. Accessed 1 March 2019 ICRC (2005c) Rule 147. Reprisals against Protected Objects. Study of Customary International Humanitarian Law. https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule147. Accessed 4 March 2019 International Law and Policy Institute (2016a) Nuclear umbrellas and umbrella states. ILPI Weapons of Mass Destruction Project. http://nwp.ilpi.org/?p=1221. Accessed 1 March 2019 International Law and Policy Institute (2016b) Under my Umbrella: Understanding the terms ‘nuclear umbrella’ and ‘nuclear umbrella state’. http://nwp.ilpi.org/wp-content/uploads/2016/ 08/BP21-16_UMBRELLA.pdf. Accessed 4 March 2019 International Law Commission (2001) Draft Articles on the Responsibility of States for Internationally Wrongful Acts. In: UN General Assembly (2001) Report of the International Law Commission on the work of its fifty-third session, UN DocA/56/10, pp. 26–29 International Law Commission (2011) Draft Articles on the Responsibility of International Organizations. In: UN General Assembly (2011) Report of the International Law Commission, UN Doc. A/66/10, pp. 54–68 Italy (1986) Declaration of 27 February 1986 upon ratification of Additional Protocol I. ICRC International Humanitarian Law Database. https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/ Notification.xsp?action=openDocument&documentId=E2F248CE54CF09B5C1256402003FB 443. Accessed 28 March 2019 JRank (2018) Arms Control and Disarmament - Salt I And After. http://law.jrank.org/pages/4440/ Arms-Control-Disarmament-SALT-I-After.html. Accessed 26 March 2019 Keck Z (2013) India’s Nuclear Blunder. The National Interest. https://nationalinterest.org/ commentary/indias-nuclear-blunder-8946. Accessed 27 March 2019 Kristensen HM, Norris RS (2018) Status of World Nuclear Forces. Federation of American Scientists. https://fas.org/issues/nuclear-weapons/status-world-nuclear-forces/. Accessed 26 March 2019 Krutzsch W, Trapp R (1994) A Commentary on the Chemical Weapons Convention. Martinus Nijhoff, The Hague Mazarr MJ (2018) Understanding Deterrence. https://www.rand.org/content/dam/rand/pubs/ perspectives/PE200/PE295/RAND_PE295.pdf. Accessed 26 March 2019 Morgan PM (2012) The State of Deterrence in International Politics Today. Contemporary Security Policy 33(1):85–107 NATO (2010) Strategic Concept for the Defence and Security of the Members of the North Atlantic Treaty Organization. https://www.nato.int/nato_static_fl2014/assets/pdf/pdf_ publications/20120214_strategic-concept-2010-eng.pdf. Accessed 26 March 2019 NATO (2016) Nuclear deterrence and the Alliance in the 21st century. NATO Review. https:// www.nato.int/docu/review/2016/also-in-2016/nuclear-deterrence-alliance-21st-century-nato/ EN/index.htm. Accessed 26 March 2019 Norwegian People’s Aid (2018a) Nuclear Weapons Ban Monitor 2018. http://www.icanw.org/wpcontent/uploads/2018/10/Nuclear-Weapons-Ban-Monitor_WEB_NEW.pdf. Accessed 26 March 2019 Norwegian People’s Aid (2018b) Nuclear Weapons Ban Monitor: Preliminary Research. http:// www.icanw.org/wp-content/uploads/2018/05/Nuclear-Weapons-Ban-Monitor.pdf. Accessed 27 March 2019 Nuclear Threat Initiative (2018) Nuclear Weapons in the New Cyber Age. September. https:// www.nti.org/media/documents/Cyber_report_finalsmall.pdf. Accessed 27 March 2019 Peck M (2018) Russia Says It Will Soon Deploy Mach 20 Avangard Hypersonic Weapon. The National Interest. https://nationalinterest.org/blog/buzz/russia-says-it-will-soon-deploy-mach20-avangard-hypersonic-weapon-35377. Accessed 4 March 2019 Pifer S (2015) The limits of U.S. missile defense. Brookings. https://www.brookings.edu/opinions/ the-limits-of-u-s-missile-defense/. Accessed 4 March 2019

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Politics.co.uk (undated) Nuclear Deterrence. https://www.politics.co.uk/reference/nucleardeterrence. Accessed 20 August 2018 Portmann R (2013) Legal Personality in International Law. Cambridge University Press, Cambridge Sadurska R (1988) Threats of Force. The American Journal of International Law 82(2):239–268 Sandoz Y, Swinarski C, Zimmermann B (1987) Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949. Martinus Nijhoff/ICRC, Geneva Schneider MB (2018) Deterring Russian First Use of Low-Yield Nuclear Weapons. Real Clear Defense. https://www.realcleardefense.com/articles/2018/03/12/deterring_russian_first_use_ of_low-yield_nuclear_weapons_113180.html. Accessed 4 March 2019 Sofaer AD (1987) The Position of the United States on Current Law of War Agreements: Remarks of Judge Abraham D Sofaer, Legal Adviser, US Department of State. American University Journal of International Law and Policy 2:460–469 Stürchler N (2007) The Threat of Force in International Law. Cambridge University Press, Cambridge Swiss Confederation (2018) Report of the Working Group to analyse the Treaty on the Prohibition of Nuclear Weapons. https://www.eda.admin.ch/dam/eda/en/documents/aussenpolitik/ sicherheitspolitik/2018-bericht-arbeitsgruppe-uno-TPNW_en.pdf. Accessed 26 March 2019 Union of Concerned Scientists (undated) How Does Missile Defense Work? https://www.ucsusa. org/nuclear-weapons/missile-defense/how-gmd-missile-defense-works. Accessed 4 March 2019 United Kingdom (1998) Declaration of 28 January 1998 upon ratification of Additional Protocol I. ICRC International Humanitarian Law Database. https://ihl-databases.icrc.org/applic/ihl/ihl. nsf/Notification.xsp?action=openDocument&documentId= 0A9E03F0F2EE757CC1256402003FB6D2. Accessed 28 March 2019 United Kingdom (2018) PM Commons Statement on Salisbury incident response: 14 March 2018. https://www.gov.uk/government/speeches/pm-commons-statement-on-salisbury-incidentresponse-14-march-2018. Accessed 27 March 2019 United Kingdom House of Commons Defence Committee (2018) Beyond 2 per cent: A preliminary report on the Modernising Defence Programme https://publications.parliament.uk/ pa/cm201719/cmselect/cmdfence/818/818.pdf. Accessed 27 March 2019 United Nations (2019) Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction. UN Treaty Collection. https:// treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=XXVI-5&chapter=26&clang=_ en#EndDec. Accessed 28 March 2019 United States (2010) Treaty on the Non-Proliferation of Nuclear Weapons. Paper by the US Delegation to the 2010 Review Conference of the NPT. https://www.state.gov/documents/ organization/141503.pdf. Accessed 28 March 2019 United States (2016) Defense Impacts of Potential United Nations General Assembly Nuclear Weapons Ban Treaty. http://www.icanw.org/wp-content/uploads/2016/10/NATO_OCT2016. pdf. Accessed 26 March 2019 United States Office of the Secretary of Defense (2018). Nuclear Posture Review. https://dod. defense.gov/News/SpecialReports/2018NuclearPostureReview.aspx. Accessed 26 March 2019 UN Security Council (2004) Resolution 1540 (2004), UN Doc. S/RES/1540 Wasser B, Connable B, Atler A, Sladden J (eds) (2018) Comprehensive Deterrence Forum. https:// www.rand.org/content/dam/rand/pubs/conf_proceedings/CF300/CF345/RAND_CF345.pdf. Accessed 26 March 2019

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Case Law ICJ, Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment, 26 February 2007, [2007] ICJ Rep 43 ICJ, Corfu Channel case (United Kingdom v Albania), Judgment (Merits), 9 April 1949, [1949] ICJ Rep 4 ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, [1996] ICJ Rep 226 ICJ, Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America), Judgment (Merits), 27 June 1986, [1986] ICJ Rep 14 ICJ, Oil Platforms case (Iran v United States of America), Judgment (Merits), 6 November 2003, [2003] ICJ Rep 161 ICTY, Prosecutor v Stanislav Galic, Judgement, 30 November 2006, Case no. IT-98-29-A ICTY, Prosecutor v Zoran Kupreškić and others, Judgment, 14 January 2000, Case No. IT-95-16-T ICTY, Prosecutor v Milan Martić, Judgment, 2 June 2007, Case No IT-95-11-T PCA, Award in the arbitration regarding the delimitation of the maritime boundary between Guyana and Suriname, Award, 17 September 2007, XXX RIAA 1 SCSL, Prosecutor v Charles Ghankay Taylor, Judgment, 26 September 2013, Case No. SCSL-03-01-A, para 300

Treaties Charter of the United Nations, opened for signature 26 June 1945, 1 UTS XVI (entered into force 24 October 1945) Collective Security Treaty (as amended by the Protocol on amendments to the Collective Security Treaty, signed on 10 December 2010), opened for signature 15 May 1992, http://www.odkbcsto.org/documents/detail.php?ELEMENT_ID=1897 (entered into force 20 April 1994) Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, opened for signature 10 April 1972, 1015 UNTS 163 (entered into force 26 March 1975) Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, opened for signature 13 January 1993, 1975 UNTS 45 (entered into force 29 April 1997) Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction, opened for signature 3 December 1997, 2056 UNTS 211 (entered into force 1 March 1999) Interim Agreement Between The United States of America and The Union of Soviet Socialist Republics on Certain Measures With Respect to the Limitation of Strategic Offensive Arms, opened for signature 26 May 1972, https://www.state.gov/t/isn/4795.htm#treaty (entered into force 3 October 1972) Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), opened for signature 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978) Treaty between the United States of America and the Russian Federation on Measures for the Further Reduction and Limitation of Strategic Offensive Arms, opened for signature 8 April 2010, https://www.state.gov/documents/organization/140035.pdf (entered into force 5 February 2011)

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Treaty Between the United States of America and the Russian Federation on Strategic Offensive Reductions, opened for signature 24 May 2002, https://www.state.gov/t/isn/10527.htm (entered into force 1 June 2003, terminated 31 December 2012) Treaty Between the United States of America and the Union Soviet Socialist Republics on Strategic Offensive Reductions, opened for signature 31 July 1991, https://media.nti.org/ documents/start_1_treaty.pdf (entered into force 5 December 1994, terminated 5 December 2009) Treaty Between the United States of America and the Union of Soviet Socialist Republics on the Elimination of Their Intermediate-Range and Shorter-Range Missiles, opened for signature 8 December 1987, 1657 UNTS 2 (entered into force 1 June 1988) Treaty between the United States of America and the Union of Soviet Socialist Republics on the Limitation of Anti-Ballistic Missile Systems, opened for signature 26 May 1972, 1977 UNTS 424 (entered into force 3 October 1972, US withdrawal 2002) Treaty on a Nuclear-Weapon-Free Zone in Central Asia, opened for signature 8 September 2006, 2970 UNTS 485 (entered into force 21 March 2009) Treaty on principles governing the activities of states in the exploration and use of outer space, including the moon and other celestial bodies, opened for signature 27 January 1967, 610 UNTS 205 (entered into force 10 October 1967) Treaty on the Non-Proliferation of Nuclear Weapons, opened for signature 1 July 1968, 792 UNTS 161 (entered into force 5 March 1970) Treaty on the Prohibition of Nuclear Weapons, opened for signature 20 September 2017, https:// treaties.un.org/doc/Treaties/2017/07/20170707%2003-42%20PM/Ch_XXVI_9.pdf (not yet entered into force) Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980) Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, opened for signature 21 March 1986, UN Doc. A/CONF.129/15 (not yet entered into force)

Chapter 3

Lethal Autonomous Weapon Systems and Their Compatibility with International Humanitarian Law: A Primer on the Debate Matthias Brenneke

Contents 3.1 Introduction........................................................................................................................ 3.2 Preliminary Considerations ............................................................................................... 3.2.1 Applicable Law....................................................................................................... 3.2.2 A Working Definition of LAWS ........................................................................... 3.3 The Interplay Between LAWS and Principles of IHL ..................................................... 3.3.1 Distinction............................................................................................................... 3.3.2 Proportionality ........................................................................................................ 3.3.3 Precautions.............................................................................................................. 3.3.4 Humanity ................................................................................................................ 3.4 Conclusion: Compatibility with IHL Remains to Be Yet Achieved, If Ever Possible .............................................................................................................................. References ..................................................................................................................................

60 62 63 64 67 67 74 84 86 91 93

Abstract Lethal autonomous weapon systems (LAWS) are platforms that can perform military tasks and take decisions relating thereto on their own—using artificial intelligence. While such technology has not yet been developed, research

Matthias Brenneke (currently Junior Lawyer at MANNER SPANGENBERG Partnerschaft von Rechtsanwälten mbB; formerly Legal Advisor at the Embassy of the Federal Republic of Germany Kuala Lumpur) is seeking bar admission at the Higher Regional Court of Hamburg. He would like to thank Prof Dr. Terry Gill as well as the peer reviewers for their critical and constructive comments on earlier drafts of this chapter. This chapter was written in a personal capacity and does not necessarily reflect the views of any institution the author is or has been affiliated with. M. Brenneke (&) Hamburg, Germany e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2020 T. D. Gill et al. (eds.), Yearbook of International Humanitarian Law 2018, Yearbook of International Humanitarian Law 21, https://doi.org/10.1007/978-94-6265-343-6_3

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is headed this way. Are these systems capable of complying with current rules under international humanitarian law (IHL)? Which factors of substantive legal provisions pose particular challenges and what parameters would LAWS have to meet in order to act lawfully? Core principles of IHL under treaties and custom are identified, explained and applied. As regards distinction, it is argued that research here offers the most promising advancements. However, the rule rests upon subjective determinations and ever-present doubt. One may also differentiate when examining proportionality: expected collateral damage is relatively objective and can already be calculated by software. In contrast, military advantage anticipated proves too complex and subjective. Furthermore, the open wording of this rule and its dependence on moral standards leads makes adherence to IHL currently impossible. It is suggested that extralegal issues should also be given sufficient consideration; details are however beyond the scope here. It is finally concluded that for the time being as well as the foreseeable future, LAWS are incompatible with IHL. Thus, humans must stay in or on the loop and retain (meaningful human) control in order to ensure observance of the law of armed conflict. Any technological achievement may nevertheless enhance the human-machine interface in the sense that humans and systems are partnered; thereby allowing for utilizing progress while securing lawful conduct at the same time.




Keywords Lethal autonomous weapon systems International humanitarian law Meaningful human control Targeting cycle Distinction Proportionality Precautions in attack Sub-principles of humanity Extralegal reasoning




3.1



















Introduction

As civilian research steadily advances, the military side of all advancements made must not be disregarded. Scientists are striving to achieve technology that is able to copy human qualities and learn by its own means, thus making machines intelligent. What has been termed artificial intelligence (AI)1 has also caught attention in the military domain: more and more capabilities are delegated from humans to machines and algorithms.2 Since countries are advancing in the direction of creating lethal autonomous weapon systems (LAWS), this development consequently bears the question whether it will ever be possible to create them, ultimately replacing human soldiers on the battlefield. Such systems do not yet exist. Moreover, the examination of the Greek etymology of the word “autonomous” reveals that “autos” (aὐsό1) means “self” and “nomos” (mόlo1) means “law”. This combination leads to an understanding of independence and self-determination.

1

For precise definitions and nuances of AI, see UN Institute for Disarmament Research 2018. For an overview of the pursuit of delegating jobs from humans to machines, see Singer 2009, pp. 42–62. 2

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If LAWS as a result operate on their own will and self-given (factual and legal) conclusions, an inquiry is warranted and most relevant with regard to their deployment in armed conflicts in the light of international humanitarian law (IHL). Are LAWS capable of complying with the various rules under current IHL? What are the relevant aspects of this body of law in particular with regard to LAWS and how do concrete challenges arise from these legal principles? Is AI able to reach lawful decisions? Which parameters must be entered into autonomous machinery in order to adhere to these provisions? Following preliminary considerations, the focus will be placed on substantive rules of IHL which are generally implemented using the targeting cycle but already pose severe problems for humans nowadays, for example when recalling the differentiation between deliberate and dynamic targeting. Discussions of distinction (under Sect. 3.3.1), proportionality (under Sect. 3.3.2) and precautions in attack (under Sect. 3.3.3) will form the core of this chapter as these imperatives are shortly introduced and then scrutinized with regard to LAWS. But light will also be shed on the overarching principle of humanity with its several sub-principles (under Sect. 3.3.4). In the conclusion (under Sect. 3.4), it will be argued that current and near enhancements of technology with the goal of removing human involvement from what is called the “loop” do not offer satisfactory capabilities in order to adhere to the principles of IHL, but any progress may nevertheless be used to expand and improve skills in the form of partnership between high-tech systems and human soldiers (the so-called human-machine interface). Legal debate in this field is much denser than probably anticipated. Therefore, research methods will include the examination of current treaties and customary law but reference will also be made to statements of national military branches and expert reports. For the most part, current literature from relevant books and journal articles will be evaluated in order to take stock, facilitate a comprehensive overview as well as to finally reach a concise self-determined view on the various questions. A two-tier methodology will be generally employed to each legal aspect. First, the relevant rules are identified in the abstract and based on positivism as displayed in Article 38(1) ICJ Statute.3 In a second step, this legal framework will be applied to LAWS in concreto, but recourse will here also be had to extralegal reasoning and sources as the matters also touch upon technology, ethics and policy. However, the focus will clearly be placed on issues related to law. Acknowledging that the sufficiency of current IHL for LAWS is also subject to legal dispute,4 this chapter will be confined to existing law as well as existing

3 Statute of the International Court of Justice, opened for signature 26 June 1945, USTS 993 (entered into force 24 October 1945), Article 38(1). 4 See, representatively, Anderson and Waxman 2013; Asaro 2012, pp. 691, 709; Sharkey 2012, pp. 796–798; Foy 2014, pp. 63–69; Group of Governmental Experts of the High Contracting Parties 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 (2017) Report of the 2017 Group of Governmental Experts on Lethal Autonomous Weapons Systems (LAWS), UN Doc. CCW/ GGE.1/2017/CRP.1, para 16; and various position by states.

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technology and that of the foreseeable future in order to avoid yielding to speculation. One may in this regard recall a statement delivered by the ICJ: “[IHL] applies to all forms of warfare and to all kinds of weapons, those of the past, those of the present and those of the future.”5 It should furthermore be noted that respective or expected advancements of technology have raised concerns about legal responsibility for the misuse or malfunctioning of LAWS.6 Two levels must be distinguished here, namely state responsibility under secondary public international law and individual responsibility under international criminal law. This chapter will however be limited to IHL, especially in the view that wars’ foremost political character will not change. There will always be a chain of command at all levels of warfare against the backdrop of the targeting cycle; and human egoism renders the chance of complete loss of control rather unlikely.7 Responsibility will continue to be borne by humans instead of machines and even in the event of unforeseeable malfunction of LAWS (hence precluding individual accountability for lack of mens rea) states will remain responsible.

3.2

Preliminary Considerations

In order to adequately assess relevant issues of LAWS, two preliminary subjects must be addressed. The identification of applicable law for the purposes of this chapter plays a core role, but—and surely not less importantly—one has to reach a differentiation as regards the diverse definitions of LAWS that currently exist in scholarship, science, and political discussion. In the latter regard it will be crucial to point out the importance of distinguishing (levels of) human involvement versus independence of AI when introducing different stages of automation and autonomy.

5

ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, [1996] ICJ Rep 226 (Nuclear Weapons Advisory Opinion), para 86. 6 See, representatively, Henderson et al. 2017; Margulies 2017; UN General Assembly (2013) Human Rights Council: Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns, UN Doc. A/HRC/23/47, paras 75–81; Human Rights Watch 2012, pp. 42–45; Egeland 2016, pp. 107–116; Schmitt 2013, pp. 33 f.; Singer 2009, pp. 407–411; France 2018. 7 Singer 2009, p. 123, quoting Thomas Adams.

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Applicable Law

Although LAWS also raise concerns in areas of state sovereignty8 and international human rights law (IHRL),9 the present chapter will be limited to aspects of armed conflicts under IHL. Essentially, this field governs the ius in bello. This thematic limitation is due to the fact that in IHRL and national law enforcement rules, the use of lethal force is an ultima ratio and therefore not as prevalent as in IHL.10 Furthermore, national law enforcement—lethal or non-lethal—depends on far more and also more detailed rules (including IHRL) which would pose even more delicate challenges for LAWS than does IHL. Against this background it seems more adequate and contemporarily relevant to address issues under the law of armed conflict. Therefore, a concise and fundamental context of the general IHL framework under which LAWS will be evaluated shall be provided: the rules of IHL become applicable during times of armed conflict while distinguishing between international (IAC) and non-international types (NIAC). An IAC exists whenever one state uses military force against another.11 Furthermore, the specific level of violence does not, under the preferable majority view, have an impact on the existence of an IAC; and neither does the parties’ subjective understanding.12 While Common Article 3 GCs13 provides little guidance, it is now settled that the determination of a NIAC by contrast depends on the intensity of armed hostility as well as the degree of organization of the parties.14 Legally speaking, Additional Protocol I to the Geneva Conventions (AP I)15 is most relevant for IACs and Additional Protocol II to the Geneva Conventions (AP II)16 for NIACs. However, AP II does not provide substantive regulations as widely as does AP I and recourse must anyway also be 8

UN General Assembly (2013) Human Rights Council: Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns, UN Doc. A/HRC/23/47, paras 58, 62; Asaro 2012, p. 692; Meier 2017, pp. 447–456. There have also been warnings against a lowered threshold of going to war in general, see, e.g., China (2018) Position Paper, UN Doc. CCW/GGE.1/2018/WP.7, para 3; Singh Gill 2018, para 40. 9 For implications, see Birnbacher 2016. 10 ICRC 2013, p. 8. 11 Common Article 2 Geneva Conventions, e.g. Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, opened for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950) (GC I), Article 2; ICTY, Prosecutor v Dusko Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, Case No. IT-94-1 (Tadić), para 70. 12 For an overview, see Kleffner 2013, pp. 44 f. 13 See, e.g., GC I, above n 11, Article 3. 14 Tadić, above n 11, para 562. 15 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), opened for signature 8 June 1949, 1125 UNTS 3 (entered into force 7 December 1978) (AP I). 16 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), opened for signature 8 June 1977, 1125 UNTS 609 (entered into force 7 December 1978).

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had to customary international humanitarian law (CIHL),17 which is to a large extent codified in AP I but in part also applies to NIACs. In addition, the greater part of states is a party to AP I, yet the United States (US) as a major power has not ratified it. Hence, for the analysis of LAWS under IHL, CIHL as well as AP I are of prime importance. The respective substantive rules are put into practice via and appear throughout the targeting cycle or the “wider loop”,18 a method prescribing a process of six steps: (1) commander’s intent, objective and guidance, (2) target development, (3) capabilities analysis, (4) commander’s decision, force planning and assignment, (5) mission planning and force execution, and (6) assessment.19 In every phase, due regard must be given to the rules which will be discussed in detail and in the light of LAWS below, especially distinction, proportionality and precautions in attack.

3.2.2

A Working Definition of LAWS

Generally speaking, three different dimensions of autonomy can be distinguished in academic and technological research as well as policy debates.20 While nuances in scientific fora are much more precise,21 the following three levels recently identified in a work by the International Committee of the Red Cross (ICRC) may serve as a yardstick as it defines an autonomous weapon system (“human-out-of-the-loop”, as explained later) as follows: “[a]ny weapon system with autonomy in its critical functions. That is, a weapon system that can select (i.e. search for or detect, identify, track, select) and attack (i.e. use force against, neutralize, damage or destroy) targets without human intervention.”22 A similar approach is taken by the US Department of Defense, which uses the characterization of any “weapon system that, once activated, can select and engage targets without further intervention by a human operator”.23 What may be derived from these definitions is that autonomous systems are capable of individually and independently choosing and engaging targets without any additional human involvement.24 Thus, the crucial decisions25 of military targeting—including the

17

Henckaerts and Doswald-Beck 2005. See AIV/CAVV 2015, Annex II. 19 NATO Standardization Office 2016, paras 0202–0208. 20 Considering that the question of definition and levels of autonomy is covered in almost every academic contribution and every national view about LAWS, recourse in this section will be had only to selected documents. See, representatively, Singh Gill 2018, paras 1–9. 21 McFarland 2015, pp. 1318–1324; Williams 2015, pp. 39–52. 22 ICRC 2016, p. 71. 23 US Department of Defense 2012, pp. 13 f. 24 Schmitt and Thurnher 2013, p. 235. 25 This is the distinguishing feature according to ICRC 2016, p. 71. 18

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ones closest to impact—will not be taken by a soldier, but by a machine. For the purposes of this chapter, the discussion will be confined to lethal autonomous weapon systems, as the question of deadly engagement forms the very essence of IHL rules. At hand, autonomy is understood in a technologically highly sophisticated sense, namely that human decisions are limited to preliminary stages such as programming and initial deployment (instructions) on the battlefield;26 human control during battle or missions is excluded except for a potential possibility for general commands such as deactivation, depending on the individual design.27 Systems meeting these parameters of full autonomy do not (yet) exist.28 However, two levels below such type of autonomy are to be distinguished: remotely controlled and automated systems. The first category encompasses military technology in which soldiers play an integral part in the chain of action; here, humans take all decisions while they are physically more or less distant from the battlefield.29 Unmanned (combat) aerial vehicles, commonly known as drones like the American Reaper or the Israeli Heron, fall into this sphere. Automated systems, on the other hand, operate independently but only within the limits of predetermined parameters: they watch their assigned environment for certain patterns and launch (mostly defensive) measures once such a scenario is detected (or request human permission).30 Land-based counter-rocket, artillery and mortar systems (C-RAM, such as the Israeli Iron Dome or the German Nächstbereichschutzsystem MANTIS), ship-based close-in weapon systems (CIWS, such as the American Aegis and Phalanx), the Israeli Harpy as well as the South Korean Samsung Techwin SGR-A1 sentry robot may serve as examples for this kind of technology. To draw a dividing line, the classification of weapon systems circles around the extent of involvement of human operators. Thus and as mentioned above, the ICRC has identified the level of “autonomy in critical functions”31 as the crucial criterion. While remotely controlled and automated means are either completely controlled or at least supervised by humans or a priori restricted to pre-programmed scenarios, LAWS take the essential decisions themselves and carry out their own evaluation of yet unpredictable situations without any human input, but making use of AI instead.32 Accordingly, the labels “human-in-the-loop”, “human-on-the-loop” and “human-out-of-the-loop”33 have been termed, widely accepted and applied ever since in legal scholarship, technical fora and policy discussions. The first kind refers to remotely controlled weapon systems such as drones where a human will always

26

Thurnher 2016, p. 181. UN General Assembly (2013) Human Rights Council: Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns, UN Doc. A/HRC/23/47, para 40. 28 UN Institute for Disarmament Research 2014, pp. 2 f.; Grut 2013, p. 6. 29 Wagner 2016, para 4. 30 Backstrom and Henderson 2012, p. 488; Wagner 2016, para 5. 31 ICRC 2016, p. 71. 32 Wagner 2011, pp. 158 f. 33 E.g. Human Rights Watch 2012, p. 2. 27

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play an essential role in the targeting cycle and make the final lethal decision himor herself. Systems with humans on the loop are merely supervised by soldiers who can either authorize a strike upon request from the system or monitor its work more generally, providing nothing more than an opportunity to take interruptive measures whenever deemed necessary. Apart from this, such automated systems will respond to pre-defined fact patterns and react without further human participation. The third category of fully autonomous, human-out-of-the-loop systems is the technologically most advanced one since human soldiers’ involvement will be limited to the fielding of a device in a way of “fire and forget”. Subsequently, all decisions (of the targeting cycle) will be taken by the machine’s AI and require no more human action: powers to observe, orient, decide and act (OODA) will be vested in LAWS. It is precisely this dichotomy of human involvement and (technological) independence that is crucial when defining LAWS.34 Mention should at this point also be made of the—intensively debated with regard to its substance35—concept of meaningful human control (MHC) over weapon systems which was first introduced by the British NGO Article 36 and has been adopted by various major participants36 in the debate. It prescribes a standard of human involvement and entails information on the military target, comprehension of technology (including predictability, reliability and transparency), situational information, an understanding of the interaction between technology and context, human judgment with opportunities for timely intervention, and a framework of accountability.37 Proponents of this approach advocate it as a solution to facilitate compliance with the core principles of IHL,38 but it must be noted that this idea contradicts the present understanding of full autonomy as humans would not be completely replaced.39 This concept will however be referred to in the following.

34

Singer 2009, pp. 74 f. Russian Federation (2018) Russia’s Approaches to the Elaboration of a Working Definition and Basic Functions of Lethal Autonomous Weapons Systems in the Context of the Purposes and Objectives of the Convention, UN Doc. CCW/GGE.1/2018/WP.6, paras 9, 11 f.; United States (2018) Human-Machine Interaction in the Development, Deployment and Use of Emerging Technologies in the Area of Lethal Autonomous Weapons Systems, UN Doc. CCW/GGE.2/2018/WP.4, paras 42–56. 36 European Union 2018, p. 2; France and Germany 2018, p. 2; Kingdom of the Netherlands 2018, p. 2; Austria, Brazil, Chile (2018) Proposal for a Mandate to Negotiate a Legally-binding Instrument that addresses the Legal, Humanitarian and Ethical Concerns posed by Emerging Technologies in the Area of Lethal Autonomous Weapons Systems (LAWS), UN Doc. CCW/GGE.2/2018/WP.7; China (2018) Position Paper, UN Doc. CCW/GGE.1/2018/WP.7, para 3; United Kingdom (2018) Human Machine Touchpoints: The United Kingdom’s perspective on human control over weapon development and targeting cycles, UN Doc. CCW/GGE.2/2018/ WP.1, paras 6, 8, 10, 15; United States (2018) Human-Machine Interaction in the Development, Deployment and Use of Emerging Technologies in the Area of Lethal Autonomous Weapons Systems, UN Doc. CCW/GGE.2/2018/WP.4, paras 1, 8. 37 Moyes 2016, pp. 49–51. See also Canellas and Haga 2015; AIV/CAVV 2015, pp. 34–37. 38 AIV/CAVV 2015, p. 33; ICRAC 2018. 39 Van den Boogaard 2015, p. 282. 35

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As pointed out, this chapter will confine its understanding to fully autonomous systems regarding which humans are out-of-the-loop when discussing LAWS. Furthermore, only lethal usages will form the center of attention. But what implications does this definition entail for the law mentioned previously? A system of such kind will need to be capable of making all the judgments required by law itself and without any human input. Hence, the decision-making entity will be relocated from humans to machines which has for good reasons been called a paradigm shift. This leads to the following substantive considerations.

3.3

The Interplay Between LAWS and Principles of IHL

As previously outlined, CIHL and AP I are the legal sources which are presently relevant. In that context and the overall framework of IHL, one may generally draw a line between means of warfare on the one hand and methods of warfare on the other: while—basically—means refer to specific weapons (“weapons law”), methods entail tactics and conduct (“targeting law”).40 For present purposes, it will be analyzed how and to what extent IHL poses challenges for LAWS. As regards methods, light is shed on the compatibility of LAWS with the fundamental principles prescribed by IHL, essentially distinction, proportionality and precautions in attack. Then, concisely turning to other general limitations of warfare and the means it may be fought with under the over-arching value of humanity, military necessity, the prohibition of superfluous injury and unnecessary suffering as well as the implementation of this latter imperative via weapons reviews under Article 36 AP I will be considered before touching upon ethical aspects.

3.3.1

Distinction

The principle of distinction demands parties to a conflict to discriminate at all times between civilians and civilian objects on the one hand and combatants and military objectives on the other hand:41 while it is illegal to direct attacks against civilians or civilian objects, only combatants and military objectives may be lawful targets. This core rule is considered being part of CIHL42 and moreover codified in Articles 48, 51(2), 52(2) AP I and 13(2) AP II. As simple as this principle might seem upon first

40

Boothby 2016, pp. 332 f.; Schmitt and Thurnher 2013, p. 271. For a thorough discussion of LAWS and the distinction regarding civilian objects/military objectives, see Homayounnejad 2018, Chapter 6.5.3, pp. 200–219 (preliminary pagination). 42 Henckaerts and Doswald-Beck 2005, Rules 1 and 7. 41

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sight, it is accompanied by fundamental problems in practice—especially when it comes to LAWS.43 Battlefields are never of the same nature; they in fact differ in respect of the environment in which they are situated (for example air, sea, deserts or urban areas) as well as of the parties to the specific conflicts which in the age of increasingly asymmetrical combat more and more include insurgents and civilians at times directly participating in hostilities rather than conventional soldiers.44 These factors already pose challenges on the ground and make determinations contextual and subjective.45 One cannot generally comment on LAWS’ ability to comply with the principle of distinction. The underlying reasons are manifold. First of all, much will depend on the certain technology featured in LAWS,46 for example the progressiveness of its sensors, cameras, microphones or software using AI. In this regard, it has been proposed numerous times that in order to ensure distinction being subject to technology’s abilities, systems could be programmed in a conservative manner.47 That means developers could encode an exhaustive list of lawful targets or design the software in a way that the system will only fire when fired upon.48 However, such a restraint would call into question the present understanding of full autonomy as explained above, thus not fulfilling the criteria of human-out-of-the-loop systems. Only when sensors and software are able to adequately (thus legally) assess unforeseeable situations may it be lawful to let LAWS take independent judgments.49 While AI steadily advances, it still appears that know-how of such kind is currently not available,50 and the challenge for research will be fairly difficult: technology must not only be able to understand objective criteria such as whether a person is wearing a uniform or whether an object in the hands of an individual is a rifle or just a tool. Rather, the issue becomes more complicated when facing human behavior (such as intention51 or acting against one’s will52) or subjective questions in general which form a great part of the distinction requirement.53 If an armed child approaches troops, it may not be clear whether it is actually attacking or seeking refuge: indications may be drawn from facial expression, crying, reluctant 43

Foy 2014, p. 56. Ibid.; p. 57.; Grut 2013, p. 11; Human Rights Watch 2012, p. 30; Thurnher 2016, p. 188; van den Boogaard 2015, p. 262. 45 Grut 2013, p. 11; Toscano 2015, p. 210; van den Boogaard 2015, p. 263; Schulzke 2011, p. 300. 46 Anderson and Waxman 2013, p. 11; Toscano 2015, p. 210. 47 Schulzke 2011, pp. 300 f. 48 Anderson and Waxman 2013, p. 12; Toscano 2015, pp. 210 f. 49 Anderson and Waxman 2013, p. 12. 50 Sharkey 2010, p. 378; van den Boogaard 2015, p. 262; Herbach 2012, p. 18; Singer 2009, pp. 80 f. 51 Human Rights Watch 2012, p. 31. 52 Foy 2014, p. 59. 53 Toscano 2015, pp. 210, 216. 44

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or hostile behavior. Thus, LAWS most likely must be able to apply linguistic features and thereby interact with humans.54 But for the time being AI continues to struggle especially with skills of these types of recognition. This example leads and is connected to the next problem: systems will also have to incorporate and interpret wider context along with the environment in which they are deployed.55 Environments here depict the bigger picture: in a surrounding where no or very few non-combatants or civilian objects are present, adherence to the principle of distinction will be much easier for LAWS.56 This may be the case for the high or deep seas, deserts57 or the airspace of no-fly zones. But accepting this reasonable idea directly leads to the following legal and factual problem resulting in a limitation of this argument. What would be the standard for a “permissible environment”? How far away would an area of deployment have to be located from civilian settlements? And is absolute certainty required about the absence of civilians or is a high probability sufficient? Where would or must such a threshold be set? By contrast, there is an unevenly higher probability that LAWS will face issues of distinguishing under IHL in urban settings.58 This is especially so since (mostly non-state) combatants in contemporary conflicts tend to intermingle with the civilian population.59 Furthermore, in some parts of the world, carrying arms openly cannot automatically be equated with an indication of direct participation in hostilities or membership in an organized armed group or armed governmental forces—such a determination may however change within a split second. Hence, LAWS must be capable to adapt to alterations happening constantly on the battlefield.60 In addition, the legal framework is not precise on the definition of civilians—a circumstance that will further complicate the task of converting distinction into sets of algorithms.61 CIHL62 and Article 50(1) AP I define civilians in the negative for IACs,63 namely to include all persons who do not belong to the armed forces. For NIACs, commonly accepted definitions exist neither for civilians nor for fighters

54

Egeland 2016, p. 101; Amoroso and Tamburrini 2017, p. 6. Thurnher 2016, p. 188; Schulzke 2011, p. 300; Singer 2009, p. 409; Homayounnejad 2018, pp. 192 f. Sharkey argues that LAWS simply cannot properly discriminate since they do not take context into account, see Sharkey 2012, p. 788. 56 Anderson and Waxman 2013, pp. 11, 13; Toscano 2015, p. 210; van den Boogaard 2015, pp. 263 f. Thurnher 2016, p. 188. Foy raises doubts whether such scenarios are realistic, see Foy 2014, p. 57. 57 Schmitt 2013, pp. 11, 18. 58 Anderson and Waxman 2013, pp. 11, 13; Toscano 2015, p. 210; van den Boogaard 2015, pp. 263 f.; Thurnher 2016, p. 188. 59 Hauptman 2013, p. 184. Distinguishing between conventional wars and (counter-)insurgency: Schulzke 2011, p. 300; Herbach 2012, p. 18. 60 Toscano 2015, p. 210; Hauptman 2013, p. 193. 61 Foy 2014, p. 59; Sharkey 2010, p. 379. 62 Henckaerts and Doswald-Beck 2005, Rule 5. 63 Sandoz et al. 1987, p. 610, para 1913. 55

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which adds another layer of complexity that must be taken into account. It is furthermore stipulated that, in the case of doubt, assessments are deemed to be made in favor of finding a person a civilian.64 Thus, determining whether a person enjoys civilian protection is often highly contextual and may not be easy to answer65 as the issue at times can present itself rather qualitatively than quantitatively;66 hence complicating the task to formulate the relevant issues as binary67 ones. Also, the question arises what (programmed) degree of doubt will be necessary to allow LAWS to either engage or refrain from an attack68—just as it is problematic for humans. The final decision may oftentimes rely on probabilities which in the case of LAWS are even more difficult to predict.69 In particular and serving as an example, direct participation by civilians in hostilities (DPH) is firstly difficult to determine in and of itself and may, secondly, change from one moment to the other.70 It thus poses a severe challenge for LAWS in the near future.71 This legal notion is comprised of three different elements; namely a certain threshold of harm must be exceeded, a direct causal link between the act and the harm has to be established and finally the specific designation to support a party to the conflict (“belligerent nexus”) must be shown.72 In order to meet the harm threshold, “a specific act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack”.73 This concretization once more depicts subjectivity and context-dependence by including the criteria of likeliness as well as adverse effects which both are open to differing interpretations. Furthermore, the idea of causation and belligerent nexus would require LAWS to evaluate information against a wider background and thus demand situational awareness, classifying certain acts and determining their purpose. Classical examples of DPH ambiguities include civilian drivers of ammunition trucks and voluntary human shields.74 In addition, certain objects may serve dual purposes; such as bridges which may mainly function for civilian traffic but at times are used for movement of military forces.75 64 AP I, above n 15, Article 50(1) sentence 2; Henckaerts and Doswald-Beck 2005, Rule 6, Section “Situations of doubt as to the character of a person”. 65 Schmitt 2013, pp. 16 f.; Singer 2009, p. 203. 66 Egeland 2016, p. 117; Foy 2014, p. 58. 67 Meaning that everything could be assigned a value of either 0 or 1. 68 Schmitt 2013, p. 17. He also emphasizes that the problem of doubt only arises in the context of combatant/non-combatant, but not regarding civilian objects/military objectives. 69 Anderson and Waxman 2013, p. 13; Homayounnejad 2018, pp. 221–223. 70 Van den Boogaard 2015, pp. 262 f. 71 Homayounnejad 2018, pp. 195, 197 f. 72 ICRC 2009, pp. 16, 46. 73 Ibid., p. 47. 74 Ibid., pp. 56 f.; Homayounnejad 2018, pp. 196 f. 75 Wagner 2011, p. 160. One may also recall the bombing of the bridge at the Grdelica Gorge on 12 April 1999 that hit a civilian passenger train, see for this ICTY 2000, paras 58–62.

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But not only civilians are granted the status of protected persons. The principle of distinction additionally demands discrimination between active combatants and those hors de combat (comprised of persons in the power of the adversary, the defenseless (e.g. due to injury), and those clearly intending to surrender).76 Moreover, medical personnel, military chaplains and other non-combatant members of the armed forces may not be targeted.77 All categories mentioned lose their protection however once, and while, they commit hostile acts. Particularly, context again plays an essential role as medical personnel may still act in self-defense or defend the sick and wounded against unlawful violence, hence complicating the determination of temporary loss of protection. Also the conditions of injury and the (qualitative) intention to give up arms pose a problem as they call for LAWS’ capabilities of recognizing body language, emotions and intentions and of subsequent but yet immediate reasoning in light of these findings—all in orderless environments.78 Besides, Article 41(1) AP I complicates the issue by including not just those hors de combat but also those who “should be recognized to be hors de combat”.79 How badly is a person wounded? If it is reaching for its weapon: is there hostile intent or the aim of further shoving it away to the contrary? As a consequence, human-out-of-the-loop systems must be able to discriminate in view of hors de combat and also to understand and receive surrender;80 but these difficulties are currently and for the near future unlikely to be adequately mastered by LAWS.81 When it comes to medical and religious personnel, context and behavior once more play significant roles as small arms may be carried for self-defense but

76 AP I, above n 15, Article 41(1). Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of the War on Land, opened for signature 18 October 1907, International Peace Conference, The Hague, Official Record 206 (entered into force 26 January 1910), Article 23(c); Henckaerts and Doswald-Beck 2005, Rule 47. 77 For medical personnel: AP I, above n 15; Article 15. GC I, above n 11, Articles 24–26; Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, opened for signature 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950) (GC II), Article 36; Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War, opened for signature 8 August 1949, 75 UNTS 287 (entered into force 21 October 1950) (GC IV), Article 20; Henckaerts and Doswald-Beck 2005, Rule 25. For military chaplains: AP I, above n 15, Article 15; GC I, above n 11, Article 24; GC II, n 77, Article 36; Henckaerts and Doswald-Beck 2005, Rule 27. 78 Amoroso and Tamburrini 2017, p. 6; Liu 2012, pp. 645 f.; van den Boogaard 2015, pp. 259, 263. Toscano stated that measurements such as body temperature and heart rate would help the problem, see Toscano 2015, p. 216. However, such advance of technology would only help but not solve the issue and its achievement is currently doubtful. 79 Homayounnejad 2018, p. 199. 80 Arkin 2008, p. 122; Egeland 2016, p. 106. 81 UN General Assembly (2013) Human Rights Council: Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns, UN Doc. A/HRC/23/47, para 67; Human Rights Watch 2012, pp. 34 f.; Sharkey 2012, p. 788; Liu 2012, pp. 643–646; van den Boogaard 2015, p. 259.

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the general protection principally remains in force.82 It is questionable whether LAWS could grasp this difference even if people are carrying (small) firearms. In this context, another layer of complexity is added by the possibility to integrate paramilitary or police forces into the armed forces in a conflict situation.83 It has been correctly submitted that the legal obligation to accordingly notify the other parties to the conflict offers an opportunity to update the LAWS software.84 Yet, this will depend on actual adherence to the informational duty and again on the ability of a LAWS to adequately identify such forces by, inter alia, uniform, insignia, and types of weapons. It has further been pointed out that LAWS do not possess an inherent will for self-preservation as do humans, a characteristic which could enable them to expand currently perceived boundaries of target recognition.85 In addition, observance of the distinction principle could even be improved by the use of LAWS since they will be able to monitor people or areas for longer periods of time.86 It has also been argued that militarily advanced states already have considerable defense budgets and deploy costly single-use weapons.87 However, states will nevertheless have an interest in keeping their weaponry and systems intact and thus might be unwilling to sacrifice LAWS easily. Moreover, human-in-the-loop and human-on-the-loop systems already provide the possibility of continuous monitoring. To conclude, there is a chance that the development and use of LAWS will at some point be able to enhance adherence to the principle of distinction.88 It is at this point also worth mentioning that the US as an important stakeholder in this discussion has examined and taken into account state practice which is aimed at protecting civilians. Those measures include autonomous self-destruct, self-deactivation or self-neutralization mechanisms, increasing awareness regarding civilians and civilian objects present on the battlefield as well as decreasing the need for prompt fire in self-defense.89 Some scholars and organizations have, by contrast, argued that LAWS will definitely never be able to discriminate90 as they consider them to lack the necessary common sense, situational battlefield awareness

82 GC I, above n 11, Article 22(1); GC II, above n 77, Article 35(1); AP I, above n 15, Article 13(2)(a). 83 See Henckaerts and Doswald-Beck 2005, Rule 4; AP I, above n 15, Article 43(3). 84 Homayounnejad 2018, p. 187. 85 UN General Assembly (2013) Human Rights Council: Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns, UN Doc. A/HRC/23/47, para 69; Arkin 2008, pp. 124, 126; Schulzke 2011, pp. 300 f. 86 Van den Boogaard 2015, pp. 263 f. 87 Schulzke 2011, pp. 301 f. 88 Toscano 2015, pp. 210–216; Homayounnejad 2018, p. 226. Van den Boogaard 2015, p. 262 points out recognition via distinctive emblems and transmitted signals. 89 United States (2018) Humanitarian benefits of emerging technologies in the area of lethal autonomous weapon systems, UN Doc. CCW/GGE.1/2018/WP.4, paras 7–37. 90 Human Rights Watch 2012, pp. 30 f.

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as well as human reasoning skills when it comes to behavior and intentions;91 thus, they could only be able to identify a person but nothing more.92 Though, as accurately as this reasoning applies to the current and the soon-to-be-reached state of technology, it neglects the possibility of any future advances.93 Since contemporary law presupposes that humans are—theoretically—able to discriminate, LAWS must at a minimum function like human beings in order to comply with the distinction requirement.94 Systems will have to be able to distinguish relevant information from irrelevant95 and base their choice of available weapons upon their assessments to not only discriminate immediately prior to, but also during engagement.96 Even though these demands are (or may prove too) high,97 it is premature to conclude that LAWS will always violate the principle of distinction under all circumstances. The need for more technological advancements of sensory devices as well as the subsequent (AI) software processing is nevertheless evident.98 Put into more general terms, LAWS must be capable of distinguishing between civilians as well as other protected persons and combatants;99 an issue that requires identification and proper assessment not only of objective criteria but also—and posing the more severe challenge—subjective ones, such as behavior and intention. The problem is exacerbated by the unclear definition of civilians under IHL and the fact that on the ground, at least some extent of doubt will never vanish, e.g. regarding DPH. When it comes to objects, the difficulty of dual-use arises and at the same time reveals in a wider sense that LAWS must be able to cope with (sudden) changes. As has been discussed, context and environment of deployment will also form key elements of the question whether LAWS can discriminate or not.100 Ultimately, the determination regarding the principle of distinction will depend on the advancement of technology as well as the parameters chosen when initially programming the AI in charge of LAWS. However, LAWS are at this point not compatible with the distinction principle101 and therefore human operators cannot be (fully) removed from the targeting cycle and the (OODA) loop. Every partial progress may however be used on the human-machine interface, partnering humans with technological evolution to enhance observance of IHL.

91

Singer 2009, p. 76. Sharkey 2010, pp. 379 f.; Sharkey 2012, pp. 788 f. 93 Toscano 2015, p. 222; McFarland 2015, p. 1338. 94 Egeland 2016, p. 102; Toscano 2015, pp. 215 f.; Schulzke 2011, p. 300. 95 Foy 2014, p. 58. 96 Wagner 2011, p. 161. 97 Thurnher 2016, p. 188; van den Boogaard 2015, p. 263. 98 Foy 2014, p. 59; Singer 2009, pp. 80 f. 99 Homayounnejad 2018, p. 191. 100 Ibid., pp. 223 f. 101 This view is explicitly shared for example by China, see China (2018) Position Paper, UN Doc. CCW/GGE.1/2018/WP.7, para 3. China’s approach has nonetheless been viewed as ambiguous, see Kania 2018. 92

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Proportionality

Turning to the principle of proportionality, this cornerstone of IHL will first be explained in the abstract before assessing LAWS’ compatibility with it. Using the words of the CIHL study, this tenet states: “[l]aunching 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, is prohibited.”102 Not only is this provision considered to form customary law, but it can also be found in Articles 51(5)(b), 57(2)(a)(iii) and 57(2)(b) AP I. It moreover affects all phases of the targeting cycle which must be expected to be conducted by LAWS just as well. The phrasing of the CIHL study and the codification in AP I reveal that proportionality assessments necessitate a balancing between necessities of war on the one hand and humanity on the other.103 When compared, the forecasted incidental104 collateral damage must be commensurate in relation to the military advantage that is predicted to be gained from the respective attack or operation. Especially the use of the words “expected”, “excessive” and “anticipated” already prompts quite some ambiguity.105 Generally speaking, this rule requires actors to exercise good faith and common sense106 and hence becomes subjective107 or—as the ICRC Commentary puts it—grants a “fairly broad margin of judgment”.108 Furthermore, drafters had intended the required military advantage to be of a significant nature and sufficiently predictable as opposed to speculative and taking effect in the long term, thus limiting it to gaining territory and/or weakening the enemy.109 However, an action is not to be evaluated in and of itself but must rather be seen in the wider context of operations of which it forms a part.110 In addition, the same problems (for LAWS) that come along with the principle of distinction also appear in the context of proportionality,111 namely the determination of civilian or belligerent characters of persons. Shifting the focus on the interplay of LAWS with the principle of proportionality, it becomes clear that the issues prove to be even more complex than they have presented themselves in regards of distinction.112 Furthermore, a system that cannot 102

Henckaerts and Doswald-Beck 2005, Rule 14 (emphasis added). Sandoz et al. 1987, p. 683, para 2206 and p. 685, para 2219. 104 Aiming directly at civilians or civilian objects is prohibited, see AP I, above n 15, Articles 51(2) and 52(1). 105 Sandoz et al. 1987, p. 625, para 1977. 106 Ibid., p. 625, para 1978, and pp. 683 f.; para 2208; Oeter 2013, p. 198. 107 Oeter 2013, p. 197. 108 Sandoz et al. 1987, p. 679, para 2187. 109 Ibid., p. 684, para 2209 and p. 685, para 2218. 110 Oeter 2013, p. 197. 111 Ibid. For the principle of distinction, see below, Sect. 3.3.1. 112 Grut 2013, p. 12; Homayounnejad 2018, p. 272. 103

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distinguish properly will not be capable of any satisfactory proportionality assessment which depends on the identification of civilians and civilian objects.113 As issues surrounding this principle particularly form the very center of all scholarly discussion concerning LAWS, the following structure of this section is warranted. First, legal arguments, as submitted in literature, favoring (the possibility of) LAWS’ compatibility with the proportionality principle will be presented. Subsequently, those in disfavor will be outlined in order to ultimately deliver an assessment of its own.

3.3.2.1

Why LAWS Would or Could be Capable of Acting Proportionately

It has been suggested that, as is the case with distinction, LAWS would be capable of proportionate performances whenever the environment of deployment so permits: in an area where, with high probability, neither civilians nor civilian objects are present (e.g. beneath ocean surfaces), the task will be significantly easier.114 Furthermore, one may distinguish technical achievements and possibilities respective to the elements of the proportionality balancing. In this regard, more or less standardized methods to calculate expected collateral damage (the so called collateral damage estimate (methodology), CDE(M)) have already been developed for application using algorithms.115 Since the question of expected collateral damage might in comparison be less complicated as it refers to quantifiable issues,116 such determinations could theoretically be performed when programmed117 into LAWS accordingly. Nonetheless, the matter of LAWS analyzing military advantage and carrying out an own assessment as regards excessiveness is a completely different matter, even though some believe that these factors will neither ultimately stand in the way of a system deemed appropriate. To facilitate adherence, one could also program LAWS to once again act conservatively.118 That is to say that a threshold could be embedded in the software or given as a command to a program run by AI which prevents the system from applying (massive) force in certain circumstances, e.g. when any civilian or civilian object has been

113

Foy 2014, p. 56. In the same sense, van den Boogaard 2015, p. 258. Anderson and Waxman 2013, pp. 12 f.; Homayounnejad 2018, pp. 240, 264 f.; United States (2018) Human-Machine Interaction in the Development, Deployment and Use of Emerging Technologies in the Area of Lethal Autonomous Weapons Systems, UN Doc. CCW/GGE.2/2018/WP.4, para 14. See also above, Sect. 3.3.1. 115 Foy 2014, p. 60; Schmitt and Thurnher 2013, p. 254; Schmitt 2013, p. 19; United States (2018) Humanitarian benefits of emerging technologies in the area of lethal autonomous weapon systems, UN Doc. CCW/GGE.1/2018/WP.4, para 23. 116 Thurnher 2016, p. 189. 117 Schmitt and Thurnher 2013, p. 255; Schmitt 2013, p. 20. 118 Schmitt and Thurnher 2013, p. 256; Thurnher 2016, p. 189. Only regarding military advantage because of the dependence on context, Schmitt 2013, p. 21. 114

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identified.119 Furthermore, LAWS could be programmed or instructed to ask for confirmation or to decide not to engage whenever (a certain degree of) doubt emerges.120 Such characteristics would yet be equal to what is called human-onthe-loop instead of human-out-of-the-loop. An alternative to reluctant programming —admittedly a bit further down the line—would be to develop LAWS that can adapt to specific scenarios.121 It has in addition been contemplated that humans deciding to deploy LAWS will have no interest in violating the proportionality rule and will thus base their choice of weapons upon their consciousness for IHL.122 Some scholars warn of per se ruling out the chance of developing LAWS that can obey the principle of proportionality.123 They rather assume that one day it may as well be possible—including a calculation of military advantage124—to create such systems.125 In that context, they emphasize that one should not hold LAWS to higher standards than humans, who do occasionally commit mistakes: one should not demand perfection but rather a sense of reasonableness.126 One contributor even went as far as saying that LAWS which are capable of adhering to the principle of proportionality are “within reach”.127 To sum up, some academics are rather optimistic regarding LAWS and proportionality. Mainly, these thoughts are put forward based on the uncertainty about what technological development in the future will hold. Additionally, it has been submitted that this path has already been taken regarding collateral damage estimates. Last but not least, this view in the literature contemplates that conservative programming as well as deployment only in areas in which no civilians or civilian objects are located would further ensure observance of this principle.

3.3.2.2

Why LAWS Would Not or Could Not Be Capable of Acting Proportionately

The rule of proportionality appears simple and straightforward at first sight and when viewed in the abstract; yet, the application in practice comes along with many challenges,128 even nowadays without the use of LAWS. This discrepancy makes programming extraordinarily challenging129 and thereby carries great weight for the

119 120 121 122 123 124 125 126 127 128 129

Schulzke 2011, p. 302. Toscano 2015, pp. 211 f.; 217, calling for a “failsafe mechanism”. Schmitt and Thurnher 2013, p. 256. Schulzke 2011, p. 303. Ibid., p. 302; Homayounnejad 2018, p. 272. Schmitt and Thurnher 2013, p. 256. Schmitt 2013, p. 20. Schmitt and Thurnher 2013, pp. 256 f. Arkin 2008, p. 126. ICTY 2000, para 48. Anderson and Waxman 2013, pp. 12 f.

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discussion of autonomous systems, which in turn leads the preponderance of scholarship to skepticism or even general disapproval of such systems. As a starting point, it has been frequently argued that this principle is too vague in the sense that it depends heavily on many and ever-changing parameters, carrying different weight,130 e.g. weather, available intelligence, the type of opponent or operation, opening of certain time frames and possible areas of impact.131 It already creates much uncertainty on today’s battlefields and is the subject of broad debate in scholarship even leaving LAWS aside, stressing the concomitant set of problems.132 The elements of expected collateral damage and military advantage anticipated rely on factors that constantly change.133 A non-exhaustive list of examples includes presence and movement of troops or civilians, the kind of military objectives targeted, availability of weapons, precision of weapons, technical skills by those employing a weapon (system), reliability of information, day-/nighttime and weather conditions.134 Evidently, all necessary input for an assessment of proportionality is highly contextual.135 Furthermore, the notions of “expected collateral damage”, “military advantage anticipated” and “excessive” themselves provide a ground for endless discussions since these words are open to individual interpretation. They hence render every determination subjective;136 no matter whether such evaluation is made ex ante or ex post, even though the obligation stemming from IHL imposes this duty as one prior to engagement. And not only will contexts change constantly, but such alterations consequently carry great weight in the light of the values assigned to them. The destruction of an airport, for example, will suddenly be of less military importance if all aircraft or helicopters based thereon have been neutralized elsewhere. On the other hand, especially urban areas pose the risk that the number of civilians in proximity to a military objective may vary to a large extent within relatively short time frames. This is especially so considering the abuse of civilians as human shields—a practice that is illegal137 but does not as a consequence allow the adversary to breach the principle of proportionality or any other rule of IHL.138 Hence, a fairly small expected collateral damage could become significantly more immense all of the sudden. This means that as a result of changing contexts, (already

130

Van den Boogaard 2015, p. 261. Ibid., pp. 261, 264 f. 132 Grut 2013, p. 13; Homayounnejad 2018, p. 239. 133 Human Rights Watch 2012, p. 32; Homayounnejad 2018, p. 237. 134 Sandoz et al. 1987, p. 684, para 2212. 135 Grut 2013, p. 12. 136 Ibid.; UN General Assembly (2013) Human Rights Council: Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns, UN Doc. A/HRC/23/47, para 70. 137 Henckaerts and Doswald-Beck 2005, Rule 97; Geneva Convention (III) relative to the Treatment of Prisoners of War, opened for signature 21 October 1950, 75 UNTS 135 (entered into force 21 October 1950), Article 23(1); GC IV, above n 77, Article 28; AP I, above n 15, Article 51(7). 138 O’Connell 2013, p. 12. 131

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subjective) values which have been set before carrying out an attack will vary as well.139 Imagining LAWS capable of immediately adjusting to a vast number of changes, which are not only unpredictable but also largely subjective in nature, therefore seems impossible to some commentators.140 Following this summary of comments regarding context-dependence and the overall imprecision of the rule at hand, attention shall now be focused on its particular elements. The estimation of expected collateral damage might be more objective and therefore easier when compared to military advantage141 but will nevertheless pose a challenge142 since this factor entails, in almost all circumstances, some degree of uncertainty.143 In this sense, it has been stated that LAWS must be capable of calculating the consequences resulting from any possible decision144 or of basing their assessment on assumptions which could ultimately be concomitant with disproportionate outcomes.145 Thus, not only the gathering of all relevant information would be necessary but also its adequate processing.146 Turning to the notion of concrete and direct military advantage, one should first note that a method for calculation does not exist as it does for collateral damage147 and the argument was even made that this value can neither be calculated nor set at all.148 It has additionally been submitted that LAWS must feature an ability to understand military planning within all three stages, namely strategical, tactical and operational, and the embedment of specific tasks into these layers.149 This also includes coping with changes within these structures and the attached importance of such modifications plus the suspected military avail of facilities, equipment, troops, positions, etc.150 Recalling the abovementioned airport example, the value of certain installments hinges on other capabilities of the enemy (e.g. communications facilities) and other reverberating effects which must immediately be taken into account. Thus, it will be required that LAWS are programmed with predetermined, yet abstract values for civilians and civilian objects which are nonetheless adjustable to different situations of military advantage.151 As a result, observations have

139 UN General Assembly (2013) Human Rights Council: Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns, UN Doc. A/HRC/23/47, paras 70 f. 140 Egeland 2016, p. 117; Singer 2009, p. 409. 141 Foy 2014, p. 56. 142 Toscano 2015, p. 217. 143 Foy 2014, p. 60. 144 Ibid., p. 59; Wagner 2011, p. 163. 145 Foy 2014, p. 60. 146 Ibid. 147 Ibid. 148 Sharkey 2010, p. 380. 149 Egeland 2016, p. 104. Also van den Boogaard 2015, pp. 264, 266. 150 Egeland 2016, p. 104. 151 Wagner 2016, para 19.

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been made that, similar to expected collateral damage, also military advantage is scenario-dependent, discretionary and hence subjective.152 This has lead even strong proponents of LAWS to the conclusion that the assessment of military advantage is more complex than estimating collateral damage and that the development of AI or any machinery featuring such capabilities is unlikely for the moment.153 Another problem posed can be seen in the issue whether the survival of LAWS themselves might be considered a military advantage.154 Since the protection of own forces is subject to debate in scholarship, one may subsequently question whether the preservation of such systems can become a factor of this kind as well.155 Apart from the legal consideration, it has been found to indeed play a role in reality.156 However and even though the protection of one’s own troops is a legitimate factor of military advantage within the equation, it has been argued that the proportionality rule itself is primarily aimed at protecting civilians, not (lethal autonomous) weapons (systems), and that furthermore an essential distinctive line must be drawn between human soldiers on the one hand and LAWS on the other.157 This has led one author to the conclusion that weapon systems do not enjoy the same protection as human soldiers do (“combatant privilege” or “belligerent privilege”): an assessment that consequently lowers the value of survival of LAWS as a matter of military advantage and at the same time decreases the acceptable expected collateral damage.158 That means that whenever LAWS are deployed instead of soldiers, their return carries less weight in terms of military advantage (anticipated), hence less collateral damage will be acceptable when assessing the proportionality of an attack. It has furthermore been contemplated that the principle of proportionality—first and foremost with regard to the word “excessive”—requires what many have termed an “inherently human judgment”.159 That is to say that the law itself and the logic of this rule demand a human assessment which cannot be delegated to AI or LAWS respectively. The ICTY has held: “[i]n determining whether an attack was

152 Toscano 2015, p. 211; Foy 2014, pp. 56, 60; Schmitt and Thurnher 2013, pp. 255 f.; Thurnher 2016, p. 189; Schmitt 2013, p. 20. 153 Schmitt 2013, p. 20. 154 Schmitt and Thurnher 2013, p. 254. 155 Van den Boogaard 2015, pp. 272 f. He points out that some scholars generally dismiss that the protection of own forces would count as military advantage while others argue that either strict burdens regarding concreteness and directness of such advantage must be met or that these aspects may not form the only aspects in the assessment. 156 Ibid., p. 272. 157 Ibid., pp. 271–275. 158 Ibid. 159 See, e.g., UN General Assembly (2013) Human Rights Council: Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns, UN Doc. A/HRC/23/47, para 72; Human Rights Watch 2012, p. 32. Rather stressing the need for MHC, Homayounnejad 2018, pp. 240, 247.

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proportionate 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.”160 Consequently, attention has been drawn to the fact that the ICTY established the standard of a reasonable person which serves as an argument to conclude that assessments of proportionality per se cannot be conducted by LAWS.161 In addition, submission was made to the extent that the question at issue does not entail a set of constant values but is rather subject to ever-changing moral determinations.162 As LAWS would not be able to comprehend the psychological dilemma in which humans might find themselves when balancing expected collateral damage against military advantage anticipated, such systems have been deemed unfit to adequately obey the proportionality rule.163 This notion is supplemented by the idea that these—qualitative and hence subjective— decisions are to a large extent based on past experience as well as situational awareness, abilities that cannot be acquired by LAWS.164 The issue that human input is required is further complicated by the mere wording of the rule, particularly centered on the element of excessiveness.165 Systems will need to be able to determine when civilian harm would in fact be excessive to the military advantage at stake,166 thus making the decision once more subjective and contextual.167 Simply no clear or specific threshold exists here.168 It has finally been suggested that the judgment is mostly a qualitative instead of a quantitative one, weighing military benefits against the consequences for humanity, civilian objects and the environment.169 Especially for LAWS and the AI at the core of their operation, this procedure cannot be carried out before all circumstances from reality have been translated into data.170 As a result, the proportionality rule will be infringed if LAWS cannot meet the reasonable person requirement.171 Moreover, when a multitude of software programmers is assigned this task, the final interplay of 160 ICTY, Prosecutor v Stanislav Galic, Judgment and Opinion, 5 December 2003, Case No. IT-98-29-T, para 58 (footnotes omitted). 161 Grut 2013, pp. 12 f. 162 Asaro 2012, p. 701. 163 Human Rights Watch 2012, p. 33. 164 Sharkey 2012, pp. 789 f. 165 Wagner 2011, p. 162. Neither does the Oxford Dictionary provide any clarification since it defines “excessive” as “more than is necessary, normal, or desirable; immoderate”. See English Oxford Dictionary (2018) Definition of excessive in English. https://en.oxforddictionaries.com/ definition/excessive. Accessed 11 April 2019. 166 Egeland 2016, p. 104. 167 Schmitt and Thurnher 2013, p. 254; van den Boogaard 2015, p. 266; Sharkey 2010, p. 380; Wagner 2011, pp. 163 f.; Krupiy 2015, pp. 161, 171, 193, 194. 168 Herbach 2012, p. 18. 169 Egeland 2016, p. 117; Wagner 2011, p. 163; van den Boogaard 2015, p. 267. 170 Wagner 2011, p. 163. 171 Foy 2014, p. 61.

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algorithms might create the risk of unpredicted and unintended outcomes.172 It is noted that systems of the present are by no means capable of delivering judgments comparable to those by humans or exercising reasonableness.173 To summarize this subsection, it has been shown that many contributors stipulate that the principle of proportionality is widely phrased, heavily dependent on specific scenarios in casu and always includes subjective assessments. While some reluctant optimism does exist regarding LAWS’ future capabilities concerning the element of expected collateral damage, the same cannot be said about military advantage anticipated. Scholars agree that apart from military benefits, the notion of excessiveness and the reasonable person standard established by the ICTY (and subsequently widely accepted) form impossible tasks for systems presently discussed. It has, thus, been contemplated that not only at the moment but also for the foreseeable future, research will not be able to translate proportionality into a formula or algorithm.174 This low likeliness is further underlined by the fact that when not coping with LAWS, the principle of proportionality is already and always subject to a heated discussion.175 And even given the theoretical possibility of managing military advantage assessments and thus proportionality, the same problems as with distinction would arise.176 Moreover, there would be no guarantee that an actual equivalent to human judgment is created177 and in order to comply with the principle, LAWS could not simply stop at data processing but would also have to take into account humanitarian consequences.178 Hence, a significant majority of scholars argues that assessments of proportionality will pose the biggest challenge for LAWS, if solvable at all.179 Consequently, it has been suggested that for the near and far future, but most importantly for the time being, a human must remain in or at least on the loop in order to obey the principle of proportionality,180 for example in the sense of meaningful human control. In the time to come, LAWS—if developed and used in all kinds of situations—must at least reach the standard to which humans are held

172

Ibid. Toscano 2015, p. 211; van den Boogaard 2015, p. 267. 174 Grut 2013, p. 13; Human Rights Watch 2012, p. 32; Wagner 2011, pp. 163–165; Wagner 2016, para 19. 175 Wagner 2016, para 19. 176 Grut 2013, p. 13. 177 Krupiy 2015, p. 172. 178 Foy 2014, p. 61. 179 Liu 2012, p. 643; Toscano 2015, p. 211; Human Rights Watch 2012, p. 32; Herbach 2012, p. 19; Wagner 2011, p. 165; Thurnher 2016, p. 189; van den Boogaard 2015, p. 283; Sharkey 2010, p. 378; Schmitt 2013, p. 19; Foy 2014, pp. 59 f. 180 Hauptman 2013, p. 179; Liu 2012, p. 643; van den Boogaard 2015, p. 283. Sharkey agrees with this opinion and mainly bases his view on reasons of accountability while admitting that advanced systems may assist human decision-making, see Sharkey 2012, pp. 789 f. and Sharkey 2010, p. 380. 173

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today.181 However, some do not want to rule out the possibility of compatibility per se for the far future.182 Last but not least, the chance remains that the use of LAWS complies with proportionality in scenarios where no collateral damage can be expected and a concrete and direct military advantage definitely results.183

3.3.2.3

Encountering Proportionality

After having provided an overview of the current views, it seems evident that the principle of proportionality forms the key problem for LAWS. While some commentators are trying to spread vague optimism that the development of systems capable of adhering to the principle is (sooner or later) achievable,184 their arguments are for the most part unconvincing. If one is to say that the deployment of LAWS in certain environments would be compatible with proportionality, such statement is admittedly accurate but does not address the overall problem that human-out-of-the-loop systems would have with many assessments under IHL. Such areas do not represent the majority of current battlefields and are unlikely to do so in the future. One should additionally recall the subsequent problematic nature of the notion de lege ferenda of “permissible environments” as outlined above.185 Certainly, promising steps have been and are taken against the background of IHL compatibility with respect to the environment in which systems are deployed. Technology that is able to operate within geographical limitations and uses several instances of checks and balances in areas of little civilian activity (e.g. underwater autonomous vessels targeting multiply verified objects on the surface and systems countering naval mines featuring a possibility for human intervention)186 is likely not to violate the proportionality principle in casu. On a side note, the United States has in the same vein referred to signature strikes, known from drone warfare, as another method for LAWS187 despite the severe questionability of such targeting practice under international law. Furthermore, the fact that methods exist to conduct relatively objective CDEs does indeed offer a starting point but still cannot be regarded more than one piece of the (solution to the) challenge. Also, the difficulties that have arisen in context of the distinction principle188 will play an essential role in CDEs carried out by LAWS

181

Thurnher 2016, p. 189; Schmitt 2013, p. 21. Grut 2013, p. 13. 183 Van den Boogaard 2015, pp. 282 f. 184 See above, Sect. 3.3.2.1. 185 See above, Sect. 3.3.1. 186 Singh Gill 2018, para 21. 187 United States (2018) Human-Machine Interaction in the Development, Deployment and Use of Emerging Technologies in the Area of Lethal Autonomous Weapons Systems, UN Doc. CCW/GGE.2/2018/WP.4, para 15. 188 See above, Sect. 3.3.1. 182

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which is illustrated by CDEM’s limitation to an estimated blast radius depending on normal (weather) conditions and permitting no other interference. It has moreover been submitted that conservative programming or requests for (human) permission could adequately confront the issue at stake. This would however run counter the notion of full autonomy as employed here. If LAWS are designed to ask for authorization before engagement, they cannot be considered independent or without supervisors in or on the loop. Thus, such programming would preclude the qualification as belonging to the category of human-out-of-the-loop. The last argument made was that future systems should not be required to reach a standard of perfection, but rather one of reasonableness to which humans are held. Though, neither is such technology available nor on the horizon, leading to why the pessimistic views in scholarship, forming the vast majority, deserve preference. Just as—or even more—was the case with the distinction principle, proportionality essentially depends on ever-changing contexts which is reflected in targeting practice by distinguishing deliberate and dynamic targeting.189 While the former type allows for pre-selection and calculations within the complete targeting cycle, the latter offers only very short timeframes and insufficient opportunity to conduct deliberate planning. The same difficulties will be faced by LAWS or at least during stages of their development: execution of deliberate targeting by LAWS already seems questionable and thus the dynamic alternative neither appears more promising. In addition, the wide wording of the rule itself opens it to manifold interpretation options, resulting in very subjective assessments on a case-by-case basis. With regard to collateral damage, it is unsure how LAWS could handle recurrent degrees of uncertainty; and not only does the identification of all relevant intelligence pose a problem, but also the subsequent and adequate processing of this data collection by algorithms forming AI. Turning to the even more complicated and subjective element of military advantage, a high degree of strategical, tactical and operational understanding will be needed. Scientists are unlikely to develop LAWS with a sufficient level of battlefield awareness, that is to say they might never be able to comprehend the interdependence of installments, troop movements, reserve capabilities and reverberating effects: the determination of military advantage does not come as a binary one, complicating the task of respective programming. What is more, values for neither collateral damage nor military advantage can be defined in the abstract and therefore not translated into algorithms. Finally, it appears doubtful whether AI will be able to adequately understand the term “excessive”, foremost as long as humans cannot agree on a commonly accepted interpretation. Some contributors have argued that proportionality decisions must necessarily be made by humans, even if LAWS were capable of such determinations. This is unconvincing since this thought rests upon the (nevertheless well-reasoned and widely accepted) ICTY jurisprudence, but cannot be tied to the legal rule itself stemming from CIHL and AP I.190 However, it is true that the

189 190

NATO Standardization Office 2016, paras 0102 f. See also below, Sect. 3.3.4.3.

