Yearbook of International Humanitarian Law, Volume 23 (2020) (Yearbook of International Humanitarian Law, 23) 9462654905, 9789462654907

Table of contents :
Editorial
Contents
Part I Expert Manuals
1 Law of Armed Conflict Manuals
1.1 My Involvement with LOAC Manuals
1.2 The Rationale of LOAC Manuals
1.3 Codification of the Lex Lata
1.4 LOAC Manuals and Custom
1.5 LOAC Manuals and Treaties
1.6 Consultations with Governments
1.7 LOAC Manuals and Official National Military Manuals
1.8 Successive LOAC Manuals
1.9 Format: Black-Letter Rules
1.10 Format: Commentary
1.11 Updates
1.12 Conclusions
References
2 A Room Full of Experts: Expert Manuals and Their Influence on the Development of International Law
2.1 Introduction
2.2 The Formal Role of Expert Manuals
2.3 A Room Full of Experts
2.4 Process and Methodology
2.5 Finding the Law
2.6 Conclusion
References
3 The Leuven Manual on the International Law Applicable to Peace Operations: An Ambitious Sui Generis Expert Panel Manual with Time on Its Side?
3.1 Introduction
3.2 Methodology
3.2.1 Initial Main Efforts
3.2.2 Research and Drafting
3.2.3 Format
3.2.4 Dissemination
3.2.5 Status as a Living Reference Work
3.3 Authority
3.3.1 Introduction
3.3.2 Expert Consensus
3.3.3 Geographical Representation
3.3.4 The Way the Leuven Manual Was Published, Welcomed and Reviewed
3.3.5 The Expertise of the Members of the Group of Experts and the Quality of Their Research
3.3.6 The Degree to Which the Leuven Manual Is and Will Be Used as a Reference Work
3.4 Conclusion
References
Part II Other Articles
4 Examining a Norm of Customary International Law that Criminalises the Intentional Use of Starvation of the Civilian Population as a Method of Warfare
4.1 Introduction
4.2 State of the Art
4.3 Indispensable Ingredients of the Customary Rule
4.3.1 State Practice
4.3.2 Opinio Juris Sive Necessitates
4.4 Conclusion
References
5 Does International Law Permit the Provision of Humanitarian Assistance Without Host State Consent? Territorial Integrity, Necessity and the Determinative Function of the General Assembly
5.1 Introduction
5.2 The Prima Facie Legality or Illegality of Humanitarian Assistance Provided Without Host State Consent
5.2.1 The Requirement of Consent and the Prohibition of Arbitrarily Withholding It
5.2.2 Non-consensual Humanitarian Assistance: A Violation of Territorial Integrity?
5.2.3 Conclusion on the Prima Facie Legality or Illegality of Non-consensual Humanitarian Assistance
5.3 Necessity as a Circumstance Precluding the Wrongfulness of an Internationally Wrongful Act
5.4 A Role for the General Assembly in Determining a State of Necessity
5.5 Conclusion
References
6 Article 36: Review of AI Decision-Support Systems and Other Emerging Technologies of Warfare
6.1 Introduction
6.2 Legal Review of a New Weapon, Means or Methods of Warfare
6.2.1 Purpose
6.2.2 Scope
6.3 Case Study: AI Decision-Support Systems
6.3.1 Compliance with IHL Rules and Principles
6.3.2 Integrity to Military Decision-making
6.3.3 Significance to Military Operations
6.3.4 Offensive Capabilities: The Co-production of Hostilities
6.4 Discussion: A Legal Review of Technologies of Warfare
6.5 Final Remarks
References
Part III Year in Review
7 Year in Review 2020
7.1 Ongoing Conflicts and Other Developments
7.1.1 Afghanistan
7.1.2 Armenia/Azerbaijan
7.1.3 Burkina Faso
7.1.4 Cameroon
7.1.5 Central African Republic
7.1.6 Colombia
7.1.7 Democratic Republic of Congo
7.1.8 Ethiopia
7.1.9 Israel/Palestine
7.1.10 Iraq
7.1.11 Libya
7.1.12 Mozambique
7.1.13 Myanmar
7.1.14 Somalia
7.1.15 South Sudan
7.1.16 Syria
7.1.17 Ukraine
7.1.18 Western Sahara/Morocco
7.1.19 Yemen
7.2 Courts and Tribunals
7.2.1 International Courts
7.2.2 Regional and Hybrid Courts and Tribunals
7.2.3 National Courts
7.3 Arms Control and Disarmament
7.3.1 Arms Trade
7.3.2 Conventional Weapons
7.3.3 Non-conventional Weapons
7.3.4 Outer Space
References
Table of Cases
INTERNATIONAL
NATIONAL
Index

Citation preview

Yearbook of International Humanitarian Law 2020

Yearbook of International Humanitarian Law Volume 23

More information about this series at https://link.springer.com/bookseries/8912

Terry D. Gill · Robin Geiß · Heike Krieger · Rebecca Mignot-Mahdavi Editors

Yearbook of International Humanitarian Law 2020

Editors Terry D. Gill Criminal Law Section, Section Military Law University of Amsterdam Amsterdam, The Netherlands

Robin Geiß United Nations Institute for Disarmament Palais des Nations Geneva, Switzerland

Heike Krieger Department of Law/Public Law Free University of Berlin Berlin, Germany

Rebecca Mignot-Mahdavi Research Department T.M.C. Asser Instituut The Hague, The Netherlands

ISSN 1389-1359 ISSN 1574-096X (electronic) Yearbook of International Humanitarian Law ISBN 978-94-6265-490-7 ISBN 978-94-6265-491-4 (eBook) https://doi.org/10.1007/978-94-6265-491-4 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. 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 2022 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. Cover photograph by Frank Bakker. Copyright: T.M.C. Asser Instituut, The Hague. 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 Prof. Robin Geiß (Editor), United Nations Institute for Disarmament Research Prof. Heike Krieger (Editor), Free University of Berlin

Managing Editor Dr. Rebecca Mignot-Mahdavi, T.M.C. Asser Instituut, The Hague

Editorial Assistant Shraddha Dubey, T.M.C. Asser Instituut, The Hague

Board of Advisors to the Editorial Board Dr. Louise Arimatsu, LSE Centre for Women, Peace and Security, London School of Economics Dr. William Boothby, Geneva Centre for Security Policy Prof. Geoffrey Corn, South Texas College of Law 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 Dr. Christophe Paulussen, T.M.C. Asser Instituut, The Hague 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 Dr. Hanne Cuyckens, Leiden University College

Board of Recommendation HRH Princess Margriet of the Netherlands, Honorary President of the Netherlands Red Cross Prof. Tim McCormack, University of Tasmania/Special Adviser on International Humanitarian Law to the Prosecutor of the International Criminal Court 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, Magdalene College, University of Cambridge H. E. Judge Theodor Meron, International Residual Mechanism for Criminal Tribunals H. E. Judge Fausto Pocar, International Court of Justice Prof. Michael N. Schmitt, University of Reading

Guest Reviewers Dr. Marta Bo, T.M.C. Asser Instituut/The Graduate Institute of International and Development Studies Prof. Tom Dannenbaum, The Fletcher School, Tufts University Dr. François Delerue, Faculty of Governance and Global Affairs, Leiden University Prof. Masahiro Kurosaki, Leiden University Prof. Dustin Lewis, Program on International Law and Armed Conflict, Harvard Law School Prof. Anne Millet-Devalle, Department of Law and Political Science, University Côte d’Azur Prof. Andrew Murray, Department of Law, London School of Economics Dr. Stavros Pantazopoulos, Erik Castrén Institute, University of Helsinki Prof. Tom Ruys, Department of European, Public and International Law, Ghent University Prof. Nathalie Weizmann, Senior Legal Officer with the United Nations Office for the Coordination of Humanitarian Affairs

Editorial

This volume of the Yearbook takes a close look at the role of so-called expert manuals in the interpretation and development of the international law of armed conflict and related branches of international law relating to military operations. Manuals on the law of armed conflict come in different guises. The most common one is the military manual, which is a publication issued by a State’s Ministry of Defence or a branch of the armed forces with a restatement of the law of armed conflict or another branch of military law as interpreted by that State. Such manuals usually have an official status as standing orders or ordinances within that State’s armed forces and are used for training and educational purposes within the armed forces and sometimes are also used in the operational context when applying the law to the planning and conduct of operations. Such manuals can trace their origins back to at least the nineteenth Century with the famous Lieber Code of 1863 usually seen as the first such codification. Although there are some early examples of a second type of manual drafted by one or more experts with a view to interpreting and developing the law of armed conflict, such as the famous Oxford Manual of 1880, we have seen in more recent years that there has been a proliferation of such expert panel manuals. These take the form of a practically oriented academic publication which aims to set out an authoritative restatement of a particular branch of the law of armed conflict or other branch of operational law which is the product of a process of a panel of experts setting out their views on the interpretation of the area of law in question. Such manuals have taken on an increasingly prominent role partly to address emerging technologies, methods of warfare and applications of the law and partly to fill the gap left in updating and codifying the law because of the difficulty of reaching consensus at the State level. They differ from traditional military manuals by their non-governmental and non-binding status and from edited volumes by being the product of a group effort where consensus is sought and presented as an authoritative interpretation by a group of experts within a particular field. These manuals are aimed at policy level officials in foreign ministries, defence staffs, and international organizations as well as at fellow academics and (post-)graduate level students. In this they differ from

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traditional military manuals, which are primarily internal training and operational tools within a State’s armed forces. Examples of these expert panel manuals include the San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), the HPCR Manual on International Law Applicable to Air and Missile Warfare (2005), the Tallinn Manual on the Application of International Law to Cyber Warfare (2013), its follow-up 2nd edition including peacetime cyber operations entitled Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations (2017), the Leuven Manual on the International Law Applicable to Peace Operations (2017), and the Oslo Manual on Select Topics of the Law of Armed Conflict (2020). To these must be added other such manuals currently under consideration or development on a wide variety of topics ranging from armed conflict in Outer Space to various types of new and established weapons and methods of warfare. There is every likelihood that these manuals will continue to play a significant role in interpreting and shaping the law and its application. While these manuals can and do play an undoubtedly useful role, their proliferation raises a number of questions. What degree of authority do they have and how much weight should be given to the views expressed in them? What is the methodology they employ and how effective is it in ensuring an as objective and impartial interpretation of the law as possible? What is their place in the doctrine of sources? While there is already a considerable body of literature addressing these and other relevant questions, this volume aims to contribute further to this discussion with contributions by three experts involved in one or more of these manuals in one capacity or another. Yoram Dinstein offers his views as someone who has a long list of such manuals in which he has been involved as an expert. He explores their place in the current state of the interpretation of the law and offers some valuable insights into their relevance and the role they play. Heather Harrison Dinniss offers her perspective as both a peer reviewer and participant in the process of drafting these manuals and some thought-provoking observations on both the strengths and weaknesses of such manuals. Alfons Vanheusden offers his perspective as one of the general editors and member of the panel of experts in one of these manuals, the Leuven Manual, and someone who has been deeply involved in its dissemination. These pieces viewed both singly and together will offer a valuable contribution to our understanding of the role such manuals play in the interpretation and development of the law of armed conflict. We are most grateful to their authors. Alongside these pieces on this year’s theme, we are also very happy to have received several articles submitted by their respective authors in the course of the past year on a number of highly interesting and relevant topics. Jolanda Jackelien Andela investigates the current state of customary humanitarian law in relation to the starvation of civilians. Rebecca Barber looks at the present state of the law in relation to the provision of relief to civilians in the absence of Host State consent. Klaudia Klonowska provides some insights on the place of Article 36 AP I weapons reviews in relation to decision support systems employing artificial intelligence. Needless to say, all of these topics are highly relevant, as even a cursory look at recent events demonstrates, and we are happy to make these contributions available

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to our readers along with the articles on our theme. The volume is rounded off with the customary Year in Review prepared by Klaudia Klonowska and the Yearbook’s editorial assistant, Shraddha Dubey, who unfortunately leaves us after this year. Finally, as this is my last year as Editor-in-Chief of the Yearbook, I would like to say a sincere and heartfelt thank you to the entire editorial team (past and present), our peer reviewers and all of the support team at T.M.C. Asser Press, in particular Mr. Frank Bakker, all of whom have been great supporters of our work over the past nine years of my tenure on the editorial board. I would also like to thank our many contributors without whom there would, of course, be no Yearbook to offer. I have very much enjoyed working with all of you and together helping to make the Yearbook of International Humanitarian Law one of the leading publications in the field and carrying on the tradition and high standards set by previous editors. Last but not least, I wish to extend my very best wishes to fellow editors Robin Geiß in his new position as Director of the Institute for Disarmament Research at the United Nations and to Heike Krieger who will take over as Editor-in-Chief starting with the next volume and the new team of editors she is putting together and wish her and her team every success in carrying on with the Yearbook in the coming years. Amsterdam, The Netherlands July 2021

Terry D. Gill Editor-in-Chief, 2012–2021

Contents

Part I

Expert Manuals

1 Law of Armed Conflict Manuals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Yoram Dinstein 2 A Room Full of Experts: Expert Manuals and Their Influence on the Development of International Law . . . . . . . . . . . . . . . . . . . . . . . . . Heather A. Harrison Dinniss 3 The Leuven Manual on the International Law Applicable to Peace Operations: An Ambitious Sui Generis Expert Panel Manual with Time on Its Side? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Alfons Vanheusden Part II

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Other Articles

4 Examining a Norm of Customary International Law that Criminalises the Intentional Use of Starvation of the Civilian Population as a Method of Warfare . . . . . . . . . . . . . . . . . Jolanda Jackelien Andela 5 Does International Law Permit the Provision of Humanitarian Assistance Without Host State Consent? Territorial Integrity, Necessity and the Determinative Function of the General Assembly . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rebecca J. Barber

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6 Article 36: Review of AI Decision-Support Systems and Other Emerging Technologies of Warfare . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123 Klaudia Klonowska

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Part III Year in Review 7 Year in Review 2020 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157 Klaudia Klonowska and Shraddha Dubey Table of Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247 Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253

Part I

Expert Manuals

Chapter 1

Law of Armed Conflict Manuals Yoram Dinstein

Contents 1.1 My Involvement with LOAC Manuals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2 The Rationale of LOAC Manuals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.3 Codification of the Lex Lata . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.4 LOAC Manuals and Custom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.5 LOAC Manuals and Treaties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.6 Consultations with Governments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.7 LOAC Manuals and Official National Military Manuals . . . . . . . . . . . . . . . . . . . . . . . . . . 1.8 Successive LOAC Manuals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.9 Format: Black-Letter Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.10 Format: Commentary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.11 Updates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.12 Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract This is an analytical study of several LOAC manuals in which the author was personally associated in the past quarter of a century. These manuals consist of informal non-binding codifications of the lex lata regulating the conduct of hostilities in chosen fields such as sea or air warfare. Their rationale is guiding both practitioners and legal advisers in areas where the law is not self-evident. The principal purpose is to articulate existing customary international law, but obviously treaty law has to be woven in and assessed as either innovative (hence binding only on Contracting Parties) or declaratory of general custom. Drafting is done by international groups of experts in their private capacity, convened by international institutes or prodded by Governments. Either way, the texts produced must be framed in close consultation with Governments (the ultimate end-users). The manuals have demonstrated their fundamental value in the practice of States, being constantly cited in official publications and actually steering military training. Yet, since the lex lata does not remain frozen in time, manuals must be updated after lapse of time. As far as format is concerned, LOAC manuals are commonly comprised of black-letter rules (adopted by consensus) accompanied by explanatory commentaries (framed by smaller drafting committees). Y. Dinstein (B) Tel Aviv University, Tel Aviv, Israel © T.M.C. ASSER PRESS and the authors 2022 T. D. Gill et al. (eds.), Yearbook of International Humanitarian Law 2020, Yearbook of International Humanitarian Law 23, https://doi.org/10.1007/978-94-6265-491-4_1

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Keywords Manuals · Codification · LOAC · Custom, State practice · Lex lata

1.1 My Involvement with LOAC Manuals For more than three decades, there has been a growing trend of setting up international groups of experts, sponsored by institutions or Governments, with a view to formulating restatements of the law of armed conflict (LOAC) in the form of nonbinding manuals. The template has been the San Remo Manual on Armed Conflicts at Sea, originated in 1988 and wrapped up in 1994.1 There is no point in dealing here with the wide array of LOAC manuals that have been finalized, have failed to reach their mark or are still under preparation. Let me just say that I have been personally involved with no less than seven projects. Apart from actively collaborating in the process of drafting of the seminal San Remo Manual on Sea Warfare, I was one of three main authors of the other (less well known) San Remo Manual on the Law of Non-International Armed Conflict (started in 1999 and ended in 2006).2 Most significantly, I served as the Academic Director of two additional Manuals that have been crowned with success: the HPCR (Harvard) Manual on Air and Missile Warfare (begun in 2004 and launched in 2010),3 and the Oslo Manual on Select Topics of the Law of Armed Conflict (commencing in 2015 and inaugurated in 2019).4 I was also associated with a project of the International Committee of the Red Cross (the ICRC), which was expected to produce a manual on direct participation in hostilities. Unfortunately, this effort (going on from 2004 to 2008) failed to generate a consensus on a number of rudimentary issues. In consequence, the ICRC came up with its own Interpretive Guidance on the subject,5 some central aspects of which are sharply contested by most of the Western experts participating in the project (including myself).6 At present, I am having a hand in two further projects, which got under way in 2018/19 and are still works in progress. The first (where I am a member of the Steering Committee) is an initiative aimed at updating the original San Remo Manual on Sea Warfare (see infra Sect. 1.11). The second (where I serve as a member of the Drafting Committee) is a pioneering attempt to draw up a manual on the jus ad bellum. It has to be underscored that, with the exception of the latter undertaking, all manuals adduced so far are in the sphere of the jus in bello or LOAC (a term that will be used in the present chapter in preference to IHL (International Humanitarian Law)). 1

San Remo Manual on International Law Applicable to Armed Conflicts at Sea 1995. San Remo Manual on the Law of Non-International Armed Conflict 2006. 3 HPCR Manual on International Law Applicable to Air and Missile Warfare 2013. 4 Oslo Manual on Select Topics of the Law of Armed Conflict 2020. 5 Melzer 2009, pp. 17, 78. 6 Dinstein 2012, pp. 3, 7. 2

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The ensuing observations regarding LOAC manuals are based on the experience acquired in producing the texts that have already come to fruition.

1.2 The Rationale of LOAC Manuals The groups of experts that assume the mantle of composing LOAC manuals are international in nature, and they embrace both academics and practitioners from multiple countries (selected by the institutions or Governments promoting the enterprise). In principle, all group members function in their individual capacity, even if some of them contemporaneously wear another hat serving in official governmental positions or in the ICRC. The text of a LOAC manual consists of an informal codification of the relevant legal regime regulating the conduct of hostilities in chosen areas. The objective is to present in systematic form an outline of the applicable customary norms interlocked with germane treaties. The agreed upon text does not constitute a draft treaty and is not intended to become binding as such on States. The aspiration is simply to make it easier for practitioners to reach informed decisions relating to armed conflict in compliance with the law in force (as recapitulated in the manual). The principal impetus for LOAC manuals is rooted in the ever-challenging need to articulate international customary law. Article 38(1)(b) of the Statute of the International Court of Justice famously defines international custom as “evidence of a general practice accepted as law”.7 The manuals sift that evidence and identify the norms that can be inscribed with the marks of custom. Custom is the main focus of attention within the purview of LOAC due to a treatymaking paralysis currently affecting the inter-State body politic. This goes back to the stormy negotiations preceding the adoption of Protocol I of 19778 —Additional to the four Geneva Conventions of 1949 for the Protection of War Victims9 —and the friction left in its wake (culminating with the United States going beyond routine

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Hudson 1950a, b. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, opened for signature 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978) (Additional Protocol I). 9 Geneva Convention 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 I); Geneva Convention 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 II); Geneva Convention Relative to the Treatment of Prisoners of War, opened for signature 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950) (Geneva Convention III); Geneva Convention Relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) (Geneva Convention IV). 8

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diplomacy to reject the instrument in a formal manner).10 Since then, States have been reluctant to indulge in LOAC treaty-making, unless prompted by an impulse to ban certain means of warfare, namely, weapons or weapon systems. Quite a few treaties regarding means of warfare have been framed (some of which are almost universally accepted;11 others are controversial12 ). But, notably, there has been no treaty governing methods of warfare since 1977. Every once in a while, appeals are made (e.g., by the ICRC) for an innovative treaty addressing this or that manifestation of the conduct of hostilities, yet to date these drives have never encountered more than lukewarm support by States. Considering these frustrating exertions, there is reason to doubt whether any novel treaty on methods of warfare will materialize in the foreseeable future. Given the regrettable reality that the treaty mode of quasi-legislation is in abeyance, custom has become the ersatz legal vehicle of evolution regarding methods of warfare. The fly in the ointment is the lex non scripta nature of custom. Whereas treaties (existing, by definition, in written form)13 are readily available, the existence of customary obligations is often shrouded in doubt and hotly disputed. LOAC manuals have matured in response to the need for an authoritative enunciation of the customary lex lata.

1.3 Codification of the Lex Lata The quintessential goal of a LOAC manual is codification of the lex lata as delineated by the general practice of States. The term codification is employed here in the sense of the dichotomy built into Article 13(1)(a) of the Charter of the United Nations, which distinguishes between codification and progressive development of international law.14 A true codification in the Charter’s perception is confined to existing law (the lex lata). The law deemed desirable (lex ferenda) is a matter of progressive development of international law, largely removed from the ambit of LOAC manuals. This critical dimension of LOAC manuals is closely linked to the fact that they are penned by informal groups of experts. The upside of reliance on genuine experts is that, thanks to their proficiency in the field, they are able to illuminate the lex lata 10

In 1987, the US issued a formal announcement that it would not ratify Additional Protocol I, since the instrument is “fundamentally and irreconcilably flawed”. United States Government 1987, 561, 562. 11 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, 1993, opened for signature 3 September 1992, 1974 UNTS 317 (entered into force 29 April 1997). 12 Convention on Cluster Munitions, 2008, opened for signature 30 May 2008, 2688 UNTS 92 (entered into force 1 August 2010). 13 Article 2(1)(a) of the Law of Treaties Convention defines treaty as “an international agreement concluded between States in written form”. Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 7 December 1978), Article 2(1)(a). 14 Hudson 1950a, pp. 327, 336.

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efficaciously and persuasively. The downside is that mere experts do not possess the required governmental credentials to negotiate a text that transcends the lex lata. Confined to the lex lata, LOAC experts are supposed to trace the actual practice of States, spot patterns of behaviour, compare custom with treaties and conclude by portraying LOAC as it is. What the experts wish for in terms of the lex ferenda may be of interest as a moot exercise, but it is of little empirical value for the end-users of their product (i.e. military operators and legal advisers). Admittedly, there is no pure codification in the real world. When bent on crafting a LOAC manual, the drafters always have to cross t’s and dot i’s that are left open in the general practice of States. Some marginal innovations are inevitable, if only because: (i)

(ii)

(iii)

A viable codification has to be systematic, coherent and detailed. The experts may be obliged to add precise caveats and exceptions rather tenuously induced from State practice. Well-entrenched legal propositions are frequently afflicted by minor gaps. The authors of any codification may feel it mandatory to fill these gaps, if only interstitially. It is typically required to insert into a LOAC manual a raft of definitions and terminological nomenclatures that the experts have to formulate deductively.

All the same, tampering with the rules of conduct sifted from the general practice of States must be minimal. The dilemma constantly confronted by the drafters of a LOAC manual is how to polish existing custom at the edges without crossing a red line that separates the lex lata from the lex ferenda.

1.4 LOAC Manuals and Custom A number of challenges lie ahead of every group of experts on the road to producing a codification of international custom with respect to LOAC. The most obvious is the perennial need to deal with the impact of new battleground tactics and state-of-the-art technologies on the extant means and methods of warfare. The introduction of cyber, drones and robotics is emblematic of the constant broadening of LOAC’s horizons. Au fond, there are three different vantage points from which experts can look for customary LOAC: (i)

15 16

One radical school of thought is inclined to consider modern inventions and the spawning of new combat tactics with aplomb, asserting that plus ça change, plus c’est la même chose. The perspective is that, notwithstanding their innovative nature, the latest means and methods of warfare do not justify a reconfiguration of well-established and time-honoured customary principles (such as distinction15 or proportionality16 ). Differently put, it is believed that the

Dinstein 2012, pp. 261–277. Dinstein 2013, pp. 72–85.

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overall legal system can adjust itself to constant behavioural mutations without changing its core precepts. The opposite doctrinal philosophy leans in the direction of aggressively searching for new customary law that may have already emerged, in response to new technological developments and recent battle lessons. This approach is prepared to cut corners when evidence of general State practice is less than overwhelming. Proponents would be prone to uphold the proposition that there actually exist concrete novel customary norms integrated into contemporary LOAC, even when other experts entertain doubts. An intermediate outlook is that—by dint of the glaring need to address new combat capabilities and conditions—it is advantageous to probe indications that an emergent custom is in an incipient stage of crystallization. The attitude of adherents to this line of thinking is more nuanced compared to the previous one. They do not admit the claim that customary LOAC has undergone a fullfledged metamorphosis. But they lay the ground for the probability that new custom is in statu nascendi.

There are sundry obstacles hindering a conclusion that customary LOAC has consolidated. To name but a few: (i)

(ii)

(iii)

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It may not be easy to detect what the general practice of States denotes. Needless to say, the fact that the conduct of a couple of States flows along the same groove does not conclusively prove that other States acknowledge the unfolding of a new customary rule (although silence may be construed as acquiescence). That said, it should be borne in mind that the general practice of States must not be confused with universal practice. Indeed, the practice that chiefly counts is that of the “specially affected”17 active States in the field. There is an exigent need to not allow unofficial “background music” to drown the voice of Governments. The general practice of States may be influenced by non-State actors—especially, non-Governmental organizations (NGOs) representing the “civil society”—who may persuade or pressure Governments to subscribe to certain conduct. Still, in the final analysis, the sole buildingblocks of customary international law are the actions taken and statements made by States. In some instances, a State comports itself in a specific way while denying that it is bound by international law to do so. The representatives of the State then contend that they deem the conduct to amount merely to “best practice”.18 Such posture is significant, inasmuch as the general practice of States cannot be evaluated as binding custom unless it is “accepted as law” (cf. the aforementioned Article 38(1)(b) of the Statute of the International Court of Justice).

The International Court of Justice referred to the priority of “States whose interests are specially affected” in ICJ, North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands), Judgment, 20 February 1969, (North Sea Continental Shelf Cases), p. 43. 18 Oslo Manual on Select Topics of the Law of Armed Conflict 2020, above n. 4, at p. 7 (Commentary on Rule 7).

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It is not always easy for a group of experts to establish when State practice is swayed by opinio juris. Sometimes, the group of experts will be compelled to recognize the existence of irreconcilable divergence between customary norms of LOAC and human rights law. In such instances, the experts must be guided by the tenet that LOAC constitutes the lex specialis.19 What this conveys is that, without impinging on the validity of human rights law in peacetime, LOAC prevails during hostilities.

1.5 LOAC Manuals and Treaties While LOAC manuals are not meant to (redundantly) replicate the lex scripta encapsulated in treaties in force, there is no way to avoid adverting to treaty law as it meshes with—or reverses—customary law. The search for lex lata means not only identifying any applicable custom but also invoking all relevant treaties and weighing them in the balance. The gravamen of the appraisal of treaties must be the postulate that they are binding only on Contracting Parties and not on third States.20 With the exception of the four 1949 Geneva Conventions—which have reached universality in terms of their ratification and accession by States—LOAC treaties are binding only on a portion (large or small) of the international community, but not on its entirety. Whenever a LOAC treaty is broached by the experts, they must emphasize that the instrument is not binding on non-Contracting Parties. A treaty, exemplified by Additional Protocol I, may be binding on most States yet rejected by others. That does not exclude the possibility that diverse clauses in the text are declaratory of custom. Hence, when a specific provision of Additional Protocol I (or other controversial instruments) is alluded to in a LOAC manual, it is imperative to tackle the question whether there is a match between the treaty language and custom. If there is, the apposite obligation laid down by the treaty will be binding on non-Contracting Parties as well: not by virtue of being incorporated in the treaty stipulation but (irrespective of the treaty) because it is enshrined in custom. The conclusion that an Article or Paragraph of a controversial treaty—primarily, Additional Protocol I—corresponds with custom (and is therefore binding on nonContracting Parties) is far from trivial in its repercussions. The drafters of a LOAC manual must ponder the pros and cons carefully, mindful of the general practice of States. It is necessary to resist a temptation to rush to endorsing a treaty text as a snapshot of custom. Otherwise, non-Contracting Parties are liable to be provoked to harsh criticism of the drafters’ less than even-handed approach to a volatile issue.21 It has to be understood that, to support the claim that a treaty provision is of a piece 19

On the lex specialis standing of LOAC, see Dinstein 2016, pp. 31–33. Dinstein 2006, pp. 243, 331–337. 21 For an example of such criticism of an (ICRC) study of the customary nature of Additional Protocol I, see Bellinger and Haynes 2007. 20

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with custom, the practice of Contracting Parties (which is anyhow obligatory under the treaty) counts less than the conduct of non-Contracting Parties (unfettered by treaty constraints).22 The net result is that, when referring to a treaty text, a LOAC manual must: (i) (ii)

(iii)

Expound on the innovative or declaratory status of treaty injunctions vis-à-vis custom. If innovative, and assuming that the concrete provision and custom are at odds with each other, evaluate to what extent a multilateral armed conflict can be dissected into component parts of disparate bilateral relations of States. This is a matter of fundamental import during combined military operations against the same enemy by several States not sharing the same legal obligations under LOAC. Legal interoperability enables one allied national formation to have recourse to means or methods of warfare that another allied national formation is legally barred from resorting to.23 Whenever there are reservations attached to a treaty (e.g., Additional Protocol I24 ) by Contracting States, and especially when similar reservations are reiterated by several Contracting Parties, gauge their reverberations in terms of attesting to the existence of a contradictory custom.