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provisions are to a significant extent morally connoted, already leading to intense discussions in scholarship and practice independently of LAWS. Thus, the overall picture and its specific issues are, at this point, too complex, too variable and too dependent on subjective moral conclusions for autonomous systems to handle. Autonomous systems cannot comprehend proportionality as a unified whole because of the mass of information from numerable sources at strategical, tactical and operational levels and hence cannot completely replace humans in terms of out-of-the-loop. This makes LAWS incompatible with the proportionality principle —a view that is currently shared by China, for example.191 Though collateral damage can be calculated with some degree of objectivity, military advantage proves too context-specific and subjective and can thus not be expressed in binary terms. If ever possible, technology must take a giant leap forward. As concluded for distinction, advantages offered by technology may nonetheless be used for partnering on the human-machine interface.

3.3.3

Precautions

Another imperative of IHL applicable to LAWS192 can be identified in the customary193 and codified194 rule that belligerents must take all feasible precautions in attack to spare the civilian population as well as civilian objects. This obligation particularly entails the duties to (a) verify targets as military objectives, (b) base the choice of means and methods of warfare in light of the least potential risk to civilians and civilian objects, (c) launch attacks only when the effects are expected to be proportionate, (d) retain control to abort or suspend operations in case the probability of violating these previous rules suddenly appears or increases, (e) give effective warning to the civilian population unless circumstances do not permit, and (f) choose the military target which comes along with the least risk of collateral damage but yields the same military advantage.195 These concretizations—which are essential during the first five steps of the targeting cycle—clarify that the requirement to take precautions depends on distinction and proportionality,196 which carry their problems for LAWS as explained above. And as is the case with those principles, subjectivity and context once again play a significant role since only feasible steps are demanded: an effort in the sense

191 China (2018) Position Paper, UN Doc. CCW/GGE.1/2018/WP.7, para 3. China’s overall position has however been interpreted as ambiguous, see Kania 2018. 192 Van den Boogaard 2015, p. 279; Schmitt and Thurnher 2013, p. 260. Van den Boogaard points out that Article 57 AP I is (partly) phrased in a way addressing humans. 193 Henckaerts and Doswald-Beck 2005, Rules 15–21. 194 AP I, above n 15, Article 57(1). 195 Henckaerts and Doswald-Beck 2005, Rules 16–21; AP I, above n 15, Article 57(2), (3). 196 Egeland 2016, p. 106; Herbach 2012, pp. 5, 18 f.

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of due diligence is prescribed rather than a specific outcome.197 While some commentators have concluded that precautions in attack must categorically be taken by humans and cannot be delegated to LAWS,198 others have focused on certain characteristics that human-out-of-the-loop systems would have to fulfill. The reliability of target verification may be enhanced by LAWS which feature a capability of deciding between loitering, choosing another weapon or aborting the mission.199 However, loitering is not necessarily a technological improvement offered by LAWS, but is already possible using in- or on-the-loop systems. Moreover, it is crucial that the rules of distinction and proportionality are not only observed before but also during engagement. This means that LAWS would need the ability to adjust to ever-present uncertainties and sudden changes in the target area or to other information that becomes known at short notice; if such alterations would then render an attack illegal, the power to abort or suspend an operation has to be vested in human-out-of-the-loop technology.200 To provide an example, an autonomous weapon system which has already fired a missile at a verified military target should be able to still redirect the rocket if its AI suddenly becomes aware of the unexpected disappearance of a verified and lawful human target or an unevenly higher number of civilians present than previously detected. It ought to be capable to consequently decide to loiter and wait for the civilians to disperse or to choose a different missile with a smaller blast radius anticipated or greater precision201 and accuracy. A third option would be to abort the mission completely. Admittedly, the precautionary requirement depends on the question of what is actually feasible in each specific scenario and thereby accepts some margin of error. However, high-aiming standards should be applied in the development of LAWS. Another issue that would have to be addressed by programmers and translated into algorithms is the possibility to issue effective warnings to the civilian population202 (unless circumstances do not permit); and a further challenge is posed by required capabilities to accept surrender as LAWS must not only discriminate between civilians and belligerents but also between active combatants and those hors de combat.203 It is therefore once again concluded that the removal of humans from the loop currently and for the foreseeable future is likely to lead to an infringement of IHL, this time in the shape of the requirement to take all feasible precautions in attack. 197

Toscano 2015, p. 212; Herbach 2012, p. 1; Schmitt and Thurnher 2013, pp. 260 f.; Schmitt 2013, pp. 23–25; van den Boogaard 2015, p. 280. Schmitt and Thurnher conclude that the standard is one of reasonableness; Herbach speaks of practicability. 198 ICRC 2016, pp. 79 f.; Moyes 2016, p. 48. 199 UN General Assembly (2013) Human Rights Council: Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns, UN Doc. A/HRC/23/47, para 69; Arkin 2008, pp. 124, 126; Schulzke 2011, pp. 300 f.; Toscano 2015, pp. 212, 230; Schmitt and Thurnher 2013, p. 260. 200 Egeland 2016, p. 106; Herbach 2012, pp. 15–17; van den Boogaard 2015, p. 280. 201 Herbach 2012, pp. 11 f. 202 Egeland 2016, p. 106. 203 Ibid.

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The concept of feasibility itself precludes any tangible determination which could be converted into algorithms based on binary variables since its unclear terminology can be assessed with countless differing outcomes. And it also does not matter whether one tries to substantiate this term through reasonableness or practicability because a high degree of uncertainty, subjectivity and context-dependence (such as available weapons, weather conditions, or permissible time slots) will remain under all circumstances. Moreover, the specific elements of precautions correspond with the rules of distinction and proportionality which cannot be adequately obeyed by LAWS for the time being.204 The challenge for human-out-of-the-loop systems rests upon the (too) large and (too) wide amount of informational input from a variety of sources during the steps of targeting; and furthermore technological possibilities appear rather limited with regard to correctly understanding human behavior in cases of injury or surrender, the latter possibly requiring output-abilities such as communicational skills and interaction. Even though it has occasionally been argued that the use of LAWS which fulfill the tasks better than their less or non-independent alternatives or human counterparts (e.g. expecting less collateral damage) may not just be legal but even warranted under the duty to take precautions,205 such idea hinges on corresponding technological improvements which are at this moment not in sight.206 And even if such advancements were, the use of those systems would still be illegal if other available choices lead to a lower collateral damage estimate.207 Notwithstanding that this last thought may just as well apply vice versa, it must at this moment still be concluded for the obligation to take all feasible precautions in attack that humans may again only partner with machines, but not shift decision-making to AI entirely. Humans have to stay (meaningfully) involved for the near future.208

3.3.4

Humanity

The principle of humanity with its several sub-principles plays an overarching role in IHL.209 In essence, it provides a counter-balance to military needs and tries to

204

See above, Sects. 3.3.1 and 3.3.2. Schmitt and Thurnher 2013, p. 262; Schmitt 2013, p. 25; Thurnher 2016, p. 190; Herbach 2012, pp. 13 f. 206 Herbach 2012, pp. 17–19. 207 Schmitt and Thurnher 2013, pp. 260 f.; Schmitt 2013, pp. 23 f.; Thurnher 2016, p. 190. 208 Herbach 2012, p. 8. He also opines that in-the-loop systems are the only current possibility since on-the-loop types do not always guarantee sufficient human action (ibid., p. 17). Homayounnejad proposes that LAWS able to learn independently could be programmed in a fashion that they are allowed to only learn “offline”, meaning not while deployed. This would yield a possibility to ensure supervision of such processes by humans. Another useful suggestion is the limitation of LAWS to strict target parameters. See Homayounnejad 2018, pp. 263, 265–267. 209 See, generally, O’Connell 2013, pp. 34–38; Corn 2013. 205

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ensure some level of humane conduct and treatment during hostilities. This principle can be found in customary law as well as codified rules, but for the purposes of LAWS it will be sufficient to shortly assess aspects of military necessity, the prohibition of superfluous injury and unnecessary suffering, weapon reviews and the Martens Clause.

3.3.4.1

Military Necessity

IHL seeks a balance between humanity on the one side and military necessity on the other: the latter factor prescribes that force may only be used in order to achieve the central goal of weakening the enemy; wanton or unnecessary engagements are prohibited.210 The relevance of this notion for LAWS has correctly been deemed low211 as it may either prohibit or mandate the use of such systems. The programming of systems would have to be designed in a way that only lawful targets are attacked;212 however, the analysis will once again be subjective, scenario-dependent and pose similar problems as do distinction and proportionality.213 Military necessity thus hinges on the substantive standards outlined above.

3.3.4.2

Superfluous Injury and Unnecessary Suffering

Originally stemming from the St Petersburg Declaration of 1868,214 CIHL215 and Article 35(2) AP I provide that no means or methods may be used which cause superfluous injury or unnecessary suffering. Yet, this prohibition is of low relevance for LAWS as the risk of causing these outlawed results will depend on the specific weaponry appearing in the shape of LAWS.216 Such technology does not form a weapon itself, but rather a system featuring, inter alia, one or multiple weapons.217 For instance, LAWS shooting Dum-Dum bullets or fragments undetectable by X-rays would violate CIHL and Article 35(2) AP I while one utilizing regular

210

AP I, above n 15, Article 52(2); Henckaerts and Doswald-Beck 2005, Rule 7; O’Connell 2013, pp. 34–38. 211 Foy 2014, p. 54; Schmitt and Thurnher 2013, p. 259; Schmitt 2013, p. 22. 212 Hauptman 2013, p. 171; Toscano 2015, p. 209. 213 Human Rights Watch 2012, pp. 34 f.; Foy 2014, p. 54; Schmitt and Thurnher 2013, p. 258; Schmitt 2013, p. 22. 214 Oeter 2013, p. 125, referring to the St. Petersburg Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight, opened for signature 11 December 1868, 138 CTS 297 (entered into force 11 December 1868). 215 Henckaerts and Doswald-Beck 2005, Rule 70; Nuclear Weapons Advisory Opinion, above n 5, paras 78 f. 216 Hauptman 2013, p. 172; van den Boogaard 2015, pp. 257 f. 217 Liu 2012, pp. 636–639; Sharkey 2012, p. 797.

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projectiles would not. Thus, the characteristic of autonomy or removing humans from the loop is not decisive in this regard.218

3.3.4.3

Weapon Reviews

The weapon review requirement under Article 36 AP I deserves more attention.219 It was designed as a means to implement the restrictions on weapons220 and stipulates: In the study, development, acquisition or adoption of a new weapon, means or method of warfare, a High Contracting Party is under an obligation to determine whether its employment would, in some or all circumstances, be prohibited by this Protocol or by any other rule of international law applicable to the High Contracting Party.221

Even though the customary nature of this provision is disputed,222 states not party to AP I have implemented respective procedures nevertheless.223 Accordingly, concerned states must carry out comprehensive, though not necessarily public224 analyses whether fully autonomous weapon systems are able to comply with the rules of IHL. As proportionality always depends on context, it is not part of the review.225 Notwithstanding the notion that LAWS do not constitute weapons in the conventional sense, Article 36 AP I still applies mostly because of its wide wording.226 This provision prescribes that LAWS must be examined for their compatibility with IHL prior to deployment; that is to say during any stage of procurement.227 It is limited to the weapon itself instead of possible uses228 and entails a threefold test:229 (1) specific prohibitions by treaty or custom, (2) ability to discriminate and 218

Van den Boogaard 2015, pp. 257 f. UN General Assembly (2013) Human Rights Council: Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns, UN Doc. A/HRC/23/47, paras 106–108. For detailed recommendations for conducting LAWS reviews, see Backstrom and Henderson 2012. 220 Sandoz et al. 1987, pp. 421–423, paras 1463, 1466; ICRC 2006, p. 933. 221 AP I, above n 15, Article 36. 222 Grut 2013, p. 9. Accepting the obligation under CIL at least regarding means: Schmitt and Thurnher 2013, p. 271. The ICRC considers weapon reviews to be a (logical) part of CIHL, see ICRC 2006, p. 933. 223 Henckaerts and Doswald-Beck 2005, Rule 71. 224 ICRC 2006, pp. 955 f.; Singh Gill 2018, para 39. 225 Schmitt and Thurnher 2013, pp. 273 f. 226 Human Rights Watch 2012, p. 23; Schmitt and Thurnher 2013, p. 272; Sandoz et al. 1987, pp. 427 f., paras 1476–1478. In para 1476, Jean de Preaux opined: “if man does not master technology, but allows it to master him, he will be destroyed by technology.” 227 ICRC 2006, pp. 951 f. 228 Schmitt and Thurnher 2013, pp. 273, 276. 229 ICRC 2006, pp. 938–945. 219

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adherence to the prohibition of superfluous injury and unnecessary suffering, and (3) restrictions stemming from the Martens Clause. As LAWS are at this point forbidden by neither treaty nor custom and the Martens Clause will be addressed in the following Sect. 3.3.4.4, the focus here is placed on the second element of the mentioned test. The second leg (regarding superfluous injury and unnecessary suffering) of such assessment does once more not depend on the autonomous capabilities of LAWS but rather the types of weaponry they are equipped or connected with.230 Furthermore, the prohibition of indiscriminate means may be translated into illegality of weapons that cannot be aimed at a certain target, thus bearing on reliability, accuracy and uncontrollable effects.231 This puts a respective duty on states to already consider these criteria in an adequate manner at pre-fielding stages. While technology must enable LAWS to distinguish civilians from combatants and civilian objects from military objectives,232 they moreover must not be equipped with weapons that may lead to the abovementioned, impermissible results.233 Thus, the review (under Article 36 AP I) puts an obligation in this regard on states, but any outcome essentially hinges on the substantive standards which have been discussed above. It is, however, difficult to argue—and this refers back to the conclusion reached with regard to the prohibition of superfluous injury and unnecessary suffering—that the very shift of decision-making from a human to an autonomous entity per se contradicts the rules that must be taken into account during such weapon reviews.234 Apart from this change removing humans from the loop, it must nevertheless be concluded that distinction problems235 pose too big of a risk and that the development of learning mechanisms for AI may ultimately lead to the unpredictability of LAWS which can amount to uncontrollable effects in reality. If, for example, biological weapons are considered illegal because of their unforeseeable spread, a parallel can be drawn to LAWS which malfunction and operate without any possibility of human interference in this scenario. Hence, weapon reviews in light of the current and near state of technology regarding LAWS will or at least should serve as a prevention tool for autonomous systems which are incompatible with rules and principles of IHL.

230

Toscano 2015, p. 208. See also above, Sect. 3.3.4.2. AP I, above n 15, Article 51(4)(c); Toscano 2015, pp. 206 f.; Backstrom and Henderson 2012, p. 486; Egeland 2016, p. 96; Schmitt and Thurnher 2013, p. 250. 232 For the principle of distinction, see above, Sect. 3.3.1. 233 Toscano 2015, pp. 206–208. 234 Anderson and Waxman 2013, pp. 10 f.; Schmitt and Thurnher 2013, p. 276; Thurnher 2016, p. 187. Not tied to Article 36 AP I but in general, this is disputed, see UN General Assembly (2013) Human Rights Council: Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns, UN Doc. A/HRC/23/47, paras 89–97; Asaro 2012, pp. 696– 700; van den Boogaard 2015, pp. 278, 279. See also above, Sect. 3.3.2.3. 235 See above, Sect. 3.3.1. 231

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The Martens Clause

The ICJ has recognized the customary status of the Martens Clause and praised it as “an effective means of addressing the rapid evolution of military technology”.236 This rule is featured in various legal documents and prescribes in its shape of AP I: “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.”237 Without specific regard to LAWS, the substance and reach of this rule are subject to ongoing legal discussion with interpretations ranging from very narrow understandings in the sense of a safeguard for customary international law to merely supplementary functions to broad readings treating humanity and public conscience as independent legal sources of IHL.238 While only a wide notion could advocate against LAWS,239 the corresponding issues are actively debated with regard to autonomous systems. It has been submitted that the rule is too imprecise to carry any weight240 and has furthermore lost some of its significance as treaty and customary law have proliferated during the twentieth century.241 The clause is widely accepted to function as a “failsafe mechanism”242 or “safety net for humanity”,243 suggesting the conclusion that this subsidiary means is not needed since several core rules of IHL are already applicable to regulate LAWS.244 Considering the overall generality of these legal provisions without specific reference to certain weapons or weapon systems, it does seem compelling to argue that the Martens Clause cannot itself prohibit LAWS in a legal sense. Nevertheless, it does serve as an important gateway for ethics to at least affect law.245 One should hence still ask whether it is in and of itself right or wrong to let machines make decisions about life and death against the backdrop of the fact that LAWS themselves are not mortal.246 It may after all very well seem reasonable and desirable to

236

Nuclear Weapons Advisory Opinion, above n 5, paras 78, 84, 87. AP I, above n 15, Article 1(2). 238 For overviews, see von Bernstorff 2009, para 13; Evans 2013, pp. 712–718, 722–725. 239 Evans 2013, p. 725. 240 Egeland 2016, p. 107. 241 Schmitt and Thurnher 2013, pp. 275 f.; Schmitt 2013, p. 32. 242 Schmitt and Thurnher 2013, p. 275; Schmitt 2013, p. 32. 243 ICRC (2018) Ethics and autonomous weapon systems: An ethical basis for human control? UN Doc. CCW/GGE.1/2018/WP.5, para 8. 244 Schmitt and Thurnher 2013, p. 276; Schmitt 2013, p. 32. 245 ICRC (2018) Ethics and autonomous weapon systems: An ethical basis for human control? UN Doc. CCW/GGE.1/2018/WP.5, para 73. 246 UN General Assembly (2013) Human Rights Council: Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns, UN Doc. A/HRC/23/47, paras 89– 97; Holy See 2017; Estonia, Finland (2018) Categorizing lethal autonomous weapons systems—A 237

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keep a level of humanity and compassion on the battlefield.247 Even if at some point LAWS would be compatible with IHL, this does not mean they should be fielded: resulting not from law, but rather from ethical values. While lethal engagement of a human target may be lawful under IHL in a specific case, a human soldier might still refrain from doing so; and it is doubtful whether LAWS would ever decide not to fire in case all legal parameters are met. However, details on this issue are outside the scope of this chapter.

3.4

Conclusion: Compatibility with IHL Remains to Be Yet Achieved, If Ever Possible

It has initially been outlined that in the present chapter LAWS are understood to feature no human operator involvement but rather to function fully and thus truly autonomous as regards decision-making in the targeting cycle and the OODA loop. Therefore, the level of human participation versus machine independence constitutes the critical criterion of definition, but such human-out-of-the-loop technology is neither yet existent nor within reach. As IHL is constantly relevant throughout decision-making processes, engagement itself and the aftermath, substantive provisions have been examined. Even though distinction might at first sight appear an easier task for LAWS as this determination relates to multiple objective assessments, autonomous systems are not (yet?) capable to understand subjective factors such as intention and ambiguous behavior. The problem furthermore becomes evident when recalling the unclear definition of civilians and ever-remaining doubt in reality. Uncertainties, sudden changes (e.g. DPH) as well as dependence on context248 and environment show LAWS’ incompatibility not only with the distinction rule, but also with proportionality. In light of this latter principle, collateral damage could possibly be fairly easier to estimate using AI but the element of military advantage proves too unclear, too complex and too subjective given the mass of information from various sources. This rule itself is openly phrased and ultimately depends on morality in a way that demands battlefield and overall awareness—characteristics which LAWS currently lack and will not acquire in the foreseeable future. However, the deployment of LAWS in permissive environments is highly unlikely to violate IHL rules. In addition, the obligation to take precautions in attack depends on the aforementioned rules and thus carries the same problems for human-out-of-the-loop systems. It is also questionable whether they could adequately detect and handle

technical and legal perspective to understanding LAWS, UN Doc. CCW/GGE.2/2018/WP.2, paras 11–13. 247 Human Rights Watch 2012, pp. 34 f.; Asaro 2012, p. 700; ICRC 2018, paras 89, 97. 248 As Homayounnejad 2018, p. 275 frankly formulated: “context is king, […]”.

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injured or surrendering soldiers and last but not least, the notion of feasibility cannot be formulated in the abstract or binary terms. Different sub-aspects of the overarching principle of humanity have been deemed to be of less significance when evaluating LAWS. However, the Martens Clause can, and moreover should, function as a gateway for essential ethical considerations which should be taken into account besides any legal reasoning.249 One may also add that policy deliberations are warranted since the increased safety for one’s own soldiers might ease the home fronts through the use of LAWS but could trigger an even worse perception by the population of respective battlefield areas—it is advisable to think of respective observations250 regarding drone warfare. What is thus to be concluded? LAWS are currently and in the relatively near future incompatible with the applicable rules of IHL—at least regarding the common types of battlefields of the present. However, the fewer civilians and civilian objects in a certain environment, the higher the likelihood that LAWS to not violate the law of armed conflict. If scientific research ever achieves major advances leading to adherence to most importantly distinction, proportionality and precautions in attack, it will require a considerable amount of time and effort. Until then, humans must stay in or at least on the loop in order to ensure observance of IHL during all stages of the targeting cycle. This is likely to correspond with the interest of military commands by preserving sufficient control; the approach of meaningful human control offers a promising starting point in this regard. Thus, numerous states have adopted this concept and established such human element as their predominant policy at the moment251—while it has been adopted as a possible guiding principle,252 it is however still met with criticism from major powers Russia

249 Singer 2009, p. 396: “[a] computer has no anger to make it lash out like at My Lai, but it also has no pity, no disgust, and no sense of guilt. [Everything is] just a series of zeros and ones.” Furthermore at p. 433: “In making war less human, we may also be making it less humane.” For ethical considerations, see Holy See 2017; Estonia, Finland (2018) Categorizing lethal autonomous weapons systems—A technical and legal perspective to understanding LAWS, UN Doc. CCW/GGE.2/2018/WP.2, paras 11–13. 250 Anderson and Waxman 2013, pp. 4 f.; IHRCRC and GJC 2012, pp. 131–140. 251 European Union 2018, p. 2; France and Germany 2018, p. 2; Kingdom of the Netherlands 2018, p. 2; Austria, Brazil, Chile (2018) Proposal for a Mandate to Negotiate a Legally-binding Instrument that addresses the Legal, Humanitarian and Ethical Concerns posed by Emerging Technologies in the Area of Lethal Autonomous Weapons Systems (LAWS), UN Doc. CCW/GGE.2/2018/WP.7; China (2018) Position Paper, UN Doc. CCW/GGE.1/2018/WP.7, para 3; United Kingdom (2018) Human Machine Touchpoints: The United Kingdom’s perspective on human control over weapon development and targeting cycles, UN Doc. CCW/GGE.2/2018/WP.1, paras 6, 8, 10, 15; United States (2018) Human-Machine Interaction in the Development, Deployment and Use of Emerging Technologies in the Area of Lethal Autonomous Weapons Systems, UN Doc. CCW/GGE.2/2018/WP.4, paras 1, 8; Singh Gill 2018, para 11. 252 Group of Governmental Experts of the High Contracting Parties 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 (2018) Report of the 2018 session of

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and the US.253 As a consequence of this and other intensively debated issues, the legal and political way forward remains unclear. Propositions by states range from a legally binding treaty, to a political declaration, to no additional action at all.254 Furthermore, technological progress should by no means be neglected but may rather be consciously used to enhance military capabilities and lawful conduct.255 The partnering of persons and systems on the so called human-machine interface may hence continuously be pursued in order to utilize technological developments and obey IHL at the same time.

References Articles, Books and Other Documents AIV/CAVV (2015) Autonomous Weapon Systems: The Need for Meaningful Human Control, No. 97 AIV / No. 26 CAVV. https://aiv-advies.nl/download/606cb3b1-a800-4f8a-936faf61ac991dd0.pdf. Accessed 16 April 2019 Amoroso D, Tamburrini G (2017) The Ethical and Legal Case Against Autonomy in Weapons Systems. Global Jurist 17(3):1–20 Anderson K, Waxman M (2013) Law and Ethics for Autonomous Weapon Systems: Why a Ban Won’t Work and How the Laws of War Can. http://media.hoover.org/sites/default/files/ documents/Anderson-Waxman_LawAndEthics_r2_FINAL.pdf. Accessed 11 April 2019 Arkin RC (2008) Governing Lethal Behavior: Embedding Ethics in a Hybrid Deliberative/ Reactive Robot Architecture. Part I: Motivation and Philosophy. 3rd ACM/IEEE Conference

the Group of Governmental Experts on Emerging Technologies in the Area of Lethal Autonomous Weapons Systems, UN Doc. CCW/GGE.1/2018/3, para 26(b). 253 Russia agrees in principle but questions a universal standard, states should rather make such determinations independently, see Russian Federation 2018, paras 9, 11, 12. The United States has also commented rather critically, see United States 2018b Human-Machine Interaction in the Development, Deployment and Use of Emerging Technologies in the Area of Lethal Autonomous Weapons Systems, UN Doc. CCW/GGE.2/2018/WP.4, paras 42–53. 254 Group of Governmental Experts of the High Contracting Parties 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 (2018) Report of the 2018 session of the Group of Governmental Experts on Emerging Technologies in the Area of Lethal Autonomous Weapons Systems, UN Doc. CCW/GGE.1/2018/3, paras 32–35, 46–49. 255 This is also supported by many stakeholders, see, e.g., European Union 2018, p. 2; Kingdom of the Netherlands 2018, p. 2; Republic of Korea 2018, p. 2; China (2018) Position Paper, UN Doc. CCW/GGE.1/2018/WP.7, para 3; Russian Federation (2018) Russia’s Approaches to the Elaboration of a Working Definition and Basic Functions of Lethal Autonomous Weapons Systems in the Context of the Purposes and Objectives of the Convention, UN Doc. CCW/GGE.1/ 2018/WP.6, paras 2, 12; United States (2018) Humanitarian benefits of emerging technologies in the area of lethal autonomous weapon systems, UN Doc. CCW/GGE.1/2018/WP.4, paras 3, 35, 40; United States (2018) Human-Machine Interaction in the Development, Deployment and Use of Emerging Technologies in the Area of Lethal Autonomous Weapons Systems, UN Doc. CCW/ GGE.2/2018/WP.4, para 40; Singh Gill 2018, paras 21, 36, 41.

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Thurnher JS (2016) Means and Methods of the Future: Autonomous Systems. In: Ducheine PAL et al. (eds) Targeting: The Challenges of Modern Warfare. T.M.C. Asser Press, The Hague, pp. 177–200 Toscano CP (2015) Friend of Humans: An Argument for Developing Autonomous Weapons Systems. Journal of National Security Law & Policy 8:189–246 UN General Assembly (2013) Human Rights Council: Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns, UN Doc. A/HRC/23/47 UN Institute for Disarmament Research (2014) Framing Discussions on the Weaponization of Increasingly Autonomous Technologies. http://www.unidir.org/files/publications/pdfs/framingdiscussions-on-the-weaponization-of-increasingly-autonomous-technologies-en-606.pdf. Accessed 11 April 2019 UN Institute for Disarmament Research (2018) The Weaponization of Increasingly Autonomous Technologies: Artificial Intelligence: a primer for CCW delegates. http://www.unidir.ch/files/ publications/pdfs/the-weaponization-of-increasingly-autonomous-technologies-artificialintelligence-en-700.pdf. Accessed 11 April 2019 United Kingdom (2018) Human Machine Touchpoints: The United Kingdom’s perspective on human control over weapon development and targeting cycles, UN Doc. CCW/GGE.2/2018/ WP.1 United States (2018) Humanitarian benefits of emerging technologies in the area of lethal autonomous weapon systems, UN Doc. CCW/GGE.1/2018/WP.4 United States (2018) Human-Machine Interaction in the Development, Deployment and Use of Emerging Technologies in the Area of Lethal Autonomous Weapons Systems, UN Doc. CCW/ GGE.2/2018/WP.4 US Department of Defense (2012) Autonomy in Weapon Systems. Directive 3000.09. http://www. esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/300009p.pdf. Accessed 11 April 2019 Van den Boogaard J (2015) Proportionality and Autonomous Weapons Systems. Journal of International Humanitarian Legal Studies 6:247–283 Von Bernstorff J (2009) Martens Clause. In: Max Planck Encyclopedia of Public International Law Wagner M (2011) Taking Humans out of the Loop: Implications for International Humanitarian Law. Journal of Law and Information Science 21:155–165 Wagner M (2016) Autonomous Weapon Systems. In: Max Planck Encyclopedia of Public International Law Williams AP (2015) Defining Autonomy in Systems: Challenges and Solutions. In: Williams AP, Scharre PD (eds) Autonomous Systems: Issues for Defence Policymakers. NATO Communications and Information Agency, The Hague, pp. 27–62

Cases ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, [1996] ICJ Rep 226 ICTY, Prosecutor v Stanislav Galic, Judgment and Opinion, 5 December 2003, Case No. IT-98-29-T ICTY, Prosecutor v Dusko Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, Case No. IT-94-1

Treaties Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of the War on Land, opened for signature 18 October 1907, International Peace Conference, The Hague, Official Record 206 (entered into force 26 January 1910)

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Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, opened for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950) Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, opened for signature 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950) Geneva Convention (III) relative to the Treatment of Prisoners of War, opened for signature 21 October 1950, 75 UNTS 135 (entered into force 21 October 1950) Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War, opened for signature 8 August 1949, 75 UNTS 287 (entered into force 21 October 1950) Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), opened for signature 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978) Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), opened for signature 8 June 1977, 1125 UNTS 609 (entered into force 7 December 1978) St. Petersburg Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight, opened for signature 11 December 1868, 138 CTS 297 (entered into force 11 December 1868) Statute of the International Court of Justice, opened for signature 26 June 1945, USTS 993 (entered into force 24 October 1945)

Chapter 4

The Law of Armed Conflict Issues Created by Programming Automatic Target Recognition Systems Using Deep Learning Methods Joshua G. Hughes

Contents 4.1 Introduction........................................................................................................................ 4.2 Artificial Intelligence, Machine Learning, and Deep Learning Neural Networks............................................................................................................................ 4.3 Autonomous Weapon Systems and the Current Debate .................................................. 4.4 The Inherent Problems of Deep Learning ........................................................................ 4.4.1 Lack of Context...................................................................................................... 4.4.2 A Lack of Explainability and a Semblance of Correct Functioning..................... 4.5 The Challenges that Deep Learning Presents for Targeting ............................................ 4.5.1 Target Recognition in the Context of Algorithmic Decision-Making .................. 4.5.2 Target Recognition by Deep Learning-Generated Algorithms.............................. 4.5.3 Tasks Currently Requiring Human Judgement...................................................... 4.6 Human-Machine Teams .................................................................................................... 4.7 The Challenges Which Deep Learning Presents for Law of Armed Conflict Obligations Requiring Understanding............................................................................... 4.7.1 Operator Understandings ........................................................................................ 4.7.2 Commander Understanding and Command Responsibility................................... 4.7.3 Weapons Reviews .................................................................................................. 4.8 Conclusion ......................................................................................................................... References ..................................................................................................................................

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Joshua G. Hughes is a Ph.D. Candidate at Lancaster University Law School. The research for this chapter was carried out through a studentship grant from the North-West Consortium Doctoral Training Partnership, funded by the UK Arts and Humanities Research Council. He would like to thank Professor James Sweeney for his assistance and advice in writing this chapter. He would also like to thank the two anonymous reviewers for their very helpful comments. All errors remain the author’s own. J. G. Hughes (&) Lancaster University Law School, Bailrigg, Lancashire LA1 4YW, UK e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2020 T. D. Gill et al. (eds.), Yearbook of International Humanitarian Law 2018, Yearbook of International Humanitarian Law 21, https://doi.org/10.1007/978-94-6265-343-6_4

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Abstract Deep learning is a method of machine learning which has advanced several headline-grabbing technologies, from self-driving cars to systems recognising mental health issues in medical data. Due to these successes, its capabilities in image and target recognition is currently being researched for use in armed conflicts. However, this programming method contains inherent limitations, including an inability for the resultant algorithms to comprehend context and the near impossibility for humans to understand the decision-making process of the algorithms. This can lead to the appearance that the algorithms are functioning as intended even when they are not. This chapter examines these problems, amongst others, with regard to the potential use of deep learning to programme automatic target recognition systems, which may be used in an autonomous weapon system during an armed conflict. This chapter evaluates how the limitations of deep learning affect the ability of these systems to perform target recognition in compliance with the law of armed conflict. Ultimately, this chapter concludes that whilst there are some very narrow circumstances where these algorithms could be used in compliance with targeting rules, there are significant risks of unlawful targets being selected. Further, these algorithms impair the exercise of legal duties by autonomous weapon system operators, commanders, and weapons reviewers. As such, this chapter concludes that deep learning-generated algorithms should not be used for target recognition by fully-autonomous weapon systems in armed conflicts, unless they can be made in such a way as to understand the context of targeting decisions and be explainable.










Keywords Deep learning Machine learning Artificial intelligence Automatic target recognition Autonomous weapon systems Autonomy Human-machine team Weapons review




4.1










Introduction

Deep learning is a powerful computer programming method that has been the reason behind some of the massive advancements of artificial intelligence (AI) in recent years and has enabled some technologies to vastly improve, with some exceeding human abilities.1 For example, computer programmes performing image and speech recognition,2 language translation3 and self-driving cars have all made 1

Steinberg R (2017) 6 areas where artificial neural networks outperform humans. https:// venturebeat.com/2017/12/08/6-areas-where-artificial-neural-networks-outperform-humans/. Accessed 1 February 2019. 2 See Geirhos et al. 2018, p. 1; Sharma N, Bluemstein M (2018) SharkSpotter combines AI and drone technology to spot sharks and aid swimmers on Australian beaches. https://theconversation. com/sharkspotter-combines-ai-and-drone-technology-to-spot-sharks-and-aid-swimmers-on-austral ian-beaches-92667. Accessed 1 February 2019. 3 Marcus 2018, p. 2.

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great progress.4 Further, one system programmed using deep learning and reinforcement learning has produced super-human board game software for chess, shogi and Go,5 and can be trained in a matter of hours.6 Potentially, this powerful programming method could also improve military technologies such as Automatic Target Recognition (ATR) systems. ATR technologies were first developed in the 1970s and are all based upon matching patterns between the characteristics of the intended target and an entry in the target database of the system.7 Currently, there are at least 99 weapon systems which use ATR in some capacity.8 The United States (US) Department of Defense has solicited for research into the use of deep learning for ATR systems aboard an uninhabited aerial vehicle (UAV).9 Such a system is intended to “automatically [recognise] and target personnel and ground platforms or other targets of interest.”10 Further, it has been reported that Russian weapons manufacturer Kalashnikov has developed deep learning algorithms for target recognition and combat decision-making.11 Although the use of deep learning for ATR is not a new idea,12 more powerful modern computers have the processing speeds needed for this type of programming which has re-ignited interest in using this method for ATR.13 These technological developments suggest that ATR systems programmed using deep learning could be used by the US in the near future, and are apparently being used by Russia. As the objective of the US solicitation is to use a deep learning-programmed ATR system on board a UAV,14 and the Russian system is being used for both target recognition and combat decision-making,15 this suggests that deep learning could be used to programme ATR systems for use in autonomous weapon systems (AWS). However, it is unclear whether an AWS using this technology would be fully-autonomous, meaning that it “can select and engage targets without further

4

Hawkins A (2018) Inside the Lab where Waymo is Building the Brains for its Driverless Cars. https://www.theverge.com/2018/5/9/17307156/google-waymo-driverless-cars-deep-learningneural-net-interview. Accessed 1 February 2019. 5 Silver et al. 2018. Also note Silver et al. 2017. 6 Kasparov 2018, p. 265. 7 Boulanin and Verbruggen 2017, p. 24. See, e.g., Handy 2007, p. 87. 8 Boulanin and Verbruggen 2017, p. 26. 9 SBIR 2018. Note that the term “uninhabited” is used rather than “unmanned” in order to avoid any potential bias associated with using a gendered term, and also to avoid any inference that “unmanned” could mean fully-autonomous. See Leveringhaus 2016, p. 3. 10 SBIR 2018. 11 TASS (2017) Kalashnikov gunmaker develops combat module based on artificial intelligence. http://tass.com/defense/954894. Accessed 1 February 2019. 12 See, e.g., Rogers et al. 1995. 13 See, e.g., Furukawa 2018. 14 SBIR 2018. 15 TASS (2017) Kalashnikov gunmaker develops combat module based on artificial intelligence. http://tass.com/defense/954894. Accessed 1 February 2019.

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intervention by a human operator”,16 or semi-autonomous, meaning that whilst the system could select potential targets they would only be engaged after authorisation by a human operator.17 Although the autonomous aspect of AWS presents issues for complying with the law of armed conflict (LoAC),18 this chapter is focussed upon the specific issues created by the use of deep learning-generated algorithms for target recognition by autonomous systems. Whilst deep learning is “improving rapidly”,19 there are inherent limitations with the programming method. Most relevant here are an inability for the algorithms generated by deep learning to understand context, and these algorithms being so complex that human beings have difficulty in understanding them. Therefore, this chapter seeks to evaluate how these limitations could affect compliance with LoAC rules if an ATR system were to be programmed using deep learning, particularly if it were used with an AWS. This chapter proceeds by explaining how deep learning works (Sect. 4.2), before placing this discussion within the wider debate on AWS (Sect. 4.3). Next, the chapter outlines the limitations of deep learning (Sect. 4.4) and how they impact on compliance with LoAC targeting rules (Sect. 4.5). Then, a continuing role in targeting for human beings is recommended in light of these limitations (Sect. 4.6). Their effects are also discussed on wider LoAC obligations related to the roles of AWS operators, commanders, and weapons reviewers (Sect. 4.7) before concluding.

4.2

Artificial Intelligence, Machine Learning, and Deep Learning Neural Networks

As target recognition has been a human role, one could argue that it requires a human-level intellect. Therefore, the algorithms replicating this in an ATR system could be described as AI.20 AI is simply a term for a computer programme that performs tasks which would normally require human levels of cognition.21 Where one or a few tasks are performed by an AI system it is referred to as “narrow” AI.22 This is in comparison to “general” AI which would have human-level abilities in all fields, and “super” AI which would go beyond human abilities.23 Thus, as ATR systems engage only in target recognition, they could be described as a narrow AI system. 16 17 18 19 20 21 22 23

US Department of Defense 2012, p. 13. Ibid., p. 14. For an overview of the major issues, see Bhuta et al. 2016. Scharre 2018, p. 91. Boden 2016, p. 1. Jajal 2018. Ibid. Ibid.

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Humans can write algorithms which can be classed as AI.24 However, they are all rule-based.25 Writing individual rules to perform difficult tasks, such as image recognition, becomes highly-complex as there are so many variables.26 It is, therefore, impractical for humans to write image recognition algorithms.27 Machine learning, however, can deal with such highly complex tasks by performing many rounds of trial and error and being corrected with feedback.28 Although this chapter is focussed on target and image recognition, these algorithms may consider a variety of different data types as long as they can be quantified.29 Machine learning algorithms learn how to classify and output data by picking out characteristics in training data and grouping similar data together.30 A simple example would be a learning algorithm recognising pointed ears in pictures of cats and grouping them together. The groups which a learning algorithm uses to classify data can then be tested against other data to see if those classifications are correct. So, for example, a learning algorithm may generate an algorithm of “IF pointed ears, THEN cat”. This might correctly classify many images of cats and non-cats when faced with pictures of cats (with pointed ears) and dogs (with floppy ears) but would come unstuck when faced with images of a wolf with pointed ears. Thus, more complex decision-making and classification must take place in order for the algorithm to be useable with a multitude of subjects in images. As such, due to the very large number of potentially targetable persons and objects in armed conflicts, one can see that the use of machine learning in weapon systems can become very complicated. Machine learning is commonly used in artificial neural networks. These networks function in similar ways to the human brain by mimicking the way neurons work.31 However, when using artificial neural networks, computation happens on various hierarchical levels.32 This is due to the arrangement of computation in different layers which may simultaneously analyse the colour, edges, and shapes of images, for example.33 This is known as “deep learning”, due to the “depth” of the different layers.34 Consequently, using deep learning techniques can generate complicated algorithms that use a sophisticated approach to classifying

24

Boden 2016, pp. 6 f. Fry 2018, pp. 10 f. 26 Ibid., pp. 10 f. 27 Ibid. 28 Ibid. 29 Descriptions of various data types in a multitude of algorithms are discussed in Fry 2018. 30 Boden 2016, p. 47. 31 Ibid., p. 80. 32 Ibid., p. 49; Goodfellow et al. 2016, p. 87. 33 Boden 2016, p. 49. 34 Marcus 2018, pp. 2–3. To see what an example deep learning algorithm looks like, and to use one yourself, see Deep Learning Playground 2019. 25

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data. It is this high level of sophistication, combined with the recent advent of computers powerful enough to run these neural networks that has enabled rapid progress in the past decade.35 Because of the advancements already mentioned, it is obvious that militaries would also investigate whether this programming method can provide similar advancements in their technologies.

4.3

Autonomous Weapon Systems and the Current Debate

AWS are attractive to militaries as automation can help overcome the expected super-human speed and operational tempo of future combat.36 Further, as AWS would not need constant data links, this means they can be used when communication is impossible or undesirable such as underwater, in enemy air-space, or when communications are jammed by adversaries.37 A growing number of conflict-related tasks have been delegated from humans to machines,38 this is only expected to continue and may eventually include lethal decision-making.39 However, the delegation of lethal decision-making to machines is still a point of substantial debate.40 Indeed, autonomy in weapon systems is currently subject to international discussions considering regulation,41 and possibly a prohibition on fully-autonomous weapon systems.42 However, currently, there is not sufficient agreement to reach consensus on any issues,43 and so AWS remain without any specific international legal regulation. Consequently, existing international law must be applied to AWS.44

35

Fry 2018, p. 86. Scharre 2018, pp. 325 f.; Etzioni and Etzioni 2017; Press 2017, p. 1361. 37 Scharre 2018, pp. 327–330. 38 Alston 2011, p. 43. 39 Scharre 2018, pp. 328–330. 40 See Gill 2018. 41 See UNOG 2018 and links. These discussions took place under the auspices of 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, opened for signature 10 April 1981, 1342 UNTS 137 (entered into force 2 December 1983). 42 For more on the movement towards prohibiting AWS, see Campaign to Stop Killer Robots 2019a. 43 “Consensus” meaning the absence of formal disagreement. Definition taken from United Nations Convention on the Law of the Sea, opened for signature on 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994), Article 161(8)(e). In terms of disagreements, see Campaign to stop Killer Robots 2018a, 2018b. 44 Boothby 2019, pp. 145–150. 36

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The ethical and legal issues of autonomous lethal decision-making by AWS are a major concern of international lawyers,45 ethicists,46 computer scientists,47 states,48 research organisations,49 and disarmament campaigners.50 Some authors have also considered issues of algorithms51 and machine learning,52 and the effect they could have on the lawful use of AWS. However, despite the excitement around deep learning in other fields, such as computing and medicine,53 this programming method has only received minimal discussion in relation to its potential use in armed conflicts by AWS. Scharre has discussed the potential advantages that deep learning could provide in terms of target recognition.54 Boulanin and Verbruggen considered problematic issues of deep learning-generated algorithms in a general rather than legal sense, such as problems with their predictability and them being difficult for humans to understand.55 The International Panel on the Regulation of Autonomous Weapons also took a general approach to how deep learning is challenging for human beings to meaningfully comprehend.56 Finally, Farrant and Ford discussed how the use of deep learning could improve weapons in the future and how weapons reviews should be conducted if a system using deep learning algorithms is allowed to continue learning during deployment57 (as Farrant and Ford covered the issues of continuous learning algorithms in their work,58 there is no need to discuss it here; as such, this chapter shall assume that the algorithms under discussion are not engaged in continuous learning).59 However, the literature does not include substantial legal discussion on how the technical limitations of deep learning-generated algorithms affect compliance with targeting rules and wider LoAC obligations. This is a void that this chapter seeks to fill.

45

See, e.g., Schmitt 2013; Heyns 2017; Chengeta 2016; Anderson et al. 2014; Wagner 2014; Crootof 2015. 46 See, e.g., Asaro 2012; Sparrow 2007; Robillard 2017; Leveringhaus 2016. 47 See, e.g., Sharkey 2017; Arkin 2009. 48 For an overview of state and some NGO views on characterising AWS, see Gill 2018. 49 Boulanin and Verbruggen 2017. 50 See, e.g., Human Rights Watch 2012; Campaign to Stop Killer Robots 2019b. 51 Whilst this chapter is focussed upon algorithms, it does not use the “war algorithm” concept. Although this is an important concept, considering “war algorithms” as “any algorithm […] capable of operating in relation to armed conflict” does not enable greater understanding of the issues emanating from deep learning. See Lewis et al. 2016. 52 See, e.g., Cummings 2017; Boothby 2016, pp. 251 f.; Boothby 2019, pp. 150 f.; Heyns 2017. 53 See, e.g., Sejnowski 2018 pp. 7, 8. 54 Scharre 2018, pp. 124–130. 55 Boulanin and Verbruggen 2017, pp. 17, 25–26, 114, 120. 56 iPRAW 2017, p. 12. 57 Farrant and Ford 2017, pp. 399–404. 58 Ibid., p. 404. 59 See iPRAW 2017, p. 11 on off-line and on-line learning.

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The Inherent Problems of Deep Learning

As mentioned, deep learning is a powerful technology with many successes, but it is becoming apparent in civilian sectors,60 and computer science literature,61 that this programming method has significant limitations. The majority of the discussion in this chapter will focus upon the multifaceted issues of deep learning-generated algorithms being unable to understand context,62 and their level of complexity being so high that humans cannot understand their functioning,63 which can enable them to present a semblance of functioning as intended even when they do not.64 These issues shall be discussed in the following sections. Before moving onto those considerations, it is important to note that there a number of limitations of deep learning that present less-complex issues. Algorithmic bias is where the biases of a programmer find their way into the algorithms they write.65 This could, for example, result in algorithms recognising members of a particular group more frequently than others due to a racist or sexist bias,66 which would be unlawful under LoAC.67 There are several issues which can affect whether a deep learning-generated algorithm could adequately recognise intended targets. Poor data quality and limited data quantity,68 under or over-fitting,69 instability and differences between the data an algorithm was trained on and the data it is used with70 can all affect the

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Brandom R (2018) Self-Driving Cars are Headed toward an AI Roadblock. https://www. theverge.com/2018/7/3/17530232/self-driving-ai-winter-full-autonomy-waymo-tesla-uber. Accessed 1 February 2019; Brown J (2018) IBM Watson Reportedly Recommended Cancer Treatments that were ‘Unsafe and Incorrect’. https://gizmodo.com/ibm-watson-reportedlyrecommended-cancer-treatments-tha-1827868882. Accessed 1 February 2019. 61 See, e.g., Marcus 2018. 62 Marcus 2018, pp. 7 f. 63 Boulanin and Verbruggen 2017, p. 17. 64 Nguyen et al. 2015; Szegedy et al. 2014. 65 See, e.g., Jackson 2018. 66 Sharkey 2018. 67 See, e.g., Common Article 3(1) to the Geneva Conventions, e.g. Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, opened for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950); Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), opened for signature 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978) (AP I), Article 84(4)(c). Also note AP I, Articles 9(1), 75(1). 68 iPRAW 2017, pp. 11 f., 17; Barocas and Selbst 2016; Ford 2017, p. 460; Boulanin and Verbruggen 2017, p. 17; Marcus 2018, pp. 6 f. 69 Under-fitting is where there is too much variance in the data such that nothing can be adequately recognised. Over-fitting is where an algorithm is too specific and can only recognise its training data. Both lead to sub-optimal performance. See Brownlee 2016. 70 Marcus 2018, pp. 6, 13. Techniques such as transfer learning and domain adaption can allow algorithms to be used in different environments than they were trained for, but only work with

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accuracy and reliability of target recognition. Further, the actions of adversaries can affect the quality of target recognition. Deep learning-generated algorithms can be tricked into misidentifying images if adversaries make small changes to them, even if these changes are imperceptible to humans. For example, adding patches to equipment and uniforms to fool these algorithms into not recognising them as lawful targets.71 This is a process known as “spoofing”.72 The LoAC implications of these issues are that targets would be recognised at a sub-optimal rate. This would affect the anticipated military advantage of an attack for the purposes of a proportionality calculation73 because fewer lawful opposition targets would be selected and therefore less advantage can be gained from an operation. Consequently, these problems should be solved before a deep learning-generated algorithm could be properly considered for use in an armed conflict.

4.4.1

Lack of Context

When artificial neural networks analyse training data, they focus upon common characteristics in the data they are analysing. However, what this data, and these characteristics, mean cannot be understood by the neural network, nor can it be embedded into the algorithms generated by deep learning. Thus, the algorithms themselves cannot “know” the tasks they are performing as they cannot incorporate the context of a situation into their functioning.74 No ATR system programmed using deep learning would “know” that it was in a conflict and being used by one side against the other, it would simply be recognising and classifying data that corresponds to the notion of a target which it has stored in its database.75 This lack of “knowing” by deep learning-generated algorithms means they can only be relied upon to recognise lawful targets where context is not needed to determine their targetability. This means that the only targets which these algorithms could lawfully be used to recognise would be those of an inherent military nature.

simple data sets and so are inappropriate for use with data from constantly changing armed conflicts. See Goodfellow et al. 2016, pp. 526 ff., Domingos 2015, p. 115. 71 Scharre 2018, pp. 182–184; Szegedy et al. 2014; Nguyen et al. 2015; Su et al. 2018. 72 Scharre 2018, pp. 181 f. 73 This is the comparison between the concrete and direct military advantage to be expected from an operation and the level of incidental harm to civilians, the civilian population, and civilian objects, or a combination thereof. An excessive level of civilian harm in relation to the military advantage would be unlawful. See AP I, above n 67, Articles 51(5)(b), 57(2)(b); Henckaerts and Doswald-Beck 2005, Rule 14. 74 Marcus 2018, p. 7 f. 75 Handy 2007, p. 87.

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Although research has been carried out into producing deep learning algorithms which understand context from language,76 it has not generated much success. In order for a concept to be understood by an algorithm, it must be programmable and therefore quantifiable.77 Thus, the nebulous concepts in LoAC, such comparing military advantage and incidental harm to civilians and civilian objects, present a substantial challenge to being translatable into computer code. Second, to understand context, algorithms would need to simultaneously recognise entries in a data set as individual data points whilst also considering the data set in its entirety as a different data form. For example, in research on recognising context in written text, words must be analysed individually and also as verbiage and concepts that can be linked back to the text.78 In terms of ATR systems, for example, this could involve analysing images and recognising pixels that correspond to an enemy uniform whilst also interpreting the entire image to recognise that the proposed target is badly injured and therefore hors de combat. As mentioned, the understanding of context in language by algorithms has not yet been achieved, nor has it been reached in image analysing algorithms. AWS, ATR, and deep learning are emerging technologies and so may reach this level of maturity at some point in the future. However, we cannot infer that deep learning algorithms which understand context would be available for use by ATR systems, or in an AWS. Indeed, because AWS are expected to be developed and deployed in incremental advancements,79 ATR systems lacking contextual understanding could be deployed before algorithms which can understand context are created. Therefore, this chapter evaluates deep learning-generated ATR algorithms for AWS on the assumption that such context could not be understood. However, if this becomes possible in the future, the associated problems would diminish.

4.4.2

A Lack of Explainability and a Semblance of Correct Functioning

Rule-based programming uses linear algorithms.80 For example, “IF X > Y, THEN Z”. Substituting these letters for numbers would allow most people to understand the mathematical relationship in this algorithm.

76 Srinivasan 2016; Abate T (2013) Stanford algorithm analyzes sentence sentiment, advances machine learning. https://engineering.stanford.edu/magazine/article/stanford-algorithm-analyzessentence-sentiment-advances-machine-learning. Accessed 1 February 2019. 77 Characteristics recognised by deep learning systems would not easily apply to concepts of “justice” or “democracy”, or even to notions of military advantage, for example. See Marcus 2018, p. 7. 78 Srinivasan 2016. 79 Anderson et al. 2014, pp. 388–395. 80 Fry 2018, pp. 10 f.

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However, because neural networks use a multitude of computational layers, the resultant algorithms are non-linear.81 For example, a typical deep learning algorithm might involve comparing values from “the ith node in layer J in network module K”82 against other values that are similarly difficult to locate. Human understanding of this type of function requires comprehending not only the mathematical relationship between the values, but also the geographical relationships between the layers in the algorithmic-space.83 The understanding of this single function may be possible for some people, but the simultaneous functioning of the many complex processes involved in targeting may go beyond human abilities. Work has been carried out to visualise the contribution of nodes to networks.84 However, this has not yet led to meaningful understandings of overall networks.85 Looking at millions of lines of unlabelled code does not display what that code will do, in much the same way that a brain autopsy would reveal millions of neurons but not show the memories of that person.86 As such, the way in which these algorithms work may be unexplainable to human beings.87 These algorithms are also referred to as being opaque or lacking transparency88 and are often thought of as being a “black box” meaning that nobody can really see, or understand, what is going on inside them (note that this use of the term “black box” does not relate to the common usage referring to an aeroplane flight recorder).89 The real-world consequence of this is that programmers, manufacturers, and users cannot explain why these systems make the decisions they do.90 So, for example, a commander using an ATR system programmed with deep learning might not be able to understand why a particular target was selected. This issue can create problems for the exercise of duties by AWS operators, commanders, and weapon reviewers, and will be discussed in Sect. 4.7. Further, if an algorithm cannot be understood, then it is also difficult to evaluate whether a deep learning-generated algorithm is functioning as intended or merely

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Domingos 2015, p. 117. Marcus 2018, p. 11. 83 This would be different from “codespace”, which relates to how physical spaces are altered by technology. See Kitchin and Dodge 2011. 84 Nguyen et al. 2016. 85 Marcus 2018, p. 11. 86 Hussain A (2016) AI On The Battlefield: A Framework For Ethical Autonomy. https://www. forbes.com/sites/forbestechcouncil/2016/11/28/ai-on-the-battlefield-a-framework-for-ethicalautonomy/#767535675cf2. Accessed 1 February 2019. 87 Ananny and Crawford 2016, p. 9; Boulanin and Verbruggen 2017, p. 17; Marcus 2018, pp. 10– 11. 88 Ananny and Crawford 2016, p. 7. 89 See Kimball W (2019) Why Is It Called A Black Box If It’s Actually Orange? http://www. hopesandfears.com/hopes/now/question/168795-why-is-it-called-a-black-box-if-it-s-actuallyorange. Accessed 1 February 2019. 90 Ananny and Crawford 2016, p. 9. 82

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providing a semblance of doing so.91 There are several iterations of a (possibly apocryphal) story whereby a computer vision algorithm was used to differentiate between tanks camouflaged in a forest and a forest without tanks. Throughout training and initial testing, the algorithm appeared to work perfectly. However, during use, the algorithm failed completely. Unfortunately, the researchers had taken all the photos of camouflaged tanks on cloudy days, and photos of empty forest on cloud-less days, and the algorithm had inadvertently been distinguishing the difference between cloudy and sunny skies.92 Whether this story is true or not, it is a good example of what could happen if opaque algorithms function in similar ways to how they are intended to, but actually focus on unintended characteristics.93 In terms of targeting, however, the result could be that unintended and unlawful characteristics are used by the algorithms to recognise targets. As with the research currently being undertaken to enable algorithms to understand context, other studies on how algorithms can be made more explainable are currently in progress.94 Explainable algorithms are those that can show why they made a certain decision in a way that is understandable to humans.95 For example, if an algorithm recognises an enemy tank, the algorithm could show the different target characteristics it focussed on to make that decision, such as the barrel, tracks, and shape of the tank.96 This could enable algorithms that are focussed on unintended or unlawful target characteristics to be identified and taken out of service, or re-trained to be lawfully compliant, which would alleviate the LoAC compliance issues in relation to targeting, and the issues related to the duties of operators, commanders, and weapons reviewers. However, whilst this research appears to be having some success,97 much like the research on algorithms understanding context mentioned above, this work has not yet reached maturity.98 As such, in the following discussion, this chapter considers how the unexplainability of algorithms can cause problems for the exercise of LoAC duties beyond targeting, and how a semblance of compliance can affect lawful target recognition. As with the research into algorithms understanding context, if algorithms can be produced in such a way as to be explainable, then these issues would diminish.

91 Knight W (2017) The Dark Secret at the Heart of AI. https://www.technologyreview.com/s/ 604087/the-dark-secret-at-the-heart-of-ai/. Accessed 1 February 2019. 92 Yudkowsky 2018, pp. 15 f.; Kaufman 2015. 93 For another example, also see Vanhemert K (2015) Simple Pictures that State-Of-The-Art AI Still Can’t Recognize. https://www.wired.com/2015/01/simple-pictures-state-art-ai-still-cantrecognize/. Accessed 1 February 2019. Further, algorithms that only give a semblance of compliance will still suggest highly-accurate image recognition, which would create additional problems in relation to automation bias (see for this below, Sect. 4.6). See Nguyen et al. 2015, Szegedy et al. 2014. 94 Gunning 2016, 2017. 95 Gunning 2016. 96 Gunning 2017, slide 5. 97 Ibid., slides 12–17. 98 Ibid., slide 21.

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The Challenges that Deep Learning Presents for Targeting

This section firstly explains how algorithms would work in terms of targeting, and how there are certain circumstances in which, if the algorithms can recognise lawful targets only, they could be lawfully used. However, the lawfulness of this targeting is put at significant risk if the algorithm used cannot recognise non-combatants and those hors de combat or be explained and shown to recognise the characteristics of lawful targets only. Throughout this section, the Customary International Humanitarian Law study carried out by the International Committee of the Red Cross (ICRC)99 is referred to in relation to customary international law as it applies to the conduct of hostilities. It is important to note that this study is not an authoritative statement on customary law, nor is it without its detractors.100 However, the study is, on the whole, well respected,101 and will be used here as a guide to the applicable customary law.

4.5.1

Target Recognition in the Context of Algorithmic Decision-Making

For a target to be recognised by an ATR system, the characteristics it displays must match with sufficient confidence to an entry in the system’s target database.102 Thus, where a target (whether a person or an object) is not adequately recognised, no weapons release would occur. This section shows that because algorithms work like this, it enables them to comply with the rules of doubt,103 the duty to verify targets as part of precautions in attack,104 the prohibition on indiscriminate attacks not directed at a military object,105 and the prohibition on intentional environmental harm,106 if they are capable of recognising lawful targets. The doubt rule is in two parts and firstly requires that where there is “doubt whether a person is a civilian, that person shall be considered to be a civilian.”107 It

99

Henckaerts and Doswald-Beck 2005. Bellinger and Haynes 2007; UK Legal Adviser to the Foreign and Commonwealth Office, in Kaikobad et al. 2005, p. 695. 101 See, e.g., Wood 2018. 102 See, e.g., Handy 2007, p. 87. 103 AP I, above n 67, Articles 50(1), 52(3); Henckaerts and Doswald-Beck 2005, Rules 6 and 10. 104 AP I, above n 67, Article 57(2)(a)(i); Henckaerts and Doswald-Beck 2005, Rule 16. 105 AP I, above n 67, Article 51(4)(a); Henckaerts and Doswald-Beck 2005, Rules 11, 12. 106 AP I, above n 67, Articles 35(3), 55; Henckaerts and Doswald-Beck 2005, Rules 43–45. 107 AP I, above n 67, Article 50(1). Also see “Situations of doubt as to the character of a person” in Henckaerts and Doswald-Beck 2005, Rule 6. 100

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is generally agreed to be a customary rule in international armed conflicts (IAC).108 Some suggest that this rule is also customary in non-international armed conflicts (NIAC),109 whilst others merely suggest that it would “seem justified” to still apply the rule in NIAC.110 The second part of the rule requires that “[i]n case of doubt whether an object which is normally dedicated to civilian purposes […] is being used to make an effective contribution to military action, it shall be presumed not to be so used.”111 This rule does not have an identical customary character due to mixed state practice, however, the ICRC study suggests that in IAC and NIAC, “[i]t cannot automatically be assumed that any object that appears dubious may be subject to lawful attack.”112 Thus, persons and objects not displaying sufficient target characteristics to be so recognised would not be attacked, and the treaty and customary doubt rules in IAC and NIAC would be complied with. However, it is also important to note that the non-recognition of a potential target by an ATR system functions differently to humans and may have a different threshold. For example, the United Kingdom (UK) Manual of the Law of Armed Conflict suggests that potential targets should only “be given the benefit of the doubt and treated as a civilian” where “substantial doubt” remains following an assessment of all information available at the time.113 Also, the International Criminal Tribunal for the Former Yugoslavia has suggested that the doubt rule from Additional Protocol I to the Geneva Conventions (AP I) relating to human targets should be assessed in terms of whether a reasonable person, in the circumstances at the time, “could not have believed that the individual he or she attacked was a combatant.”114 States using deep learning-programmed ATR systems would need to convert their abstract thresholds into an acceptable level of mathematical probability, below which the person or object would be classed as a civilian. Schmitt and Thurnher, along with Ford, have suggested that any algorithmic application of the doubt rule should be set at the level of a reasonable human in the same battlespace.115 In terms of the duty to verify targets as part of precautions in attack in IAC and NIAC under AP I and custom,116 the user of an ATR system would be required to ensure that prospective targets are “neither civilians nor civilian objects and are not

108

See Schmitt and Vihul 2017, Rule 95, para 1; Henckaerts and Doswald-Beck 2005, Rule 6. See Schmitt and Vihul 2017, Rule 95, para 1. 110 Henckaerts and Doswald-Beck 2005, Rule 6. 111 AP I, above n 67, Article 52(3). 112 Henckaerts and Doswald-Beck 2005, Rule 10. 113 UK Ministry of Defence 2004, para 5.3.4. 114 ICTY, Prosecutor v Stanislav Galic, Judgment and Opinion, 5 December 2003, Case No. IT-98-29-T, para 55. 115 Schmitt and Thurnher 2013, pp. 262–265; Ford 2017, p. 442. 116 AP I, above n 67, Article 57(2)(a)(i); Henckaerts and Doswald-Beck 2005, Rule 16. 109

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subject to special protection.”117 Boothby suggests that “algorithm-based technologies […] that are found in tests satisfactorily to differentiate between the objects they are programmed to identify and those they are not […] will probably satisfy this precautionary obligation.”118 Consequently, where algorithms could accurately recognise a lawful target from its database, and only select them (rather than any other entity) as targets, this precautionary duty would be complied with. The first provision of the indiscriminate attacks prohibition in AP I bans attacks not specifically directed at a military objective.119 The ICRC has concluded that the prohibition on indiscriminate attacks has become a customary rule in IAC and NIAC.120 The rules, therefore, prescribe that only persons and objects which can be confidently assessed as being of a targetable character may be attacked.121 Thus, where an ATR system is only programmed with lawful targets in its database, such an ATR system would not breach this prohibition. Regarding the environmental protections in the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques and AP I, these prevent intentional and incidental “widespread, long-lasting or severe effects” on the natural environment.122 This is also a customary duty in IAC and arguably a customary duty in NIAC, according to the ICRC.123 The Air and Missile Warfare Manual has suggested that intentional environmental harm of this prohibited nature could involve acts such as attacking environmentally sensitive objects, for example, a dam, volcano, or area of tectonic activity.124 In order for such objects to be attacked, they would need to be selected as a potential target. Thus, if these objects are not programmed into a lawful ATR system’s target database, the rules on protecting the natural environment from intentional harm could be complied with (incidental environmental harm is discussed in Sect. 4.5.3). In summary, as all of these rules prevent civilians and civilian objects being recognised as targets and subsequently attacked, these rules can be complied with where an ATR system is programmed only with lawful targets in its database. This

117

AP I, above n 67, Article 57(2)(a)(i). Boothby 2016, p. 256. 119 AP I, above n 67, Article 51(4)(a). 120 Henckaerts and Doswald-Beck 2005, Rules 11, 12. 121 There is no expansion in the AP I commentary or case law on how much confidence is required. However, the ICTY Trial Chamber alludes to part (a) of the indiscriminate attack prohibition in ICTY, Prosecutor v Dragomir Milošević, Judgement, 12 December 2007, Case No. IT-98-29/1-T, para 431, although the Chamber focuses upon parts (b) and (c) in its later deliberations and offers no expansion on part (a). 122 Convention on the prohibition of military or any hostile use of environmental modification techniques, opened for signature 18 May 1977, 1108 UNTS 151 (entered into force 5 October 1978) (ENMOD Treaty), Article 1; AP I, above n 67, Articles 35(3), 55. 123 Henckaerts and Doswald-Beck 2005, Rules 43, 44, 45. 124 Humanitarian Policy and Conflict Research (2010), p. 204, Section M, para 4. 118

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could cause an issue for the effectiveness of the system where, for example, a lawful target has their target characteristics obscured, intentionally or otherwise; an enemy uniform may be concealed through additional camouflage,125 or simply be covered in mud and dirt. Still, although some lawful targets would not be recognised, no unlawful target would be misidentified. Target recognition by machines is additionally useful as there is no risk posed to human soldiers whilst assessing targetable status. The UK and France have both expressed concern over how a commander’s duty to keep their troops safe could be complied with where giving a potential target the benefit of the doubt places a risk of attack onto the shoulders of those troops.126 No physical risks could be placed onto an AWS, however, as they are equipment and not human. If deep learning-generated algorithms can be assured to be focussed upon lawful target characteristics, then an ATR system programmed with such algorithms would be able to comply with the rules discussed above. As the next section considers, there are some targeting rules where a lack of context does not preclude compliance, and others where it does.

4.5.2

Target Recognition by Deep Learning-Generated Algorithms

The limitations of deep learning-generated algorithms mean that they could only be lawfully used to recognise targets which display their targetable status without the need for additional contextual analysis. As such, this means that only entities of an explicitly military nature could be targeted using a deep learning-programmed ATR system. AP I re-states the “cardinal”127 customary rule of the distinction principle:128 “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.”129 Therefore, as uniforms of combatants are indicative of targetability without the need for context,130 where they can be distinguished,131 the rule can be complied with in 125 The use of camouflage is a lawful ruse as they mislead the enemy but do not invite their confidence and therefore are not perfidious. See AP I, above n 67, Article 37(2). 126 United Kingdom 2002, para h; France 2001, para 9. 127 ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, [1996] ICJ Rep 226, para 78. 128 This customary rule is applicable in both IAC and NIAC. See Henckaerts and Doswald-Beck 2005, Rules 1, 7. 129 AP I, above n 67, Article 48. 130 Murray 2016, para 5.35. 131 Algorithms capable of distinguishing combatants from civilians have been publicised. See Rosenberg M, Markoff J (2016) The Pentagon’s ‘Terminator Conundrum’: Robots That Could Kill

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relation to the targeting of persons. Further, this conclusion could also be applied to any state paramilitary132 or organised armed group (OAG) engaged in an armed conflict, if the group members wear an identifying uniform and are engaged in military functions133 (targeting based on OAG membership must also be deemed lawful by the attacking state).134 Distinction in relation to military objects is more complex than in relation to adverse personnel. First, the object itself must be recognised without context, meaning only objects of a military nature (for example, tanks, or battleships) could be recognised.135 Objects that could become targets due to their location, purpose, or use could not be identified by algorithms due to the necessary contextual analysis.136 Second, the neutralisation of a military object must offer a military advantage, in the circumstances ruling at the time, in order for it to become a military objective, and therefore be targetable.137 Military advantage is “an expected contribution to the success of military operations.”138 It should be conceptualised in relation to an attack in its entirety and need not be immediate.139 This level of abstract thinking obviously goes beyond a target recognition algorithm. As such, with a semi-autonomous weapon system, a human could determine the existence of military advantage once a target has been selected. However, with a fully-autonomous weapon system, humans could pre-determine in an advance of an attack that the neutralisation of certain targets would have advantage associated with it.140 In summary, an ATR system using deep learning-generated algorithms could still recognise lawful targets, despite a lack of context, if those targets display their inherent military nature, i.e. an adverse uniform, or they are objects of a military nature. The recognition of other potential targets, such as civilians directly participating in hostilities,141 requires an understanding of context to determine whether someone is actually directly participating in hostilities or if they are armed for their

on Their Own. https://www.nytimes.com/2016/10/26/us/pentagon-artificial-intelligenceterminator.html. Accessed 1 February 2019. For other algorithms able to distinguish police uniforms from civilians, see Guersenzvaig 2018. 132 AP I, above n 67, Article 43(1). 133 See Gaggioli 2018, pp. 912–915. 134 For more on targeting members of an OAG based upon their membership, see Gaggioli 2018. 135 AP I, above n 67, Article 52(2). 136 Ibid., Article 52(2). 137 “Neutralisation” is used here for brevity, but expected military advantage can also come from “total or partial destruction, [or] capture”. See ibid., Article 52(2). 138 Jachec-Neale 2015, p. 116, see also pp. 117–119. 139 UK Ministry of Defence 2004, para 5.4.4(j). 140 Schmitt and Thurnher 2013, p. 256 f. 141 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), opened for signature 8 June 1977, 1125 UNTS 609 (entered into force 7 December 1978) (AP II), Article 13(3).

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own protection, for example.142 As such, deep learning-generated algorithms as they currently stand could not be used by an ATR system to lawfully recognise targets where context is an essential part of target recognition. However, as was previously mentioned, this capability may appear in the future. Should research in this area prove fruitful, it may become possible for algorithms to recognise targets where context is essential to this determination. It is important to note that although this chapter only discusses deep learning, other programming methods and technological systems could be used alongside, or instead of, deep learning algorithms. For example, nanotechnologies could be used to recognise individuals handling explosives as an indicator of a civilian directly participating in hostilities,143 or a combination of radar and spectography could indicate someone planting an improvised explosive device at the roadside.144 As such, multiple technologies may need to be used synergistically for AWS to reach their full potential. Still, successful, and lawful, recognition of targets displaying an inherent military nature by an ATR system programmed by deep learning should be possible. However, there are other complicating factors which make full compliance with targeting rules difficult. The most obvious battlespace factors which would affect the lawful use of a deep learning-programmed ATR system in targeting would be the presence of non-combatant military personnel and those hors de combat. Non-combatant medical and religious are protected at all times, even if they are armed for self-defence, according to AP I.145 As many non-combatant personnel wear the same or very similar uniforms as combatants, context would be key to recognising their presence. Thus, a deep learning-programmed ATR system could not be lawfully used as it would be unable to differentiate those non-combatants who are specially protected from combatants who can be attacked. If such a system were used by a fully-autonomous weapon system, this could result in unlawful targeting. Regarding those hors de combat, i.e. those who are prisoners of war, surrendering, or incapacitated by wounds or sickness, it is prohibited to attack such persons.146 However, those hors de combat through surrendering could be protected through technological means. The Samsung SGR-A1 system (a sentry gun with an automatic mode guarding South Korea against North Korean invasion) can apparently recognise white flags and ‘hands up, don’t shoot’ gestures and alert a human operator.147 As such, this rule could be complied with using algorithmic technologies, although it is unclear whether the SGR-A1 was programmed using deep learning. Prisoners of war confined to internment camps could also be protected without context through putting the camp on a no-strike list, or

142 143 144 145 146 147

Humanitarian Policy and Conflict Research 2010, p. 87, Rule 12(a), para 3. Heller, p. 95 f. See Ford 2017, p. 438. AP I, above n 67, Articles 8, 13(2)(a). See Ipsen 2013, para 316. AP I, above n 67, Article 41; Henckaerts and Doswald-Beck 2005, Rule 47. Pike 2011.

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geographically restricting AWS targeting to the immediate battlespace, although this does not necessarily need deep learning. However, in relation to those hors de combat through injury, context would be required to recognise their protected status. Even if an algorithm could recognise injuries, it would be unable to contextualise the severity of injuries to indicate that they are incapacitating. Further, those adversaries who have had their surrender accepted by ground forces and lower their flag, are in receipt of medical attention, or are being transported from the battlefield are also hors de combat.148 An ATR system using deep learning-generated algorithms would simply recognise them, and those hors de combat through injury or sickness as targets. If used in a fully-autonomous AWS, they would then be unlawfully attacked. Consequently, although there are some narrow circumstances in which uncontextualized target recognition by deep learning-generated algorithms could be lawful, their use would also present a risk that non-combatants and those hors de combat through injury would be misidentified. If these algorithms were to be used in an ATR system in a fully-autonomous weapon system, this misidentification would result in unlawful targeting. If these circumstances took place, then this would clearly be a violation of the principle of distinction.149 Further, this would also mean that the system could not be directed at military objectives, and would, therefore, be indiscriminate.150 As such, misidentifying non-combatants or those hors de combat as a target would lead to a catastrophic error in the protection of those persons.151 However, with a semi-autonomous weapon, a human operator could confirm or veto targets recognised by the ATR system. This should prevent misidentifications resulting in unlawful targeting.