As for the relevance of treaties cited in the manual, the drafters must recall that LOAC—albeit unique in many ways—is still a branch of international law. All branches of international law interact with each other. Hence, when a LOAC manual is crafted, leading peacetime treaties must also be scrutinized, in order to verify how far they resonate after the outbreak of hostilities. Palpable illustrations are the 1982 Law of the Sea Convention25 and the 1944 Chicago Convention on Civil Aviation,26 which have considerable effect (respectively) in sea warfare27 and air warfare.28

22

Dinstein 2006, n. 20, at p. 362. See HPCR Manual on International Law Applicable to Air and Missile Warfare 2013, n. 3, at pp. 379–80 (Rule 164 and Commentary). 24 For a list of Reservations and Declarations made by Contracting Parties to Additional Protocol I, see Schindler and Toman 2004, pp. 792–818. 25 United Nations Convention on the Law of the Sea, 1982, opened for signature 10 December 1982, 1833 UNTS 397 (entered into force 16 November 1994. 26 Chicago Convention on International Civil Aviation, 1944, opened for signature on 7 December 1944, 15 UNTS 295 (entered into force on 4 April 1947). 27 See San Remo Manual on International Law Applicable to Armed Conflicts at Sea 1995 n 1, at p. 93 (Preliminary Remarks on Part II, Section I). 28 See HPCR Manual on International Law Applicable to Air and Missile Warfare 2013, n. 3, at 184–185 (Commentary on Rule 58). 23

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1.6 Consultations with Governments The authority of a LOAC manual is ultimately derived from an amalgamation of two interconnected elements: (i) the prestige of the group of experts that drew it up, and (ii) a modicum of acceptance by Governments of leading States. Success on both fronts may pivot on timely consultations with Governments. At an early phase of the project, adequate consultations can enhance the composition of the group of experts through the selection of persons who inspire governmental confidence in their skill. At a later juncture, consultations can pave the road to greater governmental receptiveness to contentious submissions in the LOAC manual. The long and short of it is that, although not directly engaged in the work of the experts, leading Governments cannot be taken out of a LOAC manual’s equation. The input from Governments has to be elicited, above all, from Judge Advocate Generals in the armed forces and legal advisers of Ministries of Defence (at times, also Ministries of Foreign Affairs). Consultations can be carried out overtly or behind the scenes, and they may be bilateral or regional in character. One way or the other, the process is indispensable. Without direct feedback from prime movers in the international community, a LOAC manual is in jeopardy of being relegated to the category of academic ventures that military operators and legal advisers ignore with equanimity. In reality, the term “consultations” may not fully evoke the broad dimensions of the influential outreach of Governments on the thrust and even scope of a LOAC manual. A paradigmatic example relates to the HPCR Manual and outer space. The original version of the Manual on Air and Missile Warfare included a whole section on the extension of hostilities to outer space. Yet, when the text was divulged to leading States, China—which otherwise completely supported the project—strongly objected to bringing outer space within the compass of the manual. The reasons for the Chinese stance were, and still are, opaque. But the HPCR group of experts caved in, and the outer space section was reluctantly omitted. It remained for the Oslo Manual to reintroduce the subject-matter of outer space as its first section.29 The most crucial time-frame for consultations with Governments is when a tentative version of the LOAC manual takes shape. But it may be advisable to conduct some consultations both before and after (even on the eve of a formal launch of the final text). Experience shows that the experts may believe that they have wound up their work, and then consultations with Governments disabuse them of that notion. An avalanche of governmental critiques may force an unenvisaged reconvening of the group of experts, with a view to coming to grips with ineluctable revisions. This is what happened with both the HPCR and the Oslo Manuals. The mere appointment to the group of some experts upon the recommendation of Governments does not forfeit the need for parley once the text is ready. At bottom, the issue is not what Governments think of the experts but what they think of the final product. Besides, it must be taken into account that: 29

Oslo Manual on Select Topics of the Law of Armed Conflict 2020, n. 4, at pp. 1–17 (Rules 1–19).

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(i)

Governmental policy may alter over the years when work on the manual is protracted. It is usually required to seek an imprimatur by a higher-ranking tier in the governmental hierarchy compared to that of a hand-picked expert directly contributing to the text of the manual.

(ii)

1.7 LOAC Manuals and Official National Military Manuals The acid test of a LOAC manual is its actual application in the battlefield in wartime. As for peacetime, the touchstone is not citations in law review articles, but the measure of approbation attained in official national Military Manuals and in military training. Thus, the San Remo Manual’s endorsement in a wide array of official national Military Manuals is a remarkable token of its validation in practice. The HPCR Manual earned its reputation through no less than sixteen training courses of military operators and legal advisers, held across the globe under the aegis of AMPLE (Air and Missile Program of Legal Education). These training courses were hosted by local armed forces, mostly but not exclusively air forces, with the financial backing of the Swiss and Norwegian Ministries of Defence. Some disparities between LOAC manuals and official national Military Manuals are inescapable. Still, a direct clash with a national Military Manual patently puts in doubt the authoritative standing of a LOAC manual. Doubt need not instigate the verdict that a single official national Military Manual automatically trumps a LOAC manual. After all, the subjective demurrer by one country does not eo ipso override an objective assessment of the general practice of States as set forth by veritable experts. Upon close inspection, a national Military Manual may turn out to be simply wrong. A graphic illustration of such a case came to light in 2004, upon the release of a new United Kingdom Manual of the Law of Armed Conflict. The text included a momentous footnote about prize courts: “The United Kingdom has not used prize courts for many years and is unlikely to do so in the future. Where a vessel or aircraft is captured by United Kingdom armed forces it may be deemed to be the property of Her Majesty’s Government”.30 This pronouncement collided head-on with the San Remo Manual on Sea Warfare, whereby captured enemy or neutral private vessels or aircraft must be subject to prize adjudication.31 The UK Manual’s disclosure of a new UK policy dispensing with prize courts was strongly criticized (already during the Manual’s launch) by the present writer32 and others.33 Indubitably, the general practice of States concerning the requirement of prize adjudication confirms that the San Remo Manual—rather 30

UK Manual of the Law of Armed Conflicts 2004, p. 330. San Remo Manual on International Law Applicable to Armed Conflicts at Sea 1995, n. 1, at pp. 192–193 (Rule 116 and Commentary). 32 Dinstein 2008, pp. 387–402. 33 Heintschel von Heinegg 2008, pp. 439–456. 31

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than the 2004 UK Manual—reflects the lex lata.34 It is consequently noteworthy that, in 2007, the UK conceded the point by formally amending the text of its Manual: the offending footnote was deleted, and the words “subject to adjudication” were inserted after the text’s reference to capture “as prize”.35

1.8 Successive LOAC Manuals Naturally, LOAC manuals themselves are not impervious to error. Inadvertent mistakes crop up despite the most arduous efforts to clean them out, and unnoticed gaps in the presentation of the lex lata come to the surface over time. The best scenario is for these deficiencies to be caught sight of during instruction of armed forces in peacetime. The worst scenario is for them to become flagrant only when a manual is tested under fire in the battlefield. If two or more LOAC manuals cover the same theme, a more recent text may have the chance to cope with snags and gaps in its predecessors. A preeminent illustration is the treatment of the subject of search and rescue operations (SAR) relating to military personnel (mostly aviators who have ditched disabled military aircraft) in wartime. Article 28(4) of Additional Protocol I promulgates that “medical aircraft shall not, except by prior agreement with the adverse Party, be used to search for the wounded, sick and shipwrecked”.36 The San Remo Manual on Sea Warfare, in the Commentary on Rule 179, observes that “[b]elligerent military forces employ armed sea-air rescue (SAR) helicopters to search for and rescue downed airmen”.37 It then goes on to say correctly that SAR aircraft “must operate under an agreement” to enjoy protection, but incorrectly adds the proviso: “unless they qualify as medical aircraft in all respects”.38 The proviso is incorrect inasmuch as, pursuant to Article 28(4) of Additional Protocol I, SAR aircraft acting without prior agreement do not qualify as protected medical aircraft. The HPCR Manual, in Rule 87(b), cautions that—within areas of combat operations—medical aircraft used for SAR missions without prior consent of the enemy “do so at their own risk”.39 The implication is that SAR aircraft may still qualify as medical aircraft although they will put themselves in harm’s way. 34

See, e.g., US Law of War Manual 2016, Department of Defense, General Counsel of the Department of Defense. Washington. It may be added that current prize practice can be spotlighted in Israel. There is an operative Prize Court in Haifa with several recent decisions, some eliciting important judgments on appeal by the country’s Supreme Court. For summaries of these Prize Judgments, see Lahav 2020, pp. 373–447. See also the Introduction in Shamir-Borer 2020, pp. 349–371. 35 UK Manual of the Law of Armed Conflicts 2007, p. 367. 36 Additional Protocol I, above n. 9, Article 28(4). 37 San Remo Manual on International Law Applicable to Armed Conflicts at Sea 1995, n. 1, at p. 244. 38 Ibid. 39 HPCR Manual on International Law Applicable to Air and Missile Warfare 2013, n. 3, at p. 244.

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For its part, the Oslo Manual proclaims (in Rule 115) that “[m]edical aircraft lose their specially protected status if they engage in conduct inconsistent with the requirements of that status”, and that “[s]uch inconsistent activities include CSAR operations” (the letter “C” preceding SAR standing for combat).40 This is a prescript of considerable practical significance, because what it imparts is that a medical aircraft engaged in CSAR operations without enemy consent may be attacked after due warning.41 Clarity had persistently been sought by air force practitioners participating in AMPLE training courses, and the matter was finally put to rest only in the Oslo Manual.

1.9 Format: Black-Letter Rules As indicated, the prototype of LOAC manuals was moulded in the San Remo Manual on Sea Warfare. All subsequent LOAC manuals have emulated the San Remo format. The habitual model of LOAC manuals is that of (i) Black-Letter Rules, adopted by the group of experts by consensus; accompanied by (ii) a non-consensual Commentary. Consensus as regards the Black-Letter Rules does not mean unanimity: there cannot be a liberum veto. But it is up to each group of experts to decide for itself how many dissents would measure up to a veto (ordinarily two or three, depending on the size of the group). Building up a consensus in a large group of experts striving to frame a cogent set of Black-Letter Rules is not always an easy mission. This is due to the fact that, while all members of the group are collectively committed to the same goal, individual experts take dissimilar conceptual positions as to the state of the lex lata. The key to arriving at a consensus in forging Black-Letter Rules is the development of task-oriented group dynamics. The construction of an agreed upon text is contingent on a team spirit that smooths the path for sensible collaboration. This does not mean that discords can be eliminated or even that they should be buried under a rug of platitudes. What it does mean is that the experts must be able to bridge over divergent opinions expressed in their debates—devising a linguistic solution based on the highest-possible common denominator—and then, in the Commentary, explicitly clue in the end-user on the problématique and its connotations. The upshot is that a readiness to accept compromise formulas must permeate the performance of the group of experts. Absent an atmosphere of compromise, a LOAC manual is liable to falter and fail in midstride. This point is brought into relief by a juxtaposition of the successful HPCR Air and Missile Warfare Manual and the aborted manual on direct participation in hostilities. The desideratum of getting both projects rolling was expressed at the same time (2003) by the same conference of approximately twenty States (the first so-called Alabama session) convened by Switzerland. The pair of undertakings lasted almost as long, and quite a few experts 40 41

Oslo Manual on Select Topics of the Law of Armed Conflict 2020, n. 4, at p. 111. Ibid., at p. 112 (Commentary).

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actively took part in both. One plan of action achieved its objective and the other went astray. Why? The answer is unequivocal. The HPCR Manual made it to the finish line as a result of a string of compromises, large and small, some of them truly painful to individual members of the group of experts. By contrast, the direct participation project reached a cul-de-sac when the convening institution (the ICRC) rigidly insisted on prescribed language, which it regarded as non-negotiable even in the face of united opposition by most of the Western experts. Ultimately, the ICRC published its own “Interpretive Guidance” (see supra Sect. 1.1) without the seal of approval of the group of experts.

1.10 Format: Commentary The Commentary, accompanying the Black-Letter Rules, is generally framed by a small drafting committee. It is not subject to approval by the group of experts en banc, and the consensus rule is therefore inapplicable. Nevertheless, the Commentary is disseminated to all the experts participating in the project. Any stringent objection must be dealt with, and the text cannot be finalized until it breeds some sort of acquiescence. Since a cardinal dimension of the Commentary is an explication of disagreements among members of the group of experts—underlying the compromises arrived at in the Black-Letter Rules—the drafting committee’s hands may be tied when it comes to some sensitive portions of the text, which are dictated by concerned members of the group. This modus operandi is intended to ensure that minority opinions are recorded accurately, to the satisfaction of the dissenters from the majority view. At times, an important ingredient in a compromise is the transfer of a statement from the Black-Letter Rules to the Commentary. A telling illustration is the postulate that an altitude of approximately 100 km, representing the lowest possible perigee of an earth satellite in orbit, marks the ceiling of national airspace and the beginning of outer space. The allusion to 100 km initially constituted an integral part of the Black-Letter Rules of the HPCR Manual on Air and Missile Warfare, but it met with strenuous resistance by several Western Governments. Curiously, no objection was raised by those Governments when a proposal was made to move the statement from the Black-Letter Rules to the Commentary.42 The compromise transition of the same text from the Black-Letter Rules to the Commentary was duplicated in the Oslo Manual.43 For all that it is consigned to the two respective Commentaries, the phraseology must be discerned as the spin-off of group consensus in both instances. This is not to suggest that a drafting committee necessarily acts under precise directives from the group of experts. As a matter of fact, for the most part, the drafting committee is vested with wide “margin of appreciation” in appending explanatory notes to the Black-Letter Rules. 42 43

HPCR Manual on International Law Applicable to Air and Missile Warfare 2013, n. 3, at p. 6. Oslo Manual on Select Topics of the Law of Armed Conflict 2020, n. 4, at p. 1.

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The salient responsibilities of a drafting committee are: (i) (ii) (iii) (iv)

To shed light on the choice of words in the Black-Letter Rules and elucidate the text when any doubt may be cast upon its thrust or scope of application. If necessary, to elaborate upon the text by adding examples and hypothetical scenarios. To cite, chapter and verse, pertinent treaties and evidence of State practice. To adumbrate and analyze any disharmony between custom and treaties.

It should be added that, as a rule, a drafting committee would be well advised to rely in the Commentary only on primary sources, avoiding the thicket of books or articles by academics. Members of the group of experts may be encouraged to publish essays setting out all the authorities bolstering a section of the LOAC manual with which they are intimately familiar as the original Rapporteurs. Yet, since the manual is designed for practical application in the field, the Commentary is not the most appropriate milieu for the display of legal scholarship. Ideally, a Commentary ought to be brief, expressed in bullet-point short paragraphs. Of course, drafting committees will be disposed to renounce brevity when they sense that a more elaborate examination of the topic is vital to unraveling the (possibly wide-range) implications of a particular Black-Letter Rule.

1.11 Updates In view of the fact that the lex lata does not remain frozen in time, every LOAC manual loses its cutting edge over the years: to stay au courant, it must be revised and updated after a reasonable lapse of time. An adjustment to new legal realities may be warranted when it becomes apparent that (i) an important Article or Paragraph in a treaty, which was innovative at the outset, has generated new custom; or (ii) the other way around, when subsequent practice has modified the treaty clause. But the main catalyst of a review of a LOAC manual’s text is meta-legal: it is the inexorable advance of battle technology and tactics. Accordingly, it should not be surprising that the San Remo Manual on Sea Warfare—after a quarter of a century of receiving plaudits—is undergoing reexamination by a new group of experts. The reason is plain to see: whether or not the San Remo Manual was flawless in 1994 (and no manual can be appraised as perfect), it can scarcely be considered flawless two and a half decades later. Current preoccupations must be reckoned with, and no manual—even one that is as widely cited as the San Remo text—can be regarded as engraved in stone.

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1.12 Conclusions LOAC manuals have clearly demonstrated their usefulness in the practice of States. Although they are incapable of creating new law, they have played a crucial role in aiding practitioners to identify and interpret the lex lata. Obviously, manuals do not exist in a vacuum: they depend on an input from leading Governments prior to their completion; and they build upon governmental acceptance in military training and in the field thereafter. One can say that a LOAC manual is only a mirror of State practice. It is therefore necessary to keep in mind that this is not a magic mirror and the reflection that it produces may be less than optimal. Furthermore, the mirror has to be constantly tested for its high resolution and lack of distortion in light of evolving State practice.

References Articles, Books and Other Documents Bellinger J III, Haynes II WJ (2007) U.S. Joint Letter From John Bellinger III, Legal Adviser, U.S. Department of State, and William J. Haynes, General Counsel, U.S. Department of Defense to Dr. Jakob Kellenberger, President, International Committee of the Red Cross, Regarding Customary International Law Study. International Legal Materials 46: 511–531 Dinstein Y (2006) The Interaction between Customary International Law and Treaties. Recueil des Cours 322. Martinus Nijhoff, Leiden, pp 243, 331–337 Dinstein Y (2008) Comments on the UK Manual of the Law of Armed Conflict. In: Fischer-Lescano A et al (eds) Peace in Liberty, 1st edn. Nomos Verlagsgesellschaft, Baden-Baden, pp 387–402 Dinstein Y (2012) Direct Participation in Hostilities. Tilburg Law Review 18: 3, 7 Dinstein Y (2013) The Principle of Proportionality. In: Larsen KM, Guildhall Cooper C, Nystuen G (eds) Searching for a ‘Principle of Humanity’ in International Humanitarian Law. Cambridge University Press, Cambridge, pp 72–85 Dinstein Y (2016) The Conduct of Hostilities under the Law of International Armed Conflict, 3rd edn. Cambridge University Press, Cambridge, pp 31–33 Heintschel von Heinegg W (2008) Manoeuvring in Rough Waters. In: Fischer-Lescano A et al (eds) The UK Manual of the Law of Armed Conflict and the Law of Naval Warfare, Peace in Liberty 1st edn. Nomos Verlagsgesellschaft, Baden-Baden, pp 439–456 Hudson MO (ed) (1950a) Charter of the United Nations, 1945. International Legislation, Volume IX. Carnegie Endowment for International Peace, New York, pp 327, 336 Hudson MO (ed) (1950b) Statute of the International Court of Justice, Annexed to Charter of the United Nations, 1945. International Legislation, Volume IX. Carnegie Endowment for International Peace, New York, pp 510, 522 Lahav J (2020) Summary of Recent Cases of the Courts of Israel Relating to Prize Law and Israel’s Naval Blockade of the Gaza Strip. Israel Yearbook on Human Rights 50: 373–447 Melzer N (2009) Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law. International Committee of the Red Cross, Geneva Schindler D, Toman J (eds) (2004) The Laws of Armed Conflicts: A Collection of Conventions, Resolutions and Other Documents, 4th edn. Brill Academic Publishing, Leiden, pp 792–818. Shamir-Borer E (2020) The Revival of Prize Law – An Introduction to the Summary of Recent Cases of the Prize Court in Israel. Israel Yearbook on Human Rights 50: 349–371

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United States Government (1987) Message from the President Transmitting Protocol II Additional to the 1949 Geneva Conventions, Relating to the Protection of Victims on Noninternational Armed Conflicts. International Legal Materials 26: 561, 562

Manuals HPCR Manual on International Law Applicable to Air and Missile Warfare (2013). Program on Humanitarian Policy and Conflict Research at Harvard University, Cambridge University Press, Cambridge Oslo Manual on Select Topics of the Law of Armed Conflict (2020). Springer, Heidelberg San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1995). International Institute of Humanitarian Law, San Remo San Remo Manual on the Law of Non-International Armed Conflict (2006). International Institute of Humanitarian Law, San Remo UK Manual of the Law of Armed Conflict (2004). UK Ministry of Defence, Oxford University Press, Oxford UK Manual of the Law of Armed Conflicts (2007). UK Ministry of Defence, Joint Services Publication 383-Amended Text). The Joint Doctrine and Concepts Centre, Wiltshire US Law of War Manual (2016). Department of Defense, General Counsel of the Department of Defense, Washington

Cases ICJ, North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands), Judgment, 20 February 1969, (North Sea Continental Shelf Cases)

Treaties Charter of the United Nations and Statute of the International Court of Justice, 1945 Chicago Convention on International Civil Aviation, 1944, opened for signature on 7 December 1944, 15 UNTS 295 (entered into force on 4 April 1947) Convention on Cluster Munitions, 2008, opened for signature 30 May 2008, 2688 UNTS 92 (entered into force 1 August 2010) Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, 1993, opened for signature 3 September 1992, 1974 UNTS 317 (entered into force 29 April 1997) Geneva Convention 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 I) Geneva Convention 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 II)

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Geneva Convention Relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) (Geneva Convention IV) Geneva Convention Relative to the Treatment of Prisoners of War, opened for signature 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950) (Geneva Convention III) Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, opened for signature 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978) (Additional Protocol I) United Nations Convention on the Law of the Sea, 1982, opened for signature 10 December 1982, 1833 UNTS 397 (entered into force 16 November 1994) Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 7 December 1978)

Prof. Yoram Dinstein, Professor emeritus, Tel Aviv University, Israel; Member of the Institut de Droit International.

Chapter 2

A Room Full of Experts: Expert Manuals and Their Influence on the Development of International Law Heather A. Harrison Dinniss Contents 2.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 The Formal Role of Expert Manuals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3 A Room Full of Experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4 Process and Methodology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5 Finding the Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.6 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract Expert manuals play an increasingly important role on the development of international law into new areas and environments. While not formally a source of law themselves, their influence on those involved in the development and construction of more formal sources of law takes place on multiple levels and in a variety of ways. This contribution explores some of the different elements that effect the influence these manuals wield. The selection of experts, their qualifications, diversity and ability to adapt to new environments and technological domains are core components of this influence. Likewise the methodology used by the manual, the attempt to separate lex lata from lex ferenda and the method of representing differing views within the group will all have an impact on its subsequent influence. Manuals will continue to play a valuable role in the development of international law, by influencing the decisions of policy makers, treaty negotiators and others, particularly in an era characterised by lack of agreement between states and stagnation of formal law making processes in emerging domains. Keywords Manual · Sources · Expert · International Humanitarian Law · Tallinn 2.0 · Woomera · Development of law · Influence

H. A. Harrison Dinniss (B) Centre for International and Operational Law, Swedish Defence University, Stockholm, Sweden e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2022 T. D. Gill et al. (eds.), Yearbook of International Humanitarian Law 2020, Yearbook of International Humanitarian Law 23, https://doi.org/10.1007/978-94-6265-491-4_2

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2.1 Introduction Expert manuals have a long legacy in the history of international humanitarian law. The 1880 Oxford Manual on the Laws of War on Land, and more recently the San Remo Manual on Armed Conflict at Sea, and the Harvard Manual on Air and Missile Warfare are examples of the form.1 In recent years, the number of expert manuals has increased dramatically with manuals now dedicated to new domains and environments such as cyberspace and outer space, as well as projects designed to explore changing fields such as peace operations and other evolving forms of warfare. But what role do they play in the formation of international law, and what factors should one look to when assessing their influence? I have now had the privilege of working in some capacity on a number of different expert manual projects. I acted as a peer reviewer on selected chapters of the initial Tallinn Manual on the International Law Applicable to Cyber Warfare,2 and on its updated version Tallinn Manual 2.0.3 I was involved in the early stages of what is now the McGill Manual on the Military Uses of Outer Space and, following the split of that project into two separate manual projects, I am currently a core expert on the Woomera Manual on the International Law of Military Space Operations.4 The latter endeavour is, at the time of writing, at the stage of finalisation of a manuscript and entering into a period of State engagement. During the course of my various involvements, I have had the opportunity to reflect both on the role of expert manuals in the theory and practice of international law and on the different processes by which they are drafted—the following contribution draws on that experience.

2.2 The Formal Role of Expert Manuals As a formal matter, expert manuals constitute “teachings of the most highly qualified publicists”—and therefore comprise “subsidiary means for the determination of rules” in the doctrine of sources.5 Composed as they are of individuals chosen specifically for their professional knowledge, experience and expertise, the role of the expert group in the drafting of the manual ensures that the end product falls squarely within that category in the hierarchy of sources. Indeed, the Tallinn Manual explicitly states that the group of experts is composed of experienced practitioners, “world-class expert” academics, and technical experts: a mix that “is crucial to the 1

Schindler and Toman 1988; Doswald-Beck 1995; Program on Humanitarian Policy and Conflict Research at Harvard University 2013. 2 Schmitt 2013. 3 Schmitt 2017. 4 The University of Adelaide (2021) The Woomera Manual. https://law.adelaide.edu.au/woomera/. Accessed 30 April 2021. 5 Statute of the International Court of Justice, opened for signature 26 June 1945, UNTS 993 (entered into force 24 October 1945), Article 38(1).

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credibility of the final product”.6 The role of the expert manual is therefore to provide an interpretation of the existing law as it applies to the new domain or environment. It is not to create international law per se.7 This is reflected for example in the Tallinn 2.0 Manual where Michael Schmitt, the general editor, notes that the group of experts involved in that project was “uniformly of the opinion that international law is made and authoritatively interpreted by States”.8 However, the influence of an expert manual on the development of international law goes far beyond its formal status as a subsidiary means of interpretation. For most of these manuals, the primary audience consists of military and civilian legal policy advisors and government decision makers. These are the largely unseen cogs in the international law system, drafting State policies, creating State practice, and influencing opinio juris on behalf of the States they represent. It is in this role that expert manuals provide their greatest contribution to the formation of international law. A number of factors will dictate the amount of influence a particular manual will have, and it is to these factors we now turn.

2.3 A Room Full of Experts For such manuals to serve their purpose and to make a valid claim to the significant weight often attached to the views expressed therein, a group of experts must be assembled. The use of such expert groups has a long history in international law, and indeed in international humanitarian law. The Tallinn and Woomera Manuals follow in the tradition of the Oxford Manual, or, more recently, the San Remo Manual on Armed Conflict at Sea, and the Harvard Manual on Air and Missile Warfare. However, assembling such a group takes a certain amount of thought and care. The status and eventual influence of the manual produced is dependent on the group assembled being recognised as experts in the applicable field. Not only must all participating individuals be experts, their backgrounds (whether academic, military, government or otherwise), geographical distribution and other diversity elements will also have an impact on the reception of the end product. Although as Sandesh Sivakumaran has noted, perhaps the point should not be overstated, while certain work-products of particular groups have exercised influence, other work-products of the same group have not, and nor have products of other, equally distinguished, expert groupings.9 Nevertheless, the question of expertise carries with it certain implicit assumptions. Without doubt the groups assembled by the Tallinn Manual processes (in both versions) and the McGill and Woomera projects are highly competent academics, practitioners

6

Schmitt 2013, p 22. But see infra Sect. 2.4 for the lex ferenda element of manual drafting for a new domain. 8 Schmitt 2017, p 6. 9 Sivakumaran 2017, pp 8–9. 7

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and technicians.10 However, the question of that expertise brings with it additional questions about the fragmentation and siloing of international law and the ability of acknowledged experts in one field to truly grasp and internalise the underlying norms and assumptions of a different sub-field of international law, or indeed a different discipline (be it computer science or astrophysics). This latter point is of particular importance when dealing with new technologies and/or environments. As a wise supervising partner advised me when I started a brief (pre-academia) sojourn in private practice as an IT lawyer, “in order to correctly write the law, you must first understand the technology”. I would apply it more broadly to understanding the environment in which the law is to operate—for example, cyber space or outer space. Certainly, each of the manual projects noted above has enlisted the help of highly qualified technical experts to assist them in doing just that. That is not to say that legal experts must become proficient coders or be able to calculate the trajectory of space debris accurately; however, it does require that experts are able to comprehend fully the game changing nature of processes like virtualization on the networked environment or the fundamental physics and nature of outer space. International reputation and excellence in one area is not necessarily co-extensive with, or an indicator of, the ability to internalise and adapt to such factors and adjust the application of the law to a fundamentally changed environment. The second factor that plays into the perception of expertise of the group is a product of the increased specialisation within the broader field of international law. As Kessler and Werner note, international law is now split up into an ever-growing number of sub-fields, each with their own norms, rules, precedents, vocabularies, authorities, professional biases and expert knowledge.11 Indeed the International Law Commission, itself a grouping of experts in international law, reflected on this in its 2006 report on the Fragmentation of International Law.12 Expert manuals that address subjects involving established areas of international law that have only recently come into contact with one another (such as the law of armed conflict and international space law), have to find a way to meaningfully incorporate experts from each sub-field in order to be taken seriously by their respective stakeholders. However, mere inclusion of experts from a particular field in the group is not enough—the manuals must create a delicate mesh in which the norms, rules and views of all groups are respected, reflected, and incorporated in a transparent, systematic and scientific way. Failing to do this adequately will lead to reduced influence of the manual, and at worst, risks outright dismissal by entire communities of lawyers and legal advisors who feel that the manual has nothing to say to assist them in their tasks. This makes the role of the methodology section, where such matters should 10

I am acutely aware of the inclusion of myself in this group, however I hope the reader will excuse the indelicacy in acknowledgement of the accomplishments of my colleagues in the latter projects in which I participated as a Core Expert. 11 Kessler and Werner 2013, pp 793–810, citing Koskenniemi 2009, pp 7–19. 12 International Law Commission (2006), Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law—Report of the Study Group of the International Law Commission, UN Doc. A/CN.4/L.682 as corrected UN Doc. A/CN.4/L.682/Corr.1, pp 11, 14.