4.5.3

Tasks Currently Requiring Human Judgement

Despite the technological advances of weapon systems with autonomy,152 the presence of human beings in targeting is currently required. This is not just in terms of overseeing target recognition but for other legally required tasks which require subjective judgement and contextual understanding as well. For example, the provision of constant care to civilians,153 the choice of means and methods to 148

AP I, above n 67, Article 41(a); Henckaerts and Doswald-Beck 2005, Rule 47(a). AP I, above n 67, Article 48; AP II, above n 141, Article 13; Henckaerts and Doswald-Beck 2005, Rules 1–10, 25–45. 150 AP I, above n 67, Articles 51(4), 51(4)(b), 51(5); Henckaerts and Doswald-Beck 2005, Rules 11, 12. 151 On catastrophic errors, see UK Ministry of Defence 2018, para 4.2. 152 See, e.g., Scharre 2018, pp. 59–76. 153 AP I, above n 67, Article 57(1). According to the ICRC, this is a customary rule applicable in both IAC and NIAC. See Henckaerts and Doswald-Beck 2005, Rule 15. 149

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minimise civilian harm,154 and the choice to give warnings of attacks155 all currently require human judgement to perform. Further, the duty to cancel or suspend disproportionate attacks,156 and the duty to choose an attack offering the least danger to civilian lives and civilian objects where two military objectives could yield a similar military advantage,157 also currently require human judgement.158 Schmitt and Thurnher have suggested an algorithmic basis for fully-autonomous systems to perform proportionality decisions in theory,159 although this does not appear to have been operationalised yet. Further, the prevention of incidental environmental harm also requires human judgement.160 Contextual understanding would be required to prevent attacks where environmental harm would be the likely result. For example, attacking adverse tanks near a dam could cause the dam to burst.161 This could cause “widespread, long-term and severe effects”162 on the natural environment. In order to abide by this prohibition, contextual understanding of the situation, and therefore a human presence, is currently required. As humans retain a role in targeting, delegating target engagement decisions to fully-autonomous weapon systems does not seem to provide substantial benefits in the face of the significant risks of unlawful targeting when using deep learning-generated algorithms. As such, even though there are very narrow circumstances where uncontextualized fully-autonomous targeting could be lawful, the risks of unlawful targeting cannot be avoided unless the actions of a fully-autonomous weapon system are strictly controlled. For example, if humans can determine that only combatants are present in a particular battlespace then

154 AP I, above n 67, Article 57(2)(a)(ii). According to the ICRC, this is a customary rule applicable in both IAC and NIAC. See Henckaerts and Doswald-Beck 2005, Rule 17. 155 AP I, above n 67, Article 57(2)(c). According to the ICRC, this is a customary rule applicable in both IAC and NIAC. See Henckaerts and Doswald-Beck 2005, Rule 20. 156 AP I, above n 67, Articles 57(2)(a)(iii), 57(2)(b). According to the ICRC, this is a customary rule applicable in both IAC and NIAC. See Henckaerts and Doswald-Beck 2005, Rules 18, 19. 157 AP I, above n 67, Article 57(3). According to the ICRC, this is a customary rule applicable in IAC, and arguably also in NIAC. See Henckaerts and Doswald-Beck 2005, Rule 21. 158 Note that the UK manual extends precautionary duties to all those with discretion over attacks. See UK Ministry of Defence 2004, para 5.32.9. Also note Boothby’s suggestion that in the case of autonomous attacks, these precautionary duties would extend to those who evaluate intelligence, to those who set areas to be searched and targets to be attacked, and those who input this information into the system. See Boothby 2016, 254. 159 Schmitt and Thurnher 2013, pp. 254–257. 160 ENMOD Treaty, above n 122, Article 1; AP I, above n 67, Articles 35(3), 55. According to the ICRC, this is a customary rule applicable in IAC, and arguably also in NIAC. See Henckaerts and Doswald-Beck 2005, Rules 43, 44, 45. 161 Such an attack would also be prohibited due to the protection of works and installations containing dangerous forces, see AP I, above n 67, Article 56. Boothby also provides an example of an attack against an adverse super-tanker which causes an oil spill. However, as such an object is not of a military nature, this example does not fit perfectly here. See Boothby 2016, p. 84. 162 AP I, above n 67, Articles 35(3), 55.

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fully-autonomous targeting could be legally compliant in the opening salvos of an attack as no adversaries would yet be hors de combat; after initial weapons release, such a system would need to go into a semi-autonomous or surveillance mode in order that the risks of unlawful targeting do not become realised. Consequently, this chapter recommends that, except in very narrow and strictly controlled circumstances, autonomous weapon systems that use algorithms incapable of understanding context should only be used semi-autonomously. As such, if humans are to retain a role in targeting for the foreseeable future, then the optimisation of the human-machine relationship through working as teams becomes desirable.

4.6

Human-Machine Teams

Human-machine teams are a form of command and control where machines are used to aid humans, with the intention of combining the best capabilities of both.163 Generally, machines are good at dealing with large amounts of structured data and deterministic analysis.164 Humans, however, are good at understanding context, dealing with uncertainty, and adapting to new situations.165 These differing skill sets can be complimentary and allow for better decisions to be made than if humans or machines acted alone,166 at least with current technologies. Indeed, weapon systems with autonomy are being developed toward this end.167 However, even if a deep learning-programmed ATR system were used as part of a human machine team, it would still only be able to recognise lawful targets in the very narrow circumstances outlined above. The risks of unlawful targeting emanating from an algorithm incapable of understanding context, or that cannot be explained would not necessarily be resolved just because a human is in overall control of target decisions. The interaction between humans and machines can result in automation bias. This is where people tend to trust machines to make correct decisions even when this contradicts prior understandings168 and users are in full knowledge that they will be held accountable for poor outcomes.169 Where deep learning-generated 163

See, e.g., UK Ministry of Defence 2018; Scharre 2018 pp. 321–325; United Kingdom 2016. UK Ministry of Defence 2018, para 4.5. 165 Ibid., para 4.6. 166 For an often-cited example of human-machine teams, see the discussion on “Advanced Chess” in Kasparov 2018, pp. 245–248. For its applicability to human control of weapon systems, see UK Ministry of Defence 2018, para 4.1. 167 See, e.g., BAE Systems (2018) Taranis. https://www.baesystems.com/en/product/taranis. Accessed 1 February 2019. 168 See Skitka et al. 1999, 2000b; Parasuraman and Manzey 2010. On trusting autonomous weapon systems, also see Roff and Danks 2018, p. 8 f. 169 Skitka et al. 2000a. 164

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algorithms provide a semblance of functioning as intended, but do not actually do so, this could create a further risk of unlawful targeting if the characteristics that the algorithm focusses upon do not relate to a lawful target. Obvious errors such as the tank/cloud example (see Sect. 4.4.2) could be easily found and dealt with. However, more subtle errors could remain present into service. For example, black boots are almost ubiquitous amongst combatants and an algorithm may recognise this commonality as indicative of targetability, despite also being common amongst the civilian population. Another example could be supporters of a political cause who wear a motif signifying this. If a deep learning algorithm were to interpret this motif as indicative of targetability because some of the supporters directly participate in hostilities, then peaceful supporters might also be targeted.170 Target recognition based upon these characteristics would result in unlawfully targeting civilians. Similar errors could equally lead to misidentification and unlawful targeting of civilian objects, or people and objects subject to special protection.171 Due to automation bias, operators may approve unlawful attacks where there is only a semblance of compliance rather than actual compliance. If civilians, civilian objects, or those specially protected were to be misidentified as targets and then attacked, this would breach the principle of distinction,172 and the prohibition on indiscriminate attacks.173 Further, the misidentification of unlawful targets could also cause a cascade of legal rules being breached, such as the doubt rules,174 the precautionary175 and proportionality176 principles. Depending upon what targets are misidentified, those specially protected may be targeted,177 or the prohibitions on environmental harm may also be breached.178 All of these rules are dependent upon accurate target identification. Thus, the use of unlawful target characteristics would lead to the recognition of unlawful targets and even greater catastrophic error for all aspects of legal compliance dependent upon lawful target recognition.179

170 Algorithms recognising and using the wrong characteristics are not unusual. See, e.g., Vanhemert K (2015) Simple Pictures that State-Of-The-Art AI Still Can’t Recognize. https://www. wired.com/2015/01/simple-pictures-state-art-ai-still-cant-recognize/. Accessed 1 February 2019. 171 See AP I, above n 67, Articles 15, 21, 59(1), 70(4), 71(2), 85(3); Henckaerts and Doswald-Beck 2005, Rules 25, 27, 29–38, 40, 42. 172 AP I, above n 67, Article 48; AP II, above n 141, Article 13; Henckaerts and Doswald-Beck 2005, Rules 1–10, 25–45 173 AP I, above n 67, Article 51(4), 51(4)(b), 51(5); Henckaerts and Doswald-Beck 2005, Rules 11, 12. 174 AP I, above n 67, Articles 50(1), 52(3); Henckaerts and Doswald-Beck 2005, Rules 6 and 10. 175 AP I, above n 67, Article 57; Henckaerts and Doswald-Beck 2005, Rules 15–24. 176 AP I, above n 67, Articles 51(5)(b), 57(2)(b); Henckaerts and Doswald-Beck 2005, Rule 14. 177 AP I, above n 67, Articles 15, 21, 59(1), 70(4), 71(2), 85(3); Henckaerts and Doswald-Beck 2005, Rules 25, 27, 29–38, 40, 42. 178 ENMOD Treaty, above n 122, Article 1; AP I, above n 67, Articles 35(3), 55; Henckaerts and Doswald-Beck 2005, Rules 43–45. 179 On catastrophic errors, see UK Ministry of Defence 2018, para 4.2.

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Even though it is possible for deep learning-generated algorithms to recognise the intended, lawful, targets whilst also being unexplainable, the risks of misidentification are substantial. As such, this chapter recommends that only explainable algorithms should be used in targeting as this should, at least, ensure that lawful targets are being selected by ATR systems, if they are evaluated correctly. This means that either less sophisticated programming techniques that enable understanding should be used, or a moratorium on the use of deep learning for target recognition should be put in place until the resultant algorithms can be made explainable. As mentioned earlier, explainable deep learning algorithms are currently being researched but have not yet reached maturity.180 However, the use of explainable algorithms would not necessarily prevent automation bias as the ATR system would still be recommending targets to an operator. Sharkey suggests that in order to mitigate automation bias, humans must have the time to engage in deliberative thought processes when considering targeting decisions.181 If automation bias means that targeting rules cannot be complied with, or mitigate a significant risk of unlawful targeting, then deliberative thought processing could be legally required. For some, setting up a human-machine team to enable deliberative though processing may constitute meaningful human control over AWS (the precise concept of what constitutes “meaningful” is beyond the discussion of this chapter).182 The problems associated with deep learning-generated algorithms are not just confined to hampering compliance with targeting rules. There are also significant issues for wider LoAC duties of operators, commanders, and weapons reviewers, which this chapter now considers. Although a recommendation has already been made that unexplainable algorithms should not be used for target recognition, it is important to consider how these algorithms can be tested, and how that can affect the exercise of legal duties by AWS operators and commanders.

4.7

The Challenges Which Deep Learning Presents for Law of Armed Conflict Obligations Requiring Understanding

As this section outlines, an adequate understanding of technologies used for targeting is essential for LoAC compliance. If algorithms are opaque to the point that they are unexplainable, that prevents a weapons reviewer, commander, and AWS operators from gaining the necessary knowledge about these systems for the exercise of their obligations.

180 181 182

Gunning 2016, 2017. Sharkey 2016, pp. 34–37. See Sauer 2018; Horowitz and Scharre 2015; Article 36 2016; Crootof 2016.

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Operator Understandings

One would assume that AWS operators need to understand how the systems they use actually work. However, Sassòli suggests that operators need not comprehend the complex workings of autonomous systems but must understand the capabilities of the system.183 As such, the operator of an AWS who knows that a system uses algorithms to recognise targets could reach this standard. However, if the algorithms used are unexplainable, one cannot be certain that a system using them achieves its purported capabilities, or if it merely provides a semblance of doing so. Therefore, just knowing these supposed capabilities does not provide knowledge about what the system can actually do, and, therefore, does not allow an operator to reach the standard suggested by Sassòli. Ford suggests that knowledge and understanding of how a system works is essential to controlling the system.184 As such, the use of unexplainable algorithms would prevent operators from exercising control over the system. Knowledge of the actual capabilities of the system should be revealed in a weapons review and then provided to operators and commanders so they can fulfil their obligations. The absence of this information could represent a failure to comply with Article 36 AP I.185

4.7.2

Commander Understanding and Command Responsibility

In terms of command responsibility, there is a duty to prevent subordinate criminality.186 According to the International Criminal Court, Pre-Trial Chamber, this duty includes ensuring that a subordinate is adequately trained in LoAC.187 If an analogy can be drawn from human to robotic forces, then a commander of an AWS unit would need to understand how these systems work in order to conclude that they are LoAC compliant.

183 Sassòli 2014, p. 324; Schmitt and Thurnher 2013, p. 267; US Department of Defense 2012, para (4)(a)(3)(a). 184 Ford 2017, p. 456. 185 Sassòli 2014, p. 324. 186 ICTY, Prosecutor v Tihomir Blaškić, Judgement, 29 July 2004, Case No IT-95-14-A, para 417; ICTR, Prosecutor v Clément Kayishema and Obed Ruzindana, Judgement, 1 June 2001, Case No. ICTR-95-1-A, para 302; ICTY, Prosecutor v Momčilo Krajišnik, Judgement, 17 March 2009, Case No. IT-00-39-A, para 193 f. 187 ICC, The Prosecutor v Jean-Pierre Bemba Gombo, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, Case No. ICC-01/05-01/08-424, para 438.

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A commander should have the same degree of knowledge as a reasonable commander at a comparable level of command and in a comparable operational context when it comes to equipment under their authority.188 However, they need not have a deep knowledge of technical matters, and may rely upon the “knowledge and understanding of their subordinates.”189 As deep learning is a highly complex field beyond the skill set of most military personnel, a commander might need to include a subject matter expert in their advisory staff. The inclusion of experts in command centres to advise commanders is not unusual.190 Therefore, having technical experts present to advise a commander on the technical capabilities of a system should enable them to have sufficient knowledge and comply with this duty. Yet, where the opacity of the algorithms is so significant that they cannot be explained in any meaningful way, the presence of a subject matter expert would not be able to illuminate how the algorithms actually work for a commander. In terms of a fully-autonomous weapon system, it would be impossible for command responsibility to be fulfilled. Indeed, if a commander could not be certain that an autonomous system would function lawfully and used it anyway, this would be a failure of command responsibility.191 As such, in order for it to be possible to exercise command responsibility over a fully-autonomous weapon system, the underlying algorithms must be explainable and understandable by human beings. However, with semi-autonomous weapon systems, an inability to understand the underlying algorithms is not necessarily fatal to the exercise of command responsibility. Where human operators authorise all targeting decisions suggested by an algorithm, command responsibility can be exercised over the operator rather than attempting to exercise it over the machine. However, in such a situation, the operator themselves would still be unable to exercise their obligations to understand the equipment under their control, and thus, could not fulfil their duties.

4.7.3

Weapons Reviews

Under Article 36 AP I, state parties are obligated to conduct weapons reviews: In the study, development, acquisition or adoption of a new weapon, means or method of warfare, a High Contracting Party is under an obligation to determine whether its employment would, in some or all circumstances, be prohibited by this Protocol or by any other rule of international law applicable to the High Contracting Party.

188

Schmitt and Vihul 2017, pp. 399 f. Ibid., pp. 399 f. 190 UK Ministry of Defence 2009, para 125; US Joint Chiefs of Staff 2013, pp. III-1, III-3, III-13– III-20. 191 Ford 2017, p. 474. Ford likens the failure of command responsibility by a commander who allowed drunk or unstable subordinates to operate to a commander who could not control an autonomous system. See ICTY, Prosecutor v Zdravko Mucić, Judgement, 20 February 2001, Case No. IT-96-21-A, para 238. 189

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This is not a customary duty.192 However, the ICRC has implied a duty to perform reviews in order for states to avoid using weapons that are indiscriminate by their nature.193 Thus, as a weapon system, an AWS must be subject to a weapons review. Further, according to the UK policy, “weapon” is interpreted in a wide sense, and includes “software used for processing target data.”194 Consequently, ATR systems would also be subject to a separate review. Although the treaty obligation does not expand upon how weapons reviews should be conducted, the US, the UK, and Australia have released their policies on how they perform their Article 36 obligations, which illuminates how weapons can be legally reviewed.195 These policies consider whether a weapon system is: specifically prohibited; inherently indiscriminate; intended to cause unnecessary suffering or superfluous injury.196 The UK and Australia also evaluate the environmental impact of weapons and potential future prohibitions under LoAC.197 Australia further considers whether a weapon complies with the Martens Clause in its weapons reviews.198 Primarily, the issues that the unexplainability of deep learning-generated algorithms can cause is that they could prevent an accurate assessment of any system using them from being made. This would not affect those areas of review requiring desk-based research. An evaluation of whether deep learning-generated algorithms used for targeting are subject to a prohibition or may be in the future can both be assessed by legal research before engaging in actually testing the system by using it. Regarding unnecessary suffering and superfluous injury, the effects of a weapon must be considered in real world testing to determine whether they “exceed what is necessary for rendering the enemy hors de combat.”199 However, as this is more related to munitions used by a weapon system, these points of assessment would not be affected by the difficulties in understanding deep learning-generated algorithms. Further, although we have already discussed the prevention of intentional (Sect. 4.5.1) and incidental environmental harm (Sect. 4.5.3), the focus on this area in a review is geared more towards environmentally harmful munitions, such as defoliants.200 Thus, this area of review would also be unaffected by the complexities of the target-recognition algorithms.

192

Jevglevskaja 2018. Henckaerts and Doswald-Beck 2005, Rule 71, in particular p. 250. 194 UK Ministry of Defence 2016, p. 2. 195 US Department of Defense 2016, paras 6.2–6.2.4; UK Ministry of Defence 2016; Australia 2018. 196 United Kingdom 2016; US Department of Defense 2016, para 6.2.2; Australia 2018, p. 5. 197 United Kingdom 2016; Australia 2018, p. 5. 198 Australia 2018, p. 5. 199 Sandoz et al. 1987, para 1410. 200 See Boothby 2016, pp. 76–91, 347–348. 193

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In terms of the determination as to whether a weapon is inherently indiscriminate, or is compatible with the Martens Clause, these areas of review are primarily related to the ability of the weapon to be used accurately in targeting. The Martens Clause,201 is subject to different interpretations.202 In the Australian weapons review process, it is only applied to ensure that customary international law is included in assessments.203 However, in weapons reviews, it is only applied to the ensure that customary international law is included in assessments. This is to prevent “the assumption that anything which is not explicitly prohibited by the relevant treaties is therefore permitted.”204 As such, this provision provides additional customary targeting rules to be assessed. In the testing of autonomous and highly-automated weapon systems, Boothby suggests additional weapons review criteria to account of their role in targeting decision-making:205 compliance with the distinction principle;206 compliance with the rule of doubt;207 compliance with the principle of precautions in attack.208 As we have already mentioned in this chapter (Sect. 4.4.2), the performance of the algorithms in targeting cannot be assessed in terms of just looking at the underlying code,209 as this would simply be too difficult for humans to comprehend. As such, they must be assessed by testing how the system functions. In terms of how testing methods for compliance with targeting rules and the prohibition on indiscriminate attacks could work, they would need to be sufficiently robust and extensive to give a reviewer an understanding of what entities the ATR system identifies as targets and whether those entities are lawful or unlawful targets. Without having such extensive testing, no reviewer could be sure that the system can be used in compliance with targeting rules. In order to fully evaluate how the algorithms work, testing methods might need to be borrowed from the computer science industry. For example, technological AP I, above n 67, Article 1(2). It states: “[i]n 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.” Note that this provision has appeared in different forms in 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, opened for signature 18 October 1907, International Peace Conference, The Hague, Official Record 631 (entered into force 26 January 1910), all four Geneva Conventions, and AP II. 202 See, e.g., Meron 2000; Cassese 2000; Human Rights Watch 2018. 203 Australia 2018, p. 5. 204 Ibid., p. 5; Sandoz et al. 1987, para 55. 205 Boothby 2016, pp. 348 f. 206 AP I, above n 67, Article 48; AP II, above n 141, Article 13; Henckaerts and Doswald-Beck 2005, Rules 1–10, 25–45. 207 AP I, above n 67, Articles 50(1) and 52(3); Henckaerts and Doswald-Beck 2005, Rule 6. 208 AP I, above n 67, Article 57; Henckaerts and Doswald-Beck 2005, Rules 15–24. 209 Hussain A (2016) AI On The Battlefield: A Framework For Ethical Autonomy. https://www. forbes.com/sites/forbestechcouncil/2016/11/28/ai-on-the-battlefield-a-framework-for-ethicalautonomy/#767535675cf2. Accessed 1 February 2019. 201

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methods might involve: testing how the algorithms function against simulations; testing how the algorithms function against data from previous or intended battlespaces; attempting to analyse the algorithm itself through a “deep dream”. There are also physical methods such as using the system to engage targets in a facsimile of the intended battlespace. Testing of algorithms using computer simulation is common in industry.210 However, any simulation would be an imperfect likeness of the real world and so algorithms designed for combat would be in a simplified reality which may not expose issues relevant to operating in complex battlespaces. In order to genuinely test an algorithm that is used in the real world, a computer simulation would be insufficient. One could test algorithms against data from previous conflicts, for example, running an ATR system against video footage from past combat situations to see which targets are selected. However, a system trained for today’s conflict would not be able to perform adequately against targets in past conflicts.211 Thus, this testing method could only be used when conflicts are ongoing and the system under review is intended to be deployed to the contemporary battlespace and tested against data from that operation. Whilst deep learning-generated algorithms are generally unexplainable and imperceptible, it is possible to get a glimpse of what these algorithms search for in image recognition through a process known as “deep dream” by Google engineers.212 This essentially runs a deep learning-generated image recognition algorithm in reverse so that the characteristics which the algorithm focuses on can be seen. However, the resultant images often just display the characteristics in a seemingly random fashion. Whilst this may give an idea of what characteristics the algorithms are searching for, they cannot be interpreted meaningfully.213 Therefore, although it might provide some understanding, this technique could not be relied upon to provide legal certainty in an Article 36 review. Thus, it would seem the only adequate method of investigating deep learning-generated algorithms, in advance of a conflict at least, would be in a physical facsimile of the actual combat situation it is proposed to be used in. This would allow for the algorithms to be evaluated as they are intended to function, and therefore provide a more accurate overview of how they will perform in the projected battlespace. In addition, data from a contemporary battlespace that an ATR system is intended to be used in could provide adequate data to test the system on.

210 Simulations are an accepted method of testing complex technologies. See Gillespie 2015, p. 52. 211 Marcus 2018, pp. 6, 13. 212 Levy S (2015) Inside Deep Dreams: How Google Made its Computers Go Crazy. https:// www.wired.com/2015/12/inside-deep-dreams-how-google-made-its-computers-go-crazy/. Accessed 1 February 2019. 213 To see examples of Deep Dream images, or to create your own, see Deep Dream Generator 2018.

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As an aside, should a grave breach of LoAC214 or any other applicable international crime,215 take place, these same testing methods of physical facsimiles and contemporary battlespace data would need to be used in any investigation if the capabilities of the system are to be analysed.216 õFurther, it is important to note that the robustness of the testing process also impacts on the confidence and understanding that operators can have of the autonomous system under their control, and their ability to carry out their legal duties.217 Where a testing process is of sufficient robustness, the information can then be passed on about how the system works, and its capabilities, in order to enable the operators to fulfil their duties of understanding the systems under their control.218 Finally, both the US and Australian Article 36 policies suggest that weapons can pass a review subject to their subsequent use being in compliance with certain conditions.219 For example, a reviewer could recommend that deep learning-generated algorithms only be used when they are proved to be explainable, under strict human control, and in situations where deliberative thought processing can be used to avoid automation bias.

4.8

Conclusion

In conclusion, this chapter has assessed the inherent limitations of deep learning-generated algorithms and how they affect the ability of systems programmed using this method to perform legally compliant targeting. It has also examined how these limitations could impair the performance of a weapons review, and the exercise of duties by commanders and AWS operators. The present chapter has concluded that due to the inherent risks of unlawful targeting associated with an inability for deep learning-generated algorithms to understand context, AWS using these algorithms should generally be used semi-autonomously with humans making decisions on targeting. However, it has been noted that in very narrow and strictly controlled circumstances, uncontextualized fully-autonomous

214

AP I, above n 67, Article 85. Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002), Articles 6–8. 216 States are under an obligation to investigate such acts. See AP I, above n 67, Article 85. See also UN General Assembly (2005) 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, UN Doc. A/Res/60/147, Article 4. 217 It has been suggested that soldiers experienced with using autonomous systems could create trust between other soldiers and machines. This chapter sees no reason why weapons reviewers could not play the same role. See Roff and Danks 2018, pp. 12 f. 218 Sassòli 2014, p. 324; Schmitt and Thurnher 2013, p. 267; US Department of Defense 2012, para (4)(a)(3)(a). 219 US Department of Defense 2016, para 6.2.2; Australia 2018, p. 5. 215

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targeting could conceivably be lawfully performed using these algorithms. Still, this conclusion is predicated upon only lawful targets being programmed into the system, which could not be assessed if the algorithms are unexplainable. In terms of algorithms which cannot be explained, this chapter also concludes that, even though it might be possible for them to function as intended, they would present a significant risk of unlawful targeting if the target characteristics that the algorithm is focussed upon are not known by human beings. Further, if humans cannot understand these algorithms, this would impair the ability of a weapon reviewer to successfully evaluate any weapon or system using these algorithms. Additionally, a review that did not provide illumination on how unexplainable algorithms function would also prevent commanders and operators from performing their duties. As with the other issues that deep learning presents for LoAC compliance (Sect. 4.4), this chapter recommends that the inability of deep learning-generated algorithms to understand context or be explainable, should be resolved before they are used in an ATR system, or an AWS. However, noting that human beings currently play a significant role in targeting, and will likely continue to do so, as long as humans engage with their technologies in such a way as to avoid automation bias, lawful targeting could be possible with these algorithms despite their limitations. It is, however, important to remember that although deep learning has been the driving force behind a number of recent technological advances, it is not the only emerging technology that is promising for use in target recognition or wider roles in an armed conflict. For example, evolutionary programming of AI uses genetic-style algorithms to make small changes (mutations) to software and keep those changes which increase efficacy.220 This has shown great promise in recent times,221 and could provide some of the advantages of deep learning (although not in the same way) to be paired with human analysis of “mutations” to ensure they are legally compliant. Although these algorithms might not be able to deal with context, the resulting code is far smaller than the sizeable artificial neural networks which deep learning relies upon, and, therefore, the algorithms are far easier to understand.222 Further, the recommendations and conclusions in this chapter should be seen against the background of current research aimed at enabling algorithms to understand context and be explainable, which has not reached maturity. As such, waiting until positive results can be implemented from this research may enable the advantages of deep learning to be achieved in armed conflicts without the limitations discussed. Until then, however, it is safe to assume that deep learning has inherent problems, which, in general, make it inappropriate for use in fully-autonomous weapon systems and problematic for use with semi-autonomous weapon systems.

220 221 222

Boden 2016, pp. 6 f., 108–112. Wilson et al. 2018. MIT Technology Review 2018.

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Any use of an unexplainable algorithm would also cause issues for accountability, which this chapter alluded to in the previous section. Selbst and Barocas suggest that unexplainable algorithms should not be used in “high-stakes” domains because, if something were to go wrong, they could create intractable problems for due process and accountability regimes.223 Opponents of this view suggest that people willingly accept the decisions of the human brain, despite it also being highly-complex and difficult to understand.224 However, whilst it is impossible to avoid using our brains, the use of algorithms which are unexplainable or present other problems is a choice. Thus, despite the potential benefits that deep learning algorithms can offer, a choice can be made to avoid the issues they create.

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Schmitt MN (2013) Autonomous Weapon Systems and International Humanitarian Law: A Reply to the Critics. Harvard National Security Journal Features. https://harvardnsj.org/wp-content/ uploads/sites/13/2013/02/Schmitt-Autonomous-Weapon-Systems-and-IHL-Final.pdf. Accessed 1 February 2019 Schmitt MN, Thurnher JS (2013) “Out of the Loop”: Autonomous Weapon Systems and the Law of Armed Conflict. Harvard National Security Journal 4(2):231-281 Schmitt MN, Vihul L (2017) Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations, 2nd edn. Cambridge University Press, Cambridge Sejnowski TJ (2018) The Deep Learning Revolution. Massachusetts Institute for Technology Press, Cambridge Selbst A, Barocas S (2017) AI Now 2017 Report. AI Now Institute. https://ainowinstitute.org/AI_ Now_2017_Report.pdf. Accessed 1 February 2019 Sharkey N (2016) Staying in the loop: human supervisory control of weapons. In: Bhuta N, Beck S, Geiss R, Liu H-Y, Kress C (eds) Autonomous Weapons Systems. Cambridge University Press, Cambridge, pp. 23–38 Sharkey N (2017) Why robots should not be delegated with the decision to kill. Connection Science 29(2):177–186 Sharkey N (2018) The impact of gender and race bias in AI. ICRC Humanitarian Law & Policy Blog. https://blogs.icrc.org/law-and-policy/2018/08/28/impact-gender-race-bias-ai/. Accessed 1 February 2019 Silver D, Hubert T, Schrittwieser J, Antonoglou I, Lai M, Guez A, Lanctot M, Sifre L, Kumaran D, Graepel T, Lillicrap T, Simonyan K, Hassabis D (2018) A general reinforcement learning algorithm that masters chess, shogi, and Go through self-play. Science 362(6419):1140–1144 Silver D, Schrittwieser J, Simonyan K, Antonoglou I, Huang A, Guez A, Hubert T, Baker L, Lai M, Bolton A, Chen Y, Lillicrap T, Hui F, Sifre L, van den Driessche G, Graepel T, Hassabis D (2017) Mastering the game of Go without human knowledge. Nature 550:354–359 Skitka L, Mosier K, Burdick M (1999) Does automation bias decision-making? International Journal of Human-Computer Studies 51(5):991–1006 Skitka LJ, Mosier KL, Burdick M (2000a) Accountability and automation bias. International Journal of Human-Computer Studies 52(4):707–717 Skitka LJ, Mosier KL, Burdick, M, Rosenblatt B (2000b) Automation bias and errors: are crews better than individuals? The International Journal of Aviation Psychology 10(1):85–97 Sparrow R (2007) Killer Robots. Journal of Applied Philosophy 24(1):62–77 Srinivasan V (2016) Context, Language, and Reasoning in AI: Three Key Challenges. https:// www.technologyreview.com/s/602658/context-language-and-reasoning-in-ai-three-keychallenges/. Accessed 1 February 2019 Su J, Vargas DV, Sakurai K (2018) One Pixel Attack for Fooling Deep Neural Networks. https:// arxiv.org/pdf/1710.08864.pdf. Accessed 1 February 2019 Szegedy C, Zaremba W, Sutskever I, Bruna J, Erhan D, Goodfellow I, Fergus R (2014) Intriguing properties of neural networks. https://arxiv.org/pdf/1312.6199.pdf. Accessed 1 February 2019 United Kingdom (2002) 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. Reservation/Declaration upon ratification. ICRC IHL Database. https://ihl-databases.icrc.org/ applic/ihl/ihl.nsf/Notification.xsp?action=openDocument&documentId=0A9E03F0F2EE757C C1256402003FB6D2. Accessed 24 April 2019 United Kingdom (2016) Statement To The Informal Meeting Of Experts On Lethal Autonomous Weapons Systems 11 - 15 April 2016 (Challenges To IHL) http://www.unog.ch/ 80256EDD006B8954/(httpAssets)/37B0481990BC31DAC1257F940053D2AE/$file/2016_ LAWS+MX_ChallengestoIHL_Statements_United+Kingdom.pdf. Accessed 1 February 2019 UK Ministry of Defence (2004) Manual of the Law of Armed Conflict. Oxford University Press, Oxford

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UK Ministry of Defence (2009) Campaign Execution: Joint Doctrine Publication 3-00, 3rd edn. Development, Concepts and Doctrine Centre, Shrivenham UK Ministry of Defence (2016) UK Weapons Reviews. Development, Concepts and Doctrine Centre, Shrivenham UK Ministry of Defence (2018) Human-Machine Teaming: Joint Concept Note 1/18. Development, Concepts and Doctrine Centre, Shrivenham UN General Assembly (2005) 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, UN Doc. A/Res/60/147 UNOG (2018) Background on Lethal Autonomous Weapons Systems in the CCW. https://www. unog.ch/80256EE600585943/(httpPages)/8FA3C2562A60FF81C1257CE600393DF6? OpenDocument. Accessed 1 February 2019 US Department of Defense (2012) Directive 3000.09: Autonomy in Weapon Systems. https:// www.hsdl.org/?view&did=726163. Accessed 24 April 2019 US Department of Defense (2016) Law of War Manual 2015, Updated December 2016. https:// dod.defense.gov/Portals/1/Documents/pubs/DoD%20Law%20of%20War%20Manual%20-% 20June%202015%20Updated%20Dec%202016.pdf?ver=2016-12-13-172036-190. Accessed 24 April 2019 US Joint Chiefs of Staff (2013) Joint Targeting: Joint Publication 3-60. https://www.justsecurity. org/wp-content/uploads/2015/06/Joint_Chiefs-Joint_Targeting_20130131.pdf. Accessed 24 April 2019 Wagner M (2014) The Dehumanization of International Humanitarian Law: Legal, Ethical, and Political Implications of Autonomous Weapon Systems. Vanderbilt Journal of Transnational Law 47:1371–1424 Wilson DG, Cussat-Blanc S, Luga H, Miller JF (2018) Evolving simple programs for playing Atari games. https://arxiv.org/pdf/1806.05695.pdf. Accessed 1 February 2019 Wood M (2018) The Evolution and Identification of the Customary International Law of Armed Conflict. Vanderbilt Journal of Transnational Law 51:727–736 Yudkowsky E (2018) Artificial Intelligence as a Positive and Negative Factor in Global Risk. Machine Intelligence Research Institute. http://intelligence.org/files/AIPosNegFactor.pdf. Accessed 1 February 2019

Case Law ICC, The Prosecutor v Jean-Pierre Bemba Gombo, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, Case No. ICC-01/05-01/08-424 ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, [1996] ICJ Rep 226 ICTR, Prosecutor v Clément Kayishema and Obed Ruzindana, Judgement, 1 June 2001, Case No. ICTR-95-1-A ICTY, Prosecutor v Zdravko Mucić, Judgement, 20 February 2001, Case No. IT-96-21-A ICTY, Prosecutor v Tihomir Blaškić, Judgement, 29 July 2004, Case No IT-95-14-A ICTY, Prosecutor v Stanislav Galic, Judgment and Opinion, 5 December 2003, Case No. IT-98-29-T ICTY, Prosecutor v Momčilo Krajišnik, Judgement, 17 March 2009, Case No. IT-00-39-A ICTY, Prosecutor v Dragomir Milošević, Judgement, 12 December 2007, Case No. IT-98-29/1-T

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Treaties Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, opened for signature 18 October 1907, International Peace Conference, The Hague, Official Record 631 (entered into force 26 January 1910) 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, opened for signature 10 April 1981, 1342 UNTS 137 (entered into force 2 December 1983) Convention on the prohibition of military or any hostile use of environmental modification techniques, opened for signature 18 May 1977, 1108 UNTS 151 (entered into force 5 October 1978) Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, opened for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950) Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), opened for signature 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978) Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), opened for signature 8 June 1977, 1125 UNTS 609 (entered into force 7 December 1978) Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002) United Nations Convention on the Law of the Sea, opened for signature on 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994)

Part II

Other Articles

Chapter 5

Ordinances and Articles of War Before the Lieber Code, 866-1863: The Long Pre-History of International Humanitarian Law Beatrice Heuser

Contents 5.1 Introduction........................................................................................................................ 140 5.2 Antecedents and Background to Ordinances and Articles of War .................................. 142 5.2.1 The Origins ............................................................................................................. 145 5.2.2 The First Ordinances .............................................................................................. 146 5.2.3 Ordinances with International Points of Reference: The Sixteenth and Seventeenth Centuries ..................................................................................... 149 5.2.4 Between Army Regulations and Laws of War: The Eighteenth and Nineteenth Centuries ................................................................................................................. 152 5.3 Were the Ordinances Effective?........................................................................................ 154 5.3.1 The Anglo-Scottish Wars and the Hundred Years’ War....................................... 154 5.3.2 The Anglo-Spanish War (1585–1604) ................................................................... 155 5.3.3 The English Civil War (1642–1651) ..................................................................... 157 5.3.4 Other Evidence of Application............................................................................... 158 5.4 Ius Publicum Europaeum? ................................................................................................ 158 5.5 Conclusion ......................................................................................................................... 160 References .................................................................................................................................. 160

Abstract Key textbooks and reference works on international humanitarian law treat it as though it had not existed before the American Lieber Code, a set of ordinances for conduct in war, was adopted unilaterally in 1863. The Lieber Code, however, was only one in a series of such ordinances which can be traced back in Beatrice Heuser is the Chair of International Relations at the University of Glasgow. She is grateful to Fernando Luis Coral, Rolf Grosse, Anne-Marie Thévenot-Werner, Rainer Babel, Enrique García Hernán, and Jeremy Black for their critical comments; all remaining errors are hers alone. A French version of this chapter was published in the Annuaire français des Relations internationales Vol. 20 (2019). B. Heuser (&) University of Glasgow, Glasgow, Scotland, UK e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2020 T. D. Gill et al. (eds.), Yearbook of International Humanitarian Law 2018, Yearbook of International Humanitarian Law 21, https://doi.org/10.1007/978-94-6265-343-6_5

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Europe at least to the ninth century. These were indeed established norms and traditions, as the application of the four criteria listed in Article 38(1) of the Statute of the International Court of Justice show: they were applied by (here: military) tribunals and other law courts; they were treated as customary law (defined in in the Statute of the International Court of Justice as “international custom, as evidence of a general practice accepted as law”); they were seen as “general principles of law recognized by civilized nations”; and finally, they were discussed in “judicial decisions and [in] the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.” International humanitarian law, thus, has its roots in Europe, and has a far longer pedigree than is generally assumed.










Keywords Ordinances Ius in bello International humanitarian law Treatment of civilians Military tribunals Military discipline Middle Ages Early Modern History




5.1










Introduction

Classical academic works on the laws on the conduct of war (ius in bello) suggest that they did not exist or had no importance before the mid-nineteenth century. Burrus Carnahan of the Law faculty of the George Washington University in Washington DC wrote, “[t]he roots of the modern law of war lie in the 1860s.”1 The eminent Oxford specialist on war and international relations, Adam Roberts, in his key work of reference on the laws of war edited with Richard Guelff skips the early centuries of their development by writing: The most famous early [sic!] example of a national manual outlining the laws of war for the use of armed forces, and one of the first attempts [sic!] to codify the laws of land warfare, was the 1863 ‘Instructions for the Government of Armies of the United States in the Field’ prepared by Dr Francis Lieber of Columbia University. This […] ‘Lieber Code’ […] became the model for many other national manuals […].2

And this is not just the perception in the Anglosphere. The late Mario Bettati, one of the leading experts on the laws of war in France, wrote about any pre-nineteenth century literature on war (apparently with the assumption that this consisted exclusively of the works of great jurists like Grotius and Vattel or philosophers like Rousseau), “[t]he theoretical dimension of [their] theses did not predispose them to form norms that are directly applicable to military operations. They only form an ethical basis […].” He, too, then proceeds to cite the Lieber Code, along with the initiative of Henri Dunant which led to the creation of the

1 2

Carnahan 1998, p. 213. Roberts and Guelff 2000, p. 12 (all emphasises in original).

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International Committee of the Red Cross (ICRC).3 Bettati’s colleague at the University of Lyon, David Cumin, another author of key reference works on international law, says much the same: while he says that “the ius in bello has a very old and multi-civilisational history”, he then proceeds to list only the creation of the ICRC, the First Geneva Convention of 1864, the Declaration of St Petersburg of 1868, the Brussels Conference of 1874, the Oxford Manual of 1880 and “the first codification” with the Hague Conferences of 1899 and 1907.4 In his study of armed conflict that has gone through several impressions and was awarded numerous prizes, the eminent Belgian professor of Law Eric David stated even more bluntly: “[i]f war crimes are grave violations of rules applying to international armed conflict, the origin of this charge in international penal law goes back to the Code of Francis Lieber, promulgated by the American Government in the Civil War of 1861–1865.”5 The Lieber Code is uncontestably a very important document in many respects. Its influence on the various conferences of the second half of the nineteenth century was considerable, and it is outstanding in that it articulates the reasons underlying the rules of engagement that it formulates. These applied, unilaterally, to the soldiers fighting for the Union. Nevertheless, it was far from being the first code or collection of articles of war on land,6 what is now subsumed under “rules of engagement”. Much to the contrary, it is but one very late example of a very long tradition of the unilateral adoptions of such articles of war or rules of conduct in bello, in what are often also called “articles of war” or “ordinances of war”, as they were issued by order of the prince or the supreme general leading a military campaign. There is as yet no general history of the ordinances and articles of war in the Western world. Some specific studies have been devoted to specific sets of such documents, as we shall see, and they have been mentioned here and there in the great works on the history of war. In 1901 the Austrian historian Wilhelm Erben was still under the mistaken impression that the Ordinance proclaimed by Emperor Maximilian I at the beginning of the sixteenth century was the first ever of the Holy Roman Empire.7 Other authors writing more recently attribute certain rules, such as the sparing of noble ladies, to a “code of chivalry”.8 In short, what is lacking is a general account and analysis of the origins and evolution of these ordinances of war, a gap that this chapter seeks to fill as a first sketch. 3

Bettati 2016, pp. 16 f. Cumin 2015, p. 493. 5 David 2012, p. 769. 6 As this chapter covers a millennium of European history, it seems legitimate to confine it to ordinances concerning land warfare. The norms governing naval warfare were distinct and complex, until 1856 revolving largely around captured cargo, whether this was of military or purely commercial value. Armies also were sources of booty in the Early Middle Ages, but by the time period considered here much less so than towns and cities. See Halsall 2003. 7 Erben 1901. 8 Blank and Noone 2013, pp. 277 f.; Chinkin and Kaldor 2017, p. 232. 4

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Moreover, some of the quotations above imply that there were no norms for the conduct of war before the second half of the nineteenth century. Admittedly, there were no multilateral treaties signed by both or all parties to a possible future conflict. But there are other criteria to establish that norms and traditions exist, as listed by the Statute of the International Court of Justice: their application by (here: military) tribunals and other law courts; their existence as customary law (defined there as “international custom, as evidence of a general practice accepted as law”); that they are seen as “general principles of law recognized by civilized nations”; and finally, that we can find their discussions in “judicial decisions and [in] the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.”9 As the evidence produced in this chapter demonstrates, ordinances of war are much more than unilateral declarations: they fulfil the conditions of having been applied by military tribunals, but also of constituting, at the very latest since the sixteenth century, international norms established with reference to ordinances of other countries and to the teachings of internationally respected lawyers. To sum up, the laws for the conduct of war go back a thousand years before the Lieber Code, which is merely one example, and not even the latest one, of unilaterally adopted and proclaimed rules. More still, the format of such ordinances, and the articles of war they contain, follow a pattern that was constituted at the latest by the ninth century and have seen little fundamental change since; the Lieber Code itself merely follows this format.

5.2

Antecedents and Background to Ordinances and Articles of War

Restrictions on how war is to be fought go back to Ancient History. Greeks were expected to treat fellow-Greeks better than the Barbarians. Since then, we find a widely-shared notion that one should limit the harm that might be done to those of one’s own civilisation—centuries later translated into “Christendom”. This chapter will focus exclusively on rules of war applicable to such intra-civilisational war.10 The earliest ordinances issued to soldiers may date back to pre-Christian Roman times. We later find such ordinances in East Roman Emperor Maurice’s Strategikon, composed at the end of the 6th century. Even earlier, Christianised rulers of tribes established within the confines of what had been the West Roman Empire showed concern to limit the effects of war on the Church and its property.11 Perhaps they

9 Statute of the International Court of Justice, opened for signature 26 June 1945, USTS 993 (entered into force 24 October 1945), Article 38(1). 10 For a survey of how this distinction evolved and what norms were or were not applied over time, see Kortüm 2006. 11 Gregory of Tours 594, Book II, paras 104 f; Maurice 592, Book I.6.

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thought that, like pagan gods, God and his saints would take revenge if their sanctuaries were not respected. Pagan Antiquity had not been strong on compassion, which is arguably a trait that made Christianity so attractive. With arguments of compassion, in Ireland Abbot Adomnán in the seventh century introduced a set of laws attempting to limit the violence against members of the clergy, women, and young people (probably referring to children).12 The context seems to have been clan warfare, in which women participated.13 This codex, known as the Law of Innocents, seems to have had little, if any, influence on the rest of Europe. Yet as we shall see, rulers on the Continent ordered similar protection of civilians in war at the latest around 800 AD.14 At the latest from the tenth century, we find a concerted campaign of a number of Church leaders in the South-East of France to protect ecclesiastical property, clergy and the poor from molestation in the context of growing numbers of wars between lesser noblemen within kingdoms, yet further incursions by pagan tribes and warfare between Christian princes. A new movement, the Pax Dei movement, aiming to impose restraints on war took off with the Church Councils of le Puy and Charroux in 975 and 989 respectively which imposed a ban on anybody pillaging churches, troubling members of the clergy or robbing the poor.15 The idea of a truce of God or Treuga Dei was added, outlawing warfare (mainly violent clashes among noblemen and their retinue within polities) on particular days of the week and during holy periods such as Lent. The movement spread throughout France but also the Iberian Peninsula16 and became very influential in the eleventh century. Knights were encouraged to swear, as we know from this text drafted by the Bishop of Beauvais in 1024: I shall not break into a church in any way. […] I shall not attack a cleric or a monk if they are unarmed, nor those who walk with them without lance or shield. I shall not take their horse. […] I shall not take his ox, cow, pig, sheep, lamb, goat, donkey, the wood it carries, the mare and her untrained foal. I shall not seize the male peasant nor the female peasant, the sergeant or the merchants; I shall not take their money, I shall not make them pay ransom, I shall not ruin them […]. I shall not burn or pull down houses unless I find within them a knight who is my enemy, or a robber.

12

Adomnán 697; Cox 2018, pp. 109 f. Ní Dhonnchadha 2001. 14 Capitularies issued by Charlemagne in 806: Order of Mobilisation addressed to Abbot Fulrad (of St Quentin), printed in Monumenta Germaniae Historica 1835, Section Caroli Magni Capitularia, p. 145. 15 Councils of le Puy and Charroux 975/989. 16 Hoffmann 1964; Wohlhaupter 1933. 13

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I shall not attack the merchant nor the pilgrim and I shall not rob them, unless they have committed a crime […]. I shall not attack noblewomen nor those who are with them, in the absence of their husbands […]. From the beginning of Lent until Easter, I shall not attack the knight who is unarmed and I shall not take from him the baggage he has with him […].17

That these renunciations had to be spelled out makes the knight seem much like a repentant highwayman. Yet this list of abstentions resembles articles of war. They seem to refer only to behaviour in the lands of the knight’s feudal lord, which was also true at first for medieval articles of war, as we shall see. The Pax Dei and Treuga Dei movement reached a high point when Pope Urban II in 1095 called a crusade to free the Christians in the East from their Turkish oppressors, and simultaneously declared a period of internal peace within Christendom while this war, later to be referred to as the First Crusade, lasted. Such a Peace of God would henceforth always accompany crusades. But from this point onwards, as Rolf Grosse has shown, individual kings and dukes seized hold of this initiative to use it for the purpose of creating their own monopoly of the use of force within their own lands.18 In the German-speaking world, this imposition of peace within polities is often called Landfrieden, peace of the land, by German historians, retroprojecting a term that only came into use at turn from the fifteenth and the sixteenth centuries (in documents the terms used are simply pax or constitutio de pace tenenda). The enforcement of peace at home by secular authorities constitutes a gradual shift away from an ecclesiastic law towards secular law, illustrating the transformation of medieval monarchies into early modern States.19 In the Holy Roman Empire, we find a prominent example in the Constitutio de Pace tenenda of Emperor Frederick I Barbarossa of 1152.20 We also find a sort of Landfrieden described in the Mirror of Saxons, a collection of laws and customs, compiled and published by Eike von Repgow, dating from 1220–1232. Repgow already mentioned an ‘ancient peace of the land’ implying that this was seen as long-established customary law already in his time.21 From the thirteenth century, the concept can be found in a series of treaties between towns or lords before adopted by the Empire as lasting norm in 1495.22 In England, royal attempts to banish the feuds between barons and to impose a “King’s Peace” has Anglo-Saxon roots.23 England suffered wars of succession in 17

Quoted in Hanne 2012, document 48, pp. 68 f. See also ibid., document 49, pp. 69 f. Grosse 2002; Gergen 2004. 19 Wohlhaupter 1933, p. 357; Hoffmann 1964. 20 Monumenta Germaniae Historica 1893, pp. 194–198. 21 Gergen 2004, p. 261. Admittedly, Clovis’ behaviour was exceptionally pious as Gregory’s account of the campaigns of Clovis’ contemporaries and successors illustrates. 22 Kleinschmidt 2013, p. 103. 23 O’Brien 2018. 18

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1066 and then in the twelfth century (the “Anarchy”, and then the rebellion by Henry II’s sons against him), revolts of the barons in the thirteenth century, was dragged into a war over the French succession by its ambitious dynasty in the fourteenth and early fifteenth century (the Hundred Years’ War) before being torn apart again by domestic wars of succession (the Wars of the Roses). Establishing the “King’s Peace” was thus both particularly desirable and difficult to achieve. The King’s Peace in England and God’s Peace and God’s Truce in France thus aimed to limit, on the one hand, the right to resort to war (the ius ad bellum) on the part of the lesser and higher nobility (at least during certain times of the year), or to do away with it completely in times of external war (especially, during the crusades). On the other hand, they also aimed to limit actions by soldiers in wars (ius in bello), so that above all the Church and its properties, the clergy, but also women, peasants and merchants would be protected. What was required on top of this was the application of these principles to the actual conduct of war, by means of ordinances issued by princes or their chief military commanders to those who were to respect these principles: the soldiers themselves. About a hundred such ordinances can be found, probably more, which translate these principles into concrete rules (“articles”) relating to the conduct of war. Not all of them are called “ordinances” or “articles of war”. But they can be identified as such by their increasingly standardised format and content. Let us begin by looking at the judicial pre-history of such ordinances of war.

5.2.1

The Origins

We know of rules and limitations on war in Ancient Greece and Ancient Rome, and the God of Hosts of the Israelites tended to give them (generally pretty inhumane) instructions on what they should do in war.24 When the Roman Empire embraced Christianity, the Codex Theodosianus, an early fifth-century law code, outlawed pillaging ecclesiastical property. Barely a century later, we see that this Christian-Roman norm survived in the West despite the fall of Rome itself. The Frankish king Clovis, marching past Tours with his host, “because of his respect for Saint Martin, […] ordered that no-one should take anything in those lands [belonging to Tours and the church of St Martin] other than vegetables and water.” Then when he approached the church dedicated to Saint Hilary at Poitiers, “Clovis forbad his entire army to pillage any person or goods at that place or on the way”.25 Three hundred years later, in a similar context in 806 (armed forces marching through Frankish lands towards an engagement with an enemy, here in Eastern Saxony), Charles the Great wrote to Fulrad, Abbot of St Quentin, concerning the soldiers Fulrad was supposed to send him:

24 25

Cox 2018, pp. 90–110; O’Driscoll 2015. Gregory of Tours 594, Book II, paras 104 f.

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We ask of you that you should have in your wagons victuals for three months, counted from their departure from [their meeting point at] Strassfurt, and weapons and clothes for six months. We also command that you ensure that you get to the aforementioned place peacefully, travelling whichever way through the kingdom, so that you do not have the audacity to touch anything other than grass, wood and water; that each of your men should be with his wagons and horses at all times until reaching the aforementioned place, so that the absence of the masters of the areas crossed should not serve as a pretext to do wrong.26

Fifty years later, in 857, the capitularies issued under Emperor Charles the Bald did not limit themselves, as in the case of Clovis, to prohibit transgressions against the possessions of the clergy, but also stated that widows, orphans and the poor should be protected. Thieves, robbers and ravishers of virgins and widows were to be prosecuted unless the ravishers promised to marry the women concerned (nothing was said of married women who would fall victim to such acts). The aim here, as in the earlier documents, was the protection of the population of the empire itself against misdeeds committed by its soldiers, whether in times of war or peace.27

5.2.2

The First Ordinances

The first document with some of the contents that would characterise most subsequent military ordinances containing articles of war, and with the layout that would become the standard until our own times (a list of rules in the format of Carolingian capitularies that the lay or ecclesiastic princes imposed on their armies and corresponding punishments for disobedience) dates from just a few years later. This is the Constitutio Expeditionis Beneventana, promulgated in 866 by Emperor Louis II, almost exactly a millennium before the Lieber Code. This ordinance was addressed to the forces whom the Emperor sought to rally against the Moslem invaders of South-Eastern Italy. The document’s format is similar to the capitularies of Charles the Bald. It contains twelve articles, beginning with the princes’ obligation to raise troops for this expedition, conditional upon earnings – to qualify for military service a peasant had to have a minimum of wealth to be able to leave the running of his farm to others in his absence. The ordinance then goes on to decree that anybody who would pillage a church, commit adultery (what is probably meant is rape) or cause a fire would risk the death sentence (“vita incurret periculum”, Article 8). The theft of an ox, of clothing and arms would also be severely punished.28 Not only is this the earliest Western set of articles I have found in this format, but it also exemplifies the first of two, sometimes distinct, mostly

26

Translation in Bonnet and Descatoire 2001, p. 115. “Allocutio missi cuiusdam Divionensis” [Address to the emissaries from Divion], printed in Monumenta Germaniae Historica 1890, document 267, pp. 291–292. 28 Monumenta Germaniae Historica 1897, pp. 94–96. 27

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overlapping sorts of ordinances. As this one is particularly concerned with reducing the harm done to civilians, we shall call it the population-centric type. Two centuries later, another ordinance was issued, which would achieve considerable fame and serve as a model for subsequent regulations.29 This was the ordinance of 1158 issued by Emperor Frederic I Barbarossa when he set out to fight Italian cities that under the leadership of Milan had risen against his rule. Comprising 25 Articles, it was mainly of a second type, focusing on the discipline of the army itself, or what one historian has called “measures taken to ensure peace within the army itself”, a preoccupation of commanders through the ages.30 In it the Emperor spelled out interdictions and punishments for disobedience: soldiers were not to fight among themselves nor sound the alarm without reason, they were not to attack unarmed people, especially not merchants (who now supplied the armies where earlier soldiers had had to bring most of their victuals along). Soldiers were not to have women with them in the camp, they were not to steal, especially not from churches, or sack or burn down farms. This is a rare example of an ordinance that does not stress on the immunity of clergy and peasants—probably not an accidental omission as the Emperor was at the time quarrelling with the pope about who held supreme power in the Holy Roman Empire.31 In the following century, we find ordinances that are more fully of this second type, exclusively concerned with regulating the relationship between professional (i.e. paid32) soldiers and their employer, and the discipline of the army. These include the Codicetto militare per la spedizione di Montaperti which was drawn up on the Florentine side on the eve of the battle between Florence and Siena in 1259. The Codicetto or “small codex” echoes Frederick Barbarossa’s explicit protection of merchants.33 This is the first in a long list of contracts between paid soldiers, represented usually by their captain who was also responsible for their recruitment, and the polity that employed them. We find further examples of such a contract in the Codice militare per le Masnade stipendiarie di Pisa [Military codex for paid mercenaries of Pisa] of 1348,34 and the ordinance of the Republic of Florence (Codice degli stipendiarii) of 1369.35 In the German-speaking lands these contracts would later be referred to as Artikelsbriefe, letters of articles listing the obligations of soldiers. They almost exclusively related to issues of discipline, command and obedience. Such ordinances, besides listing forbidden behaviour also listed the types of punishment to be imposed for each misdeed (ranging from desertion to playing dice), and prescribed how to divide up the spoils of war. Yet from time to

29

Anon [Fourquevaux, Raymond de Beccarie de Pavie, Baron de] 1548, p. 96. Göricht 2001, pp. 266 f. 31 Monumenta Germaniae Historica 1979, document 222, pp. 4 f. 32 Often called stipendarii or mercenaries, but this word did not yet have the negative connotation it acquired in the nineteenth century. 33 Ricotti 1844, pp. 349–358. 34 Ricotti 1845, pp. 293–308. 35 Ibid., pp. 315–329. 30

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time, one would find even among the 20–50 Articles a handful prohibiting theft from churches, or any violent acts against clergy or people we would call civilians. Meanwhile, kings and emperors continued to show concern for the wellbeing of their own populations when their armies were marching through their lands. In the fourteenth century, we see the spread of population-centric ordinances from the Holy Roman Empire to other European polities, and we also see that they increasingly addressed the soldiers themselves rather than relying on officers to interpret and proclaim them. While the codices of Florence and Pisa of the thirteenth and fourteenth centuries were still written in Latin, we now find ordinances written in vernacular languages. The Ordinance of King Philip VI of France, published on 23 March 1338 in view of a planned campaign by the Duke of Normandy to conquer England, was written in French.36 Thus captains could be instructed to read out the ordinances aloud to the soldiers before each campaign.37 From 1492, English ordinances were printed and captains were held responsible for their observance by their soldiers.38 Up to the fifteenth century, it seems that the articles only applied to the particular military campaign for which they were proclaimed. Thus it was necessary to repeat them for each campaign, which sometimes meant they were proclaimed several times during one war (e.g. for each siege of a town individually).39 Moreover, they were often tailored to the requirements of a particular siege, where they would be used to put pressure on the town to surrender in exchange of clement and disciplined behaviour by the besieging forces (towns that resisted and were taken by force were usually sacked and often burned, their populations raped and maltreated, sometimes killed in large numbers, a custom going back to Antiquity). Or else they would apply only to the lands under the rule of the prince who had issued the ordinances.40 An exception to these two categories are the ordinances promulgated by Henry V of England, the victor of Agincourt, probably in 1419 or 1421, probably at the town of Mantes-la-Jolie. These ordinances were intended to protect the inhabitants of Normandy against the ravages of war, as he hoped to be able to hold on to Normandy and to integrate it into his own dynastic lands.41 Thus, at the very end of the Middle Ages, we can trace a shift in thinking about the treatment of civilians in war, which very slowly, and in the context of the complex loyalties in France, began to be applied also to the civilians in areas under the adversary’s regime. Henry V’s Mantes Ordinance did not apply to French civilians generally, only to those in the contested areas. But progressively, rules that the Church had sought to spread throughout Christendom for the previous five centuries began to find more general acceptance, namely that clergy, the old,

36 37 38 39 40 41

Twiss 1871, Annex, pp. 420–423. Tallett 2006, p. 22. Ibid., pp. 375, 380 f. Cazelles 1960. Cox 2013, pp. 1403–1405; Martinez 2017. Martinez 2017, p. 378. Per contram, see Cox 2013, pp. 1408 f.

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children, women, and indeed merchants on all sides should be spared.42 Towards the end of the fourteenth century, Honoré Bovet in his Tree of Battles and in the 1440s Nicholas Upton in his De Officio Militari suggested that it was a general rule throughout Christendom that clergy and Church property must remain untouched, along with pilgrims, merchants and peasants.43 Other categories of people to be spared were at times mentioned, such as fishermen, students, and fond fathers travelling to see their student-sons while the kings of the home country of father and son, and of the university respectively, were at war with each other.44 This spread to protection of civilians in the lands of the adversary can be illustrated particularly with the successive ordinances issued by Charles the Bold, Duke of Burgundy in 1473 and 1476. While earlier Burgundian ordinances had posed no inhibitions concerning enemy civilians, these last two prohibited “pillage or theft in friendly lands, violation of a sanctuary in friendly or enemy lands; rape of women in friendly or enemy lands.”45

5.2.3

Ordinances with International Points of Reference: The Sixteenth and Seventeenth Centuries

In the sixteenth century, ordinances were sometimes printed in war manuals which otherwise were a genre of their own, going back to the famous fourth-century Roman manual of Vegetius (widely read throughout the Middle Ages). Many Renaissance authors were tasked to update ordinances and would do so in adding them as appendices to their own works on the art of war.46 Occasionally, such a manual could serve in the way in which government publications would in the twentieth and twenty-first centuries: covering everything from basic strategic approaches to recruitment and rules of engagement (i.e. articles of war).47 Generally, they would not only prescribe good practice in tactics and preparations for war, but also delve into the justifications for war, the ius ad bellum, running through the usual just and unjust causes recognised as such since Roman times. Their reasoning was hardly different from that of Onosander who in the first century had stressed that a just cause would greatly enhance the morale of soldiers.48 This

42

See, e.g., Anon 1540–1555; Anon [Fourquevaux, Raymond de Beccarie de Pavie, Baron de] 1548; Sutcliffe 1593; von Schwendi 1593. 43 Bovet 1382–1387, Book IV, Chapter 100, pp. 470 f.; Upton 1447, Book II, Chapter 12, p. 90. 44 Bovet 1382–1387, Book IV, Chapter 88, pp. 438–442. 45 Schnerb 1990, p. 106. 46 Della Valle 1539; Anon 1540–1555; Anon [Fourquevaux, Raymond de Beccarie de Pavie, Baron de] 1548; Sutcliffe 1593; von Schwendi 1593; Junghans von der Olßnitz and Reutter von Speir 1595. For a late work of the sort, see Ludovici 1733. 47 Heuser 2017, Chapters 4–6. 48 Onosander before 57 AD, p. 159.

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was not cynical but a holistic, pre-Machiavellian view of the world, which did not differentiate between what is good and what is useful (even in and well beyond his own age, Machiavelli with his purely utilitarian reasoning was seen as exceptional). In the sixteenth and seventeenth centuries, the spread of the norm of civilian protection to include enemy lands continued. The ordinances of Christian IV of Denmark, Gustavus II Adolphus and Charles XI of Sweden thus stipulated that that rape should be punished by the perpetrator’s death not only in their kingdoms, but also in enemy country.49 These were clearly the foundations of international humanitarian law applicable everywhere, and not just formulated to protect one’s own subjects. At the same time, there was still much variety in what was seen as acceptable behaviour and what was not. For example, in the much-cited ordinances of Emperor Maximilian I of 1508, the protection of pregnant women or women in childbed, of widows and honourable virgins, young girls and housewives was proclaimed as well as that of old folk and children of both sexes.50 By contrast, the 1570 ordinance of Emperor Maximilian II gave protection against rape only to women in childbed, while the best that other women could hope for was that they would not be killed.51 An ordinance issued by Emperor Ferdinand III during the Thirty Years War extended protection to virgins, but apparently not to married women, unless they were pregnant or in childbed.52 Otherwise the articles forbade the destruction of mills and (shared, public) ovens or the theft of ploughs and other agricultural tools, except when ordered by an officer as an act of war.53 No exception was tolerable when it came to Church property, which was always declared untouchable, even, in the ordinances of the Thirty Years’ War, when it belonged to those of another confession.54 In late seventeenth-century Europe, the following article in the ordinance of Christian V of Denmark reflected the generally accepted custom: Upon pain of death are prohibited: lese-majesty, all deliberate homicide, murder, sexual conduct against nature, incest, bigamy, […] kidnapping, forceful abduction, laying fire, street robbery, highway robbery, stealing church property […].55

49 Ordinance of Christian IV of Denmark, Article XXXIX; Ordinance of Gustavus II Adolphus of Sweden, Title V; Ordinance of Charles XI, Title XVI, Article LXXXVIII. All printed in Schultze 1692. 50 “Des Blorwuerdigen [sic] Kaeysers Maximilianen / deß Ersten dieses Namens/Kriegs-Artickel / wie solche verabfasset und fürgeschireben im Jahr Christi 1508, auch aufgezeichnet von Goldast mit dem Zunamen von Haiminsfeld genant / zu Latein gefunden warden.” Ordinances of Emperor Maximilian I of 1508, Article 14, printed in Schultze 1692. 51 Ordinance of Emperor Maximilian II, Articles VIII, LIV, printed in Schultze 1692. 52 Printed in Schultze 1692. 53 E.g., the Ordinance of Maximilian II, Article LIII and his Ordinance for the Cavalry, Article LXIX; Ordinance of Gustavus II Adolphus of Sweden, Title XVII; Ordinance of Charles XI of Sweden, Title XVII. All printed in Schultze 1692. See also von Schwendi 1593, p. 159. 54 See the Ordinance of Maximilian II, Article LXX and the Ordinance of Gustavus II Adolphus, Title XVIII. Both printed in Schultze 1692. 55 Printed in Schultze 1692.

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It was still the case that such protection of civilian populations from all violence did not apply to besieged towns and fortresses if they were taken by force. Yet even there, soldiers were supposed to wait for their officers’ permission to pillage, destroy and otherwise vent their anger on the local population.56 If the commander or a prince pronounced any particular place to be under salva guardia [sauvegarde in Modern French], it was to be untouchable.57 In early modern times, ordinances commonly began with a statement as to the total submission to the will of God and to His laws by the prince or general issuing them.58 The Scandinavian ordinances contained some particularities: apparently it was customary in the northern countries to cast spells on weapons, a practice which Scandinavian ordinances tended to proscribe especially as heretical.59 Other distinctions in local customs can be found in the marital status of soldiers and officers: while Louis XIV of France in his Ordinance of 1661 (Article XXII) decreed that no soldier was allowed to be married, Charles XI of Sweden’s ordinance of roughly the same time forced unmarried military men to marry the women with whom they lived.60 The majority of the ordinances issued in France under Louis XIV were of the type focusing on military discipline.61 Almost all the early modern ordinances still assumed that prisoners of war could be ransomed, and that pillage was an essential part of the economy of war (without which the soldiers would have had little stake in it). Many articles were generally devoted to the right to the partition of booty – which proportion would go to the State or the crown, which to the commanding officers, which to the soldiers, while about a tenth would be withheld for wounded or sick soldiers. Ordinances continued to be read out aloud. The early sixteenth-century ordinances of Henry VIII of England stipulated that they should be read out to the soldiers twice a week.62 Gustavus II Adolphus in his ordinance which dates from the Thirty Years’ War noted that they should be read at least four times a year, even in times of peace.63

56

See, e.g., Fronsperger 1571, Volume I, Article XIII, pp. 42 f. (pagination of republication). See the Ordinances of Maximilian I; Maximilian II; Ferdinand III. All printed in Schultze 1692. 58 For an example, see Essex et al. 1643, Article 1. 59 Printed in Schultze 1692. 60 Printed in Schultze 1692. 61 Ordinance of Louis XIV of 12 October 1661, printed in Schultze 1692; Louis XIV 1681; Louis XIV 1689; Louis XV 1765. 62 Martinez 2017, p. 382. 63 Ordinance of Gustavus II Adolphus, probably dated from 1621, printed in Schultze 1692. 57

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Between Army Regulations and Laws of War: The Eighteenth and Nineteenth Centuries

Eighteenth- and nineteenth-century ordinances were largely continuing in the two types of ordinances mentioned above: population-centric norms of conduct, and army regulations (with an emphasis on discipline), most frequently a combination of both. They continued to denounce desertion, fights between soldiers of the same army, dereliction of duty, insubordination and other disciplinary problems. They continued also to forbid the burning of public buildings, of fruit trees and harvests, now usually not only in one’s own lands but also in those of the enemy. They would also proscribe violence being used against innocents, burning their houses, theft and rape. All this can be found, for example, in the early Austro-Hungarian Empire’s ordinances.64 The resort to military force had become increasingly circumscribed. Ordinances of this period differed from their predecessors in that they reduced or even eliminated pre-ambles referring to God and his will. They could reflect quite different values, from humanitarian to autocratic. On 4 May 1792, on the eve of its first military campaign, the French revolutionary National Assembly professed its faith in the nation instead: The National Assembly, Wanting to regulate, at the beginning of the war undertaken in defence of liberty, according to the principles of justice and humanity, the treatment of enemy military whom the fate of combat would put into the hands of the French nation; Considering that in the terms of the declaration of the rights [of man], if society is forced to deprive a man of his liberty, all unnecessary harshness to assure oneself of his person shall be severely punished by the Law; Acknowledging that this principle applies particularly to prisoners of war who, not having signed up voluntarily to serve the civilian power of the Nation, should stay under the special protection of the natural law of men and nations; Decrees that there is a state of emergency. […] All inappropriate harshness, insult, violence or murder committed against prisoners of war will be punished according to the same laws and the same punishments as though these excesses committed were committed against the French.65

In the same spirit aiming to limit the effects of war on the working classes, the French revolutionary National Assembly and the Convention passed a series of laws in the tradition of the ordinances of war which created and then repeatedly reformed military tribunals, to make them more effective. On 27 July 1793, the Convention put the death penalty on pillaging, rape and those who deserted their

64 See, for example, Landesregierung 1809, Articles XXV, XXVI, XXX, XXXI ff., and, with almost identical articles, Bergmayr 1835. See also Prussian Articles of War of 1852, Articles 24, 25, printed in Kletke 1867. 65 Printed in and translated by Best 1980, p. 78 ff.

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post (during the Napoleonic Wars, the huge size of the armies made it impossible to keep them supplied without living off the land from much of the time; the problem was formally resolved by making requisitioning a legal and formalized practice, which did not make it any more popular in the occupied areas).66 A very different authoritarian spirit inspired the Prussian ordinances of the time, and well into the nineteenth century. The Articles of War of the Prussian Army of 5 December 1852, for example, began not with a citizen’s freedoms but with his obligations. Every citizen, they noted, was obliged to do military service. Almost every article in this collection pertained to the relations between the soldier and the military hierarchy, to discipline and above all to punishments for indiscipline.67 Thus this Prussian ordinance stands fully in the discipline-centric tradition of the medieval Italian codices and the ordinances of the absolutist state of Louis XIV and not in the population-centric tradition we find from the ordinances of the Holy Roman Empire to the Lieber Code of 1863. The originality of the Lieber Code lies in its insertions of reflections on the laws and purposes of war. Another innovative aspect is that it spells out reasons for the application or suspensions of regulations. Francis Lieber supposedly introduced the concept of “military necessity” as a reason for disregarding certain restrictions on the use of force.68 This concept incidentally can probably be traced back to the French clergyman Honoré Bovet writing in the late fourteenth century and the Spanish jurist Luis de Molina writing in the sixteenth century.69 Lieber has thus acquired a reputation for being Machiavellian. In reality, Lieber, who had experienced the horrors of war as an adolescent and who lost a son to the American Civil War, mainly intended to create more restraints on warfare. One of his main concerns was the fate of soldiers as prisoners of war, and the suffering of soldiers who were fighting on the side of “rebels”, a category of combatants usually dismissed as irregulars and thus deprived of any protection; he aimed to win for them the same protections given to soldiers fighting for regular states.70 Lieber deserves his reputation as great thinker who put together a body of articles of war with great clarity and a Cartesian structure. But the 157 Articles of his famous Code mostly have a long genealogy of antecedents which should not be forgotten.

66 67 68 69 70

Bodinier 1997, pp. 287 f., 324. Kletke 1867. Carnahan 1998. Domínguez Nafría 2002, p. 539. Lieber 1863.

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Were the Ordinances Effective?

If we follow the ICJ’s criteria, a law has to be applied by a court of law to be valid. The question of whether, how and to what extent ordinances served as the basis for trials and punishment merits much further research. All we can do in this sketch is to summarise some work that has already been done on a small sample of cases since the thirteenth century.

5.3.1

The Anglo-Scottish Wars and the Hundred Years’ War

One case study undertaken by Rory Cox is that of the application of the ordinance of Edward I of England concerning his 1296 campaign against the Scots. A total of 185 charges were made by subjects of Edward concerning breaches of the articles while the English host was marching north through English lands. Several of the charges were commuted into charges of the breach of the King’s Peace, rather than charges of war crimes. Either way, sentences were delivered and individual transgressors were executed.71 Turning to the Hundred Years’ War, Maurice Keen in his detailed studies of the records of military tribunals found that, at least where charges brought before the courts by knights are concerned, “[m]ilitary tribunals claimed cognizance of the offences not only of soldiers of their own side, but of soldiers generally, even those of the enemy”.72 Keen notes, however, that members of the lower strata of society were treated with indifference and even great brutality, with little evidence that these war crimes—as war crimes they were, when they were carried out against the injunctions of the ordinances—were brought to justice.73 One of the areas where there was a lack of consensus among ordinances and customary law concerned the treatment of prisoners, if they could not be ransomed or posed a concrete threat while a battle was still being waged. Honoré Bovet, writing in the late fourteenth century thought that while in principle one should not kill a prisoner of war, what might later be called “military necessity” might make it imperative to do so.74 Indeed, in 1415 during the battle of Agincourt, Henry V of England ordered the massacre of his prisoners of war when it was (wrongly) thought that reinforcements of his French adversary were about to arrive, and he feared that the prisoners would seize the opportunity to escape their outnumbered guardians and take up arms against them. Nevertheless, his Mantes Ordinance, issued subsequently, specified that killing prisoners of war was prohibited. Anne Curry, in her study of this and other edicts of the time in their historical context, 71 72 73 74

Cox 2013, pp. 1403–1405. Keen 1965, p. 47. Ibid., pp. 190 f. Bovet 1382–1387, Book IV, Chapter 13, pp. 238–240.

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notes that contemporaries thought Henry to have been very law-abiding: according to the chroniclers Jean de Waurin and Jean Le Fèvre, Henry’s popularity in France was derived from his conscientious pursuit of justice and good governance in the regions under his control.75 And two years after the Battle of Agincourt, John the Fearless of Burgundy on the eve of an expected battle near Paris ordered that “no one, whatever his status, should be so bold as to take prisoners on the day of battle, until it is plainly obvious that the field has been won; and that, if any prisoner is taken” before the battle had been won, “he will be killed, and so will his captor if he refuses” that the prisoner he had taken be killed.76 No prisoners before the battle was won meant quite literally, no mercy for anybody who sought to surrender. Thus, the argument of military necessity, already made by Bovet, as we have seen, seems to have been widely accepted at the time. Bertrand Schnerb in his research on the judiciary system in the armies of the dukes of Burgundy in the Fourteenth and Fifteenth Centuries found that the rulers on both sides during the Hundred Years’ War tended to acquit their knights if they were accused of misdeeds; he speculates that the respective princes needed the knights too much to be able to incur their wrath by punishing them. Only after the Treaty of Arras of 1435 did the Duke of Burgundy apply his own ordinances more systematically. Schnerb cites at least two cases where soldiers were hung for rape which indicates that not only the complaints of knights and issues of the division of spoils were dealt with by the Burgundian military courts.77 The administration of justice on the basis of existing ordinances might have been patchy, but there is evidence of such application.

5.3.2

The Anglo-Spanish War (1585–1604)

A century later, the Anglo-Spanish War furnishes an interesting example of a scrupulous application of an ordinance. The second Earl of Essex, commander-in-chief of Queen Elizabeth I’s army, in the campaign of 1596 against Cádiz applied the laws of war which Matthew Sutcliffe had compiled in his official publication on war. Even before setting out for Spain, Essex had some soldiers hung for misdeeds committed while still in England.78 Later, under his command, Anglo-Dutch forces seized and pillaged Cádiz, which for many of them (and also for Queen Elizabeth and Essex himself) was at least one of the two principal aims of

“Et la principalle cause si estoit par ce que ceulz quy faisoient le contraire et enfraignoient ses commandements ou ordonnances il faisoit pugnir tres criminelement sans quelque misericorde, et bien entretenoit la discipline de chevallerie comme jadis faisoient les Romains.” Quoted in Curry 2008, p. 238. 76 Ambühl 2013, pp. 104 f. 77 Schnerb 1990, pp. 100 f., 107 f. 78 Sutcliffe 1593. 75

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this campaign. But this was not at odds with Sutcliffe’s ordinance. The Spanish monk Pedro de Abreu, an eye witness to these events, noted that Essex’s soldiers despoiled the houses of anything they could find, taking the objects they had seized to the ships; they broke down the walls, roofs and storage spaces where they suspected that money or other goods were hidden; they […] drained wells and gutters and cess pits to look for silver, gold or other money […]. They undressed women to see if they were hiding objects [under their clothes], and if their clothes were precious […] they left them standing in their undergarments or even naked. And they did the same to the men […].79

Moreover, the Dutch and English soldiers, deeply hostile to Catholicism, sacked the churches of Cádiz, destroying paintings and statues of saints. Famously, one damaged statue of the Virgin with the child was rescued by the Spanish from the cathedral in Cádiz and transferred to Valladolid, which at the time was Spain’s capital city, where it is worshipped until this day.80 Nevertheless, it seems that the expeditionary corps did not rape or massacre civilians.81 A witness reported that the women were allowed to leave the city, escorted by gallant Englishmen so they would not be molested on the way.82 King Philip II of Spain himself is supposed to have admitted that “such nobility was never seen among heretics.”83 Historian Geoffrey Parker claims that “in most of the wars waged in Europe since the sixteenth century, breaches of the norms for military conduct laid down in treatises […] have been condemned and chastised” with individual soldiers facing “trial and punishment by special military tribunals committed against either fellow soldiers or civilians.”84 He documents atrocities committed by the infamous Duke of Alba in his counter-insurgency campaigns against the Dutch insurgents (in 1573, for example, Alba had all Dutch prisoners hanged) and the ensuing judicial enquiry ordered in 1574 by Philip II about Alba’s conduct (Alba was acquitted but several of his commanders were banished from court; it seems to have been more the fear of reciprocity in acts of cruelty committed by the Dutch against Spanish soldiers and officers that stopped Alba’s hangings, rather than fear of his king’s displeasure or any court martial). Again, in 1576, after Alba’s forces sacked Antwerp leaving 8 000 citizens dead and 1 000 houses destroyed, Philip ordered a judicial enquiry.85 The English gallantry displayed at Cádiz differed markedly from the way English armies behaved in Ireland in the late sixteenth century and indeed in the following century. As the Irish were considered rebels, a category of adversaries who, until Francis Lieber’s times, were treated as criminals, the limitations on the use of force contained in ordinances were suspended.

79 80 81 82 83 84 85

Quoted in Cruz 2008, p. 43 f. Cruz 2008. Hammer 1999, pp. 229 f. Hammer 1997, p. 197. Cruz 2008, pp. 43, 48–60. Parker 2002, pp. 159 f. Ibid., p. 164.

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The English Civil War (1642–1651)

While the English Civil War also began as a rebellion against royal authority, the two sides soon treated each other with relative respect, as Barbara Donagan found in her studies; indeed, it seems there were few differences between the ordinances issued by both sides. However, the ordinances were inconsistently applied on both sides.86 For example at the battle of Lostwithiel, King Charles I, and at the battle of Reading, the third Earl of Essex (son of Elizabeth’s army chief) tried in vain to prevent pillaging. Local civilians at times joined the victors to despoil and harass the defeated soldiers. The commanders of victorious armies often found it difficult to discipline their soldiers and to prevent robbery, rape and killing of civilians suspected of having supported the enemy army. Discipline was difficult to maintain ‘so long as plunder retained its central place in an army’s system of reward and incentive, and methods of coercion were rudimentary’.87 Atrocities committed in the English Civil War were horrible, but relatively much smaller in number than those experienced by the Central Europeans during the contemporary Thirty Years’ War which cost the lives of a third of the populations of the lands concerned. What happened in Ireland in the meantime was more akin in scale to the horrors that took place on the Continent. As in the previous century, the victims of atrocities committed by Cromwell’s New Model Army in Ireland were of comparable numbers relative to the whole population to the war-caused deaths on the Continent during a comparable time span of the Thirty Years War. Throughout Europe, the customary law that citizens of towns that had been taken by force could be put to the sword or otherwise maltreated—a rule that can be traced back, without interruption, to Antiquity—had as consequence that such massacres were not in fact contrary to the articles of war.88 Overall, for England at least, Donagan has found archives of military tribunals that are proof that the “laws and ordinances of war” were applied. She found that the military tribunals passed judgement relatively quickly, but that there was some slackness in the execution of the sentence which varied from court to court.89 Two years after the restoration of the Stuart monarchy, a court of claims was established to hear charges of war crimes brought also against the conduct of the Cromwellian forces in Ireland.90 But this was not enough to put the traumas of the Cromwellian atrocities to rest.

86 87 88 89 90

For the Parliament side, see Essex et al. 1643. Donagan 1988, p. 92. Clifton 1999. Donagan 1988, pp. 86 f. Parker 2002, p. 160.

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Other Evidence of Application

For wars on the European Continent in the sixteenth century, Lienhart (Leonhard) Fronsperger (1520–1575) has left us detailed descriptions on the composition of military tribunals, the examination of evidence in complaints made against the German landsknechte, the interrogation of witnesses and the judgements.91 The ordinances of Gustavus II Adolphus and Christian XI of Sweden (the latter dating from 1683), Louis XIV (1665) and Christian V of Denmark (1683) all detail the structures and procedures of military tribunals.92 One might surmise from this that, as the tribunals were set up, the ordinances were applied, at least selectively. Nevertheless, the Thirty Years’ War and the campaigns of Louis XIV were known for their excesses especially with regard to the civilian populations. Other examples of the application of articles of war can be gleaned from a cursory reading of literature on war. In keeping with the noble ideals of the French Revolution that we have illustrated above, in 1792, General Dumouriez in Jemappes and General Custine in Speier prevented the sack of these two towns by French forces. Custine even had soldiers hung for merely inciting their comrades to set pillage.93 Undeniably, ordinances were on the whole not sufficient to prevent all massacres and other atrocities throughout the millennium since the promulgation of the first ordinance we have identified. Yet we cannot claim that the world has seen fewer horrors in absolute numbers since the creation of multilaterally agreed conventions on the laws of war in the second half of the nineteenth century.

5.4

Ius Publicum Europaeum?

In comparing the Franco-Scottish and English ordinances of the Hundred Years’ War, Anne Curry has noted many similarities in content, logic and format, while local particularities continued to exist (for example, the death penalty and punishment in the form of amputation was imposed on archers more frequently in Scotland than elsewhere). Nor was there much change over time in the contents of English ordinances until that of Henry VIII in 1513.94 Looking also at contemporary ordinances put forward elsewhere in Europe, Anne Curry judges that one can speak of a European “international code”.95 91

Fronsperger 1571, Volume I, pp. 1–38 (pagination of republication). Ordinance of Gustavus II Adolphus; Ordinance of Louis XIV, Articles XLIII–XLVIII; Ordinance of Charles XI of 1683; Ordinance of Christian IV of Denmark of 1683. All printed in Schultze 1692. 93 Best 1980, pp. 78 ff. 94 Curry 2008. 95 Curry 2011. 92

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Thus, customary law was establishing itself in matters of ius in bello in the late Middle Ages. Andrew Martinez has documented this for the evolution of English ordinances from 1385 to 1513.96 In the Sixteenth and the Seventeenth Centuries, ordinances were clearly formulated with explicit cross-references to earlier judicial documents. We can see this in the ordinances of the Holy Roman Empire promulgated by Emperor Maximilian I in 1508 and Ferdinand III, published in 1637 and 1657.97 Local differences definitely persisted. One person who knew about both was Philip Duke of Cleves and Lord of Ravenstein (1459–1528) who had served in the armies of the Holy Roman Empire as well as of France. When an anonymous editor published Cleves’ book on war posthumously in 1559, he noted that there were a German and a welsch (French) way of war, although this referred more to tactics than to restraints on warfare.98 Yet, basic elements of the ordinances of war were consciously copied from one State to another. Thus the Articulus-Brief of the Dutch Estates-General, adopted at Arnhem in 1590, clearly served as the model for the ordinance drawn up for Christian IV of Denmark (reigned 1588–1648), and for that of his grandson Christian V of 1683, and for those of 1621 and 1683 drawn up for the Swedish kings Gustavus Adolphus and Charles XI. When he became King of England and Scotland, William III of Orange had the Arnhem ordinance applied to the wars on the British Isles.99 In turn, we see references to Gustavus Adolphus’ ordinance in the Imperial Ordinance of 1674, which may be due to the work of Georg Simon Marsteller who had, for six years, previously been secretary to the Swedish king. The Arnhem ordinance is also remarkable as it was drawn up collectively by a number of jurists, and it was accompanied by a commentary that not only referred to the great philosophers of Antiquity to justify individual Articles, but also to sixteenth-century ordinances of other countries. It thus directly contributed to the construction of a European law of war. The Arnhem ordinance was defined as part of a more general legislation designed to stabilise both society and state, as is underscored by a Spanish poem, La Araucana by Alonso de Ercilla, printed in the ordinance’s commentary: “el premio y el castigo la tiempo usados / sustentan las republicas y estados” [rewards and punishment in good time / sustain commonwealths and estates].100 A century later, the ordinance issued by Christian Albrecht Duke of Schleswig in 1674 also cites long passages from earlier ordinances, but also refers to legislation applicable to times of peace, especially the legislation of Emperor Charles V which was still in force. The duke noted that the members of his Council had agreed that the articles of his ordinance were “in accordance and conformity [gemäß und

96

Martinez 2017. All printed in Schultze 1692. 98 Rauenstein [Ravenstein] 1559, Preface. 99 All printed in Schultze 1692. 100 Ibid. 97

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conform] with the laws of war and other laws, and the constitutions of States and conventions everywhere [überall]” in Europe.101 Writing in 1733, the jurist Jacob Friedrich Ludovici went one step further in not only listing ordinances and other legal documents he had read, but also other experts on the laws of war whom he had consulted. These were mainly subjects of the Holy Roman Empire, but also a Swedish and a Dutch expert.102

5.5

Conclusion

We have found that the ordinances identified were applied by tribunals, at least in some contexts and in some wars. We have also demonstrated that ordinances were customary law, internationally recognised, referring to precedent and to the opinio iuris of lawyers who were experts on the subject. In this sense, the ordinances of war not only constituted the ius in bello of one or several countries, but ius publicum europaeum, European public international law, and were seen as customary throughout European Christendom. This long history and tradition of the European ius in bello should be more generally recognised. The history of ordinances is also a reflection on the slow transformation of a concern to protect exclusively one’s own population, and then select populations in contested lands in return for their surrender, to, eventually, a concern for civilians of all nationalities, against the ravages of war, in what is now called International Humanitarian Law. This earlier differentiation made between one’s own populations and civilians elsewhere would continue to be present, however, long after the Lieber Code was succeeded by the first multilateral, international treaties designed to protect civilian populations. These were cast aside, time and again, even by states keen to uphold international law, if military necessity could be pleaded or if new weapons technologies (especially aerial bombardment) seemed to offer the prospect of a quick victory. The humanist recognition of the equality of humanity is fragile to this day.

References Articles, Books and Other Documents Adomnán (697) The Law of Adomnán: A translation (translated by Ní Dhonnchadha M). In: O’Loughlin T (ed) (2001) Adomnán at Birr, AD 697. Four Courts Press, Dublin, pp. 53–68 Ambühl R (2013) Prisoners of War in the Hundred Years War. Cambridge University Press, Cambridge

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Anon (1540–1555) An order, whych a Prince in battayll muste obserue, and kepe, yf he entende to subdewe, or passe thoroughe his enemyes lands. Raynold and Hyll, London Anon [Fourquevaux, Raymond de Beccarie de Pavie, Baron de] (1548) Instructions sur le faict de la Guerre extraictes des livres de Polybe, Frontin, Végèce, Cornazan, Machiavelle [Instructions on the conduct of war extracted from the books of Polybius, Frontinus, Vegetius, Cornazzano and Machiavelli]. Michel Vascosan, Paris Bergmayr IF (1835) Kriegsartikel für die kaiserlich-königliche Armee mit allen übrigen österreichischen Militär-Strafgesetzen [Articles of war for the imperial-royal army with all other Austrian military criminal laws], 2nd edn. Edle von Gehlen’sche Erben, Vienna Best G (1980) Humanity in Warfare. Weidenfeld & Nicolson, London Bettati M (2016) Le Droit des Conflits Armés [The Law of Armed Conflicts of Armies]. Odile Jacob, Paris Blank L, Noone G (2013) International Law and Armed Conflict. Wolters Kluwer, New York Bodinier G (1997) L’armée de la Révolution et ses transformations [The army of the Revolution and its transformation]. In: Corvisier A (ed) Histoire militaire de la France [Military History of France], Volume 2. Quadrige, Paris Bonnet C, Descatoire C (2001) Les Carolingiens [The Carolingians]. Armand Colin, Paris Bovet H (1382–87) L’Arbre des Batailles [The Tree of Battles]. In: Richter-Bergmeier R (trans) (2017) Honoré Bovet. Droz, Geneva Carnahan BM (1998) Lincoln, Lieber and the Laws of War: The Origins and Limits of the Principle of Military Necessity. American Journal of International Law 92(2):213–231 Cazelles R (1960) La réglementation royale de la Guerre privée de Saint Louis à Charles V et la précarité des Ordonnances [The royal regulation of private war from St Louis to Charles V and the tenuousness of ordinances]. Revue historique du Droit français et étranger 37:530–548 Chinkin C, Kaldor M (2017) International Law and New Wars. Cambridge University Press, Cambridge Clifton R (1999) ‘An indiscriminate blackness’? Massacre, Counter-Massacre and Ethnic Cleansing in Ireland, 1640–1660. In: Levene M, Roberts P (eds) The Massacre in History. Berghahn Books, New York/Oxford, pp. 107–126 Councils of le Puy and Charroux (975/989), Edicts of. Mirebalais Indépendant. http://www. mirebalais.net/article-la-paix-de-dieu-concile-de-l-an-989-a-charroux-63826017.html. Accessed 14 January 2018 Cox R (2013) A Law of War? English Protection and Destruction of Ecclesiastical Property during the Fourteenth Century. English Historical Review 128(535):1381–1417 Cox R (2018) Ethics of War up to Thomas Aquinas. In: Lazar S, Frowe H (eds) The Oxford Handbook of Ethics and War. Oxford University Press, Oxford, pp. 99–121 Cruz AJ (2008) Vindicating the Vulnerata: Cádiz and the Circulation of Religious Imagery as Weapons of War. In: Cruz AJ (ed) Material and Symbolic Circulation between Spain and England, 1554–1604. Ashgate, Aldershot, pp. 67–88 Cumin D (2015) Le Droit de la Guerre [The Law of War], Volume II. L’Harmattan, Paris Curry A (2008) The Military Ordinances of Henry V Texts and Contexts. In: Given-Wilson C, Kettle A, Scales L (eds) War, Government and Aristocracy in the British Isles, c.1150–1500. Boydell & Brewer, Woodbridge, pp. 214–249 Curry A (2011) Disciplinary ordinances for English and Franco-Scottish Armies in 1385: An international code? Journal of Medieval History 37(3):269–294 David E (2012) Principes de Droit des Conflits Armés [Principles of the Law of Armed Conflict], 5th edn. Bruylant, Brussels Domínguez Nafría JC (2002) Influencias de la conquista de Américas en la Doctrina sobre el ius in bello [Influences of the conquest of the Americas on the doctrine of the ius in bello]. In: Barrios Pintado F (ed) Derecho y Administración pública en la Indias hispánicas [Law and public administration in the Spanish Indies]. Ediciones de la Universidad de Castilla-La Mancha, Cuenca, pp. 503–546 Donagan B (1988) Codes and Conduct in the English Civil War. Past & Present 118(1):65–95

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Erben W (1901) Ursprung und Entwicklung der deutschen Kriegsartikel [Origins and development of the German articles of war]. In: Mitteilungen des Instituts für Österreichische Geschichtsforschung Supplement 6:473–529 Essex, Devereux R, Earl of (1643) Laws and ordinances of warre, established for the better conduct of the Army, by His Excellency the Earl of Essex, Lord Generall of the forces raised by the authority of the Parliament, for the defence of the King and Kingdom. John Partridge and John Rothwell, London Fronsperger L (1571) Von Kayserlichem Kriegßrechten, Malefitz vnd Schuldthändlen, Ordnung vnd Regiment… [Of imperial laws of war, misdeeds and culpable actions, order and regiment…], Part I. In: Böhm FWA (trans) (1819) Fronspergers Kriegsbuch Nach dem jetzigen Sprachgebrauch [Fronsberger’s war book modernised linguistically]. s.n., Berlin. Gergen T (2004) Pratique juridique de la paix et trêve de Dieu à partir du concile de Charroux (989-1250) [Juridical practice of the truce of God beginning with the Council of Charroux (989-1250)]. Lang, Frankfurt am Main Göricht K (2001) Die Ehre Friedrich Barbarossas [The Honour of Frederick Barbarossa]. Wissenschaftliche Buchgesellschaft, Darmstadt Gregory of Tours (594) History of the Francs Grosse R (2002) Der Friede in Frankreich bis zur Mitte des 12. Jahrhunderts [The peace in France until the Mid-twelfth century]. In: Erkens FR, Wolff H (eds) Von Sacerdotum und Regnum [Of sacerdotum and regnum]. Böhlau Verlag, Cologne, pp. 77–110 Halsall G (2003) Warfare and Society in the Barbarian West, 450–900. Routledge, Abingdon Hammer PE (1997) New light on the Cadiz expedition of 1596. Historical Research 70(172):182– 202 Hammer PE (1999) The Polarisation of Elizabethan Politics. Cambridge University Press, Cambridge Hanne O (ed) (2012) De la guerre au Moyen Age: Anthologie des Ecrits militaires [On War in the Middle Ages: Anthology of Military Writings]. Bernard Giovanangeli, s.l. Heuser B (2017) Strategy before Clausewitz. Routledge, Abingdon Hoffmann H (1964) Gottesfriede und Treuga Dei [Peace of God and treuga dei]. Anton Hiersemann, Stuttgart Junghans von der Olßnitz A, Reutter von Speir A (1595) Krigsordnung zu Wasser und Landt Kurzer und Eigentlicher Underricht aller Kriegshändel… [Order of War at Sea and on Land: short actual instruction of all actions in war…]. Wilhelm Lützenkirchen, Cologne K.K. Landesregierung (1809) Kriegs-Artikel [Articles of War]. Franz Xaver Oberer für die K.K. Landesregierung, Salzburg Keen MH (1965) The Laws of War in the Late Middle Ages. Routledge, London Kleinschmidt H (2013) Geschichte des Völkerrechts in Krieg und Frieden [History of the Law of Nations in War and Peace]. Narr Franke Attempto Verlag, s.l. Kletke GM (1867) Erläuterungen zu den Kriegsartikeln für das preußische Heer [Explanations concerning the articles of war for the Prussian Army], 2nd edn. Allgemeine Verlagsanstalt, Berlin Kortüm HH (ed) (2006) Transcultural Wars from the Middle Ages to the 21st Century. Akademie Verlag, Berlin Lieber, F (1863) Instructions for the Government of Armies of the United States in the Field. Library of Congress. https://www.loc.gov/rr/frd/Military_Law/Lieber_Collection/pdf/ Instructions-gov-armies.pdf. Accessed 29 April 2018. Louis XIV (1681) Ordonnance de Louis XIV donné au mois d’Aout 1681 touchant la Marine [Ordinance of Louis XIV given in the month of August 1681 concerning the Navy]. Thierry, Paris Louis XIV (1689) Ordonnance de Louis XIV pour les Armées navales et Arsenaux de Marine [Ordinance of Louis XIV for the Marines and the Naval Arsenals]. Michallu, Paris Louis XV (1765) Ordonnance du Roi concernant la Marine du 25 Mars 1765 [Ordinance of the King concerning the Navy of 25 March 1765]. Imp. Royale, Paris

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Ludovici JF (1733) Einleitung zum Kriegs-Proceß [Introduction to the Military Tribunal/Court Case]. Waysenhaus, Halle Martinez A (2017) Disciplinary Ordinance for English Armies and Military Change, 1385–1513. History 102(351):361–385 Maurice, Emperor (592) Maurice's Strategikon: Handbook of Byzantine Military Strategy (translated by George T. Dennis (1984)). University of Pensylvania Press, Philadelphia Monumenta Germaniae Historica (1835) Leges [Laws], Volume I. Hahn, Hanover Monumenta Germaniae Historica (1890) Capitularia regum Francorum [Chapters of the Kings of the Franks], Volume II, Part 1. Hahn, Hanover Monumenta Germaniae Historica (1893) Legum Sectio IV Constitutiones et Acta publica Imperatorum et Regum [Section IV of the Laws, Legislation and Public Acts of the Emperors and Kings], Volume I. Hahn, Hanover Monumenta Germaniae Historica (1897) Capitularum Regum Francorum [Chapters of the Kings of the Franks], Volume II, Part 2. Hahn, Hanover Monumenta Germaniae Historica (1979) Diplomata Regum et Imperatorem Germaniae [Charters of the Kings and Emperors of Germany], Volume X, Part 2. Hahnsche Buchhandlung, Paris Ní Dhonnchadha M (2001) Introduction to the Law of Adomnán. In: O’Loughlin T (ed) Adomnán at Birr, AD 697. Four Courts Press, Dublin, pp. 8–20 O’Brien B R (2018) God’s Peace and King’s Peace: The Laws of Edward the Confessor. University of Pennsylvania Press, Philadelphia O’Driscoll C (2015) Rewriting the Just War Tradition: Just War in Classical Greek Political Thought and Practice. International Studies Quarterly 59(1):1–10 Onosander (before 57 AD) Strategikos [The General]. In: Oldfather WA (ed) (1923) Aeneas Tacticus. Asclepiodotus. Onasander. Published with an English translation by members of the Illinois Greek Club. G. P. Putnam’s Sons, New York Parker G (2002) Success is Never Final: Empire, War and Faith in Early Modern Europe. Basic Books, New York Rauenstein [Ravenstein] P (1559) Borgundische Kriegszordnung [Burgundian Ordinances of War]. s.l, s.n. Ricotti E (1844) Storia delle Compagnie de Ventura in Italia [History of the Companies of Ventura in Italy], Volume I. Guiseppe Pomba, Turin Ricotti E (1845) Storia delle Compagnie de Ventura in Italia [History of the Companies of Ventura in Italy], Volume II. Guiseppe Pomba, Turin Roberts A, Guelff R (eds) (2000) Documents on the Laws of War, 3rd edn. Oxford University Press, Oxford Schnerb B (1990) Un thème de recherche: l’exercice de la justice dans les armées des ducs de Bourgogne (fin XIVe-fin XVe siècles) [A research theme: the exercise of justice in the armies of the Duke of Burgundy (from the end of the Fourteenth to the end of the Fifteenth centuries)]. Publication du Centre européen d’études bourguignonnes 30:99–115 Schultze JF (1692) Compendium additionale uber die Churfürstliche Brandenburische Kriegs-Articul [Additional Annex to the Brandenburg Electorate’s Articles of War]. Rupert Völcker, Berlin Sutcliffe M (1593) The Practice, Proceedings and Lawes of Armes. C. Barker, London Tallett F (2006) Barbarism in War Soldiers and Civilians in the British Isles, c. 1641–1652. In: Kassimoris G (ed) Warriors Dishonour: Barbarity, Morality and Torture in Modern Warfare. Ashgate, Aldershot, pp. 19–40 Twiss Sir T (ed) (1871) The Black Book of the Admiralty, Volume I. Longman & Co., London Upton N (1447) De Officio Militari [Of the Military Profession]. In: Bysse Sir E (ed) (1654) Nicholai Vptoni de Studio Militari [Nicholas Upton’s On Military Studies]. Robert Norton, London Della Valle B (1539) Continente lappartinente a Capitanii [This contains what pertains to the Captain]. Vettor.q.Pietro Rauano, Venice

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Von Schwendi L (1593) Kriegsdiscurs, von Bestellung deß ganzen Kriegswesens unnd von den Kriegsämptern [Discourse of war, on how to organise the entire military apparatus and of particular officers‘ duties]. Andree Weichels Erben Claudi de Marne & Johan Aubri, Frankfurt am Main Wohlhaupter E (1933) Studien zur Rechtsgeschichte der Gottes- und Landfrieden in Spanien [Studies on the History of Law: the Peace of God and of the Land in Spain]. Deutschrechtliche Beiträge 14(2). Winter, Heidelberg

Treaties Statute of the International Court of Justice, opened for signature 26 June 1945, USTS 993 (entered into force 24 October 1945)

Chapter 6

Year in Review 2018 Kilian Roithmaier, Monika Tobjasz and Pauline Bove

Contents 6.1 Ongoing Conflicts and Other Developments .................................................................... 6.1.1 Afghanistan ........................................................................................................... 6.1.2 Central African Republic...................................................................................... 6.1.3 Colombia............................................................................................................... 6.1.4 Democratic Republic of the Congo ..................................................................... 6.1.5 Egypt..................................................................................................................... 6.1.6 Iraq ........................................................................................................................ 6.1.7 Israel/Palestine ...................................................................................................... 6.1.8 Libya ..................................................................................................................... 6.1.9 Mali....................................................................................................................... 6.1.10 Myanmar............................................................................................................... 6.1.11 Nigeria .................................................................................................................. 6.1.12 Somalia ................................................................................................................. 6.1.13 South Sudan.......................................................................................................... 6.1.14 Syria ...................................................................................................................... 6.1.15 Ukraine ................................................................................................................. 6.1.16 Yemen................................................................................................................... 6.2 Tribunals and Courts ......................................................................................................... 6.2.1 International Tribunals.......................................................................................... 6.2.2 Hybrid Tribunals ..................................................................................................

166 166 168 170 170 172 173 175 177 178 180 183 184 185 187 193 196 199 199 213

Kilian Roithmaier LL.M. is Junior Researcher at the T.M.C. Asser Instituut and the Editorial Assistant of the Yearbook of International Humanitarian Law 2018 (Vol. 21). Monika Tobjasz LL.M. is a Project Coordinator at Coffey International Development, a former Legal Intern at the Special Tribunal for Lebanon and a former Research Assistant at the T.M.C. Asser Instituut. Pauline Bove LL.M. is a former Research Assistant at the T.M.C. Asser Instituut. K. Roithmaier (&) T.M.C. Asser Instituut, The Hague, The Netherlands e-mail: [email protected] M. Tobjasz Coffey International Development, Warsaw, Poland e-mail: [email protected] P. Bove Leiden, The Netherlands e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2020 T. D. Gill et al. (eds.), Yearbook of International Humanitarian Law 2018, Yearbook of International Humanitarian Law 21, https://doi.org/10.1007/978-94-6265-343-6_6

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6.2.3 National Courts..................................................................................................... 6.3 Arms Control and Disarmament ....................................................................................... 6.3.1 Arms Trade ........................................................................................................... 6.3.2 Conventional Weapons......................................................................................... 6.3.3 Non-Conventional Weapons................................................................................. 6.3.4 Cyber Space and Outer Space.............................................................................. References ..................................................................................................................................

220 241 241 242 245 251 251

Abstract Throughout 2018 a number of noteworthy events with particular relevance to international humanitarian law (IHL) took place. The continuation of the conflict between governmental forces and non-state armed groups in Syria, including sieges, indiscriminate attacks and the use of prohibited, in particular chemical, weapons caused grave concerns. Also the war in Yemen did not come to an end and indiscriminate attacks by both sides of the conflict were witnessed throughout the year. In Israel and Palestine the security situations intensified again and led to clashes between Israeli security forces and Palestinians. Also terrorist activities remained a major concern in 2018, in particular in Afghanistan, Egypt, Iraq, Libya, Mali, Nigeria, Somalia and Syria. A number of decisions were rendered by international, hybrid, and national courts relating to the investigation and prosecution of war crimes, crimes against humanity and genocide. This includes an acquittal of Jean-Pierre Bemba at the International Criminal Court, as well as the conviction of Nuon Chea and Khieu Samphan at the Extraordinary Chambers in the Courts of Cambodia. The year was also marked by several events as well as expert and governmental meetings regarding arms control and disarmament. This chapter addresses a number of issues noteworthy to IHL. The Year in Review is not intended to be a comprehensive summary of all events that occurred in 2018, but rather a sampling of events with particular relevance to IHL.







Keywords International humanitarian law Armed conflict Conflict resolution Geneva Conventions Armed groups Terrorism International criminal law War crimes Crimes against humanity Arms control Conventional weapons Chemical weapons Cluster munition Landmines




6.1 6.1.1



























Ongoing Conflicts and Other Developments Afghanistan

In 2018, the conflict in Afghanistan between the Afghan government, supported by 14 000 troops from the United States (US), against several non-state armed

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groups,1 most notably the Taliban and the Khorasan Province group (IS-K), a branch of the Islamic State (IS), intensified.2 The Taliban is still exercising control over 45 percent of the country’s territory and 35 percent of the Afghan population.3 Casualties in Afghanistan in 2018 continued to be high. The United Nations Assistance Mission in Afghanistan (UNAMA) documented 3 804 civilian deaths and 7 189 injuries throughout the year.4 The death toll, that includes 927 children, is a new high since the beginning of the records.5 All parties to the conflict were responsible for civilian casualties. For example, air operations by the US and the Afghan Air Force resulted in casualties of more than 600 persons.6 The rise of deliberate attacks by several non-state armed groups against civilians throughout 2018 added 1 404 deaths and 2 721 injuries to the record.7 Several notable high-profile attacks took place in 2018: a 14-hour siege on the Intercontinental Hotel in Kabul by members of the Taliban in January resulted in the death of more than 40 civilians.8 A suicide attack inside a mosque, used by the country’s Shia minority in the city of Gardez, killed 48 persons and injured more than 70.9 While the Taliban has denied any link, the IS-K is suspected to be behind the attack.10 In the beginning of July, the US and the Taliban initiated peace negotiations with the aim of ending the 17-year conflict.11 Representatives from both sides met four While divergent designations for non-state armed groups, such as “militants”, “rebels”, “insurgents” or “terrorists”, exist, for the purpose of this chapter, such actors are referred to by the most neutral term “non-state armed group”. Other designations are chosen only if deemed necessary and justified. 2 Council on Foreign Relations 2019a. 3 Al Jazeera (2018) Afghanistan peace conference kicks off in Moscow. https://www.aljazeera. com/news/2018/11/afghanistan-peace-conference-kicks-moscow-181109083021481.html. Accessed 5 March 2019. 4 UNAMA 2019, p. 1. 5 UNAMA (2019) Civilian Deaths from Afghan Conflict in 2018 at Highest Record Level – UN Report. https://unama.unmissions.org/sites/default/files/24_february_2019_-_civilian_deaths_ from_afghan_conflict_in_2018_at_highest_recorded_level_-_un_report_english.pdf. Accessed 5 March 2019. 6 Human Rights Watch 2019a. 7 UNAMA 2019, p. 2. 8 Gossman P (2018) Kabul Hotel Attack a War Crime. https://www.hrw.org/news/2018/01/22/ kabul-hotel-attack-war-crime. Accessed 5 March 2019; Mashal M, Faizi F (2018) Siege at Kabul Hotel Caps a Violent 24 Hours in Afghanistan. https://www.nytimes.com/2018/01/21/world/asia/ afghanistan-hotel-attack.html?ref=todayspaper. Accessed 5 March 2019. 9 UN News (2018) Suicide attack killing dozens at prayer in Afghan mosque ‘may amount to war crimes,’ says top UN official. https://news.un.org/en/story/2018/08/1016352. Accessed 5 March 2019. 10 BBC News (2018) Afghanistan mosque attack: At least 29 Shia worshippers killed in Gardez. https://www.bbc.com/news/world-asia-45059701. Accessed 5 March 2019. 11 Hashim A (2019) US envoy due in Islamabad as Afghan peace talks falter. https://www. aljazeera.com/news/2019/01/envoy-due-islamabad-afghan-peace-talks-falter-190116092730823. html. Accessed 5 March 2019. 1

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times throughout 2018 in Qatar and the United Arab Emirates. There have also been reports that US President Donald Trump is planning on ordering preparations for the withdrawal of US troops from the country.12 In November, the Afghan government announced that it will also enter peace negotiations with the Taliban.13 This move came after members of the Afghan High Peace Council met Taliban officials in Moscow upon an invitation by Russia.14

6.1.2

Central African Republic

Despite the signing of a peace agreement in 2017 between the government and 13 of the 14 active non-state armed groups,15 violence in the Central African Republic (CAR) between the Muslim Séléka and the Christian anti-Balaka coalitions intensified and spread across the country.16 The CAR central government’s control remains at the limits of the capital Bangui and surrounding areas, while around 70 percent of the country is still under the control of non-state armed groups.17 In August, the African Union (AU) supported by the United Nations (UN) held talks with all 14 non-state armed groups. A catalogue of 104 demands was put forward as pre-conditions to enter negotiations for a renewed peace agreement, including demands for a general amnesty, which was refused by the AU.18 The talks have, as of the end of 2018, not yet led to an agreement for peace negotiations.19 Russia and Sudan hosted parallel peace talks between some of the active non-state armed groups but the CAR central government refused to take part in them.20 Both Russia

12

Al Jazeera (2019) Afghan Taliban cancel peace talks with US officials in Qatar. https://www. aljazeera.com/news/2019/01/afghan-taliban-hold-fourth-peace-talks-qatar-190108070441726.html. Accessed 5 March 2019. 13 Qazi S (2018) Afghan president announces team to hold peace talks with Taliban. https://www. aljazeera.com/news/2018/11/afghan-president-announces-team-hold-peace-talks-taliban181128100114901.html. Accessed 5 March 2019. 14 Al Jazeera (2018) Afghanistan peace conference kicks off in Moscow. https://www.aljazeera. com/news/2018/11/afghanistan-peace-conference-kicks-moscow-181109083021481.html. Accessed 5 March 2019. 15 For information on the conclusion of the peace agreement, see Lin et al. 2019, p. 259. 16 Zanoletti 2018. 17 Human Rights Watch 2019b. 18 Kelly F (2018) Rival Central African Republic militias agree demands in ‘positive’ African Union meeting. https://thedefensepost.com/2018/08/31/central-african-republic-militias-agreedemands-african-union/. Accessed 6 March 2019. 19 Kelly F (2019) African Union and UN relaunch Central African Republic peace talks. https:// thedefensepost.com/2019/01/08/african-union-united-nations-relaunch-central-african-republicpeace-talks/. Accessed 6 March 2019. 20 Ibid.

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and France have been granted permission to deliver weapons and personnel to the CAR central government armed forces in 2018 by the UN Security Council’s CAR sanctions committee.21 The United Nations Multidimensional Integrated Stabilization Mission in the Central African Republic (MINUSCA), the UN’s peacekeeping mission in the CAR, continued its efforts throughout 2018, employing a total of 14 000 persons.22 Also in 2018 UN peacekeepers were targeted. For example, during an attack on MINUSCA by the anti-Balaka coalition in August one UN peacekeeper got killed.23 The total number of MINUSCA personnel killed in the CAR since 2014 has risen to 80.24 While human rights violations, including gender-based violence, child soldier recruitment and attacks on civilians, continued throughout 2018, impunity remained a concern. There is hope that the Special Criminal Court,25 which began its work in October, can assist in working towards a culture of accountability.26 The conflict has worsened the humanitarian crisis in the CAR. Out of 4.6 million inhabitants, 2.5 million people, including 1.5 million children,27 were in need of humanitarian assistance.28 The conflict has, until the end of 2018, produced more than 688 000 internally displaced people and 573 000 refugees in bordering countries.29 Despite the desperate need for humanitarian assistance, until mid-August, 294 aid workers have been attacked, making the CAR the third most dangerous country for aid workers.30

21 Reuters (2018) France gives weapons to Central Africa, favors end to embargo. https://www. reuters.com/article/us-france-centralafrica/france-gives-weapons-to-central-africa-favors-end-toembargo-idUSKBN1OA1ZH. Accessed 6 March 2019; Reuters (2018) Russia to send more military trainers, equipment to Central African Republic. https://www.reuters.com/article/usafrica-russia/russia-to-send-more-military-trainers-equipment-to-central-african-republicidUSKCN1MT28D. Accessed 6 March 2019. 22 MINUSCA (2019) Facts and Figures. https://minusca.unmissions.org/en/facts-and-figures. Accessed 6 March 2019. 23 MINUSCA (2019) Statement Attributable to the Spokesman for the Secretary-General on the Killing of a UN Peacekeeper in the Central African Republic. https://minusca.unmissions.org/en/ statement-attributable-spokesman-secretary-general-killing-un-peacekeeper-central-africanrepublic-0. Accessed 6 March 2019. 24 UN Peacekeeping 2019a. 25 For details on the work of the Special Criminal Court in 2018, see also below, Sect. 6.2.2.4. 26 Human Rights Watch 2019b. 27 UNICEF 2018a, p. 5. 28 Human Rights Watch 2019b. 29 UNICEF 2018a, p. 5; UN News (2018) Restoring government control across Central African Republic is ‘key’ to lasting peace, stability—UN envoy. https://news.un.org/en/story/2018/06/ 1012752. Accessed 6 March 2019. 30 UNICEF 2018a, p. 5; UN News (2018) Armed groups threaten every child in Central African Republic, UNICEF warns. https://news.un.org/en/story/2018/11/1027051. Accessed 6 March 2019; CARE 2018, p. 2.

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Colombia

While the peace agreement between the Revolutionary Armed Forces of Colombia (FARC) and the Colombian government is widely respected,31 fights with other non-state armed groups continued.32 In particular the National Liberation Army (ELN) returned to active fighting after a ceasefire agreement with the government expired on 9 January.33 While the UN called upon the conflict parties to return to peace talks,34 the government suspended efforts to reach an agreement in April.35 Also the Gaitanista Self-Defence Forces of Colombia (AGC) and the Oliver Sinisterra Front, consisting of FARC dissidents, remain active and armed.36 As a result, clashes between the AGC and dissident AGC fighters in 2018 led to the displacement of more than 2 000 people.37

6.1.4

Democratic Republic of the Congo

The security situation in the Democratic Republic of the Congo (DRC) worsened in 2018, in particular in the regions of Ituri, Kasai and Kivu, as the fighting between the Congolese government and a variety of non-state armed groups, in particular the Allied Democratic Forces (ADF), continued. All parties to the conflict are being accused of war crimes and human rights violations.38 The ADF continued to regularly attack civilians, including health workers employed to tackle the Ebola epidemic,39 and positions of the United Nations Organization Stabilization Mission in the Democratic Republic of the

31

It is estimated that 1 400 former members of FARC are organized in dissident non-state armed groups. See Human Rights Watch 2019c. 32 Ibid. 33 Asmann P (2018) Wave of Violence Strikes Colombia After ELN Ceasefire Ends. https://www. insightcrime.org/news/brief/wave-violence-strikes-colombia-after-eln-ceasefire/. Accessed 12 March 2019. 34 United Nations (2018) Security Council Press Statement on Colombia. https://www.un.org/ press/en/2018/sc13160.doc.htm. Accessed 12 March 2019. 35 InSight Crime (2018) ELN. https://www.insightcrime.org/colombia-organized-crime-news/elnprofile/. Accessed 12 March 2019. 36 Human Rights Watch 2019c; Colombia Reports (2018) Gaitanista Self-Defense Forces of Colombia (AGC)/Gulf Clan. https://profiles.colombiareports.com/agc-gulf-clan/. Accessed 12 March 2019. 37 Human Rights Watch 2019c. 38 OHCHR (2018) DRC: UN reports hundreds of human rights violations as security situation in North Kivu deteriorates. https://ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID= 24030&LangID=E. Accessed 5 April 2019. 39 UN News (2018) Ebola in DR Congo: UN chief ‘outraged’ by recent killings of civilians and health workers. https://news.un.org/en/story/2018/10/1023792. Accessed 5 April 2019.

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Congo (MONUSCO) in 2018.40 Several armed groups were accused of recruiting child soldiers, sexual violence and indiscriminate attacks.41 Government forces are, among others, accused of extrajudicial killings and arbitrary detention, forcefully repressing civil protests and voters.42 As a response to the ongoing attacks by the ADF, in November, the Congolese armed forces and MONUSCO launched offensive operations against the group, during which seven UN peacekeepers and several members of the Congolese armed forces were killed.43 The former Vice President Jean-Pierre Bemba was nominated for the 2018 Presidential elections.44 The move came only five weeks after the Appeals Chamber of the International Criminal Court (ICC) acquitted him of war crimes and crimes against humanity,45 but the nomination was later set aside by the country’s electoral commission.46 The country witnessed intense pre-election violence by both sides of the conflict. Non-state armed groups attacked several civilian targets and destroyed thousands of voting machines, while government forces allegedly fired ammunition into opposition rallies.47 The conflict has, by the end of 2018, resulted in 4.5 million internally displaced people and roughly 815 000 refugees.48 The outbreak of Ebola in the North Kivu

40

MONUSCO (2018) MONUSCO repels deadly attack by suspected ADF in Mamundioma; reinforcements deployed to secure the location. https://monusco.unmissions.org/en/monuscorepels-deadly-attack-suspected-adf-mamundioma-reinforcements-deployed-secure-location. Accessed 5 April 2019. 41 Marcucci 2019, p. 6; UN News (2018) Despite unrest, DR Congo must press ahead with preparations for credible elections, says UN envoy. https://news.un.org/en/story/2018/03/1004482. Accessed 5 April 2019. 42 Marcucci 2019, p. 6; Human Rights Watch 2019d; Reuters (2018) All sides committed war crimes in Congo’s Kasai region: U.N. https://www.reuters.com/article/us-congo-violence-un/allsides-committed-war-crimes-in-congos-kasai-region-u-n-idUSKBN1JM19K. Accessed 5 April 2019. 43 MONUSCO (2018) FARDC and MONUSCO launch joint operations against ADF. https:// monusco.unmissions.org/en/fardc-and-monusco-launch-joint-operations-against-adf. Accessed 5 April 2019. 44 Clowes W (2018) Congo’s Jean-Pierre Bemba Nominated as Presidential Candidate. https:// www.bloomberg.com/news/articles/2018-07-14/congo-s-jean-pierre-bemba-nominated-aspresidential-candidate. Accessed 5 April 2019. 45 See below, Sect. 6.2.1.1, Cases in the Appeal Phase, Central African Republic. 46 Mwanamilongo S (2018) https://www.foxnews.com/world/congo-says-former-vp-bembacannot-run-for-president. Accessed 5 April 2019. 47 UN News (2018) DR Congo elections: ‘historic opportunity’ for ‘peaceful transfer of power’ says Security Council. https://news.un.org/en/story/2018/12/1028991. Accessed 5 April 2019; UN News (2018) DR Congo elections: ‘Excessive use of force’ in campaign must be avoided, says Bachelet. https://news.un.org/en/story/2018/12/1028561. Accessed 5 April 2019. 48 UNHCR (2018) Democratic Republic of the Congo. https://www.unhcr.org/en-us/democraticrepublic-of-the-congo.html. Accessed 5 April 2019; UNHCR (2019) Refugees and asylum seekers from DRC. https://data2.unhcr.org/en/situations/drc. Accessed 5 April 2019.

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and Ituri region additionally worsened the humanitarian situation in the country. By the end of 2018, 608 cases of Ebola, resulting in 368 deaths, have been reported.49

6.1.5

Egypt

The Egyptian government continued its fight against the IS affiliate Governance of Sinai (GoS) throughout 2018. In February, Egypt’s President, Abdel Fattah al-Sisi,50 ordered a large-scale military campaign, “Comprehensive-Operation Sinai 2018”, in large parts of Sinai, parts of the Nile delta and the western desert to defeat the group.51 In October, a military spokesperson announced that more than 450 suspected militants had been killed, 1 200 explosives had been dismantled and 1 900 vehicles had been destroyed during the operations, but members of the Egyptian armed forces have also been killed.52 Despite the military operations against GoS, the group managed to engage in attacks, mainly against police and Egyptian armed forces.53 In its fight against GoS, the Egyptian military is accused of widespread destruction of homes, commercial buildings, and farms in North Sinai, and the displacement of thousands of individuals.54 Coupled with strict restrictions on the movement of people and goods, this has severely worsened the humanitarian

49

WHO 2019. Abdel Fattah al-Sisi was re-elected in March, following the arrest, prosecution and intimidation of a number of critics and opponents. See ABC News (2018) Egypt’s President Abdel Fattah al-Sisi sworn in for second term amid crackdown on critics. https://www.abc.net.au/news/2018-0603/egypt-president-abdel-fattah-al-sisi-sworn-in-for-second-term/9828824. Accessed 1 May 2019. 51 Egyptian State Information Service (2018) Communiqué number 2. Army: Operation Sinai 2018 continues to end terrorism. http://www.sis.gov.eg/Story/124495?lang=en-us. Accessed 1 May 2019; Dentice G 2018. The campaign involved Egypt’s armed forces, navy, air force, border patrol and police. See Burke J (2018) Egypt launches massive operation targeting Islamic militants in Sinai. https://www.theguardian.com/world/2018/feb/09/egyptian-military-offensive-targetsislamic-militants-sinai. Accessed 1 May 2019. See also Al Jazeera (2018) Egypt launches military operation in Sinai, Nile Delta. https://www.aljazeera.com/news/2018/02/egypt-launchesmilitary-operation-sinai-nile-delta-180209064926285.html. Accessed 1 May 2019. 52 AP (2018) Egypt: Military has killed 450 militants since February. https://www.apnews.com/ 968f61adc4aa4df99f65ddeebc1234b0. Accessed 1 May 2019; Reuters (2018) Egypt says 3 soldiers killed in campaign against militants. https://af.reuters.com/article/topNews/ idAFKCN1G30RR-OZATP. Accessed 1 May 2019. 53 See, e.g., AFP News (2018) Egyptian troops hit by deadly jihadist attack in Sinai: army. https:// www.news24.com/Africa/News/egyptian-troops-hit-by-deadly-jihadist-attack-in-sinai-army20190217. Accessed 1 May 2019; Reuters (2018) Islamic State claims responsibility for Egypt’s Sinai attack. https://www.reuters.com/article/us-egypt-security/islamic-state-claims-responsibilityfor-egypts-sinai-attack-idUSKCN1LB09O. Accessed 1 May 2019. 54 Human Rights Watch 2018a; Al Jazeera (2018) Egypt army intensifies Sinai home demolitions: HRW. https://www.aljazeera.com/news/2018/05/egypt-army-intensifies-sinai-home-demolitionshwr-180522105706738.html. Accessed 1 May 2019. 50

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situation in North Sinai.55 Suspected militants were repeatedly sentenced to death, some in absentia.56 In August, President Abdel Fattah al-Sisi signed a new law that would increase government control of the internet in the country, including a prohibition of the spreading of information on movements of security forces.57 In October, the Egyptian parliament voted to prolong the state of emergency in the country, in force since April 2017, for another three months.58

6.1.6

Iraq

After the liberation of Mosul and the almost complete territorial defeat of IS in 2017,59 violence in Iraq significantly decreased in 2018.60 Nonetheless, civilian casualties were to be deplored, amounting to 939 killed and 1 673 injured.61 Throughout 2018, the international coalition continued its operations against the last strongholds of IS.62 In April, the US disbanded the command overseeing American troops in Iraq because of the military defeat of IS in the country, but more than 5 000 troops remain in the country providing training and advice.63 The US

55 Human Rights Watch (2018) Egypt: Looming Humanitarian Crisis in Sinai. https://www.hrw. org/news/2018/04/23/egypt-looming-humanitarian-crisis-sinai. Accessed 1 May 2019. 56 Reuters (2018) Egypt sentences 21 to death for planning attacks. https://www.reuters.com/ article/us-egypt-court/egypt-sentences-21-to-death-for-planning-attacks-idUSKCN1G61PT? feedType=RSS&feedName=worldNews. Accessed 1 May 2019. 57 Feingold S (2018) Egypt’s President Sisi ratifies new internet control law. https://edition.cnn. com/2018/08/19/middleeast/egypt-sisi-internet-cyber-law-terrorism/index.html. Accessed 1 May 2019. 58 Reuters (2018) Egypt extends state of emergency for three months. https://www.reuters.com/ article/us-egypt-security-emergency/egypt-extends-state-of-emergency-for-three-monthsidUSKCN1MV0MI. Accessed 1 May 2019. 59 See Lin et al. 2019, pp. 265 f. 60 European Asylum Support Office 2018, p. 18. Iraqi Thoughts (2018) DA’ISH goes underground (literally) in Iraq as Peace persists. http://1001iraqithoughts.com/2018/06/04/daish-goesunderground-literally-in-iraq-as-peace-persists/. Accessed 11 April 2019. 61 UNAMI (2019) UN Casualty Figures for Iraq for the Month of December 2018. http://www. uniraq.org/index.php?option=com_k2&view=item&id=10269:un-casualty-figures-for-iraq-forthe-month-of-december-2018&Itemid=633&lang=en. Accessed 11 April 2019. 62 Human Rights Watch 2019e. 63 El-Ghobashy T, Sonne P (2018) U.S. disbands command overseeing American ground forces in Iraq, as major combat against ISIS ends. https://www.washingtonpost.com/world/middle_east/ us-shuts-down-ground-forces-office-in-iraq-as-combat-against-islamic-state-ends/2018/04/30/ 2c7b3fcc-4c61-11e8-af46-b1d6dc0d9bfe_story.html?utm_term=.7cd575c7a191. Accessed 6 May 2019.

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also continued to support its regional partners in strikes against IS.64 Turkey intensified its fight against the Kurdistan Workers’ Party (PKK) within Iraq.65 Kurdish outposts have allegedly also been hit by Iranian forces.66 Despite its wide military defeat, IS continued to engage in indiscriminative attacks. Before the parliamentary elections, it claimed responsibility for the assassination of a parliamentary candidate.67 IS also carried out suicide bombings.68 In August, a UN report suggested that an estimated 20 000 to 30 000 IS fighters remain in Iraq and Syria.69 The United Nations Investigative Team to Promote Accountability for Crimes Committed by Da’esh/Islamic State in Iraq and the Levant (UNITAD), which was established by UN Security Council Resolution 2379 to collect and preserve evidence of war crimes, crimes against humanity and genocide committed by IS,70 began its work in August.71 In its first report, it concluded that “while meaningful preparatory steps have been taken, [UNITAD] remains cognizant of the numerous challenges intrinsic to its mandate.”72 It is anticipated that the Investigative Team commences its investigations in the first quarter of 2019.73

64

US Central Command (2018) July 9: Operation Roundup targets Daesh remnants. https://www. centcom.mil/MEDIA/PRESS-RELEASES/Press-Release-View/Article/1569329/july-9-operationroundup-targets-daesh-remnants/. Accessed 6 May 2019. 65 Human Rights Watch 2019e. 66 Al Jazeera (2018) Rockets hit Iranian Kurdish opposition offices in Iraq’s Koya. https://www. aljazeera.com/news/2018/09/rockets-hit-iranian-kurdish-opposition-offices-iraq-koya180908090605503.html. Accessed 11 April 2019. 67 Middle East Eye (2018) Iraqi political candidate assassinated near Mosul, IS claims responsibility. https://www.middleeasteye.net/news/iraqi-political-candidate-assassinated-near-mosulclaims-responsibility. Accessed 6 May 2019. 68 See, e.g., Abdul-Zahra Q (2018) Car bomb claimed by Islamic State kills 7 in western Iraq. https://www.wpxi.com/news/iraq-official-suicide-bomber-kills-6-at-checkpoint-in-anbar/ 822849180. Accessed 6 May 2019; Al Jazeera (2018) Iraq: Deadly car bomb hits market near Mosul. https://www.aljazeera.com/news/2018/10/iraq-car-bomb-blast-kills-wounds-15-mosul181023080243163.html. Accessed 6 May 2019. 69 BBC News (2018) IS conflict: Up to 30,000 fighters in Syria and Iraq - UN. https://www.bbc. com/news/world-middle-east-45181501. Accessed May 2019. 70 UN Security Council (2017) Resolution 2379 (2017), UN Doc. S/RES/2379. 71 Nichols M (2018) U.N. Team, Approved a Year Ago, Starts Work on Islamic State Crimes in Iraq. https://www.usnews.com/news/world/articles/2018-08-23/un-team-approved-a-year-agostarts-work-on-is-crimes-in-iraq. Accessed 11 April 2019. 72 UN Security Council (2018) Letter dated 15 November 2018 from the Special Adviser and Head of the United Nations Investigative Team to Promote Accountability for Crimes Committed by Da’esh/Islamic State in Iraq and the Levant addressed to the President of the Security Council, UN Doc. S/2018/1031, Summary. 73 Ibid., para 118.

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Up to the end of 2018, more than 200 mass graves, containing the bodies of around 12 000 victims of IS, have been discovered in Iraq.74 The Iraqi judiciary is accused of widespread violations of human rights, including the massive imposition of the death penalty in their efforts of bringing former IS members to justice.75 In May, Iraq held parliamentary elections, which were won by a Shiite coalition, and in October Barham Salih was elected the country’s President.76 The parliamentary elections resulted in violent protests and forceful, deadly responses by security forces.77 By the end of 2018, two million Iraqis remain internally displaced.78 In July, the international coalition against IS, led by the US, acknowledged that 1 059 civilians have died in the military operations against IS in Iraq and Syria since their initiation.79

6.1.7

Israel/Palestine

Following the US recognition of Jerusalem as the capital of Israel at the end of 2017,80 the US opened its new embassy in Jerusalem on 14 May, the 70th anniversary of Israel’s declaration of independence.81 Subsequently, the conflict in Israel/Palestine aggravated. In spring, Palestinians in the Gaza Strip conducted weekly demonstrations.82 The end of May witnessed what is described as the

74

The Telegraph (2018) More than 200 mass graves found in Iraq as authorities gather evidence of Isil war crimes. https://www.telegraph.co.uk/news/2018/11/06/200-mass-graves-found-iraqauthorities-gather-evidence-isil/?fbclid=IwAR3wr_DjMdmwXKVimUZXs3D_HW8SwRlIl9jJyA ujoZcVqzhW4XYEgZrQ9M8. Accessed 11 April 2019. 75 Human Rights Watch 2018b; Al Jazeera (2018) Iraq executes 12 ISIL members on death row: PM’s office. https://www.aljazeera.com/news/2018/06/iraq-executes-12-isil-members-death-rowpm-office-180629075413083.html. Accessed 6 May 2018. 76 Council on Foreign Relations 2019b. 77 Alaaldin R (2018) Iraq’s Next War. https://www.foreignaffairs.com/articles/middle-east/201809-13/iraqs-next-war. Accessed 11 April 2019. 78 OCHA 2018; OCHA 2019, p. 5. 79 Hussein R (2018) Coalition Admits 1K-plus Civilian Deaths From Airstrikes in Iraq, Syria. https://www.voanews.com/a/us-led-coalition-admits-more-than-1-000-civilian-deaths-from-itsairstrikes-in-iraq-syria-/4501565.html. Accessed 6 May 2019. 80 See Lin et al. 2019, pp. 26 f. 81 Reuters (2018) In Photos // The Israeli-Palestinian Conflict Through the Lens in 2018. https:// www.haaretz.com/israel-news/year-end/MAGAZINE-the-israeli-palestinian-conflict-through-thelens-in-2018-1.6748985. Accessed 15 April 2019. 82 Council on Foreign Relations 2019c.

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“largest flame-up since the 2014 war”, with rockets from Gaza attacking targets in Israel and vice versa, later ceased by a peace deal between Israel and Hamas.83 Israeli forces used lethal force, including sniper-fire, against Palestinian protestors, resulting in 189 deaths and 5 800 injuries.84 Armed groups in Palestine fired 1 138 rockets into Israel in an indiscriminate manner, killing one person and leaving at least 40 injured.85 ICC Prosecutor Fatou Bensouda announced in April that she will closely monitor the situation and would “take any action warranted” to prosecute possible crimes.86 On 18 May, the UN Human Rights Council decided to “dispatch an independent, international commission of inquiry […] to investigate all alleged violations and abuses of international humanitarian law and international human rights law […] in the context of the military assaults on the large-scale civilian protests that began on 30 March 2018”.87 Initially led by David Crane, a former US official, the commission is tasked to deliver its report in March 2019.88 In November, following an Israeli undercover operation in Gaza, violence erupted again.89 Rockets were fired into the Gaza Strip and Israel respectively. A total of 160 Israeli strikes and 460 Palestine rockets left seven people dead and 26 wounded in the Gaza Strip, and one person dead and 18 wounded in Israel.90 Two

83

Al Jazeera (2018) Hamas-Israel ceasefire holds after night of violence. https://www.aljazeera. com/news/2018/05/hamas-agrees-gaza-ceasefire-israel-reciprocates-180530053108954.html. Accessed 15 April 2019. 84 BBC News (2018) Gaza begins to bury its dead after deadliest day in years. https://www.bbc. com/news/world-middle-east-44116340. Accessed 15 April 2019; Human Rights Watch 2019f. 85 Human Rights Watch 2019f. 86 ICC (2018) Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, regarding the worsening situation in Gaza. https://www.icc-cpi.int/Pages/item.aspx?name= 180408-otp-stat. Accessed 15 April 2019; i24NEWS/AFP (2018) ICC prosecutor vows to ‘take any action warranted’ over Gaza unrest. https://www.i24news.tv/en/news/international/174776180515-icc-prosecutor-vows-to-take-any-action-warranted-over-gaza-unrest. Accessed 15 April 2019. 87 UN General Assembly (2018) Report of the Human Rights Council on its twenty-eighth special session, UN Doc. A/HRC/S-28/2, para 5. 88 UN Human Rights Council (2019) The United Nations Commission of Inquiry on the 2018 protests in the Occupied Palestinian Territory. https://www.ohchr.org/En/HRBodies/HRC/ CoIOPT/Pages/OPT.aspx. Accessed 15 April 2019; Reuters (2018) U.N. picks American to lead investigation into Gaza protest killings. https://www.reuters.com/article/us-israel-palestinansun/u-n-picks-american-to-lead-investigation-into-gaza-protest-killings-idUSKBN1KF244. Accessed 15 April 2019. 89 BBC News (2018) Israel-Gaza violence erupts after covert op killings. https://www.bbc.com/ news/world-middle-east-46185653. Accessed 15 April 2019. 90 Zitun Y, Levy E (2018) IDF attacks at least 160 targets in Gaza. https://www.ynetnews.com/ articles/0,7340,L-5399809,00.html. Accessed 15 April 2019; Kershner I, Halbfinger DM (2018) A Battle in Gaza Neither Side Wanted Ends Quickly. https://www.nytimes.com/2018/11/13/world/ middleeast/gaza-israel-palestinians-battle.html. Accessed 15 April 2019.

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days after the outbreak of the violence, a ceasefire agreement was reached between Israel and Hamas.91

6.1.8

Libya

In 2018, clashes for control over Libya between the internationally recognised Government of National Accord (GNA) and the Libyan National Army (LNA) as well as several, mainly Islamist non-state armed groups continued. The fighting particularly concentrated on oil installations in the country that constitute the most important economic assets.92 The conflict over control of the capital Tripoli that started in April worsened in August.93 After three days of intense hostilities, a ceasefire agreement was reached under the auspices of the United Nations Support Mission in Libya (UNSMIL),94 but only a week later, a state of emergency was declared by the GNA after violent outbreaks.95 The hostilities over Tripoli resulted in at least 115 deaths.96 Under the auspices of the French President Emmanuel Macron, the two rival governments agreed to hold elections in December.97 However, the election day was later postponed to 2019.98

91

Al-Mughrabi N, Heller J (2018) Gaza-Israel Frontier Calms as Enemies Warily Cease Fire. https://www.usnews.com/news/world/articles/2018-11-13/israel-gaza-border-ignites-in-most-serio us-fighting-since-2014-war. Accessed 15 April 2019; Yaniv Kubovich, Landau N, Khoury J, Zikri AB (2018) Live Updates Gaza // Cease-fire: Israel, Hamas Agree to Return to 2014 Deal, Source Tells Haaretz. https://www.haaretz.com/israel-news/gaza-on-the-brink-security-cabinet-toconvene-as-israeli-army-strikes-hamas-targets-1.6651674. Accessed 15 April 2019. 92 Human Rights Watch 2019g; International Crisis Group 2018. 93 Al Jazeera (2018) Libya: Armed groups vie for control in deadly Tripoli clashes. https://www. aljazeera.com/news/2018/08/libya-deadly-clashes-erupt-tripoli-180827102927474.html. Accessed 6 May 2019. 94 UN News (2018) Ceasefire agreement reached in Libyan capital, announces UN mission. https://news.un.org/en/story/2018/09/1018312. Accessed 15 April 2019. 95 Al Jazeera (2018) Death toll in Libya’s Tripoli rises as fighting rages on. https://www.aljazeera. com/news/2018/09/death-toll-libya-tripoli-rises-fighting-rages-180904101134305.html. Accessed 15 April 2019. 96 Elumami A (2018) Tripoli clashes leave 115 dead, 383 injured-health ministry. https://www. reuters.com/article/us-libya-security/tripoli-clashes-leave-115-dead-383-injured-health-ministryidUSKCN1M30PO. Accessed 6 May 2019. 97 Rubin AJ (2018) Libyan Factions Agree to Elections Despite Deep Divisions. https://www. nytimes.com/2018/05/29/world/middleeast/libya-macron-factions-elections.html. Accessed 15 April 2019. 98 Al Jazeera (2018) Libya election to take place in early 2019: UN envoy. https://www.aljazeera. com/news/2018/11/libya-election-place-early-2019-envoy-181109073902372.html. Accessed 15 April 2019.

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In June, the UN Security Council extended the arms embargo for Libya, in force since 2011, for another 12 months.99 More than 193 000 persons remain internally displaced.100 Throughout the year, terrorist groups were active in Libya. IS, which has appeared in Libya in early 2015, lost the control over its last territory in June to LNA forces.101 Nonetheless, IS remained present in the country and carried out several terrorist attacks.102 Most notably, in December it claimed responsibility for an attack on the Libyan Ministry of Foreign Affairs that killed at least three people.103 In the southern part of the country, Al-Qaeda forces were present. In March, they were, for the first time, targeted by the US.104

6.1.9

Mali

While the Algiers Peace Accord was concluded in 2015,105 several non-state armed groups continued to undermine the agreement with their involvement in organized crime and terrorism.106 The security situation in Mali worsened in 2018 because of the increased power of Islamist non-state armed groups and intercommunal conflicts.107 The Group for Support of Islam and Muslims (JNIM), a local Al-Qaeda affiliate proclaimed in 2017, engaged in attacks against armed forces, G5 Sahel and United Nations Multidimensional Integrated Stabilization Mission in Mali 99

UN Security Council (2018) Resolution 2420 (2018), UN Doc. S/RES/2420, para 1. UNHCR 2018a; Human Rights Watch 2019g. 101 Council on Foreign Relations 2019d; Al-Warfalli A (2018) Haftar’s forces say they have captured Libyan city of Derna. https://www.reuters.com/article/us-libya-security-derna/haftarsforces-say-they-have-captured-libyan-city-of-derna-idUSKBN1JO339. Accessed 15 April 2019. 102 See, e.g., Reuters (2018) Islamic State says it killed six members of east Libyan LNA force near Sabha. https://www.reuters.com/article/us-libya-security-islamic-state/islamic-state-says-itkilled-six-members-of-east-libyan-lna-force-near-sabha-idUSKCN1RN2LZ. Accessed 15 April 2019. 103 AP (2018) Islamic State claims attack on Libya’s Foreign Ministry. https://www.apnews.com/ 0fd1e0564f0d4862b1037eec15dc5c10. Accessed 15 April 2019. 104 Walsh D, Schmitt E (2018) U.S. Strikes Qaeda Target in Southern Libya, Expanding Shadow War There. https://www.nytimes.com/2018/03/25/world/middleeast/us-bombs-qaeda-libya.html. Accessed 6 May 2019. 105 For the conclusion of the Algiers Peace Accord, see Boutin et al. 2016, p. 233. See further Nyirabikali 2015. 106 UN Security Council (2018) Letter dated 8 August 2018 from the Panel of Experts established pursuant to resolution 2374 (2017) on Mali addressed to the President of the Security Council, UN Doc. S/2018/581; McVeigh K (2018) Mali peace deal jeopardised by armed groups linked to terrorism, UN warns. https://www.theguardian.com/global-development/2018/sep/05/mali-peacedeal-jeopardised-armed-groups-terrorism-un-security-council-warns. Accessed 16 April 2019. 107 OHCHR (2018) Press briefing notes on Nicaragua, Mali and Kashmir. https://www.ohchr.org/ EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=23383&LangID=E. Accessed 16 April 2019; Amoroso 2019, p. 115. 100

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(MINUSMA)108 personnel as well as in indiscriminate attacks against civilians, such as an attack on a luxury resort just outside the capital Bamako that left four guests and one member of the armed forces dead.109 In June, it conducted a suicide attack on the G5 Sahel headquarter, leaving a minimum of six people dead.110 The local IS branch, the Islamic State in the Greater Sahara (ISGS), active since May 2015, claimed responsibility for ten attacks in 2018, leaving at least 19 civilians, including two children, and members of the armed forces dead.111 Intercommunal conflicts led to a high number of indiscriminate attacks.112 Under the claim of acting in self-defence against Islamist groups and their supporters, ethnic violence against predominantly Muslim communities killed at least 300 civilians in more than 100 attacks.113 The recruitment and detention of child soldiers by state and non-state forces continued to be a problem.114 The Malian armed forces have been accused of violations of international humanitarian law (IHL) and human rights. For example, MINUSMA concluded that Malian troops from the G5 Sahel executed twelve civilians at a market.115 MINUSMA’s mandate was extended for another year in June.116 By the end of 2018, MINUSMA was the peacekeeping mission with the most fatalities, 191, worldwide.117 In August, Mali held elections for the country’s presidency. President Ibrahim Boubacar Keita was re-elected for his second term by a vast majority. While the opposition suspected manipulation, international observers found no evidence of

See, e.g., UN News (2018) Mali: Two peacekeepers dead after dawn attack, several injured – UN Mission. https://news.un.org/en/story/2018/10/1024312. Accessed 16 April 2019. 109 UN Security Council (2018) Report of the Secretary-General on the situation in Mali, UN Doc. S/2018/273, paras 35 ff.; Sangare I, Diarra A (2018) Al Qaeda-linked group claims deadly attack at Mali resort. https://www.reuters.com/article/us-mali-security-idUSKBN1990TY. Accessed 16 April 2019. 110 Reuters (2018) Islamist militants attack African military base in Mali, at least six dead. https:// www.reuters.com/article/us-mali-violence/islamist-militants-attack-base-of-african-military-forcein-mali-idUSKBN1JP23F. Accessed 16 April 2019; Congressional Research Service 2018, p. 2. 111 Menastream (2019) Attacks Claimed by the Islamic State in the Greater Sahara (ISGS). http:// menastream.com/attacks-islamic-state-greater-sahara/. Accessed 16 April 2019. 112 OHCHR (2018) Press briefing notes on Nicaragua, Mali and Kashmir. https://www.ohchr.org/ EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=23383&LangID=E. Accessed 16 April 2019. 113 Human Rights Watch 2019h; Reuters (2018) Fifteen civilians killed in ethnic attack on Mali village. https://www.reuters.com/article/us-mali-security/fifteen-civilians-killed-in-ethnic-attackon-mali-village-idUSKBN1O70MJ. Accessed 16 April 2019. 114 Human Rights Watch 2019h. 115 Reuters (2018) U.N. says Malian forces executed 12 civilians at a market. https://uk.reuters. com/article/uk-mali-security-un/u-n-says-malian-forces-executed-12-civilians-at-a-market-idUKK BN1JM2LA. Accessed 16 April 2019. 116 UN Security Council (2018) Resolution 2423 (2018), UN Doc. S/RES/2423, para 24. 117 UN Peacekeeping 2019b; UN News (2018) ‘They are always in our hearts’ says Guterres, leading remembrance of UN peacekeepers who made the ultimate sacrifice. https://news.un.org/en/ story/2018/06/1011201. Accessed 16 April 2019. 108

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election fraud.118 Islamist non-state armed groups attempted to impede the election, which resulted in the closure of 500 polling stations on election day and the killing of one election official.119

6.1.10 Myanmar The Rohingya crisis in Myanmar continued throughout 2018. 14 5000 Rohingya fled to Bangladesh in 2018, amounting to a total of 730 000 Rohingya refugees since the beginning of the crisis in the second half of 2017.120 In August, the UN Human Rights Council’s Independent International Fact-Finding Mission on Myanmar121 published its report.122 It found consistent patterns of serious human rights violations and abuses in Kachin, Rakhine and Shan States, in addition to serious violations of [IHL]. These are principally committed by the Myanmar security forces, particularly the military. Their operations are based on policies, tactics and conduct that consistently fail to respect international law, including by deliberately targeting civilians. Many violations amount to the gravest crimes under international law.123

Given the widespread impunity of members of the Myanmar armed forces, the report also called on the UN Security Council to refer certain named senior generals to the ICC or another international tribunal for genocide, crimes against humanity and war crimes.124 This was the first time a UN body explicitly acknowledged the inference of a “genocidal intent” by Myanmar officials.125 The Myanmar government was very quick in rejecting the findings of the report, stating that Myanmar did not allow the Fact-Finding Mission into Myanmar and that Myanmar will not “agree and accept any resolutions made by the Human Rights Council” but rather rely on its own Commission of Inquiry.126 Following these revelations, the UN Human Rights Council in September decided to set up an “independent mechanism 118 Kontao F, Diallo T (2018) Mali president Keita wins landslide election; faces uphill struggle. https://www.reuters.com/article/us-mali-election-idUSKBN1L10ZK. Accessed 16 April 2019. 119 Ibid. 120 Human Rights Watch 2019i; Lin et al. 2019, pp. 269 ff. 121 For its creation, see Lin et al. 2019, p. 271. 122 UN General Assembly (2018) Human Rights Council: Report of the detailed findings of the Independent International Fact-Finding Mission on Myanmar, UN Doc. A/HRC/39/CRP.2. 123 Ibid., p. 1, Summary. 124 Ibid., paras 1620 ff., 1651 ff. 125 Ibid., para 1441; Al Jazeera (2018) UN documents ‘shocking crimes’ by Myanmar army. https://www.aljazeera.com/news/2018/08/report-calls-genocide-charges-myanmar-officials-18082 7062244502.html. Accessed 7 April 2019. 126 Al Jazeera (2018) Myanmar rejects UN findings in Rohingya genocide report. https://www. aljazeera.com/news/2018/08/myanmar-rejects-findings-rohingya-genocide-report-1808290702118 06.html. Accessed 17 April 2019.