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be openly and clearly addressed, particularly relevant in establishing the credibility and subsequent influence of each manual.13 Perhaps less obviously, manuals dealing with new and emerging technologies must also look to those who come from outside the world of IHL and incorporate their expertise in some manner. For example, a manual project dealing with a topic such as cyber warfare should, at the very least, keep a weather eye on legal developments from the realm of information technology law. This is essential even where the scope of the manual is limited, for example to international humanitarian law and the jus ad bellum (as was the case with the first Tallinn Manual).14 Far from an inappropriate intrusion from domestic law, adopting this approach enables an expert group to understand how different States are developing their thinking on conceptual issues such as cross-border access to information and data or the appropriate property rights to attach to data. These developments will inform their choices when addressing such issues under the law of armed conflict. After all, a State that considers virtual property to have real or personal (rather than intellectual) property rights attached to it is more likely to consider such property under the law of booty during an armed conflict. Ideally, a manual project would include this kind of expertise in the group of experts during the drafting process, however a rigorous peer review process incorporating this expertise may also provide a minimum of cover to avoid embarrassing mistakes that would undoubtedly lessen the impact of the final product. In addition to diversity in specialist subject-matter expertise, other measures of diversity may also play a role in the eventual influence of an expert manual. Sivakumaran notes that where the composition of the group takes account of geographical distribution, it is likely to be considered more representative and thus potentially more influential than a group that is solely from the global north or global south.15 For example, the first Tallinn Manual was criticised for its predominantly Western views and for failure to include perspectives from States such as Russia and China who had been the subject of extensive cyber-attack allegations.16 Participation in the second version of the manual was subsequently increased and diversified.17 Similarly, a manual that reflects a willingness to engage with gender perspectives in a meaningful and systematic way, beyond the mere ratio of male to female participants in the group or use of gender-neutral language (both of which are also important), may reflect a deeper engagement with the underlying issues at hand. The same argument can be made for other diversity perspectives. A related factor affecting the influence of the manual will be the professional background of the participating experts. In general, expert manuals are primarily aimed at an audience of both military and civilian legal policy advisors and government decision-makers. The manuals therefore require a combination of scholars and

13

See Sect. 2.5 below. See also Schmitt 2013, p 3. 15 Sivakumaran 2017, p 9. 16 See, for example, Liivoja and McCormack 2012, pp 45–57. 17 Schmitt 2017, pp xii–xviii. 14

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practitioners in order to provide a useful and practical product for their intended audiences. Michael Schmitt has noted that in selecting the participants of the group for both Tallinn Manuals, they explicitly looked for those who had practical experience in the position of the audience that they were writing to (in addition to their subject matter expertise).18 The highly influential San Remo Manual for example included government lawyers, military lawyers, naval lawyers, International Committee of the Red Cross (ICRC) lawyers and leading academics. However, that balance has proved controversial in some instances. The original Tallinn Manual, while having a similar composition (although the practitioners involved had dealt with cyber rather than naval operations), was criticised for having too many current or former ICRC legal officers as part of its group.19 Of course, finding the perfect combination of experts is not always possible and many of the modern manuals have supplemented their group of experts with a robust State engagement process. For example, Tallinn 2.0 engaged in the so-called Hague Process to gain input on the unpublished manuscript from interested State parties.20 The success of that idea has prompted the Woomera Manual to engage in a similar Soesterberg Process of State engagement, although at the time of writing the start of the process had been delayed by the COVID-19 pandemic.21 The idea of both processes is not to allow States to exert influence over the primary drafting of the manual rules, but rather to ensure that the manuals reflect all reasonable views held by States. Thus reflecting the position of both manuals that States are the primary source of all public international law.

2.4 Process and Methodology The State engagement processes noted in the previous section play another important role than merely bolstering the diversity of the expert group. Where interested actors have an opportunity to feed into the process that gives rise to a particular work, it not only makes it more rigorous and more realistic, but it is more likely to lead to their buy-in to the final product.22 This is illustrated aptly by the difference in State’s reactions to the first and second Tallinn Manuals. The first edition of the Manual was held somewhat at arm’s length by States and came under heavy criticism. In comparison, Tallinn 2.0, which used a State engagement process, was received far 18

Law and the Future of War Podcast (2021) International Law in Cyber Space and the Tallinn Manuals—Michael Schmitt. https://law.uq.edu.au/research/future-war/podcast. Accessed 16 February 2021 [hereinafter Schmitt podcast]. 19 Efrony and Shany 2018 referenced citation at footnote 7. It should be noted that this criticism is somewhat unfair as regards the lawyers participating in their capacity as representatives of the ICRC as they were there as observers only and did not have a vote. All other group members participated in their personal capacity. See Schmitt 2017, 4. 20 Schmitt 2017, p 6. 21 See generally The University of Adelaide (2021) Drafting the Woomera Manual. https://law.ade laide.edu.au/woomera/drafting-the-woomera-manual. Accessed 16 February 2021. 22 Sivakumaran 2017, p 10.

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more favourably.23 That is not to say that all States will choose to avail themselves of the opportunity to express their views. This is particularly so in contexts such as cyber operations where an apparently deliberate policy of ambiguity around legal positions seems specifically designed to preserve operational flexibility. It is only recently that States have been prepared to release national policies in a public forum. It is in these more recent policy documents that the real influence of the manuals can be seen and tracked, as many States have expressed their legal views and policy positions either in agreement or opposition to the positions articulated in the Tallinn Manuals.24 In this respect, the role and influence of the Tallinn Manuals as a starting point for conversation and debate around the issues has been an overwhelming success.25 The methodology adopted by a manual will also play a large role in the subsequent influence that it wields amongst its intended audience and States more generally. While the San Remo Manual explicitly notes that it includes a few provisions that might be considered progressive developments in the law,26 the more recent manuals have consistently stuck to the theme of restatement of existing law. For example, the introductions to both Tallinn Manuals stress adherence to lex lata while “assiduously avoiding including statements reflecting lex ferenda”.27 The Woomera Manual, currently still in the process of drafting, has also adopted this latter approach. Whether or not any of the various manuals achieve this strict delineation has been the subject of significant academic debate, which will not be repeated here.28 The point being that the claim to strict adherence to lex lata is viewed by the respective manual drafters as essential to the ultimate validity and influence of their work—perhaps as a feature of the novel and oft times controversial issues of application of the law in a new domain. Ironically, the one manual that openly lays claim to elements of progressive development, the San Remo Manual, has subsequently proved hugely influential in the drafting of State’s military manuals.29 There is, of course, an element of de lege ferenda anytime one engages in a process of interpretation of law to a new technology or domain. This would be so even in situations where the law is relatively clear and straightforward, which is certainly not the case for all aspects of the law governing military operations. The interpretive process of applying the law to a new technological domain involves choices, conscious or otherwise, about how that law should work in an environment for which it was not specifically designed. That is not to say that the process is therefore invalid or that there is no value in strictly adhering to the principle of only 23

A certain amount of this difference is of course due to the increased maturity of State thinking on the subject at the time of drafting Tallinn Manual 2.0. 24 See for example the French policy International Law Applied to Operations in Cyberspace 2019. 25 Although see Efrony and Shany 2018, p 583 for an empirical assessment of influence of the manual rules, arguing its effect has been limited. 26 Doswald-Beck 1995, p 5. 27 Schmitt 2017, p 3. 28 In respect of the Tallinn Manuals, see generally Efrony and Shany 2018, above n. 19; Boer 2019; and referenced citations at footnote 20. 29 See for example UK Ministry of Defence 2004, para 13.2; Law of Armed Conflict at the Operational and Tactical Levels 2001, para 801(2).

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applying to the new domain, the lex lata as it exists outside of the new technology or domain. Indeed that is exactly what makes the manuals useful to their target audience of government legal advisors who are tasked with providing an answer to novel questions. Merely that one must recognise and acknowledge that those choices are being made, particularly when the work is subsequently engaged with by commentators, both from within the target audience and the wider academic readership. This can be easily achieved by open acknowledgement in the text of the manual itself, and engaging meaningfully with differing interpretations and contrary views after the fact rather than dismissing such views out of hand as lex ferenda. The Tallinn Manuals and the upcoming Woomera Manual have dealt with this issue in similar ways.30 Each provides a black letter rule that has been unanimously agreed on by the group, followed by a commentary. As explained in the introduction to Tallinn 2.0, the commentary identifies the rule’s legal basis, explains its normative context, addresses practical implications in the cyber context and sets forth differing positions as to scope and interpretation.31 The Woomera Manual is set to follow in a similar fashion. Thus it is the strength of the commentary that will determine the subsequent influence of the particular expert manual. One aspect where the Tallinn Manuals have differed in their approach to that of other manuals (both prior and post) is in their method of reflecting differing views within the group in the commentary. Both Tallinn and Woomera Manuals explicitly state that they seek to capture all reasonable views.32 However, during the drafting process of both Tallinn Manuals, the expert participants voted on particular positions and the resulting spread of views is set out in the commentary with indicators to the reader as to the prevalence of that view amongst the participants.33 Thus, the manual contains unanimous positions, majority and minority views, and where a view or position is held by between one and three participants, it is expressed as a few. The manual also indicates where it has attempted to capture other positions expressed elsewhere in the literature or by States, but where no participant in the group held that view. While this novel approach is useful in that it allows the reader to gauge the approximate spread of views within the group, it does have the effect of masking how close a split on a particular issue was, and may have inadvertently proved counter-productive in the manuals’ aim of reflecting all reasonable views. After all, a majority view may equally reflect the opinion of 51% of the group as 85%. In such close majority/minority splits, a different configuration of participants present in the room at the time of voting may have divided differently on a given issue. The Woomera Manual, while admittedly still in the process of being finalised, began its drafting process by adopting the same voting methodology as used in the Tallinn processes. However, at the time of writing, reflection on this problem has prompted the editors to reject setting out the majority/minority viewpoints in the commentary in favour of simply reflecting all reasonable views without giving any 30

It should be noted that at the time of writing a final text of the Woomera Manual was not available. Schmitt 2017, p 4. 32 Ibid. 33 Schmitt Podcast, at 16:30, see footnote 18. 31

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relative weighting to differing viewpoints in the group.34 One hopes that this will act to avoid unduly magnifying the influence of particular viewpoints expressed in the manual where, by its stated design, all viewpoints are considered reasonable. This may also go some way to preventing the manual being associated solely with the majority position. This has been a frequent problem for the Tallinn Manuals where later commentators have equated the majority position with the position of the manual as a whole, noting “the Tallinn Manual says [majority viewpoint]”, a fact frequently decried by Michael Schmitt, the Manual’s general editor.35

2.5 Finding the Law In addition to the processes used to separate lex lata from lex ferenda, and to represent the differing views expressed in the expert group, the methodology adopted by a particular manual to finding the applicable law will have a major effect on its subsequent influence amongst the target audience. Of course, it is axiomatic that expert manuals owe their influence to accurately restating the law and offering an authoritative interpretation of it. The ICRC’s Customary International Humanitarian Law Study (hereinafter CIHL Study),36 while not strictly an expert manual, is of a similar vein and suffered under heavy critique of its methodology by both State officials and commentators on its release.37 This had two resulting effects on the methodology adopted by subsequent manual projects. The first was an active attempt to avoid the same methodological missteps for which the CIHL study had been criticised. The second was to limit the reliance in the manuals on the CIHL study as a source confirming the content of customary international law. The difficulties involved in finding customary international law in the relevant areas are not unique to international humanitarian law or indeed outer space law (in the case of the Woomera Manual). The general formulation of “a general practice accepted as law” is uncontroversial as the conditions necessary for the existence of a rule of customary international law.38 However the assessment of the evidence for each of the two constituent elements, State practice and opinio juris, is one that has been the subject of extensive analysis with reams of paper and ink spent on the topic. For the purposes of the expert manual processes currently under discussion however, two particular issues are of significance.

34

This was correct at the time of writing; however the manual manuscript has not yet been finalised and it is possible that participants will be asked to vote in a final plenary session. 35 For a recent example, see Schmitt Podcast 20:00 (see footnote 18). 36 Henckaerts and Doswald-Beck 2005. 37 See for example Bellinger and Haynes 2007; Turns 2006; Wilmshurst and Breau 2007. 38 International Law Commission (2018) Draft conclusions on identification of customary international law, UN Doc. A/73/10.

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The first relates to the treatment of State practice of those States who are party to the Additional Protocols to the Geneva Conventions in determining the content of customary international law. This is Baxter’s paradox, in which determining the customary international law status of rules that are incorporated in a treaty becomes more difficult as the number of parties to a treaty increases.39 As Dapo Akande has noted if one takes only the practice of non-parties to the applicable treaties, it leads to the situation where the content of customary international law is determined by a small minority of States who are non-parties to the treaties.40 In the case of Additional Protocol I for instance, this would mean that approximately 20 States are creating customary international law. This in turn can lead to an over reliance on the military manuals and other State practice of those States who are outliers in their views and the risk that the following interpretation of laws skews in a direction that the majority of States may not agree with. Of course, one can take into account the practice of States party to the applicable treaties in their dealings with other non-party States; however, care must be taken to show the required opinio juris. That is, that the State believes that the practice is required or permitted by international law, rather than as a matter of policy or convenience in the training of members of the armed forces for example. A second point is the designation of specially affected States and the subsequent role played by their State practice in determining the content of the customary international law reflected in the expert manual. This is particularly acute in determining laws that apply in outer space for example. While almost every country in the world uses satellites (for weather, communications, navigation etc.), a smaller number of States and international organisations actually own them, and a smaller number still have the ability to launch satellites and other space objects into outer space. The treaty regime governing outer space is mainly tied to launching States or the State of registration of particular space objects, therefore the remaining rights and duties are largely left to customary international law. The specially affected State doctrine itself is controversial and the contours of that doctrine—what makes a State specially-affected, and the appropriate weighting to be given to that practice—have not been rigorously set out.41 Nevertheless, in the drafting of expert manuals some decisions have to be made at the methodological level about the relative weight given to different State’s practice and the resultant ability of different States to contribute to the formation of customary international law, particularly in rapidly changing 39

See Baxter 1970, p 64 (“The proof of a consistent pattern of conduct by non-parties becomes more difficult as the number of parties to the instrument increases. The number of participants in the process of creating customary law may become so small that the evidence of their practice may be minimal or altogether lacking. Hence the paradox that as the number of parties to a treaty increases it becomes more difficult to demonstrate what is the state of customary international law dehors the treaty.”). 40 Dapo Akande Response to Hollis D (2007) The Empire Strikes Back—Debating the Origins of the Customary Laws of War. http://opiniojuris.org/2007/05/08/the-empire-strikes-back-%E2%80% 93-debating-the-origins-of-the-customary-laws-of-war/. Accessed 29 April 2021. 41 See generally Heller 2018; International Law Commission (2018) Draft conclusions on identification of customary international law, UN Doc. A/73/10.

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domains and environments. For example, while only a few States can claim to have kinetic anti-satellite technology capable of amounting to a use of force or armed attack in orbit, anyone with a connection to the internet and the appropriate hacking skills at their disposal can now de-orbit a satellite or otherwise render it useless. While the specialised rules of responsibility under the Outer Space treaty regime will be lex specialis in many instances, any remaining questions regarding the attribution of conduct (as opposed to the attribution of responsibility) will be dealt with under the customary rules on State responsibility, thus raising the question of exactly whose practice should count and to what degree. It is beyond the scope of this article to outline all the possible arguments regarding this doctrine, but rather to note that it is well known that the US position is somewhat stronger than other States would be prepared to accept.42 The final methodological point to be addressed here that will affect the eventual influence of the expert manual is perhaps a consequence of the intended, versus the actual eventual use of the manual. By and large, expert manuals are intended to be used by government and other legal advisers in their daily work to solve practical problems and provide guidance and answers in solving issues, although several also hope to assist the academic community.43 They are not academic treatises, nor should they be expected to fulfil that function. This intention is reflected in the choice of sources cited in the footnotes to the manuals. Generally speaking, the citations are to primary source material only and do not cite academic or other scholarly works. There are two points of note here. The first is that some academic ideas are cited directly—this is particularly the case when the author in question is a member of the group of experts and presumably still subscribes to the views they have previously published elsewhere. This is seen, for example, in the Tallinn Manuals with the use of Michael Schmitt’s work on the criteria to assess whether States would characterise a particular cyber operation as a use of force contrary to Article 2(4) of the UN Charter.44 The original work was seminal at the time of its publication and has been used and cited extensively since, not least by the Tallinn Manuals of which Schmitt was the general editor. Similarly, the San Remo Manual based its approach to the issue of exclusion zones in the law of armed conflict at sea in large part on the previous work of William Fenrick, one of the group of experts for that manual.45 Of course, one would expect that those who have written influential works in a particular field would be included in the group of experts drafting such a manual; however, it is worth noting that the privileging of those works by named inclusion in the manual risks creating a feedback loop whereby other works and voices are relatively disadvantaged.

42

Ibid. See for example, Gill et al. 2017, p xxix; Schmitt 2017, p 2. 44 Schmitt 2017, pp 333–337, using Schmitt’s original academic work on the subject in Schmitt 1999. 45 Compare, Fenrick 1986, pp 91, 125 and Doswald-Beck 1995, paras 106.2, 106.5 (which are almost direct reproductions of the original work). See also Sivakumaran 2017, p 8. 43

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This leads to the second point, namely that the experts involved in the drafting of manuals take great care in reading widely and attempting to source all reasonable views when creating the commentary to the particular rule with which they are tasked the drafting. In doing so, they necessarily reflect the ideas of other academics and writers whose views are then summarised and brought before the expert plenary for discussion. Given that the commentary to an expert manual is not the place for a nuanced reading of an academic text, often the detailed reasoning of why this or that grouping with in the wider group of experts subscribed to a particular view is lost. When combined with the lack of citation to the initial academic source, the methodology itself undermines the scientific validity of the full expression of that idea or concept by preventing recourse to the initial material. This has two knock-on effects. First, the manual becomes the originating source of a particular viewpoint in subsequent references, and second, the nuance and reasoning of the original work is lost. This would simply be a mere irritation to academic ego if the use of the manual was then confined to its intended audience of military and civilian legal policy advisors and government decision makers, after all one does not expect State policy to come fully footnoted. However, the manuals have proved to have a wider life than their intended audience, becoming widely cited in the academic literature. Therefore it is incumbent on academics engaging with the work of expert manuals to be aware of the methodology and processes involved in drafting these manuals and to dig deeper in order to fully engage with the concepts expressed therein and maintain the scientific validity of international law as a subject.

2.6 Conclusion In writing this chapter, I have attempted to set out some of the methodological and practical difficulties posed by the expert manual process that will have an impact on their subsequent influence as an authoritative reflection of international law. As noted, most manuals would not classify themselves as sources of international law within the formal doctrine of sources, explicitly stating that it is states who make international law. However, their influence on the development of international law should not be underestimated. After all, the very government officials and legal policy advisors who are the target audience of such manuals use them to draft the policies, directives, pleadings and judgments that make up evidence of State practice and opinio juris and form the basis for any treaty negotiations. It should also be remembered that the proliferation of expert manuals has been the result of a stagnation in formal law making processes by States and the inability of the international community to find sufficient common ground on legal principles in emerging domains. While it may be that the perfect expert grouping exhibiting all the appropriate levels of expertise, diversity, and adaptability to environment is not achievable in every instance, those factors should be addressed by every director of such a project in order to ensure the most representative and objective view of the law possible. Expert manuals continue to play an important role on the making and shaping of international law. On their own

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merits, as the view of a group of subject matter experts who have devoted time and energy into thinking about the issues, but more importantly, as catalysts for discussion and debate amongst States and academics. Their influence on the development of international law will continue to be felt by all in the international community.

References Articles, Books and Other Documents Baxter RR (1970) Treaties and Custom. In: Collected Courses of the Hague Academy of International Law, Vol. 129. Brill, Leiden, p 64 Bellinger III JB, Haynes II W (2007) A US Government Response to the International Committee of the Red Cross Study Customary International Humanitarian Law. International Review of the Red Cross 89: 443 Boer LJ (2019) Lex Lata Comes with a Date; or, What Follows from Referring to the ‘Tallinn Rules’. AJIL Unbound 113:76 Canada Office of the Judge Advocate General (2001) Law of Armed Conflict at the Operational and Levels. https://www.fichl.org/fileadmin/_migrated/content_uploads/Canadian_LOAC_Manual_ 2001_English.pdf. Accessed 12 July 2021 Doswald-Beck L (1995) San Remo Manual on International Law Applicable to Armed Conflicts at Sea. Cambridge University Press, Cambridge Efrony D, Shany Y (2018) A Rule Book on the Shelf? Tallinn Manual 2.0 on Cyberoperations and Subsequent State Practice. The American Journal of International Law 112(4) Fenrick W (1986) The exclusion zone device in the law of naval warfare. Canadian Yearbook of International Law 24: 91, 125 Gill T et al (2017) Leuven Manual on the International Law Applicable to Peace Operations. Cambridge University Press, Cambridge Heller KJ (2018) Specially affected states and the formation of custom. American Journal of International Law 112(2): 191 Henckaerts JM, Doswald-Beck L (2005) International Committee of the Red Cross Customary, Vol 1. Cambridge University Press, Cambridge International Law Commission (2006) Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law—Report of the Study Group of the International Law Commission, UN Doc. A/CN.4/L.682 as corrected UN Doc. A/CN.4/L.682/Corr.1 International Law Commission (2018) Draft conclusions on identification of customary international law, UN Doc. A/73/10 Kessler O, Werner WG (2013) Expertise, Uncertainty, and International Law: A Study of the Tallinn Manual on Cyber Warfare. Leiden Journal of International Law 26(4): 793–810 Koskenniemi M (2009) The Politics of International Law – 20 Years Later. European Journal of International Law 20(1): 7–19 Liivoja R, McCormack T (2012) Law in the Virtual Battlespace: The Tallinn Manual and the Jus in Bello. Yearbook of International Humanitarian Law 15:45–57 Ministère des Armées [French Ministry of the Armed Forces] (2019) International Law applied to Operations in Cyberspace https://www.defense.gouv.fr/content/download/567648/9770527/file/ international+law+applied+to+operations+in+cyberspace.pdf. Accessed 16 February 2021 Program on Humanitarian Policy and Conflict Research at Harvard University (2013) HPCR Manual on International Law Applicable to Air and Missile Warfare. Cambridge University Press, Cambridge

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Schindler D, Toman J (1988) The Manual on the Laws of War on Land 1880. In: Schindler D, Toman J (eds) The Laws of Armed Conflicts. Martinus Nijhoff, Dordrecht, pp 36–48 Schmitt MN (1999) Computer Network attack and the Use of Force in International Law: Thought on a Normative Framework. Columbia Journal of Transnational Law 37(3): 885–914 Schmitt MN (2013) Tallinn Manual on the International Law Applicable to Cyber Warfare. Cambridge University Press, Cambridge Schmitt MN (2017) Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations, 2nd edn. Cambridge University Press, Cambridge Sivakumaran S (2017) The Influence of Teachings of Publicists on the Development of International Law. International and Comparative Law Quarterly 66(1): 1–37 Turns D (2006) Weapons in the ICRC Study on Customary International Humanitarian Law. Journal of Conflict and Security Law 11(2): 201 UK Ministry of Defence (2004) UK Manual of the Law of Armed Conflict. Oxford University Press, Oxford Wilmshurst E, Breau S (2007) Perspectives on the ICRC Study on Customary International Humanitarian Law, Part 1. Cambridge University Press, Cambridge

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

Dr. Heather A. Harrison Dinniss is a Senior Lecturer at the Centre for International and Operational Law at the Swedish Defence University in Stockholm, Sweden.

Chapter 3

The Leuven Manual on the International Law Applicable to Peace Operations: An Ambitious Sui Generis Expert Panel Manual with Time on Its Side? Alfons Vanheusden Contents 3.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 Methodology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.1 Initial Main Efforts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.2 Research and Drafting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.3 Format . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.4 Dissemination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.5 Status as a Living Reference Work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3 Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.2 Expert Consensus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.3 Geographical Representation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.4 The Way the Leuven Manual Was Published, Welcomed and Reviewed . . . . . . . 3.3.5 The Expertise of the Members of the Group of Experts and the Quality of Their Research . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.6 The Degree to Which the Leuven Manual Is and Will Be Used as a Reference Work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

36 38 38 42 43 46 48 50 50 51 52 53 54 55 56 57

Abstract This chapter discusses the Leuven Manual project in light of the questions raised by the proliferation of expert panel manuals. After a brief introduction in Sect. 3.1, it details the project’s methodology in Sect. 3.2. The decision of the Boards of the International Society for Military Law and the Law of War to initiate and support this project required several initial main efforts, ranging from the composition of a Project Management Team and finding appropriate experts willing to take part in the project, over drafting a project plan, to generating international support for the project and approaching relevant stakeholders. The section on methodology continues by describing the approach to research and drafting. Subsequently, it outlines the Leuven Manual’s format, its dissemination and its status as a A. Vanheusden (B) International Society for Military Law and the Law of War, Brussels, Belgium e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2022 T. D. Gill et al. (eds.), Yearbook of International Humanitarian Law 2020, Yearbook of International Humanitarian Law 23, https://doi.org/10.1007/978-94-6265-491-4_3

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living reference document. Section 3.3 identifies various main factors that influence the degree of authority of the Leuven Manual. The adoption of both black letter rules and commentary by consensus and the attention paid to geographical representation are the first two factors mentioned. The way the Leuven Manual was published, welcomed and reviewed, is considered as a third factor. Obviously, the expertise of the members of the Group of Experts and the quality of their research form a fourth factor; and the degree to which the Leuven Manual is and will be used as a reference work is a fifth factor. The chapter concludes that the Leuven Manual offers itself to the peacekeeping and academic communities as a sui generis expert panel manual. Keywords International law · Peace operations · Peacekeeping · Manual · Treaty law · Customary international law · Best practice · United Nations · Doctrine

3.1 Introduction Just like several other expert panel manuals, the authors of the Leuven Manual on the International Law Applicable to Peace Operations1 decided to link their manual with a city’s name. Consequently, practitioners and academics can now easily and briefly refer to this manual as the Leuven Manual. As explained in the Leuven Manual’s Foreword, the particular choice to name the manual after the medieval city of Leuven was motivated by two facts. First, because despite its war-torn history, today’s city of Leuven is known as a peaceful and prosperous venue with a thirst for knowledge. The reference to Leuven should in that sense give hope to the practitioners in the peace operations community that, by devoting suitably peaceful effort, war-torn cities and conflict zones in general can indeed revive their former glory. Second, it was true that two of the most intensive and productive project meetings to draft the Leuven Manual took place in that same city.2 However, to be clear, over the years, the project to draft the Leuven Manual generated academic activities across the globe: the international law applicable to peace operations was not only explored in Belgium, but notably also in Cameroon, Canada, China, the Czech Republic, Germany, Italy and Peru. The Leuven Manual covers consensual peace operations, consisting both of the traditional peacekeeping variety and of multi-dimensional peace operations. The latter operations include aspects of peacekeeping and peacebuilding and support for the political process of conflict resolution.3 Such peace operations are based on three bedrock principles: consent of the parties; impartiality and limited use of force.4 These principles have evolved along with the evolution of complex multidimensional mandates and increasingly volatile operating environments.5 Indeed, 1

Gill et al. 2017. Ibid., p xi. 3 Ibid., p xxix and pp 3–5. 4 Ibid., p 4. 5 Ibid., pp 3–5. 2

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today’s peace operations are often characterised by more robust mandates authorising active protection of civilians against non-State armed groups. The Leuven Manual, devotes attention to the various stages of the planning and conduct of Peace Operations conducted by both the United Nations (UN) and by regional organisations and other arrangements. It attempts to address all relevant issues, ranging from the legal basis of such operations, applicable legal regimes in the conduct of operations, in particular international human rights law (IHRL) and international humanitarian law (IHL), relations with the Host State, Sending State and other interested parties, the use of force in self-defence and in the execution of tasks laid out in the mandate, assistance in the maintenance of a stable environment and the maintenance of law and order, and promotion of human rights and the rule of law. It also includes treatment of such issues as the protection of civilians, the maintenance of discipline and prevention of abuse of the civilian population of the Host State, the immunities and the consequences thereof for mission personnel, and questions of international responsibility and criminal liability for violations of international law.6

The Oxford Bibliographies describe the Leuven Manual as the “most comprehensive overview and detailed commentary on legal rules applicable to peace operations conducted by the UN, the EU, the North Atlantic Treaty Organization (NATO), the AU, and other organizations”.7 This is indeed what the editors and contributing experts of the Leuven Manual had in mind, namely a “comprehensive overview of the rules that are to be followed in peace operations conducted by the United Nations (UN), the European Union (EU), NATO, the African Union and other organisations, with detailed commentary on best practice in relation to those rules”.8 In their book review published in the International Review of the Red Cross Tobias Vestner and Alessandro Mario Amoroso confirmed that the manual provides a restatement of all international norms applicable to peace operations, and in their view, that it thereby fills a gap in a field where political priorities and situational specificities hinder comprehensive legal regulation.9 On the other hand, Anton Orlinov Petrov observes that expert panel manuals have turned from engines in the codification era of the second half of the nineteenth century into ends in themselves as a reaction to a halt in treaty-making.10 The proliferation of expert panel manuals raises a number of questions and this chapter intends to shed light on these issues in relation to the Leuven Manual project. It will hopefully assist the reader and, perhaps, prospective members of an expert panel manual project, in identifying relevant challenges and good practices, despite the somewhat sui generis character of the Leuven Manual project as will be explained in this chapter. Furthermore, it could possibly provide some preparatory reflections on how to improve procedural aspects in advance of the preparation of a possible second edition of the Leuven Manual. 6

Ibid., p xxx. Kondoch 2018. 8 Gill et al. 2017, backcover. 9 Vestner and Amoroso 2018, p 429. 10 Petrov 2020, pp 8–9. 7

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3.2 Methodology 3.2.1 Initial Main Efforts 3.2.1.1

Introduction

In 2011, the Managing Board and Board of Directors of the International Society for Military Law and the Law of War11 took the decision to initiate and support a multiyear research project to draft a manual on the international law applicable to peace operations that was intended to serve both practitioners and academics.12 These two categories form the traditional mixed audience of the International Society for Military Law and the Law of War (hereinafter referred to as, the Society) “as a privileged forum where legal practice and academic research and teaching converge”.13 This decision required five initial main efforts: (1) composing a Project Management Team; (2) finding appropriate experts willing to take part in the project as Senior Academic Advisors and/or members of an international Group of Experts; (3) drafting a realistic and flexible project plan, including a demarcation of the scope of the manual; (4) generating international support for the project; and (5) approaching relevant stakeholders in order to receive their input.