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to collect, consolidate, preserve and analyse evidence of the most serious international crimes and violations of international law committed in Myanmar since 2011 […] to facilitate and expedite fair and independent criminal proceedings”.127 Again, this decision was criticised sharply by the Myanmar government.128 A 2018 report by Amnesty International concluded that the Myanmar armed forces committed crimes against humanity against the Rohingya, including murder, rape, torture, burning, and forced starvation, and that the situation should be referred to the ICC.129 Human Rights Watch investigated that at least 55 villages were completely destroyed to erase evidence.130 It also concluded that the Myanmar armed forces and other security personnel had committed crimes against humanity, including “widespread killings, torture, rape and other sexual violence, arbitrary arrests, and mass arson”, and likely genocide.131 The ICC has formally opened a preliminary investigation into the situation in Myanmar. In January, the governments of Myanmar and the government of Bangladesh agreed to return the Rohingya refugees to Myanmar within two years.132 Nonetheless, when presented with a first list of 8 000 Rohingya willing to return, Myanmar only deemed 374 eligible for repatriation.133 It stated that only Rohingya whose former legal residency can be verified will be repatriated.134 In April, the UN High Commissioner for Refugees stated that “[c]onditions in Myanmar are not yet conducive for the voluntary, safe, dignified and sustainable return of refugees”135 but that it agreed to work together with the Myanmar government towards

127 UN General Assembly (2018) Human Rights Council: Resolution adopted by the Human Rights Council on 27 September 2018, UN Doc. A/HRC/RES/39/2, para 22. 128 Al Jazeera (2018) UN sets up body to prepare Myanmar atrocity evidence. https://www. aljazeera.com/news/2018/09/sets-body-prepare-myanmar-atrocity-evidence-180927195401864. html. Accessed 17 April 2019. 129 Amnesty International 2018b. 130 Human Rights Watch (2018) Burma: Scores of Rohingya Villages Bulldozed. https://www. hrw.org/news/2018/02/23/burma-scores-rohingya-villages-bulldozed. Accessed 17 April 2019. 131 Human Rights Watch and Fortify Rights 2018, p. 1. 132 Dwyer C (2018) Myanmar And Bangladesh Agree To 2-Year Timeframe For Rohingya Return. https://www.npr.org/sections/thetwo-way/2018/01/16/578330574/myanmar-and-banglad esh-agree-to-2-year-timeframe-for-rohingya-return. Accessed 18 April 2019. 133 Ellis-Petersen H (2018) Myanmar willing to take back fewer than 400 Rohingya refugees. https://www.theguardian.com/world/2018/mar/15/myanmar-willing-to-take-back-fewer-than-400rohingya-refugees-bangladesh. Accessed 18 April 2019. 134 Chaity AJ (2018) ‘Only those with Myanmar residency will be taken back’. http://www. dhakatribune.com/bangladesh/foreign-affairs/2018/04/11/myanmar-residency-will-taken-back/. Accessed 18 April 2019. 135 Quadir S (2018) Myanmar not ready for return of Rohingya Muslims, says UNHCR. https:// www.reuters.com/article/us-myanmar-rohingya-un/myanmar-not-ready-for-return-of-rohingya-mu slims-says-unhcr-idUSKBN1HJ1RB?feedType=RSS&feedName=worldNews. Accessed 18 April 2019.

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establishing such conditions and enabling the return of the Rohingya.136 The start of the repatriation was finally scheduled for November, despite warnings of a continued genocide in Myanmar against the Rohingya and with many refugees going into hiding to avoid a return to Myanmar.137 Until the end of 2018, no official repatriation has taken place.138 Instead, Myanmar armed forces were repeatedly spotted in close proximity to Bangladeshi territory where a Rohingya refugee camp had been established and even allegedly opened fire into Bangladeshi territory.139 Two Reuters journalists were charged with obtaining state secrets after investigating the killing of ten Rohingya men in Rakhine State140 and later convicted to seven years’ imprisonment.141 The appeal is, by the end of 2018, still undecided. One police officer admitted that law enforcement officers had planted evidence.142

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AP (2018) UN Agencies Agree to Help in Return of Rohingya to Myanmar. https://www. voanews.com/a/un-agencies-agree-to-help-in-return-of-rohingya-to-myanmar/4418183.html. Accessed 18 April 2019. 137 Ellis-Petersen H, Rahman SA (2018) Rohingyas to be repatriated despite UN genocide warning. https://www.theguardian.com/world/2018/oct/30/bangladesh-and-myanmar-agree-tostart-rohingya-repatriation-in-mid-november. Accessed 18 April 2019; Al Jazeera (2018) Rohingya in Bangladesh will not be forced back to Myanmar. https://www.aljazeera.com/news/ 2018/11/mounting-confusion-forced-rohingya-repatriation-myanmar-181115013128968.html. Accessed 18 April 2019. 138 Human Rights Watch 2019i. 139 BBC News (2018) Rohingya crisis: Military build-up on Myanmar border with Bangladesh. https://www.bbc.com/news/world-asia-43248015. Accessed 17 April 2019; DhakaTribune (2018) Myanmar defends troop deployment at flag meeting with BGB. https://www.dhakatribune.com/ bangladesh/2018/03/02/myanmar-sends-soldiers-tambru-border. Accessed 18 April 2019. 140 Lone W, Soe OOK, Lewis S, Slodkowski A (2018) How Myanmar forces burned, looted and killed in a remote village. https://uk.reuters.com/investigates/special-report/myanmar-rakhineevents/. Accessed 17 April 2019. Seven members of the Myanmar armed forces were later convicted to ten years imprisonment for their participation in the massacre. See The Guardian (2018) Myanmar soldiers jailed for 10 years over massacre of Rohingya Muslims. https://www. theguardian.com/world/2018/apr/10/myanmar-rohingya-muslims-massacre-burma-soldiers-senten ced-jailed. Accessed 17 April 2019; The Guardian (2018) Myanmar military admits to murder of 10 Rohingya Muslims. https://www.theguardian.com/world/2018/jan/11/myanmar-militaryadmits-murder-rohingya-muslims. Accessed 17 April 2019. 141 Beech H, Nang S (2018) Reuters Reporters Are Charged in Myanmar With Obtaining State Secrets. https://www.nytimes.com/2018/01/10/world/asia/myanmar-reuters-reporters.html. Accessed 17 April 2019; Naing S, Thant AM (2018) Myanmar court jails Reuters reporters for seven years in landmark secrets case. https://www.reuters.com/article/us-myanmar-journalists/myanmar-court-jailsreuters-reporters-for-seven-years-in-landmark-secrets-case-idUSKCN1LJ09E. Accessed 17 April 2019. 142 Aung TT, Slodkowski A (2019) Myanmar policeman who detailed Reuters reporters’ entrapment freed from jail. https://www.reuters.com/article/us-myanmar-journalists-policeman/myanmarpoliceman-who-detailed-reuters-reporters-entrapment-freed-from-jail-idUSKCN1PQ3GN. Accessed 17 April 2019.

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6.1.11 Nigeria While the conflict between the Nigerian government and Boko Haram did not come to an end, 2018 saw a significant decrease in deadly violence as the Nigerian government regained control of parts of the country’s north-east.143 With the loss of territory, Boko Haram increasingly employed conventional terrorist tactics, in particular suicide bombings against civilians, including aid workers.144 Nonetheless, it also still engaged in hostilities with Nigerian armed forces.145 In February, Boko Haram kidnapped 110 female students. They were released about a month later, but five girls were killed and one is still being held captive.146 Boko Haram also forced civilians, including children, to perpetrate suicide attacks.147At least 1 200 people died as a result of attacks by Boko Haram, while the intensification of intercommunal conflicts led to more than 1 600 deaths.148 A report published by Amnesty International accuses the Nigerian armed forces and the Civilian Joint Task Force, fighting alongside them, of systematic war crimes and possibly crimes against humanity against civilians, mainly women and girls, in territories formerly under the control of Boko Haram, including forced displacements, starvation, rape and arbitrary detention.149 Around two million people remain internally displaced in Nigeria.150

143

Campbell and Harwood 2018. Ibid. See, e.g., Aksar (2018) Suspected Boko Haram attack in Niger kills at least four soldiers. https://www.reuters.com/article/us-nigeria-security/suspected-boko-haram-attack-in-niger-kills-atleast-four-soldiers-idUSKBN1F726X. Accessed 6 May 2019; BBC News (2018) Boko Haram faction kills second aid worker in Nigeria. https://www.bbc.com/news/world-africa-45871361. Accessed 6 May 2019. 145 See, e.g., Kingimi A, Lanre O (2018) Suspected Boko Haram militants kill 15 in Nigeria’s Maiduguri-emergency services. https://af.reuters.com/article/africaTech/idAFKCN1H90KYOZATP. Accessed 6 May 2019; The Defense Post (2018) Nigeria troops repel Boko Haram attack on base in Arege, Borno state. https://thedefensepost.com/2018/10/13/nigeria-boko-haramattack-base-arege-borno/. Accessed 6 May 2019. 146 BBC News (2018) Nigeria Dapchi abductions: Schoolgirls finally home. https://www.bbc. com/news/world-africa-43535872. Accessed 19 April 2019. 147 UN General Assembly and UN Security Council (2018) Children and armed conflict: Report of the Secretary-General, UN Doc. A/72/865-S/2018/465, para 7. 148 Human Rights Watch 2019j. 149 Amnesty International 2018a. 150 UNHCR (2018) Nigeria emergency. https://www.unhcr.org/en-us/nigeria-emergency.html. Accessed 18 April 2019. 144

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6.1.12 Somalia Somalia continues to be a destabilised and conflict-torn country with “[m]ore than 60 warring parties […] present in the country, from clan and warlord militias to various other militant groups”.151 The Al-Qaeda affiliate Al-Shabab has been weakened during 2018.152 The UN Special Representative of the Secretary-General for Somalia concluded at the end of 2018 that the operations of the African Union Mission in Somalia (AMISOM) and the Somali armed forces “have succeeded in denying [Al-Shabab] the possibility of launching conventional attacks”.153 Nonetheless, some conventional attacks were conducted by Al-Shabab in 2018. For example, in April three AMISOM bases were simultaneously attacked. While reports stated that up to 46 Ugandan peacekeepers died, AMISOM itself claimed only four soldiers died and that the attack was repelled.154 Al-Shabab also began to target international forces not part of AMISOM.155 Al-Shabab engaged in indiscriminate violence and acts of terror in particular in the Lower and Middle Shabelle regions. Throughout 2018, Al-Shabab aggressively threatened civilians to hand over their children in what has been described as a massive child soldier recruitment.156 It also perpetrated large scale terrorist attacks. In February, for example, a twin car bomb detonating in proximity to the President’s residency and an international hotel killed 45 people,157 and in October two suicide bombers killed more than 20 people and injured more than 50 in an attack on a restaurant and hotel.158 Its biggest attack was perpetrated on 9 November, when it attacked the Sahafi Hotel in Mogadishu with three 151

Felbab-Brown 2018. BBC News (2018) Who are Somalia’s al-Shabab?. https://www.bbc.com/news/world-africa15336689. Accessed 26 April 2019. 153 Haysom 2019, p. 3. 154 Burke J, Mumin AA (2018) Al-Shabaab attack kills dozens of Ugandan soldiers in Somalia. https://www.theguardian.com/world/2018/apr/01/al-shabaab-attack-kills-ugandan-soldiers-insomalia. Accessed 29 April 2019; AMISOM (2018) AMISOM troops successfully repulse Al Shabaab terrorists following simultaneous attacks on three AU bases in the Lower Shabelle region. http://amisom-au.org/2018/04/amisom-troops-successfully-repulse-al-shabaab-terroristsfollowing-simultaneous-attacks-on-three-au-bases-in-the-lower-shabelle-region/. Accessed 26 April 2019. 155 Sheikh A, Omar, F (2018) Three die after Somalia car bomb strikes EU convoy: police. https:// www.reuters.com/article/us-somalia-security/somalia-car-bomb-strikes-eu-convoy-no-casualtiespolice-idUSKCN1MB258. Accessed 29 April 2019. 156 Human Rights Watch (2018) Somalia: Al-Shabab Demanding Children. https://www.hrw.org/ news/2018/01/14/somalia-al-shabab-demanding-children. Accessed 26 April 2019. 157 Sheik A, Omar F (2018) Death toll from Somalia blasts rises to 45: government official. https://www.reuters.com/article/us-somalia-blast/death-toll-from-somalia-blasts-rises-to-45government-official-idUSKCN1G720U. Accessed 29 April 2019. 158 UN Security Council (2018) Report of the Secretary-General on Somalia, UN Doc. S/2018/1149, paras 16–18. 152

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vehicle-borne improvised explosive devices, killing more than 50 people.159 Its current strength is believed to be between 2 000 and 3 000 fighters.160 The US conducted 46 air strikes against Al-Shabab in 2018.161 A UN report concluded that also fighters affiliated with IS have expanded their operations from Puntland to Mogadishu, “although their operations remain limited to targeted killings” rather than indiscriminative attacks.162 Nevertheless, IS-affiliated fighters also claimed the killing of three Ethiopian migrants, the first time IS claimed attacks on foreigners in Somalia.163 In July, the UN Security Council extended the mandate of AMISOM until 31 May 2019, with a minimum of 1 040 AMISOM police personnel, while reducing the level of uniformed personnel to a maximum of 20 626.164 In November, AMISOM peacekeepers were accused of killing four civilian bystanders after the detonation of a road bomb.165 AMISOM forces have also been accused of sexual violence.166 More than 800 000 individuals became internally displaced in 2018, amounting to a total of 2.7 million by the end of 2018.167 1 384 civilians have been killed, of which 60 percent as a result of violence by Al-Shabab.168

6.1.13 South Sudan The year 2018 saw an increased pressure on President Salva Kiir and opposition leader (and former Vice President) Riek Machar to conclude a peace deal.169 In

159 Haysom 2019, p. 3; UN Security Council (2018) Report of the Secretary-General on Somalia, UN Doc. S/2018/1149, para 15. 160 Felbab-Brown 2018. 161 Geneva Academy of International Humanitarian Law and Human Rights 2019, Classification. 162 UN Security Council (2018) Report of the Secretary-General on Somalia, UN Doc. S/2018/1149, para 11; Haysom 2019, pp. 3 ff.; Felbab-Brown 2018. 163 UN Security Council (2018) Report of the Secretary-General on Somalia, UN Doc. S/2018/1149, para 11; Garowe Online (2018) Somalia: ISIL claims raid in Bosaso that killed 3 Ethiopians. https://www.garoweonline.com/en/news/puntland/somalia-isil-claims-bosaso-attackthat-killed-3-ethiopians. Accessed 26 April 2019. 164 UN Security Council (2018) Resolution 2431 (2018), UN Doc. S/RES/2431, para 5; Felbab-Brown 2018. 165 VOA News (2018) AU Peacekeepers Accused of Killing 4 Somali Civilians. https://www. voanews.com/a/au-peacekeepers-accused-of-killing-4-somali-civilians/4646975.html. Accessed 29 April 2019. 166 Human Rights Watch 2019k. 167 UN Security Council (2018) Report of the Secretary-General on Somalia, UN Doc. S/2018/1149, para 79; Human Rights Watch 2019k. 168 Haysom 2019, p. 5. 169 Council on Foreign Relations 2019e.

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June, they entered into negations that led to the signing of the Khartoum Declaration of Agreement. The agreement included a ceasefire, an agreement to open passages for humanitarian aid and to exchange prisoners.170 Despite the general ceasefire, fighting continued and part of the active non-state armed groups rejected the deal.171 Nonetheless, in September, a final peace deal, including an ultimate ceasefire, the release of prisoners and a transitional unity government, with opposition leader Riek Machar as Vice President, was concluded.172 In spite of some alleged violations,173 the ceasefire appears to be respected. Following the peace deal, President Kiir pardoned Riek Machar and reinstated him as Vice President.174 Furthermore, he offered amnesties to all forces involved in the conflict.175 In October, Riek Machar attended a peace ceremony in the capital Juba. It was his first return since he fled the country in 2016.176 Some violence continued in the Western Bahr el Ghazal and Central Equatoria regions.177 In July, the UN Security Council imposed an arms embargo for South Sudan, which will remain in effect until 31 May 2019, and renewed its targeted sanction

170

Marcucci 2019, p. 119; Al Jazeera (2018) South Sudan rivals meet in Khartoum for peace talks. https://www.aljazeera.com/news/2018/06/south-sudan-rivals-meet-khartoum-peace-talks180625204313778.html. Accessed 25 April 2019; Sudan Tribune (2018) South Sudan peace parties sign Khartoum Declaration of Agreement. https://www.sudantribune.com/spip.php? article65744. Accessed 25 April 2019; Reuters (2018) South Sudan rebel leader to attend talks with president in Addis Ababa. https://www.reuters.com/article/us-southsudan-talks/south-sudanrebel-leader-to-attend-talks-with-president-in-khartoum-idUSKBN1J91PB. Accessed 25 April 2019. 171 Reuters (2018) South Sudan’s warring sides accuse each other of attacks, 18 killed. https:// www.reuters.com/article/us-southsudan-war/south-sudans-warring-sides-accuse-each-other-ofattacks-18-killed-idUSKBN1JS1LY. Accessed 25 April 2019; Reuters (2018) South Sudan rebels reject peace deal reinstating Machar. https://uk.reuters.com/article/uk-southsudan-unrest/southsudan-rebels-reject-peace-deal-reinstating-machar-idUKKBN1JZ0VO?il=0. Accessed 25 April 2019. 172 Maasho A (2018) South Sudan’s president, rebel leader sign peace deal. https://www.reuters.com/ article/us-southsudan-unrest/south-sudans-president-rebel-leader-sign-peace-deal-idUSKCN1LS2PW. Accessed 25 April 2019; Mbah F (2018) What next for South Sudan’s peace agreement? https://www. aljazeera.com/news/2018/06/south-sudan-peace-agreement-180627194714644.html. Accessed 25 April 2019. 173 Tanza J (2018) Rebel Group Claims South Sudan Ceasefire Has Been Violated. https://www. voanews.com/a/south-sudan-ceasefire/4623371.html. Accessed 25 April 2019. 174 Sudan Tribune (2018) President Kiir pardons SPLM-IO leader Riek Machar. https://www. sudantribune.com/spip.php?article66015. Accessed 25 April 2019. 175 Marcucci 2019, pp. 119 f. 176 Al Jazeera (2018) South Sudan rebel leader Machar back in Juba after two years. https://www. aljazeera.com/news/2018/10/south-sudan-rebel-leader-machar-juba-years-181031070920662.html. Accessed 25 April 2019. 177 Reuters (2018) South Sudan violence blocking food aid, says U.N.’s WFP. https://www. reuters.com/article/us-southsudan-unrest/south-sudan-violence-blocking-food-aid-says-u-n-s-wfpidUSKCN1N31LB. Accessed 26 April 2019.

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regime until 31 May 2019.178 A UN report in November concluded that the arms embargo has been violated by private security firms as well as Sudan and Uganda.179 A study published by the London School of Hygiene and Tropical Medicine in September concluded that at least 382 000 people have died as a direct or indirect result of the violence in South Sudan since the conflict broke out in 2013.180 Severe food shortage continued to be a major concern. Aid groups warned at the beginning of the year that almost two-thirds of the population, 7.1 million individuals, continued to be at risk of starvation and malnutrition.181 After being the most dangerous country for aid workers in 2017, South Sudan remained the second most dangerous country in 2018.182 For example, ten humanitarian workers were abducted in the southern part of the country in April.183

6.1.14 Syria The Syrian conflict continued throughout 2018 with a declining territorial influence of IS and major gains of territorial control by the Assad government.184 The beginning of the year was marked by the continuation of the, by the end of 2018, five-year long siege of Eastern Ghouta, the longest in modern history,185 that affected around 400 000 people.186 In February, the fighting escalated with a

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UN Security Council (2018) Resolution 2428 (2018), UN Doc. S/RES/2428, paras 4 ff., 11 ff., AFP (2018) UN report finds violations of South Sudan arms embargo. https://www.news24. com/Africa/News/un-report-finds-violations-of-south-sudan-arms-embargo-20181113. Accessed 26 April 2019. 180 VOA News (2018) South Sudan War Has Killed 382,000, Says New Study. https://www. voanews.com/a/report-says-nearly-400-000-excess-deaths-in-south-sudan/4587912.html. Accessed 25 April 2019. 181 Al Jazeera (2018) South Sudan close to another famine: Aid groups. https://www.aljazeera. com/news/2018/02/south-sudan-close-famine-aid-groups-180226111150948.html. Accessed 25 April 2019; Phiri T (2018) 8 things worth knowing about South Sudan’s food crisis. https://insight. wfp.org/eight-things-worth-knowing-about-south-sudans-food-crisis-b9f93a585fb7. Accessed 25 April 2019. 182 CARE 2018, p. 2; Norwegian Refugee Council (2018) South Sudan declared most violent for aid workers for third straight year. https://reliefweb.int/report/south-sudan/south-sudan-declaredmost-violent-aid-workers-third-straight-year. Accessed 25 April 2019. 183 Moor J, Specia M (2018) 10 South Sudan Aid Workers Are Abducted, U.N. Says. https:// www.nytimes.com/2018/04/26/world/africa/south-sudan-aid-workers-abduction.html. Accessed 25 April 2019. 184 Sulce 2019, pp. 130 f. 185 UN General Assembly (2018) Human Rights Council: The siege and recapture of eastern Ghouta, UN Doc. A/HRC/38/CRP.3, p. 1, Summary. 186 Ibid. 179

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military operation to recapture the last remaining rebel-held territory into what was labelled by Amnesty International as “flagrant war crimes on an epic scale”.187 Within two days in February, almost 200 civilians, including a high number of children, were killed in eastern Ghouta by forces loyal to the Syrian government. Several hospitals were bombed during the offensive.188 UN Secretary General António Guterres called for a UN Security Council resolution obliging an immediate ceasefire and enabling relief operations.189 Finally, the UN Security Council adopted a resolution, establishing a 30-day ceasefire “to enable the safe, unimpeded and sustained delivery of humanitarian aid and services and medical evacuations of the critically sick and wounded, in accordance with applicable international law”.190 Nonetheless, the ceasefire was reportedly violated and humanitarian goods were rejected by government forces.191 Instead, Russia ordered a five-hour “humanitarian pause” three days later to allow civilians to be evacuated from Eastern Ghouta.192 Very soon, the ceasefire was de facto abandoned and government forces continued their assault to take back control of Douma, the largest city in eastern Ghouta, sparking the departure of rebels from the region.193 On 12 April, Russia announced that the Syrian government had regained complete control over Eastern Ghouta.194 The UN Human Rights Council, Human Rights Watch and Amnesty International all concluded that all parties to the conflict engaged in indiscriminative

Shaheen K (2018) ‘It’s not a war. It’s a massacre’: scores killed in Syrian enclave. https:// www.theguardian.com/world/2018/feb/20/its-not-a-war-its-a-massacre-scores-killed-in-syrianenclave-eastern-ghouta. Accessed 2 May 2019. 188 Ibid.; BBC News (2018) Syria conflict: Air strike cripples underground hospital. https://www. bbc.com/news/world-middle-east-42908711. Accessed 2 May 2019; AFP News (2018) ‘War of extermination’ in Eastern Ghouta. https://gulfnews.com/world/mena/war-of-extermination-ineastern-ghouta-1.2176457. Accessed 2 May 2019. 189 BBC News (2018) Syria war: UN plea to end ‘hell on earth’ Eastern Ghouta crisis. https:// www.bbc.com/news/world-middle-east-43146042. Accessed 2 May 2019. 190 UN Security Council (2018) Resolution 2401 (2018), UN Doc. S/RES/2401, para 1. The resolution, in para 2, explicitly exempts from this ceasefire operations against IS, Al-Qaeda and the Al-Nusra Front. 191 Reuters (2018) Aid reaches Ghouta but retreats after shelling; Syria presses assault. https:// www.reuters.com/article/us-mideast-crisis-syria/syria-lets-aid-reach-ghouta-but-blocks-medicalsupplies-presses-assault-idUSKBN1GH1HN. Accessed 2 May 2019. 192 Al Jazeera (2018) Russia-sponsored truce begins in Syria’s Eastern Ghouta. https://www. aljazeera.com/news/2018/02/russia-sponsored-truce-begins-syria-eastern-ghouta180227073026027.html. Accessed 2 May 2019. 193 Shaheen K (2018) Syrian forces attacking eastern Ghouta ‘have surrounded rebels in Douma’. https://www.theguardian.com/world/2018/mar/10/eastern-ghouta-syrian-forces-attacking-surround ed-rebels-douma. Accessed 2 May 2019; BBC News (2018) Syria war: First rebels leave defeated Eastern Ghouta town. https://www.bbc.com/news/world-middle-east-43500234. Accessed 2 May 2019. 194 BBC News (2018) Syria war: Fall of Eastern Ghouta pivotal moment for Assad. https://www. bbc.com/news/world-middle-east-43631838. Accessed 2 May 2019; AP (2018) Syrian government now in control of last town in rebel enclave of eastern Ghouta, Russia says. https://www. japantimes.co.jp/?post_type=news&p=1391428#.Ws957Pnwa71. Accessed 2 May 2019. 187

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attacks and other violations of IHL; government forces were also accused of using prohibited weapons.195 The UN Independent International Commission of Inquiry on the Syrian Arab Republic condemned the method of warfare in Eastern Ghouta as “barbaric and medieval”.196 Also Idlib province, in the north of the country, was heavily attacked by Russian forces to regain control, feeding fears that a “second Ghouta” could be on the way.197 While the UN Special Envoy on Syria acknowledged a high presence of (foreign) terrorist fighters, in particular from Al-Nusra Front, under the 1.9 million adults and one million children in the area, they called upon Syria and Russia to enable a humanitarian corridor to enable the evacuation of civilians.198 Nonetheless, military operations began only few days later, killing ten civilians in the first bombing.199 An attack in June that reportedly killed at least 47 civilians led UN Secretary General António Guterres to call for a “a full investigation into the attacks, especially allegations that there was also a second strike targeting first responders”.200 Later in 2018, Turkey and Syria agreed on a 15–20 km wide demilitarised zone in the province.201 Both sides apparently adhered to the deal.202 Several chemical attacks were reported throughout 2018. For example, on 7 April, a chemical attack, allegedly committed by Syrian armed forces, targeted the sieged city of Douma, killing at least 70.203 The Organisation for the Prohibition of

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UN General Assembly (2018) Human Rights Council: The siege and recapture of eastern Ghouta, UN Doc. A/HRC/38/CRP.3, paras 38 ff., 75–78 ff.; Human Rights Watch 2019l; Amnesty International (2018) Syria: Relentless bombing of civilians in Eastern Ghouta amounts to war crimes. https://www.amnesty.org/en/latest/news/2018/02/syria-relentless-bombing-of-civilians-ineastern-ghouta-amounts-to-war-crimes/. Accessed 3 May 2019. 196 OHCHR (2018) UN Commission of Inquiry on Syria: The siege and recapture of eastern Ghouta marked by war crimes, crimes against humanity. https://www.ohchr.org/EN/NewsEvents/ Pages/DisplayNews.aspx?NewsID=23226&LangID=E. Accessed 3 May 2019. 197 Besheer M (2018) UN Chief Fears ‘Humanitarian Catastrophe’ in Syria’s Idlib. https://www. voanews.com/a/un-chief-fears-humanitarian-catastrophe-in-syria-idlib/4549609.html. Accessed 2 May 2019. 198 Wintour P (2018) UN Syria envoy offers to negotiate ceasefire in last rebel stronghold. https:// www.theguardian.com/world/2018/aug/30/syrian-war-un-warns-russia-iran-and-turkey-against-bat tle-in-idlib. Accessed 2 May 2019. 199 Al Jazeera (2018) Fighter jets hit Syria’s Idlib targets as fears of battle mount. https://www. aljazeera.com/news/2018/09/syria-war-warplanes-hit-idlib-targets-fears-battle-mount-1809040955 02071.html. Accessed 2 May 2019. 200 BBC News (2018) Syria war: UN seeks inquiry into ‘Russian’ Idlib air strikes. https://www. bbc.com/news/world-middle-east-44437718. Accessed 2 May 2019. 201 NPR (2018) Russia And Turkey Agree On A Demilitarized Zone In Syria’s Last Rebel Stronghold. https://www.npr.org/2018/09/17/648849808/russia-and-turkey-agree-on-ademilitarized-zone-in-syrias-last-rebel-stronghold. Accessed 2 May 2019. 202 Human Rights Watch 2019l; Sulce 2019, p. 132; BBC News (2018) Syria war: Rebels ‘withdraw heavy weapons from Idlib buffer zone’. https://www.bbc.com/news/world-middle-east45783491. Accessed 2 May 2019. 203 BBC News (2018) Syria war: At least 70 killed in suspected chemical attack in Douma. https://www.bbc.com/news/world-middle-east-43686157. Accessed 2 May 2019.

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Chemical Weapons (OPCW) Fact-Finding Mission in Syria was invited by Syria and Russia to investigate the incident. However, upon arrival, the OPCW inspectors were barred from Douma by Syria and Russia due to “security concerns”.204 Eleven days after the attack, the OPCW team was finally granted access, but could not start collecting samples because they came under fire.205 After being able to collect and analyse evidence, the OPCW Fact Finding Mission in Syria found that there are “reasonable grounds [to believe] that the use of a toxic chemical as a weapon took place. […] The toxic chemical was likely molecular chlorine.”206 Even before the report was published, and while Russia stated that the incident was set up by the United Kingdom (UK),207 the US, the UK and France initiated air strikes against what they identified as the heart of the Syrian chemical weapons program. Russia and Syria condemned the attacks as an illegal act of aggression. By the end of 2018, 37 uses of chemical weapons were recorded by the UN Independent International Commission of Inquiry on the Syrian Arab Republic since 2013, with the Syrian government responsible for the vast majority.208 Russian and Syrian armed forces have killed over 1 600 civilians between only February and March and attacked 25 medical facilities, 11 schools and other civilian objects.209 According to CARE, Syria is also the most dangerous country for aid workers.210

204 OPCW (2018) OPCW Will Deploy Fact-Finding Mission to Douma, Syria. https://www. opcw.org/media-centre/news/2018/04/opcw-will-deploy-fact-finding-mission-douma-syria. Accessed 2 May 2019; Human Rights Watch 2019l; Wintour P, Borger J (2018) Syria: chemical weapons inspectors barred from Douma site. https://www.theguardian.com/world/2018/apr/16/ syria-chemical-attack-inspectors-unable-to-access-douma-site. Accessed 2 May 2019. 205 CBS News (2018) Syria chemical weapons probe stalled after U.N. team shot at https://www. cbsnews.com/news/syria-gas-attack-inspectors-opcw-douma-un-bashar-assad-russia/. Accessed 2 May 2019. 206 OPCW (2018) Report of the Fact-Finding Mission Regarding the Incident of Alleged Use of Toxic Chemicals as a Weapon in Douma, Syrian Arab Republic, on 7 April 2018, Doc. S/1731/2019, para 2.17. 207 Tass (2018) Russian top brass reports it has proof of UK’s involvement in Douma chemical incident. http://tass.com/defense/999641. Accessed 2 May 2019. 208 UN Independent International Commission of Inquiry on the Syrian Arab Republic (2018) Chemical Weapons Attacks (as at 12 March 2019). https://www.ohchr.org/SiteCollectionImages/ Bodies/HRCouncil/IICISyria/COISyria_CW_12.03.2019_web.jpg. Accessed 3 May 2019; Nebehay S (2018) U.N. documents further Syrian government use of banned chemical weapons. https://www.reuters.com/article/us-mideast-crisis-syria-warcrimes/u-n-war-crimes-teamdocuments-further-syrian-government-use-of-banned-chlorine-idUSKCN1LS1JH. Accessed 3 May 2019; Human Rights Watch 2019l. A visualisation of the chemical attacks can be found at Human Rights Watch (2018) Syria: A Year On, Chemical Weapons Attacks Persist. https://www. hrw.org/news/2018/04/04/syria-year-chemical-weapons-attacks-persist. Accessed 3 May 2019. 209 Human Rights Watch 2019l. 210 CARE 2018, p. 2.

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In January, Turkey began a cross-border military operation against Kurdish entities in the northern Syrian district of Afrin, which caused civilian casualties.211 In response, Syria threatened to destroy any Turkish jets or bomber that would appear in Syrian airspace.212 IS lost almost all its territory in Syria throughout 2018, mainly to forces loyal to the Syrian government.213 Nonetheless, IS continued to conduct assaults against armed forces214 as well as indiscriminate terror attacks.215 Also the US-led coalition is accused of causing civilian casualties in its fight against IS.216 Despite the military regain of all IS’s territory, IS fighters are still believed to be in Syria.217 Reportedly, the US planned to form a new Border Security Force in northeast Syria, composed of, among others, fighters from the Syrian Democratic Forces and the Kurdish People’s Protection Unit. This sparked huge protests from involved countries in the region, including Syria, Russia and Turkey. Later, the US stated that it would only train fighters to combat the remains of IS and would not form a

Human Rights Watch 2019l; Al Jazeera (2018) Syrian civilians ‘killed in Turkey’s Afrin operation’. https://www.aljazeera.com/news/2018/01/syrian-civilians-killed-turkey-afrin-operation -180129060647369.html. Accessed 2 May 2018. 212 Reuters (2018) Turkey begins assault on Kurdish-held enclave in Syria. https://www. theguardian.com/world/2018/jan/19/turkey-begins-assault-kurdish-enclave-in-syria. Accessed 2 May 2019; Al Jazeera (2018) Syria threatens to ‘destroy’ Turkish warplanes. https://www. aljazeera.com/news/2018/01/syria-threatens-destroy-turkish-warplanes-180118205307974.html. Accessed 2 May 2018. 213 Reuters (2018) Syria seeks to crush insurgent pocket, denies evacuation deal. https://www. reuters.com/article/us-mideast-crisis-syria/syria-seeks-to-crush-insurgent-pocket-deniesevacuation-deal-idUSKCN1IL06X. Accessed 2 May 2019; Yeranian E (2018) Syria Says Capital Is Free of Militants after Defeat of IS. https://www.voanews.com/a/syrian-government-resumesanti-is-offensive-in-damascus/4402881.html. Accessed 2 May 2019; Reuters (2018) Syrian government forces and allies close to capturing entire southwest. https://www.reuters.com/article/usmideast-crisis-syria-southwest/syrian-government-forces-and-allies-close-to-capturing-entiresouthwest-idUSKBN1KK1UQ. Accessed 2 May 2019; Shaheen K (2018) Syrian government forces seal victory in southern territories. https://www.theguardian.com/world/2018/jul/31/syriangovernment-forces-seal-victory-in-southern-territories. Accessed 2 May 2019; Reuters (2018) Syrian army says Islamic State cleared from southeastern desert. https://www.reuters.com/article/ us-mideast-crisis-syria/syrian-army-says-islamic-state-cleared-from-southeastern-desertidUSKCN1NO25N. Accessed 2 May 2019. 214 See, e.g., AFP (2018) IS attacks advancing US-backed forces in Syria’s east: monitor. https:// www.france24.com/en/20181010-attacks-advancing-us-backed-forces-syrias-east-monitor. Accessed 2 May 2019. 215 Hubbard B (2018) ISIS Bombings Shatter Quiet in Southern Syria, Killing More Than 200 People. https://www.nytimes.com/2018/07/25/world/middleeast/isis-bombings-syria.html. Accessed 2 May 2019. 216 Amnesty International 2018c. 217 Sulce 2019, pp. 130 ff. 211

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new Border Security Force.218 While US Secretary of State Rex Tillerson declared in January that the US would not withdraw its forces before the ultimate defeat of IS and before a stabilised post-Assad Syria,219 in December, US President Donald Trump announced that the US would withdraw its approximately 2 000 forces from Syria because the US and its allies “have defeated ISIS in Syria, [the] only reason for being there.”220 This led to protests from members of his administration and the US allies in the region, foremost the Kurdish entities fearing attacks by Turkey.221 In October, Syrian President Bashar al-Assad granted an amnesty to all deserters during the civil war. However, he did not extend the amnesties to rebel fighters.222 The work of the UN Special Envoy on Syria to form a Constitutional Committee that shall bring a political end to the civil war was ongoing by the end of 2018.223 At the end of 2018, the Syrian conflict has resulted in more than 5.3 million refugees224 and six million internally displaced persons since the outbreak of the conflict.225 The International, Impartial and Independent Mechanism to assist in the investigation and prosecution of persons responsible for the most serious crimes under International Law committed in the Syrian Arab Republic since March 2011 (IIIM), established by the UN General Assembly in 2016 to “collect, consolidate, preserve and analyse evidence of violations of international humanitarian law and human rights violations and abuses and to prepare files in order to facilitate and expedite fair and independent criminal proceedings […] in national, regional or international courts or tribunals”,226 and therefore mainly to identify individuals that shall bear international criminal responsibility is still to make substantive

218 Al Jazeera (2018) New US-backed Syria force: Five things you should know. https://www. aljazeera.com/news/2018/01/backed-syria-force-180116073210610.html. Accessed 2 May 2018; Al Jazeera (2018) Tillerson denies US plans to form Syria border force. https://www.aljazeera. com/news/2018/01/tillerson-denies-plans-form-syria-border-force-180118070914231.html. Accessed 2 May 2018. 219 Saine C (2018) Syria Responds to Tillerson’s US Military Engagement Pledge. https://www. voanews.com/a/syria-us-engangement/4213203.html. Accessed 2 May 2019. 220 He made this announcement via Twitter. See Trump DJ (2018) Tweet from 19 December 2018. https://twitter.com/realDonaldTrump/status/1075397797929775105. Accessed 2 May 2019. 221 Landler M, Cooper H, Schmitt E (2018) Trump to Withdraw U.S. Forces From Syria, Declaring ‘We Have Won Against ISIS’. https://www.nytimes.com/2018/12/19/us/politics/trumpsyria-turkey-troop-withdrawal.html. Accessed 2 May 2019. 222 Al Jazeera (2018) Syria’s Assad offers amnesty to army deserters. https://www.aljazeera.com/ news/2018/10/syria-assad-offers-amnesty-army-deserters-181009090035909.html. Accessed 2 May 2019. 223 AP (2018) UN Syria Envoy: Work Ongoing for Constitutional Committee. https://www. voanews.com/a/un-syria-envoy-work-ongoing-for-constitutional-committee/4694263.html. Accessed 2 May 2019. 224 UNHCR 2018b. 225 Council on Foreign Relations 2019h. 226 UN General Assembly (2017) Resolution adopted by the General Assembly on 21 December 2016, UN Doc. A/RES/71/248, para 5.

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progress.227 In September, it announced that it “expect[s] to open two or more specific investigative case files before the end of this year.”228 However this has not happened by the end of 2018.

6.1.15 Ukraine The conflict in eastern Ukraine entered its fifth year and “continued to claim lives, assault communities, destroy families, and damage and disrupt critical civilian infrastructure.”229 The peace agreement of 2015 led to a “relatively calm that held in the early weeks of 2018 [but] was followed in April and May by a sharp increase in the number of victims.”230 Numerous clashes between the Ukrainian armed forces and Russian separatists led to the death of fighters and civilians.231 The Ukrainian armed forces continued fighting against pro-Russian separatists that proclaimed the Donetsk People’s Republic and the Luhansk People’s Republic in eastern Ukraine. Whether Russia is backing the separatists is a matter of dispute between Kiev and Moscow.232 In January, the Ukraine parliament passed a law that defines the areas of its territory under the control of Russian separatists as “occupied” and Russia as an “aggressor state”, prompting Russia to condemn the law as a preparation “for a new war”.233 On 26 March, the Trilateral Contact Group for the settlement of the situation in Donbas agreed on a comprehensive, sustainable and

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For its 2018 report that mainly deals with establishing an environment that allows it to fulfil its mandate, see UN General Assembly (2018) Report of the International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011, UN Doc. A/73/295. 228 Middle East Eye (2018) UN judge set to open war crimes cases over Syrian civil war. https:// www.middleeasteye.net/news/un-judge-set-open-war-crimes-cases-over-syrian-civil-war. Accessed 3 May 2019. 229 OHCHR (2018) Human Rights Council discusses oral update on the human rights situation in Ukraine. https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=23320& LangID=E. Accessed 29 April 2019. See also Council on Foreign Relations 2019f. 230 RFE/RL (2018) Ukraine, Russia Views ‘Far Apart,’ As Berlin Hosts Peace Talks. https:// www.rferl.org/a/ukraine-conflict-normandy-meeting-/29282544.html. Accessed 29 April 2019. See also Council on Foreign Relations 2019f. 231 See, e.g., DW (2018) Several killed amid surge in violence in Ukraine. https://www.dw.com/ en/several-killed-amid-surge-in-violence-in-ukraine/a-43872111. Accessed 29 April 2019; RFE/ RL (2018) Kyiv Says Ukrainian Soldier Killed In East. https://www.rferl.org/a/kyiv-saysukrainian-soldier-killed-in-east/29435222.html. Accessed 29 April 2019; RFE/RL (2018) Kyiv Says Ukrainian Soldier, Two Separatist Fighters Killed In East. https://www.rferl.org/a/kyiv-saysukrainian-soldier-two-separatist-fighters-killed-in-east/29546116.html. Accessed 29 April 2019. 232 Jasutis 2019b, p. 149. 233 BBC News (2018) Ukraine crisis: Kiev defines Russia as ‘aggressor’ state. https://www.bbc. com/news/world-europe-42741778. Accessed 29 April 2019.

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unlimited ceasefire from 30 March onwards but it was violated within hours.234 The Organization for Security and Co-operation in Europe Special Monitoring Mission to Ukraine (OSCE SMM Ukraine) concluded in July that fewer ceasefire violations took place in Ukraine, but are nonetheless ongoing.235 In June, the Russian, Ukrainian, German and French Ministers of Foreign Affairs convened in Berlin to discuss the unsuccessful implementation of the ceasefire agreement. While agreeing in principle to the deployment of a UN peacekeeping mission, the representatives could not agree on the exact terms.236 The OSCE SMM Ukraine concluded that in 2018, at least 212 civilians were killed.237 1.6 million people remain internally displaced, the highest number in Europe.238 Russia continued to apply its laws in the Autonomous Republic of Crimea and the city of Sevastopol in violation of IHL.239 At the end of December, Russia announced that it has completed a high-tech security fence, 60 km long, at the border between the Crimean peninsula and the Ukrainian mainland.240 In November, Russia forcefully seized three Ukrainian ships off the coast of Crimea, leaving six individuals injured. Russia justified its act stating that the vessels illegally entered Russian waters.241 This was coupled with a general blockade of the Azov Sea linked to Crimea by a cargo ship beneath a bridge built by Russia in 2014

UNIAN (2018) “Easter ceasefire” in Donbas fails on its first day with attacks on Ukrainian positions. https://www.unian.info/war/10062323-easter-ceasefire-in-donbas-fails-on-its-first-daywith-attacks-on-ukrainian-positions.html. Accessed 29 April 2019. 235 OSCE (2018) Latest from the OSCE Special Monitoring Mission to Ukraine (SMM), based on information received as of 19:30, 11 July 2018. https://www.osce.org/special-monitoring-missionto-ukraine/387692/. Accessed 29 April 2019. 236 Nienaber M (2018) Ukraine, Russia fail to agree on U.N. peacekeeping mission. https://www. reuters.com/article/us-ukraine-crisis/ukraine-russia-fail-to-agree-on-un-peacekeeping-missionidUSKBN1J726I. Accessed 29 April 2019. 237 Human Rights Watch 2019m. 238 OHCHR (2018) Human Rights Council discusses oral update on the human rights situation in Ukraine. https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=23320&LangID=E. Accessed 29 April 2019; RFE/RL (2018) Ukraine, Russia Views ‘Far Apart,’ As Berlin Hosts Peace Talks. https://www.rferl.org/a/ukraine-conflict-normandy-meeting-/29282544.html. Accessed 29 April 2019. 239 OHCHR (2018) Human Rights Council discusses oral update on the human rights situation in Ukraine. https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=23320&LangID=E. Accessed 29 April 2019. 240 BBC News (2018) Ukraine conflict: Russia completes Crimea security fence. https://www. bbc.com/news/world-europe-46699807. Accessed 29 April 2019. 241 BBC News (2018) Russia-Ukraine tensions rise after Kerch Strait ship capture. https://www. bbc.com/news/world-europe-46340283. Accessed 29 April 2019. 234

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linking Crimea with Russian territory.242 In response, Ukraine imposed martial law, allowing, among others, the mobilisation of troops and reservists.243 Russia accused Ukraine for setting up the incident to allow the imposition of martial law that would delay presidential elections.244 Russia also detained 24 Ukrainians and charged them for illegally entering Russian waters.245 Ten days after the start of the blockade, Ukraine announced that the passage of the strait had been restored and that the ports of Mariupol and Berdyansk were accessible again.”246 The martial law came, as was foreseen in it, to an end after 30 days.247 After the announcement of the introduction of martial law, Russia announced it would deploy S-400 surface-to-air missile systems on the Crimean peninsula, operational at the end of 2018.248 In May, the Dutch-led Joint Investigation Team (JIT) presented to the public evidence that a Buk missile coming from Russia’s 53rd Antiaircraft Missile Brigade shot down Malaysia Airlines Flight 17 (commonly known as “MH17”)

242 Reuters (2018) Ukraine resumes grain shipments from Azov Sea. https://uk.reuters.com/ article/uk-ukraine-crisis-russia-azov/kiev-says-russia-has-partially-unlocked-ukrainian-azov-seaports-idUKKBN1O30M5?il=0. Accessed 29 April 2019; Osborn A, Polityuk P (2018) Russia fires on and seizes Ukrainian ships near annexed Crimea. https://www.reuters.com/article/us-ukrainecrisis-russia/ukraine-says-russia-seized-its-ships-near-annexed-crimea-after-firing-on-themidUSKCN1NU0DL. Accessed 29 April 2019; Jasutis 2019a, pp. 72 f. 243 Borger J, Henley J (2018) Putin ‘seriously concerned’ after Ukraine votes to impose martial law. https://www.theguardian.com/world/2018/nov/26/nato-calls-for-calm-after-boats-seized-inrussia-ukraine-clashes-kerch-strait. Accessed 29 April 2019; Karmanau Y, Isachenkov V (2018) Ukraine calls up reservists amid rising tensions with Russia. https://www.apnews.com/ 1875590b2cee4b60908b9ec658116e32. Accessed 29 April 2019. 244 Borger J, Henley J (2018) Putin ‘seriously concerned’ after Ukraine votes to impose martial law. https://www.theguardian.com/world/2018/nov/26/nato-calls-for-calm-after-boats-seized-inrussia-ukraine-clashes-kerch-strait. Accessed 29 April 2019. 245 Reuters (2018) Ukraine resumes grain shipments from Azov Sea. https://uk.reuters.com/ article/uk-ukraine-crisis-russia-azov/kiev-says-russia-has-partially-unlocked-ukrainian-azov-seaports-idUKKBN1O30M5?il=0. Accessed 29 April 2019; Roth A (2018) Ukraine president warns Russia tensions could lead to ‘full-scale war’. https://www.theguardian.com/world/2018/nov/27/ russia-to-charge-ukrainian-sailors-as-kerch-crisis-deepens. Accessed 29 April 2019. 246 Reuters (2018) Ukraine resumes grain shipments from Azov Sea. https://uk.reuters.com/ article/uk-ukraine-crisis-russia-azov/kiev-says-russia-has-partially-unlocked-ukrainian-azov-seaports-idUKKBN1O30M5?il=0. Accessed 29 April 2019. 247 BBC News (2018) Martial laws comes to an end in Ukraine after 30 days. https://www.bbc. com/news/world-europe-46684602. Accessed 29 April 2019. 248 Reuters (2018) Russia to deploy new S-400 missiles on Crimea: Ifax. https://www.reuters. com/article/us-ukraine-crisis-russia-missiles/russia-to-deploy-new-s-400-missiles-on-crimea-ifaxidUSKCN1NX0KO. Accessed 29 April 2019; Unian (2019) Russia completes rearming air defense forces in Crimea with S-400 missile systems – Russian media. https://www.unian.info/ war/10383033-russia-completes-rearming-air-defense-forces-in-crimea-with-s-400-missilesystems-russian-media.html. Accessed 29 April 2019.

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over Ukraine in 2014, which killed 298 people.249 The Dutch Public Prosecution Office made clear that any individuals identified as being a perpetrator or accomplice will face prosecution in the Netherlands. Russia condemned the statement.250

6.1.16 Yemen The conflict in Yemen between the internationally recognised government of President Abdrabbuh Mansur Hadi, supported by the Saudi-led coalition,251 against Houthi rebels intensified in 2018. In June, the coalition launched an offensive to regain control over the city of Hodeida, which is the main entry port for food and other critical goods, sparking fears that the assault would worsen the humanitarian crisis and cause a famine.252 After an offer by the Houthi rebels to hand over control of the city to the UN was turned down because the former refused to leave the city under the deal, Saudi forces continued airstrikes on the city in July, targeting also the main water station indispensable for the prevention of cholera, a possible war crime.253 The coalition also attacked a fish market, the entrance to the main hospital and a security compound killing at least 30 people.254 In November, the battle for the city escalated, leading to what was labelled “some of the worst violence the vital port has yet faced in the three-year war”, with more than 100 airstrikes within only

249 DW (2018) MH17 was downed by Russian military missile: international investigators. https://www.dw.com/en/mh17-was-downed-by-russian-military-missile-internationalinvestigators/a-43908911. Accessed 29 April 2019. 250 RFE/RL (2018) Investigators: Buk Missile From Russian Antiaircraft Brigade Downed MH17. https://www.rferl.org/a/mh17-criminal-probe-to-appeal-to-the-public-for-help/29246988. html. Accessed 29 April 2019. 251 Also Western states, such as the US, the UK, France and others have provided training and/or weaponry to the coalition. See Human Rights Watch 2019n. 252 Council on Foreign Relations 2019g; Gambrell J (2018) Saudi-led forces open assault on Yemen port city of Hodeida. https://apnews.com/7dbf0973d01d4ebd8cd9279b6f029c80. Accessed 30 April 2019; Reuters (2018) U.N. envoy says Yemen’s parties offer ‘concrete ideas’ for peace. https://www.reuters.com/article/us-yemen-security-un/u-n-envoy-says-yemens-partiesoffer-concrete-ideas-for-peace-idUSKBN1JU1QA. Accessed 30 April 2019. 253 DW (2018) Saudi airstrikes in Yemen hit facilities providing water to hundreds of thousands facing cholera epidemic. https://www.dw.com/en/saudi-airstrikes-in-yemen-hit-facilitiesproviding-water-to-hundreds-of-thousands-facing-cholera-epidemic/a-44872095. Accessed 30 April 2019. 254 Kalfood MA, Coker M (2018) Saudis Escalate Siege of Port in Yemen, Alarming Aid Groups. https://www.nytimes.com/2018/08/02/world/middleeast/yemen-saudi-hudaydah-missiles.html? rref=collection%2Ftimestopic%2FYemen&action=click&contentCollection=world®ion= stream&module=stream_unit&version=latest&contentPlacement=4&pgtype=collection. Accessed 30 April 2019.

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a few days.255 In December, peace talks between the internationally recognized government of Yemen and the Houthi rebels began in Sweden under the auspices of the UN Office of the Special Envoy of the Secretary-General for Yemen (OSESGY).256 After days of negotiations, starting with an agreement on the exchange of 5 000 prisoners,257 both sides agreed on a ceasefire in Hodeida and to withdraw all troops within days. The UN was tasked with monitoring the ceasefire.258 Beside low-scale skirmishes and violations, the ceasefire appeared to be holding.259 A new round of talks is scheduled for January 2019.260 The Houthi rebels continued to fire missiles into Saudi Arabia. While Saudi Arabia declared that it intercepted and destroyed all missiles, leaving one individual dead from the falling debris of an intercepted missile, the Houthi rebels declared that the missiles hit seven targets including four airports.261 All parties to the conflict are accused of indiscriminate attacks.262 In May, for example, Houthi rebels attacked a crowded market in the centre of Marib, killing five civilians and leaving 22 injured.263 Also the Saudi-led coalition engaged in indiscriminate attacks, when it attacked a busy market, hitting a bus carrying 255

McKernan B (2018) Battle rages in Yemen’s vital port as showdown looms. https://www. theguardian.com/world/2018/nov/07/yemen-hodeidah-airstrikes-saudi-led-coalition-ceasefire-calls. Accessed 30 April 2019. The fighting also escalated in other parts of the country. See Kalfood MA, Walsh D (2018) As Famine Looms in Yemen, Saudi-Led Coalition Redoubles Attacks. https:// www.nytimes.com/2018/11/06/world/middleeast/famine-yemen-saudi-arabia-hudaydah.html. Accessed 30 April 2019. 256 Ghobari M, Yaakoubi AE (2018) Yemen talks set to start in Sweden after wounded Houthis evacuated. https://www.reuters.com/article/us-yemen-security/yemen-foes-set-to-attend-swedenpeace-talks-after-coalition-allows-wounded-evacuation-idUSKBN1O10V3. Accessed 30 April 2019; Middle East Eye (2018) Yemen’s Houthis say they hope to attend peace talks next week in Sweden. https://www.middleeasteye.net/news/yemens-houthis-say-they-hope-attend-peace-talksnext-week-sweden. Accessed 30 April 2019. 257 Walsh D (2018) Yemen Peace Talks Begin With Agreement to Free 5,000 Prisoners. https:// www.nytimes.com/2018/12/06/world/middleeast/yemen-peace-talks.html. Accessed 30 April 2019. 258 Alkhshali H (2018) Yemen ceasefire goes into effect in strategic port city of Hodeidah. https:// edition.cnn.com/2018/12/17/world/yemen-ceasefire-takes-effect-hodeidah/index.html. Accessed 30 April 2019. 259 BBC News (2018) Yemen war: Ceasefire takes effect in Hudaydah after skirmishes. https:// www.bbc.com/news/world-middle-east-46600430. Accessed 30 April 2019. 260 Trew B, Hall R, Daragahi B (2018) Yemen peace talks: Glimmer of hope for Yemenis as ceasefire agreed for embattled city of Hodeidah. https://www.independent.co.uk/news/world/ middle-east/yemen-peace-talks-ceasefire-hodeidah-sweden-antonio-guterres-civil-war-faminea8681541.html. Accessed 30 April 2019. 261 Vera A, Robertson N (2018) Saudi Arabia: 7 missiles fired from Yemen, 1 killed from falling debris. https://edition.cnn.com/2018/03/25/middleeast/saudi-arabia-intercepts-missile/index.html. Accessed 30 April 2019. 262 For an overview of some of these attacks, see Human Rights Watch 2019n. 263 Reuters (2018) Five killed, 22 wounded by Houthi missile in Yemen’s city of Marib. https:// www.reuters.com/article/us-yemen-security/five-killed-20-wounded-by-houthi-missile-in-yemenscity-of-marib-idUSKCN1IN01J. Accessed 30 April 2019.

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schoolchildren and killing forty of them.264 In August, the UN Group of Regional and International Eminent Experts on Yemen found that both sides engaged in acts that may amount to war crimes.265 Separatist groups in the southern part of Yemen also continued their operations, allegedly with the support of the United Arab Emirates. In January, they seized several government offices in Aden, the seat of the internationally recognised government.266 Al-Qaeda and IS sustained their activities in the country.267 The US conducted 17 airstrikes against what was identified as Al-Qaeda in the Arabian Peninsula targets from March until May.268 A suicide bombing claimed by IS in February killed at least 14 people and injured another 40.269 At the end of 2018, 22.2 million Yemenis, including 11.3 million children were in need of humanitarian assistance, with 1.98 million individuals internally displaced.270 14 million people remain at risk of starvation and death because of deadly diseases.271 As of November, a minimum of 6 872 civilians have been killed and 10 768 have been wounded since the outbreak of the hostilities in March 2015.272

264 UN Secretary General (2018) Statement attributable to the Spokesman for the Secretary-General on Yemen. https://www.un.org/sg/en/content/sg/statement/2018-08-09/ statement-attributable-spokesman-secretary-general-yemen. Accessed 30 April 2019; Borger J (2018) US supplied bomb that killed 40 children on Yemen school bus. https://www.theguardian. com/world/2018/aug/19/us-supplied-bomb-that-killed-40-children-school-bus-yemen. Accessed 30 April 2019. 265 For the full report, see UN General Assembly (2018) Human Rights Council: Situation of human rights in Yemen, including violations and abuses since September 2014, UN Doc. A/HRC/39/43. 266 Al Jazeera (2018) UAE-backed separatists launch ‘coup’ in southern Yemen. https://www. aljazeera.com/news/2018/01/separatists-government-headquarters-aden-180128073439998.html. Accessed 30 April 2019. 267 Human Rights Watch 2019n. 268 US Central Command (2018) CENTCOM updates counterterrorism strikes in Yemen. https:// www.centcom.mil/MEDIA/PRESS-RELEASES/Press-Release-View/Article/1523709/centcomupdates-counterterrorism-strikes-in-yemen/. Accessed 30 April 2019. 269 The Guardian (2018) Yemen attack: at least 14 killed in raid on Aden counter-terrorism headquarters. https://www.theguardian.com/world/2018/feb/24/two-car-bombs-kill-at-least-sixand-wound-43-in-yemen-city-of-aden. Accessed 30 April 2019. 270 UNICEF 2018b, pp. 1 f. 271 Human Rights Watch 2019n. 272 OHCHR (2018) Bachelet urges States with the power and influence to end starvation, killing of civilians in Yemen. https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx? NewsID=23855&LangID=E. Accessed 30 April 2019.

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Tribunals and Courts

6.2.1

International Tribunals

6.2.1.1

International Criminal Court

2018 was an important year for the ICC. The Court celebrated the 20th anniversary of the adoption of the Rome Statute.273 Moreover, on 17 July the ICC’s jurisdiction over the crime of aggression was activated. So far 36 countries have ratified the amendment to the Rome Statute with regard to that crime.274 Throughout the year, the ICC continued its support for victims. Following the acquittal of Bemba of crimes against humanity and war crimes (see below, Sect. 6.2.1.1 Cases in the Appeal Phase, Central African Republic), the Trust Fund for Victims decided to accelerate the launch of an assistance programme in the CAR with a starting capital of EUR 1 million.275 March brought a number of changes to the composition of the Court. On 11 March, Judge Chile Eboe-Osuji was elected as President of the Court, with Judge Robert Ferm and Judge Marc Perrin de Brichambaut elected as Vice-Presidents.276 Additionally, the Judges elected Peter Lewis from the UK as the Registrar of the Court for a period of five years.277 Lewis took his oath on 17 April,278 succeeding Herman von Hebel from the Netherlands.279 2018 brought also some less positive news for the Court. On 17 March, the Philippine President Rodrigo Duterte submitted a notification of withdrawal from the Rome Statute.280 The Philippines will cease to be a party to the Statute as of 17 March 2019.

273 Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002). 274 The Global Campaign for Ratification and Implementation of the Kampala Amendments on the Crime of Aggression 2019. 275 ICC (2018) Following Mr. Bemba’s acquittal, Trust Fund for Victims at the ICC decides to accelerate launch of assistance programme in Central African Republic. https://www.icc-cpi.int/ Pages/item.aspx?name=180613-TFVPR. Accessed 2 May 2019; ICC The Office of the Prosecutor 2018, para 109. 276 ICC (2018) New ICC Presidency elected for 2018–2021. https://www.icc-cpi.int/Pages/item. aspx?name=pr1367. Accessed 3 May 2019. 277 ICC (2018) Peter Lewis elected as ICC Registrar. https://www.icc-cpi.int/Pages/item.aspx? name=pr1374. Accessed 2 May 2019. 278 ICC (2018) ICC’s new Registrar Peter Lewis takes oath. https://www.icc-cpi.int/Pages/item. aspx?name=pr1382. Accessed 2 May 2019. 279 ICC (2018) Peter Lewis elected as ICC Registrar. https://www.icc-cpi.int/Pages/item.aspx? name=pr1374. Accessed 2 May 2019. 280 ICC The Office of the Prosecutor 2018, para 46; BBC News (2018) Philippines drugs war: Duterte to withdraw from ICC. https://www.bbc.com/news/world-asia-43397837. Accessed 2 May 2019.

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Preliminary Examinations and Investigations The Office of the Prosecutor (OTP) continued its investigation into Colombia, Guinea, Iraq/UK, Nigeria, Palestine and Ukraine.281 The preliminary examination in Gabon was completed.282 In addition, several new preliminary investigations were opened.283 ICC Prosecutor Fatou Bensouda formally announced the opening of a preliminary investigation into the Philippines. The investigation would concentrate on the “alleged crimes committed since at least 1 July 2016, in the context of the ‘war on drugs’ campaign”.284 It has been reported that thousands of people have been killed because of their alleged involvement in drug dealing or use. Many of the reported incidents entailed extra-judicial killings, which took place in the context of police anti-drug operations.285 In light of this, it is possible that crimes against humanity were committed in the Philippines. A preliminary investigation was also announced for Venezuela, focussing on “alleged crimes committed since at least April 2017, in the context of demonstrations and related political unrest”.286 On 27 September, the OTP received a referral from a group of States—Argentina, Canada, Colombia, Chile, Paraguay and Peru. The referral related to the situation in Venezuela since 12 February 2014 and, most importantly, was the first collective state referral in the history of the Court.287 The day after the referral, the Presidency assigned the situation to Pre-Trial Chamber I.288 The alleged crimes were committed in the context of political unrest in Venezuela. There have been allegations that excessive force was used by Venezuelan security forces to disperse demonstrations. Also, protesters were accused of behaving in an aggressive way, leading to the death and injury of security forces members. It is also alleged that thousands of “actual or perceived” members of the opposition have been arrested.289 Moreover, it has been reported that serious abuse and ill-treatment in detention took place. A panel of experts from the Organization of American States prepared a 400-page report, which includes evidence on alleged crimes against humanity.290 281

ICC The Office of the Prosecutor 2018. Ibid., para 290. 283 Ibid. 284 ICC 2018c. 285 Ibid. 286 Ibid. 287 Human Rights Watch (2018) Venezuela: Six States Request ICC Investigation. https://www. hrw.org/news/2018/09/26/venezuela-six-states-request-icc-investigation. Accessed 22 March 2019; Doug Criss (2018) International Criminal Court urged to investigate Venezuela for alleged crimes against humanity. https://edition.cnn.com/2018/09/27/americas/venezuela-icc/index.html. Accessed 22 March 2019. 288 ICC 2018d. 289 Ibid. 290 AP (2018) Experts: Probable ‘crimes against humanity’ in Venezuela. https://wtop.com/latinamerica/2018/05/experts-probable-crimes-against-humanity-in-venezuela/. Accessed 30 April 2019. 282

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On 18 September, the ICC opened a preliminary investigation into the deportation of the Rohingya minority from Myanmar to Bangladesh.291 ICC Prosecutor Fatou Bensouda noted that since the end of 2017 she has received “a number of communications and reports” concerning crimes allegedly committed against the Rohingya population.292 The investigation could be a first step towards a widespread investigation of the military crackdown, which resulted in the deaths of thousands of individuals and the displacement of 700 000 people.293 Fatou Bensouda further stated that she received the confirmation from Pre-Trial Chamber I that the Court may exercise jurisdiction regarding potential deportations and possibly other crimes.294 She also highlighted that because Myanmar is not a State Party to the ICC but Bangladesh is, “[t]he Court may […] exercise jurisdiction over conduct to the extent it partly occurred in the territory of Bangladesh”.295 One rather controversial preliminary investigation concerned potential war crimes in Afghanistan, which includes acts committed by US personnel deployed in the country. US National Security Advisor John Bolton threatened to impose sanctions on Judges and Prosecutors of the ICC, including entry bans into the US, freezing of financial asset and prosecution in the US.296 The ICC responded that it “will continue its independent and impartial work, undeterred”.297 As regards the situation in Israel/Palestine,298 ICC Prosecutor Fatou Bensouda issued a statement noting that the situation in Gaza was worsening. She pointed that

291

ICC 2018a. ICC (2018) Statement of ICC Prosecutor, Fatou Bensouda, on opening a Preliminary Examination concerning the alleged deportation of the Rohingya people from Myanmar to Bangladesh. https://www.icc-cpi.int/Pages/item.aspx?name=180918-otp-stat-Rohingya. Accessed 2 May 2019. 293 BBC News (2018) ICC opens Myanmar Rohingya crimes probe. https://www.bbc.com/news/ world-asia-45568946. Accessed 30 April 2019. 294 ICC, Request under Regulation 64(3) of the Regulations of the Court, Decision on the “Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute”, 6 September 2018, Case No. ICC-RoC46(3)-01/18. 295 ICC (2018) Statement of ICC Prosecutor, Fatou Bensouda, on opening a Preliminary Examination concerning the alleged deportation of the Rohingya people from Myanmar to Bangladesh. https://www.icc-cpi.int/Pages/item.aspx?name=180918-otp-stat-Rohingya. Accessed 2 May 2019. 296 Al Jazeera (2018) Full text of John Bolton’s speech to the Federalist Society. https://www. aljazeera.com/news/2018/09/full-text-john-bolton-speech-federalist-society-180910172828633. html. Accessed 5 March 2019. This move was also a response to the announcement of the ICC to preliminarily examine the violence at the border between Israel and the Gaza Strip. See Steve Holland (2018) Trump administration takes aim at International Criminal Court, PLO. https:// www.reuters.com/article/us-usa-trump-icc/trump-administration-to-take-tough-stance-againstinternational-criminal-court-idUSKCN1LQ076. Accessed 22 March 2019. 297 ICC (2018) The ICC will continue its independent and impartial work, undeterred. https:// www.icc-cpi.int/Pages/item.aspx?name=pr1406. Accessed 5 March 2019. 298 For an overview of the conflict in Israel/Palestine, see above, Sect. 6.1.7. 292

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the violence against civilians taking place in Gaza “could constitute crimes under the Rome Statute”.299 She highlighted also the use of civilians as human shields.300 In September, Palestinians submitted new information regarding Israel’s planned demolition of the Palestinian Bedouin village of Khan al Ahmar in the West Bank to the ICC.301 Conversely, a group of Israeli farmers filed a communication related to crimes allegedly committed by Hamas. The farmers demand prosecution of the leaders of Hamas for alleged war crimes, in particular the torching of Israeli fields by flaming kites.302 The situation in Colombia has been under preliminary investigation since June 2004.303 In 2018, the country initiated the Special Jurisdiction for Peace (JEP), a tribunal which shall prosecute those responsible for atrocities committed during the longest-lasting modern era conflict.304 The first hearing took place on 13 July.305 Nonetheless, the Senate of Colombia already diminished the powers of the tribunal.306 Consequently, the OTP will continue assessing whether the proceedings in Colombia are genuine.307

299

ICC (2018) Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, regarding the worsening situation in Gaza. https://www.icc-cpi.int/Pages/item.aspx?name= 180408-otp-stat. Accessed 2 May 2019. 300 Ibid. 301 BBC News (2018) Khan al-Ahmar: The West Bank village facing demolition. https://www. bbc.com/news/av/world-middle-east-45555534/khan-al-ahmar-the-west-bank-village-facingdemolition. Accessed 22 March 2019. 302 Al Bawaba (2018) Israeli Farmers in Hague File Complaint of Torching Land From Hamas Fire Kites, Balloons. https://www.albawaba.com/news/israeli-farmers-hague-file-complainttorching-land-hamas-fire-kites-balloons-1181450. Accessed 30 April 2019. 303 ICC 2018b. 304 Harper B, Sonneland HK (2018) Explainer: Colombia’s Special Jurisdiction for Peace (JEP). https://www.as-coa.org/articles/explainer-colombias-special-jurisdiction-peace-jep. Accessed 30 April 2019. For an overview of the work of the JEP in 2018, see below, Sect. 6.2.3.5. 305 Harper B, Sonneland HK (2018) Explainer: Colombia’s Special Jurisdiction for Peace (JEP). https://www.as-coa.org/articles/explainer-colombias-special-jurisdiction-peace-jep. Accessed 30 April 2019. 306 Alsema A (2018) Colombia’s congress weakens war crimes tribunal even further. https:// colombiareports.com/colombias-congress-weakens-war-crimes-tribunal-even-further/. Accessed 3 May 2019. 307 ICC The Office of the Prosecutor 2018, para 165.

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Further, over a dozen Russian veteran organisations called upon the ICC to investigate Russia’s secret deployment of mercenaries in Syria, Ukraine and a number of African States.308 The Russian government consistently denied allegations of employing Russian mercenaries.309 Lastly, there were calls from relatives of Japanese individuals that were abducted by North Korea. According to them, the ICC should prosecute North Korean Supreme Leader Kim Jong Un for alleged crimes against humanity.310 However, a case could not be opened for incidents that took place on Japanese territory before 17 July 2007, the date when Japan ratified the Rome Statute.311 Arrest Warrants and Cases in the Pre-Trial Phase Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud was surrendered to the ICC on 31 March by Malian authorities.312 Al Hassan is suspected of war crimes and crimes against humanity. In 2012 and 2013, he allegedly destructed cultural heritage and engaged in sexual and gender-based violence in Timbuktu, Mali.313 The confirmation of charges hearing is scheduled for 6 May 2019.314 Also Alfred Yekatom (nicknamed “Rambo”) was surrendered to the ICC in 2018. He is allegedly responsible for war crimes and crimes against humanity, including murder, deportation as well as torture, against the Muslim population in 308 Reuters (2018) Russian military veterans seek ICC investigation of mercenary deployments. https://www.reuters.com/article/us-russia-military-mercenaries/russian-military-veterans-seek-iccinvestigation-of-mercenary-deployments-idUSKCN1NE2G7. Accessed 30 April 2019; RFE (2018) Russian veterans appeal to ICC over Moscow’s alleged use of mercenaries. https://www. rferl.org/a/russian-veterans-appeal-to-icc-over-moscow-s-alleged-use-of-mercenaries/29609013. html. Accessed 13 June 2019. 309 Reuters (2018) Russian military veterans seek ICC investigation of mercenary deployments. https://www.reuters.com/article/us-russia-military-mercenaries/russian-military-veterans-seek-iccinvestigation-of-mercenary-deployments-idUSKCN1NE2G7. Accessed 30 April 2019. 310 Human Rights Watch (2018) Japan: Protect Victims Enticed to North Korea. https://www. hrw.org/news/2018/08/21/japan-protect-victims-enticed-north-korea. Accessed 22 March 2019; Reuters (2018) Families of missing Japanese to urge prosecution of North Korean leader at Hague court. https://www.reuters.com/article/us-japan-abductees-northkorea/families-of-missingjapanese-to-urge-prosecution-of-north-korean-leader-at-hague-court-idUSKBN1F80AV. Accessed 22 March 2019. 311 AP/Kyodo (2018) International Criminal Court refuses to prosecute North Korean leader Kin Jong-un ‘for abducting Japanese citizens’. https://www.scmp.com/news/asia/diplomacy/article/ 2140684/international-criminal-court-rejects-petition-prosecute-north. Accessed 30 April 2019; ICC (2017) ICC President meets with Prime Minister Abe, praises Japan’s commitment to the Court. https://www.icc-cpi.int/Pages/item.aspx?name=pr1291. Accessed 22 March 2019. 312 ICC (2018) Situation in Mali: Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud surrendered to the ICC on charges of crimes against humanity and war crimes in Timbuktu. https:// www.icc-cpi.int/Pages/item.aspx?name=pr1376. Accessed 2 May 2019. 313 ICC, The Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, Warrant of Arrest, 27 March 2018, Case No. ICC-01/12-01/18, para 1. 314 ICC, The Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, Decision Postponing the Date of the Confirmation Hearing, 20 July 2018, Case No. ICC-01/12-01/18, para 28.