3.2.1.2

Project Management Team

The project was managed by a Project Management Team, headed by the Society’s Assistant Secretary-General (who is also the author of this chapter). As the Managing Editor of the Leuven Manual “he oversaw and coordinated all project activities, set deadlines in close coordination with the Senior Academic Advisors, and was charged with maintaining regular contact with the members of the Group of Experts & Observers”,14 the publisher, partner organisations, and the Boards of the Society. The dual-hatted position of Assistant Secretary-General and head of the Project Management Team implied also a requirement to report to the Society’s Managing Board and Board of Directors on the progress of the project activities and to the Group of Experts on the feedback received from these Boards. The close link of the Assistant Secretary-General with the Society as the initiator and main sponsor of the project and with its General Secretariat at its administrative heart played a decisive role in his designation as head of the Project Management Team. He was

11

For more information about the International Society for Military Law and the Law of War, please visit www.ismllw.org, accessed 6 January 2021. For the composition of the Board of Directors of the Society at the time of the endorsement of the Leuven Manual, see Gill et al. 2017, pp 350–352. 12 Gill et al. 2017, p xxiv. 13 Ibid., p xxx. 14 Ibid., p xxxiv.

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assisted by two Assistant Editors with academic backgrounds15 and by two Project Management Team Advisors16 (a practitioner and an academic). As mentioned in the Leuven Manual, “all five of them also participated in the drafting of rules and commentary”.17

3.2.1.3

Group of Experts & Observers

The designation and involvement of the project’s Senior Academic Advisors received the same priority as the setting up of the Project Management Team. The desire to be able to count on sound academic advice of internationally renowned senior experts with important editorial experience in the international law applicable to military operations determined the choice made by the Society.18 They advised and where necessary assisted in the recruiting of suitable and qualified members of the Group of Experts specialised in the law and practice of peace operations. They also acted in the capacity of General Editors of the Manual, along with the author of this chapter, who also participated in that task. The Senior Academic Advisors ensured the overall quality and cohesion of the Leuven Manual, provided input concerning the structure of the Manual, and participated in the drafting of rules and commentary.19 The Project Management Team and Senior Academic Advisors requested selected experts to form the project’s Group of Experts.20 These experts could ask colleagues to assist them in preparing their contributions, but were the single point of contact for the Project Management Team and the Senior Academic Advisors. These contributors were responsible for submitting pieces of publishable quality within the agreed time limits and framework set by the project plan.21 The project plan did not contain detailed criteria for eligibility for membership of the Group of Experts, but the overall objective was to compose a diverse group of talented academics with a proven record of accomplishment on the one hand and experienced practitioners on the other hand. 15

Mr. Marco Benatar and Mr. Remy Jorritsma, at that time both from the Max Planck Institute Luxembourg for Procedural Law, but currently working for the International Tribunal for the Law of the Sea and the European Court of Human Rights respectively. 16 Captain Suzanne Appelman from the Dutch Military Legal Service and Dr. Aurel Sari from Exeter University. 17 Gill et al. 2017, p xxiv. 18 The three Senior Academic Advisors were Professor Terry Gill, Dr. Dieter Fleck, and Air Commodore (ret.) Dr. William H. Boothby. For an overview of Professor Gill’s publications, see Bartels et al. 2021, pp 451–459. Apart from Gill and Fleck 2015, co-edited with Professor Gill and published with Oxford University Press, Dr. Fleck inter alia published Fleck 2013 and Fleck 2018, all with Oxford University Press. Together with Professor Gill, Dr. Boothby was involved as a member of the Group of Experts that prepared Schmitt 2013, published with Cambridge University Press. Furthermore, Dr. Boothby was also a member of the Group of Experts that produced Program on Humanitarian Policy and Conflict Research at Harvard University 2013, also published with Cambridge University Press. 19 Gill et al. 2017, p xxxiv. 20 For the list of the members of the Group of Experts see Gill et al. 2017, pp ix–x. 21 Gill et al. 2017, p xxxiv.

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Obviously, the envisaged diversity related also to the gender aspect as well as the geographical representation. The degree to which the project effectively succeeded in taking into account geographical representation will be discussed further.22

3.2.1.4

Project Plan

The Project Management Team maintained a project plan, which included the project definition, the general methodology and the envisaged project phases and their timings. The project took about six years to complete. From the outset, the project plan stated that the need to ensure a high quality authoritative guide to the international law applicable to peace operations prevailed over the desire to present the publication by a specified date.23 It was also important that the result be a collective work reflecting the views of all project participants, rather than an edited volume of individual chapters. Therefore, the timeline allowed for a sufficient number of face-to-face meetings in order to achieve and confirm that consensus.24

3.2.1.5

International Support

The generation of international support for the project was also key to the success of the project. In that respect the Project Management Team could make use of the Society’s broad international network and secure support from organisations and institutions such as China’s Academy of Military Sciences, the Ministry of Defence of Cameroon, the Norwegian Centre for Human Rights and the Armed Forces of Chile.25 Support was provided by the respective governments and institutions by covering the costs of their participating experts or hosting project-related meetings. The Society’s annual budgets covered the necessary additional funding for the project, without making use of any subsidies.26 It was explicitly agreed that all experts participated in their individual capacity and not as a representative of their organisation or institution, even in the case where a respective employer covered his or her costs for travel and accommodation associated with project meetings.27

22

See Sect. 3.3.3. Confirmed in Gill et al. 2017, p xxxi. 24 Gill et al. 2017, p xxxi. 25 For the full list of organisations and institutions that offered support to the project, see Gill et al. 2017, p xiii. 26 As stated in the Leuven Manual (see Gill et al. 2017, p xxxv), all revenues derived from the publication of the Manual will be used in furtherance of the objectives of the International Society for Military Law and the Law of War, with priority to project-related activities. 27 Ibid. 23

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Stakeholders

The International Committee of the Red Cross (ICRC) immediately accepted the invitation to send an Observer28 to the Group of Experts. He reviewed all research papers related to international humanitarian law and provided the ICRC’s comments.29 This willingness to enter into an active dialogue on international humanitarian law with teams working on expert panel manuals is not new for the ICRC: For instance, the ICRC took part as an observer in the discussions that resulted in the Tallinn Manual on the International Law Applicable to Cyber Warfare.30 From the beginning, the Society saw the UN’s involvement in the project as a conditio sine qua non, for evident reasons related to the UN’s practice in the field of peace operations. With reference to the Society’s consultative status with the UN31 and with the assistance of the ICRC’s delegation to the UN, meetings were held at the UN Headquarters to discuss the project. On 19 March 2014, the involvement of the Office of Legal Affairs (OLA), the (then called32 ) Department of Peacekeeping Operations (DPKO) and the (then called33 ) Department of Field Support in the project was agreed upon.34 Throughout the project, the UN Observers gave invaluable comments and inputs from UN experts in their personal capacity for specific chapters.35 NATO also immediately agreed to send an Observer to the Group of Experts.36 The involvement of the African Union in the project was secured in 2015.37 Their participation in the project was of great importance, given the role of the African Union in peace operations and the fact that many peace operations take place in Africa. The European Union did not formally designate an Observer to the Group of Experts, but EU expertise was available thanks to the participation in a personal capacity of a member of the Legal Service of the Council of the EU.38 28

Senior Legal Advisor Dr. Tristan Ferraro was designated as the ICRC’s Observer to the Group of Experts. 29 Gill et al. 2017, p xxxii. 30 ICRC 2013. 31 United Nations Economic and Social Council, Roster, since 1997. 32 Now called Department of Peace Operations (DPO). 33 Now called Department of Operational Support (DOS). 34 Mr. Luke Mhlaba (at that time working for the OLA) and Mr. Jens Andersen (at that time working for the DPKO) were designated as the UN’s Observers to the Group of Experts (see Gill et al. 2017, p xxxiii). 35 Gill et al. 2017, p xxxiii. 36 Dr. Petra Ditrichova-Ochmannová (at that time working for the Legal Office at Allied Command Transformation Staff Element Europe) until 2014, and Mrs. Antoaneta Boeva (at that time working for the Office of Legal Affairs at NATO Headquarters) as of 2015, were designated as NATO’s Observers to the Group of Experts (see Gill et al. 2017, p xxxii). 37 Mr. Bright Mando (Office of the Legal Counsel) and Col. Cheick F. Mady Dembele (at that time working for the Peace and Security Department) were designated as the AU Observers to the Group of Experts (see Gill et al. 2017, p xxxiii). 38 Dr. Frederik Naert, also affiliated senior researcher at the Katholieke Universiteit Leuven, was a member of the Group of Experts (see Gill et al. 2017, p xxxii). Furthermore, the project could

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3.2.2 Research and Drafting To meet the requirement for robust research as a solid basis for the Leuven Manual the Project Management Team and Senior Academic Advisors inter alia chose to explore the topics of interest through various academic events organised by the Society. Subsequently and in parallel, they organised in-depth discussions within the Group of Experts & Observers on draft chapters and subchapters prepared by individual members of the Group of Experts. A conference on International Humanitarian Law and Peace Operations hosted in Beijing from 9 to 12 November 2011 and organised by the Society with the assistance of its Chinese Group marked the start of the “definition phase” of the project.39 Notably the General Report of the seventeenth Congress of the Society, held in Scheveningen (The Netherlands) in May 2006,40 served as a source of information to prepare this conference.41 The Beijing conference proved most fruitful in identifying areas of the law that required further research with a view to clarifying their content and practical implications for policy-makers and troops in the field.42 As a first step in the drafting, individual experts prepared two topics for presentation at the nineteenth Congress of the Society, held in Québec City (Canada) in May 2012: “The Application of Human Rights Law in Peace Operations”43 and “Operational Detentions and Independent Oversight in Peace Operations”.44 At this Congress “the project and two papers were presented and discussed. Such discussion generated support for and ownership of the project within the Society’s international membership”.45 Subsequently, the focus remained on producing more draft chapters and subchapters, and several face-to-face meetings of the Group of Experts & Observers took place in 2014 and 2015. During the summer of 2015, Cameroon hosted an expert meeting (applying the conference approach) in its capital Yaoundé. This meeting had a special regional and thematic focus: African perspectives and the issue of protection of civilians were on the agenda. The meeting report was prepared in the form of

count on the participation of the Director of the European Security and Defence College, Mr. Dirk Dubois as a member of the Leuven Manual’s Advisory Board, cf. infra. 39 Ibid., p xxxi. 40 Gill et al. 2006. 41 Gill et al. 2017. 42 Vanheusden 2011; As confirmed in Gill et al. 2017, p xxxi, also, “the materials from the 41st Roundtable on “International Humanitarian Law, Human Rights Law and Peace Operations” organised by the International Institute of Humanitarian Law at San Remo, as well as from the ICRC’s 12th Bruges Colloquium on “International Organisations’ Involvement in Peace Operations: Applicable Legal Framework and the Issue of Responsibility”, have helped to identify additional areas to be covered by the black letter rules”. See respectively Beruto 2008 and Deckmyn et al. 2012. 43 See Mujezinovic Larsen 2013 and Naert 2013. 44 Not published. 45 Gill et al. 2017, p xxxii.

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additional draft chapters and subchapters for the Leuven Manual. In October 2015, the experts managed to finalise a full set of chapters and subchapters in draft form.46 At that point, the Group of Experts & Observers was supplemented by an Advisory Board.47 This Advisory Board provided an independent review of the draft manual and offered its advice on best practices, on areas that needed further clarification in the manual and on other matters. As mentioned in the Leuven Manual, “they did not have a vote in relation to the content of the manual, although their views were given all due consideration”.48 This made it possible to launch the editing phase: The Senior Academic Advisors and certain members of the Project Management Team prepared the texts for publication. During that last phase towards publication, the Managing Board and the Board of Directors of the Society endorsed the Leuven Manual on the occasion of their spring 2017 meetings in Stockholm (Sweden).49 The final text of the Leuven Manual was submitted to Cambridge University Press in mid-2017.50

3.2.3 Format The Leuven Manual is made up of 21 chapters and “none of these chapters is the result of the exclusive work of one contributor as the Group of Experts jointly worked on all chapters”.51 The Manual consists of 146 black letter rules each with an accompanying commentary. The black letter rules based on existing law are phrased so as to reflect legal obligations (shall, must, have to …). Where best practices are included in the black letter rules, these are phrased in conformity with applicable law but are distinguished from positive legal obligations by use of appropriate language such as should rather than shall.52 Contrary to the other contemporary expert panel manuals, the Leuven Manual does not limit itself to a restatement of existing law. However, the Leuven Manual does not plead in favour of formal amendment of rules of existing

46

Ibid., p xxxiii. For the list of three members of the Advisory Board, see Gill et al. 2017, p x. They are respectively known for their high-level expertise in international criminal law, the practice of UN peace operations and education and training in a multi-national security and defence context. 48 Gill et al. 2017, p xxxiv. 49 Ibid., p xxxiii. 50 Ibid., p xxxv. 51 Ibid. 52 Ibid., p xxxi. 47

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law.53 It indicates whether a particular rule is customary law,54 treaty law55 or a recommended practice.56 When it is unclear whether a norm based on substantial practice has attained customary status, it is made known to the reader.57 The black letter rules “reflect a consensus of the participating experts” and the “commentary devotes attention to the application and interpretation of the black letter rules and equally reflects the input of the Group of Experts”.58 The Observers “participated in the discussions during the drafting of the black letter rules and commentary and were given the opportunity to provide specific comments and input on matters directly related to the policies and practice of their respective organisations, some of which are included as appendices to the Leuven Manual”.59 The author of this chapter disagrees with the thesis of Petrov that it is methodologically impossible to provide practical guidance in concrete terms and to restate the law as it exists at the same time.60 While it is true that international law, including international humanitarian law, exists in the abstract, it also exists in the way it is interpreted in the concrete and practical senses. Expert panels will never make law, but they should certainly be capable of analysing existing State practice and/or the practice of international organisations, in all different shapes and forms, as constitutive elements of customary international law. Subject to the circumstances of each particular matter at stake, they should equally be capable of detecting opinio juris in this context. This holds even truer as the members of the Group of Experts worked in a team, where opinions and suggested evidence of practice and/or opinio juris could be challenged, including by the Observers and the members of the Advisory Board, 53

Cf. Petrov 2020, p 11. E.g. the commentary to Rule 14.4.6 of the Leuven Manual states that the prohibition of refoulement is not only a treaty obligation, but also a norm of customary international law. Gill et al. 2017, p 210. 55 E.g. the commentary to Rule 14.4.1 of the Leuven Manual explains that the applicability of international refugee law in peace operations depends on the question whether the Host State involved is a party to relevant treaties, in particular the 1951 Convention Relating to the Status of Refugees, the 1967 Protocol Relating to the Status of refugees and/or the 1969 Organisation of African Unity Convention on the Specific Aspects of Refugee Problems in Africa; Gill et al. 2017, p 204. 56 E.g. Rule 7.1 states that gender issues should be taken into account, in all mission aspects, including in peace operations. It adds that participants in peace operations should consider gender issues in terms of both participation and substance; Gill et al. 2017, p 105. 57 E.g. the commentary to Rule 5.7 of the Leuven Manual observes that the UN Security Council may authorise conduct which does not comply with the international human rights obligations of troop contributing countries on the basis of Article 103 of the UN Charter, which states that, in case of conflict, the obligations under the Charter shall prevail over obligations under any other international agreement. The commentary continues that there is now widespread agreement that this provision also applies to obligations in resolutions of the UN Security Council, but also that it remains an unsettled question whether it also applies to authorisations as opposed to obligations; Gill et al. 2017, p 87. 58 Gill et al. 2017, p xxxi. 59 Ibid. See Appendices IV, V, VI and VII for the planning and policy aspects of the UN, the African Union, the European Union and the NATO, Gill et al. 2017, pp 353–381. 60 See thesis 7 in Petrov 2020, p 237. 54

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and where experts with different backgrounds61 could complement one another. The Leuven Manual experts paid particular attention to avoiding any conflation of treaty and customary rules.62 The Leuven Manual project was initiated because a gap in doctrinal literature had been identified. Pioneering works such as United Nations Forces by Derek W. Bowett63 were written in the early days of UN peacekeeping. However, the editors and contributing experts agreed that many aspects of the law applicable to peace operations have evolved and crystallised since the end of the Cold War. As also observed by Boris Kondoch, numerous monographs and articles deal with a particular aspect of peace operations, but relatively few publications offer a general overview of the normative aspects of contemporary peace operations.64 In its Chapter 4, the Handbook of the Law of Visiting Forces discusses UN peace operations, logically with a particular focus on their status vis-à-vis the Host State, but also on aspects such as the relationship between the United Nations and participating States, or the applicability of international humanitarian law.65 The Oxford Handbook of United Nations Peacekeeping Operations contains an examination and critique of all UN peace operations launched between 1958 and 2013.66 It includes a thematic chapter on peace operations and international law, authored by Nigel D. White.67 However, in terms of describing applicable legal rules and good practice the Leuven Manual goes beyond these respective chapters, notably by also covering peace operations conducted by organisations other than the UN, and by offering a more comprehensive and detailed overview of these rules and recommended practice. For example, the Leuven Manual devotes particular attention to the legal aspects of topics such as the aerial and maritime dimensions of peace operations,68 refugees and forcibly displaced persons,69 demining and removal of explosive remnants70 etc. The ambition to address the identified gap in literature authoritatively and to generate added value through comprehensiveness combined with conciseness can undoubtedly also explain the willingness of the UN Secretariat, the African Union, NATO and the ICRC to designate Observers to the project. The Leuven Manual was published in English in December 2017 and in French in March 2021,71 and in order to reach the widest possible readership translation of 61

Academic, military, policy, the law of international organisations, international humanitarian law, international human rights law etc. 62 The Group of Experts did not pursue a uniform legal regime, as described in thesis 8 in Petrov 2020, p 237. 63 Bowett 1964. 64 Kondoch 2018. 65 Bothe 2018. 66 Koops et al. 2015. 67 White 2015. 68 Gill et al. 2017, Chapter 15. 69 Gill et al. 2017, Sub-chapter 14.4. 70 Gill et al. 2017, Chapter 18. 71 Gill et al. 2021. This translation project was coordinated by Mrs. Laurence De Graeve.

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the manual into other UN languages is envisaged.72 A group of Spanish speaking lawyers is currently organising the work to draft a Spanish version of the Leuven Manual, and China’s Academy of Military Sciences has also expressed an interest in assisting the Society in translating and publishing the Leuven Manual in Chinese.

3.2.4 Dissemination The Leuven Manual is aimed at senior policy makers at both the national and intergovernmental organisation levels, at senior military officers involved with the planning and conduct of such missions, at senior level staff in non-governmental organisations which carry out humanitarian and related activities in areas where peace operations are being conducted, and at the academic community involved in research and teaching related to peace operations.73

The rollout of the Leuven Manual’s first edition in 2018 implied a dissemination plan that defined and prioritised actions to make the Leuven Manual known to the world. The Leuven Manual was immediately sent to the leadership of the UN, the EU, NATO, the African Union and the ICRC. Furthermore, it was also sent or given to other authorities, organisations etc., including at the national level. In February 2018, the Society launched the Leuven Manual at an event in New York, in the presence of the UN Undersecretaries-General for Legal Affairs, for Peace Operations (formerly, Peacekeeping Operations), and for Operational Support (formerly, Field Support), who all took the floor to welcome its publication.74 In March 2018, the Manual was also presented in Lviv to a Ukrainian audience, including the Ukrainian military, as well as to the Africa Military Law Forum convened in Oberammergau with support of US EUCOM. Another event associated with the Leuven Manual took place at the Geneva Centre for Security Policy in May 2018, and was attended by representatives of the international community present in Geneva.75 At the end of October 2018, Professor Gill presented the Leuven Manual to an Italian audience in Taranto at an event organised by the Italian Group of the Society. In November 2018, a special event on the Leuven Manual took place at

72

Gill et al. 2017, p xxxv. Gill et al. 2017, p xxix. 74 For the programme of this event, see International Society for Military Law and the Law of War (2018) https://www.ismllw.org/wp-content/uploads/2018/11/2018_02_19_NY_prog_UK.pdf. Accessed 8 January 2021. 75 Geneva Centre for Security Policy (2018) Does Law Contribute to Peace Operations’ Success? A Reality Check with the New Leuven Manual. https://www.gcsp.ch/topics/securityand-law. Accessed 8 January 2021. 73

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NATO’s new Headquarters in Brussels in the presence of NATO’s Deputy SecretaryGeneral,76 and later that same month Assistant Editor Jorritsma presented the Leuven Manual in Cameroon’s capital, Yaoundé, for an African audience. In June 2019, the Leuven Manual was presented in Seoul to a largely Asian audience on the occasion of the 10th International Symposium of Security and Military Law, organised by the Office of the Judge Advocate General of the Army of the Republic of Korea, and in September 2019 the author of this chapter was given the opportunity to briefly present the Leuven Manual in Beijing to a mainly Chinese audience on the occasion of a broader presentation prepared for a conference organised by the ICRC and the Chinese Society of International Law, to celebrate the 70th anniversary of the Geneva Conventions and to renew the commitment to compliance with international humanitarian law.77 Many of the Leuven Manual’s chapters were discussed at recent activities of the Society, such as the twelfth Seminar for Legal Advisors of the Armed Forces, held in Geneva in June 2019,78 and participants received the Leuven Manual as part of their conference package at the Congress in Lisbon in May 2018;79 at the second and the third Silent Leges Inter Arma? conferences in Bruges;80 and at the Dublin conference co-organised in November 2018 with the Irish Group of the Society, the Defence Forces Ireland, and the Irish Centre for Human Rights.81 Preliminary contacts with the Integrated Training Service of the UN took place to find out how the Leuven Manual can make its way into peacekeeping training centres across the world. In this context, the Society envisages the development in the medium term of a scenario-based training package referencing the Leuven Manual.

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For the programme of this event, see International Society for Military Law and the Law of War (2018) https://www.ismllw.org/wp-content/uploads/2018/11/2018_11_12_NATO.pdf. Accessed 8 January 2021. 77 For more information about this conference, see ICRC (2019) https://www.icrc.org/en/doc ument/china-experts-renew-commitment-geneva-conventions-during-seminar-mark-70th-annive rsary. Accessed 8 January 2021. 78 For the programme of this event, see International Society for Military Law and the Law of War (2019) https://www.ismllw.org/wp-content/uploads/2019/05/Geneve-2019-ISMLLW-LegalSeminar_Draft-program-with-panels.pdf. Accessed 8 January 2021. 79 For the programme of this event, see International Society for Military Law and the Law of War (2018) https://www.ismllw.org/wp-content/uploads/2019/09/ISMLLW-897-N-E-19.pdf. Accessed 8 January 2021. 80 Lamaire et al. 2019 and Marchesi et al. 2019. 81 For the programme of this event, see International Society for Military Law and the Law of War (2018) https://www.ismllw.org/wp-content/uploads/2019/02/2018_11_14_dublin_prog_UK-5.pdf. Accessed 8 January 2021.

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3.2.5 Status as a Living Reference Work The Leuven Manual is a product of the Society and given the informal process through which this publication was produced, the participation of experts in an individual capacity, and the agreed status of the Observers to the project, the views expressed in the Leuven Manual do not necessarily represent those of any institution, organisation or government with which the members of the Group of Experts & Observers are or were affiliated.82 Through the events organised by the Society new themes that could be included in a future second edition of the Leuven Manual are being explored: The second Silent Leges Inter Arma? conference discussed the protection of the environment in peace operations,83 and the Dublin conference discussed the protection of personal data in peace operations.84 Indeed, the Leuven Manual is intended to be a living reference work that is here to stay. The Society will update and amend it regularly as appropriate and feasible. Further research and careful and collective drafting will be necessary to articulate the legal rules and best practices that could be added to the Leuven Manual. Other topics that could be further reflected upon in this context are international policing;85 UN administrations in peace operations;86 the role of the UN’s Office of Peacekeeping Strategic Partnership;87 the legal specificities of so-called hybrid peace operations;88 the ICRC’s so-called support-based approach,89 which has been criticized;90 the role of military and civilian legal advisors in peace operations; the protection of cultural heritage in peace operations; and derogation from relevant human rights provisions.91

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Gill et al. 2017, p xxxv. Lamaire et al. 2019, pp 211–215. 84 One of the presentations is available at International Society for Military Law and the Law of War (2018) https://www.ismllw.org/events/international-conferences/dublin-2018/. Accessed 8 January 2021. 85 The Leuven Manual covers this in a very limited way and in the author’s view more research on legal issues related to police in peace operations would be useful. 86 Interesting case studies are United Nations Transitional Administration in East Timor and United Nations Mission in Kosovo. 87 Klappe et al. 2021, pp 155–160. 88 E.g. the United Nations–African Union Mission in Darfur (UNAMID), which completed its mission on 31 December 2020. 89 Ferraro 2015. 90 See e.g. Gill 2019. 91 Rule 5.7 of the Leuven Manual states that if a peace force considers that it may be unable to comply fully with its international human rights obligations while discharging its duties in accordance with the mandate, the State or international organisation, as the case may be, should consider seeking to derogate from the relevant human rights provisions where possible. However, to date troop contributing countries implicitly refuse to derogate from human rights treaties during a peace operation. Further research into the reasons for this may be useful. 83

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A specific issue that may be worth exploring in a second edition of the Leuven Manual is the fact that Article 15.2 of the European Convention on Human Rights92 states that no derogation from Article 2 (the right to life) shall be made under Article 15, “except in respect of deaths resulting from lawful acts of war”. What are the practical consequences of this wording, inspired as it is by the armed conflict paradigm, in the context of peace operations with troop contributing countries that are also Member States of the Council of Europe? Another question in relation to the right to life is whether Chapter 14 of the Leuven Manual, on the protection of civilians, connects sufficiently with sources of international human rights law. A second edition of the Leuven Manual could also make it more clear to the reader that mandates of the UN Security Council only determine the why of the use of force and not the how of the use of force.93 Moreover, in relation to the conduct of peace operations, the legal basis for the use of force in defence of mission-essential property or in the maintenance of the peace force’s right to move freely as mentioned in Rule 12.4 of the Leuven Manual could be fleshed out and made more concrete and tangible. In addition, it would be useful to the reader if the commentary to Rule 20.4 of the Leuven Manual could actually explain the importance of the distinction made between damages caused due to operational necessity and damages caused by combat or combat-related activities. Rule 21.3 of the Leuven Manual recognizes that in peace operations commanders and civilian superiors incur criminal responsibility when they knew, or should under the circumstances have known, that subordinate personnel under their command were committing international crimes but failed to take adequate measures to prevent their commission, or to punish the perpetrators or to bring the matter to the attention of the designated authorities. The commentary to this rule discusses command responsibility, but in a second edition of the Leuven Manual the Group of Experts should maybe try to delve more into the specifics of the multinational context of peace operations and the challenges this creates. This could probably be done by exploring the possible impact of other issues discussed in other parts of the Leuven Manual, such as the part on Command and Control in Chapter 4, but also Chapter 10 on Sending State Law, and Chapter 16 on Monitoring Compliance in the Field of Conduct & Discipline.94 In probably a second order of priority, the Group of Experts could also explore the possibility of adding short chapters on topics such as whistleblowing in peace operations; the legal aspects of intelligence and cyber activities during peace operations; space law aspects of peace operations; and animal rights in peace operations.

92

Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature on 4 November 1950, ETS 5 (entered into force 3 September 1953). 93 Cf. Bourgeois H’s presentation at the second Silent Leges Inter Arma? conference, see Lamaire et al. 2019, pp 208–210. 94 See for instance Rule 16.5, which states that managers and commanders must be held accountable in terms of performance regarding the exercise of their conduct and discipline functions.