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the CAR between December 2013 and August 2014.315 The confirmation of charges hearing is scheduled for 30 April 2019. Another person suspected of involvement in crimes against humanity and war crimes in the CAR in 2013 and 2014 is Patrice-Edouard Ngaïssona, who was the most senior leader and the “National General Coordinator” of the Anti-Balaka militia.316 On 12 December he was arrested in France, pursuant to an arrest warrant issued earlier by Pre-Trial Chamber II.317 He is allegedly guilty of war crimes and crimes against humanity, committed between at least 5 December 2013 and December 2014.318 On 4 July, Pre-Trial Chamber I issued a second arrest warrant for Mahmoud Mustafa Busayf Al-Werfalli, a Libyan commander of the Al-Saiqa Brigade.319 A first arrest warrant was issued in August 2017 and was related to the execution of 33 Libyans as well as that of a major of the Libyan National Army in 2016 and 2017.320 The second arrest warrant concerns the alleged war crime of murder committed on 24 January 2018 in Benghazi, Libya.321 Earlier in 2018, UNSMIL suggested that the man behind “brutal and outrageous summary executions” in Libyan Benghazi had been Al-Werfalli himself.322 ICC Prosecutor Fatou Bensouda urged Libya to immediately arrest Al-Werfalli and surrender him to the ICC.323 The suspect remained in prison in Haftar, Libya, for some time, but managed to escape.324

315 ICC (2018) Situation in Central African Republic II: Alfred Yekatom surrendered to the ICC for crimes against humanity and war crimes. https://www.icc-cpi.int/Pages/item.aspx?name= pr1418. Accessed 30 March 2019. 316 ICC (2018) Situation in Central African Republic II: Patrice-Edouard Ngaïssona arrested for crimes against humanity and war crimes. https://www.icc-cpi.int/Pages/item.aspx?name=PR1425. Accessed 2 May 2019. 317 Ibid. 318 ICC, Situation in the Central African Republic II, Public Redacted Version of “Warrant of Arrest for Patrice-Edouard Ngaïssona”, 7 December 2018, No. ICC-01/14-02/18, p. 37. 319 ICC, The Prosecutor v Mahmoud Mustafa Busayf Al-Werfalli, Second Warrant of Arrest, 4 July 2018, Case No. ICC-01/11-01/17. 320 Ibid., para 2. 321 Ibid., para 5. 322 Lewis A (2018) U.N. alarmed at reports of summary executions in Libya’s Benghazi. https:// www.reuters.com/article/us-libya-security-benghazi/u-n-alarmed-at-reports-of-summaryexecutions-in-libyas-benghazi-idUSKBN1FD30H. Accessed 22 March 2019. 323 ICC (2018) Statement of ICC Prosecutor, Fatou Bensouda, following the second arrest warrant for Mr. Mahmoud Mustafa Busayf Al-Werfalli: “The suspect must be arrested and immediately surrendered to the Court.”. https://www.icc-cpi.int/Pages/item.aspx?name=180706-otp-stat-alwerfalli. Accessed 22 March 2019. 324 Middle East Eye (2018) Libyan commander wanted by ICC over war crimes escapes Haftar prison: LNA. https://www.middleeasteye.net/news/libyan-commander-wanted-icc-over-warcrimes-escapes-haftar-prison-lna. Accessed 30 April 2019.

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Sudanese President Omar Al-Bashir, charged with genocide, war crimes and crimes against humanity, also remained at large. This is despite a number of arrest warrants against him from 2009 onwards.325 In 2018, the ICC took additional steps to ensure the prompt arrest of Al-Bashir. According to a decision of Pre-Trial Chamber II in 2017, Jordan did not comply with its obligations under the Rome Statute by not arresting Al-Bashir when he was on a visit in that country.326 On 12 March 2018, Jordan appealed the decision to refer Jordan to the ICC Assembly of States Parties (ASP) and the UN Security Council.327 As a result, for the first time ever, the ICC Appeals Chamber is deciding on a non-compliance referral to the ASP and the UN Security Council.328 Hearings took place in September and the final decision is awaited in 2019.329 Cases in the Trial Phase • Côte d’Ivoire On 4 June, the presentation of evidence of the Prosecution was concluded in the case against Laurent Gbagbo and Charles Blé Goudé.330 On 23 July, a “Defence motion for acquittal and immediate release” was filed by Laurent Gbagbo’s Defence team (further corrected and filed on 25 September).331 On 3 August, the Defence team of Charles Blé Goudé filed a “No case to answer motion” (further corrected and filed on 28 September).332 In October and November, the Prosecution, the two

325

ICC 2019a. ICC, The Prosecutor v Omar Hassan Ahmad Al Bashir, Decision under article 87(7) of the Rome Statute on the non-compliance by Jordan with the request by the Court for the arrest and surrender or Omar Al-Bashir, 11 December 2017, Case No. ICC-02/05-01/09, para 55. 327 ICC (2018) Al Bashir case: ICC Appeals Chamber invites submissions from Sudan and Mr. Al Bashir on legal questions raised by Jordan. https://www.icc-cpi.int/Pages/item.aspx?name=pr1385. Accessed 30 March 2019. 328 Ibid. 329 ICC, The Prosecutor v Omar Hassan Ahmad Al Bashir, Order on the conduct of the hearing before the Appeals Chamber in the Jordan Referral re Al-Bashir Appeal, 27 August 2018, Case No. ICC-02/05-01/09 OA2. 330 ICC (2019) ICC Trial Chamber I acquits Laurent Gbagbo and Charles Blé Goudé from all charges. https://www.icc-cpi.int/Pages/item.aspx?name=pr1427. Accessed 3 May 2019. 331 ICC, The Prosecutor v Laurent Gbagbo and Charles Blé Goudé, Version corrigée de la “Requête de la Défense de Laurent Gbagbo afin qu’un jugement d’acquittement portant sur toutes les charges soit prononcé en faveur de Laurent Gbagbo et que sa mise en liberté immédiate soit ordonnée” [Corrected version of the Defence Motion for acquittal and immediate release], 25 September 2018, Case No. ICC-02/11-01/15. 332 ICC, The Prosecutor v Laurent Gbagbo and Charles Blé Goudé, Public Redacted Version of “Corrigendum to the ‘Blé Goudé Defence No Case to Answer Motion’ (ICC-02/11-01/ 15-1198-Conf), 23 July 2018,” 3 August 2018, ICC02/11-01/15-1198-Conf-Corr, No Case to Answer Motion, 28 September 2018, Case No. ICC-02/11-01/15. 326

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Defence teams as well as the Legal Representatives of Victims presented their arguments with regard to this Motion.333 • Democratic Republic of the Congo Between 28 and 30 August, closing statements were held in the case against Bosco Ntaganda, related to the atrocities in the DRC.334 Ntaganda is a former alleged Deputy Chief of Staff of the Patriotic Force for the Liberation of Congo.335 He was charged with 13 counts of war crimes (murder and attempted murder; attacking civilians; rape; sexual slavery of civilians; pillaging; displacement of civilians; attacking protected objects; destroying the adversary’s property; rape, sexual slavery, enlistment and conscription of children under the age of 15 years and using them to participate actively in hostilities) and five counts of crimes against humanity (murder and attempted murder; rape; sexual slavery; persecution; forcible transfer of population), allegedly committed from July 2002 to at least 2003 in the Ituri district of the DRC.336 The case consisted of 248 hearings during which the Chamber heard 103 witnesses as well as five victims who presented their views and concerns.337 By the end of 2018, Trial Chamber VI was deliberating. • Uganda The case against Dominic Ongwen continued in 2018. Ongwen is charged with 70 counts of crimes against humanity and war crimes, allegedly committed in northern Uganda after 1 July 2002.338 On 13 April, the Prosecution completed its presentation of evidence.339 Then, the presentation of evidence by the Legal Representatives of Victims took place from 1 to 24 May.340 In June, Trial

333

ICC (2019) ICC Trial Chamber I acquits Laurent Gbagbo and Charles Blé Goudé from all charges. https://www.icc-cpi.int/Pages/item.aspx?name=pr1427. Accessed 3 May 2019. 334 ICC (2018) ICC Trial Chamber VI to deliberate on the case against Bosco Ntaganda. https:// www.icc-cpi.int/Pages/item.aspx?name=pr1402. Accessed 3 May 2019. 335 Ibid. 336 ICC, The Prosecutor v Bosco Ntaganda, Warrant of Arrest, 22 August 2006, Case No. ICC-01/04‐02/06; ICC, The Prosecutor v Bosco Ntaganda, Second Warrant of Arrest, 13 July 2012, Case No. ICC-01/04‐02/06. 337 ICC (2018) ICC Trial Chamber VI to deliberate on the case against Bosco Ntaganda. https:// www.icc-cpi.int/Pages/item.aspx?name=pr1402. Accessed 2 May 2019. 338 ICC, Situation in Uganda, Warrant of Arrest for Dominic Ongwen, 8 July 2005, No. ICC-02/ 04. 339 ICC, The Prosecutor v Dominic Ongwen, Notice of the Prosecution’s completion of evidence presentation, 13 April 2018, Case No. ICC-02/04-01/15. 340 UN General Assembly (2018) Report of the International Criminal Court, UN Doc. A/73/334, para 11.

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Chamber IX conducted an on-site visit in Uganda where the attacks allegedly took place.341 The trial resumed on 18 September. On 1 October, the Defence proceeded with the presentation of its evidence.342 Cases in the Appeal Phase • Central African Republic The judgment on Jean-Pierre Bemba Gombo’s appeal in the case related to his alleged responsibility for war crimes and crimes against humanity was delivered on 8 June.343 The former Vice-President of the DRC was convicted on 21 March 2016 for war crimes and crimes against humanity.344 Trial Chamber III stated that he was effectively a military commander, with effective control over the Movement for the Liberation of the Congo, and hence criminally responsible under Article 28(a) of the Rome Statute for crimes against humanity of murder and rape as well as war crimes of murder, rape, and pillaging committed by the group in the CAR from about 26 October 2002 to 15 March 2003.345 Bemba appealed both his conviction and the 18-year prison sentence.346 Meanwhile, the Prosecution also appealed and requested a 25-year sentence.347 The Appeals Chamber, by majority, acquitted Bemba of all charges. Judge Sanji Mmasenono Monageng and Judge Piotr Hofmański appended a joint dissenting opinion. The remaining Judges, Judge Christine Van den Wyngaert, the Presiding Judge in this appeal, Judge Chile Eboe-Osuji and Judge Howard Morrison, each appended separate opinions.348 The Appeals Chamber found that Trial Chamber III erred when convicting Bemba for certain criminal acts that were outside of the scope of the confirmed charges. Judge Monageng and Judge Hofmański disagreed with the majority and stated that all criminal acts for which Bemba was convicted fell within the scope of the case.349

341

Ibid., para 12. ICC 2019b. 343 ICC, The Prosecutor v Jean-Pierre Bemba Gombo, Judgment on the appeal of Mr. Jean-Pierre Bemba Gombo against Trial Chamber III’s “Judgment pursuant to Article 74 of the Statute”, 8 June 2018, Case No. ICC-01/05-01/08 A (Bemba 2018). 344 ICC, The Prosecutor v Jean-Pierre Bemba Gombo, Judgment pursuant to Article 74 of the Statute, 21 March 2016, Case No. ICC-01/05-01/08 (Bemba 2016). 345 Ibid. 346 International Justice Monitor 2019. 347 Ibid.; Bemba 2016, above n 344, p. 80. 348 Bemba 2016, above n 344, p. 80. 349 ICC (2018) ICC Appeals Chamber acquits Mr. Bemba from charges of war crimes and crimes against humanity. https://www.icc-cpi.int/Pages/item.aspx?name=PR1390. Accessed 2 May 2019. 342

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The second error pointed out by the Appeals Chamber related to the assessment as to whether Bemba took all necessary and reasonable measures to prevent, repress or punish the commission of the other crimes by his subordinates that fell within the scope of the case. According to the Appeals Chamber, the Trial Chamber had erred in assessing Bemba’s motivation and the measures that could have been taken in light of the limitations regarding investigating and prosecuting crimes.350 Other errors concerned the conclusion that Bemba made no efforts to refer alleged crimes to the CAR authorities, and that he intentionally curbed the mandates of commissions of inquiry initiated by him.351 Pursuant to the Appeals Chamber, the Trial Chamber failed to consider relevant considerations, for instance, the claim of Mr. Bemba that he had sent a letter to the CAR authorities.352 The dissenting Judges pointed out that the majority adopted an incorrect standard of appellate review.353 According to Judge Monageng and Judge Hofmański, Bemba’s conviction should have been confirmed.354 Following the verdict of the Appeals Chamber, Trial Chamber VII ordered Bemba’s interim release on 15 June.355 Earlier that year, on 8 March, the Appeals Chamber delivered its judgment in the case against Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido, concerning offences against the administration of justice pursuant to Article 70 of the Rome Statute. The convictions for giving false testimony and corruption of witnesses (Article 70(1)(a) and (c) of the Rome Statute) were confirmed for all five accused.356 The convictions for presenting evidence that the party had known was false or forged (Article 70(1)(b) of the Rome Statute) for Bemba, Kilolo and Mangenda were reversed.357 The Appeals Chamber ruled also on the appeal brought by the accused as well as the Prosecutor against the sentences which Trial 350

Bemba 2018, above n 343, paras 194, 196. For the whole Appeals Chamber determination, see paras 166–194. 351 Bemba 2018, above n 343, para 175; Bemba 2016, above n 344, para 733. 352 Bemba 2018, above n 343, para 175. 353 ICC, The Prosecutor v Jean-Pierre Bemba Gombo, Judgment on the appeal of Mr. Jean-Pierre Bemba Gombo against Trial Chamber III’s “Judgment pursuant to Article 74 of the Statute”, Dissenting Opinion of Judge Sanji Mmasenono Monageng and Judge Piotr Hofmański, 8 June 2018, Case No. ICC-01/05-01/08 A, para 4. 354 Ibid., para 1. 355 ICC (2018) Bemba et al. case: Trial Chamber VII orders interim release for Mr. Bemba following Appeals Chamber acquittal. https://www.icc-cpi.int/Pages/item.aspx?name=PR1393. Accessed 2 April 2019. 356 ICC, The Prosecutor v Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido, Judgment on the appeals of Mr. Jean-Pierre Bemba Gombo, Mr. Aimé Kilolo Musamba, Mr. Jean-Jacques Mangenda Kabongo, Mr. Fidèle Babala Wandu and Mr. Narcisse Arido against the decision of Trial Chamber VII entitled “Judgment pursuant to Article 74 of the Statute”, 8 March 2018, Case No. ICC-01/05-01/ 13 A A2 A3 A4 A5, para 1631. 357 Ibid., para 1631.

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Chamber VII had imposed. The sentences of Bemba, Kilolo and Mangenda were partially reversed and new sentences are to be determined by Trial Chamber VII.358 The sentences of Balala and Arido were confirmed (six and 11 months respectively).359 Subsequently, on 17 September, Trial Chamber VII delivered its decision concerning the sentence of Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba and Jean-Jacques Mangenda Kabongo. In its decision, Trial Chamber VII sentenced Bemba to one year imprisonment and EUR 300 000 fine for witness tampering during his trial for alleged crimes against humanity and war crimes.360 Trial Chamber VII noted in its judgment that the decision should serve as “a cautionary example”.361 Kilolo and Mangenda were sentenced to 11 months of imprisonment each, Kilolo was additionally fined EUR 30 000.362 The prison sentences were considered served.363 The fines were to be paid to the Court within three months of the decision.364 • Democratic Republic of the Congo On 15 January the Defence in the case against Thomas Lubanga Dyilo appealed the decision of Trial Chamber II that ordered him to pay USD 10 million in reparations.365 By the end of 2018, the appeal was still ongoing.

358 ICC, The Prosecutor v Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido, Judgment on the appeals of the Prosecutor, Mr. Jean-Pierre Bemba Gombo, Mr. Fidèle Babala Wandu and Mr. Narcisse Arido against the decision of Trial Chamber VII entitled “Decision on Sentence pursuant to Article 76 of the Statute”, 8 March 2018, Case. No. ICC-01/05-01/13 A6 A7 A8 A9, para 359, 361. 359 Ibid., para 357. The sentences remain as determined in ICC, The Prosecutor v Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido, Decision on Sentence pursuant to Article 76 of the Statute, 22 March 2017, Case. No. ICC-01/05-01/13, p. 98. 360 ICC, The Prosecutor v Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido, Decision Re-sentencing Mr. Jean-Pierre Bemba Gombo, Mr. Aimé Kilolo Musamba and Mr. Jean-Jacques Mangenda Kabongo, 17 September 2018, Case. No. ICC-01/05-01/13, pp. 50 f. 361 Ibid., para 138. 362 Ibid., p. 50. 363 Ibid., pp. 50 f. 364 Ibid. 365 ICC, The Prosecutor v Thomas Lubanga Dyilo, Notice of Appeal against Trial Chamber II’s “Décision fixant le montant des réparations auxquelles Thomas Lubanga est tenu” of 15 December 2017 [Notice of Appeal against Trial Chamber II’s “Determination of the amount of the reparations for which Thomas Lubanga Dyilo is liable” of 15 December 2017], 15 January 2018, Case No. ICC-01/04-01/06; ICC, The Prosecutor v. Thomas Lubanga Dyilo, Acte d’appel de la Défense de M. Thomas Lubanga Dyilo à l’encontre de la “Décision fixant le montant des réparations auxquelles Thomas Lubanga Dyilo est tenu” rendue par la Chambre de première instance II le 15 décembre 2017 et modifiée par décisions des 20 et 21 décembre 2017 [Defence Notice of the Defence of Thomas Lubanga Dyilo against the “Determination of the amount of the reparations for which Thomas Lubanga Dyilo is liable” by Trial Chamber II on 15 December 2017 and modified

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On 8 March the Appeals Chamber delivered its judgment in the case against Germain Katanga. The appeal was lodged against an order from 24 March 2017, by which Trial Chamber II ordered Katanga to pay USD 1 million in reparations to 297 identified victims.366 Most of the Reparation Order was confirmed and the appeals of Katanga as well as the Office of Public Counsel for Victims were rejected.367 Importantly, the Chamber noted that for assessing the amount of reparations, in principle, it is not relevant whether others contributed to the harm.368 Nonetheless, the Appeals Chambers raised certain concerns about the Trial Chamber’s approach regarding reparations. According to the Appeals Chamber, the focus in a Reparation Order should be on the cost of reparation rather than the financial value of the harm.369 Nonetheless, no error of law or abuse of discretion was found by the Appeals Chamber.370 Further, the Appeals Chamber ordered the Trial Chamber to reassess five applications regarding reparations for transgenerational harm.371 The applications were filed by five persons claiming to have suffered harm because of their parents’ experiences during an attack.372 The Trial Chamber assessed the causal nexus between the crimes of Katanga and the psychological harm, and on 19 July decided that the reparations should not be awarded, as the causal nexus was not established taking into account the requisite standard of proof.373 • Mali On 8 March, the Appeals Chamber mostly confirmed the Reparations Order in the case against Ahmad Al Faqi Al Mahdi.374 The Appeals Chamber ruled that a Trial Chamber can request, subject to its discretion and on a case-by-case basis, the assistance of the Trust Fund for Victims “to undertake the administrative screening

by decisions of 20 and 21 December 2017], 15 January 2018, Case No. ICC-01/04-01/06. This is appealing ICC, The Prosecutor v Thomas Lubanga Dyilo, Corrected version of the “Decision Setting the Size of the Reparations Award for which Thomas Lubanga Dyilo is Liable”, 21 December 2017, Case No. ICC-01/04-01/06, para 281. 366 ICC, The Prosecutor v Germain Katanga, Order for Reparations pursuant to Article 75 of the Statute, 24 March 2017, Case. No. ICC-01/04-01/07. 367 ICC, The Prosecutor v Germain Katanga, Order for Reparations pursuant to Article 75 of the Statute, 8 March 2018, Case. No. ICC-01/04-01/07 A3 A4 A5, paras 92, 127, 149, 191, 220. 368 Ibid., para 6. 369 Ibid., para 72. 370 Ibid., para 260. 371 Ibid. 372 Ibid., para 223. 373 ICC, The Prosecutor v Germain Katanga, Decision on the Matter of the Transgenerational Harm Alleged by Some Applicants for Reparations Remanded by the Appeals Chamber in its Judgment of 8 March 2018, 19 July 2018, Case. No. ICC-01/04-01/07, p. 31. 374 ICC, Prosecutor v Ahmad Al Faqi Al Mahdi, Judgment on the appeal of the victims against the “Reparations Order”, 8 March 2018, Case No. ICC-01/12-01/15A (Al Mahdi 2018), p. 4.

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of beneficiaries of individual reparations meeting the eligibility criteria set out by the Trial Chamber”.375 Nonetheless, the Order was revised on two points.376 Firstly, individuals who did not wish to disclose their identity to the accused may still be considered for individual reparations.377 However, their identities will be disclosed to the Trust Fund for Victims.378 Second, individuals should be able to challenge the decision of the Trust Fund for Victims about their eligibility before the Trial Chamber, which is to make the final decision in that regard.379 The Chamber may also act proprio motu in the revision of the Trust Fund’s assessment.380 On 12 July, Trial Chamber VIII approved the draft implementation plan of the Trust Fund for Victims.381

6.2.1.2

Mechanism for International Criminal Tribunals

In 2018, Ratko Mladić (previously tried and sentenced to life imprisonment by the International Criminal Tribunal for the former Yugoslavia (ICTY) for genocide, war crimes and crimes against humanity) appealed his convictions.382 The appeals proceedings are ongoing before the Mechanism for International Criminal Tribunals (MICT).383 Before appealing, the Defence team of Ratko Mladić unsuccessfully sought annulment of his sentence due to his “mild cognitive decline and mild dementia”.384 Radovan Karadžić was convicted for his role in acts of genocide and crimes against humanity as the President of the Bosnian Serb Republic and sentenced to 40 years in prison.385 In his appeal, he sought the full annulment of the

375

Ibid., para 1. Al Mahdi 2018, above n 374, p. 4. 377 Ibid. 378 Ibid. 379 Ibid. 380 Ibid. 381 UN General Assembly (2018) Report of the International Criminal Court, UN Doc. A/73/334, para 35. 382 Hsu C (2018) Ratko Mladić appeals war crimes conviction. https://www.jurist.org/news/2018/ 03/ratko-mladic-appeals-war-crimes-conviction/. Accessed 22 March 2019. 383 MICT 2018b. 384 MICT, Prosecutor v Ratko Mladić, Defence Motion to Vacate Judgment and Impose Stay of Proceedings, 31 January 2018, Case No. MICT-13-56-A; MICT, Prosecutor v Ratko Mladić, Urgent Defence Request for Review of Registrar’s Rejection to Provide Sufficient Funding for Appeal Phase I and Concurrent Motion for Enlargement of Time to File The Notice of Appeal (confidential with confidential and ex parte annexes), 23 February 2018, Case No. MICT-13-56-A; MICT, Prosecutor v Ratko Mladić, Decision on a Further Motion for an Extension of Time to File a Notice of Appeal, 9 March 2018, Case No. MICT-13-56-A. See also Džidić D (2018) Mladic seeks conviction annulment due to ‘mild dementia’. https://balkaninsight.com/2018/02/05/mladicseeks-conviction-annulment-due-to-mild-dementia-02-05-2018/. Accessed 22 March 2019. 385 ICTY, Prosecutor v Radovan Karadžić, Judgment, 24 March 2016, Case No. IT-95-5/18-T, para 6072. 376

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ICTY judgment and a retrial.386 Karadžić filed 50 grounds of appeal.387 On 23 and 24 April, a two day appeal hearing took place in his case.388 Meanwhile, the Appeals Chamber of the MICT reversed the acquittal of Vojislav Šešelj by the ICTY Trial Chamber in 2016, and sentenced him to ten years’ imprisonment for crimes against humanity.389 Further, the MICT reversed the findings of the Trial Chamber that there was no widespread and systematic attack against the non-Serbian civilian population in the territories of Croatia and Bosnia and Herzegovina.390 In 2018, MICT Chief Prosecutor Serge Brammertz published a report in which he denounced the Croatian government for a lack of cooperation and for effectively blocking the MICT’s work on several cases related to war crimes.391 Croatia would refuse to work together with its neighbouring countries whenever an indictment states that the suspect took part in a joint criminal enterprise with Croatian military or political officials.392 This situation has been ongoing since 2015, when the Croatian government ordered the Ministry of Justice to reject cooperation in certain cases related to war crimes and pressurise the judicial proceedings.393 Hassan Ngeze, a Rwandan génocidaire, applied for an early release (pursuant to Article 26 of the MICT Statute394), having completed two thirds of his 35-year sentence.395 He was an editor of the newspaper Kangura, which incited violence against the Tutsi.396 Ngeze was convicted by the International Criminal Tribunal for Rwanda (ICTR) for genocide, a number of genocide-related crimes and the crimes against humanity of persecution and extermination.397 The release of Ngeze was considered alongside the applications for release of two other men—Aloys Simba, a former Lieutenant, and Dominique Ntawukuriryayo, a local official who promised

386

MICT, Prosecutor v Radovan Karadžić, Radovan Karadžić’s Appeal Brief, 23 December 2016, Case No. MICT-13-55-A, paras 446, 857. 387 Ibid., para 391. 388 MICT 2018a. 389 MICT, Prosecutor v Vojislav Šešelj, Judgment, 11 April 2018, Case No. MICT-16-99-A (Šešelj 2018), para 181. For the acquittal in the initial judgement, see ICTY, Prosecutor v Vojislav Šešelj, Judgment, 31 March 2016, Case No. IT-03-67-T, p. 109. 390 Šešelj 2018, above n 389, para 71. 391 Grebo L (2018) Hague Prosecutor: Croatian Govt ‘Blocking’ War Crime Cases. https:// balkaninsight.com/2018/12/11/hague-prosecutor-croatian-govt-blocking-war-crime-cases-12-112018/. Accessed 22 March 2019. 392 Ibid. 393 Ibid. 394 UN Security Council (2010) Resolution 1966 (2010), UN Doc. S/RES/1966, Annex 1 Statute of the International Residual Mechanism for Criminal Tribunals, Article 26. 395 McGreal C (2018) Rwanda appalled at chance of early release for genocide criminals. https:// www.theguardian.com/world/2018/jun/06/rwanda-appalled-at-chance-of-early-release-forgenocide-criminals. Accessed 30 April 2019. 396 Ibid. 397 Ibid.

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protection to Tutsis and then handed them to the Hutu Interahamwe militia to be killed.398 The Rwandan government is opposed to an early release of the three men.399

6.2.2

Hybrid Tribunals

6.2.2.1

Republic of Kosovo

European Union Rule of Law Mission in Kosovo Following the decision of the European Council and the exchange of letters between the EU High Representative Federica Mogherini and Kosovar President Hashim Thaci, the mandate of the European Union Rule of Law Mission in Kosovo (EULEX) was prolonged until 14 June 2020. It will continue to support Kosovo in the creation and development of independent and sustainable rule of law institutions.400 EULEX, together with various institutions, also organised numerous trainings for Kosovar public institutions. For instance, EULEX, the US Embassy in Kosovo and the Kosovar Police organised a training in forensic interviewing techniques.401 EULEX also organised a training “on international criminal law tools for prosecuting war crimes” for Kosovar prosecutors402 and a workshop for Kosovar Police on intelligence-led policing and strategic planning.403 Further, EULEX is currently handing over cases to the Special Prosecution of the Republic of Kosovo and the Basic Prosecution Office of Mitrovica. Nevertheless, this is not the end of the EULEX’s mission in Kosovo. Chief EULEX Prosecutor Claudio Pala noted as particular challenges in the time to come the need to reform the Criminal Procedure Code, as well as implementing the Joint Rule of Law Coordination Board (JRCB) war crimes roadmap, paying special attention to the National Strategy on War Crimes.404 398

Ibid. Trahan J (2018) Unpacking the request for early release by three Rwanda genocide prisoners. https://theconversation.com/unpacking-the-request-for-early-release-by-three-rwanda-genocideprisoners-101743. Accessed 30 April 2019. 400 EULEX (2018) EULEX New Mandate. https://www.eulex-kosovo.eu/?page=2,10,836. Accessed 30 April 2019. 401 EULEX (2018) EULEX and FBI Tackling Sexual Abuse and Domestic Violence in Kosovo. https://www.eulex-kosovo.eu/?page=2,11,766. Accessed 30 April 2019. 402 EULEX (2018) EULEX Hold War Crimes Training for Kosovo Prosecutors. https://www. eulex-kosovo.eu/?page=2,11,795. Accessed 30 April 2019. 403 EULEX (2018) EULEX Workshop for Enhancing the Implementation of Intelligence Led Policing. https://www.eulex-kosovo.eu/?page=2,11,798. Accessed 30 April 2019. 404 EULEX (2018) EULEX Chief Prosecutor at the Prosecutor’s Annual Conference Calls for the Spirit of Renovation and Reconciliation. https://www.eulex-kosovo.eu/?page=2,11,770. Accessed 30 April 2019. 399

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In mid-May EULEX provided Judges in the Special Chamber of the Supreme Court of Kosovo with a manual that shall assist them with mass claim proceedings.405 On 29 May, a JRCB meeting took place. Head of EULEX Alexandra Papadopoulou praised the progress of the JRCB roadmaps implementation as well as the overall process of justice integration in the northern part of Kosovo. Nonetheless, she pointed out certain areas for improvement, for instance the issue of language barriers in the Mitrovica Basic Court.406 Kosovo Specialist Chambers and Specialist Prosecutor’s Office Further progress was reached in the establishment of the Kosovo Specialist Chambers and Specialist Prosecutor’s Office (KSC). This comes despite attempts by a group of lawmakers to abolish that court,407 supported by Kosovo’s President Hashim Thaci who stated that he would sign legislation that would abolish the KSC if approved by parliament.408 The EU, the UK, Italy, France, Germany and the US all urged the Kosovar government to reject such attempts to abolish the court.409 On 14 March, the KSC published the Lists of Counsel for representation of suspected and accused individuals, as well as victims and others entitled to legal representation.410 The list is constantly being updated.411 On the two subsequent days the Judges convened at the third plenary.412 On 31 March, Specialist Prosecutor David Schendiman left office because of the expiry of his fixed-term position as a Senior Foreign Service Officer with the US 405

EULEX (2018) EULEX Presents Kosovo Judges a Manual for the Processes of Mass Claims. https://www.eulex-kosovo.eu/?page=2,11,829. Accessed 30 April 2019. 406 EULEX (2018) Meeting of the Joint Rule of Law Coordination Board held in Pristina. https:// www.eulex-kosovo.eu/?page=2,10,830. Accessed 30 April 2019. 407 Morina D (2018) Push to Scrap Special Court Fails Again in Kosovo. https://balkaninsight. com/2018/01/17/kosovo-fails-again-to-revoke-the-law-on-special-court-01-17-2018/. Accessed 30 April 2019. 408 Shehu L (2018) Kosovo’s Thaci Vows War Crimes Court Abolition, Calls Debate ‘Exaggerated’. https://www.voanews.com/a/kosovar-president-vows-abolish-war-crimes-court/ 4202379.html. Accessed 30 April 2019. 409 European Union Office in Kosovo 2018; Morina D (2018) Push to Scrap Special Court Fails Again in Kosovo. https://balkaninsight.com/2018/01/17/kosovo-fails-again-to-revoke-the-law-onspecial-court-01-17-2018/. Accessed 30 April 2019; Coalition for the International Criminal Court (2018) #GlobalJustice Weekly: Judges sworn in to Colombian war crimes court. Justice on the line in Kosovo. http://www.coalitionfortheicc.org/news/20180118/globaljustice-weekly-judges-sworncolombian-war-crimes-court-justice-line-kosovo. Accessed 30 April 2019. 410 Kosovo Specialist Chambers & Specialist Prosecutor’s Office (2018) First Names for the KSC Lists of Lawyers for Defence & Victims’ Counsel Announced. https://www.scp-ks.org/en/firstnames-ksc-lists-lawyers-defence-victims-counsel-announced. Accessed 30 April 2019. 411 Kosovo Specialist Chambers & Specialist Prosecutor’s Office (2018) Second List of Lawyers for Defence and Victims’ Counsel. https://www.scp-ks.org/en/second-lists-lawyers-defence-andvictims-counsel. Accessed 30 April 2019. 412 Kosovo Specialist Chambers & Specialist Prosecutor’s Office (2018) KSC Judges Meet for the Plenary. https://www.scp-ks.org/en/ksc-judges-meet-plenary. Accessed 30 April 2019.

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State Department.413 Kwai Hong Ip succeeded him and became the Acting Specialist Prosecutor until the appointment of a new Specialist Prosecutor.414 The new Specialist Prosecutor, Jack Smith, took office on 11 September. In October he visited Kosovo for the first time in order to meet with international and national officials.415 In mid-May, Pietro Spera was appointed the Ombudsperson for the Specialist Chambers and the Specialist Prosecutor’s Office.416

6.2.2.2

Extraordinary Chambers in the Courts of Cambodia

2018 was an important year for the work of the Extraordinary Chambers in the Courts of Cambodia (ECCC). On 29 January, medical experts examined the two most senior leaders of the Khmer Rouge still alive, Nuon Chea and Khieu Samphan, and stated that they were fit to stand trial.417 On 16 November, the judgment in their case was announced, pursuant to which the two men were found guilty of genocide, grave breaches of the Geneva Conventions of 1949 and crimes against humanity.418 The crimes were committed between 1975 and 1979.419 Both Nuon Chea and Khieu Samphan were sentenced to life imprisonment.420 They were

413 Kosovo Specialist Chambers & Specialist Prosecutor’s Office (2018) Specialist Prosecutor Explains Imminent Departure. https://www.scp-ks.org/en/specialist-prosecutor-explainsimminent-departure. Accessed 30 April 2019; Kosovo Specialist Chambers & Specialist Prosecutor’s Office (2018) President Trendafilova on the Departure of Specialist Prosecutor Schwendiman. https://www.scp-ks.org/en/president-trendafilova-departure-specialist-prosecutorschwendiman. Accessed 30 April 2019. 414 Kosovo Specialist Chambers & Specialist Prosecutor’s Office (2018) Kwai Hong Ip Succeeds David Schwendiman as Acting Specialist Prosecutor. https://www.scp-ks.org/en/kwai-hong-ipsucceeds-david-schwendiman-acting-specialist-prosecutor. Accessed 7 May 2019. 415 Kosovo Specialist Chambers & Specialist Prosecutor’s Office (2018) Specialist Prosecutor Jack Smith Visits Kosovo. https://www.scp-ks.org/en/specialist-prosecutor-jack-smith-visitskosovo. Accessed 30 April 2019. 416 Kosovo Specialist Chambers & Specialist Prosecutor’s Office (2018) Pietro Spera Appointed as Ombudsperson of the KSC. https://www.scp-ks.org/en/pietro-spera-appointed-ombudspersonksc. Accessed 30 April 2019. 417 ECCC (2018) Trial Chamber finds Accused Nuon Chea and Khieu Samphan fit to stand trial. https://www.eccc.gov.kh/en/articles/trial-chamber-finds-accused-nuon-chea-and-khieu-samphanfit-stand-trial. Accessed 6 May 2019. 418 ECCC, The Prosecutor v Samphân Khieu and Chea Nuon, Decision on Khieu Samphân’s Urgent Appeal Against the Summary of Judgement Pronounced on 16 November 2018, 13 February 2019, Case No. 002/19-09-2007/ECCC/TC, pp. 2230 f. 419 Ibid. 420 Ibid.

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previously convicted in 2014 for crimes against humanity and hence already serving life sentences.421 The ECCC reached a number of other decisions. Firstly, on 31 May and 4 June, the National and International Co-Prosecutors filed their respective Final Submissions in the case against Yim Tith.422 Further, the case against Im Chaem was concluded. The Pre-Trial Chamber presented its considerations on the appeal of the International Co-Prosecutor against the Co-Investigating Judges’ Closing Order, which dismissed the case because of a lack of personal jurisdiction.423 The Pre-Trial Chamber unanimously agreed that a number of procedural defects were present, especially with regard to the evidentiary assessment and the undue delay in concluding the investigation.424 Nonetheless, the Judges came to different conclusions regarding the merits.425 Three Judges stated that the ECCC had no personal jurisdiction over Im Chaem, while two said that there was enough evidence to consider Im Chaem as one of the main responsible and that the ECCC could therefore exercise jurisdiction.426 Therefore, the case was close due to a lack of personal jurisdiction. In the case of Meas Muth, the two Co-Investigating Judges issued two separate Closing Orders. They disagreed on the issue of personal jurisdiction. The National Co-Investigating Judge, considering the degree of participation by Meas Muth, the gravity of the crimes, the substance of the ECCC Law and ECCC Agreement together with the intentions of the drafters and other factors related to the jurisdiction of the Chambers,427 concluded that Meas Muth would not fall under the ECCC’s jurisdiction.428 The International Co-Investigating Judge, to the contrary, saw Meas Muth as one of the main responsible individuals.429 He also claimed that

421

Ellis-Petersen H (2018) Khmer Rouge leaders found guilty of genocide in Cambodia’s ‘Nuremberg’ moment. https://www.theguardian.com/world/2018/nov/16/khmer-rouge-leadersgenocide-charges-verdict-cambodia?fbclid=IwAR3nXanp0AUjS6SyfRUysgrTF8HOUDMg NKnuNiOZfXhsrhWcLrkqeah1jpg. Accessed 22 March 2019. 422 ECCC 2018. 423 ECCC, The Prosecutor v Leang Chear and Nicholas Koumjian, Decision on the International Co-Prosecutor’s Appeal on Decision on Redaction or, Alternatively, Request for Reclassification of the Closing Orders (Reasons), 12 June 2018, Case No. 004/07-09-2009-ECCC/OCIJ, para 312. 424 ECCC, The Prosecutor v Im Chaem, Considerations on the International Co-Prosecutor’s Appeal of Closing Order (Reasons), 28 June 2018, Case No. 004/007-09-2009-ECCC/OCIJ, p. 27. 425 ECCC, The Prosecutor v Im Chaem, Considerations on the International Co-Prosecutor’s Appeal of Closing Order (Reasons), Opinion of Judges Prak Kimsan, Ney Thol and Huot Vuthy, 28 June 2018, Case No. 004/007-09-2009-ECCC/OCIJ, para 92. 426 ECCC The Prosecutor v Im Chaem, Considerations on the International Co-Prosecutor’s Appeal of Closing Order (Reasons), Opinion of Judges Baik and Beauvallet, 28 June 2018, Case No. 004/007-09-2009-ECCC/OCIJ, para 339. 427 ECCC, The Prosecutor v Meas Muth, Order Dismissing the Case against Meas Muth by the National Co-Investigating Judge, 28 November 2018, Case No. 003/07-09-2009/ECCC/OCIJ. 428 Ibid., para 49. 429 Ibid., para 456.

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there was enough evidence to indict him for genocide, crimes against humanity, war crimes and premeditated homicide (under Cambodian law).430 The decision of the Pre-Trial Chamber on the ECCC’s jurisdiction over Meas Muth is expected for 2019.431 Two separate Closing Orders were issued by Co-Investigating Judges also in the case against Ao An. The Co-Investigating Judges did not agree whether the suspect fell under the ECCC’s personal jurisdiction as a senior leader or one of the responsible persons for the crimes that took place during the Democratic Kampuchea. The National Co-Investigating Judge concluded that there was no jurisdiction,432 while the International Co-Investigating Judge was of the opinion that Ao An should be prosecuted for the genocide against the Cham ethnic group, crimes against humanity, and offences under domestic Cambodian law.433

6.2.2.3

Extraordinary African Chambers

On its summit on 28 and 29 January, the African Union adopted the Statute of the Trust Fund for Victims of Hissène Habré, the former Chadian dictator.434 This was requested by the Extraordinary African Chambers (EAC) after his conviction for crimes against humanity and war crimes on 30 May 2016,435 upheld by the Appeals Chamber on 27 April 2017.436 The trust fund shall search and recover assets of Habré and seek contributions from countries and other parties willing to contribute voluntarily.437 The EAC Appeals Chamber awarded approximately USD 154 millions (after conversion) to 7 396 victims. Additionally, 3 489 victims who

430

Ibid., pp. 256–264. Boyle A (2018) Dueling decisions at the Khmer Rouge Trials could mean a suspect avoids justice. https://www.justsecurity.org/61899/dueling-decisions-khmer-rouge-trials-suspect-avoidsjustice/. Accessed 13 June 2019. 432 ECCC, The Prosecutor v Ao An, Order Dismissing the Case against Ao An by the National Co-Investigating Judge, 16 August 2018, Case No. 004/2/07-09-2009-ECCC/OCIJ, para 554. 433 ECCC, The Prosecutor v Ao An, Closing Order (Indictment) by the International Co-Investigating Judge, 16 August 2018, Case No. 004/2/07-09-2009-ECCC/OCIJ, pp. 409–415. 434 Human Rights Watch (2018) Hissène Habré Case: Trust Fund for Victims. https://www.hrw. org/news/2018/02/07/hissene-habre-case-trust-fund-victims. Accessed 6 May 2019. 435 EAC, Situation en République du Tchad, Le Procureur Général c. Hissein Habré [Situation in the Republic of Chad, Prosecutor General v Hissein Habré], Judgement, 30 May 2016. 436 EAC (2017) Situation en République du Tchad, Le Procureur Général c. Hissein Habré [Situation in the Republic of Chad, Prosecutor General v. Hissein Habré], Arrest, 27 April 2017, para 546. 437 Foster A (2018) 13 February 2018 – News about the Courts – ICC Prosecutor statement against the use of child soldiers; Commission on Human Rights calls on Philippine Government to investigate drug deaths; Duterte considers himself beyond ICC jurisdiction; Trust fund for victims of Hissène Habré adopted by African Union. http://www.iclmediareview.com/13-february-2018news-courts-icc-prosecutor-statement-use-child-soldiers-commission-human-rights-callsphilippine-government-investigate-drug-deaths. Accessed 2 May 2019. 431

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did not provide sufficient proof of identity yet may still apply to the trust fund to determine their eligibility.438

6.2.2.4

Special Criminal Court in the Central African Republic

According to Human Rights Watch, the Special Criminal Court in the Central African Republic (SCC) is in need of further support from the UN and governments. The funding for the court’s five-year renewable mandate has not been secured by voluntary contributions.439 In addition, the Court faces a number of other challenges. Violence still persists in the CAR,440 posing a risk to court staff, witnesses and victims. Further, there is no legal aid programme and the detention facilities are arguably inadequate.441 On 22 October, the inaugural session of the court was held in Bangui, the capital of the CAR.442 The session resulted in the adoption of the Rules of Procedure, as well as the selection of the President and the Vice-President of the SCC: Michel Louanga and Emmanuelle Ducos.443 Subsequently, the Special Prosecutor Col. Toussaint Muntazini presented his prosecutorial strategy.444 This step is quite unique. The Special Court for Sierra Leone, the ICTY and the ICTR never made their prosecutorial strategy public.445

438 Human Rights Watch (2018) Hissène Habré Case: Trust Fund for Victims. https://www.hrw. org/news/2018/02/07/hissene-habre-case-trust-fund-victims. Accessed 2 May 2019. 439 Human Rights Watch (2018) Central African Republic: Crucial Court For Victims. https:// www.hrw.org/news/2018/05/17/central-african-republic-crucial-court-victims. Accessed 8 April 2019. 440 For an overview of the developments in the CAR in 2018, see above, Sect. 6.1.2. 441 Human Rights Watch (2018) Central African Republic: Crucial Court For Victims. https:// www.hrw.org/news/2018/05/17/central-african-republic-crucial-court-victims. Accessed 8 April 2019. 442 SCC (2018) Session inaugurale de la Cour Pénale Spéciale [The inaugural session of the Special Criminal Court]. https://www.cps-rca.cf/fr/session-inaugurale-de-la-cour-penale-speciale-0. Accessed 2 May 2019. 443 SCC (2018) Stratégie d’enquêtes [Strategy of the investigations]. https://www.cps-rca.cf/fr/ strategie-denquetes-0. Accessed 9 April 2019; SCC (2018) Le Président de la Cour [The President of the Court]. http://www.cps-rca.cf/fr/le-president-de-la-cour. Accessed 9 April 2019; SCC (2018) Le Vice-Président [The Vice-President]. https://www.cps-rca.cf/fr/le-vice-president. Accessed 2 May 2019. 444 SCC 2018. 445 Labuda PI (2019) ‘Open for business’: The Special Criminal Court Launches Investigations in the Central African Republic. https://www.ejiltalk.org/open-for-business-the-special-criminalcourt-launches-investigations-in-the-central-african-republic/. Accessed 30 April 2019.

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Special Tribunal for Lebanon

The year 2018 was an important year for the Special Tribunal for Lebanon (STL). The most significant achievement appears to be the conclusion of the hearings in the case against Ayyash et al. The closing of the Prosecution’s case against Ayyash et al. took place on 7 February.446 Subsequently, the Prosecution continued with its disclosure obligations, reviewing and redacting documents for the purposes of making them public, and was preparing for a possible appeal.447 Additionally, the Prosecution continued investigations into three attacks that have been found to be linked to the attack against the former Lebanese Prime Minister Rafik Hariri on 14 February 2005. The three incidents are the attempted assassination of the former Minister of Economy and Trade Marwan Hamade on 1 October 2004; the assassination of the former Head of the Communist Party, George Hawi on 21 June 2005; and the attempted assassination of the departing Deputy Prime Minister and former Minister of Defence Elias el-Murr on 12 July 2005.448 The Prosecution also continued to assess whether there are any other terrorist attacks connected to the one against Hariri.449 After the closing of the Prosecution’s case against Ayyash et al., the Defence team of Hussein Hassan Oneissi presented their evidence in May and June, which was followed by the filing of the final trial briefs by the parties as well as the Legal Representatives of Victims in the subsequent two months.450 Between 11 and 21 September, closing arguments were heard by the Trial Chamber. On 21 September, the case was declared concluded.451 By the end of 2018, the Trial Chamber was deliberating. 14 August brought the end of the contempt case against Akhbar Beirut S.A.L. and Ibrahim Mohamed Ali Al Amin, its editor-in-chief.452 The Contempt Judge initially imposed a EUR 20 000 fine on Al Amin for Akhbar Beirut’s publication of information on confidential witnesses.453 In light of the failure of Mr. Al Amin to pay the fine by 30 September 2016454 and a failure to provide reasons for it, it was

446

STL 2019, p. 9. Ibid. 448 Ibid., p. 22. 449 Ibid. 450 Ibid., p. 25. 451 Ibid. 452 Ibid., p. 7. 453 STL, The Prosecutor v Akhbar Beirut S.A.L. and Ibrahim Mohamed Ali Al Amin, Judgment, 15 July 2016, Case No. STL-14-06/T/CJ, p. 62. 454 As imposed in STL, The Prosecutor v Akhbar Beirut S.A.L. and Ibrahim Mohamed Ali Al Amin, Reasons for Sentencing, 5 September 2016, Case No. STL-14-06/T/CJ, p. 8. 447

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subsequently decided to convert the fine to a term of 40 days imprisonment.455 An arrest warrant was issued, to be annulled upon the deposition of the fine.456 The fine imposed on Al Amin was finally deposited with the Tribunal’s Registry on 14 August 2018 and his case was completed.457 The Contempt Judge also imposed a EUR 6 000 fine on Akhbar Beirut S.A.L. as a legal person.458 The payment of the latter fine is outstanding by the end of 2018.459 Further, 2018 brought some changes for the composition of the Tribunal. Notably, François Roux was succeeded by Dorothée Le Fraper du Hellen as Head of the Defence Office on 8 June.460

6.2.3

National Courts461

6.2.3.1

Argentina

Throughout 2018, 575 cases concerning crimes against humanity were being processed with 3 081 people being investigated in Argentina.462 According to a study conducted by the Office of the Public Prosecutor, 44 percent of these cases were

455

STL, The Prosecutor v Akhbar Beirut S.A.L. and Ibrahim Mohamed Ali Al Amin, Public Redacted Version of “Warrant of Arrest and Order to Transfer and Detain Mr. Ibrahim Mohamed Ali Al Amin” of 16 July 2018, 12 October 2018, Case No. STL-14-06/T/CJ, p. 1. 456 Ibid., p. 2. 457 STL, The Prosecutor v Akhbar Beirut S.A.L. and Ibrahim Mohamed Ali Al Amin, Order Lifting Confidentiality, 12 October 2018, Case No. STL-14-06/T/CJ STL (2019) Akhbar Beirut S.A.L. & Mr. Al Amin (STL-14-06). https://www.stl-tsl.org/en/the-cases/contempt-cases/ stl-14-06. Accessed 13 June 2019. 458 STL, The Prosecutor v Akhbar Beirut S.A.L. and Ibrahim Mohamed Ali Al Amin, Order Lifting Confidentiality, 12 October 2018, Case No. STL-14-06/T/CJ. 459 STL (2019) Akhbar Beirut S.A.L. & Mr. Al Amin (STL-14-06). https://www.stl-tsl.org/en/ the-cases/contempt-cases/stl-14-06. Accessed 13 June 2019. 460 Ibid. 461 As already mentioned in the Abstract of this chapter, the Year in Review only covers a limited number of events that are particularly relevant to IHL. This goes even more for the domestic context, where a growing number of cases on IHL and international criminal law are adjudicated. This section on domestic court decisions will therefore only contain a limited number of particularly noteworthy cases. Further and more in-depth analysis of national cases as well as analyses of cases adjudicated by hybrid and international tribunals can be found at International Crimes Database Project (2019) International Crimes Database. http://www.internationalcrimesdatabase. org. Accessed 10 May 2019. 462 Procuradoría de Crímenes de lesa humanidad (2018) Informe estadístico sobre el estado de las causas por delitos de lesa humanidad en Argentina [Office of the Prosecutor on Crimes Against Humanity, Statistics report on the current situation of crimes against humanity cases in Argentina]. https://www.fiscales.gob.ar/wp-content/uploads/2018/12/LESA_informe-estadistico-anual-2018. Accessed 7 May 2017.

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under investigation while only 3 percent were already in the trial phase. Some cases are worth mentioning. The year started with the case of Gonzalez Navarro, in which the Federal Tribunal convicted 19 defendants for crimes against humanity, among whom Jorge Gonzalez Navarro, a former member of the IV Airborne Infantry Brigade who was condemned to the maximum sentence.463 He was found guilty of 39 cases of illegitimate deprivations of liberty, 29 cases of torture and four homicides. The Tribunal also recognised that the established acts occurred as part of a systematic plan to eliminate political opponents that set the scene for the commission of crimes against humanity in Argentina before the military coup of 24 March 1976. Moreover, in the case concerning crimes committed in the Clandestine Centre of Detention, Torture, and Extermination Cuatrerismo-Brigada Güemes, the Federal Tribunal convicted Miguel Etchecolatz and four other police officers for crimes against humanity committed between November 1974 and February 1977. It was the first time that crimes committed in the Clandestine Centre were being tried.464 In November, Argentina decided to prosecute Mohammed bin Salman, Saudi Arabia’s Crown Prince, over alleged war crimes in Yemen.465 Human Rights Watch had petitioned Argentina to use a war crimes clause in its constitution to probe the crown prince. Finally, another landmark case was completed on 11 December, in which, for the first time in Argentinian history, the Federal Tribunal unanimously found guilty two former managers of the automobile company Ford for participating in the commission of crimes against humanity during the military regime between 1976 and 1983.466 In this case, 24 employees were forcibly held and tortured at their place of work, inside the company. According to a former employee, Pedro Troiani, the military coup would not have been possible without the participation of the company, as well as other automobile companies. However, the decision does not concern company liability, but only deals with individual responsibility on the managerial level. The convicted were allowed to be held under house arrest due to their age.

463 Mareco A (2018) Una condena perpetua en un fallo con limitaciones [A life sentence in a decision with statutory limitations]. https://www.lavoz.com.ar/politica/una-condena-perpetua-enun-fallo-con-limitaciones. Accessed 7 May 2017. 464 García M (2018) Causa Puente 12: perpetua para Etchecolatz, cuatro genocidas absueltos por crímenes previos al golpe [The Case of Puente 12: Life sentence for Etchecolatz, four genocide criminals acquitted for crimes committed before the coup]. https://www.laizquierdadiario.com/ Causa-Puente-12-perpetua-para-Etchecolatz-cuatro-genocidas-absueltos-por-crimenes-previos-algolpe. Accessed 7 May 2017. 465 Independent (2018) Argentina proceeds with prosecution against Saudi crown prince Mohammad bin Salman over Yemen war. https://www.independent.co.uk/news/world/americas/ saudi-arabia-argentina-argentina-proceeds-with-prosecution-against-saudi-crown-princemohammad-bin-a8656691.html. Accessed 7 May 2017. 466 BBC News (2018) Argentina: los exdirectivos de Ford que fueron condenados por secuestros y torturas durante el régimen militar [Argentina: the former directors of Ford who were condemned for kidnapping and torture during the military regime]. https://www.bbc.com/mundo/noticiasamerica-latina-46532725. Accessed 7 May 2017.

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Austria

In May, a group of 16 Syrian women and men filed a criminal complaint to the Public Prosecutor in Vienna against 24 senior officials of the Syrian Government for the war crimes and crimes against humanity of murder, torture, serious bodily harm and deprivation of liberty, pursuant to Austria’s universal jurisdiction law.467 The crimes described in the complaint allegedly had been committed between February 2011 and January 2017 in 13 detention centres in Damascus, Daraa, Hama and Aleppo. Investigations were opened following the complaint. The group of torture survivors included an Austrian citizen and several people who were detained while still being minors, and who lived in Austria and Germany. They filed the complaint together with the European Center for Constitutional and Human Rights (ECCHR), the Syrian lawyers Anwar al-Bunni and Mazen Darwish as well as the Center for the Enforcement of Human Rights International (CEHRI) in Vienna.

6.2.3.3

Belgium

On 12 December, the Belgian judiciary ordered two referrals before a criminal trial court in Brussels for crimes committed in the context of the Tutsi genocide and the killings of moderate Hutus in Rwanda in 1994.468 It will be the first time that a Belgian criminal court will issue a decision on the crime of genocide.469 The referrals in total concern five defendants. The first referral relates to three people who are accused of genocide and war crimes, including counts of murder and rape. In the second referral, the two defendants are accused of genocide and war crimes, on the count of murder.

6.2.3.4

Bosnia-Herzegovina

Bosnia-Herzegovina witnessed a high number of judgements concerning international crimes in 2018. On 30 January, the war crimes unit of the Court of Bosnia and Herzegovina in Sarajevo, confirmed a genocide indictment against the Bosnian Serb wartime Police Chief, Tomislav Kovač over the massacre of up to 8 000 Middle East Monitor (2018) Torture survivors file criminal complaint against senior Syria officials. https://www.middleeastmonitor.com/20180601-torture-survivors-file-criminal-complaintagainst-senior-syria-officials/amp/?__twitter_impression=true. Accessed 7 May 2017. 468 AFP (2018) Cinq Rwandais renvoyés devant la justice belge pour “crime de génocide” en 1994 [Five Rwandans referred before the Belgian Criminal judiciary for “the crime of genocide” in 1994]. https://www.voaafrique.com/a/rwanda-accuses-genocide-1994-cour-d-assises-de-bruxellescrime-de-guerre-parque-feral-belge/4697752.html. Accessed 7 May 2017. 469 RTBF (2018) Cinq Rwandais renvoyés devant la cour d’assises de Bruxelles pour des faits de génocide de 1994 [Five Rwandans referred before the criminal court of Brussels for the crime of genocide committed in 1994]. https://www.rtbf.be/info/monde/detail_cinq-rwandais-renvoyesdevant-la-cour-d-assises-de-bruxelles-pour-des-faits-de-genocide-de-1994?id=10096630. Accessed 7 May 2019. 467

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Muslim men and boys in Srebrenica, the site of Europe’s worst atrocity since World War II.470 Kovač was accused of organising, between 6 July and 1 November 1995, an attack against the civilian Muslim population in Srebrenica and Žepa. He was also suspected of concealing the evidence of mass executions.471 On 16 February, a former Special Police Commander of the Bosnian Serb Interior Ministry’s Special Brigade, Goran Sarić, was acquitted of involvement in the 1995 Srebrenica genocide as the Court of Bosnia and Herzegovina could not determine that the defendant knew about the genocidal intention of the main perpetrators.472 Saric was acquitted of charges of issuing instructions for the massacres, and of exercising control over his deputy Ljubomir Borovcanin. Moreover, in June, two important events took place. Firstly, two former Bosnian Serb Army soldiers went on trial for genocide charges. Mile Kosorić, the former Commander of the Bosnian Serb Army’s Vlasenica Brigade, and Momcilo Tesić, a member of the Brigade’s Military Police Squad, were accused of killing men from Srebrenica, raping women and robbing Bosniaks of money and gold in July 1995.473 According to the Prosecutor, “[o]n the night of July 13 to 14, they took out 22 male detainees and took them to Mrsici, where they shot 21 of them. Only one detainee survived.” Secondly, on 25 June, France handed over Radomir Susnjar, a war crimes suspect, to Bosnia. The Bosnian Prosecutor’s Office stated that he was charged with participating in an operation in which 57 Muslim Bosniaks were burned alive as well as robbery and illegal detention of civilians near the eastern town of Visegrad in 1992. Susnjar had lived in France for several years before being tracked down.474 In October, a former Bosnian Army Commander, Atif Dudaković, and 16 others were charged with war crimes that took place during the 1992–1995 war. The accused are allegedly responsible for murdering over 300 Serbs, mostly elderly civilians.475 The year ended with the acquittal of Naser Orić, who was accused of war crimes, by the Court of Bosnia and Herzegovina. Orić worked as a bodyguard for the

470 Reuters (2018) Bosnian Serb wartime police chief charged with genocide in Srebrenica. https://www.reuters.com/article/us-bosnia-warcrimes-indictments/bosnian-serb-wartime-policechief-charged-with-genocide-in-srebrenica-idUSKBN1FJ2D0. Accessed 7 May 2017. 471 Sud Bosne i Hercegovine [The Court of Bosnia and Herzegovina] (2018) Potvrđena optužnica u predmetu Tomislav Kovač [Indictment confirmed in the Tomislav Kovač case]. http://www. sudbih.gov.ba/vijest/potvrena-optunica-u-predmetu-tomislav-kova-20729. Accessed 7 May 2019. 472 Balkan Insight (2018) Bosnia Acquits Serb Police Commander of Srebrenica Genocide. https://www.balkaninsight.com/en/article/bosnia-acquits-serb-police-commander-of-srebrenicagenocide-02-16-2018. Accessed 7 May 2019. 473 Balkan Insight (2018) Bosnian Serb Soldiers’ Srebrenica Genocide Trial Opens. https:// balkaninsight.com/2018/06/12/bosnian-serb-soldiers-srebrenica-genocide-trial-opens-06-12-2018/. Accessed 7 May 2019. 474 Reuters (2018) France hands over war crimes suspect to Bosnia. https://www.reuters.com/ article/us-bosnia-warcrimes-france/france-hands-over-war-crimes-suspect-to-bosniaidUSKBN1JL1BR. Accessed 7 May 2019. 475 AP (2018) Ex Bosnia Army Commander, 16 Others Charged With War Crimes. https://www. voanews.com/a/ex-bosnia-army-commander-sixteen-others-charges-with-war-crimes/4609180. html. Accessed 7 May 2019.

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former Yugoslav President Slobodan Milosević. He had been charged with killing Serbs in villages in the vicinity of Srebrenica in 1992, a few years before the Srebrenica genocide.476

6.2.3.5

Colombia

On 31 May, the Supreme Court of Colombia determined that crimes, committed by paramilitaries during massacres in the cities of El Aro, San Roque and La Granja, in the region of Antioquía, constituted crimes against humanity. The acts occurred when former President Álvaro Uribe Vélez was Governor. The homicide of the human rights advocate Jesús María Valle is also being investigated in the same case.477 The JEP, part of the Comprehensive System for Truth, Justice, Reparation and Non-Repetition began its work in March.478 For the first time in Colombian history, Revolutionary Armed Forces of Colombia (FARC) leaders, including its Supreme Leader Rodrigo Londoño, appeared before a court for acts committed during the 52-year armed conflict between the Colombian government and the FARC.479 The procedural hearing was attended by three of the 31 summoned leaders of the disbanded FARC. The case concerns kidnappings and illegal detentions by FARC between 1993 and 2012. During the Inter-American Forum on Human Rights, Attorney General Fernando Carillo, declared that for cases concerning crimes against humanity, violations of IHL and human rights, statutory limitations will not apply.480 Therefore, from 10 476 DW (2018) ‘Defender of Srebrenica’ Naser Oric acquitted of war crimes. https://www.dw. com/en/defender-of-srebrenica-naser-oric-acquitted-of-war-crimes/a-46517517. Accessed 7 May 2019. 477 CNN (2018) La Corte Suprema de Colmobia declara de lesa humanidad masacres paramilitares presuntamente relacionadas con expresidente Uribe [The Supreme Court of Colombia declared that the massacres allegedly related to the former president Uribe are crimes against humanity]. https://cnnespanol.cnn.com/2018/06/01/la-corte-suprema-de-colombia-declara-de-lesahumanidad-masacres-paramilitares-presuntamente-relacionadas-con-expresidente-uribe/. Accessed 7 May 2019. 478 Álvarez LI (2018) The Special Jurisdiction for Peace in Colombia: Challenges and Opportunities for Accountability. http://blog.ucall.nl/index.php/2018/04/the-special-jurisdictionfor-peace-in-colombia-challenges-and-opportunities-for-accountability/. Accessed 12 March 2019; AP (2018) Ex-rebel leaders appear before Colombia’s peace tribunal. https://apnews.com/ 69b46d327bd848b29c10c7ed84738a72. Accessed 7 May 2019. For details on the establishment of the JEP, see Lin et al. 2019, p. 262. 479 AP (2018) Ex-rebel leaders appear before Colombia’s peace tribunal. https://apnews.com/ 69b46d327bd848b29c10c7ed84738a72. Accessed 7 May 2019. 480 El Espectador (2018) Investigaciones disciplinarias por crímenes de lesa humanidad no prescribirán: Procuraduría [Office of the Prosecutor: Disciplinary investigations for crimes against humanity will not be subjected to statutory limitations]. https://www.elespectador.com/noticias/ judicial/investigaciones-disciplinarios-por-crimenes-de-lesa-humanidad-no-prescribiranprocuraduria-articulo-828382. Accessed 7 May 2019.

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December 2018 onwards, investigations related to those crimes will not be limited in time.

6.2.3.6

Denmark

On 15 June, the Appeals Court of Copenhagen ordered the Danish government to compensate 18 civilians tortured during the 2004 operation “Green Desert” near Basra, Iraq. The court ruled that although the soldiers of the Danish battalion did not take part in the abuse, they failed to prevent it. The amount of compensation awarded to the 18 individuals was approximately USD 4 600 (after conversion).481 The court stated “[t]he soldiers of the Danish battalion who were sent to Iraq in 2004 and partook in the operation were not found guilty of violence against the Iraqis” but they were aware that the prisoners faced a real risk of being physically abused by the Iraqi security forces. In September, the Eastern High Court of Appeals of Denmark decided that Wencelas Twagirayezu, a Rwandan native and Danish national could be extradited to Rwanda to stand trial for crimes against humanity during the 1994 Rwandan genocide.482 He allegedly led a pro-Hutu militia in the North-West of Rwanda that targeted ethnic Tutsis during the 100-day genocide.483

6.2.3.7

Finland

In May, the Finnish Prime Minister’s Office called for an independent probe into the role of Finnish Waffen-SS soldiers in the killing of Jews and civilians during World War II between 1941 and 1943. Efraim Zuroff, an Israeli historian and leading expert in investigating and bringing to trial Nazi war criminals, assisted the authorities in launching an investigation into whether Finnish soldiers took part in war crimes during the war.484 In September, the appeal trial of two Iraqi twin brothers for their alleged contribution to the Camp Speicher massacre near Tikrit, Iraq, perpetrated by IS in 2014, was postponed until further notice due to arrangements regarding the hearing of

481

Al Jazeera (2018) Court orders Denmark to compensate 18 Iraqis over torture. https://www. aljazeera.com/news/2018/06/court-orders-denmark-compensate-18-iraqis-torture-1806151853496 46.html. Accessed 7 May 2019. 482 Jurist (2018) Denmark Appeals Court upholds extradition of Rwandan genocide suspect. https://www.jurist.org/news/2018/09/denmark-appeals-court-upholds-extradition-of-rwandangenocide-suspect/. Accessed 7 May 2019. 483 BBC News (2018) Rwandan genocide suspect ‘extradited from Denmark’. https://www.bbc. com/news/world-africa-46529332. Accessed 7 May 2019. 484 YLE (2018) Finland calls for probe of Finnish SS soldiers’ possible role in war crimes during WWII. https://yle.fi/uutiset/osasto/news/finland_calls_for_probe_of_finnish_ss_soldiers_possible_ role_in_war_crimes_during_wwii/10233194. Accessed 7 May 2019.

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witnesses in Iraq. The Court of Appeal decided that the main hearings would not be formally opened before these witnesses had been heard “outside the main hearing”.485

6.2.3.8

France

Several cases concerning the Rwandan genocide were being prosecuted in France in 2018. On 24 May, the French Court of Cassation rejected Pascal Simbikangwa’s appeal, confirming his conviction for genocide and complicity in crimes against humanity, thus sentencing him to 25 years in prison.486 His trial was the first trial to take place in France involving a Rwandan citizen for his role in the Rwandan genocide. In addition, the French courts motioned for two referrals to the Criminal Trial Court of Paris, in the cases of a Rwandan doctor and of a former prefect. In the first case, Dr. Sosthène Munyemana was accused of having participated, in April, May and June 1994, in the Tutsi massacre in the cities of Butare and Tumba, where he was a gynaecologist.487 In the second case, Laurent Bucyibaruta was accused of genocide and crimes against humanity committed between April and July 1994.488 The Investigating Judge determined Bucyibaruta was an accomplice to massive and systematic arbitrary executions but absolved him of the murders of a police officer and three priests. Moreover, the defendant had previously been under investigation by the ICTR489 for ordering Interahamwe (a Hutu paramilitary organisation) to commit several massacres against the Tutsi. The ICTR later decided to refer the defendant’s case to France.490 Even though several prosecutions concerning the Rwandan genocide are ongoing, in November, Investigating Judges of the crimes

485 YLE (2018) Tuesday’s papers: Iraqi twins’ appeal trial, a discriminatory ad and poisonous mushrooms. https://yle.fi/uutiset/osasto/news/tuesdays_papers_iraqi_twins_appeal_trial_a_ discriminatory_ad_and_poisonous_mushrooms/10397599. Accessed 7 May 2019. 486 RFI (2018) Génocide au Rwanda: la justice française confirme la condamnation de Pascal Simbikangwa [Genocide in Rwanda: the French judiciary confirms the sentence of Pascal Simbikangwa]. http://www.rfi.fr/afrique/20180525-genocide-rwanda-justice-francaise-confirmecondamnation-pascal-simbikangwa. Accessed 7 May 2019. 487 La Dépêche (2018) Un médecin villeneuvois accusé de crimes au Rwanda pourrait être renvoyé aux assises [A doctor from the city of Villeneuve accused of several crimes in Rwanda could be referred to the French Criminal Court]. https://www.ladepeche.fr/article/2018/05/21/ 2801929-medecin-villeneuvois-accuse-crimes-rwanda-pourrait-etre-renvoye-assises.html. Accessed 7 May 2019. 488 Le Point (2018) Génocide au Rwanda: un ancien préfet rwandais renvoyé aux assises en France [Genocide in Rwanda: a Rwandan former prefect is referred to the French Criminal Court]. https://www.lepoint.fr/societe/genocide-au-rwanda-un-ancien-prefet-rwandais-renvoye-auxassises-en-france-31-12-2018-2282667_23.php. Accessed 7 May 2019. 489 ICTR, Prosecutor v. Laurent Bucyibaruta, Indictment, 16 June 2005, Case No. ICTR-2005-85-I. 490 ICTR, Prosecutor v. Laurent Bucyibaruta, Decision on Prosecutor’s request for referral of Laurent Bucyibaruta’s indictment to France, 20 November 2007, Case No. ICTR-2005-85-I.

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against humanity and war crimes unit of the Court of Paris refused to probe France for the responsibility of the French military during the Bisesero massacre, during which 60 000 Tutsis fighting against the Hutu paramilitary organization Interahamwe were killed.491 Moreover, on 9 April, the Yemeni human rights group Legal Center for Rights and Development filed a complaint against the Crown Prince of Saudi Arabia, Mohammed bin Salman, when he visited France. He is accused of war crimes, complicity in torture and inhumane treatment. The alleged crimes took place in Yemen.492 A landmark decision against a company was reached on 28 June. Three Investigating Judges of the Paris High Court charged the legal entity Lafarge S.A. (now LafargeHolcim Ltd) with complicity in crimes against humanity,493 financing of a terrorist enterprise, breaching an embargo, and endangering the lives of others. Lafarge S.A. allegedly paid millions of euros to IS and several other armed groups to keep their cement factory in territories under their respective control running. The Investigative Judges ordered LafargeHolcim Ltd to transfer approximately USD 34 million (after conversion) to the authorities as a security deposit ahead of a possible trial.494 In October, French Judges issued, for the first time, international arrest warrants against three high-level Syrian government officials: Ali Mamluk and Jamil Hassan, also subject to an arrest warrant issued by Germany earlier that year, were both wanted for complicity in crimes against humanity, torture and enforced disappearances. Abdel Salam Mahmoud, in charge of the Air Force Intelligence investigative branch at Mezzeh Military Airport in Damascus, a detention site with one of the highest mortality rates in Syria according to the UN’s Commission of

491

Gras R (2018) Génocide au Rwanda: les juges d’instruction français rejettent la réouverture de l’enquête sur le massacre de Bisesero [Genocide in Rwanda: the French investigating judges refuse to reopen the investigation on the Bisesero massacre]. https://www.jeuneafrique.com/674262/ societe/genocide-au-rwanda-les-juges-dinstruction-francais-rejettent-la-reouverture-de-lenquetesur-le-massacre-de-bisesero/. Accessed 7 May 2019. 492 Jarry E (2018) Rights group sues Abu Dhabi Crown Prince in France over Yemen. https:// www.reuters.com/article/us-france-emirates/rights-group-sues-abu-dhabi-crown-prince-in-franceover-yemen-idUSKCN1NQ1IU?fbclid=IwAR3iA9a0trRFPoFVgNIoFTQS2c8l8oZp0NOvpnEtW -Brz8N1bTMG_Sacjtc. Accessed 7 May 2019. 493 BFMTV/AFP (2018) Syrie: Lafarge inculpé de “complicité de crimes contre l’humanité” [Syria: Lafarge accused of “complicity in crimes against humanity”]. https://www.lexpress.fr/ actualite/monde/proche-moyen-orient/syrie-lafarge-inculpe-de-complicite-de-crimes-contre-lhumanite_2021242.html. Accessed 7 May 2019. 494 Courrier International (2018) Lafarge accusé de complicité de crimes de guerre. [Lafarge accused of complicity in war crimes]. https://www.courrierinternational.com/article/lafargeaccuse-de-complicite-de-crimes-contre-lhumanite. Accessed 7 May 2019.