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The thorough book review published by Vestner and Amoroso95 was welcomed by all four General Editors of the Leuven Manual. This book review includes suggestions and comments that will be taken into account during the preparatory work on a second edition of the Leuven Manual. Furthermore, it should be admitted that some of the footnotes in the Leuven Manual could benefit from a reference to more, or to more accurate sources.96

3.3 Authority 3.3.1 Introduction The Leuven Manual attempts to address all legal issues relevant to peace operations, “with a particular focus on those which required further research and clarification in doctrine, and where useful or necessary it offers policy recommendations, notably where the law is silent or unclear”.97 In that sense, it may differ from other contemporary expert panel manuals, which according to Petrov, instead of pointing out areas where new rules are needed, rebut the insufficiency claim by asserting that existing rules satisfactorily apply to the phenomena requiring regulation.98 The Leuven Manual is intended to provide an authoritative restatement of the applicable law and where relevant of so-called good practice in the planning and conduct of peace operations. The Leuven Manual has indeed flagged gaps or uncertainties in the law. For example, the Group of Experts who prepared the Leuven Manual recognizes that the issue of extraterritorial derogations from human rights obligations “is contentious and that it is undecided whether and when a peace force may legally derogate from otherwise applicable human rights obligations”.99 States seem to “be reluctant to accept the political costs of derogating from their human rights obligations” as no troop contributing country “has ever attempted to derogate from human rights treaties during peace operations”.100 Therefore, Rule 5.7 of the Leuven Manual stipulates that it applies only where such derogations are possible. The commentary adds that to avoid legal uncertainties, States Parties to a treaty should consider derogating as a group rather than unilaterally.101 As illustrated by this example, reaching consensus on a particular rule within the Group of Experts was not always easy. When making its legal analysis of this matter the group struggled. On the one hand, there is the 95

Vestner and Amoroso 2018. E.g. Gill et al. 2017, n 34, p 104. 97 Ibid., p xxx. 98 Petrov 2020, p 13. 99 Gill et al. 2017, p 88. 100 Ibid., p 86. 101 Gill et al. 2017, pp 85–88. 96

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textual interpretation of the relevant human rights provisions102 and the available jurisprudence103 with regard to the extraterritorial application of human rights obligations in case of external military operations.104 On the other hand, there is the reality of a uniform practice of troop contributing countries with regard to the question of derogations. The implications of the recently delivered European Court of Human Rights Grand Chamber Judgment in the Georgia v Russia No. 2 case will need to be appropriately considered in this regard.105 Authority can be the source of acceptance, but also the result of acceptance.106 Consequently, the authority of an expert panel manual has a starting point at some level, but it can grow over time as it receives more acceptance. The author of this chapter identifies various main factors that influence the degree of authority of the Leuven Manual: (1) the adoption of both black letter rules and commentary by consensus; (2) geographical representation; (3) the way the Leuven Manual was published, welcomed and reviewed; (4) the expertise of the members of the Group of Experts and the quality of their research; and (5) the degree to which the Leuven Manual is and will be used as a reference work including, perhaps particularly, by practitioners.

3.3.2 Expert Consensus The Leuven Manual’s initial authority rests inter alia “in its bringing the relevant law and associated good practices together in a comprehensive, structured and accessible form of rules to which all members of the Group of Experts have subscribed”.107 In Vestner and Amoroso’s view, the fact that the final version was adopted by consensus gives the Leuven Manual a high level of authority. They add that this methodology was certainly necessary for the achievement of a proper restatement of the norms.108 This output is intended to be of assistance to States and international organisations involved in planning and conducting peace operations as well as to academic research and teaching. However, in no sense did the experts involved in the Leuven Manual project or the Society as the endorsing sponsor intend to elevate themselves above States by telling States what the law is. It is well understood that States and 102

E.g. International Covenant on Civil and Political Rights, opened for signature on 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976), Article 4(1). 103 Especially from the European Court of Human Rights. 104 See e.g. ECtHR, Al-Skeini et al./United Kingdom, Grand Chamber Judgment, 7 July 2011, Application No. 55721/07; ECtHR, Al-Jedda/United Kingdom, Grand Chamber Judgment, 7 July 2011, Application No. 27021/08; and ECtHR, Jaloud/the Netherlands, Grand Chamber Judgment, 20 November 2014, Application No. 44708/08. 105 ECtHR, Georgia/Russia (II), Grand Chamber Judgment, 21 January 2021, Application No. 38263/08. 106 Petrov 2020, p 176. 107 Gill et al. 2017, p xxx. 108 Vestner and Amoroso 2018, p 430.

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international organisations are not obliged to take cognisance of the Leuven Manual, and that they are entitled to disregard or reject the rules proposed. They are entitled to consider them to be wrong or inaccurate. They are not, however, entitled to disregard the underlying law. A key purpose of the Leuven Manual is to render that law more accessible and, thus, to improve the prospect that the applicable law will actually be complied with. Nevertheless, the Leuven Manual remains a doctrinal contribution and States and international organisations are only bound by lex lata that the Leuven Manual attempted to describe taking into account the studied practice of the various peace operations. Indeed, under Article 38(1) of the Statute of the International Court of Justice, expert panel manuals are not themselves creative of international law. They may however be a persuasive guide to the content of the international law applicable, in the case of the Leuven Manual, to peace operations.

3.3.3 Geographical Representation A fair question is whether the outcome of the Leuven Manual project is sufficiently representative in terms of geographical representation. The author would claim it is for the reasons that follow, but he also admits that efforts should be made to strive for an improved balance in the context of the work on a second edition of the Leuven Manual. As explained above, the International Society for Military Law and the Law of War was the initiator and sponsor of the Leuven Manual project, its academic events109 were used to stimulate the research of the Group of Experts, its Boards endorsed the end-result and the Society owns the Leuven Manual. The Society is a geographically diversified association with separate legal personality established in 1956. It is a nonpolitical and non-governmental association of persons admitted on the basis of their competence in the field of military law, international humanitarian law and/or the law of peace operations. These members speak strictly for themselves alone and with complete freedom.110 This applies equally if they are government officials.111 They come from all corners of the world, for instance around the time of the start of the project they came from countries like Armenia, Burundi, Colombia, Côte d’Ivoire, the DRC, Japan, Sri Lanka, Turkey, Thailand, UAE and Uzbekistan, to name but a few. The Society is also an umbrella organisation for 23 National Groups, including in Argentina, Brazil, China, France, the United Kingdom and the United States.112 At 109

In Cameroon, Canada, China, the Czech Republic, Germany, Italy and Peru. Article 7 of the Statutes of the Society. See International Society for Military Law and the Law of War https://www.ismllw.org/wp-content/uploads/2018/12/STATUTES.pdf. Accessed 9 January 2021. 111 Many members are military and civilian legal advisors, judges and prosecutors. The academic community is also well represented in the Society’s membership. See International Society for Military Law and the Law of War https://www.ismllw.org/about-us/. Accessed 9 January 2021. 112 For the full list of National Groups, see International Society for Military Law and the Law of War https://www.ismllw.org/national-groups/. Accessed 9 January 2021. 110

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the time of publication of the Leuven Manual, the members of the Society’s Board of Directors, which endorsed the Leuven Manual, came from Australia, Austria, Belarus, Belgium, Brazil, Bulgaria, Cameroon, Canada, Chile, China, Colombia, the Czech Republic, Denmark, Finland, France, Germany, Greece, India, Ireland, Italy, the Republic of Korea, Latvia, the Netherlands, New Zealand, Norway, Peru, Romania, Spain, Sweden, Switzerland, Tunisia, the United Kingdom and the United States.113 While it is true that many other office holders of the Society currently come from Western countries,114 the Board of Directors is the Society’s general directing body.115 Considering the composition of the Group of Experts of the Leuven Manual project, one could criticise that out of twenty-three experts twenty came from European countries, one came from Australia and two came from Africa.116 Apart from the role the Society played as described above, this situation was surely also mitigated by the interaction with the Observers from the United Nations and the ICRC, who by definition represented their organisations, with the Observers from the African Union, as well as with the Indian member117 of the Advisory Board. The 2015 expert meeting held in Yaoundé also offered an excellent opportunity for the members of the Group of Experts & Observers to engage with African experts who attended this event, hosted at the Higher International War College of Cameroon, whether as speakers or participants.118 If the Board of Directors of the Society decides that for the second edition of the Leuven Manual the Group of Experts is to be more geographically balanced, it will have to take into account the budgetary consequences such a decision may have, especially in terms of travel expenses of the experts.

3.3.4 The Way the Leuven Manual Was Published, Welcomed and Reviewed Cambridge University Press, a first class119 peer reviewed publisher, accepted the Society’s offer to publish the Leuven Manual. This publication took place in 113

Gill et al. 2017, pp 350–352. International Society for Military Law and the Law of War https://www.ismllw.org/about-us/off ice-holders/. Accessed 9 January 2021. 115 Article 22 of the Statutes of the Society. See International Society for Military Law and the Law of War https://www.ismllw.org/wp-content/uploads/2018/12/STATUTES.pdf. Accessed 9 January 2021. 116 Petrov 2020, p 70. 117 Lieutenant-General (ret.) Abhijit Guha. 118 For the programme of this event, see International Society for Military Law and the Law of War (2015) https://www.ismllw.org/wp-content/uploads/2018/11/2015_06_28_younde_prog-EN. pdf. Accessed 6 April 2021. 119 See e.g. Ranking List of Academic Book Publishers https://www.eduhk.hk/include_n/getric hfile.php?key=95030d9da8144788e3752da05358f071&secid=50424&filename=secstaffcorner/ research_doc/Compiled_Publisher_List.pdf. Accessed 11 January 2021. 114

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December 2017 and the Leuven Manual was launched in February 2018 in New York in the presence of three UN Undersecretaries-General as mentioned above. Despite the fact that all three of them rightly emphasised that the Leuven Manual is not a UN publication, their personal participation in this launch event and the words of appreciation for the work expressed by them in their speeches confirm the interest in the Leuven Manual at the higher level within the UN. This should not come as a surprise, as throughout the Leuven Manual project the UN Observers gave invaluable comments and inputs, albeit in their personal capacity,120 and these comments and inputs were carefully taken into account. A similar observation can be made with respect to the special event hosted at NATO Headquarters in November 2018. As mentioned above, NATO’s Deputy SecretaryGeneral attended this event. In her welcoming remarks she expressed her appreciation for the work that culminated in the publication of the Leuven Manual. Also at other events where the Leuven Manual was presented (see above), the audience showed a keen interest in its publication. In 2018, Vestner and Amoroso described the Leuven Manual in their book review published in the International Review of the Red Cross as belonging “to the class of publications that deserve a prominent place in every bookshelf on peace operations and public international law”. In their view it is “solid and balanced, relying on robust research and an editorial process that involves input from many stakeholders”.121

3.3.5 The Expertise of the Members of the Group of Experts and the Quality of Their Research The Oxford Bibliographies opine that the Leuven Manual is written by leading scholars and practitioners.122 Given the scope and practice-oriented character of the manual the availability of operational experience and military expertise on the side of various practitioners within the Group of Experts123 was deemed essential by the Society, despite the fact that also the Observers and members of the Advisory Board brought in operational experience. Throughout the project, the stakeholders never questioned the expertise of the scholars and practitioners involved in the Group of Experts. On the contrary, there was a keen interest in their work. Vestner and Amoroso come to the conclusion that the Leuven Manual does not have any major flaws in its legal findings.124 The Leuven Manual represents the result of six years of scrupulous research, drafting and interaction with relevant 120

Gill et al. 2017, p xxxiii. Vestner and Amoroso 2018, pp 429–430. 122 Kondoch 2018. 123 E.g. the author of this chapter has seen operational service as a legal advisor in Afghanistan (ISAF) and Lebanon (UNIFIL). He is also a trained reserve officer (OF-3) of the Belgian armed forces. 124 Vestner and Amoroso 2018, p 432. 121

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stakeholders. The latter appear to be happy with the end-result. As explained above, the version of the Leuven Manual published in December 2017 will not be the final word as the Leuven Manual will be a living document, which can be updated and improved through future editions.

3.3.6 The Degree to Which the Leuven Manual Is and Will Be Used as a Reference Work While the Leuven Manual is still a relatively new publication, it seems that it has already been cited in various academic writings.125 The author of this chapter is also aware of a few instances where the Leuven Manual was used for a course related to the law of peace operations or of an expression of interest to do so, and sometimes the manual is also referred to as recommended reading.126 On the other hand, to date it has not been used as course materials on a large scale. The reasons for this may include that so far there has not been any specific effort to promote the use of the Leuven Manual for that purpose, as well as that so far the Society was not able to implement its ambition to develop applied course materials. Well over 1,000 copies of the manual have been distributed throughout the world, including among many legal practitioners belonging to the peacekeeping community. This effort of distribution will continue over the coming years, notably through the Society’s events.127 Obviously, the impact of this distribution is difficult to measure. However, according to Vestner and Amoroso, the Leuven Manual allows for a better understanding of the legal environment of peace operations, and as such, it will in their view enable better decision-making and become an irreplaceable support for the success of peace operations.128 So far, the Leuven Manual could mainly be distributed in its English version. With the 2021 publication of the French version of the Leuven Manual it is expected 125

See e.g. Cambridge University Press (2021) https://www.cambridge.org/core/books/leuvenmanual-on-the-international-law-applicable-to-peace-operations/2EE56DA5473FF72F2FA6A 28E1E4E0DF0. Accessed 11 January 2021; Semantic Scholar (2021) https://www.semantics cholar.org/paper/Leuven-Manual-on-the-International-Law-Applicable-Gill-Fleck/bdbd16db4285 a183f312259e4e727a68286d7847#citing-papers. Accessed 11 January 2021; Maganza B (2018) Escalation of Violence in Bangui: Has MINUSCA Become Party to a Conflict in CAR, and What Would That Mean? http://opiniojuris.org/2018/04/16/escalation-of-violence-in-bangui-hasminusca-become-party-to-a-conflict-in-car-and-what-would-that-mean/. Accessed 11 January 2021; Center of Excellence for Stability Police Units (2019) https://www.coespu.org/articles/unpeace-operations-and-international-law-evolution-through-continuity. Accessed 11 January 2021; Bourgeois 2020; and Oswald et al. 2019. 126 See e.g. Irish Centre for Human Rights (2020) International Peace Operations, Course Outline. https://www.nuigalway.ie/media/irishcentreforhumanrights/files/International-Peace-Ope ration-LW469.doc. Accessed 11 January 2021. 127 Note that due to the COVID-19 pandemic all scheduled in situ conferences of the Society were postponed to 2021. 128 Vestner and Amoroso 2018, p 436.

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that a new boost will be given to the dissemination of the manual in general, whilst opening it up to the francophone peacekeeping community and academic world. The same could happen when additional language versions will be published. So far as the author is aware, national and international courts and tribunals have not yet referred to the Leuven Manual.

3.4 Conclusion Like other expert panel manuals, the Leuven Manual on the International Law Applicable to Peace Operations does not make law. It offers itself to the peacekeeping and academic communities as a sui generis expert panel manual. The Leuven Manual is not a typical international humanitarian law manual. Despite its Chapter 6, which specifically deals with the applicability of international humanitarian law in peace operations, and despite the importance of international humanitarian law for the treatment of several other topics, such as detention in peace operations covered by its Chapter 13, the Leuven Manual covers all rules of international law applicable to peace operations conducted by the UN and/or regional organisations and arrangements. Contrary to other expert panel manuals, the Leuven Manual project was characterised by the implication of the general directing body of an international professional association, in casu the International Society for Military Law and the Law of War. This organisation’s academic events (with broader and geographically diverse participation) were also used to stimulate the project research. The level of engagement with the stakeholders is unprecedented for an expert panel manual. The Leuven Manual was broadly supported and welcomed at high levels, including by three UN Undersecretaries-General. Contrary to many other expert panel manuals, the expert consensus was general and without exception, and related not only to the black letter rules but also to the commentary. Another difference is that the Leuven Manual does contain good practice rules, thus enhancing its practical utility. The Leuven Manual is the result of the ambition to engage with all stakeholders. This dialogue with stakeholders will also be pursued in the future, as the Leuven Manual will remain a living product of the International Society for Military Law and the Law of War, ready for improvement or amendment through subsequent editions. In the same vein, the readers of this chapter and the Leuven Manual are invited to send their comments, feedback and suggestions to the author.

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References Articles, Books and Other Documents Bartels R, van den Boogaard JC, Ducheine PAL, Pouw E, Voetelink J (2021) Military Operations and the Notion of Control Under International Law – Liber Amicorum Terry D. Gill. T.M.C. Asser Press, The Hague Beruto GL (2008) International Humanitarian Law, Human Rights and Peace Operations. International Institute of Humanitarian Law, San Remo Bothe M (2018) UN Peace Operations. In: Fleck D (ed) The Handbook of the Law of Visiting Forces, 2nd edn. Oxford University Press, Oxford, pp 50–74 Bourgeois H (2020) All necessary Means to protect Civilians. Journal of International Peacekeeping 24(1–2): 53–114 Bowett DW (1964) United Nations Peace Forces: A Legal Study of United Nations Practice. Stevens and Sons, London Deckmyn A, Denti D, O’Halloran O, Perchoc P (eds) (2012) International Organisations’ Involvement in Peace Operations: Applicable Legal Framework and the Issue of Responsibility. In: Collegium. Vol. 42, College of Europe, Bruges, pp 1–179 Ferraro T (2015) The ICRC’s legal position on the notion of armed conflict involving foreign intervention and on determining the IHL applicable to this type of conflict. International Review of the Red Cross. Vol. 97 (900): pp 1227–1252 Fleck D (2013) Handbook of International Humanitarian Law, 3rd edn. Oxford University Press, Oxford Fleck D (ed) (2018) The Handbook of the Law of Visiting Forces, 2nd edn. Oxford University Press, Oxford Gill TD (2019) Some Thoughts on the ICRC Support Based Approach. http://www.qil-qdi.org/ some-thoughts-on-the-icrc-support-based-approach/. Accessed 8 January 2021 Gill TD, Fleck D (eds) (2015) Handbook of the International Law of Military Operations, 2nd edn. Oxford University Press, Oxford Gill TD, Fleck D, Boothby WH, Vanheusden A (eds) (2017) Leuven Manual on the International Law Applicable to Peace Operations. Cambridge University Press, Cambridge Gill TD, Fleck D, Boothby WH, Vanheusden A (eds) (2021) Manuel de Leuven sur le Droit International Applicable aux Opérations de Paix. Bruylant, Brussels Gill TD, Léveillée JAM, Fleck D (2006) General Report. In: Horvat S (ed) Recueil XVII, The Rule of Law in Peace Operations. International Society for Military Law and the Law of War, Brussels, pp 108–157 ICRC (2013) Cyber Warfare and International Humanitarian Law: The ICRC’s Position. https://www.icrc.org/en/doc/assets/files/2013/130621-cyber-warfare-q-and-a-eng.pdf. Accessed 7 January 2021 Klappe B, Spijk JP, Vanheusden A (2021) Effective Command and Control in United Nations Peace Operations. In: Bartels R, van den Boogaard JC, Ducheine PAL, Pouw E, Voetelink J (eds) Military Operations and the Notion of Control Under International Law – Liber Amicorum Terry D. Gill. T.M.C. Asser Press, The Hague, pp 133–160 Kondoch B (2018) Normative Aspects of International Peacekeeping. In: Oxford Bibliographies. Oxford University Press, Oxford Koops J, MacQueen N, Tardy T, Williams PD (eds) (2015) The Oxford Handbook of United Nations Peacekeeping Operations. Oxford University Press, Oxford Lamaire M, Lambotte V, Letellier S, Van Holsbeeck C, Paquay H (2019) Report of the Second ‘Silent Legers Inter Arma?’ International Conference held in Bruges from 19 to 21 September 2018. In: Koutroulis V, Ruys T (eds) Military Law and the Law of War Review. Vol. 57 (1–2): pp 189–216

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Marchesi D, Van Holsbeeck C, Paquay H, Vanheusden A (2019). In: Koutroulis V, Ruys T (eds) Military Law and the Law of War Review 57 (3–4): pp 411–442 Mujezinovic Larsen K (2013) The Application of Human Rights Law in Peace Operations. In: Horvat S, Benatar M (eds) Recueil XIX, Legal Interoperability and Ensuring Observance of the Law Applicable in Multinational Deployments. International Society for Military Law and the Law of War, Brussels, pp 324–335 Naert F (2013) The Application of Human Rights Law in Peace Operations Comments. In: Horvat S, Benatar M (eds) Recueil XIX, Legal Interoperability and Ensuring Observance of the Law Applicable in Multinational Deployments. International Society for Military Law and the Law of War, Brussels, pp 336–344 Oswald B, Durham H, Bates A (eds) (2019) Documents on the Law of UN Peace Operations. 2nd edn. Oxford University Press, Oxford Petrov AO (2020) Expert Laws of War, Restating and Making Law in Expert Processes. Edward Elgar Publishing, Cheltenham Program on Humanitarian Policy and Conflict Research at Harvard University (2013) HPCR Manual on International Law Applicable to Air and Missile Warfare. Cambridge University Press, Cambridge Schmitt MN (2013) Tallinn Manual on the International Law Applicable to Cyber Warfare. Cambridge University Press, Cambridge Vanheusden A (2011) Report of the Beijing Conference on International Humanitarian Law and Peace Operations. In: Tondini M (ed) Military Law and the Law of War Review. Vol. 50 (3–4): pp 573–578 Vestner T, Amoroso AM (2018) Book Review – Leuven Manual on the International Law Applicable to Peace Operations. International Review of the Red Cross. Vol. 100 (1–2–3): pp 429–436 White ND (2015) Peacekeeping and International Law. In: Koops JA et al. (eds) The Oxford Handbook of United Nations Peacekeeping Operations. Oxford University Press, Oxford, pp 43–59

Cases European Court of Human Rights, Al-Skeini et al./United Kingdom, Grand Chamber Judgment, 7 July 2011, Application No. 55721/07 European Court of Human Rights, Al-Jedda/United Kingdom, Grand Chamber Judgment, 7 July 2011, Application No. 27021/08 European Court of Human Rights, Jaloud/the Netherlands, Grand Chamber Judgment, 20 November 2014, Application No. 44708/08 European Court of Human Rights, Georgia/Russia (II), Grand Chamber Judgment, 21 January 2021, Application No. 38263/08

Treaties Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature on 4 November 1950, ETS 5 (entered into force 3 September 1953) International Covenant on Civil and Political Rights, opened for signature on 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)

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Alfons Vanheusden is Assistant Secretary-General of the International Society for Military Law and the Law of War in Brussels, Belgium.

Part II

Other Articles

Chapter 4

Examining a Norm of Customary International Law that Criminalises the Intentional Use of Starvation of the Civilian Population as a Method of Warfare Jolanda Jackelien Andela Contents 4.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2 State of the Art . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3 Indispensable Ingredients of the Customary Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.1 State Practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.2 Opinio Juris Sive Necessitates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract The criminalisation of intentionally using starvation of civilians as a method of warfare has been laid down in the Rome Statute of the International Criminal Court as a matter of treaty law. The application of treaty law, however, is restricted and States in which current emergency situations of starvation are unfolding are often non-party States to the Rome Statute. To allow for accountability in such situations, this research seeks to contribute to the discussion whether the criminalisation of intentionally using starvation of civilians as a method of warfare could qualify as a rule of customary international law. As such, the provisions could apply to contemporary situations of intentional starvation—not on the basis of the Rome Statute, but on the basis that the content of those Rome Statute provisions have gained the status of customary international law. Ascertaining a rule of customary law conclusively may be hard to do. This chapter intends to offer a valuable contribution, relying on the International Law Commission’s draft conclusions on the identification of customary international law, and more particularly the valuable guidance it offers in relation to the identification of both opinio juris and general (State) practice. As such this chapter also aims to take part in the discussion on the identification of customary international law rules generally. In the process, the connection between J. J. Andela (B) Erasmus Graduate School of Law, Erasmus University Rotterdam, Rotterdam, The Netherlands e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2022 T. D. Gill et al. (eds.), Yearbook of International Humanitarian Law 2020, Yearbook of International Humanitarian Law 23, https://doi.org/10.1007/978-94-6265-491-4_4

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the customary IHL rule on the prohibition of using starvation of the civilian population on the one hand, and the framework of international criminal law on the other is explored. Keywords Intentional use of starvation · Criminalisation · Customary international law · State practice · Opinio juris sive necessitates · Prohibition

4.1 Introduction Starvation of a civilian population is by no means a new facet of warfare. Throughout history, food has often played a crucial role in situations of armed conflict.1 It was generally understood that starving the enemy population had great benefits. The 1863 Lieber Code for instance indicated that starvation which leads to the speedier subjection of the enemy would be lawful.2 Nevertheless, this perception has changed ever since the beginning of the 20th century. On various occasions, the use of starvation of the civilian population had been laid down as a violation of the laws and customs of war.3 Its use has become prohibited and under certain circumstances even triggers criminal responsibility. At the same time, however, its use seems to go hand in hand with great levels of impunity. Although the use of starvation of the civilian population has been criminalised in various binding instruments, so far, prosecutions of starvation at the international or national level remain remarkably low to absent.4 Partly, this might be the result of a possible jurisdiction gap, which will be the point of departure for this chapter. The criminalisation of the intentional use of starvation of the civilian population as a method of warfare has been laid down in treaty law, with the most famous 1

For instance, food access and food production have played central roles in the 1970s genocidal campaign of the Khmer Rouge in Cambodia and 1940s Hunger Plan in Nazi Germany. 2 Article 17 of the Lieber Code, 1963, reads: “War is not carried on by arms alone. It is lawful to starve the hostile belligerent, armed or unarmed, so that it leads to the speedier subjection of the enemy”. 3 Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties 1920, p 144; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, opened for signature 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978) (Additional Protocol I), Article 54; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, opened for signature 8 June 1977, 1125 UNTS 609 (entered into force 7 December 1978) (Additional Protocol II), Article 14; Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002) (Rome Statute), Article 8(2)(b)(xxv). 4 The two prosecutions in which starvation was part of the charges were conducted in Croatia and Ethiopia: District Court in Zadar Croatia, Public Prosecutor v. M.P. et al., Decision, 24 April 1997, Case No. K. 74/96 (M.P. et al.); Ethiopian Federal High Court, Special Prosecutor v. Col. Mengistu Hailamariam et al., Verdict, 12 December 2006, File No. 1/87 (Col. Mengistu Hailamariam et al.). See also Jordash et al. 2019, pp 849–879.

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example being the Rome Statute of the International Criminal Court (hereafter, Rome Statute).5 Nevertheless, jurisdiction flowing from treaty law is often restricted. Lack of prosecution grounds as a result of ratification gaps, temporal restrictions or vaguely defined provisions often leaves conduct unpunished. For that reason, customary international law becomes essential. The importance of determining whether a rule of customary international law exists lays in the possibility of prosecuting individuals responsible for such heinous acts, particularly in cases where treaty law does not provide grounds for jurisdiction.6 Whether the criminalisation of intentionally using starvation of the civilian population as a method of warfare constitutes a rule of customary international criminal law remains unclear. Following the International Law Commission’s position in its work on the identification of customary international law, it depends upon the traditional two element doctrine requiring both practice of States as well as a conviction that such practice be accepted as law.7 Nevertheless, these two elements are not always analysed when ascertaining a rule of customary international law. Some scholars have argued affirmatively that a rule of customary law exists on the criminalisation of intentionally using starvation of the civilian population.8 However, this conclusion is based on the assumption that there exists a customary rule prohibiting its conduct, and not on the basis that there exists both state practice and opinio juris for the criminalisation. Admittedly, uncertainty exists on how to analyse whether a rule constitutes a rule of customary international law. On various occasions, courts have simply stated whether or not a rule of custom exists, rather than analysing the two crucial components for the development of customary international law.9 Failing to acknowledge the importance of both elements and to systematically analyse them, can jeopardise the value of (customary) law. Although there might be various reasons why a rule on the criminalisation of intentional starvation techniques should exist, it is all the more important that an affirmative conclusion flows from objective legal analysis on the two constituent elements of customary international law so as to secure the legitimacy of the rule. For purposes of uncovering its potential customary nature, this chapter will look at state practice and opinio juris following the approach laid down in the draft conclusions on identification of customary international law of the International Law Commission. This chapter should not be understood as an attempt to conclusively decide whether a customary rule on the criminalisation exists, but should be regarded as a contribution to the discussion. Although an exhaustive analysis of each 5

Rome Statute, above n 3, Article 8(2)(b)(xxv). International Law Commission 2013, p 15. 7 International Law Commission 2018, pp 124–126. 8 D’Alessandra and Gillett 2019, pp 823–826.; Global Rights Compliance 2019, pp 1–2. 9 ICJ, Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), Judgment, 14 February 2002 (Arrest Warrant), ICJ Rep 3, para 58.; ICJ, Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Judgment, 24 May 2007 (Ahmadou Sadio Diallo), ICJ Rep 582, para 89.; ICJ, Dispute Regarding Navigational and Related Rights (Costa Rica v Nicaragua), Judgment, Seperate Opinion of Judge Sepúlveda-Amor, 13 July 2009 (Dispute Regarding Navigational and Related Rights), ICJ Rep 213, para 27. 6

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of the criteria for state practice and opinio juris goes beyond the scope of this chapter, certain observations can be made. Various sources will be examined to determine its weight for the existence of state practice and opinio juris. The chosen sources are examples which contribute to the possible rule of customary international law, but needless to say, are not the only sources that might demonstrate evidence of state practice and opinio juris for a criminalisation of the intentional use of starvation of the civilian population as a method of warfare.