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Inquiry, was wanted on war crimes charges as well as complicity in crimes against humanity, torture and enforced disappearances.495

6.2.3.9

Germany

In Germany, several cases prosecuting former Nazi SS guards were ongoing. A landmark 2011 court ruling against John Demjanjuk496 enabled German Prosecutors to charge the few surviving Nazi SS guards as accessory to mass murder. This year, three such cases appeared before German courts. On 8 January, the German Federal Court of Justice convicted Oskar Gröning, a former SS Officer who worked in Auschwitz, known as the “Bookkeeper of Auschwitz”, as accessory to the murder of 300 000 Jews. Efraim Zuroff497 assisted the authorities to prosecute Gröning. During his time at the Auschwitz Concentration Camp, Gröning was responsible for collecting money and jewellery belonging to the Jews that had just arrived at the camp in order to transfer the belongings to the Nazi headquarters in Berlin. During his trial, he stated that he had witnessed mass killings but denied any direct role in the genocide. According to the Presiding Judge, Gröning was part of the “machinery of death” that helped the camp function smoothly.498 However, Gröning passed away in March before the start of his prison sentence.499 On 16 April, German Prosecutors charged a 94-year-old former SS guard at Auschwitz as accessory to murder. The accused, Johann Rehbogen, is a German national born in Serbia who allegedly served as a guard at Auschwitz in late 1942 and early 1943.500 On 6 November, he appeared for trial before the Regional Court in Münster. The former guard is also charged with complicity in murders, in this case at the Nazi concentration camp of Stutthof.501 Because he was younger than 21 years old when the alleged offenses took place, he will be tried in a juvenile

495 Reuters (2018) France issues arrest-warrants for senior Syrian officials. https://www.reuters. com/article/us-syria-crisis-france/france-issues-arrest-warrants-for-senior-syrian-officials-idUSKC N1NA11L. Accessed 7 May 2019. 496 DW (2018) Court finds Nazi guard guilty of Holocaust deaths. https://www.dw.com/en/courtfinds-nazi-guard-guilty-of-holocaust-deaths/a-15068941. Accessed 15 May 2019. 497 For details on his curriculum and his activities in Finland, see above, Sect. 6.2.3.7. 498 Johansson S (2018) Kendt nazijæger: Kæmper stadig for at få danskere dømt [Known Nazi Hunter: Still struggling to get Danes condemned]. https://www.bt.dk/historie/kendt-nazijaegerkaemper-stadig-for-at-faa-danskere-doemt. Accessed 7 May 2019. 499 Agence France-Presse (2018) ‘Bookkeeper of Auschwitz’ dies before entering jail. https:// www.theguardian.com/world/2018/mar/12/bookkeeper-auschwitz-dies-before-jail-nazis. Accessed 7 May 2019. 500 BBC News (2018) Ex-Auschwitz SS guard charged in Germany. https://www.bbc.com/news/ world-europe-43782035. Accessed 7 May 2019. 501 Reuters (2018) Wheelchair-bound 94-year old German on trial for Nazi crimes. https://www. reuters.com/article/us-germany-warcrimes/wheelchair-bound-94-year-old-german-on-trial-fornazi-crimes-idUSKCN1NB17Y. Accessed 7 May 2019.

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court.502 Finally, on 24 November, Hans Werner H., was charged as an accessory to the murder of 36 000 people at the Nazi concentration camp Mauthausen where he allegedly acted as a guard.503 One former SS guard, Jakiw Palij, a 95-year-old Nazi war crimes suspect, was deported from the US to Germany. He travelled to the US under false pretences and lived there for many years unrecognised. He is the last Nazi suspect whose deportation from the US was ordered.504 Regarding other crimes, on 9 January, Milorad Obradović was arrested at Munich Airport on suspicion of detaining and murdering Bosnian Muslims during the Yugoslav Wars.505 Moreover, on 25 September, a commander of the Ghuraba as-Sham Front, fighting under the Free Syrian Army (FSA) umbrella group, was sentenced to life imprisonment by the Upper District Court in Düsseldorf for war crimes.506 A former officer in the Afghan army was also charged with war crimes by German prosecutors. The man allegedly took part in the abuse of prisoners. The suspect was arrested near Munich on 25 October.507 Finally, the German Federal Court of Justice overturned the conviction of Ignace Murwanashyaka, former President of the Democratic Forces for the Liberation of Rwanda, an ethnic Hutu paramilitary group, and rejected the appeal of Straton Musoni, his deputy since 2004. They were previously sentenced to respectively 13 years and eight years in prison as accessory to war crimes in eastern DRC as well as of leading a terrorist organisation. Murwanashyaka’s case was sent for a retrial before the Higher Regional Court in Stuttgart due to legal errors in the reasoning of the original verdict.508

502 Georgiou A (2018) 94-year-old nazi war crimes suspect faces trial in German juvenile court. https://www.newsweek.com/94-year-old-nazi-war-crimes-suspect-faces-trial-german-juvenilecourt-1134435. Accessed 7 May 2019. 503 CBS News (2018) Alleged SS guard charged as accessory to 36,000 deaths at Nazi camp. https://www.cbsnews.com/news/nazi-guard-hans-werner-h-charged-over-36000-deaths-atmauthausen-concentration-camp/. Accessed 7 May 2019. 504 Brennhold K, Hirschfeld Davis J (2018) Ex-Nazi Guard in U.S., Now 95, is deported to Germany. https://www.nytimes.com/2018/08/21/world/europe/nazi-guard-deported.html. Accessed 7 May 2019. 505 Reuters (2018) Suspected Bosnian Serb war criminal arrested in Munich. https://www.reuters. com/article/us-bosnia-warcrimes-germany/suspected-bosnian-serb-war-criminal-arrested-inmunich-idUSKBN1EY1EF. Accessed 7 May 2019. 506 CNN (2018) Germany convicts member of Western-backed Syrian opposition for ‘war crimes’. https://edition.cnn.com/2018/09/25/middleeast/german-syrian-conviction-intl/index.html. Accessed 7 May 2019. 507 RFE (2018) Germany charges Ex-Afghan army officer with war crimes. https://www.rferl.org/ a/germany-charges-ex-afghan-army-officer-with-war-crimes/29570848.html. Accessed 7 May 2019. 508 Punch (2018) Germany reopens war crimes case against Rwandan rebel leaders. https:// punchng.com/germany-reopens-war-crimes-case-against-rwandan-rebel-leaders/?fbclid= IwAR2L1GKJ7z_wKKjBHTiQB–j5r7gOUaZkzP4LKzPsEv-Tq5kO8mSludOwf4. Accessed 7 May 2019.

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Guatemala

In Guatemala, three high-profile cases concerning crimes against humanity and war crimes committed during the civil war took place before the courts in 2018. Firstly, the case of José Mauricio Rodríguez Sánchez, a former military intelligence Chief under former dictator José Efraín Ríos Montt, who was accused of genocide and crimes against humanity against the Maya Ixil people. The two were tried together in 2013. Rodríguez Sánchez was acquitted and Ríos Montt was convicted,509 but a controversial Constitutional Court decision resulted in the verdict being vacated.510 The retrial finally started in October 2017. Ríos Montt’s 17-month rule is widely viewed as the most violent in a 36-year armed conflict that left 200 000 people dead, 400 villages demolished, and tens of thousands of victims of torture, sexual violence and forced labour. On 26 September, Judges of the Guatemalan High Risk Court B unanimously held that the Guatemalan army committed genocide and crimes against humanity but disagreed on whether it was proven that the defendant gave the commands.511 The atrocities included the destruction of at least 50 villages in the Ixil region, massacres against the civilian population, the widespread use of torture and sexual violence, especially against women, and search and destroy operations against the displaced population who, fleeing army violence, went to live in the mountains. The court affirmed that the structural racism and discrimination against the indigenous population that has characterised Guatemalan history was the underlying factor pushing the army’s counterinsurgency strategy towards acts of genocide.512 However, in a split 2-1 ruling, the majority opinion of Presiding Judge María Eugenia Castellanos and Judge Jaime González Marín acquitted Rodríguez Sánchez of all charges, while Judge Sarah Yoc Yoc delivered a dissenting opinion affirming his culpability for the atrocities. According to the majority opinion, the Attorney General’s Office failed to produce evidence demonstrating that Rodríguez Sánchez gave the orders to commit these atrocities. He was therefore acquitted on both counts.513 Secondly, the Molina Theissen case underwent important developments in 2018. On 1 March, the trial of five former military officers began. The officers were accused of crimes against humanity for the illegal detention, torture and rape of

509

Human Rights Watch (2013) Guatemala: Rios Montt Convicted of genocide. https://www. hrw.org/news/2013/05/10/guatemala-rios-montt-convicted-genocide. Accessed 7 May 2019. 510 BBC News (2013) Guatemala annuls Rios Montt’s genocide conviction. https://www.bbc. com/news/world-latin-america-22605022. Accessed 7 May 2019. 511 Burt JM (2018) Court Finds Guatemalan Army Committed Genocide, but Acquits Military Intelligence Chief. https://www.ijmonitor.org/2018/09/court-finds-guatemalan-army-committedgenocide-but-acquits-military-intelligence-chief/. Accessed 7 May 2019. 512 Nacla (2018) Imperfect justice in Guatemala. https://nacla.org/news/2018/10/12/imperfectjustice-guatemala. Accessed 7 May 2019. 513 Reuters (2018) Guatemala’s former intelligence chief acquitted of human rights violations. https://www.reuters.com/article/us-guatemala-rights/guatemalas-former-intelligence-chiefacquitted-of-human-rights-violations-idUSKCN1M70AZ. Accessed 7 May 2019.

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Emma Guadalupe Molina Theissen as well as the enforced disappearance of her brother Marco Antonio Molina Theissen.514 The officers on trial were Benedicto Lucas García, the former Head of the Army High Command, Manuel Antonio Callejas y Callejas, the former Director of Intelligence of the Army High Command, Francisco Luis Gordillo Martínez, former Commander of Military Zone No. 17 (MZ17) at the time of the alleged crimes, retired Colonel Edilberto Letona Linares and retired Major Hugo Ramiro Zaldaña Rojas. Emma Molina Theissen’s brother, Marco Antonio, was kidnapped by the MZ17 military unit a day after she managed to escape army custody. In April 2004, the government admitted before the Inter-American Commission on Human Rights the responsibility for the enforced disappearance of Marco Antonio. The Commission ordered the state to investigate and prosecute the perpetrators.515 On 2 May, the Guatemalan High Risk Appellate Court heard the recusal motion presented by the Defence lawyers against Judge Pablo Xitumul, President of the Guatemalan High Risk Court C. The motion alleges that Judge Xitumul’s father was forcibly disappeared by the Guatemalan military in 1981 and that his remains were exhumed from a military base in Rabinal and identified in 2003. The Defence lawyer, who claimed that he learned of the information only on 7 April, argued that Judge Xitumul was not acting impartially in the proceedings, favouring the Attorney General’s Office and the civil parties in his decisions and that he had prejudices against the Guatemalan military. However, the Appellate Court rejected the motion516 on the basis that the main arguments presented by the defence lacked merit and that there was no relationship between the alleged enforced disappearance of the Judge’s father and the Molina Theissen case because they occurred in different places. Lastly, on 23 May, four of the defendants, Lucas García, Callejas y Callejas, Gordillo Martinez and Zaldaña Rojas, were convicted of crimes against humanity for the illegal detention and torture of Emma Molina Theissen. They were sentenced to 25 years in prison but the court also found them guilty of the aggravated sexual abuse of Emma and sentenced them to an additional eight years. Three of the officers, Lucas García, Callejas y Callejas and Zaldaña Rojas, were also found guilty of the enforced disappearance of Emma’s brother and sentenced to 25 years. Gordillo Martínez was thus sentenced to 33 years while the other officers were

514 Reisman T (2018) Much anticipated Molina Theissen trial begins in Guatemala City. https:// www.ijmonitor.org/2018/03/much-anticipated-molina-theissen-trial-begins-in-guatemala-city/. Accessed 7 May 2019. 515 Europa Press (2018) Guatemala condena a cuatro militares por crímenes contra una joven y un menor durante la guerra civil [Guatemala condemns four military for crimes committed against a young woman and a minor during the civil war]. https://www.europapress.es/internacional/noticiaguatemala-condena-cuatro-militares-crimenes-contra-joven-menor-guerra-civil-20180524023424. html. Accessed 7 May 2019. 516 Burt JM (2018) Appellate Court Rejects Defense Recusal Motion; Molina Theissen Trial to Continue Next Week. https://www.ijmonitor.org/2018/05/appellate-court-rejects-defense-recusalmotion-molina-theissen-trial-to-continue-next-week/. Accessed 7 May 2019.

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sentenced to 58 years.517 Letona Linares, was, however, acquitted of all charges. The court determined he lacked command responsibility and was not a member of the military intelligence division. Finally, the trial against Santos López Alonzo, a former member of the Guatemalan military and charged with crimes against humanity for his role in the Dos Erres massacre, began on 1 October. He was a member of the Special Kaibil Patrol, a special operations unit of the Guatemalan armed forces specialising in counterinsurgency warfare.518 On 22 November, he was found guilty of the assassination of 171 men, women, and children in the village of Dos Erres on 6 and 7 December 1982. The court sentenced the soldier to 5 130 years in prison, 30 years for each victim. He was sentenced to an additional 30 years for crimes against humanity committed in the context of the massacre.519 The court found that the attack on the village of Dos Erres was ordered in the belief that some of its inhabitants were guerrillas of the Rebel Armed Forces (FAR), who had ambushed a military convey near the Las Cruces military base and escaped with an estimated 20 rifles. The court, noting that the Special Kaibil Patrol did not find weapons or guerrilla fighters in the village, determined that the people living in Dos Erres should have been regarded as civilians. It also found that each soldier had a specific function in the planning of the massacre to ensure that all of the inhabitants were killed. The court determined that the accused was present at Dos Erres on the day of the massacre and that he collaborated in the killing of 171 people. Despite progress made in the judicial sphere regarding convictions for crimes against humanity and war crimes, the Guatemalan Congress initiated a bill that would grant amnesty for crimes against humanity and war crimes committed during the civil war.520 The bill would result in the annulment of the sentences of convicts and stop open investigations and indictments. The bill has, by the end of 2018, not been approved yet.

517

The Guardian (2018) Guatemala: ex-military officers convicted of crimes against humanity. https://www.theguardian.com/world/2018/may/23/guatemala-ex-military-officers-convicted-ofcrimes-against-humanity. Accessed 7 May 2019. 518 Burt JM (2018) Dos Erres Massacre trial starts today. https://www.ijmonitor.org/2018/10/doserres-massacre-trial-starts-today/. Accessed 7 May 2019. 519 The New York Times (2018) Ex-Soldier Gets 5,160 Years in Prison for Guatemala Massacre. https://www.nytimes.com/2018/11/22/world/americas/guatemala-soldier-massacre-santos-lopezalonzo.html. Accessed 7 May 2019. 520 Gramajo J (2018) Guatemala: Dictaminan a favor de la amnistía en delitos de lesa humanidad [Lawmakers decision in favor of amnesty for crimes against humanity]. https://www.nodal.am/ 2018/06/guatemala-dictaminan-a-favor-de-la-amnistia-en-delitos-de-lesa-humanidad/. Accessed 7 May 2019.

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Kosovo

The Kosovar Court of Appeals upheld the acquittal of Fatmir Limaj, the current Deputy Prime Minister of Kosovo, for war crimes. The charges concerned the killing of two Albanian civilians during the Kosovo War, when Limaj was a Commander of the Kosovo Liberation Army.521

6.2.3.12

Netherlands

On 2 January, Eshetu Alemu, who was sentenced to life imprisonment by the Hague District Court on 15 December 2017 for war crimes carried out during Ethiopia’s Red Terror purges, appealed against his conviction. His lawyer argued that the Defence was unable to properly investigate the authenticity of documents and that some witnesses could not be questioned, therefore not fulfilling the fair trial requirement.522 The defendant was accused of representing the repressive regime of the Provisional Military Government of Socialist Ethiopia in the northern part of the country, and for being responsible for arbitrarily executing 75 prisoners, torturing nine people and imprisoning more than 300 political opponents. In October, for the first time, the Public Prosecution Service in the Netherlands decided to pursue legal action against a Dutch jihadi, Oussama A., for war crimes committed in Syria. The man had posted a photo on social media of himself smiling next to an individual who had been crucified.523 Finally, on 18 December, the Dutch Supreme Court upheld Dutch arms dealer Guus Kouwenhoven’s conviction for aiding and abetting war crimes, despite a trial in absentia.524 According to the Supreme Court, whilst managing the largest timber operation in Liberia, Guus Kouwenhoven facilitated the importation of weapons for Charles Taylor, thereby contravening UN Security Council resolutions. These weapons were supplied to militias and used to carry out numerous massacres. Guus Kouwenhoven provided trucks, drivers, and facilities for the transportation and storage of weapons, as well as armed personnel to Charles Taylor’s troops.

521

Baliu D, Morina D, BIRN (2018) Kosovo Deputy PM Limaj’s War Crimes Acquittal Upheld. https://balkaninsight.com/2018/11/14/kosovo-court-upheld-limaj-s-war-crimes-acquittal-11-142018/. Accessed 7 May 2019. 522 Van Laarhoven K (2018) Eshetu A. in hoger beroep tegen veroordeling oorlogsmisdaden [Eshetu A. appeals against conviction of war crimes]. https://www.nrc.nl/nieuws/2018/01/02/ eshetu-a-in-hoger-beroep-tegen-veroordeling-oorlogsmisdaden-a1586832. Accessed 7 May 2019. 523 Dutch News (2018) Dutch jihadi guilty of war crimes, public prosecutor says. https://www. dutchnews.nl/news/2018/10/dutch-jihadi-guilty-of-war-crimes-public-prosecutor-says/. Accessed 7 May 2019. 524 West African Journal Magazine (2018) Dutch Supreme Court Upholds Gus Kouwenhoven’s Conviction; Extradition Pending. https://westafricanjournalmagazine.com/2018/12/18/dutchsupreme-court-upholds-gus-kouwenhovens-conviction-extradition-pending/. Accessed 7 May 2019.

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Peru

In December 2017, the then President of Peru Pedro Pablo Kuczynski granted a pardon to former President Alberto Fujimori in relation to the proceedings brought against him for the murder of six peasant farmers in the town of Pativilca on 29 January 1992, considered crimes against humanity by the Inter-American Court of Human Rights.525 The pardon put an immediate end to the criminal proceedings against him. In 2009, Fujimori was found guilty of kidnapping and murder. He was sentenced to 25 years in prison for crimes against humanity.526 However, in October 2018, the Supreme Court overturned the pardon.527 According to Judge Hugo Núñez, the pardon, which was granted for medical reasons, lacked a legal basis and had been pushed through too quickly. The Supreme Court followed the path laid out by the Inter-American Court of Human Rights affirming that the pardon granted to the former President is incompatible with the international obligations of Peru.

6.2.3.14

Rwanda

At the end of 2018, Charles Bandora, former vice-chairman of the National Republican Movement for Democracy and Development, appealed his 30-year sentence before the Supreme Court of Rwanda. He had been found guilty of genocide, committed in the current Bugesera District, by the High Court Specialised Chamber for International Crimes in May 2015. According to Bandora’s lawyers, there was not enough evidence for a conviction.528

6.2.3.15

Spain

In April, the Spanish National Court, refused for a second time to forward documents related to two murders committed by the terrorist group Basque Country and Freedom, more commonly known as ETA, to Argentinian Investigating Judge Rodolfo Canicoba, who is in charge of investigating crimes against humanity

525

IACHR, Barrios Altos y Caso La Cantuta vs. Peru, Resolution, 30 May 2018, http://www. corteidh.or.cr/docs/supervisiones/barriosaltos_lacantuta_30_05_18.pdf. Accessed 24 June 2019. 526 Carroll R (2009) Former Peruvian president Alberto Fujimori sentenced to 25 years. https:// www.theguardian.com/world/2009/apr/07/alberto-fujimori-peru. Accessed 7 May 2019. 527 Collyns D (2018) Peru’s high court overturns pardon of former strongman Fujimori. https:// www.theguardian.com/world/2018/oct/03/peru-high-court-overturns-pardon-alberto-fujimori. Accessed 7 May 2019. 528 Rwamapera K (2018) Bandora appeals 30-year jail term for Genocide. https://www.newtimes. co.rw/rwanda/bandora-appeals-30-year-jail-term-genocide. Accessed 7 May 2019.

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committed by the terrorist group.529 The court justified the decision stating that both cases had already been investigated under Spanish law. The organisation Dignidad y Justicia filed a criminal complaint with the Argentinian Investigating Judge on the basis of universal jurisdiction, taking into account crimes committed before 2004.530 Indeed, the Argentinian judicial authority took over the case due to the inability of Spanish courts of investigating crimes against humanity committed before 2004. The Spanish National Court was, however, also investigating senior Leaders of ETA and claimed an overriding right to judge four former ETA Leaders for crimes against humanity committed by the organisation since 1 October 2004.531 Spain has established a truth commission532 to probe crimes against humanity committed during the dictatorship of Francisco Franco. Indeed, in August, the first case dealing with the Franco dictatorship began. It concerned one of the thousands of babies who were taken away from their parents during Franco’s rule.533 Eduardo Vela, a former gynaecologist at the San Ramon clinic in Madrid, was accused of falsifying Inés Madrigal’s birth records in Madrid in 1969. Prosecutors had sought an 11-year prison sentence on charges of unlawful detention, falsifying official documents and certifying a non-existent birth. However, Madrid’s Provincial Court, in spite of recognising that Vela had committed the three offences, acquitted him on the basis of statutory limitations.534 In fact, the statutory limitation for the most serious crime, unlawful detention, had already expired when the complaint was brought in 2012. On 26 October, the Spanish National Court rejected two letters rogatory of the Argentinian judicial authorities535 that had requested documents and archives relating to two cases within the framework of Argentinian investigations of torture, murder and enforced disappearance cases that occurred between 1936 and 1977 under the Franco dictatorship. The first one concerns crimes against humanity

529 Ballesteros RR (2018) España se niega a colaborar con la Justicia argentina en la lesa humanidad de ETA [Spain refuses to collaborate with Argentina in the ETA crimes against humanity cases]. https://www.elconfidencial.com/espana/2018-04-09/espana-se-niega-a-colaborarcon-la-justicia-argentina-en-la-lesa-humanidad-de-eta_1545861/. Accessed 7 May 2019. 530 Lázaro F (2018) Primer juicio a cuatro jefes de ETA por crímenes de lesa humanidad [First trial against four leaders of ETA for crimes against humanity]. https://www.elmundo.es/espana/ 2018/04/30/5ae5e96ce2704e33598b4653.html. Accessed 7 May 2019. 531 Ibid. 532 Burgen S (2018) Spain launches truth commission to probe Franco-era crimes. https://www. theguardian.com/world/2018/jul/12/spain-to-establish-truth-commission-for-franco-era-crimes. Accessed 7 May 2019. 533 NPR (2018) First stolen baby case from Franco dictatorship goes to court in Spain. https:// www.npr.org/2018/08/14/638629411/first-stolen-baby-case-from-franco-dictatorship-goes-tocourt-in-spain. Accessed 7 May 2019. 534 Jones S (2018) Spanish doctor found guilty but acquitted in ‘stolen babies’ case. https://www. theguardian.com/world/2018/oct/08/spanish-doctor-eduardo-vela-found-guilty-but-acquitted-instolen-babies-case. Accessed 7 May 2019. 535 Gómez JA (2018) Los delitos de lesa humanidad Sí prescriben en España [Crimes against humanity are limited in time in Spain]. https://diario16.com/los-delitos-lesa-humanidadprescriben-espana/. Accessed 7 May 2019.

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committed against Federico Garcia Lorca. The other case related to a request for testimony to be made by the former Spanish Minister of Interior Rodolfo Martín Villa who is accused of crimes against humanity committed during a massive strike in Vitoria on 3 March 1976.536 The refusal by Judge José de la Mata Amaya did not come as a surprise as Spain had not ratified the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity.537 Therefore, according to the Judge, anything related to the murder of Garcia Lorca is statute-barred as it occurred more than 80 years ago. Finally, Spanish Minster of Justice Dolores Delgado announced the government’s intention to re-establish universal jurisdiction for certain international crimes.538 Since 2009, the legislation had been repetitively restricted and had allowed Spanish courts to exercise jurisdiction over war crimes, crimes against humanity or genocide solely if they were directed against Spanish citizens or residents.

6.2.3.16

South Africa

In January, the Cape Town Magistrate’s Court granted a postponement in the case involving Dutch arms dealer Guus Kouwenhoven convicted of complicity in crimes against humanity for selling firearms to former Liberian president Charles Taylor, who is awaiting extradition documentation.539 In 2017, Prosecutors in the Netherlands had requested a 19-year sentence and in April 2017 he was indeed sentenced in absentia to 19 years imprisonment by the Court of Appeal in ’s-Hertogenbosch.540 The Dutch Court thereafter requested his extradition to the Netherlands.541 However, in June 2018, his extradition hearing was postponed once again.542

536

Trial International 2018. Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, opened for signature 16 December 1968, 754 UNTS 73 (entered into force 11 November 1970). 538 Spanish Ministry of Justice (2018). Nota de Prensa: La Ministra Delgado expone en el Congreso los siete ejes qui guiarán su gestión al frente de Justicia [Press release: Minister Delgado presents before the Congress the seven core ideas that will guide the government’s management of the Justice]. https://www.mjusticia.gob.es/cs/Satellite/Portal/1292428853683?blobheader= application%2Fpdf&blobheadername1=Content-Disposition&blobheadername2=Medios&blobhe adervalue1=attachment%3B+filename%3D180711ComparecenciadelaministradeJusticia. pdf&blobheadervalue2=1288798968746. Accessed 7 May 2019. 539 Global News Network Liberia (2018) Dutch arms dealer case postponed in wait of extradition documentation. http://gnnliberia.com/2018/01/14/dutch-arms-dealer-case-postponed-waitextradition-documentation/. Accessed 7 May 2019. 540 For the decision of the Court of Appeal, see Lin et al. 2019, p. 311. 541 For the proceedings in the Netherlands, see above, Sect. 6.2.3.12. 542 Meyer D (2018) War criminal remains free in Cape Town to prosecutor’s frustration. https:// www.timeslive.co.za/news/south-africa/2018-06-25-war-criminal-remains-free-in-cape-town-toprosecutors-frustration/. Accessed 7 May 2019. 537

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South Sudan

According to the Office of the United Nations High Commissioner for Human Rights, at least 232 civilians were killed and 120 women were raped in South Sudan during an offensive that took place between 16 April and 24 May 2018, before the signing of a peace agreement,543 identifying three commanders as bearing the “greatest responsibility”.544 In fact, after the signing of the peace deal in South Sudan,545 the United Nations Human Rights Commission on South Sudan was calling on the government to set up a hybrid court to address potential war crimes and crimes against humanity.546 The projected court would be hybrid in nature and consist of South Sudanese Judges and international war crimes experts, tasked with trying those accused of committing atrocities during South Sudan’s nearly five-year civil war that started in 2013.547 However, the government of South Sudan is against setting up such a hybrid court.548

6.2.3.18

Sri Lanka

In August, the Northern Provincial Council in Sri Lanka passed a resolution to request the UN Human Rights Council to establish a court to hold responsible individuals for alleged war crimes and human rights abuses that occurred during the civil war between 1983 and 2009.549 According to one of the Provincial Council’s members, M.K. Sivajilingam, the Sri Lankan government has not conducted any investigation into war crimes committed in the Northern part of the country by its armed forces and that the government had failed to provide justice for Tamil people who lost their lives due to the war.550 In October, upon a request by the UN, a Sri Lankan Commander, Kalana Amunupure, was recalled from his mission with the UN peacekeeping contingent in 543 Al Jazeera (2018) South Sudan president signs peace deal with rebel leader. https://www. aljazeera.com/news/2018/09/south-sudan-president-signs-peace-deal-rebel-leader180912185452831.html. Accessed 7 May 2019. For more information about the conflict and the conclusion of the peace agreement, see above, Sect. 6.1.13. 544 UNMISS/OHCHR 2018. 545 For more information about the peace agreement, see above, Sect. 6.1.13. 546 Morgan H (2018) South Sudan war crimes: UN calling for forming hybrid court. https://www. aljazeera.com/news/2018/09/south-sudan-war-crimes-calling-forming-hybrid-court180917183035089.html. Accessed 7 May 2019. 547 For the background and developments in 2018 regarding the conflict, see above, Sect. 6.1.13. 548 Aurelio DS (2018) South Sudan government objects to war crimes court. https://www. voanews.com/a/south-sudan-government-objects-war-crimes-court/4598220.html. Accessed 7 May 2019. 549 Pabasara T (2018) NPC adopts proposal on establishing war crimes court. http://www. adaderana.lk/news/49722/npc-adopts-proposal-on-establishing-war-crimes-court. Accessed 7 May 2019. 550 Ibid.

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Mali. He was suspected of being responsible for alleged war crimes committed during the Sri Lankan civil war, which ended in 2009.551

6.2.3.19

Sweden

In 2010, the European Coalition on Oil in Sudan published a report552 indicating that the Swedish company Lundin Petroleum may have been complicit in international crimes committed in Sudan between 1997 and 2003 by providing financial support to several militias and the Sudanese armed forces. The report was submitted to the Swedish International Public Prosecution Office, which opened a preliminary investigation the same year. Alex Schneiter, Head of Exploration during the relevant time period and now Lundin’s Chief Executive Officer, and Ian Lundin, Chairman of the Board, became formal suspects after being questioned by Prosecutors in 2016. Pursuant to Swedish law, the exercise of extraterritorial jurisdiction requires governmental authorisation.553 On 18 October, the Swedish Government authorised the International Public Prosecution Office to proceed with an indictment in this case.554 If convicted of aiding and abetting, Ian Lundin and Alex Schneiter could face sentences up to life imprisonment. Both strongly deny the charges. On 27 June, the judgment in the case of Theodore Rukeratabaro was delivered. He was allegedly involved in the 1994 Rwandan genocide. The alleged crimes took place between 9 April and 31 May 1994, in the Winteko, Nyakanyinya and Mibirizi sectors, in southwestern Rwanda. From 9 April 1994, Rukeratabaro, together with other Hutu fighters, allegedly took part in the massacre of numerous civilians and the rape of women and young girls in Winteko. On 13 April 1994, he allegedly participated in the Nyakanyinya school attack, where several hundred people were killed or seriously injured by grenades, gunfire, and knives. He is also accused of taking part in the Mibirizi church attack, several days later. He was found guilty of murder, attempted murder and kidnapping of members of the Tutsi minority, with the aim to completely or partially destroy the group and was sentenced to life in prison by the District Court of Stockholm. He was, however, not found guilty of the

551 AP (2018) Sri Lanka to recall peacekeeping commander on UN request. https://www.apnews. com/c68ca3b6023246fe89fff70ed8e29822. Accessed 7 May 2019. 552 European Coalition on Oil in Sudan 2010. 553 Ingeson and Kather 2018; The Local (2018) Swedish oil executives face charges over complicity in war crimes. https://www.thelocal.se/20181019/swedish-oil-executiveschargescomplicity-in-war-crimes?fbclid=IwAR2_MYgL4hi2jIONB7Uy6X4vQv_ aZT2dXPxGCFtBZns5jv7A0bGFkXhyGXo. Accessed 7 May 2019. 554 Rolander N (2018) Prosecutor Readies War Crime Charges Against Swedish Oil Bosses. https://www.bloomberg.com/news/articles/2018-10-26/prosecutor-readies-war-crime-chargesagainst-swedish-oil-bosses. Accessed 7 May 2019.

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rape charges that could not be proven.555 He is the third person to be convicted for genocide in Sweden. His appeal trial commenced on 10 September556 and a decision is expected to be delivered in April 2019.

6.2.3.20

Switzerland

On 30 May, the Federal Criminal Court annulled the decision by the Office of the Attorney General to drop charges against Khaled Nezzar, former Minister of Defence of Algeria. The Office of the Attorney General closed the case in 2017 by arguing that the precondition of an armed conflict had not been proven at the time he had been charged. The Federal Criminal Court, in 2018, thus recognised the existence of an armed conflict in Algeria in the early 1990s and approved the complaints of three Algerians against Nezzar for torture and arbitrary arrests under the Geneva Conventions.557 In more detail, the defendant was accused of various war crimes, such as enforced disappearances, extrajudicial killings and torture committed between 1992 and 1994, during the Algerian civil war. Prior to the annulment, a letter signed by the UN Special Rapporteurs on torture and on the independence of judges and lawyers was published by the UN. It heavily criticized Switzerland for an alleged lack of independence and political interferences concerning the case against Khaled Nezzar.558

6.2.3.21

United Kingdom

In 2018, five key suspects of the Rwandan genocide were placed under investigations by the Metropolitan Police’s war crimes unit. The suspects were alleged to have held key leadership positions under the regime during the genocide. Rwanda already issued indictments against them 11 years ago.559 One of the suspects was a coordinator of a militia in Kigali, allegedly organising regular meetings in his home to organise the killing of the Tutsis.

555 The New Times (2018) Government welcomes life sentence against genocide suspect in Sweden. https://www.newtimes.co.rw/news/government-welcomes-life-sentence-againstgenocide-suspect-sweden. Accessed 7 May 2019. 556 The New Times (2018) Appeal in Genocide convict’s case begins in Swedish court. https:// www.newtimes.co.rw/news/appeal-genocide-convicts-case-begins-swedish-court. Accessed 7 May 2019. 557 Information Platform Human Rights (2018) Nezzar Case: the Federal Criminal Court reprimands the Office of the Attorney General of Switzerland. https://www.humanrights.ch/en/ switzerland/internal-affairs/punishment/penal-action/nezzar-case-federal-criminal-courtreprimands-office-attorney-general-switzerland. Accessed 7 May 2019. 558 UN Special rapporteur on torture and on the independence of judges and lawyers 2018. 559 Tashobya A (2018) Rwanda: Genocide Suspects in UK Face Fresh Investigation. https:// allafrica.com/stories/201804170030.html. Accessed 7 May 2019.

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United States

Two important cases concerning war crimes committed during Liberia’s civil war were brought before US courts in 2018. On 12 February, four survivors of the 1990 Lutheran Church massacre, which killed 600 civilians in the St Peter’s Lutheran Church in Monrovia, brought a civil lawsuit before the US Federal District Court for the Eastern District of Pennsylvania against Moses Thomas. The lawsuit argued that Moses Thomas would bear responsibility for the murders in his capacity as Head of the back then Liberian government’s Anti-Terrorist Unit.560 The lawsuit was filed by the Centre for Justice and Accountability and its Liberian partner Global Justice and Research Project on behalf of the four survivors. On 19 April, a Liberian warlord called Mohammed Jabbateh, also known as “Jungle Jabbah”, was sentenced to 30 years’ imprisonment for immigration frauds and perjury by lying about his role in Liberia’s civil war.561 Indeed, in his capacity as leader of the rebel group ULIMO-K, Mohammed Jabbateh allegedly ordered, facilitated and encouraged murders of civilians, enslavement and sexual enslavement, public raping, maiming of civilians and conscription of child soldiers. Despite being convicted of immigration fraud and perjury instead of war crimes, the trial was believed to be a monumental victory for Liberians and the “first case to provide some justice for victims of Liberia’s civil war”.562 Moreover, two members of the US Navy SEAL were accused of war crimes, a historical step. On 11 September, Chief Special Warfare Operator Edward Gallagher was charged with multiple war crimes connected to the execution of a wounded IS detainee in Iraq in 2017.563 He was accused of murder, aggravated assault, obstruction of justice and professional misconduct. A few weeks later, Lieutenant Jacob Portier was also charged in the same case for aiding and abetting Edward Gallagher.564 The cases are part of an ongoing Naval Criminal Investigative Service probe that targets more than a dozen Navy SEALs who were deployed in Iraq between 2017 and 2018.565

560

Luscombe R (2018) Carefree life in Philadelphia masks bloodthirsty Liberian warlord’s past, suit says. https://www.theguardian.com/world/2018/feb/13/liberian-civil-war-warlord-lawsuit. Accessed 7 May 2019. 561 BBC News (2018) Liberia warlord ‘Jungle Jabbah’ jailed for 30 years in US. https://www.bbc. com/news/world-africa-43836567. Accessed 7 May 2019. 562 Amnesty International (2018) Liberia: Warlord “Jungle Jabbah” jailed for 30 years in US. https://www.amnesty.org/en/latest/news/2018/04/liberia-warlord-jungle-jabbah-jailed-for-30years-in-us/. Accessed 7 May 2019. 563 Prine C (2018) Charged with war crimes and stuck in the brig, a Navy SEAL vows to fight on. https://www.navytimes.com/news/your-navy/2018/10/19/charged-with-war-crimes-and-stuck-inthe-brig-a-navy-seal-vows-to-fight-on/. Accessed 7 May 2019. 564 Prine C (2018) Second Navy SEAL charged in war crimes probe. https://www.navytimes. com/news/your-navy/2018/10/23/second-seal-arrested-in-war-crimes-probe/. Accessed 7 May 2019. 565 Ibid.

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In addition, the US District Court of New York City heard the first oral arguments in a case concerning the designated “first genocide of the 20th century”. The term relates to the mass extermination of Nama and Herero people in South West Africa, nowadays known as Namibia, by German colonial troops.566 Around 100 000 Ovaherero and Nama people were killed between 1904 and 1908. The court will determine whether it has jurisdiction over the case brought by the indigenous people seeking compensation from Germany for their families’ suffering. Finally, a Guatemalan residing in the US was initially arrested in 2017 for immigration violations. But after investigations conducted by the US Immigration and Customs Enforcement, it was discovered that the Guatemalan government accuses Juan Samayoa of several murders and atrocities committed against indigenous people during the 1980s. In fact, he led a paramilitary unit during Guatemala’s civil war.567 On 29 March, a US Immigration Judge, José Sanchez, rejected the defendant’s petition to remain in the US and ordered his deportation.568

6.3 6.3.1

Arms Control and Disarmament Arms Trade

The Fourth Conference of States Parties (CSP4) to the Arms Trade Treaty (ATT), adopted in 2014, was held from 20 to 24 August.569 The conference saw disagreements over whether the UN Development Programme (UNDP) should continue to administer the sponsorship programme that enables participation at the Conferences of States Parties by states and NGOs from the developing world or, as was ultimately decided, transfer responsibility to the ATT Secretariat. Seventy-seven states participated in the work of CSP4.570 The conference also focused on the provision and the act of receiving international assistance to

566 Taylor HR (2018) US court hears case against Germany over Namibia genocide. https://www. aljazeera.com/news/2018/07/court-hears-case-germany-namibia-genocide-180731201918543.html. Accessed 7 May 2019. 567 NPR (2018) Immigrant accused of Guatemalan war crimes may be deported. https://www.npr. org/2018/02/15/585815522/immigrant-accused-of-guatemalan-war-crimes-may-be-deported. Accessed 7 May 2019. 568 Rios S (2018) Judge Orders Accused War Criminal Deported To Guatemala. https://www. wbur.org/news/2018/03/29/accused-war-criminal-ordered-deported-guatemala. Accessed 7 May 2019. 569 Arms Trade Treaty Secretariat 2018 570 Ibid., para 11.

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strengthen the implementation of the ATT and on diversion of arms to unauthorised end-users or end-uses. Kazakhstan, Palestine, Chile, Cameroon and Brazil acceded the ATT in 2018.571 On 14 December, the ATT celebrated its 100-State-Party Milestone following Mozambique’s ratification of the treaty.572

6.3.2

Conventional Weapons

6.3.2.1

Convention on Certain Conventional Weapons573

The annual Meeting of High Contracting Parties to the Convention on Certain Conventional Weapons (CCW) was held between 21 and 23 November. The discussions focused on autonomous weapon systems by considering the outcome document of the August meeting of the Group of Governmental Experts (GGE).574 The document addressed the role of human control in the use of lethal force, the deployment and use of emerging technologies and lethal autonomous weapons systems, the review of potential military applications of related technologies as well as options for addressing the humanitarian and international security challenges posed by emerging technologies. Despite divergent views expressed during the GGE, the general sense was that all weapon systems, including autonomous weapons, should comply with IHL.575 Concerns were raised by Amnesty International, calling on states to support the negotiation of a new treaty to ban fully autonomous weapons systems.576 Moreover, the delegations addressed the topic of explosive weapons in populated areas and the majority of them recognised their severe humanitarian harm. Finally, states widely condemned recent uses of incendiary weapons, despite Russia

571

Arms Trade Treaty 2019. UN (2018) Statement on Arms Trade Treaty’s 100-State-Party Milestone. https://www.un.org/ press/en/2018/dc3795.doc.htm. Accessed 7 May 2019. 573 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, opened for signature 10 April 1981, 1342 UNTS 137 (entered into force 2 December 1983). 574 Group of Governmental Experts of the High Contracting Parties 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 (2018) Report of the 2018 session of the Group of Governmental Experts on Emerging Technologies in the Area of Lethal Autonomous Weapons Systems, UN Doc. CCW/GGE.1/2018/3. 575 Women’s International League for Peace and Freedom 2018. 576 Amnesty International (2018) UN decisive action needed to ban killer robots - before it’s too late. https://www.amnesty.org/en/latest/news/2018/08/un-decisive-action-needed-to-ban-killerrobots-before-its-too-late/. Accessed10 May 2019. 572

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blocking proposals to keep CCW Protocol III on incendiary weapons on the following year’s agenda.577

6.3.2.2

Cluster Munition

The ninth annual Cluster Munition Monitor report, prepared by the Cluster Munition Coalition (CMC) for dissemination at the Eighth Meeting of States Parties to the Convention on Cluster Munitions, was published on 30 August. The report found that States Parties to the convention have already destroyed 99 percent of their stockpiled cluster munitions, eliminating a collective total of more than 1.4 million cluster munitions and 177 million submunitions.578 It also details how some non-signatories, particularly Israel, Russia and the US, have hardened their defence of cluster munitions. The meeting of States Parties to the Convention on Cluster Munitions took place between 3 and 5 September. In its final report,579 the States Parties acknowledged the progress reached in stockpile destruction. Indeed, all State Parties facing the first stockpile destruction deadline, 1 August 2018, successfully destroyed their stocks in time, including Croatia, Slovenia, and Spain. Cuba also completed its stockpile destruction. However, the report states that the use of cluster munition by Syrian government forces in rebel-held areas of the country, first recorded in 2012, continued throughout 2017 and the first half of 2018. On 1 March, Sri Lanka became the 103rd country to accede to the 2008 Convention on Cluster Munitions, and the first South Asian country to ban these weapons.580 However, according to Human Rights Watch, Sri Lanka is not known to ever have produced or exported cluster munitions.

6.3.2.3

Landmines

The 17th meeting of States Parties to the Mine Ban Treaty (17MSP) took place between 26 and 30 November.581 The 17MSP was the last opportunity for the

577

Human Rights Watch (2018) Statement on Incendiary Weapons, CCW Annual Meeting. https://www.hrw.org/news/2018/11/22/statement-incendiary-weapons-ccw-annual-meeting. Accessed 5 September 2019. 578 Cluster Munition Coalition 2018. 579 States Parties to the Convention on Cluster Munitions (2018) Eighth Meeting: Final Report, UN Doc. CCM/MSP/2018/9. 580 Wareham M (2018) Sri Lanka bans cluster munitions. https://www.hrw.org/news/2018/03/14/ sri-lanka-bans-cluster-munitions. Accessed 14 May 2019. 581 For further information about the agenda of the meeting, see AP Mine Ban Convention Implementation Support Unit (2018) What Happened at the 17MSP? https://www. apminebanconvention.org/meetings-of-the-states-parties/17msp/what-happened-at-the-17msp/. Accessed 15 May 2019. See also AP Mine Ban Convention Implementation Support Unit (2018)

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States Parties to assess progress in achieving the aims of the Maputo Action Plan582 in advance of the Convention’s Fourth Review Conference due to take place in November 2019. In this respect the 17MSP considered the current status of implementation of the Convention and laid the foundation for a collective reflection on how to ensure the Convention is fully implemented to ultimately meet the commitments listed in the States Parties’ Maputo Action Plan. During the 17MSP, States Parties and others highlighted their achievements and challenges in implementing the key objectives of the Convention and their Maputo Action Plan commitments. During the conference, Mauritania announced its completion of mine clearance while Oman announced its completion of stockpile destruction.583 In its final report, the States Parties reaffirmed their determination to “put an end to the suffering and casualties caused by anti-personnel mines and their aspiration to meet the goals of the Convention to the fullest extent possible by 2025.”584 In January, Palestine acceded to the Mine Ban Treaty, becoming the 164th state to ban antipersonnel landmines,585 though Palestine has never possessed antipersonnel mines and has never produced such weapons.586 During a visit to Raqqa, Human Rights Watch collected information about landmine injuries from the Kurdish Red Crescent and international medical organizations working in the area. Indeed, the organizations found that IS had located antipersonnel mines, such as booby traps or improvised explosive devices, when it controlled Raqqa, before October 2017. Between 21 October 2017 and 20 January 2018, these homemade landmines have injured at least 491 people, many of whom died.587

What was Considered at the 17MSP? https://www.apminebanconvention.org/meetings-of-thestates-parties/17msp/what-was-considered-at-the-17msp/. Accessed 14 May 2019. 582 States Parties to the Mine Ban Treaty 2014. 583 International Campaign to Ban Landmines (2018) The Seventeenth Meeting of States Parties. http://www.icbl.org/en-gb/the-treaty/treaty-meetings/meetings-of-states-parties/17msp.aspx. Accessed 14 May 2019. 584 Meeting 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 2018. 585 Wareham M (2018) Palestine joins global push to eliminate landmines. https://www.hrw.org/ news/2018/01/22/palestine-joins-global-push-eliminate-landmines. Accessed 14 May 2019. 586 Palestinian Mine Action Authority 2012. 587 Human Rights Watch (2018) Syria: Landmines Kill, Injure Hundreds in Raqqa. https://www. hrw.org/news/2018/02/12/syria-landmines-kill-injure-hundreds-raqqa. Accessed 14 May 2019.

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6.3.3

Non-Conventional Weapons

6.3.3.1

Chemical Weapons

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On 27 June, the Fourth Special Session of the Conference of the States Parties to the Chemical Weapons Convention (CWC) adopted a decision that condemns the use of chemical weapons by anyone and under any circumstances. The decision also condemns the use of chemical weapons since 2012 in Iraq, Malaysia, the Syrian Arab Republic, and the UK.588 It also calls upon the Secretariat to put in place arrangements to identify the perpetrators of the use of chemical weapons in the Syrian Arab Republic by identifying and reporting on all information potentially relevant to the origin of those chemical weapons in those instances in which the OPCW Fact-Finding Mission determines or has determined that use or likely use occurred, and cases for which the OPCW-UN Joint Investigative Mechanism has not issued a report.589

Finally, the States Parties also invited the Director-General to submit proposals to enhance the capacity and tools of the Secretariat to strengthen implementation of the Convention’s verification regime.590 On 21 November, the Fourth Review Conference to the CWC started. The Review Conferences, held every five years, serve as a forum for the assessment and evaluation of the CWC’s implementation and setting long-term views by providing strategic guidance to the OPCW. The general debate during the first few days of the Fourth Review Conference to the CWC was marked by several constructive proposals to update and implement the Convention and doubts from the US about Iranian compliance with the CWC. Indeed, in its statement,591 the US condemned alleged non-compliance with the CWC by three States Parties: Syria, Iran and Russia. Specifically, the US stated that it “has had long standing concerns that Iran maintains a chemical weapons program that it has failed to declare to the OPCW” and that it is “concerned that Iran is pursuing Central Nervous System Acting Chemicals for offensive purposes.”592 The US was the only country to express its concerns about Iranian non-compliance at the conference, although many other states expressed concern about Syria and Russia. States Parties to the Fourth Review Conference were unable to agree to a final consensus document by the end of the conference due to disagreements over language concerning chemical weapons use in Syria, the Joint-Investigative Mechanism (JIM) and attribution for chemical weapons attacks. Syria specifically

588

OPCW (2018) Decision on Addressing the Threat From Chemical Weapons Use, Doc. C-SS-4/DEC.3. 589 Ibid., para 10. 590 Ibid., para 21. 591 United States 2018. 592 Ibid., p. 2.

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opposed any reference to the JIM findings in the final text. A joint declaration593 by 66 countries condemned the use of chemical weapons and called for strengthening the CWC’s verification regime. In the absence of a consensus report, the chair of the Review Conference, Ambassador Agustín Vásquez Gómez from El Salvador, issued a summary of the proceedings.594 The participating States did however succeed in adopting a final report of the Conference of States Parties.595 In addition to the final reports of the Conference of States Parties and Review Conference, several states submitted notable working papers to the conference. Lithuania and Poland introduced a working paper596 highlighting the concerns posed by sea-dumped chemical weapons. To address this issue, the paper suggests that the OPCW Technical Secretariat and the CWC States Parties should consider “enhancing the OPCW role as a platform for dialogue and voluntary cooperation, including through information sharing, raising awareness and projects/initiatives among States Parties, international organisations, academia, the relevant industries and NGOs”. Thirty-six countries, including France, the UK and the US, co-sponsored a working paper597 condemning the use of chemical weapons over the past five years and stressing the need to hold those responsible accountable. The working paper recommended including in the Review Conference final document condemnations of the Syrian government and IS for their use of chemical weapons. Moreover, the 23rd Conference of the States Parties to the OPCW took place between 19 and 30 November. On the first day of the conference, the Director-General declared that a total of 68 044 metric tonnes (MT) or 96.5 percent of the declared Category 1 chemical weapons had been destroyed under verification by the Secretariat.598 Finally, OPCW Director-General Fernando Arias, as invited in the June Special Session of CWC States Parties, also submitted proposals to strengthen the capacity of the OPCW Secretariat to better implement the CWC and to assist States Parties in their efforts.599 His recommendations include completing a centre for chemistry

593

Albania et al. 2018. OPCW (2018) Chairperson’s report of the proceedings of the Fourth Special Session of the Conference of the States Parties to Review the Operation of the Chemical Weapons Convention (Fourth Review Conference), Doc. RC-4/3. 595 OPCW (2018) Report of the Twenty-Third Session of the Conference of the States Parties 19, 20 and 29 November 2018, Doc. C-23/5. 596 Bulgaria et al. 2018. 597 Austria et al. 2018. 598 OPCW (2018) Opening Statement by the Director-General to the Conference of the States Parties at its Twenty-Third Session, Doc. C-23/DG.18, para 17. 599 OPCW (2018) Note by the Director-General: Report on Proposals and Options Pursuant to Paragraph 21 of Decision C-SS-4/DEC.3 (Dated 27 June 2018) on Addressing the Threat from Chemical Weapons Use, Doc. RC-4/DG/4. 594

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and technology to ensure that the OPCW’s sampling and analysis capabilities remain up to date, expanding the OPCW’s use of open-source analysis as well as placing a greater emphasis on the OPCW’s role in countering chemical terrorism. The OPCW Fact-Finding Mission (FFM) to Syria continued its work in 2018. On 2 July, it issued an interim report600 on the FFM’s investigation regarding the allegations of chemical weapons use in Douma, Syria on 7 April 2018. The FFM’s activities in Douma included on-site visits to collect environmental samples, interviews with witnesses, and data collection. In a neighbouring country, the FFM team gathered or received biological and environmental samples, and conducted witness interviews. The results show that no organophosphorous nerve agents or their degradation products were detected in the environmental samples or in the plasma samples taken from alleged casualties. However, along with explosive residues, various chlorinated organic chemicals were found in samples from two sites. The FFM also issued a report on 2 July 2018 addressing allegations of chemical weapons use in Al-Hamadaniya, Syria on 30 October 2016, and Karm al-Tarrab, Syria on 13 November 2016.601 According to the report, the FFM could not determine whether or not a specific chemical was used as a weapon in the two incidents.602

6.3.3.2

Biological Weapons

The Biological Weapons Convention (BWC) Meeting of Experts took place between 7 and 16 August. The experts addressed sensitive issues including genome editing, benefits and risks of rapidly advancing biotechnology, a model voluntary code of conduct for biological scientists, and assistance to States Parties facing a biological attack.603 In December, the meeting of States Parties to the BWC took place. The state representatives achieved agreement on a funding mechanism that will allow them to continue paying the staff of the Implementation Support Unit, the Accord’s small secretariat.604 One day of the meeting was however cut from the planned schedule 600

OPCW (2018) Note by the Technical Secretariat: Interim Report of the OPCW Fact-Finding Mission in Syria Regarding the Incident of Alleged Use of Toxic Chemicals as a Weapon in Douma, Syrian Arab Republic, on 7 April 2018, Doc. S/1645/2018. For a more detailed overview of the ongoing conflict in Syria and the developments in 2018, including the use of chemical weapons, see above, Sect. 6.1.14. 601 OPCW (2018) Note by the Technical Secretariat: Interim Report of the OPCW Fact-Finding Mission in Syria Regarding the Incidents in Al-Hamadaniyah on 30 October 2016 and in Karm Al-Tarrab on 13 November 2016, Doc. S/1642/2018. 602 For more information on the role of the OPCW in investigating the use of chemical weapons in Syria, see above, Sect. 6.1.14. 603 For a full program, see UNOG (2018) 2018 Meetings of Experts. https://www.unog.ch/ 80256EE600585943/(httpPages)/A8850DE2E9D56A20C125825C003B0E88?OpenDocument. Accessed 15 May 2019. 604 UNOG 2018.

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due to lack of funding. The financial problems of the BWC stem from delays in payment of some states as well as from UN financial rules and practices. Although a number of States Parties are in arrears, five of them—Brazil, Venezuela, Nigeria, Libya and Argentina (in descending order of arrearages)—account for more than three-quarters of the debt. This produced tension during the meetings, as the nonpayers were seen to be jeopardising the efforts of the majority who meet their financial commitments.605 In the report, States Parties in arrears were requested to pay outstanding amounts, and all Parties were urged to pay invoices more quickly. The working capital fund is expected to enable the BWC to hold meetings and to provide the staff of the Implementation Support Unit with one-year contracts rather than the current shorter-term contracts. Nevertheless the accumulated deficit may force some curtailment of BWC meetings planned for 2019. On 19 January, India became the Australia Group’s 43rd member following a consensus decision at the group’s plenary on 19 June 2017.606 The Australia Group is dedicated to preventing the proliferation of biological and chemical weapons through voluntary export controls. It is the third non-proliferation consortium India has joined in the past two years, after the Wassenaar Arrangement, a conventional weapons export control regime, in December 2017, and the Missile Technology Control Regime, a group committed to limiting the spread of missiles and related technology, in June 2016.

6.3.3.3

Nuclear Weapons

The Joint Comprehensive Plan of Action (JCPOA) signed by the P5+1 (China, France, Russia, the UK, the US and Germany), the EU and Iran in 2015 is threatened by the withdrawal of the US. Indeed, in a statement issued on 12 January, President Donald Trump announced that he was waiving sanctions, as required to keep the US in compliance with the deal, but he coupled that action with an ultimatum by saying he would not reissue the waivers again unless the deal is “fixed”. The four “critical components” that Trump wanted to see addressed include tying Iran’s ballistic missile programme to its nuclear activities, extending limits on Iran’s nuclear programme that are set to expire over time, ensuring Iran never gets close to the development of a nuclear weapon, and allowing international inspectors

605 Reaching Critical Will (2018) 2018 Biological Weapons Convention Meeting of States Parties. http://www.reachingcriticalwill.org/news/latest-news/13563-2018-biological-weaponsconvention-meeting-of-states-parties. Accessed 14 May 2019. 606 The Economic Times (2018) Boost for NSG membership, India joins Australia Group. https:// economictimes.indiatimes.com/news/defence/boost-for-nsg-membership-india-joins-australiagroup/articleshow/62568821.cms. Accessed 14 May 2019.

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immediate access to any site on request.607 On 8 May, US President Donald Trump announced that the US will withdraw from the JCPOA and reinstate US nuclear sanctions on the Iranian regime. In the White House statement, Trump stated that the US will cease all participation in the JCPOA, re-impose all sanctions that had been lifted under the JCPOA, and take steps to ensure Iran does not develop or acquire nuclear weapons, including monitoring Iran’s nuclear conduct.608 Following this decision, representatives from the P4+1 (China, France, Russia, the UK and Germany) and Iran met in Vienna on 25 May to discuss the implementation of the JCPOA. While officials from the P4+1 met regularly,609 this was the first meeting of the Joint Commission, a body set up by the JCPOA to oversee implementation of the Accord, since the US withdrawal. The Joint Commission meets on a quarterly basis but can be convened on short notice at the request of any party, which was requested by Iran. It was preceded by a meeting of the sanctions-lifting working group, also established by the JCPOA. According to the chair’s statement, the parties “regretted” the US decision to withdraw and reimpose sanctions and noted that the JCPOA is a “key element of the global non-proliferation architecture.” The parties also noted that lifting sanctions “allowing for the normalisation of trade and economic relations with Iran constitute essential parts of the JCPOA.”610 Moreover, in June, UN Secretary-General António Guterres said the nuclear deal with Iran was at a “crossroads”611 and expressed his deep regret over US President Donald Trump’s decision to withdraw from the agreement and reimpose sanctions. He also called upon all states to support the JCPOA, saying “it is important that the withdrawal of one country [does] not impede the ability of others to fully implement their commitments under the JCPOA or to engage in activities consistent with UN Security Council Resolution 2231.”612

607 Morello C, Gearan A (2018) Trump warns he will withdraw U.S. from Iran nuclear deal if fixes not made. https://www.washingtonpost.com/politics/trump-expected-to-stay-the-course-oniran-deal-but-add-new-penalties/2018/01/11/366004b6-f723-11e7-b34a-b85626af34ef_story. html?utm_term=.76241b8e87ad. Accessed 14 May 2019. 608 White House 2018. 609 European Union External Action Service (2018) Remarks by HR/VP Mogherini at the press conference following ministerial meetings of the EU/E3 and EU/3 and Iran. https://eeas.europa.eu/ headquarters/headquarters-homepage/44599/remarks-hrvp-mogherini-press-conference-followingministerial-meetings-eue3-and-eue3-and-iran_en. Accessed 14 May 2019. 610 European Union External Action Service (2018) Chair’s statement following the 25 May 2018 meeting of the Joint Commission of the Joint Comprehensive Plan of Action. https://eeas.europa. eu/headquarters/headquarters-homepage/45227/chairs-statement-following-25-may-2018meeting-joint-commission-joint-comprehensive-plan_en. Accessed 14 May 2019. 611 UN (2018) Joint Comprehensive Plan of Action on Iran Nuclear Issue at Crossroads 3 Years Later, Under-Secretary-General for Political Affairs Tells Security Council. https://www.un.org/ press/en/2018/sc13398.doc.htm. Accessed 14 May 2019. 612 UN Security Council (2018) Implementation of Security Council resolution 2231 (2015): Fifth report of the Secretary-General, UN Doc. S/2018/602.

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On 6 June, the International Atomic Energy Agency (IAEA) released its quarterly report on Iran’s nuclear program. The report’s findings613 indicate that Iran continued to comply with the JCPOA. The report was the first IAEA report issued since Trump withdrew the United States from the JCPOA. The report supported what Iranian officials stated after Trump’s announcement: that Iran would remain in conformity the JCPOA. According to the report, Iran’s stockpile of enriched uranium was 123.9 kg, below the 300 kg limit set by the JCPOA. It also stated that Iran’s research and development activities using advanced centrifuges were in line with the state’s long-term plan and that Iran has continued to implement the additional protocol and has permitted additional monitoring and verification measures under the JCPOA. On 16 July, Iran filed a case against the US at the International Court of Justice (ICJ), accusing Washington of breaching its obligations under the 1995 Treaty of Amity, Economic Relations, and Consular Rights.614 According to the Iranian complaint, Trump’s reimposition of sanctions breaches several Articles of the Treaty, including one prohibiting either party from “applying unreasonable or discriminatory measures that would impair their legally acquired rights and interests.” Iran called for the United States to terminate the sanctions reimposed on 8 May and compensate Iran. The UN General Assembly First Committee on Disarmament and International Security (UN First Committee) during its 73th meeting, which took place 4 October and 8 November,615 equally put a particular focus on the ramifications of the US decision to withdraw from the JCPOA. The majority of delegates collectively agreed that this decision would weaken the integrity of international diplomacy.616 On 22 October, the delegates also discussed another US decision to withdraw from the Intermediate-Range Nuclear Forces Treaty.617 On 1 November, the First Committee approved 21 draft resolutions and three decisions related to nuclear disarmament. A major draft decision included establishing a nuclear-weapon-free zone in the Middle East.618

613

International Atomic Energy Agency 2018. Al Jazeera (2018) Iran takes US to ICJ over re-imposed sanctions. https://www.aljazeera.com/ news/2018/07/iran-takes-icj-imposed-sanctions-180716160054610.html. Accessed 14 May 2019. 615 For a full list of discussions and resolutions adopted at the UN First Committee’s meeting, see UNODA 2018. 616 UN (2018) Voicing Concerns at Possible Demise of Iran Nuclear Deal, First Committee Delegates Discuss Ways to Steer Disarmament Efforts Back on Track. https://www.un.org/press/ en/2018/gadis3602.doc.htm. Accessed 7 May 2019. 617 UN (2018) Fearing New Atomic Arms Race, First Committee Delegates Call for International Law to Settle Missile Treaty Dispute between Nuclear Weapon States. https://www.un.org/press/ en/2018/gadis3607.doc.htm. Accessed 7 May 2019. 618 UN (2018) Sending 24 Resolutions, Decisions to General Assembly, First Committee tackles range of nuclear concerns, including new atomic-bomb-free zone in Middle East. https://www.un. org/press/en/2018/gadis3615.doc.htm. Accessed 14 May 2019. 614

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251

Cyber Space and Outer Space

During its 73th meeting, the UN First Committee approved two proposals to create a working group that shall be tasked with developing rules for states on responsible behaviour in cyberspace.619 The UN First Committee also debated on the arms race in outer space. Despite efforts to conclude a legally binding non-proliferation treaty for outer space, discussion on the topic have been deadlocked. While there is hope that this deadlock can be overcome, there are still major disagreements on various topics. For example, the UK cautioned that the “international community must reach a common understanding of what a space weapon is, as any object with manoeuvring capabilities [could] in theory be used for offensive purposes”.620

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Amendments on the Crime of Aggression. https://crimeofaggression.info/the-role-of-states/ status-of-ratification-and-implementation/. Accessed 22 March 2019 Trial International (2018) Rodolfo Martín Villa Fact Sheet. https://trialinternational.org/latest-post/ rodolfo-martin-villa/. Accessed 7 May 2019 UNAMA (2019) Protection of Civilians in Armed Conflict Annual Report 2018. https://unama. unmissions.org/sites/default/files/afghanistan_protection_of_civilians_annual_report_2018_ final_24_feb_2019_1.pdf. Accessed 5 March 2019 UNHCR (2018a) Libya. http://reporting.unhcr.org/node/12003?y=2019#year. Accessed 15 April 2019 UNHCR (2018b) Syria Regional Refugee Response. Refugee Situations: Operational Portal. https://data2.unhcr.org/en/situations/syria. Accessed 15 April 2019 UNICEF (2018a) Crisis in the Central African Republic: In a neglected emergency, children need aid, protection—and a future. https://www.unicef.org/publications/files/UNICEF_Child_Alert_ CAR_2018_EN.pdf. Accessed 6 March 2019 UNICEF (2018b) Yemen: Humanitarian Situation Report. December 2018 https://www.unicef. org/yemen/YEM_sitreps_Dec2018encorrigendum.pdf. Accessed 6 March 2019 UNMISS/OHCHR (2018) Report on Indiscriminate Attacks Against Civilians in Southern Unity April-May 2018. https://unmiss.unmissions.org/sites/default/files/unmissohchr_report_on_ indiscriminate_attacks_against_civilians_in_southern_unity_april-may_2018.pdf. Accessed 7 May 2019 UN Peacekeeping (2019a) MINUSCA Fact Sheet. https://peacekeeping.un.org/en/mission/ minusca. Accessed 6 March 2019 UN Peacekeeping (2019b) MINUSMA Fact Sheet. https://peacekeeping.un.org/en/mission/ minusma. Accessed 16 April 2019 UN General Assembly (2017) Resolution adopted by the General Assembly on 21 December 2016, UN Doc. A/RES/71/248 UN General Assembly (2018) Human Rights Council: The siege and recapture of eastern Ghouta, UN Doc. A/HRC/38/CRP.3 UN General Assembly (2018) Report of the International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011, UN Doc. A/73/295 UN General Assembly (2018) Human Rights Council: Report of the detailed findings of the Independent International Fact-Finding Mission on Myanmar, UN Doc. A/HRC/39/CRP.2 UN General Assembly (2018) Human Rights Council: Resolution adopted by the Human Rights Council on 27 September 2018, UN Doc. A/HRC/RES/39/2 UN General Assembly (2018) Human Rights Council: Situation of human rights in Yemen, including violations and abuses since September 2014, UN Doc. A/HRC/39/43 UN General Assembly (2018) Report of the International Criminal Court, UN Doc. A/73/334 UN General Assembly, UN Security Council (2018) Children and armed conflict: Report of the Secretary-General, UN Doc. A/72/865-S/2018/465 UN Security Council (2010) Resolution 1966 (2010), UN Doc. S/RES/1966 UN Security Council (2017) Resolution 2379 (2017), UN Doc. S/RES/2379 UN Security Council (2018) Resolution 2401 (2018), UN Doc. S/RES/2401 UN Security Council (2018) Report of the Secretary-General on the situation in Mali, UN Doc. S/2018/273 UN Security Council (2018) Resolution 2420 (2018), UN Doc. S/RES/2420 UN Security Council (2018) Resolution 2423 (2018), UN Doc. S/RES/2423 UN Security Council (2018) Resolution 2428 (2018), UN Doc. S/RES/2428 UN Security Council (2018) Resolution 2431 (2018), UN Doc. S/RES/2431 UN Security Council (2018) Letter dated 8 August 2018 from the Panel of Experts established pursuant to resolution 2374 (2017) on Mali addressed to the President of the Security Council, UN Doc. S/2018/581

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UN Security Council (2018) Implementation of Security Council resolution 2231 (2015): Fifth report of the Secretary-General. UN Doc. S/2018/602 UN Security Council (2018) Letter dated 15 November 2018 from the Special Adviser and Head of the United Nations Investigative Team to Promote Accountability for Crimes Committed by Da’esh/Islamic State in Iraq and the Levant addressed to the President of the Security Council, UN Doc. S/2018/1031 UN Security Council (2018) Report of the Secretary-General on Somalia, UN Doc. S/2018/1149 UN Special rapporteur on torture and on the independence of judges and lawyers (2018) Mandat du Rapporteur spécial sur la torture et autres peines ou traitements cruels, inhumains ou dégradants et du Rapporteur spécial sur l’indépendance des juges et des avocats [Mandate of the Special rapporteur on torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and of the Special Rapporteur on the independence of judges and lawyers]. https:// trialinternational.org/wp-content/uploads/2018/09/Mandat-des-rapporteurs-speciaux-de-lONU. pdf. Accessed 7 May 2019 United States (2018) Statement by Ambassador Kenneth D. Ward. Fourth Special Session of the Conference of the States Parties to Review the Operation of the Chemical Weapons Convention. https://www.opcw.org/sites/default/files/documents/2018/11/USA_0.pdf. Accessed 14 May 2019 UNODA (2018) Seventy-Third Session of the General Assembly. First Committee: Disarmament and International Security. Press Releases, Draft Resolutions, Statements, Secretary-General’s Reports, and Side Events. https://www.un.org/disarmament/firstcommittee-73/. Accessed 7 May 2019 UNOG (2018) Report of the 2018 Meeting of States Parties. https://www.unog.ch/ 80256EDD006B8954/(httpAssets)/4F8CCA935F1D4205C125835F004B6F0E/$file/2018 +BWC+MSP+report+(advance+version)+FINAL.pdf. Accessed 14 May 2019 WHO (2019) Ebola Virus Disease Democratic Republic of the Congo: External Situation Report 22. https://apps.who.int/iris/bitstream/handle/10665/277472/SITREP-EVD-DRC-20190103eng.pdf?ua=1. Accessed 5 April 2019 White House (2018) Ceasing U.S. Participation in the JCPOA and Taking Additional Action to Counter Iran’s Malign Influence and Deny Iran All Paths to a Nuclear Weapon. Presidential Memoranda. https://www.whitehouse.gov/presidential-actions/ceasing-u-s-participation-jcpoataking-additional-action-counter-irans-malign-influence-deny-iran-paths-nuclear-weapon/. Accessed 14 May 2019 Women’s International League for Peace and Freedom (2018) CCW report, Vol. 6, No. 12. Reaching Critical Will. http://reachingcriticalwill.org/images/documents/Disarmament-fora/ ccw/2018/hcp-meeting/CCWR6.12.pdf. Accessed 10 May 2019 Zanoletti G (2018) Increasing Political Violence in the Central African Republic. ACLED Analysis. https://www.acleddata.com/2018/06/08/increasing-political-violence-in-the-centralafrican-republic/. Accessed 6 March 2019

Cases EAC (2017) Situation en République du Tchad, Le Procureur Général c. Hissein Habré [Situation in the Republic of Chad, Prosecutor General v. Hissein Habré], Arrest, 27 April 2017 EAC, Situation en République du Tchad, Le Procureur Général c. Hissein Habré [Situation in the Republic of Chad, Prosecutor General v Hissein Habré], Judgment, 30 May 2016 ECCC, The Prosecutor v Leang Chear and Nicholas Koumjian, Decision on the International Co-Prosecutor’s Appeal on Decision on Redaction or, Alternatively, Request for Reclassification of the Closing Orders (Reasons), 12 June 2018, Case No. 004/ 07-09-2009-ECCC/OCIJ ECCC, The Prosecutor v Im Chaem, Considerations on the International Co-Prosecutor’s Appeal of Closing Order (Reasons), 28 June 2018, Case No. 004/007-09-2009-ECCC/OCIJ

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ECCC, The Prosecutor v Im Chaem, Considerations on the International Co-Prosecutor’s Appeal of Closing Order (Reasons), Opinion of Judges Prak Kimsan, Ney Thol and Huot Vuthy, 28 June 2018, Case No. 004/007-09-2009-ECCC/OCIJ ECCC, The Prosecutor v Im Chaem, Considerations on the International Co-Prosecutor’s Appeal of Closing Order (Reasons), Opinion of Judges Baik and Beauvallet, 28 June 2018, Case File No. 004/007-09-2009-ECCC/OCIJ ECCC, The Prosecutor v Ao An, Order Dismissing the Case against Ao An by the National Co-Investigating Judge, 16 August 2018, Case No. 004/2/07-09-2009-ECCC/OCIJ ECCC, The Prosecutor v Ao An, Closing Order (Indictment) by the International Co-Investigating Judge, 16 August 2018, Case No. 004/2/07-09-2009-ECCC/OCIJ ECCC, The Prosecutor v Meas Muth, Order Dismissing the Case against Meas Muth by the National Co-Investigating Judge, 28 November 2018, Case No. 003/07-09-2009/ECCC/OCIJ ECCC, The Prosecutor v Samphân Khieu and Chea Nuon, Decision on Khieu Samphân’s Urgent Appeal Against the Summary of Judgement Pronounced on 16 November 2018, 13 February 2019, Case No. 002/19-09-2007/ECCC/TC IACHR, Barrios Altos y Caso La Cantuta vs. Peru, Resolution, 30 May 2018, http://www. corteidh.or.cr/docs/supervisiones/barriosaltos_lacantuta_30_05_18.pdf. Accessed 24 June 2019 ICC, Situation in Uganda, Warrant of Arrest for Dominic Ongwen, 8 July 2005, No. ICC-02/04 ICC, The Prosecutor v Bosco Ntaganda, Warrant of Arrest, 22 August 2006, Case No. ICC-01/04‐ 02/06 ICC, The Prosecutor v Bosco Ntaganda, Second Warrant of Arrest, 13 July 2012, Case No. ICC-01/04‐02/06 ICC, The Prosecutor v Jean-Pierre Bemba Gombo, Judgment pursuant to Article 74 of the Statute, 21 March 2016, Case No. ICC-01/05-01/08 ICC, The Prosecutor v Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido, Decision on Sentence pursuant to Article 76 of the Statute, 22 March 2017, Case. No. ICC-01/05-01/13 ICC, The Prosecutor v Germain Katanga, Order for Reparations pursuant to Article 75 of the Statute, 24 March 2017, Case. No. ICC-01/04-01/07 ICC, The Prosecutor v Omar Hassan Ahmad Al Bashir, Decision under article 87(7) of the Rome Statute on the non-compliance by Jordan with the request by the Court for the arrest and surrender or Omar Al-Bashir, 11 December 2017, Case No. ICC-02/05-01/09 ICC, The Prosecutor v Thomas Lubanga Dyilo, Corrected version of the “Decision Setting the Size of the Reparations Award for which Thomas Lubanga Dyilo is Liable”, 21 December 2017, Case No. ICC-01/04-01/06 ICC, The Prosecutor v. Thomas Lubanga Dyilo, Acte d’appel de la Défense de M. Thomas Lubanga Dyilo à l’encontre de la “Décision fixant le montant des réparations auxquelles Thomas Lubanga Dyilo est tenu” rendue par la Chambre de première instance II le 15 décembre 2017 et modifiée par décisions des 20 et 21 décembre 2017 [Defence Notice of the Defence of Thomas Lubanga Dyilo against the “Determination of the amount of the reparations for which Thomas Lubanga Dyilo is liable” by Trial Chamber II on 15 December 2017 and modified by decisions of 20 and 21 December 2017], 15 January 2018, Case No. ICC-01/ 04-01/06 ICC, The Prosecutor v Thomas Lubanga Dyilo, Notice of Appeal against Trial Chamber II’s “Décision fixant le montant des réparations auxquelles Thomas Lubanga est tenu” of 15 December 2017 [Notice of Appeal against Trial Chamber II’s “Determination of the amount of the reparations for which Thomas Lubanga Dyilo is liable” of 15 December 2017], 15 January 2018, Case No. ICC-01/04-01/06 ICC, The Prosecutor v Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido, Judgment on the appeals of Mr. Jean-Pierre Bemba Gombo, Mr. Aimé Kilolo Musamba, Mr. Jean-Jacques Mangenda Kabongo, Mr. Fidèle Babala Wandu and Mr. Narcisse Arido against the decision of Trial