4.2 State of the Art The crime of intentionally using starvation of civilians as a method of warfare has been laid down in the Statute of the International Criminal Court (ICC) and is binding upon 123 States Parties.10 Although this ratification record demonstrates broad acceptance of criminalising intentional starvation of civilians as a method of warfare, it does not institute universal jurisdiction for the crime as a matter of treaty law. More than one out of three States worldwide have not ratified the Rome Statute and are hence not bound by the jurisdiction of the ICC.11 Yet, Article 38 of the Vienna Convention on the Law of Treaties affirms that non-party States to a treaty can nevertheless be bound by similar norms found in customary international law. Although the application of the Rome Statute may be rejected as a matter of treaty law, its content would hence apply to the extent that it forms part of customary international law. A potential customary nature of the provisions might be of particular relevance to situations falling outside the scope of the Rome Statute as a result of ratification gaps, temporal restrictions or vaguely defined provisions.12 In current conflict situations, starvation as a method of warfare is often adopted within the territory of states not party to the ICC framework, while being committed by individuals who are no nationals of any of the States Parties.13 In such circumstances, the inapplicability of the Rome Statute together with an absence of intervention by the United Nations Security Council (UNSC) would not prevent the alleged perpetrator from being tried for these crimes, provided that it constitutes a rule of customary international law. Furthermore, if a State would become a State Party to the Rome Statute after the occurrence of starvation crimes within its territory, a situation brought before the Court regarding alleged crimes committed before the entry into force of the Rome Statute for that state, would not conflict with the nullum 10

The rule is binding in situations of international armed conflict. The criminalisation of intentionally using starvation of civilians as a method of warfare in situations of non-international armed conflict has been adopted on 6 December 2019 and awaits ratification by States Parties. 11 See e.g. 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 reads: “A treaty does not create either obligations or rights for a third State without its consent”. 12 International Law Commission 2013, p 15. 13 Food Security Information Network 2020, pp 1–26.

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crimen sine lege principle.14 Another situation in which the customary status of the provisions might be of importance is when the criminalisation of starvation is not included in the applicable treaty conferring jurisdiction to the judicial body. Most of the statutes of the international ad hoc criminal tribunals did not include provisions explicitly criminalising starvation.15 If a new ad hoc criminal tribunal were to be established to address core crime violations on the territory of states not party to the Rome Statute and a provision criminalising intentional starvation would once more be conspicuous by its absence, this would not prevent the prosecutor from including starvation in the list of charges. Further, the emergence of custom as a result of “extensive and virtually uniform” practice prevents States from withdrawing, once a rule of customary international law has emerged.16 It denies States a right to repudiate their compliance with the rule so as to shield alleged perpetrators from being brought before court. In the Continental Shelf judgment, the International Court of Justice argued that customary law norms, “by their very nature, must have equal force for all members of the international community, and cannot therefore be the subject of any right of unilateral exclusion exercisable at will by any one of them in its own favour”.17 Compared to treaty law, this feature of customary law hence provides for an additional layer of safeguard on the applicability of the provision. Nevertheless, to date, the customary nature of the Rome Statute provisions remains undecided.18 Various scholars have affirmatively argued that whilst the articles formally constitute treaty law, some of those provisions also reflect customary norms, either as a result of progressive development or as a result of codification of preexisting rules.19 Which provisions have obtained a customary status, is however, subject of discussion. As a consequence, the customary nature of the criminalisation of intentional starvation of civilians as a method of warfare as customary law remains uncertain. Admittedly, it has been claimed that a rule of customary law exists regarding the prohibition of starvation of civilians as a method of warfare in international humanitarian law (IHL).20 In 2005, the International Committee of the Red Cross (ICRC) has concluded that the prohibition has attained the status of customary international law. Although this conclusion is unreservedly promising and carries considerable weight coming from the committee which holds a status equivalent to that of an international

14

Rauter 2017, pp 61–66. See e.g. the statutes of the International Criminal Tribunals for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), the Special Court for Sierra Leone (SCSL), the Extraordinary African Chambers (EAC) and the Extraordinary Chambers in the Courts of Cambodia (ECCC). 16 Bradley and Gulati 2010, p 204; ICJ, North Sea Continental Shelf (Germany v Denmark), Judgment, 20 February 1969 (North Sea Continental Shelf case), ICJ Rep 3 para 74. 17 Ibid., para 63. 18 DeFalco 2017, p 1164. 19 Bantekas 2006, pp 124–125. 20 Henckaerts and Doswald-Beck 2005, pp 186–189. 15

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organisation and enjoys international legal personality,21 there are a few things to take into consideration when assessing the connection of this customary rule of IHL to the framework of international criminal law (ICL). First of all, it should be noted that this conclusion regards a prohibition on the use of starvation of civilians as a method of warfare and not a criminalisation of its use.22 Whereas IHL focuses on prohibiting certain conduct by the parties to the conflict, ICL focuses on the criminalisation of unlawful conduct that leads to individual criminal responsibility. Both fields of law have distinct objectives and require particular interpretation of their provisions. For instance, the prohibition rule has different addressees than the criminalisation rule. It might therefore seem logical that the existence of State practice for a rule of IHL prohibiting certain conduct of state actors (or non-state actors) does not simply imply state practice for the criminalisation of acts carried out by individuals in ICL. Hence, it must be asserted that an individual committing such violations of customary norms incurs, on the basis of custom, individual criminal responsibility.23 If not, it may be argued that these instruments only refer to norms applicable to States and other parties to a conflict, and that they do not give rise to crimes for which individuals may be tried.24 Thus, a customary rule establishing prohibited conduct does not necessarily imply the existence of a customary rule on the criminalisation of the same conduct. Further, a discrepancy exists between the customary IHL rule and the related Rome Statute provision. Whereas the Rome Statute has adopted the intentional use of starvation of civilians in its provisions, the ICRC simply mentions the use of starvation of the civilian population without any reference to intent.25 It is important to note that there may be factors other than intentional conduct that contribute to situations of starvation. In such case, the resulting starvations conditions do not necessarily imply criminal conduct. It would be questionable to argue that a violation of the prohibition rule in situations that go beyond intentional conduct, where starvation rather results from a failure to protect the civilian population from starvation conditions, would by definition trigger criminal responsibility. Assuming that all situations of starvation trigger individual criminal responsibility would widen the scope of ICL considerably and contradict the principle of legality. Last of all, the ICRC has argued that the customary norm on the prohibition of using starvation of civilians as a method of warfare derives from the existence of ample State practice. It has stated that, “State practice establishes this rule as a norm of customary international law applicable in both international and non-international

21

See e.g. ICTY, Prosecutor v. Blagoje Simic et al., Decision, 27 July 1999, Case No. ICTY-95-9 (Blagoje Simic et al.), para 35. 22 ICTY, Prosecutor v. Stanislav Gali´ c, Judgment, 30 November 2006, Case No. IT-98-29-A (Gali´c), para 83. 23 Ibid., para 83. 24 ICTR, Prosecutor v. Jean-Paul Akayesu, Judgment, 2 September 1998, Case No. ICTR-96-4 (Akayesu), para 611. 25 Henckaerts and Doswald-Beck 2005, pp 186–189.

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armed conflicts”.26 This would qualify as a one-element approach because it seems to imply that in case of sufficient State practice, opinio juris would be captured within that practice. Following this approach, there is no necessity to separately establish the existence of opinio juris.27 It is true that evidence of State practice can represent both the practice of a State as well as its opinio juris. However, it has to be established that a State’s practice is not merely the product of courtesy and habit.28 Accepting such one-element approach would make the subjective element impertinent for the existence of customary law, contradicting the Statute of the International Court of Justice which requires proof of the subjective element.29 As has been mentioned by the International Law Commission’s Special Rapporteur in the draft conclusion, “each element is to be separately ascertained. This requires an assessment of evidence for each element”.30 A separate assessment on the presence of opinio juris remains therefore crucial. Hence, although there may be an undeniable connection between prohibition and criminalisation, a customary rule on the prohibition of using starvation of the civilian population as a method of warfare imposed on States and other parties to the conflict does not equal a customary norm instituting individual criminal responsibility. Consequently, the next section will assess both State practice and opinio juris for the existence of a rule criminalising the intentional use of starvation of the civilian population.

4.3 Indispensable Ingredients of the Customary Rule To determine whether a rule of customary international law exists, it needs to be ascertained whether all the required criteria are fulfilled. The International Law Commission elaborated on this in its draft conclusions on the identification of customary international law by emphasising that, “to determine the existence and content of a rule of customary international law, it is necessary to ascertain whether there is a general practice that is accepted as law”.31 Accordingly, rules of customary international law require two criteria. The first criterion constitutes the existence of general practice by States, whereas the second criterion regards that States follow this practice out of belief that it constitutes a legal obligation. Hence, to identify the existence of a customary rule on the criminalisation of the intentional use of starvation of the

26

Ibid. Ibid., para xl. 28 Dumberry 2016, pp 313–314. 29 Article 38(1)(b) of the Statute of the International Court of Justice reads: “international custom, as evidence of a general practice accepted as law”. 30 International Law Commission 2018, pp 126–129. 31 Ibid., pp 124–126. See also Article 38(1)(b) of the Statute of the International Court of Justice which reads: “international custom, as evidence of a general practice accepted as law”. 27

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civilian population as a method of warfare, the presence of both elements must be ascertained.32 Therefore, the next section will encompass an assessment of each of the two constituent elements. It will first consider the existence of a general practice and will thereafter make an inquiry into whether such practice is accepted as law. Although evidence of State practice and acceptance as law together confirm the existence of a rule of custom, their conceptual differences call for two separate inquiries. This classical approach, as advocated by the International Law Commission, will be the basis for the assessment of both constituent elements in this chapter.

4.3.1 State Practice The first of the two constituent elements of customary international law regards State practice. State practice is also known as the objective element and depends on whether the general practice of states is “sufficiently widespread and representative, as well as consistent”.33 State practice of significance for the existence of a customary norm is generally to be found in the direct conduct of States. Behaviour, acts and omissions of States may all evidence the tendency of States to criminalise the intentional use of starvation of the civilian population as a method of warfare. Next to that, the practice of international organisations such as the UNSC might in some instances also qualify as State practice.34 International organisations, set up by States, are often given mandate to carry out functions on behalf of the States. Conduct as a result of such mandate may arguably be equated with the practice of the member States.35 Hence, an assessment will be made of State practice resulting from direct conduct of States as well as from indirect conduct of States.

4.3.1.1

State Practice Resulting from States’ Practice

The first category of State practice will regard the direct conduct of States attesting to the alleged rule of customary law.36 Following the approach of the International Law Commission in its draft conclusions, evidence of such State practice may, among others, be found in the legislation of States that have enacted statutes regarding the criminalisation of its use both on a domestic and an international level, as well as in cases before national courts confronted with the question whether its use is to be

32

Ibid., pp 126–129. Ibid., pp 135–138. 34 Ibid., pp 130–132. 35 Odermatt 2017, pp 499–503. 36 Luban et al. 2019, pp 44–45. 33

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criminalised.37 This section will assess the Rome Statute, domestic criminal codes and cases brought before national courts. Rome Statute The first example of State practice criminalising the intentional use of starvation of the civilian population as a method of warfare is the Rome Statute of the ICC.38 Although, in and of itself, a treaty cannot demonstrate the existence of a rule of customary international law, it “may have an important role to play in recording and defining rules deriving from custom, or indeed in developing them”.39 The Rome Statute regards one of the most relevant examples of State practice criminalising the intentional use of starvation of the civilian population because of a combination of three factors. First, the Rome Statute codifies the precise scope of the crime under examination in this chapter. Indeed, Article 8(2)(b)(xxv) lists: “intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions”. Second, besides emphasising that the intentional use of starvation of the civilian population is prohibited, the Rome Statute also specifies that its use will be criminalised as a war crime in international armed conflicts and that a violation of the provisions triggers individual criminal responsibility. Third, the Rome Statute constitutes an international agreement between numerous States.40 Currently, the Statute has reached 123 States Parties.41 Through ratification, these States have each accepted to be bound by all rules laid down in the Statute, including Article 8(2)(b)(xxv). The fact that so many States worldwide have willingly bound themselves to the provisions may be of importance for the criteria of sufficiently widespread and representative practice. As has been contended by the ICC in its case against the Republic of Malawi, the existence of widespread practice may depend on the weight of the State practice.42 The Pre-Trial Chamber demonstrated the existence of widespread recognition by considering the weight of State practice, pointing at the amount of 120 States Parties at that time. The fact that currently 123 States have ratified the Rome Statute would carry sufficient weight following the same approach. Indeed, the fact that 123 States worldwide, including all States of South America, nearly all States of Europe, the majority of Oceania and close to half of Africa, 37

International Law Commission 2018, pp 126–129.; ICJ, Jurisdictional Immunities of the State (Germany v. Italy), Judgment, 3 February 2012 (Jurisdictional Immunities of the State), ICJ Rep 99, para 55. 38 Rome Statute, above n 4, Article 8(2)(b)(xxv); International Law Commission 2018, pp 143–146. 39 ICJ, Continental Shelf (Libyan Arab Jamahiriya v. Malta), Judgment, 3 June 1985 (Continental Shelf ), [1985] ICJ Rep 13 para 27; Bantekas 2006, pp 124–125. 40 International Law Commission 2018, pp 143–146. 41 International Criminal Court (2020) The States Parties to the Rome Statute. https://asp.icc-cpi. int/en_menus/asp/states%20parties/pages/the%20states%20parties%20to%20the%20rome%20s tatute.aspx. Accessed 7 October 2020. 42 ICC, Prosecutor v. Omar Hassan Ahmad Al Bashir, Corrigendum to the Decision Pursuant to Article 87(7) of the Rome Statute, 13 December 2011, Case No. ICC-02/05-01/09 (Al Bashir), para 40.

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have willingly accepted to be bound by the Statute, and hence Article 8(2)(b)(xxv), arguably demonstrates widespread and representative enactment.43 Furthermore, the scope of the intentional use of starvation of the civilian population has received special attention during the eighteenth session of the Assembly of States Parties to the Rome Statute.44 An amendment to the Rome Statute extending the war crime of intentional starvation also to situations of non-international armed conflict has unanimously been adopted by all 123 States Parties. This unanimously adopted amendment signals a widespread conviction that no excuse ever exists for the intentional use of starvation of the civilian population regardless of the classification of the armed conflict and, when used as a method of warfare, merits individual criminal responsibility. Domestic Criminal Codes The second type of evidence demonstrating State practice for the criminalisation of the intentional use of starvation regards the domestic criminal codes of States. The adoption of legal provisions criminalising starvation crimes enjoys extensive incorporation into national criminal codes.45 A multitude of States have adopted national legislation classifying starvation crimes as meriting individual criminal responsibility and may hence prosecute alleged perpetrators before their domestic courts. The way in which States have criminalised starvation strategies can be deduced to three different manners. First, a great number of States have passed legislation explicitly criminalising the conduct of starving civilians as a method of warfare. Direct reference to the scope of the crime can be found in the criminal codes. Most of the States which have included such direct reference have criminalised its conduct irrespective of the type of armed conflict, including both international armed conflicts and internal armed conflicts.46 Some others have criminalised its conduct specifically 43

International Law Commission 2018, pp 135–138. International Criminal Court (2019) Resolution on amendments to Article 8 of the Rome Statute of the International Criminal Court (2019) ICC-ASP/18/Res.5, pp 1–2. 45 Henckaerts and Doswald-Beck 2005, p 186. 46 See e.g., Austria (Criminal Code of the Republic of Austria 1974, amended 2019, Para 321(e)(1)(9)), Belgium (Criminal Code of the Kingdom of Belgium 1867, as of 2018, Article 136 quarter 10), Bosnia and Herzegovina (Criminal Code of Bosnia and Herzegovina 2003, amended 2018, Article 173(1)(f)), Cambodia (Criminal Code of Kingdom of Cambodia 2009, Article 194(4)), Croatia (Criminal Code of the Republic of Croatia 2011, Article 91(2)(25)), Ethiopia (Criminal Code of the Federal Democratic Republic of Ethiopia 2004. Article 270(b)), Germany (Code of Crimes against International Law of the Federal Republic of Germany 2002, Para 11(1)(5)), Ivory Coast (Penal Code of the Republic of the Ivory Coast 1981, amended 1998, Article 138(2)), Korea (ICC Crimes Act of the Republic of Korea 2007, Article 13(5)), Netherlands (International Crimes Act of the Kingdom of the Netherlands 2003, Article 6(3)(m)), North Macedonia (Criminal Code of the Republic of North Macedonia 2009, amended 2018, (Article 404(1)), Norway (Penal Code of the Kingdom of Norway 1902, amended 2020, Section 106(b)), Peru (Military Criminal Police Code of the Republic of Peru 2010, Article 91(5)), Portugal (Law No. 31/2004 adapting Portuguese criminal legislation to the Statute of the International Criminal Court 2004, Article 11(f)), Romania (Criminal Code of the Republic of Romania 2009, amended 2017, Article 443(1)(e)), Rwanda (Law No. 33n bis/2003 repressing the Crime of Genocide, Crimes Against Humanity and War Crimes of the Republic of Rwanda 2003, Article 10(9)), Serbia (Criminal Code of the Republic of Serbia 44

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in situations of international armed conflict.47 The fact that some States have enacted legislation specifically in situations of international armed conflict should not be interpreted as practice excluding criminalisation in situations of non-international armed conflicts. The general reluctance of States to enhance specific norms relating to non-international armed conflicts on an international level has in turn led States not to legislate easily on the matter in their domestic legal systems. As such, States have often constrained themselves to criminal provisions in general or to situations of international armed conflicts.48 Second, there are also States which provide accountability for the intentional use of starvation of the civilian population by criminalising breaches of certain international agreements to which the State is bound.49 These international agreements include, but are not limited to, the Rome Statute and the Additional Protocols to the Geneva Conventions. Third, again other States have adopted legislation criminalising the use of food as a means to an end. Although linguistically speaking, the provisions do not equal the intentional use of starvation as a method of warfare, the intentional use of starvation is often covered by the wide scope of these provisions. Examples of such provisions include—using famine which has arisen among civilians in a way of conducting military operations, using hunger among the civilian population as a method of warfare, maliciously killing non-combatants by starvation, preventing civilians from receiving foodstuffs, and threatening death by starvation.50 2005, amended 2012, Article 372(1)), Spain (Criminal Code of the Kingdom of Spain 1995, as of 2013, Article 612(8)), Sweden (Act on Criminal Responsibility for Genocide, Crimes against Humanity and War Crime of the Kingdom of Sweden 2014, Section 9(8)), The Philippines (Act Defining and Penalizing Crimes Against International Humanitarian Law of the Republic of the Philippines 2009, Section 4(c)(21)), Uruguay (Law on Cooperation with the ICC of the Oriental Republic of Uruguay 2006, Article 26(3)(33)), Yugoslavia (Penal Code of the Socialist Federal Republic of Yugoslavia 1976, amended 2001, Article 142(1)). 47 See e.g., Australia (Criminal Code Act of the Commonwealth of Australia 1995, amended 2007, Article 268.67(1)(a)(i)), Burundi (Penal Code of the Republic of Burundi 2009, Article 198(2)(z)), France (Penal Code of the French Republic 1992, amended 2010, Article 461(25)), Iraq (Law of the Supreme Iraqi Criminal Tribunal of the Republic of Iraq 2005, Article 13(2)(y)), Mali (Penal Code of the Republic of Mali 2001, Article 31(i)(30)), Slovenia (Criminal Code of the Republic of Slovenia 2008, Article 102(2)), South Africa (International Criminal Court Act of the Republic of South Africa 2002, Article 8(2)(b)(xxv)). 48 ICTY, Prosecutor v. Hadžihasanovi´ c, Alagi´c and Kubura, Decision on Joint Challenge to Jurisdiction, 12 November 2002, Case No. IT-01-47-PT (Hadžihasanovi´c, Alagi´c and Kubura), para 165. 49 See e.g., Canada (Crimes Against Humanity and War Crimes Act of Canada 2000, amended 2019, Section 4(1) and (4)), Congo (War Crimes and Crimes against Humanity Act of the Democratic Republic of Congo 1998, Article 4), Denmark (Military Penal Code of the Kingdom of Denmark 2005, Para 36(2)), Georgia (Criminal Code of Georgia 1999, amended 2019, Article 413(d)), Ireland (Geneva Conventions (Amendment) Act of the Republic of Ireland 1962, amended 1998, Article 4(1) and (4)), New Zealand (International Crimes and International Criminal Court Act of New Zealand 2000, Article 11(2)), United Kingdom (International Criminal Court Act of the United Kingdom of Great Britain and Northern Ireland 2001, Article 50(1)). 50 See e.g., Azerbaijan (Criminal Code of the Azerbaijan Republic 1999, Article 116(4)), Belarus (Penal Code of the Republic of Belarus 1999, Article 136(4)), China (Law Governing the Trial of War Criminals of the People’s Republic of China 1946, Article 3(3)), Finland (Criminal Code of

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The extensive list of criminal codes which have incorporated such provisions demonstrates the existence of widespread and representative practice in the form of national legislation. Arguably there might be no proof more indicative of State practice than the adoption of national legislation directly criminalising starvation crimes and triggering individual criminal responsibility for such violation. Judgments of National Courts Following States’ implementation of national legislation criminalising the intentional use of starvation of the civilian population, subsequent evidence of State practice would regard criminal proceedings before national courts following violations of the enacted norm. Indeed, two cases of the modern era have prosecuted starvation as a distinct crime, both of which on a national level.51 These two cases concern cases brought before domestic courts in Croatia and Ethiopia. In the Periši´c and Others case, the district court in Zadar convicted 19 persons of war crimes committed in the city of Zadar and its surroundings in violation of, among others, Article 14 of Additional Protocol II as incorporated in Croatia’s Criminal Code—prohibiting the starvation of civilians as a method of combat—for their roles in the ordering of the shelling of the city.52 In the Mengistu and Others case, the defendants were accused of placing members of different political groups under inhumane living conditions without food supplies and medication, endangering their lives and ultimately resulting in their disappearance in violation of the prohibition on genocide, as laid down in Article 281(c) of the 1957 Ethiopian Penal Code.53 Although limited to two, these cases demonstrate how States, having faced a situation of man-made starvation, regard this conduct as warranting criminal proceedings. It further evidences the incentive of States to follow through on the enactment of the adopted criminalisation provisions laid down in domestic legislation.

4.3.1.2

State Practice Resulting from the Practice of International Organisations

In some cases, practice of international organisations may also attest to supposed rules of customary international law.54 International organisations, set up by States, oftentimes are given mandate to carry out specific duties on behalf of the States. The conduct undertaken by the international organisation as a result of this mandate can in certain cases be considered conduct of States, and may hence contribute to the Republic of Finland 1889, amended 2015, Chapter 11, Section 5(3)), Lithuania (Criminal Code of the Republic of Lithuania 2000, amended 2017, Article 103(1)). 51 Jordash et al. 2019, p 849. 52 District Court in Zadar Croatia, Public Prosecutor v. M.P. et al., Decision, 24 April 1997, Case No. K. 74/96 (M.P. et al.); Ethiopian Federal High Court, Special Prosecutor v. Col. Mengistu Hailamariam et al., Verdict, 12 December 2006, File No. 1/87 (Col. Mengistu Hailamariam et al.). 53 Aneme 2009, p 1, 6. 54 International Law Commission 2018, pp 130–132; Odermatt 2017, pp 499–503.

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the development of a rule of customary international law. This section will assess Resolution 2417 of the UNSC on the intersection between food and conflict. UNSC Resolution 2417 In 2018, the UNSC unanimously adopted a draft resolution regarding the undeniable connection between armed conflict and food insecurity.55 Resolution 2417 condemns the use of starvation as a method of combat and underlines that it may constitute a war crime, potentially triggering criminalisation.56 It encourages the adoption of measures on a national level to ensure accountability for the use of starvation of civilians as a method of warfare. The focus on criminal measures is referred to in para 10 in which the Council strongly urges States to conduct domestic investigations and to take action against the individuals allegedly responsible, which goes beyond a mere authorisation.57 Paragraph 10 can be read as an incitement for States to operationalise their domestic criminal systems so as to investigate, criminalise and prosecute the use of starvation as a method of warfare. This translates into establishing criminal responsibility under States’ domestic legislation where this has not been done so far. The draft Resolution had been submitted by a group of States consisting of Côte d’Ivoire, France, Kuwait, the Netherlands, Peru, Poland, Sweden, the United Kingdom of Great Britain and Northern Ireland and United States of America, and with 15 votes in favour,58 was adopted unanimously by all member States of the UNSC.59 The fact that all UNSC member States, including China, France, Russia, the United Kingdom as well as the United States of America, on behalf of the entire international community, have voted in favour of this Resolution being adopted, brings forward a strong contribution to the evidence of widespread and representative practice. Upon ratification of the UN Charter, member States have conferred exclusive competences to the UN and its organs, including the UNSC, to allow it to exercise some of the public power of the member States.60 In this line of thought, the practice of the UNSC to adopt a draft resolution on behalf of the international community may arguably be equated with the practice of the UN member States, constituting almost all States in the world, and thereby fulfilling the criterion of widespread and representative State practice. Moreover, as the Resolution makes no distinction between the categorisations of armed conflict, it may encourage member States of the Rome Statute to ratify the 55

UN Security Council (2018) Resolution 2417 (2018), UN Doc S/RES/2417, p 3; UN Security Council (2018) Verbatim Record on Resolution 2417 (2018), UN Doc S/PV.8267, pp 2–4. 56 UN Security Council (2018) Resolution 2417 (2018), UN Doc S/RES/2417, p 2. 57 Ibid., p 4. 58 Bolivia (Plurinational State of), China, Côte d’Ivoire, Equatorial Guinea, Ethiopia, France, Kazakhstan, Kuwait, Netherlands, Peru, Poland, Russian Federation, Sweden, United Kingdom of Great Britain and Northern Ireland, United States of America. 59 UN Security Council (2018) Verbatim Record on Resolution 2417 (2018), UN Doc S/PV.8267, pp 2–4. 60 Charter of the United Nations, opened for signature 26 June 1945, 1 UNTS XVI (entered into force 24 October 1945) (UN Charter).

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adopted amendment extending the war crime of the intentional use of starvation also to situations of non-international armed conflict. The question whether the examples of States’ practice demonstrate the second criterion, namely the existence of consistency, depends on whether a pattern of behaviour can be discerned.61 Taking all examples together, it can be noted that generally States which have adopted criminal provisions in one way or the other, have undertaken steps in the same line of thought by either adopting the crime in their criminal codes, ratifying the Rome Statute, voting in favour of resolutions of the UNSC or perhaps prosecuting alleged perpetrators, which evidences a level of consistency for this practice. Nevertheless, a distinction between the use of starvation of civilians in situations of international and situations of non-international armed conflict seems to still hold true. Although many States may have adopted the crime in their national legislation, various States regard these acts as war crimes triggering criminal responsibility only when committed in situations of international armed conflict. By specifying its application only in situations of international armed conflict, the evidence of State practice is of particular interest for the conduct in those types of situations. However, the reluctance of States to adopt the criminalisation provision in situations of internal armed conflict should not be interpreted as excluding criminalisation in those situations, but should be rather understood as part of a general pattern by States to refrain from legislating regarding situations of non-international armed conflict.

4.3.2 Opinio Juris Sive Necessitates The second of the two constituent elements of customary international law regards opinio juris sive necessitates, better known as opinio juris. Opinio juris is also referred to as the subjective or psychological element and depends on whether the general practice of States is “accepted as law”.62 The practice of criminalising the intentional use of starvation of the civilian population needs to be undertaken with a sense of legal obligation, and not because of mere usage or habit. Similar to state practice, evidence of opinio juris of the rule which criminalises the intentional use of starvation of the civilian population as a method of warfare may be found in direct manifestations of state behaviour as well as in indirect manifestations.63 Hence, this section will examine evidence of opinio juris stemming from both types of manifestations.

61

International Law Commission 2018, pp 135–138. Article 38(1)(b) of the Statute of the International Court of Justice reads: “international custom, as evidence of a general practice accepted as law”. 63 Ibid., pp 140–142. 62

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Opinio Juris Resulting from Direct Evidence of Acceptance as Law

The first category arguably demonstrating opinio juris for the criminalisation of the intentional use of starvation regards direct evidence of States’ acceptance as law. Following the approach of the International Law Commission in its draft conclusions, manifestations of State behaviour indicating States’ acceptance as law may, among others, be found in treaty provisions, public statements made on behalf of States as well as in official publications.64 Therefore, this section will assess the Rome Statute, public statements made by State representatives as well as domestic legal provisions. Rome Statute of the International Criminal Court (and Domestic Criminal Codes) The first evidence of opinio juris for the criminalisation of the intentional use of starvation of the civilian population as a method of warfare regards the Rome Statute of the ICC.65 The Rome Statute demonstrates evidence of opinio juris for two reasons. First, the adoption of the Rome Statute demonstrates an international consensus that certain crimes are of such severity that they should trigger prosecutions in any event. In case states are unable or unwilling to genuinely prosecute such crimes, the Rome Statute provides for a complementary system to prevent impunity for the criminal acts.66 The principle of complementarity ensures that when prosecutions of crimes such as the intentional use of starvation of the civilian population remain absent on a national level, a case can be brought before the ICC. This second layer of protection, ensuring that prosecutions for the intentional use of starvation of the civilian populations can be carried out elsewhere if not undertaken on the domestic level, arguably demonstrates the conviction of States that criminalising such heinous acts amount to a legal obligation. Second, the Rome Statute not only criminalises the war crime of intentionally using starvation of the civilian population and, following any violation, triggers prosecutions, it also requires States Parties to enact the Rome Statute in their domestic legislation by implementing the provisions of the Rome Statute in their national criminal codes, including provisions on cooperation.67 The fact that States willingly subject their domestic legislation to include the genocide, crimes against humanity and war crimes provisions of the Rome Statute, demonstrates a belief that goes further than mere acceptance to be bound by a criminalisation provision imposed on States from an international level. It evidences States’ own sense of legal obligation to trigger criminal accountability for the crimes. Public Statements on Behalf of States The next type of evidence demonstrating opinio juris for the criminalisation of the intentional use of starvation of the civilian population regards a number of recent 64

Ibid., pp 140–142.; ICJ, Jurisdictional Immunities of the State (Germany v. Italy), Judgment, 3 February 2012 (Jurisdictional Immunities of the State), ICJ Rep 99, para 55. 65 Rome Statute, above n 3, Article 8(2)(b)(xxv). 66 Ibid., Article 17(1)(a). 67 Ibid., Article 88.