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Chamber VII entitled “Judgment pursuant to Article 74 of the Statute”, 8 March 2018, Case No. ICC-01/05-01/13 A A2 A3 A4 A5, para 1631 ICC, The Prosecutor v Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido, Judgment on the appeals of the Prosecutor, Mr. Jean-Pierre Bemba Gombo, Mr. Fidèle Babala Wandu and Mr. Narcisse Arido against the decision of Trial Chamber VII entitled “Decision on Sentence pursuant to Article 76 of the Statute”, 8 March 2018, Case. No. ICC-01/05-01/13 A6 A7 A8 A9 ICC, Prosecutor v Ahmad Al Faqi Al Mahdi, Judgment on the appeal of the victims against the “Reparations Order”, 8 March 2018, Case No. ICC-01/12-01/15A ICC, The Prosecutor v Germain Katanga, Order for Reparations pursuant to Article 75 of the Statute, 8 March 2018, Case. No. ICC-01/04-01/07 A3 A4 A5 ICC, The Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, Warrant of Arrest, 27 March 2018, Case No. ICC-01/12-01/18 ICC, The Prosecutor v Dominic Ongwen, Notice of the Prosecution’s completion of evidence presentation, 13 April 2018, Case No. ICC-02/04-01/15 ICC, The Prosecutor v Jean-Pierre Bemba Gombo, Judgment on the appeal of Mr. Jean-Pierre Bemba Gombo against Trial Chamber III’s “Judgment pursuant to Article 74 of the Statute”, 8 June 2018, Case No. ICC-01/05-01/08 A ICC, The Prosecutor v Jean-Pierre Bemba Gombo, Judgment on the appeal of Mr. Jean-Pierre Bemba Gombo against Trial Chamber III’s “Judgment pursuant to Article 74 of the Statute”, Dissenting Opinion of Judge Sanji Mmasenono Monageng and Judge Piotr Hofmański, 8 June 2018, Case No. ICC-01/05-01/08 A ICC, The Prosecutor v Mahmoud Mustafa Busayf Al-Werfalli, Second Warrant of Arrest, 4 July 2018, Case No. ICC-01/11-01/17 ICC, The Prosecutor v Germain Katanga, Decision on the Matter of the Transgenerational Harm Alleged by Some Applicants for Reparations Remanded by the Appeals Chamber in its Judgment of 8 March 2018, 19 July 2018, Case. No. ICC-01/04-01/07 ICC, The Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, Decision Postponing the Date of the Confirmation Hearing, 20 July 2018, Case No. ICC-01/12-01/18 ICC, The Prosecutor v Omar Hassan Ahmad Al Bashir, Order on the conduct of the hearing before the Appeals Chamber in the Jordan Referral re Al-Bashir Appeal, 27 August 2018, Case No. ICC-02/05-01/09 OA2 ICC, Request under Regulation 64(3) of the Regulations of the Court, Decision on the “Prosecution’s Request for a Ruling on Jurisdiction under Article19(3) of the Statute, 6 September 2018, Case No. ICC-RoC46(3)-01/18 ICC, The Prosecutor v Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido, Decision Re-sentencing Mr. Jean-Pierre Bemba Gombo, Mr. Aimé Kilolo Musamba and Mr. Jean-Jacques Mangenda Kabongo, 17 September 2018, Case. No. ICC-01/05-01/13 ICC, The Prosecutor v Laurent Gbagbo and Charles Blé Goudé, Version corrigée de la “Requête de la Défense de Laurent Gbagbo afin qu’un jugement d’acquittement portant sur toutes les charges soit prononcé en faveur de Laurent Gbagbo et que sa mise en liberté immédiate soit ordonnée” [Corrected version of the Defence Motion for acquittal and immediate release], 25 September 2018, Case No. ICC-02/11-01/15 ICC, Situation in the Central African Republic II, Public Redacted Version of “Warrant of Arrest for Patrice-Edouard Ngaïssona”, 7 December 2018, No. ICC-01/14-02/18 ICTR, Prosecutor v. Laurent Bucyibaruta, Indictment, 16 June 2005, Case No. ICTR-2005-85-I ICTR, Prosecutor v. Laurent Bucyibaruta, Decision on Prosecutor’s request for referral of Laurent Bucyibaruta’s indictment to France, 20 November 2007, Case No. ICTR-2005-85-I ICTY, Prosecutor v Radovan Karadžić, Judgment, 24 March 2016, Case No. IT-95-5/18-T ICTY, Prosecutor v Vojislav Šešelj, Judgment, 31 March 2016, Case No. IT-03-67-T MICT, Prosecutor v Radovan Karadžić, Radovan Karadžić’s Appeal Brief, 23 December 2016, Case No. MICT-13-55-A

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MICT, Prosecutor v Ratko Mladić, Defence Motion to Vacate Judgment and Impose Stay of Proceedings, 31 January 2018, Case No. MICT-13-56-A MICT, Prosecutor v Ratko Mladić, Urgent Defence Request for Review of Registrar’s Rejection to Provide Sufficient Funding for Appeal Phase I and Concurrent Motion for Enlargement of Time to File The Notice of Appeal (confidential with confidential and ex parte annexes), 23 February 2018, Case No. MICT-13-56-A MICT, Prosecutor v Ratko Mladić, Decision on a Further Motion for an Extension of Time to File a Notice of Appeal, 9 March 2018, Case No. MICT-13-56-A MICT, Prosecutor v Vojislav Šešelj, Judgment, 11 April 2018, Case No. MICT-16-99-A STL, The Prosecutor v Akhbar Beirut S.A.L. and Ibrahim Mohamed Ali Al Amin, Judgment, 15 July 2016, Case No. STL-14-06/T/CJ STL, The Prosecutor v Akhbar Beirut S.A.L. and Ibrahim Mohamed Ali Al Amin, Reasons for Sentencing, 5 September 2016, Case No. STL-14-06/T/CJ STL, The Prosecutor v Akhbar Beirut S.A.L. and Ibrahim Mohamed Ali Al Amin, Public Redacted Version of “Warrant of Arrest and Order to Transfer and Detain Mr. Ibrahim Mohamed Ali Al Amin” of 16 July 2018, 12 October 2018, Case No. STL-14-06/T/CJ STL, The Prosecutor v Akhbar Beirut S.A.L. and Ibrahim Mohamed Ali Al Amin, Order Lifting Confidentiality, 12 October 2018, Case No. STL-14-06/T/CJ

Treaties 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, opened for signature 10 April 1981, 1342 UNTS 137 (entered into force 2 December 1983) Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, opened for signature 16 December 1968, 754 UNTS 73 (entered into force 11 November 1970) Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002)

Table of Cases*

INTERNATIONAL European Court of Human Rights Ataykaya v Turkey, Application No. 50275/08, 22 July 2014, 13n59 Finogenov and Others v Russia, Applications Nos. 18299/03 and 27311/03, 20 December 2011, 15n62 McCann and Others v United Kingdom, Application No. 18984/91, 27 September 1995, 17n76 Yaşa and Others v Turkey, Application No. 44827/08, 16 July 2013, 13 Extraordinary African Chambers Situation en République du Tchad, Le Procureur Général c. Hissein Habré, 30 May 2016 and 27 April 2017, 217–218 International Court of Justice Advisory Opinions Legality of the Threat or Use of Nuclear Weapons, 8 July 1996, 25, 32–33, 34–35, 38, 63n5, 87n215, 90n236, 114n127 Judgments Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), 26 February 2007, 44 Corfu Channel case (United Kingdom v Albania), 9 April 1949, 35 Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America), 35

* The Table of Cases was compiled by Ms C.C. Diepeveen, Middelburg, The Netherlands, e-mail: [email protected]

© T.M.C. ASSER PRESS and the authors 2020 T. D. Gill et al. (eds.), Yearbook of International Humanitarian Law, Volume 21 (2018), Yearbook of International Humanitarian Law 21, https://doi.org/10.1007/978-94-6265-343-6

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262

Table of Cases

27 June 1986, 33n54 Oil Platforms case (Iran v United States of America), 6 November 2003, 33n55 International Criminal Court Prosecutor v Al Bashir, Case No. ICC-02/05-01/09 (ongoing), 205 Prosecutor v Bemba Gombo, Case No. ICC-01/05-01/08-424, 15 June 2009 and 8 June 2018, 122n187, 207–208 Prosecutor v Bemba Gombo et al., Case No. ICC-01/05-01/13, 8 March 2018, 208–209 Prosecutor v Gbagbo and Blé Goudé, Case No. ICC-02/11-01/15, 3 August 2018 and 28 September 2018, 205–206 Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, Case No. ICC-01/12/-08/18 (ongoing), 203 Prosecutor v Katanga, Case No. ICC-01/04-01/07, 8 March 2018, 210 Prosecutor v Lubanga Dyilo, Case No. ICC-01/04-01/06 (appeal ongoing), 209–210 Prosecutor v Al Mahdi, Case No. ICC-01/12-01/15A, 8 March 2018, 210–211 Prosecutor v Ntaganda, Case No. ICC-01/04-02/06 (ongoing), 206 Prosecutor v Ongwen, Case No. ICC-02/04-01/15 (ongoing), 206–207 Prosecutor v Al-Werfalli, Case No. ICC-01/11-0/17 (ongoing), 204 International Criminal Tribunal for the former Yugoslavia Prosecutor v Blaškić, Case No IT-95-14-A, 29 July 2004, 122n186 Prosecutor v Galić Case no. IT-98-29-T, 5 December 2003, 79–80, 112n114 Case no. IT-98-29-A, 30 November 2006, 37 Prosecutor v Karadžić, Case No. IT-95-5/18-T, 24 March 2016, 211 Prosecutor v Krajišnik, Case No. IT-00-39-A, 17 March 2009, 122n186 Prosecutor v Kupreškić and others, Case No. IT-95-16-T, 14 January 2000, 38n87 Prosecutor v Martić, Case No IT-95-11-T, 2 June 2007, 39 Prosecutor v Milošević, Dragomir, Case No. IT-98-29/1-T, 12 December 2007, 113n121 Prosecutor v Mucić, Case No. IT-96-21-A, 20 February 2001, 123n191 Prosecutor v Šešelj, Case No. IT-03-67-T, 31 March 2016, 212 Prosecutor v Tadić, Case No. IT-94-I, 2 October 1995, 63n11, n14 International Criminal Tribunal for Rwanda Prosecutor v Bucyibaruta, Case No. CTR-2005-85-I, 16 June 2005 and 20 November 2007, 226 Prosecutor v Kayishema and Ruzindana, Case No. ICTR-95-1-A, 1 June 2001, 122n186

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Mechanism for International Criminal Tribunals Prosecutor v Karadžić, Case No. MICT-13-55-A (ongoing), 211–212 Prosecutor v Mladić, Case No. MICT-13-56-A (ongoing), 211 Prosecutor v Šešelj, Case No. MICT-16-99-A, 11 April 2018, 212 Permanent Court of Arbitration Award in the arbitration regarding the delimitation of the maritime boundary between Guyana and Suriname, 17 September 2007, 34n67 Special Court for Sierra Leone Prosecutor v Taylor, Case No. SCSL-03-01-A, 26 September 2013, 37–38 Special Tribunal for Lebanon Prosecutor v Akhbar Beirut S.A.L. and Ibrahim Mohamed Ali Al Amin, Case No. STL-14-06/T/CJ, 15 July 2016, 219–220 Prosecutor v Ayyash et al, Case No. STL-11-01 (ongoing), 219

NATIONAL Argentina Federal Tribunal Ford Company managers case, 11 December 2018, 221 Bosnia-Herzegovina Sarajevo State Court Kovač case, 223 Orić case, 2018, 223–224 Sarić case, 16 February 2018, 223 Cambodia Extraordinary Chambers in the Courts of Cambodia Prosecutor v Ao An, Case No. 004/2/07-09-2009-ECCC/OCIJ, 16 August 2018, 219 Prosecutor v Im Chaem, Case No. 004/007-09-2009-ECCC/OCIJ, 28 June 2018, 218 Prosecutor v Leang Chear and Nicholas Koumjian, Case No. 004/07-09-2009-ECCC/OCIJ, 12 June 2018, 216 Prosecutor v Meas Muth, Case No. 003/07-09-2009/ECCC/OCIJ, 28 November 2018, 218–219 Prosecutor v Samphân Khieu and Chea Nuon, Case No. 002/19-09-2007/ECCC/TC, 16 November 2018, 215–216 Colombia Peace Tribunal FARC leaders case (ongoing), 224

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Table of Cases

Supreme Court El Aro, San Roque and La Granja massacres, 31 May 2018, 224 Denmark Appeals Court of Copenhagen Iraq torture case, 15 June 2018, 225 Eastern High Court of Appeals Twagirayezu case, September 2018, 225 Finland Court of Appeal Iraqi twin brothers case, September 2018, 225–226 France Court of Cassation Simbikangwa case, 24 May 2018, 226 Paris High Court Lafarge S.A. case, 28 June 2018, 227 Germany Federal Court Gröning case, 8 January 2018, 228 Murwanashyaka case, 2018, 229 Regional Court Münster Stutthof guard case, 6 November 2018, 228–229 Upper District Court Düsseldorf, Ghurba as-Sham Front commander case, 25 September 2018, 229 Guatemala Constitutional Court Rodríguez Sánchez case (ongoing), 230 High Risk Appellate Court Recusal motion against Judge Pablo Xitumul, 2 May 2018, 231 High Risk Courts Atrocities by Guatemalan army case, 26 September 2018, 230 Dos Erres Massacre case (ongoing), 232 Molina Theissen case, 23 May 2018, 230–232 Kosovo Court of Appeals Limaj case, 14 November 2018, 233 Netherlands Supreme Court Kouwenhoven case, 18 December 2018, 233

Table of Cases

Court of Appeal’s-Hertogenbosch Kouwenhoven case, April 2017, 236 District Court The Hague Alemu case, 2 January 2018, 233 Peru Supreme Court Fujimori pardon case, October 2018, 234 Rwanda Supreme Court Bandora case, 2018, 234 High Court Specialised Chamber for International Crimes Bandora case, May 2015, 234 South Africa Cape Town Magistrate’s Court Kouwenhoven extradition case, January 2018, 236 Spain National Court ETA documents case, April 2018, 234–235 Franco dictatorship documents case, 26 October 2018, 235–236 Provincial Court Madrid Vela case, October 2018, 235 Sweden District Court of Stockholm Rukeratabaro case, 27 June 2018, 236–237 Switzerland Federal Criminal Court Khaled Nezzar case, 30 May 2018, 239 United States Federal District Court for Eastern District of Pennsylvania Jabbateh case, 19 April 2018, 240 Moses Thomas case (ongoing), 249 New York City District Court South West Africa genocide case (ongoing), 241

265

Index*

A A., Oussama, prosecution of, 233 ADF (Allied Democratic Forces, Congo Democratic Republic), 170–171 Adomnán (Irish abbot), 143 Advani, L.K., 35 Afghanistan armed conflict, 166–167 ISAF forces, non-lethal weapons need of, 6 peace negotiations, 167–168 US involvement in, ICC investigations into, 201 African Union (AU) peacekeeping operation in Somalia (AMISOM), 184, 185 talks on Central African Republic armed conflict at, 168 Trust Fund for Victims of Hissène Habré, 217–218 Aggression, crime of, ICC jurisdiction over, 199 Agincourt, battle of (1415), 154 AI (Artificial Intelligence), 102 capabilities of, 68–69, 83, 100–101 evolutionary programming of, 128 use of in collateral damage estimates, 75 in weapons systems, 51, 59, 60 see also Algorithms; Deep learning Air and Missile Warfare Manual, on intentional environmental harm prohibition, 113

Akhbar Beirut S.A.L (journal), prosecution of, 219–220 Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, prosecution of, 203 Al-Nusra Front, 189 Al-Qaeda in Libya, 178 in Somalia, 184–185 in Yemen, 198 Al-Shabab, 184–185 Alba, Duke of, atrocities committed by, 156 Albrecht, Christian (Duke of Schleswig), 159–160 Alemu, Eshetu, prosecution of, 233 Algeria, international crimes committed in, 239 Algiers Peace Accord (Mali conflict, 2015), 178 Algorithms, 103–105 explainable, 110, 121, 129 limitations of, 106–107, 127–128 inabilities of humans to understand, 100, 102, 105, 109–110, 121–127 inabilities to understand context by, 100, 102, 107–108 testing of, 126–127 use in ATR of, IHL applicable to, 111–119 see also Deep learning al Amin, Ibrahim Mohamed Ali, prosecution of, 219–220

* The Index was compiled by Ms C.C. Diepeveen, Middelburg, The Netherlands, e-mail: [email protected]

© T.M.C. ASSER PRESS and the authors 2020 T. D. Gill et al. (eds.), Yearbook of International Humanitarian Law, Volume 21 (2018), Yearbook of International Humanitarian Law 21, https://doi.org/10.1007/978-94-6265-343-6

267

268 Amnesties in Guatemala, 232 in Syrian armed conflict, 192 Amnesty International on AWS, 242 on Myanmar, 181 on Nigerian armed conflict with Boko Haram, 183 on Syrian armed conflict, 188 Amunupure, Kalana, prosecution of, 237–238 Andropov, Yuri, 50 Anglo-Scottish wars, war ordinances in, 154 Anglo-Spanish war (1585–1604), war ordinances in, 155–156 Anti-Ballistic Missile Treaty (ABM Treaty, 1972), US withdrawal from, 29 Anti-Personnel Mine Ban Convention (1997) Art. 19, 48 assistance prohibition in, 43, 47–48 Antiquity, rules of war in, 142–143, 145 Antwerp, sacking of, 156 Ao An, prosecution of, 217 Arab-Israeli conflict, Israeli-Palestinian clashes in, 166, 175–177, 201–202 La Araucana (poem, de Ercilla), 159 Argentina, prosecution of international crimes in, 220–221, 234–235 Arias, Fernando, 246–247 Arido, Narcisse, prosecution of, 208–209 Armed conflicts IHRL applicable in, 10 law of, see IHL (International Humanitarian Law) non-lethal weapons use in, 17 prohibited weapons, 13 see also IACs; NIACs; War Armed forces discipline of, war ordinances on, 147, 151, 153 integration of police forces and paramilitary into, 72 own, protection of, 79 Armed groups, non-state in Afghanistan, 166–167 in Central African Republic, 168–169 in Colombia, 170 in Congo Democratic Republic, 170–171 in Iraq, 173–175 in Mali, 178–179, 180 in Syria, 189 in Yemen, 198 Arms embargos, imposed on South Sudan, 186–187 Arms race nuclear, 24

Index end of, 28 new, 29–31, 52 in outer space, 251 Arms Trade Treaty (ATT), Conference of States Parties (CSP4), 241–242 Arnhem ordinance (Articulus-Brief, 1590, Netherlands), 159 Arras, Treaty of (1435), 155 Articles of war, see Ordinances of war Articles of War of the Prussian Army (1852), 153 Articulus-Brief (Arnhem ordinance, 1590, Netherlands), 159 Artificial intelligence, see AI Artificial neural networks, 103, 128 analysis of training data by, 107 Artikelsbriefe, 147 al-Assad, Bashar, 192 Assistance prohibition for wrongful conduct, 42–49 Asymmetrical warfare, 68 ATR (Automatic target recognition), 100, 101 deep learning algorithms used in, 101–102 IHL applicable to, 100, 107, 111–119, 128 limitations of, 106–107, 127–128 -inabilities of humans to understand, 100, 102, 105, 109–110, 121–127 -inabilities to understand context, 100, 102, 107–108 as part of human-machine teams, 119–121 weapon reviews of, 124 Attacks, see Indiscriminate attacks; Precautions in attack Auschwitz Concentration Camp, prosecution of crimes committed in, 228–229 Australia, weapon reviews in, 124, 125, 127 Austria practice on encouragement to engage in prohibited conduct, 47 prosecution of international crimes in, 222 Austro-Hungarian Empire, war ordinances in, 152 Automated weapons systems, 65, 66 see also AWS (autonomous weapons systems) Automatic target recognition, see ATR Automation bias, 119–120, 121 Autonomous weapons, see AWS; LAWS Autonomy, 64, 65 in weapon systems, 104 Avangard missiles, 29 AWS (autonomous weapons systems), 5, 104–105, 108 ATR technology used in, 101–102

Index IHL compliance of, 127–128, 242 and human understanding of algorithms, 122–127 meaningful human control over, 121 see also LAWS Ayyash, Salim Jamil, prosecution of, 219 Azov Sea, Russian blockade of, 194–195 B Babala, Fidèle, prosecution of, 208–209 Bandora, Charles, prosecution of, 234 Barocas, S., 129 al-Bashir, Omar, ICC arrest warrants for, 205 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990), on non-lethal weapons use, 9–10, 14–15, 16 Battlefield awareness, of LAWS, 83, 91 Beauvais, Bishop of, 143–144 Belgium, prosecution of international crimes in, 222 Belligerent nexus requirement for DPH, 70 Belligerent reprisals, legality of, 38–41 Bemba, Jean-Pierre, prosecution of, 166, 171, 207–209 Bensouda, Fatou, 176, 200, 201–202, 204 Bettati, Mario, 140–141 Biases algorithmic, 106 automation, 119–120, 121 Bin Salman, Mohammed (Saudi crown prince) Argentinian investigations into, 221 Yemenite complaint against, 227 Biological weapons non-proliferation of, 248 prohibition on use of, 11 Biological Weapons Convention (BWC, 1971) Art. III, 42 assistance prohibition in, 42 financial problems of, 247–248 Bisesero massacre (Rwanda), 227 Blair, Bruce, 52 Blockades, by Russia of the Azov Sea, 194–195 Blunt, Crispin, 51 Boko Haram, 183 Bolton, John, 201 Boogaard, J. van den, 79n155 Boothby, W.H., 113, 118n158, 118n161, 125 Booty, war ordinances on partition of, 151 Bosnia-Herzegovina, prosecution of international crimes in, 222–224 Boulanin, V., 105 Bovet, Honoré, 149, 153, 154 Brammertz, Serge, 212 Brownlie, I., 33

269 Brownlie formula on the legality of a threat to use force, 32 Bucyibaruta, Laurent, prosecution of, 226 Burgundy, war ordinances in, 149, 155 Cádiz, seizure and pillaging of, 155–156 Callejas y Callejas, Manuel Antonio, prosecution of, 231 Cambodia, prosecution of international crimes in (ECCC), 166, 215–217 Canicoba, Rodolfo, 234–235 Carillo, Fernando, 224 Carnahan, Burrus, 140 Casey-Maslen, S., 35 Castellanos, María Eugenia, 230 Casualties, civilian in Afghanistan, 167 in Iraq, 173, 175 in Nigeria, 183 in Somalia, 185 in Syria, 188, 189, 190 in Ukraine, 194 in Yemen, 198 Causation element of DPH, 70 Central African Republic armed conflict in, 168–169 ICC prosecution of international crimes committed in, 203–204, 207–209 Special Criminal Court in (SCC), 218 UN peace operation in (MINUSCA), 7, 169 Centre for Justice and Accountability, 240 Charles I (king of England), 157 Charles V (Holy Roman Emperor), 159 Charles XI (king of Sweden), 150, 151 Charles the Bald (king of France, Holy Roman Emperor), 146 Charles the Bold (duke of Burgundy), 149 Charles the Great (Frankish king/emperor), 145–146 Chemical agents, legality of use in law enforcement of, 12–14 Chemical weapons destruction of, 246 sea-dumped, 246 use of prohibition on, 11, 12–13, 245 in Syria, 189–190, 245, 247 Chemical Weapons Convention (CWC, 1993), 245–247 Art. I(5), 12 Art. II (9)(d), 12 assistance prohibition in, 42–43, 45 on use of RCA, 12–13 see also OPCW Children recruitment as soldiers, in Somalia, 184 in war

270

Index deaths of, 167 protection of, 150

China LAWS policy of, 73n101, 84 nuclear weapons programme of, 31n45 Christian IV (king of Denmark), 150, 159 Christian V (king of Denmark), 150 Christianity, and ordinances of war, 143–144, 145 Church property, protection in war of, 143–144, 145, 149, 150 Civilian objects recognition of, 111–112 targeting of, by Saudi-led forces in Yemen, 196 Civilian population, 69–70 atrocities committed against, 157, 158 casualties in Afghanistan, 167 in Iraq, 173, 175 in Nigeria, 183 in Somalia, 185 in Syria, 188, 189, 190 in Ukraine, 194 in Yemen, 198 DPH by, assessment of, 69, 70 indiscriminate attacks against in Iraq, 174 in Mali, 179 prohibition of, 89, 113, 125 in Somalia, 184 in Syria, 166 in Yemen, 166, 197–198 injured in Afghanistan, 167 in Iraq, 173 protection of and belligerent reprisals, 40–41 in historical ordinances of war, 143, 147, 148–149, 150, 151 and non-lethal weapons use against, 6, 9 recognition of, 111–112 see also Distinction principle of IHL terrorisation of, prohibition on, 37–38 use as human shield of, 77 Clergy, protection in war of, 143–144, 149 Clovis (Frankish king), 145 Cluster Munition Monitor reports, 243 Codex Theodosianus, 145 Codice degli stipendiarii (Florence), 147 Codice militare per le Masnade stipendiarie di Pisa (Military codex for paid mercenaries of Pisa), 147 Codicetto militare per la spedizione di Montaperti (Florence), 147

Cold War, nuclear deterrence in, 26, 50 Collateral damage acceptability of, and use of LAWS, 79 estimates of, 75, 78 by LAWS, 82–83, 91 Colombia ICC investigations into, 202 peace agreement with FARC in, 170 prosecution of international crimes in, 224–225 Combatants ATR recognition of, 114–115 protection of, 79, 153 hors de combat, 71, 116–117 Command responsibility, and understanding of algorithms, 122–123 Compassion arguments, in early IHL, 143 Complicity, tests for, 44–45 Congo Democratic Republic armed conflict in, 170–172 ICC prosecution of international crimes committed in, 206, 209–210 Consensus, 104n43 Constitutio de Pace tenenda (Holy Roman Empire), 144 Constitutio Expeditionis Beneventana (Holy Roman Empire), 146–147 Contexts assessments dependent on, 70, 77, 83 inabilities to understand of algorithms, 100, 102, 107–108 of LAWS, 69, 71, 77–78 Contracts, of soldiers, 147 Convention on Certain Conventional Weapons (1980) Meeting of High Contracting Parties, 242–243 Protocol IV, 9 Convention on Cluster Munitions, Meeting of States Parties, 243 Convention on the Law of the Sea (1994), Art. 161(8)(e), 104n43 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, 236 Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, 113 Counterforce strategy, 25 Cox, Rory, 154 Crane, David, 176 Crawford, James, 44 Crimea Autonomous Republic, Russian involvement in, 194–195

Index Crimes against humanity commission of, in Myanmar, 181 prosecution of, 166, 221, 224, 227, 231, 234, 235 Croatia, non-cooperation with MICT, 212 Crusades, 144 CSTO (Collective Security Treaty Organization), 45 Art. 4, 45–46 Cuatrerismo-Brigada Güemes (Clandestine Centre of Detention, Torture, and Extermination, Argentina), 221 Cuba, Missile Crisis (1962), 50 Cumin, David, 141 Curry, Anne, 154–155, 158 Custine, General, 158 Customary IHL, 36–38, 64, 74, 90, 111, 140 roots of, 159 Cyber operations, against nuclear weapons systems, 51–52 Cyberspace, development of rules of behaviour in, 251 Czech Republic, practice on assistance to prohibited conduct, 47–48 Data analysis by artificial neural networks of, 107 quality of, 106 David, Eric, 141 De Officio Militari (Upton), 149 Deep dream process (Google), 126 Deep learning, 100–101, 103–105 limitations of, 106–110, 127–128 use of in ATR, 101–102 -IHL applicable to, 100, 102, 107, 111–119, 128 in AWS, 105 moratorium on, 121 see also Algorithms Delgado, Dolores, 236 Demjanjuk, John, conviction of, 228 Denial of quarter prohibition, 36–37 Denmark prosecution of international crimes in, 225 war ordinances in, 150, 159 Deportation, crime of, 201 Desertion, punishments for, 152–153 Destruction of chemical weapons, 246 of cluster munitions, 243 of Khan al Ahmar, 202 Dinstein, Y., 11, 35 Directed energy weapons, legality of, 9 Disarmament, 166

271 assistance prohibition in law on, 42–49 nuclear, 24, 27–28, 52, 250 Discipline of soldiers in English Civil War, 157 war ordinances on, 147, 151, 153 Displaced persons in Central African Republic, 169 in Colombia, 170 in Congo Democratic Republic, 171 in Libya, 178 in Nigeria, 183 in Somalia, 185 in Syria, 192 in Ukraine, 194 see also Refugees Distinction principle of IHL, application of to ATR, 114–117 to LAWS, 60, 67–73, 89, 91 to non-lethal weapons, 9 Donagan, Barbara, 157 Dos Erres massacre (Guatemala), 232 Doubt rule of IHL, 111–112 Douma (Syria), fighting at, 189–190, 247 DPH (Direct participation in hostilities), assessment of by ATR, 115–116 by LAWS, 69, 70 DPR Korea, see North Korea Draft Articles on the Responsibility of States for Internationally Wrongful Acts (ILC), 44 Art. 16, 44 Drones, 65 Dual purpose objects, 70 Ducos, Emmanuelle, 218 Dudaković, Atif, prosecution of, 223 Dumouriez, General, 158 Dunant, Henri, 140 Duterte, Rodrigo, 199 E EAC (Extraordinary African Chambers), prosecutions by, 217–218 Eboe-Osuji, Chile, 199, 207 Ebola epidemics, in Congo Democratic Republic, 171–172 ECHR (European Convention on Human Rights), Art. 2, 13n59 ECtHR (European Court of Human Rights), on non-lethal weapons use, 13 Edward I (king of England), 154 Egypt armed conflict with IS in Sinai, 172–173 state of emergency in, 173 Elections, in Mali, 179–180

272 Electoral violence, in Congo Democratic Republic, 171 ELN (National Liberation Army, Colombia), 170 Encouragement to engage in prohibited conduct, 46–47 England Civil War in (1642-1651), war crimes committed in, 157 war ordinances in, 144–145, 148, 151, 154, 155–156, 157, 159 see also United Kingdom Environmental harm prohibition of IHL ATR compliance with, 113 human judgment needed in, 118 in weapon reviews, 124 Environments, abilities to deal with changes in of algorithms, 106–107n70 of LAWS, 69, 82, 91 Erben, Wilhelm, 141 Ercilla, Alonso de, 159 ETA (Basque Country and Freedom), crimes committed by, 234–235 Etchecolatz, Miguel, prosecution of, 221 Ethiopia, international crimes committed in, 233 Ethnic violence, in Mali, 179 EULEX (European Union Rule of Law Mission in Kosovo), 213–214 Europe IHL roots in, 140, 158–160 war crimes committed in, 157 European Coalition on Oil in Sudan, 238 Evolutionary programming of AI, 128 Excessiveness, assessments of, 80, 83 Explainable algorithms, 110, 121, 129 Extralegal reasoning, application of, to LAWS, 60 F FARC (Revolutionary Armed Forces of Colombia), prosecution of leaders of, 224 Farrant, J., 105 Feasibility assessments, by LAWS, 86 Fentanyl, legality in use of law enforcement of, 14n62 Ferm, Robert, 199 Finland, prosecution of international crimes in, 225–226 Florence, war ordinances in, 147 Force, use of from Gaza Strip against Israel, 176 in hostilities, 4 intention to, 35

Index by Israel against Palestinian demonstrators, 176 in law enforcement, 3–4 IHRL applicable to, 6–7, 10, 12 non-lethal weapons use, 6, 9–10, 13 lethal versus non-lethal, 17 paradigm decisions, 10 prohibition on, 32 threat of, 33–35 Ford, C.M., 105, 112, 122, 123n191 Fowler, Robert, 35 Foy, J., 69n56 France Peace of God in, 143, 144, 145 prosecution of international crimes in, 226–228 war ordinances in, 148, 149, 151, 152–153 Franco, Francisco, crimes against humanity committed by regime of, 235–236 Frederick I Barbarossa (Holy Roman Emperor), 144, 147 Freedman, Lawrence, 26 Fronsperger, Lienhart (Leonhard), 158 Fujimori, Alberto, pardoning of, 234 Fulrad (abbot of St Quentin), 145 G Gaggioli, G., 6n15 Gallagher, Edward, prosecution of, 240 García, Benedicto Lucas, prosecution of, 231 Garcia Lorca, Federico, 236 Gaza Strip, clashes with Israel, 175–177, 201–202 Gbagbo, Laurent, prosecution of, 205–206 Geneva Conventions on the Laws of War Additional Protocol I, Protection of Victims of International Armed Conflicts application of, 63–64 Art. 1(2), 90, 125n201 Art. 35(2), 87 Art. 35(3), 11 Art. 36, 4, 14, 16, 67, 88, 122, 123–124 Art. 41(1), 71 Art. 50(1), 69 Art. 51(6), 40 Art. 56, 118n161 on civilians definition, 69 on hors de combat combatants, 71 on prohibited weapons use, 11 on targeting of civilian population, 40 on weapon review obligation, 4, 16 Additional Protocol II, Protection of Victims of Non-international Armed Conflicts, application of, 63 Common Articles, Art. 3, 63

Index Genocide, prosecution of, 166, 223, 230, 241 Rwandan genocide, 212–213, 222, 225, 226–227, 229, 234, 238–239 Germany legality of use of RCA in, 13n58 prosecution of international crimes in, 228–229 Ghouta (Syria), siege of, 187–188 Global Justice and Research Project, 240 God, truce/peace of, 143, 144, 145 González Marín, Jaime, 230 Gordillo Martínez, Francisco Luis, prosecution of, 231–232 GoS (Governance of Sinai, IS affiliate), 172–173 Goudé, Charles Blé, prosecution of, 205–206 Greenwood, Christopher, 40 Gregory of Tours, 145 Gröning, Oskar, conviction of, 228 Grosse, Rolf, 144 Guatemala, prosecution of international crimes in, 230–232, 241 Gustavus II Adolphus (king of Sweden), 150, 151 Guterres, António, 188, 189, 249 H H., Hans Werner, prosecution of, 229 Habré, Hissène, prosecution of, 217–218 Hadi, Abdrabbuh Mansur, 196 Hamade, Marwan, 219 Hamas, accusations of crimes committed by, 202 Hariri, Rafik, 219 Harm threshold for DPH, 70 transgenerational, 210 Hassan, Jamil, prosecution of, 227 Hawi, George, 219 Hebel, Herman von, 199 Henry V (king of England), 148, 154–155 Henry VIII (king of England), 151 Herbach, J.D., 86n208 High-stakes domains, 129n223 Hodeida (Yemen), fighting in, 196–197 Hofmański, Piotr, 207, 208 Holy Roman Empire, war ordinances in, 144, 146–147, 150, 159–160 Homayounnejad, M., 86n208 Hors de combat combatant protection and ATR, 116–117 and LAWS, 71 Hostilities, use of force in, 4 Houthi rebel forces (Yemen), 196, 197

273 Human behaviour, understanding by LAWS of, 86 Human rights law, see IHRL (International human rights law) Human Rights Watch on landmines in Syria, 244 on Myanmar, 181 Human shields, use of, 77 Human-machine teams, 119–121 Humanitarian aid workers, dangers to in South Sudan, 187 in Syria, 190 Humanitarian assistance needs in Central African Republic, 169 in South Sudan, 187 in Yemen, 198 Humanity crimes against, prosecution of, 166 equality of, 160 principle of IHL, 61 application by LAWS of, 86–91 Humans control of weapon systems by, 65–66 absence of, 67, 68, 83, 91 need for, 60, 61, 73, 85, 86, 92–93, 117–119, 121 inabilities to understand algorithms by, 100, 102, 105, 109–110, 121–127 proportionality assessments by, 80–81 Hundred Years’ War, war ordinances in, 154–155 I IACs (international armed conflicts) civilians definitions in, 69 existence of, 63 IAEA (International Atomic Energy Agency), report on Iranian nuclear programme, 250 ICC (International Criminal Court) arrest warrants, 203–205 investigations of Colombian prosecutions of international crimes, 202 of Israeli-Palestinian violence, 176, 201–202 of Myanmar Rohingya crisis, 181, 201 of North Korean abductions of Japanese individuals, 203 of Philippines war on drugs, 200 of Russian deployment of mercenaries, 203 of US violence in Afghanistan, 201 of Venezuelan IHRL violations, 200

274 ICC (International Criminal Court) (cont.) judges, 199 jurisdiction of, 199, 201 prosecutions, 166, 203–204, 207–211 of Bemba, 171 of Gbagbo, 205–206 of Goudé, 205–206 of Ntaganda, 206 of Ongwen, 206–207 referrals to, 200 of Jordanian non-compliance, 205 Statute of Art. 28(a), 207 Art. 70, 208 ratifications, 199, 201 withdrawals, 199 Victims Trust Fund, 199, 211 ICJ (International Court of Justice) on IHL application, 62 Iranian complaint against US at, 250 on legality of threat or use of nuclear weapons, 32–35, 37, 38–39 on Martens Clause, 90 on state responsibility, 44 Statute of Art. 38(1), 61, 140, 142 on IHL norms and traditions, 140, 142 ICRC (International Committee of the Red Cross) on autonomous weapons systems, 64, 65 on belligerent reprisals, 40 Customary International Humanitarian Law Study of, 111 Rule 46, 36–37 on denial of quarter, 36–37 on DPH, assessment of, 70 on law enforcement in armed conflict, 10 on prohibition of certain weapons, 11, 14n62 on proportionality principle, 74 on protection of civilian population, 40 on weapon review obligation, 14, 124 ICTY (International Criminal Tribunal for the former Yugoslavia) on belligerent reprisals, 38 on doubt rule, 112 on proportionality, 79–80 Idlib province (Syria), fighting in, 189 IHL (International Humanitarian Law) application of to ATR, 100, 107, 111–119, 128

Index to LAWS/AWS, 60, 61–64, 93, 121–123, 127–128, 242 -distinction principle, 60, 67–73, 89, 91 -humanity principle, 86–91 -Martens Clause, 90–91, 92 -precautions in attack, 84–86, 91–92 -proportionality principle, 60, 74–84, 91 -weapon reviews obligation, 88–89, 123–127 to non-lethal weapons use, 4, 9, 17 customary, 36–38, 64, 74, 90, 111, 140 roots of, 159 history of, 139–140, 141–142, 160 in Antiquity, 142–143, 145 early modern (18th and 19th century), 152–153 European roots, 140, 158–160 Lieber Code seen as start of, 140–141 Medieval, 143–144, 146–149, 154–155 Renaissance (16th and 17th century), 149–151, 155–157, 159–160 and IHRL, 10 norms and traditions, 140, 142 obligations to conduct weapon reviews, 4, 14–16, 123–127 to verify targets, 112–113 reactive character of, 16 rules of, 64 on assistance prohibition to wrongful acts, 42–49 doubt rule, 111–112 proportionality principle, 107n73 on targeting, 71 on threats to use force, 36–42 on weapons prohibitions, 11 violations of on belligerent reprisals, 38–41 in Mali, 179 in Myanmar, 180–181 in Syria, 166, 188–189 IHRL (International Human Rights Law) application of, to law enforcement, 6–7, 10, 12 and IHL, 10 origins of, 152–153 violations of in Congo Democratic Republic, 170–171 in Iraq, by IS, 175 in Mali, 179 in Myanmar, 180–181

Index right to life, 13n59 in Venezuela, 200 on weapons use prohibitions, 12 IIIM (International, Impartial and Independent Mechanism), investigations in Syrian armed conflict, 192–193 ILC (International Law Commission) international organisations definition of, 43n109 on state responsibility, 44 Image recognition, algorithms for, 103, 110n93 context understanding by, 108 misleading of, 107 testing of, 126 Im Chaem, prosecution of, 216 Incapacitating chemical agents (ICAs), legality of use of, 13–14 Incapacitation, 5 Incendiary weapons, use of, 242–243 India, nuclear tests by, 35–36 Indiscriminate attacks in armed conflicts in Iraq, 174 in Mali, 179 in Somalia, 184 in Syria, 166, 188–189 in Yemen, 166, 197–198 prohibition ATR/LAWS compliance with, 89, 113 in weapon reviews, 125 INF Treaty (Intermediate-Range Nuclear Forces Treaty, 1987), US withdrawal from, 30, 250 Injuries ATR recognition of, 117 of civilians in Afghanistan, 167 in Iraq, 173 superfluous, prohibition on, 11, 87–88, 124 Institute for Non-Lethal Defense Technologies, 5n6 Intention to cause environmental harm, 113 to provide assistance for wrongful conduct, 44 to use force, 35 Inter-American Commission on Human Rights, on international crimes committed in Guatemala, 231 Inter-American Court of Human Rights, on international crimes committed in Peru, 234

275 Intermediate-Range Nuclear Forces Treaty (INF Treaty, 1987), US withdrawal from, 30, 250 International Covenant on Civil and Political Rights, Art. 6, 10, 17n77, 17n83 International crimes commission of in Algeria, 239 in Ethiopia, 233 in Guatemala, 231–232 in Iraq, 225, 240 in Liberia, 233, 240 in Myanmar, 181 in Namibia, 241 in Rwanda, 212–213, 222, 225, 226–227, 229, 238–239 in Sudan, 238 in Syria, 192–193, 222, 227–228, 229, 233 in Yugoslav Wars, 211–212, 222–224, 229 Database Project, 220n461 prosecution of domestic -in Argentina, 220–221, 234–235 -in Austria, 222 -in Belgium, 222 -in Bosnia-Herzegovina, 222–224 -in Cambodia, 215–217 -in Central African Republic, 218 -in Colombia, 224–225 -in Denmark, 225 -in Finland, 225–226 -in France, 226–228 -in Germany, 228–229 -in Guatemala, 230–232, 241 -in Kosovo, 233 -in the Netherlands, 233, 236 -in Peru, 234 -in South Africa, 236 -in South Sudan, 237 -in Sri Lanka, 237–238 -in Sweden, 238–239 -in Switzerland, 239 -in United Kingdom, 239 -in United States, 240–241 by international courts -EAC, 217–218 -ICC, 203–211 -MICT, 211–213 -STL, 219–220

276 see also Crimes against humanity; Genocide; War crimes International law, complicity tests in, 44–45 International organisations, 43n109 International Panel on the Regulation of Autonomous Weapons, 105 Ip, Kwai Hong, 215 Iran compliance with Chemical Weapons Convention, US doubts about, 245 nuclear programme of IAEA report on, 250 US allegations of nuclear weapon development, 248–249 Iraq armed conflict with IS in, 173–175 international crimes committed in, 225, 240 Ireland, atrocities committed by English forces in, 156, 157 IS (Islamic State) in Iraq, 173–175 in Libya, 178 in Mali (ISGS), 179 prosecution of crimes committed by, 225–226 in Sinai (GoS), 172–173 in Syria, 187, 191 in Yemen, 198 ISGS (Islamic State in the Greater Sahara), 179 Israel clashes with Palestinians, 166, 175–177 ICC investigations into, 176, 201–202 US recognition of Jerusalem as capital of, 175 Ius in bello, see Jus in bello Ivory Coast, ICC prosecutions of international crimes committed in, 205–206 Ixil region (Guatemala), atrocities committed in, 230 J Jabbateh, Mohammed, prosecution of, 240 Japan, ICC investigations into persons abducted to North Korea from, 203 Jerusalem, US recognition as capital of Israel, 175 John the Fearless of Burgundy, 155 Joint Comprehensive Plan of Action (JCPOA), US withdrawal from, 248–249, 250 Joint Investigation Team (JIT) into downing of flight MH17, 195–196

Index Jordan, ICC non-compliance referral against, 205 Jus ad bellum legality of threat to use nuclear weapons in, 32–36 Medieval, 145 Jus in bello application of to LAWS, 63 to threats to use nuclear weapons, 36–42 history of, 140–141, 160 see also IHL K Kalashnikov gun manufacturer, 101 Karadžić, Radovan, prosecution of, 211–212 Katanga, Germain, prosecution of, 210 Keen, Maurice, 154 Keita, Ibrahim Boubacar, 179 Khan al Ahmar (West Bank), planned destruction of, 202 Khartoum Declaration of Agreement (2018), 186 Khieu Samphan, prosecution of, 166, 215–216 Kiir, Salva, 185, 186 Killing of prisoners of war, 154 targeted, by US, 198 Kilolo, Aimé, prosecution of, 208–209 Kim Jong Un, 203 King’s Peace, 145 Korb, Lawrence, 30 Korea Asia-Pacific peace committee, 33 Kosorić, Mile, prosecution of, 223 Kosovo EU Rule of Law Mission in (EULEX), 213–214 prosecution of international crimes in, 233 Specialist Chambers and Specialist Prosecutor’s Office in, 214–215 Kouwenhoven, Guus, prosecution of, 233, 236 Kovač, Tomislav, prosecution of, 222–223 Kuczynski, Pedro Pablo, 234 Kunadi, Savitri, 36 Kurdish fighters, Turkish attacks on, 174, 191 L Lafarge S.A., prosecution of, 227 Landfrieden (peace of the land), 144 Landmines, banning of, 243–244 Laser weapons, prohibition on use of, 9

Index Law of armed conflict, see IHL (International Humanitarian Law) Law enforcement, 6n15 non-lethal weapons use in, 6, 9–10, 13 legality of, 16–17 use of force in, 3–4 IHRL applicable to, 6–7, 10, 12 Law of Innocents (Adomnán), 143 LAWS (lethal autonomous weapon systems), 5n7, 59–60, 64–67, 91 IHL applicable to, 60, 61–64, 91–93, 121–123 distinction principle, 67–73, 89, 91 humanity principle, 86–91 Martens Clause, 90–91, 92 precautions in attack, 84–86, 91–92 proportionality principle, 60, 74–84, 91 weapon reviews, 88–89 survival in combat of, 79 see also AWS Le Fèvre, Jean, 155 Le Fraper du Hellen, Dorothée, 220 Legal Center for Rights and Development, 227 Less-lethal weapons, 5 duty to review, 15 use of, 17n77 see also Non-lethal weapons Lethal use of force, versus non-lethal use, 17 Letona Linares, Edilberto, prosecution of, 231–232 Lewis, Peter, 199 Liberia, international crimes committed in, 233, 240 Libya clashes for control over, 177–178 ICC prosecution of international crimes committed in, 204 Lieber, Francis, 140, 153 Lieber Code (1863), 139–140 originality of, 153 as start of IHL, 140–141 Life, right to, violations of, 13n59 Limaj, Fatmir, prosecution of, 233 Londoño, Rodrigo, prosecution of, 224 Looting, see Pillaging López Alonzo, Santos, prosecution of, 232 Lostwithiel, battle of, 157 Louanga, Michel, 218 Louis II (Frankish emperor), 146 Louis XIV (king of France), 151, 158 Lubanga, Thomas, prosecution of, 209 Ludovici, Jacob Friedrich, 160

277 Lundin, Ian, prosecution of, 238 Lundin Petroleum, prosecution of, 238 M Machar, Riek, 185, 186 Machiavelli, Niccolò, 150 Machine learning see also Deep learning, 100, 103 Macron, Emmanuel, 177 Madrigal, Inés, 235 al Mahdi, Ahmad al Faqi, prosecution of, 210–211 Mahmoud, Abdel Salam, prosecution of, 227–228 Mali armed conflict in, 178–180 ICC prosecution of international crimes committed in, 203, 210–211 UN peace operation in (MINUSMA), 7, 179 Malodorants, legality of use as weapon of, 11n46 Mamluk, Ali, prosecution of, 227 Mangenda, Jean-Jacques, prosecution of, 208–209 Mantes Ordinance (England), 148, 154 Manual of the Law of Armed Conflict (United Kingdom) on doubt rule, 112 on precautions in attack, 118n158 Marshall Islands, hosting of US missile test site on, 45 Marsteller, Georg Simon, 159 Martens Clause application to LAWS of, 90–91, 92 in weapon reviews, 125 Martín Villa, Rodolfo, 236 Mata Amaya, José de la, 236 Maurice (Byzantine Emperor), 142 Mauthausen Concentration Camp, prosecution of crimes committed in, 229 Maximilian I (Holy Roman Emperor), 150 Mazarr, Michael, 26 Meaningful human control concept, 66, 92–93 Meas Muth, prosecution of, 216–217 Medical personnel, protection of, 71 Melzer, N., 6n15 Mercenaries, 147n32 ICC investigations of deployment by Russia of, 203 Merchants, protection in war of, 147

278 MH17 flight, investigations into downing of, 195–196 MHC (meaningful human control), 66, 92–93 Mibirizi church attack (Rwanda), 238 MICT (Mechanism for International Criminal Tribunals), prosecutions by, 211–213 Middle Ages, war ordinances in, 143–145, 154–155 Military advantage, assessments of, 11, 74, 78–79 by ATR, 115 by LAWS, 60, 75–76, 84, 91 Military alliances adherence to, 34, 45 nuclear, 46 Military manuals on doubt rule, 112 historical, 149 on intentional environmental harm prohibition, 113 on precautions in attack, 118n158 Military necessity, 153 application by LAWS of, 87 historical interpretations of, 154, 155 Military objects, ATR recognition of, 115 Military tribunals, pre-modern, 154, 155, 157, 158 Mine Ban Convention, Meeting of States Parties to, 243–244 Mirror of Saxons, 144 Missile Technology Control Regime, 248 Mladić, Ratko, prosecution of, 211 Molina, Luis de, 153 Molina Theissen, Emma Guadalupe, 230–231 Molina Theissen, Marco Antonio, 231 Monageng, Sanji Mmasenono, 207, 208 Monrovia Lutheran Church massacre, 240 Morgan, Patrick, 50 Morrison, Howard, 207 Morten, C., 48n134 Mosul, liberation of, 173 Muntazini, Toussaint, 218 Munyemana, Sosthène, prosecution of, 226 el-Murr, Elias, 219 Murwanashyaka, Ignace, prosecution of, 229 Musoni, Straton, prosecution of, 229 Myanmar, Rohingya crisis in, 180–182 ICC investigations into, 181, 201 N Nama people, genocide against, 241 Namibia, genocide in, 241

Index Nanotechnologies, use of, 116 NATO (North Atlantic Treaty Organization) non-lethal weapons policy of, 4, 6, 9, 17 nuclear deterrence policy of, 24, 25, 27 and assistance prohibition, 46, 47, 48 Naval warfare, 141n6 Navarro, Gonzalez, prosecution of, 221 Nazis, prosecution of crimes committed by, 225, 228–229 Necessity of belligerent reprisals, 39 military, 153 application by LAWS of, 87 historical interpretations of, 154, 155 Netherlands insurgency against Spain in, atrocities committed in, 156 investigations into downing of flight MH17 by, 195–196 prosecution of international crimes in, 233, 236 war ordinances in, 159 Neural networks, artificial, 103, 107, 128 Neutrality, of Switzerland, 26n12 Nezzar, Khaled, prosecution of, 239 Ngaïssona, Patrice-Edouard, prosecution of, 204 Ngeze, Hassan, prosecution of, 212 NIACs (non-international armed conflicts) civilians definitions in, 69–70 existence of, 63 Nigeria, armed conflict with Boko Haram in, 183 Non-combatant personnel, identification of by ATR, 116, 117 by LAWS, 71 Non-lethal weapons (NLW), 3, 4–5, 6 need for, 6–8 use of, 7, 8 in law enforcement, 6, 9–10, 13, 16–17 legality of, 8–10, 12–16 prohibitions on, 11–12, 13 Non-proliferation of biological weapons, 248 of nuclear weapons, 28–29, 31 in outer space, 251 Non-state actors, 43n110, 43n111 Non-state armed groups in Afghanistan, 166–167 in Central African Republic, 168–169 in Colombia, 170 in Congo Democratic Republic, 170–171

Index in Iraq, 173–175 in Mali, 178–179, 180 in Syria, 189 in Yemen, 198 Normandy, English rule of, 148 North Korea ICC investigations into abduction of Japanese citizens to, 203 nuclear arms programme of, 28, 31 threats of use of force by, 33 NPT (Treaty on the Non-Proliferation of Nuclear Weapons, 1968), 24 Art. VI, 29 assistance prohibition in, 49 success of, 31 Ntaganda, Bosco, prosecution of, 206 Ntawukuriryayo, Dominique, prosecution of, 212–213 NTI (Nuclear Threat Initiative), on cyber threats to nuclear weapons systems, 51 Nuclear arms race end of, 28 new, 24, 29–31, 52 Nuclear deterrence, 25–31 effectiveness of, 23–24, 26, 50–52 legitimacy of, 23, 24–25, 31 assistance provision, 42–49 threat of use, 23, 32–42 Nuclear disarmament, 27–28, 250 need for, 24, 52 Nuclear umbrella states, 26n12, 47 Nuclear weapons cyber operations against, 51–52 prohibition to provide assistance and encouragement in, 42–49 proliferation of, 28–29, 31 size of global arsenal of, 27–31 US allegations of Iranian development of, 248–249 use of accidental, risks of, 23–24 legality of threat of, 23, 32–42 Núñez, Hugo, 234 Nuon Chea, prosecution of, 166, 215–216 Nyakanyinya school attack (Rwanda), 238 O OAS (Organization of American States), on human rights situation in Venezuela, 200 Obligations of IHL to conduct weapon reviews, 4, 14–16, 88–89, 123–127

279 to take precautions in attack, 118n158 to verify targets, 112–113 Obradović, Milorad, prosecution of, 229 Oneissi, Hussein Hassan, prosecution of, 219 Ongwen, Dominic, prosecution of, 206–207 Onosander, 149 OPCW (Organisation for the Prohibition of Chemical Weapons), 246–247 Fact-Finding Mission on use of chemical weapons in Syria, 190, 245, 247 on use of ICAs, 14 Ordinance of Emperor Maximilian II (1570), 150 Ordinance of King Charles XI, 150, 151, 159 Ordinance of King Christian IV, 159 Ordinance of King Christian V, 150, 159 Ordinance of King Christian XI, 158 Ordinance of King Edward I (1296), 154 Ordinance of King Gustavus II Adolphus, 150, 151, 158, 159 Ordinance of King Henry VIII, 151 Ordinance of King Louis XIV (1661), 151, 158 Ordinance of King Philip VI of France, 148 Ordinances of Emperor Ferdinand III (1637 and 1657), 150, 159 Ordinances of Emperor Maximilian I (1508), 150, 159 Art. 14, 150n50 Ordinances of war, 142, 160 early modern (18th and 19th century), 152–153 effectiveness of, 154–158 Medieval, 143–145, 146–149, 154–155 origins of, 145–146 Renaissance (16th and 17th century), 149–151, 155–157, 159–160 Orić, Naser, prosecution of, 223–224 OSCE (Organization for Security and Co-operation in Europe), Special Monitoring Mission to Ukraine, 194 Outer space, arms race in, 251 Outer Space Treaty (1967), 31n46 Ovaherero people, genocide against, 241 Over-fitting of data, 106n69 P Pakistan, nuclear tests by, 35, 36 Pala, Claudio, 213 Palestine, accession to Mine Ban Convention by, 244 Palestinian clashes with Israeli forces, 166, 175–177 ICC investigations into, 176, 201–202

280 Palij, Jakiw, prosecution of, 229 Papadopoulou, Alexandra, 214 Paramilitary forces, integration into armed forces of, 72 Parker, Geoffrey, 156 Pax Dei movement, 143, 144 Peace of God, 144, 145 Peace of the King, 145 Peace of the land, 144 Peace negotiations on Afghanistan armed conflict, 167–168 on Central African Republic armed conflict, 168–169 Peace operations of AU, in Somalia, 184, 185 of UN in Afghanistan, 167 in Central African Republic, 7, 169, 179 in Congo Democratic Republic, 170–171 in Libya, 177 in Mali, 7, 179 weapons needed by, 3 non-lethal, 7 Pedro de Abreu (Spanish monk), 156 Permanent disability, causing of, 11 Perrin de Brichambaut, Marc, 199 Peru, prosecution of international crimes in, 234 Philip (duke of Cleves), 159 Philip VI (king of France), 148 Philippines ICC investigations into, 200 withdrawal from ICC Statute, 199 Phillip II (king of Spain), 156 Pillaging of Antwerp, 156 of Cádiz, 155–156 in English Civil War, 157 war ordinances on, 145–146, 149, 151 Police forces, integration into armed forces of, 72 Poor, Medieval prohibition of robbing of, 143–144 Portier, Jacob, prosecution of, 240 Powell, Colin, 51 Precautions in attack, 118n158 by LAWS, 84–86, 91–92 Prisoners of war protection of, and ATR, 116–117 war ordinances on treatment of, 151, 154, 155 Proportionality principle of IHL, 107n73 application of

Index to belligerent reprisals, 39–40 to LAWS, 60, 74–84, 91 assessment of, 74, 77–81 Prussia, war ordinances in, 153 Putin, Vladimir, 30, 48n134 R Rape, as war crime, 150 Ravenstein, Lord of, 159 Reasonable person standard, 80, 81, 112 Refugees from Central African Republic, 169 from Congo Democratic Republic, 171 from Myanmar (Rohingya), 180–182 from Syria, 192 see also Displaced persons Rehbogen, Johann, prosecution of, 228–229 Remotely controlled weapons systems, 65–66 Renaissance, ordinances of war in, 149–151, 155–157, 159–160 Reparations, ICC on assessment of, 210 Repatriation, of Rohingya refugees to Myanmar, 181–182 Repgow, Eike von, 144 Reprisals, belligerent, legality of, 38–41 Responsibility of commanders, and understanding of algorithms, 122–123 of states, 44 Ríos Montt, José Efraín, 230 Riot-control agents (RCAs), legality of use of, 12–14 Roberts, Adam, 140 Rodríguez Sánchez, José Mauricio, prosecution of, 230 Rohingya crisis (Myanmar), 180–182 ICC investigations into, 181, 201 Roman Empire rules of war in, 142–143, 145 war manuals in, 149 Rome Statute, see ICC (International Criminal Court), Statute of Roux, François, 220 Rukeratabaro, Theodore, prosecution of, 238–239 Russia ATR technology in, 101 criticism on meaningful human control concept by, 93n253 ICC investigations into deployment of mercenaries by, 203 involvement in armed conflicts of Syria, 188, 189 Ukraine, 193, 194–195

Index nuclear weapons programme of, 29, 30 threats of use of force by, 34 see also Soviet Union Rwandan genocide, prosecutions of, 212–213, 222, 225, 226–227, 229, 234, 238–239 S Sacking, see Pillaging Sadurska, R., 34 Salih, Barham, 175 SALT 1 (Strategic Arms Limitation Treaty, 1972), 27 Salva guardia property (sauvegarde, untouchable), 151 Samayoa, Juan, prosecution of, 241 Sanchez, José, 241 Sanctions imposed on Iran, by US, 250 imposed on South Sudan, 186–187 Sarić, Goran, prosecution of, 223 Sassòli, M., 122 Saudi Arabia involvement in Yemen armed conflict, 196, 197–198, 221 nuclear weapons programme of, 31 Scandinavia, war ordinances in, 150, 151, 159 Scharre, P., 105 Schendiman, David, 214–215 Schmitt, M.N., 70n68, 85n197, 112 Schneiter, Alex, prosecution of, 238 Schnerb, Bertrand, 155 Schomburg, Wolfgang, 37 Scotland, wars with England, 154 SCSL (Special Court for Sierra Leone), on prohibition to terrorise civilian population, 37–38 Sea, chemical weapons dumping in, 246 Selbst, A., 129 Šešelj, Vojislav, prosecution of, 212 Sharkey, N.E., 69n55, 81n180, 121 Siege warfare medieval, 148 in Syria, 187–188 Simba, Aloys, prosecution of, 212–213 Simbikangwa, Pascal, prosecution of, 226 Sinai, Egypt-IS armed conflict in, 172–173 Singer, P.W., 92n249 al-Sisi, Abdel Fattah, 172, 173 Sivajilingam, M.K., 237 Smith, Jack, 215 Soldiers children, recruitment in Somalia of, 184 discipline of, 147, 151, 153, 157 marital status of, 151

281 Somalia, armed conflicts in, 184–185 South Africa, prosecution of international crimes in, 236 South Sudan armed conflict in, 185–187 prosecution of international crimes in, 237 Soviet Union Cold War nuclear deterrence with US, 50 see also Russia Spain prosecution of international crimes in, 234–236 see also Anglo-Spanish war Special Criminal Court on Central African Republic, 169 Spells, prohibition on casting of, 151 Spera, Pietro, 215 Spoofing, 107 Srebrenica massacre, 223 Sri Lanka accession to Convention on Cluster Munitions by, 243 prosecution of international crimes in, 237–238 START Treaties (Treaty on the Reduction and Limitation of Strategic Offensive Arms), 27–28, 30 States IHL obligations of, to conduct weapon reviews, 4, 14–16, 88–89, 123–127 nuclear umbrella, 26n12, 47 practice of on belligerent reprisals, 40–41 on encouragement to engage in prohibited conduct, 47–48 on weapon reviews, 124, 125, 127 responsibility of, 44 third, non-bindingness of treaties for, 41 Statutory limitations, in Spain, 235 STL (Special Tribunal for Lebanon), prosecutions by, 219–220 Strategikon (Maurice), 142 Sudan, international crimes committed in, 238 Suffering, unnecessary, prohibition on, 11, 87–88, 124 Superfluous injury prohibition and use of LAWS, 87–88 and use of non-lethal weapons, 11 in weapon reviews, 124 Surrender, understanding of by ATR, 116 by LAWS, 71, 86 Survival, of LAWS, 79 Susnjar, Radomir, prosecution of, 223

282 Sutcliffe, Matthew, 155–156 Sweden Aurora 17 military exercises in, 48 prosecution of international crimes in, 238–239 war ordinances in, 150, 151, 159 Switzerland as nuclear umbrella state, 26n12 prosecution of international crimes in, 239 Syria armed conflict in, 166, 187–193 international crimes committed in, 192–193, 222, 227–228, 229, 233 Russian involvement in, 188, 189 Turkish involvement in, 189, 191 US involvement in, 191–192 use of chemical weapons in, 189–190, 245, 247 use of landmines in, 244 T Taliban, 167 peace negotiations with US, 167–168 Targeting deliberate-dynamic distinction in, 83 IHL rules on, 71, 100, 111–119 Targets automatic recognition of, 100, 114–117 automatic recognition of, see ATR verification of, 85, 112–113 Taylor, Charles, 233, 236 Terrorisation of civilian population prohibition, 37–38 Terrorism, 166 in Afghanistan, 167 in Iraq, 174 in Libya, 178 in Mali, 179 in Nigeria, 183 in Somalia, 184–185 Tesić, Momcilo, prosecution of, 223 Testing of AWS/algorithms for IHL compliance, 125–127 of non-lethal weapons, 15 of nuclear weapons, prohibition on, 49n138 Thaci, Hashim, 214 Third states, non-bindingness of treaties for, 41 Thirty Years War atrocities committed in, 157, 158 war ordinances in, 150 Thomas, Moses, prosecution of, 240 Thresholds for DPH, 70

Index for intention to provide assistance to wrongful conduct, 44 Thurnher, J.S., 85n197, 112 Tillerson, Rex, 192 Tong Zhao, 31n45 Torture, compensation for victims of, 225 Toscano, C.P., 71n78 Treaties legal consequences of signing of, 48–49 non-bindingness for third states of, 41 US withdrawals from, 29, 30, 248–249, 250 Treaty on a Nuclear-Weapon-Free Zone in Central Asia (Treaty of Semipalatinsk, 2006), 46 Treaty on the Prohibition of Nuclear Weapons (TPNW), 23 Art. 1(1), 41, 42, 43–44, 49n138 Art. 1(1)(e), 43, 44, 45, 47 Art. 2(1)(b), 41–42 on prohibition of threat of use of nuclear weapons, 41, 49n137 and prohibition assistance, 42–49 on prohibition to test nuclear weapons, 49n138 signing of, and adherence to nuclear alliances, 48–49 Swiss policies towards, 26n12 Tree of Battles (Bovet), 149 Treuga Dei movement, 143, 144 Tripoli (Libya), clashes for control over, 177 Troiani, Pedro, 221 Trump, Donald, 28n29, 168, 192, 248–249 Turkey fight against Kurdish forces in Iraq by, 174 involvement in Syrian armed conflict of, 189, 191 Twagirayezu, Wencelas, extradition of, 225 U Uganda, ICC prosecution of international crimes committed in, 206–207 Ukraine, armed conflict in, 193–196 Under-fitting of data, 106n69 Unexplainable algorithms, 121, 129 United Kingdom nuclear weapons programme of, 29, 51–52 practice on belligerent reprisals, 40 prosecution of international crimes in, 239 weapon reviews of, 124 see also England United Nations Charter, Art. 2(4), 32

Index General Assembly First Committee on Disarmament and International Security (UN First Committee), 250–251 Group of Regional and International Eminent Experts on Yemen, 198 High Commissioner for Human Rights, 237 High Commissioner for Refugees, on Myanmar Rohingya crisis, 181–182 High-level Independent Panel on Peace Operations, 7 Human Rights Commission on South Sudan, 237 Human Rights Committee on IHRL applicable in armed conflict, 10 on less-lethal weapons, 15, 17n77 on lethal use of force, 17n83 Human Rights Council investigations -of Israeli-Palestinian violence, 176 -of Rohingya crisis in Myanmar, 180–181 on less-lethal weapons, 15 on non-lethal weapons use in law enforcement, 12 on Sri Lanka, 237 IIIM investigations into international crimes committed in Syria, 192–193 Independent International Commission of Inquiry on the Syrian Arab Republic, 189, 190 Investigative Team to Promote Accountability for Crimes Committed by Da’esh/Islamic State in Iraq and the Levant (UNITAD), 174 Office of the Special Envoy of the Secretary-General for Yemen (OSESGY), 197 peacekeeping operations Assistance Mission in Afghanistan (UNAMA), 167 Multidimensional Integrated Stabilization Mission in the Central African Republic (MINUSCA), 7, 169, 179 Multidimensional Integrated Stabilization Mission in Mali (MINUSMA), 7, 179 non-lethal weapons needs of, 7

283 Organization Stabilization Mission in the Democratic Republic of the Congo (MONUSCO), 170–171 Support Mission in Libya (UNSMIL), 177 Security Council on Libya, 178 on non-state actors, 43n110, 43n111 Resolutions -No. 1540 (2004) Non-proliferation of weapons of mass destruction, 43n110, 43n111 -No. 2231 (2015) Non-proliferation, 249 -No. 2379 (2017) Threats to international peace and security, 174 -No. 2401 (2018) Middle East, 188 -No. 2420 (2018) Libya, 178 -No. 2423 (2018) Mali, 7 -No. 2428 (2018) Sudan and South Sudan, 186–187 -No. 2431 (2018) Somalia, 185 on South Sudan conflict, 186–187 Special Rapporteurs on Torture and on the Independence of Judges and Lawyers, 239 United States defence policies ATR technology research, 101 AWS definition, 64 criticism on meaningful human control concept, 93n253 military presence in Iraq, 173–174 nuclear weapons policies, 24, 25–26, 28–29, 30, 50, 52 deportation of Nazi suspects from, 229 foreign policies Jerusalem recognised as capital of Israel, 175 peace negotiations with Taliban, 167–168 relations with Iran, 245, 248–249, 250 withdrawals from treaties, 29, 30, 248–249, 250 involvement in armed conflicts in Afghanistan, ICC investigations into, 201 in Syria, 191–192 targeted killings in Yemen, 198 practice on belligerent reprisals, 40

284 weapon reviews, 127 prosecution of international crimes in, 240–241 Universal jurisdiction laws in Argentina, 234–235 in Spain, 236 Unnecessary suffering prohibition and use of LAWS, 87–88 and use of non-lethal weapons, 11 in weapon reviews, 124 Upton, Nicholas, 149 Urban II (Pope), 144 Urban areas, application of distinction principle in, 69 V Valle, Jesús María, 224 Vásquez Gómez, Augustín, 246 Vegetius, 149 Vehicle checkpoints, use of non-lethal weapons at, 10 Vela, Eduardo, prosecution of, 235 Vélez Álvaro Uribe, 224 Venezuela, ICC investigations into IHRL violations in, 200 Verbruggen, M., 105 Vernacular languages, war ordinances in, 148 Victims support for by EAC, 217–218 by ICC, 199, 211 of torture, compensation for, 225 Vienna Convention on the Law of Treaties (1969) Art. 18, 48–49 Art. 34, 41n100 on consequences of signing treaties, 48–49 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (1986) Art. 2(1)(i), 43n109 international organisations definition in, 43n109 Violations of human rights by IS in Iraq, 175 in Congo Democratic Republic armed conflict, 170–171 in Mali, 179 in Myanmar, 180–181 right to life, 13n59

Index in Venezuela, 200 of IHL on belligerent reprisals, 38–41 in Mali, 179 in Myanmar, 180–181 in Syria, 166, 188–189 Violence electoral, in Congo Democratic Republic, 171 ethnic, in Mali, 179 War algorithms, 105n51 War crimes, 141 in Congo Democratic Republic armed conflict, 170–171 investigations of, by UNITAD, 174 prosecution of, 166, 223, 229, 233, 239, 240 pre-modern, 154, 155–158 rape, 150 in Syrian armed conflict, 188 in Yemen armed conflict, 198 War ordinances, 141, 142, 160 early modern (18th and 19th century), 152–153 effectiveness of, 154–158 Medieval, 143–145, 146–149, 154–155 origins of, 145–146 Renaissance (16th and 17th century), 149–151, 155–157, 159–160 Warfare asymmetrical, 68 naval, 141n6 sieges, 148, 187–188 Warnings, effective, issued by LAWS, 85 Wassenaar Arrangement (conventional weapons export control regime), 248 Waurin, Jean de, 155 Weapon reviews obligation of IHL, 4, 14–16 for LAWS/AWS, 88–89, 123–127 Weapons autonomous (AWS), 5, 104–105, 108 ATR technology used in, 101–102 IHL compliance of, 127–128, 242 -and human understanding of algorithms, 122–127 meaningful human control over, 121 biological non-proliferation of, 248 prohibition on use of, 11 chemical destruction of, 246 sea-dumped, 246

Index use of -prohibition on, 11, 12–13, 245 -in Syria, 189–190, 245, 247 delivery of, to Central African Republic, 169 incendiary, use of, 242–243 LAWS, 5n7, 59–60, 91 IHL applicable to, 60, 61–64, 91–93, 121–123 -distinction principle, 60, 67–73, 89, 91 -humanity principle, 86–91 -Martens Clause, 90–91, 92 -precautions in attack, 84–86, 91–92 -proportionality principle, 60, 74–84, 91 -weapons reviews, 88–89 survival in combat of, 79 less-lethal, 5, 15, 17n77 non-lethal, 3, 4–5, 6 need for, 6–8 use of, 7, 8 -in law enforcement, 6, 9–10, 13, 16–17 -legality of, 8–10, 12–16 -prohibitions on, 11–12, 13 nuclear cyber operations against, 51–52 proliferation of, 28–29, 31 size of global arsenal of, 27–31

285 use of -accidental, risks of, 24 -legality of threat of, 23, 32–42 prohibited, use in Syria of, 189 space, 251 trade in, 241–242 al-Werfalli, Mahmoud Mustafa Busayf, ICC arrest warrant for, 204 William III of Orange (king of Great Britain and Ireland, Stadholder of the United Provinces of the Netherlands), 159 Winteko (Rwanda) massacre, 238 Women, protection in war of, 143–144, 150, 156 Wrongful acts, IHL prohibition to provide assistance to, 42–49 Wyngaert, Christine van den, 207 Xitumul, Pablo, 231 Yekatom, Alfred, prosecution of, 203–204 Yemen, armed conflict in, 166, 196–198, 221 Yim Tith, prosecution of, 216 Yoc Yoc, Sarah, 230 Yugoslav Wars, prosecution of crimes committed in, 211–212, 222–224, 229 Zaldaña Rojas, Hugo Ramiro, prosecution of, 231 Zuroff, Efraim, 225, 228