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public statements made on behalf of States.68 On different occasions, State representatives have made statements on behalf of their government that the intentional use of starvation of the civilian population must be criminalised. For instance, at the Humanitarian Studies Conference in 2018, the Minister for Foreign Trade and Development Cooperation of the Netherlands emphasised that, “from now on, countries have to investigate allegations of starvation and the resolution69 makes it possible to impose sanctions against states and individuals who, for example, arbitrarily block humanitarian aid and thus violate international humanitarian law”.70 Another example would be the UNSC’s briefing on conflict and hunger in 2018, where the Ambassador of Sweden stressed that, “starvation as a method of warfare is outlawed and unacceptable. As we have heard this morning from previous speakers, accountability for violations of these fundamental norms is critical, and this Council must play its full role in ensuring that its demands are adhered to”.71 Moreover, at the UNSC’s meeting on protecting civilians from conflict induced hunger in 2020, the Deputy Permanent Representative of France to the United Nations highlighted that, “using starvation as a method of warfare against civilians constitutes a war crime under international criminal law. Such crime cannot go unpunished”.72 This was supported by the Permanent Representative of South Africa who, at the same meeting, reiterated that, “we are witnessing an increase of parties to conflict using hunger as a weapon of war, which constitutes a violation of international humanitarian law and can also constitute a war crime. Violations of international humanitarian law must not be condoned and perpetrators must be held accountable for their actions”.73 This selection of examples embodies States’ sense of legal obligation that the intentional use of starvation of the civilian population must not go unpunished. State representatives directly emphasising that the intentional use of starvation should be prosecuted provides a clear indication that there exists among States an acceptance as law as to the binding character of the criminalisation.

68

International Law Commission 2018, pp 140–142. Read: UNSC Resolution 2417. 70 Humanitarian Studies Conference (2018) Speech by Minister Kaag. https://www.government. nl/documents/speeches/2018/08/27/speech-by-minister-kaag-at-the-humanitarian-studies-confer ence. Accessed 7 October 2020. 71 United Nations Security Council Briefing on Conflict and Hunger (2018) Statement by Ambassador Carl Skau. https://www.government.se/statements/2018/03/swedish-statement-at-thesecurity-council-briefing-on-conflict-and-hunger/. Accessed 7 October 2020. 72 UN Security Council meeting on protecting civilians affected by conflict induced hunger (2020) Statement by Ms Anne Gueguen Deputy Representative of France to the United Nations. https:// onu.delegfrance.org/Conflicts-remain-one-of-the-primary-drivers-of-food-insecurity. Accessed 7 October 2020. 73 UN Security Council Meeting on Protecting Civilians affected by Conflict Induced Hunger (2020) Statement by Ambassador Jerry Matjila Permanent Representative of South Africa to the United Nations. http://www.dirco.gov.za/docs/speeches/2020/matj0421.htm. Accessed 7 October 2020. 69

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Domestic Legal Provisions The subsequent type of evidence demonstrating acceptance as law regards domestic legal provisions on the customary status of the war crime provisions, including the criminalisation of the intentional use of starvation of the civilian population.74 States have adopted legal provisions in which direct acceptance of the customary nature of the existing war crimes can be found. From these provisions, the customary nature of the criminalisation of the intentional use of starvation of the civilian population can be deduced. For instance, Canada has adopted a legal provision stating, “for greater certainty, crimes described in […] para 2 of Article 8 of the Rome Statute are, as of July 17, 1998, crimes according to customary international law, and may be crimes according to customary international law before that date”.75 Further, the Federal Court of Australia held that, “the Rome Statute was drawn up to provide for the crimes it defined and purported to define those crimes as crimes that had crystallised into crimes in international law […], notwithstanding that the Statute was to come into force, and the ICC was to be established, at a later date,”76 and refers to the war crimes contained in Article 8(2)(c) of the Rome Statute. The fact that these States consider the war crime provisions, including the criminalisation of the intentional use of starvation, as evidence of customary international law provides the clearest indication that there exists a sense of legal obligation to criminalise the conduct. More importantly, it directly contributes to the position that the rule may have crystallised into a norm of customary international law.77 Rather than simply providing evidence for one of the two criteria of a rule of customary international law, these provisions emphasise that there already exists a rule of custom to criminalise the intentional use of starvation of the civilian population as a method of warfare.

4.3.2.2

Opinio Juris Resulting from Indirect Evidence of Acceptance as Law

In certain instances, manifestations of state behaviour indicating States’ acceptance as law may also be triggered by international organisations.78 Following the approach of the International Law Commission in its draft conclusions, the opinio juris of

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International Law Commission 2018, pp 140–142. Canada (Crimes Against Humanity and War Crimes Act of Canada 2000, amended 2019, Section 4(4)). 76 Federal Court of Australia, SRYYY v. Minister for Immigration & Multicultural & Indigenous Affairs, Judgment, 17 March 2005, Case No. N57 of 2004 (SRYYY ), para 75. 77 International Law Commission 2018, pp 140–142. 78 Ibid., pp 130–132, 140–142. 75

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States may for instance be evidenced by resolutions adopted by international organisations.79 Although such resolution cannot by itself create a rule of customary international law, a resolution evidencing acceptance as law may contribute to the formation of customary international law. Hence, Resolution 2417 of the UNSC on the intersection between food and conflict will be assessed below. UNSC Resolution 2417 Indirect evidence demonstrating evidence of the opinio juris of states to criminalise the intentional use of starvation regards the adoption of UNSC Resolution 2417 on the intersection of food and conflict.80 This evidence is of particular interest for demonstrating the view that its practice is rendered obligatory by the existence of a legal rule requiring it.81 Indeed, when analysing the text of the adopted Resolution, it can be noted that the various paragraphs refer to obligations that seem to pre-exist the adoption of the Resolution. For instance, the preamble notes that the Council is, “underlining the parties’ obligations related to protecting civilians and civilian objects, meeting the basic needs of the civilian population within their territory or under their effective control, […]”, and “demanding that all parties to armed conflicts fully comply with their obligations under international law, including international human rights law, as applicable, and international humanitarian law, […]”.82 In the first paragraph, the Council further, “calls on all parties to armed conflict to comply with their obligations under international humanitarian law regarding respecting and protecting civilians and taking constant care to spare civilian objects, […]”.83 Arguments could be raised to indicate that the Resolution demonstrates a conviction that the conduct amounts to (existing) legal obligations. Reference to pre-existing obligations indicates that the practice is rendered obligatory by the existence of rules to which States are bound. Even if reference to Chapter VII demonstrating the binding nature of the Resolution is absent, wording such as “demanding that all parties” and “strongly urges States” lingers towards legally binding obligations upon States.84 Indeed, Council’s use of words within the provisions ordering States to undertake specific conduct, indicates more than mere aspirations.85

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Ibid., pp 147–149. UN Security Council (2018) Resolution 2417 (2018), UN Doc S/RES/2417, p 3. 81 North Sea Continental Shelf case, above n 16, para 77. 82 UN Security Council (2018) Resolution 2417 (2018), UN Doc S/RES/2417, p 2. 83 Ibid., p 3. 84 Joyner D (2017) Legal Bindingness of Security Council Resolutions Generally, and Resolution 2334 on the Israeli Settlements in Particular. https://www.ejiltalk.org/legal-bindingnessof-security-council-resolutions-generally-and-resolution-2334-on-the-israeli-settlements-in-partic ular/. Accessed 7 October 2020; UN Security Council (2018) Resolution 2417 (2018), UN Doc S/RES/2417, pp 2, 4. 85 Zappalà 2018, p 88. 80

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4.4 Conclusion Following the assessment of different forms of evidence arguably demonstrating State practice as well as opinio juris for the criminalisation of the intentional use of starvation of the civilian population as a method of warfare, it can be concluded that a great number of States have committed themselves to be bound by the rule. Various forms of evidence discussed in this chapter demonstrate that there exists a far-reaching consensus that the intentional use of starvation of the civilian population as a method of warfare should trigger criminal prosecution. Many States all over the world have in one way or another engaged in practice criminalising the conduct whether by enacting legislation, prosecuting alleged perpetrators, adopting international resolutions or publicly announcing that the conduct must not go unpunished. Oftentimes, States which engaged in such general practice have done so on more than one occasion and with a sense of legal obligation. Through different types of evidence, States have demonstrated their consideration that criminalising the intentional use of starvation is rendered obligatory by legal rules requiring it. Therefore, it may be argued that the examples demonstrate widespread, representative and consistent State practice, as well as opinio juris. Hence, the examples arguably contribute to the affirmative position that the criminalisation of the intentional use of starvation of the civilian population as a method of warfare has crystallised into a rule of customary international law. However, two considerations have to be taken into consideration. First, as a result of occasional emphasis on the criminalisation specifically in situations of international armed conflict, the affirmative position is of particular relevance to this category of armed conflicts. Second, the examples concern a limited selection of forms of evidence arguably demonstrating both State practice and opinio juris. Hence, further research on both constituent elements may strengthen an affirmative position that the conduct has crystallised into a rule of customary international law, especially in relation to situations of non-international armed conflict.

References Articles, Books and Other Documents Aneme GA (2009) The Anatomy of Special Prosecutor v. Colonel Mengistu Hailemariam et al. (1994–2008). International Journal of Ethiopian Studies 4:1, 6 Bantekas I (2006) Reflections on Some Sources and Methods of International Criminal and Humanitarian Law. International Criminal Law Review 6 1:124–125 Bradley CA, Gulati M (2010) Withdrawing from International Custom. The Yale Law Journal 120:202–204 Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties (1920) Report Presented to the Preliminary Peace Conference, 29 March 1919. Reprinted in American Journal of International Law 14 1–2:144 D’Alessandra F, Gillett M (2019) The War Crime of Starvation in Non-International Armed Conflict. Journal of International Criminal Justice 17 4:823–826

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De Waal A (2018) Mass Starvation: The History and Future of Famine. Polity Press, Oxford DeFalco RD (2017) Conceptualizing Famine as a Subject of International Criminal Justice: Towards a Modality-Based Approach. University of Pennsylvania Journal of International Law 38 4:1164 Dumberry P (2016) The Formation and Identification of Rules of Customary International Law in International Investment Law. Cambridge University Press, Cambridge Food Security Information Network (2020) Monitoring food security in countries with conflict situations. Joint Food and Agriculture Organisation of the United Nations/World Food Program update. https://docs.wfp.org/api/documents/WFP-0000112228/download/?_ga=2.241 656198.506415177.1602000059-92612130.1602000059. Accessed 7 October 2020 Global Rights Compliance (2019) The Crime of Starvation and Methods of Prosecution and Accountability Policy Paper. https://sites.tufts.edu/wpf/files/2019/06/The-Crimes-of-Starvationand-Methods-of-Prosecution-and-Accountability.pdf. Accessed 7 October 2020 Gueguen A (2020) Statement by Ms Anne Gueguen Deputy Representative of France to the United Nations. UN Security Council meeting on protecting civilians affected by conflict induced hunger, New York. https://onu.delegfrance.org/Conflicts-remain-one-of-the-primary-drivers-of-food-ins ecurity. Accessed 7 October 2020 Henckaerts JM, Doswald-Beck L (2005) Customary International Humanitarian Law, Volume I: Rules. Cambridge University Press, Cambridge International Criminal Court (2019) Resolution on amendments to article 8 of the Rome Statute of the International Criminal Court (2019) ICC-ASP/18/Res.5, pp 1–2 International Criminal Court (2020) The States Parties to the Rome Statute. https://asp.icc-cpi.int/ en_menus/asp/states%20parties/pages/the%20states%20parties%20to%20the%20rome%20stat ute.aspx. Accessed 7 October 2020 International Law Commission (2013) First report on formation and evidence of customary international law. In: UN General Assembly (2013) Report of the International Law Commission on the Work of its sixty-fifth session, UN Doc A/CN.4/663, p 15 International Law Commission (2018) Draft conclusions on identification of customary international law, with commentaries. In: UN General Assembly (2018) Report of the International Law Commission on the Work of its seventieth session, UN Doc A/73/10, pp 117–156 Jordash W, Murdoch C, Holmes J (2019) Strategies for Prosecuting Mass Starvation. Journal of International Criminal Justice 17 4:849–879. https://academic.oup.com/jicj/article/17/4/849/565 2244?login=true Joyner D (2017) Legal Bindingness of Security Council Resolutions Generally, and Resolution 2334 on the Israeli Settlements in Particular. EJIL:Talk!. https://www.ejiltalk.org/legal-bindin gness-of-security-council-resolutions-generally-and-resolution-2334-on-the-israeli-settlementsin-particular/. Accessed 7 October 2020 Kaag S (2018) Speech by Minister Kaag. Humanitarian Studies Conference, The Hague. https://www.government.nl/documents/speeches/2018/08/27/speech-by-minister-kaagat-the-humanitarian-studies-conference. Accessed 7 October 2020 Luban D, O’Sullivan JR, Stewart DP, Jain N (2019) International and Transnational Criminal Law. Wolters Kluwer, New York Matjila J (2020) Statement by Ambassador Jerry Matjila Permanent Representative of South Africa to the United Nations. UN Security Council Meeting on Protecting Civilians affected by Conflict Induced Hunger, New York. http://www.dirco.gov.za/docs/speeches/2020/matj0421. htm. Accessed 7 October 2020 Odermatt J (2017) The Development of Customary International Law by International Organizations. International and Comparative Law Quarterly 66 2:491 Rauter T (2017) Judicial Practice, Customary International Criminal Law and Nullum Crimen Sine Lege. Springer, Cham Skau C (2018) Statement by Ambassador Carl Skau. United Nations Security Council Briefing on Conflict and Hunger, New York. https://www.government.se/statements/2018/03/swedish-sta tement-at-the-security-council-briefing-on-conflict-and-hunger/. Accessed 7 October 2020 UN Security Council (2018) Resolution 2417 (2018), UN Doc S/RES/2417, pp 2–4

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UN Security Council (2018) Verbatim Record on Resolution 2417 (2018), UN Doc S/PV.8267, pp 2–4 Zappalà S (2019) Conflict Related Hunger, ‘Starvation Crimes’ and UN Security Council Resolution 2417 (2018). Journal of International Criminal Justice 17:881

Cases District Court in Zadar Croatia, Public Prosecutor v. M.P. et al, Decision, 24 April 1997, Case No. K. 74/96 (M.P. et al) Ethiopian Federal High Court, Special Prosecutor v. Col. Mengistu Hailamariam et al., Verdict, 12 December 2006, File No. 1/87 (Col. Mengistu Hailamariam et al.) Federal Court of Australia, SRYYY v. Minister for Immigration & Multicultural & Indigenous Affairs, Judgment, 17 March 2005, Case No. N57 of 2004 (SRYYY) ICC, Prosecutor v. Omar Hassan Ahmad Al Bashir, Corrigendum to the Decision Pursuant to Article 87(7) of the Rome Statute, 13 December 2011, Case No. ICC-02/05-01/09 (Al Bashir) ICJ, Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Judgment, 24 May 2007 (Ahmadou Sadio Diallo), ICJ Rep 582 ICJ, Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), Judgment, 14 February 2002 (Arrest Warrant), ICJ Rep 3 ICJ, Continental Shelf (Libyan Arab Jamahiriya v. Malta), Judgment, 3 June 1985 (Continental Shelf), ICJ Rep 13 ICJ, Dispute Regarding Navigational and Related Rights (Costa Rica v Nicaragua), Judgment, Separate Opinion of Judge Sepúlveda-Amor, 13 July 2009 (Dispute Regarding Navigational and Related Rights), ICJ Rep 213 ICJ, Jurisdictional Immunities of the State (Germany v. Italy), Judgment, 3 February 2012 (Jurisdictional Immunities of the State), ICJ Rep 99 ICJ, North Sea Continental Shelf (Germany v Denmark), Judgment, 20 February 1969 (North Sea Continental Shelf case), ICJ Rep 3 ICTR, Prosecutor v. Jean-Paul Akayesu, Judgment, 2 September 1998, Case No. ICTR-96-4 (Akayesu) ICTY, Prosecutor v. Blagoje Simic et al, Decision, 27 July 1999, Case No. ICTY-95-9 (Blagoje Simic et al) ICTY, Prosecutor v. Hadžihasanovi´c, Alagi´c and Kubura, Decision on Joint Challenge to Jurisdiction, 12 November 2002, Case No. IT-01-47-PT (Hadžihasanovi´c, Alagi´c and Kubura) ICTY, Prosecutor v. Stanislav Gali´c, Judgment, 30 November 2006, Case No. IT-98-29-A (Gali´c)

Treaties Charter of the United Nations, opened for signature 26 June 1945, 1 UNTS XVI (entered into force 24 October 1945) (UN Charter) Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, opened for signature 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978) (Additional Protocol I) Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, opened for signature 8 June 1977, 1125 UNTS 609 (entered into force 7 December 1978) (Additional Protocol II)

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Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002) (Rome Statute) Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980) (VCLT)

Jolanda Jackelien Andela is a current Ph.D. candidate at Erasmus Graduate School of Law, Erasmus University Rotterdam. The author would like to thank Kristin Henrard and Hanne Cuyckens for their support during the writing process.

Chapter 5

Does International Law Permit the Provision of Humanitarian Assistance Without Host State Consent? Territorial Integrity, Necessity and the Determinative Function of the General Assembly Rebecca J. Barber Contents 5.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2 The Prima Facie Legality or Illegality of Humanitarian Assistance Provided Without Host State Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.1 The Requirement of Consent and the Prohibition of Arbitrarily Withholding It . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.2 Non-consensual Humanitarian Assistance: A Violation of Territorial Integrity? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.3 Conclusion on the Prima Facie Legality or Illegality of Non-consensual Humanitarian Assistance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3 Necessity as a Circumstance Precluding the Wrongfulness of an Internationally Wrongful Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4 A Role for the General Assembly in Determining a State of Necessity . . . . . . . . . . . . . . 5.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract This chapter considers whether, in cases where there is overwhelming humanitarian need and the host State will not consent to humanitarian assistance, there is any legal alternative to exclusive reliance on the Security Council. It first interrogates the view that humanitarian assistance provided without consent violates territorial integrity, and then considers whether non-consensual humanitarian assistance may be justified by circumstances of necessity. It then considers whether the UN General Assembly could play a role by making a legal determination regarding a state of necessity, which would have the effect of precluding the wrongfulness of an internationally wrongful act.

R. J. Barber (B) TC Beirne School of Law, University of Queensland, Brisbane, Australia e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2022 T. D. Gill et al. (eds.), Yearbook of International Humanitarian Law 2020, Yearbook of International Humanitarian Law 23, https://doi.org/10.1007/978-94-6265-491-4_5

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Keywords Humanitarian assistance · Humanitarian access · Non-intervention · Necessity · Syria · General Assembly · Territorial integrity

5.1 Introduction In Resolution 2165 (2014), the United Nations (UN) Security Council took the unusual step of authorising UN agencies and their partners to provide humanitarian assistance in Syria, with or without the consent of the Syrian Government, utilising four designated international border crossings. Two of the border crossings facilitated access from Turkey, one facilitated access from Iraq, and one facilitated access from Jordan.1 The authorisation was regarded as necessary in order for the UN and its partners to provide assistance in areas not controlled by the Syrian Government, because the Syrian Government so heavily restricted access to those areas from the Syrian capital of Damascus. Resolution 2165 was renewed annually from 2015 through to 2019, during which time it enabled the provision of cross-border humanitarian assistance to more than four million Syrians.2 From January 2020, the scope of the Council’s authorisation for the cross-border operation was progressively reduced. At the end of 2019, Russia and China vetoed a draft resolution that would have reauthorised all four border-crossings.3 Following intense negotiation, in January 2020 the Council passed a watered-down resolution, reauthorising only the Turkish border-crossings for just six months.4 The Jordanian crossing had not recently been utilised, however the Iraqi crossing had provided a critical access route for getting humanitarian supplies to more than a million people in northeast Syria.5 In February 2020 the UN Secretary General reported that humanitarian needs in northeast Syria were not being sufficiently met, and that more cross-border access was required in order to “sustain recent levels of, and preferably increase, humanitarian assistance in the northeast of the country”.6

1

UN Security Council (UNSC) (2014) Resolution 2165 (2014), UN Doc. S/RES/2165. UN Office for the Coordination of Humanitarian Affairs (OCHA) (2019) Under SecretaryGeneral for Humanitarian Affairs and Emergency Relief Coordinator, Mark Lowcock, Briefing to the Security Council on the Humanitarian Situation in Syria. https://reliefweb.int/sites/reliefweb. int/files/resources/Under%20Secretary-General%20for%20Humanitarian%20Affairs%20and% 20Emergency%20Relief%20Coordinator%2C%20Mark%20Lowcock%20-%20Briefing%20to% 20the%20Security%20Council%20on%20the%20humanitarian%20situation%20in%20Syria.pdf. Accessed 14 January 2021. 3 UNSC (2019) Security Council Rejects 2 Draft Resolutions Authorising Cross-Border, Cross-Line Humanitarian Access in Syria, UN Doc. SC/14066. 4 UNSC (2020) Resolution 2504 (2020), UN Doc. S/RES/2504. 5 USAID (2020), Syria—Complex Emergency Fact Sheet No. 3. https://reliefweb.int/sites/relief web.int/files/resources/01.16.20%20-%20USG%20Syria%20Complex%20Emergency%20Fact% 20Sheet%20%233.pdf. Accessed 14 January 2021. 6 UNSC (2020) Review of Alternative Modalities for the Border Crossing of Ya’rubiyah: Report of the Secretary General, UN Doc. S/2020/139, p 8. 2

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In July 2020, the UN Security Council was forced by Russian and Chinese vetoes—justified on the basis of concern for Syria’s sovereignty—to restrict the cross-border operation further still.7 The compromise this time was Security Council Resolution 2533, which allowed humanitarian agencies to utilise just one of two previously-authorised Turkish border crossings—the Bab al-Hawa crossing, providing access into northwest Syria—for 12 months.8 Just a month earlier, the UN Secretary General had reported that the cross-border operation in northwest Syria required further “scale-up to meet acute needs, the growing demands stemming from economic decline and the need for COVID-19 preparedness”.9 In other words, more access was required in order to meet humanitarian needs, not less. In July 2021, the Security Council re-authorised use of the Bab al-Hawa crossing for a further six months, with the expectation of a subsequent renewal for another six months, until July 2022.10 This chapter is not a case study of the Syrian crisis. It does not examine the particular access constraints facing humanitarian actors in Syria, nor whether unauthorised assistance would be—or at any particular time would have been—warranted in light of the severity of humanitarian need in Syria. Rather, it cites the situation in Syria in order to highlight the precariousness of relying on the Security Council for decisions on humanitarian crises, and the importance of one fundamental question that is not yet definitively answered in international law: is there any legal alternative to exclusive reliance on the Security Council, in cases where there is overwhelming humanitarian need and the host state will not consent to humanitarian relief? This chapter begins by briefly reviewing the requirement of consent to humanitarian assistance; then considers the legality of humanitarian assistance provided where consent is unlawfully withheld. It challenges the conventional view that humanitarian assistance provided without host state consent is a violation of territorial integrity, arguing that territorial integrity does not encompass a complete freedom to violate human rights. It then proceeds to consider whether, if such assistance is to be regarded as violating territorial integrity, the provision of non-consensual humanitarian assistance may be legally justified by the plea of necessity—recognised in international law as capable of precluding the wrongfulness of an act that would otherwise breach a legal obligation. Drawing on the concept of erga omnes obligations, this chapter asserts that if the suffering of a civilian population is such that fundamental human rights are being denied, then it ought to be possible to invoke the plea of necessity in order to justify the provision of non-consensual humanitarian assistance, if providing such assistance is the only way to protect the fundamental rights not being met. The final part of this chapter then considers whether in such circumstances, the 7

See Security Council Report (2020) In Hindsight: Six Days, Five Resolutions, One Border Crossing. https://www.securitycouncilreport.org/monthly-forecast/2020-08/in-hindsight-six-daysfive-resolutions-one-border-crossing.php. Accessed 15 January 2021. 8 UNSC (2020) Resolution 2533 (2020), UN Doc. S/RES/2533. 9 UNSC (2020) Implementation of Security Council Resolutions 2139 (2014) [and others on Syria]: Report of the Secretary General, UN Doc. S/2020/576, p 14. 10 UNSC (2021) Resolution 2585 (2021), UN Doc. S/RES/2585.

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UN General Assembly could play a role by making a quasi-judicial determination regarding the state of necessity, and considers what such a determination could mean for states and international organisations wishing to provide humanitarian assistance without either host state consent or Security Council authorisation.

5.2 The Prima Facie Legality or Illegality of Humanitarian Assistance Provided Without Host State Consent The rules of international humanitarian law regarding humanitarian assistance differ to some degree depending on whether the conflict is international or non-international in character. The following discussion focuses on the rules applicable in noninternational armed conflict, as these apply to most armed conflicts today. It should be noted, however, that while the basic rules differ, most of the commentary regarding the requirement of consent applies to both non-international and international armed conflicts. The following discussion examines the requirement of consent to humanitarian assistance in international humanitarian law, then briefly examines the relevant obligations of states in international human rights law. The second and more substantive part of this section then examines the legality of assistance provided in circumstances where consent is arbitrarily withheld, and challenges the conventional view that humanitarian assistance provided in such circumstances constitutes a violation of territorial integrity.

5.2.1 The Requirement of Consent and the Prohibition of Arbitrarily Withholding It 5.2.1.1

International Humanitarian Law

The rules about humanitarian assistance in non-international armed conflict are contained in Article 3 common to the four Geneva Conventions and Article 18 of Additional Protocol II Relating to the Protection of Victims of Non-International Armed Conflicts (APII), supplemented by customary international law. Common Article 3(2) provides that “an impartial humanitarian body may offer its services to the parties to the conflict”, but does not say anything about an obligation to accept the offer.11 Article 18(2) of APII provides more substantively that: If the civilian population is suffering undue hardship owing to a lack of the supplies essential for its survival, such as foodstuffs and medical supplies, relief actions for the civilian population which are of an exclusively humanitarian and impartial nature and which are 11

See Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950), Article 3.

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conducted without any adverse distinction shall be undertaken subject to the consent of the High Contracting Party concerned.12

The meaning of this ambiguous provision has been extensively debated, however there is now broad consensus that what it means is that while states do not have an absolute obligation to consent, consent cannot be withheld for arbitrary reasons.13 The Commentary to Article 18(2) provided by the International Committee of the Red Cross (ICRC) asserts that “if the survival of the population is threatened and a humanitarian organisation fulfilling the required conditions of impartiality and nondiscrimination is able to remedy this situation”, consent to relief actions cannot be refused “without good grounds”.14 The ICRC study on customary international law goes further and states that, as a rule of customary international law applicable in both international and non-international armed conflict, “the parties to the conflict must allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need, which is impartial in character and conducted without any adverse distinction, subject to their right of control.”15 In its commentary to the study, the ICRC notes the requirement in both Additional Protocols regarding the consent of the parties concerned, and asserts that “such consent must not be refused on arbitrary grounds”.16 Article 18(2) of APII refers expressly to the consent of the “High Contracting Party concerned”. Where humanitarian assistance is to be provided in areas controlled by a State party to the conflict, clearly the concerned party is the State with territorial control. In the case of relief operations provided in opposition-held areas, some scholars assert that the host State is not “concerned” with such operations, and as such, does not need to consent.17 This view is not widely supported, however, and most scholars accept that the words “High Contracting Party” refer clearly to the State party to the conflict.18 This interpretation is supported by a series of soft-law principles and guidelines on humanitarian relief, including the guiding principles on humanitarian assistance annexed to General Assembly Resolution 46/182, all of which provide that “humanitarian assistance should be provided with the consent of the affected country”.19 12

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflict, opened for signature 8 June 1977, 1125 UNTS 609 (entered into force 7 December 1978) (APII). 13 Sivakumaran 2015, pp 516–519; Bothe et al. 1982, p 434; Akande and Gillard 2016, p 21; Ryngaert 2013, p 9. 14 Sandoz et al. 1987, p 1479. 15 Henckaerts and Doswald-Beck 2005, p 193 (emphasis added). 16 Ibid., p 197. 17 Bothe et al. 1982, p 696. 18 Akande and Gillard 2016, p 17; Stoffels 2004, pp 534–535; Gal 2017, p 45. 19 UN General Assembly (UNGA) (1991) Resolution 46/182 (1991), UN Doc. A/RES/46/182. See also: International Law Commission (ILC) (2016) Report of the International Law Commission on the work of its 68th Session, UN Doc. A/71/10, pp 13–17 (the Draft Articles on the Protection of Persons in the Event of Disasters); Institute of International Law 1989.

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The question of what it means to arbitrarily withhold consent is not authoritatively resolved in any legal instrument.20 The few commentators that have addressed the issue have suggested variously that consent cannot be refused in a manner that is “unjustified”,21 “unreasonable, unjust, lacking in predictability or … otherwise inappropriate”;22 and similarly that consent may only be withheld for reasons that are “valid and compelling”23 and in “pursuit of a legitimate aim”.24 It is generally accepted that a refusal will be arbitrary if it results in the violation by a State of its obligations under international law with respect to the civilian population in question (such as its human rights obligations), or if it violates the principle of necessity and proportionality, or if it discriminates against a particular group.25

5.2.1.2

International Human Rights Law

While international humanitarian law prohibits the arbitrary withholding of consent but does not contain a general obligation to provide consent, international human rights law goes further and imposes a positive obligation on States to seek—and arguably also consent to—humanitarian assistance. The 2016 Draft Articles on the Protection of Persons in the Event of Disasters by the International Law Commission (ILC) provide that when a disaster “manifestly exceeds [a State’s] national response capacity, the affected State has the duty to seek assistance from, as appropriate, other States, the United Nations, and other potential assisting actors”.26 The Commentaries to the Draft Articles assert that this obligation “derives from an affected State’s obligations under international human rights instruments and customary international law.”27 The Commentaries cite, among other things, the obligations of State parties to the International Covenant on Economic, Social and Cultural Rights (ICESCR), as well as the resolution on humanitarian assistance adopted by the Institute of International Law in 2003, which notes that “whenever the affected State is unable to provide sufficient humanitarian assistance … it shall seek assistance from competent international organisations and/or from third States”.28 On the issue of consent, the Draft Articles largely reflect international humanitarian law. They stipulate that “external assistance” requires the consent of the

20

Sandoz et al. 1987, p 1479. Sivakumaran 2015, pp 517–9. 22 Akande and Gillard 2016, p 22. 23 Gillard 2014, p 360; Schwendimann 2012, p 999. 24 Sivakumaran 2015, p 521. 25 Ibid. 26 ILC (2016) Report of the International Law Commission on the work of its 68th Session, UN Doc. A/71/10, p 15. 27 Ibid., p 53. 28 Ibid., p 55, citing Institute of International Law 2003. 21

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affected State, and that such consent “shall not be withheld arbitrarily”. The Commentaries assert that “where an offer of assistance is made in accordance with the draft articles and no alternative sources of assistance are available, there would be a strong inference that a decision to withhold consent is arbitrary”.29 States party to the ICESCR arguably have a more robust obligation to consent to humanitarian assistance, as compared to the position enshrined in customary international law. The ICESCR obliges state parties to “take steps, individually and through international cooperation”, to the “maximum of [their] available resources” to progressively achieve the full realisation of the rights in the Covenant including the rights to food, water, shelter and primary healthcare.30 While the ICESCR allows generally for the progressive realisation of rights, states parties are under an immediate obligation to ensure the satisfaction of “minimum essential levels” of the rights enshrined in the Covenant.31 Thus, as explained by the Committee on Economic, Social and Cultural Rights (CESCR), a State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, or basic shelter and housing, or of the most basic forms of education is, prima facie, failing to discharge its obligations under the Covenant … [and] must demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations.32

The CESCR has confirmed that the reference to a State’s “available resources” includes “those available from the international community through international cooperation and assistance.”33 In other words, where a State’s population is deprived of its rights to essential food, water, shelter or healthcare, States arguably have an obligation to not only seek but also consent to humanitarian assistance in order to immediately ensure minimum essential levels of those rights.34 To conclude: all States have a legal obligation not to withhold consent to humanitarian assistance that is impartial and non-discriminatory in nature, unless they have good reason. States parties to the ICESCR arguably have a more robust obligation to consent to humanitarian assistance if such assistance is necessary in order to ensure that their populations are able to enjoy minimal essential levels of economic, social and cultural rights. It does not necessarily follow, however, that if a State breaches its obligations regarding consent, humanitarian actors may proceed to provide assistance without that consent. The legal status of humanitarian assistance provided without consent, in circumstances where consent has been illegally withheld, is addressed in the following section. 29

Ibid., p 62. International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976), Article 2(1). 31 Committee on Economic, Social and Cultural Rights (1999) General Comment 12: The Right to Adequate Food, UN Doc. E/C.12/1999/5, paras 14–17. 32 Committee on Economic, Social and Cultural Rights (1991) General Comment No. 3: The Nature of States Parties Obligations, UN Doc. E/1991/23, para 10. 33 Ibid., para 13. 34 For a discussion regarding a state’s obligation to consent to humanitarian relief in international human rights law, see Barber 2009, pp 391–396. 30

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5.2.2 Non-consensual Humanitarian Assistance: A Violation of Territorial Integrity? Amongst scholars of international humanitarian law, there is a tendency to describe non-consensual relief operations as a prohibited violation of sovereignty, and in particular territorial integrity, without interrogating precisely why. Dapo Akande and Emanuela-Chiara Gillard, for example, assert that “the starting position is that humanitarian relief operations conducted by states or international organisations on the territory of another state … without that state’s consent, violate the latter’s sovereignty and are therefore illegal”.35 Cedric Ryngaert, similarly, in questioning whether humanitarian actors may enter a State’s territory “clandestinely with a view to providing much-needed relief”, asserts that “the legal question” is whether “such humanitarian actors’ international responsibility for a possible internationally wrongful act—the violation of a state’s territorial integrity—is engaged”. He then proceeds to consider whether there is a “primary norm of customary international (humanitarian) law” which dispenses with the requirement of State consent, or alternatively, whether there are grounds upon which such operations may be legal despite not being “in conformity with … the obligation to respect the territorial sovereignty of the State”.36 Ruth Stoffels, similarly again, notes that “the requirement to obtain consent implies that humanitarian activities carried out without the authorisation of the State in question … can be construed as unlawful … on the grounds that they violate the principle of sovereignty and non-interference in the domestic affairs of a State”.37 Such assertions gloss over two foundational questions: first, what exactly does the concept of territorial integrity protect; and second, what actions constitute prohibited violations of territorial integrity? These questions are discussed in turn, below.

5.2.2.1

The Concept of Territorial Integrity and What It Protects

Alongside political independence, territorial integrity is the foundation of State sovereignty.38 The principle that no State may violate the territorial integrity or political independence of another State is reflected in Article 2(4) of the UN Charter, which provides that “members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State”. It was affirmed by the International Court of Justice (ICJ) in the Corfu Channel case, in which the Court described “respect for territorial sovereignty” as an “essential foundation of international relations”;39 and it has been reiterated in 35

Akande and Gillard 2016, p 52. Ryngaert 2013, p 14. 37 Stoffels 2004, p 535. 38 Blay 2010; Jennings and Watts 2008a, p 382; Shaw 2008, p 488. 39 ICJ, The Corfu Channel Case, Merits, 9 April 1949, [1949] ICJ Rep 4, p 35. 36

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successive General Assembly resolutions. Most significantly, the Assembly’s 1970 Friendly Relations Declaration—widely regarded as reflecting customary international law40 —affirms that “the territorial integrity and independence of States are inviolable”, and recalls the obligation of States to “refrain in their international relations from military, political, economic, or any other form of coercion aimed against the political independence or territorial integrity of any State.”41 The concept of territorial integrity is not defined in the UN Charter, nor has it been explicitly delineated by the ICJ. In seeking to understand what the concept encompasses, however, assistance can be sought from the ICJ’s jurisprudence on the closely related principle of non-intervention. The principle of non-intervention is a corollary of States’ right to sovereignty, territorial integrity and political independence.42 Anne Peters describes it as the “core legal incident of external state sovereignty”;43 Sean Watts describes it similarly as the “legal outgrowth of sovereignty and territorial control”.44 In Nicaragua, the ICJ recognised the principle of non-intervention as “part and parcel of customary international law”. It described it in the following terms: The principle [of non-intervention] forbids all States or groups of States to intervene directly or indirectly in internal or external affairs of other States. A prohibited intervention must accordingly be one bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely. … Intervention is wrongful when it uses methods of coercion in regard to such choices, which must remain free ones.45

This statement can be understood as articulating a two-part test for determining whether a particular measure violates the non-intervention principle: it must be “one bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely”; and additionally, it must use “methods of coercion”.46 If non-intervention is the corollary of State sovereignty and territorial integrity, as indeed was recognised by the ICJ in Nicaragua, then this must also be the test for ascertaining what constitutes a violation of territorial integrity. This two-part test corresponds to the questions posed in the introduction to this section—namely, what 40 ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment, 27 June 1986 (Nicaragua), ICJ Rep 14, paras 191–193; ICJ, Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, 22 July 2010, [2010] ICJ Rep 141, para 80. 41 UN General Assembly (UNGA) (1970) Resolution 2625(XXV) (1970), UN Doc. A/RES/2625. See also UNGA (1960) Resolution 1514(XV) (1960), UN Doc. A/RES/1514(XV); UNGA (1965) Resolution 2131(XX), UN Doc. A/RES/2131(XX); UNGA (1974) Resolution 3314 (1974), UN Doc. A/RES/3314 (XXIX). On territorial integrity generally see: Blay 2010; Jennings and Watts 2008a; Shaw 2008, pp 488–492. 42 Jamnejad and Wood 2009, p 346; Nicaragua 1986, above n 40, para 202; Jennings and Watts 2008b, p 428. 43 Peters 2009, p 528. 44 Watts 2014, p 137. 45 Nicaragua 1986, above n 40, para 205. 46 See Jamnejad and Wood 2009, pp 347–348.

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does the concept of territorial integrity protect, and what constitutes a prohibited violation/intervention. The first component of this test must be understood with reference to the precise limits of a State’s domaine réservé—that is, the matters which a State is permitted to decide freely, by virtue of its sovereignty. As Rosalyn Higgins has observed, “the term ‘intervention’ only has a meaning measured against the question ‘intervention against what?’, and the answer has to be ‘intervention against a state’s domestic jurisdiction’—that is, intrusion upon that which is for a state alone”.47 Since the decision of the ICJ in the Barcelona Traction case, it has been broadly accepted that a State’s domaine réservé does not encompass an unlimited freedom to violate its obligations under international human rights law. The Court in that case said that the “principles and rules concerning the basic rights of the human person” are “the concern of all States”, and that “all States … have a legal interest in their protection; they are obligations erga omnes.”48 In 1989, the International Law Institute in its Compostela Resolution affirmed similarly that “a State acting in breach of its obligations in the sphere of human rights cannot evade its international responsibility by claiming that such matters are essentially within its domestic jurisdiction”. That Resolution explicitly stipulated that “economic, diplomatic and other measures” taken by States in response to human rights violations “cannot be considered an unlawful interference in the internal affairs of States”.49 In other words, if humanitarian assistance is provided exclusively for the purpose of enabling a targeted population to enjoy its human rights, that assistance ought not to be regarded as an intervention in matters on which the targeted State is entitled to decide freely. Thus, it ought not to be regarded as an encroachment upon territorial integrity. The question of whether the assistance is “coercive”—the second component of the non-intervention test—ought not therefore to arise.

5.2.2.2

What Is a Prohibited Intervention?

Even if the provision of humanitarian assistance is regarded as encroaching upon matters on which a State is entitled to decide freely, such assistance will nevertheless only be contrary to international law if the conduct in question—the act of providing assistance—can be regarded as a prohibited intervention. Article 2(4) of the UN Charter is typically interpreted as prohibiting only the threat or use of armed force.50 It is well established, however, that Article 2(4) enshrines just one aspect of States’ obligation to respect territorial integrity, and that under customary international law,

47

Higgins 2009, p 274. ICJ, Case Concerning the Barcelona Traction, Light and Power Company, Limited (Belgium v Spain) (New Application: 1962), Judgment, 5 February 1970 (Barcelona Traction), [1970] ICJ Rep 3, para 33. 49 Institute of International Law 1989, Article 2. 50 Dörr and Randelzhofer 2012, p 208. 48

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territorial integrity is protected from both military and non-military coercion.51 This is reflected in the language of the Friendly Relations Declaration, which as stated above, recalls the duty of States to refrain “from military, political, economic, or any other form of coercion” against another State’s political independence or territorial integrity. In other words, to be a prohibited intervention, interference with a State’s territorial integrity need not entail the use of military force, but it must be coercive. Coercion, like non-intervention more broadly, is nowhere authoritatively defined. Robert Jennings and Arthur Watts, in Oppenheim’s International Law, assert that to be prohibited, an intervention must be “forcible or dictatorial, or otherwise coercive; in effect depriving the State intervened against of control over the matter in question”.52 Other scholars have focused on elements of compulsion, power disparities between the coercing and coerced State, and the elimination of options available to the coerced State.53 The question of what sort of actions amount to prohibited interventions is answered in part by the relevant General Assembly resolutions, in particular the Friendly Relations Declaration. While not exhaustively defining what constitutes a prohibited intervention, this resolution lists a series of specific interventions that do violate territorial integrity—that is, interventions that are considered “coercive”. These include: the threat or use of force to violate existing international boundaries; the threat or use of force to violate international lines of demarcation; organising or encouraging the organisation of irregular forces or armed bands for incursion into another State; organising or supporting acts of civil strife or terrorism in another State; and military occupation or territorial acquisition resulting from the use of force.54 Jennings and Watts assert similarly that “while it is not feasible to enumerate” all actions that might violate another State’s “independence or territorial or personal authority”, “illustrative examples” include: intervention in the management of a State’s internal or international affairs; the sending by a State of troops, warships, police forces or aircraft into, through or over foreign territory; the carrying out of official or clandestine operations in foreign territory; or the exercise of an act of administration or jurisdiction without permission.55 Almost needless to say, these explicitly enumerated examples are of a wholly different character than relief operations which are exclusively humanitarian and impartial in nature, and which are carried out in cooperation with relevant local actors.56 It is perhaps pertinent to note here that as a matter of internationally recognised policy, humanitarian relief workers do not carry arms. Humanitarian operations utilise armed escorts only as a last resort in extremely exceptional circumstances, and only where the relevant authorities or 51

See Watts 2014, p 143. Jennings and Watts 2008b, p 432. 53 See Jamnejad and Wood 2009, p 348; Hofer 2017, p 181; Helal 2019, p 72. 54 UNGA (1970) Resolution 2625 (XXV) (1970), UN Doc. A/RES/2625. 55 Jennings and Watts 2008a, pp 385–386. 56 The internationally-recognised principles which guide the provision of humanitarian assistance are contained in: International Red Cross and Red Crescent Movement 1994; UNGA (1991) Resolution 46/182 (1991), UN Doc. A/RES/46/182. 52

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non-State actors do not permit the movement of humanitarian supplies without an armed escort. Where armed escorts are used, every effort is made to ensure the maintenance of the “civilian character” of the operation.57 The question of what constitutes a prohibited intervention is further elaborated by the judgment of the ICJ in Nicaragua, which largely echoes—and indeed relies upon—the relevant General Assembly resolutions, including the Friendly Relations Declaration. The Court in that case was concerned primarily with the support provided by the United States (US) for the military and paramilitary contras, including financial support, training, supply of weapons, intelligence and logistics support. The Court described the US support for the contras as an “indirect form of support for terrorist or armed activities within a State”, and concluded that the assistance clearly breached the principle of non-intervention. Having concluded thus, the Court proceeded to address an allocation of funds provided by the US to the contras “solely for humanitarian assistance”. It said that “there can be no doubt that the provision of strictly humanitarian aid to persons or forces in another country, … cannot be regarded as unlawful intervention, or as in any other way contrary to international law”. The Court noted that in order for the provision of humanitarian assistance to “escape condemnation” as an intervention in Nicaragua’s internal affairs, it must be “limited to the purposes hallowed in the practice of the Red Cross” and “be given without discrimination to all in need in Nicaragua”.58 Some scholars have observed that the Court in Nicaragua was concerned with the provision of relief items “at the border to actors operating in country”, as opposed to direct engagement with relief operations inside Nicaragua, and that as such, the judgment should not necessarily be read as permitting the provision of humanitarian relief inside an affected State.59 In distinguishing humanitarian assistance from other forms of assistance violating the principle of non-intervention, however, the Court made no reference to where the humanitarian assistance was to be provided. In relation to US support for the contras’ military operations, the Court noted that “US trainers and advisors remained on the other side of the border”,60 however it made no such observation in relation to humanitarian assistance. In describing the humanitarian assistance provided by the US, the ICJ referred only to the relevant US legislation, which authorised “humanitarian assistance to the Nicaraguan democratic resistance”, and which defined humanitarian assistance as “the provision of food, clothing, medicine, and other humanitarian assistance … [not including] the provision of weapons, weapons system, ammunition, or other equipment, vehicles, or material which can be used to inflict serious bodily harm or death”.61 When the Court itself set out the conditions that humanitarian relief should meet in order for it not to be regarded as a prohibited intervention (the Court cited the principles of the Red Cross), it made no suggestion that such assistance should be provided at the 57

See Inter-Agency Standing Committee 2013. Nicaragua 1986, above n 40, para 242. 59 Gillard 2014, p 370; Schindler 1994, p 699. 60 Nicaragua 1986, above n 40, para 103. 61 Ibid., para 97. 58

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border as opposed to inside Nicaraguan territory; indeed, it stressed the importance of the assistance being provided to “all in need in Nicaragua”.62 As such, most scholars appear to have interpreted the comments of the ICJ in Nicaragua as meaning just what they say—that strictly humanitarian aid is not an unlawful intervention in the internal affairs of a State.63

5.2.3 Conclusion on the Prima Facie Legality or Illegality of Non-consensual Humanitarian Assistance The preceding discussion has challenged the conventional view that humanitarian assistance provided without the consent of the host State violates the host State’s sovereignty, specifically its territorial integrity. It has been argued firstly that conduct only amounts to a violation of territorial integrity if the conduct encroaches upon a State’s domaine réservé—matters in relation to which a State is entitled to decide freely, by virtue of its sovereignty—and does so in a coercive way. Secondly, it has been argued that a State’s territorial integrity/domaine réservé does not encompass an unlimited freedom to violate human rights, and that as such, humanitarian assistance provided solely for the purpose of protecting human rights—at least those rights corresponding with obligations erga omnes—does not encroach upon territorial integrity. And finally, it has been argued that even if humanitarian assistance is regarded as encroaching upon a State’s territorial integrity, such encroachment ought not to be regarded as “coercive”—the second component of the test of a prohibited intervention. This is so particularly where the relief in question is provided in cooperation with local authorities, which is almost always the case when relief is provided without host State consent. The preceding discussion has focused on whether non-consensual humanitarian assistance fits the international law definition of a violation of territorial integrity, rather than the more commonly-examined assertion that there is an emerging rule of customary international law that permits humanitarian assistance to be provided without consent. This latter assertion will not be interrogated here; suffice to note, however, that most scholars do not accept that customary international law recognises such a rule.64 In a recent analysis of State practice and opinio juris, Christina Nowak concluded (dispiritingly) that “State practice reveals an unwillingness to close the emerging gap between the rules on humanitarian assistance and the values of the community by means of changing customary law”, that “the traditional requirement of consent has not undergone change”, and that “the rule remains in force even in the

62

Ibid., para 243. See O’Connell 2001, p 200; Schwendimann 2012, p 997; Ruys and Ferro 2020. 64 See Ryngaert 2013, p 14; Akande and Gillard 2016, p 16; Nowak 2020, p 65. Conversely, for the assertion that customary international law permits the provision of humanitarian assistance without consent, see: O’Connell 2001; Stoffels 2004, p 536; Barber 2009, p 391. 63

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worst cases, such as when it is being perverted into a weapon of war”.65 Nowak’s analysis arguably fails to take full account of the persisting willingness of some donor States to fund humanitarian operations in opposition-held areas in Syria not accessed via Security Council authorised border crossings, commencing prior to 2014 and continuing in 2021.66 Conversely, though, her analysis is in line with the UN’s persisting acceptance of the absolute necessity of Security Council authorisation of cross-border assistance in Syria, in the absence of host State consent. Whether one asserts that non-consensual humanitarian assistance is supported by a positive rule of customary international law, or that it does not violate territorial integrity in the first place, either way it diverges from the conventional view. The persisting consensus regarding the requirement of consent is reflected in the soft-law principles and guidelines referred to above, all of which reaffirm the requirement of consent, albeit also generally reaffirming the proposition that consent must not be arbitrarily withheld.67 Public international law applies to States and international organisations, not private actors. Thus, non-government organisations (NGOs) wishing to provide assistance without the consent of the host State are not prohibited by international law from doing so. They (and their staff) are subject to the national laws of the host State, which almost invariably prohibit the unauthorised entry into the country, however as Ryngaert has observed, in a practical sense a State may have limited ability to enforce transgressions of its sovereignty in areas outside its control. This leaves humanitarian actors “free to ship humanitarian goods across the border, provided obviously that they can secure the consent of the armed groups that are in control of the relevant territory”.68 Whether to operate in opposition-controlled areas in the absence of host-State consent is ultimately a case-by-case decision for NGOs, based on a range of policy and practical considerations. The remainder of this chapter focuses primarily on the provision of humanitarian assistance by States and international organisations. For purposes of the discussion, it proceeds on the assumption that for these actors, the provision of humanitarian assistance in the territory of a host State without either the consent of the host government or Security Council authorisation would be regarded as an unlawful interference in the host State’s territorial integrity, unless it can be argued that the wrongfulness of the conduct is precluded by a ground recognised in international law as excusing otherwise unlawful acts.

65

Nowak 2020, p 65. NGO Forum Northwest Syria 2020; Author interviews with staff of NGOs operational in Syria, 2020–2021. 67 UNGA (1991) Resolution 46/182 (1991), UN Doc. A/RES/46/182; ILC (2016) Report of the International Law Commission on the work of its 68th Session, UN Doc. A/71/10, p 59; Institute of International Law 1989. In contrast, however, see International Institute of Humanitarian Law 1992, stating that when an offer of humanitarian assistance is refused, “the States and organisation concerned may undertake all necessary steps to ensure such access” (principle 4 of the Guiding Principles on the Right to Humanitarian Assistance). 68 Ryngaert 2013, p 17. 66

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5.3 Necessity as a Circumstance Precluding the Wrongfulness of an Internationally Wrongful Act The ILC’s 2001 Draft Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA), and the Draft Articles on the Responsibility of International Organisations (ARIO), recognise six circumstances that may preclude the wrongfulness of conduct that would otherwise breach an international obligation: consent; self-defence; countermeasures; force majeure; distress; and necessity.69 It is possible to argue that unauthorised relief operations ought to be characterisable as countermeasures, however this is not well supported by the current text of the ARSIWA. The ARSIWA define countermeasures as applying only “in the relations between an injured State and the State which has committed the internationally wrongful act”,70 and the ILC’s commentaries state explicitly that countermeasures do not include “measures taken by a State to ensure compliance with obligations in the general interest as distinct from its own individual interest”.71 The ILC does reserve judgment on the question of whether international law permits a State or international organisation to “take measures to ensure compliance with certain international obligations in the general interest as distinct from its own individual interest”, however notes that whether or not such measures are permissible, they “do not qualify as countermeasures”.72 Whether non-consensual humanitarian relief operations are characterizable as countermeasures has been considered (albeit briefly) by other scholars,73 and—in light of the fact that such analysis is not supported by the current text of the ARSIWA—is not examined further here. More pertinent to the issue of unauthorised humanitarian assistance is the circumstance of necessity. Both the ARSIWA and the ARIO state that necessity may preclude the wrongfulness of conduct by a State or international organisation if it is the only way for the State or international organisation to safeguard an essential interest against a grave and imminent peril.74 In its Commentary to the ARSIWA, the ILC cites the judgment of the ICJ in the Gabˇcíkovo-Nagymaros Project case, in which 69

ILC (2001) Report of the International Law Commission on the Work of its 53rd Session, UN Doc. A/56/10, pp 71–80; ILC (2011) Report of the International Law Commission on the Work of its 63rd Session, UN Doc. A/66/10, pp 111–118. 70 ILC (2001) Report of the International Law Commission on the Work of its 53rd Session, UN Doc. A/56/10, 75 (emphasis added). This restriction is not replicated in the ARIO or associated Commentaries, however the ILC suggests that the provisions in the ASR regarding countermeasures between states apply by analogy to countermeasures taken by international organisations: ILC (2011) Report of the International Law Commission on the Work of its 63rd Session, UN Doc. A/66/10, p 72. 71 ILC (2001) Report of the International Law Commission on the Work of its 53rd Session, UN Doc. A/56/10, p 76. 72 Ibid. 73 See, e.g., Akande and Gillard 2016, pp 54–55; Ryngaert 2013, p 15; Stoffels 2004, p 537. 74 ILC (2001) Report of the International Law Commission on the Work of its 53rd Session, UN Doc. A/56/10, p 80; ILC (2011), Report of the International Law Commission on the Work of its 63rd Session, UN Doc. A/66/10, p 118.

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the Court affirmed that the state of necessity was “a ground recognised by customary international law for precluding the wrongfulness of an act not in conformity with an international obligation”.75 The ILC does not exhaustively enumerate what type of interests may be considered “essential”, for purposes of invoking the plea of necessity. In its Commentary to the ARSIWA, it notes that the interest may be that of the State engaged in the wrongful act, or the “international community as a whole”; and that the assessment of whether an interest is essential “depends on all the circumstances, and cannot be prejudged”.76 As examples of interests in relation to which necessity has been invoked, the ILC cites “safeguarding the environment, preserving the very existence of the State and ensuring the safety of a civilian population”.77 Scholars have proffered further examples of “essential interests”: Ryngaert, for example, suggests “the international community’s interest in seeing a civilian population’s right to humanitarian assistance respected”;78 Gillard suggests “preventing severe suffering of the civilian population”;79 Sarah Heathcote suggests “the preservation of the natural environment or the ecological equilibrium” and “maintenance of the food supply of the population”;80 and Ian Johnstone suggests broadly that the concept of essential interests is best seen as a “‘safety valve’ to protect widely accepted human security rather than national interests”.81 The Dutch Advisory Committee on Public International Law has suggested that “necessity could perhaps be successfully invoked if the civilian population faced a serious and imminent threat, for example starvation or a devastating epidemic”.82 The assertion that alleviating the suffering of a civilian population is an essential interest of the “international community as a whole” is supported by the concept of erga omnes obligations, discussed above, recognised by the ICJ in Barcelona Traction and affirmed by the International Law Institute in 1989. If it is recognised that there is a particular category of rights that the international community has a collective legal interest in protecting (rights giving rise to obligations erga omnes), then it ought to follow that the protection of those rights is also an “essential interest” of the international community as a whole, such as to support a plea of necessity. This 75

ICJ, Case Concerning the Gabˇcíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, 25 September 1997 (The Gabˇcíkovo-Nagymaros Project Case), [1997] ICJ Rep 7, para 51. 76 ILC (2001), Report of the International Law Commission on the Work of its 53rd Session, UN Doc. A/56/10, pp 80, 83. This pertains only to the conduct of States, however the ILC’s Commentaries to the Draft Articles on the Responsibility of International Organisations suggest that the conditions for the invocation of necessity described in the Draft Articles on State Responsibility apply in the same way to international organisations: ILC (2011) Report of the International Law Commission on the Work of its 63rd Session, UN Doc. A/66/10, p 119. 77 ILC (2001) Report of the International Law Commission on the Work of its 53rd Session, UN Doc. A/56/10, p 83. 78 Ryngaert 2013, p 15. 79 Gillard 2014, p 373. 80 Heathcote 2020, p 496. 81 Johnstone 2005, p 340. 82 Brölmann et al. 2014, p 22.

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appears to have been the approach taken by the ILC in its 2019 Draft Conclusions on Peremptory Norms of International Law, which state that “peremptory norms of general international law (jus cogens) give rise to obligations owed to the international community as a whole (obligations erga omnes), in which all States have a legal interest”, and that “any State is entitled to invoke the responsibility of another State for a breach of a peremptory norm of general international law (jus cogens), in accordance with the rules on the responsibility of States for internationally wrongful acts.”83 The Draft Conclusions define peremptory norms of international law (those giving rise to obligations erga omnes) as norms which are: (a) “general norm[s] of international law”; and (b) “accepted and recognised … as [norms] from which no derogation is permitted and which can be modified only by a subsequent norm of general international law”.84 This is broadly reflective of the approach taken by the ICJ in Barcelona Traction, which refers to rights giving rise to obligations erga omnes as rights which have “entered into the body of general international law” or are “conferred by international instruments of a universal or quasi-universal character”.85 As noted above, numerous scholars have asserted—even without reference to erga omnes obligations—that the alleviation of civilian suffering through the provision of humanitarian assistance ought broadly to be regarded as an essential interest, for purposes of the plea of necessity. As described by the ILC, however, the assessment of whether an interest is essential—within the meaning of the doctrine of necessity— “depends on all the circumstances, and cannot be prejudged”.86 As such, recognising the alleviation of civilian suffering as a broad category of essential interest will not suffice to show that the particular interest in question is essential in a particular case. In making such an assessment, recourse must be had to the question of precisely what rights are not being enjoyed by the population in question, and—drawing from the concept of obligations erga omnes—what the status of those rights is in international law. It is beyond the scope of this chapter to enquire into the status of all rights that might be affected in such a scenario. Suffice to note, however, that the right to life is widely recognised as a peremptory norm of general international law (jus cogens) and as a norm from which no derogation is permitted87 —thus, according to 83

ILC (2019) Report of the International Law Commission on the Work of its 71st Session, UN Doc. A/74/10, p 145. 84 Ibid., p 157. 85 Barcelona Traction 1970, above n 48, para 34; and see the discussion in Teraya 2001, pp 931–34. 86 ILC (2001) Report of the International Law Commission on the Work of its 53rd Session, UN Doc. A/56/10, p 83. 87 See: Blay 2005; Gormley 1985; UN Human Rights Committee (2019) General Comment 36: Right to Life, UN Doc. CCPR/C/GC/36, p 1 (recognising the right to life as ‘the supreme right from which no derogation is permitted); UN Economic and Social Committee (1986) Implementation of the Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief, UN Doc. A/CN.4/1987/35, p 22 (describing the right to life as ‘forming part of jus cogens’); IACHR, Victims of the Tugboat “13 de Marzo” v Cuba, 16 October 1996, Case No 11.436, para 79 (describing the right to life as jus cogens, a peremptory norm of international law and non-derogable).

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the formula established by the ILC in its Draft Conclusions on Peremptory Norms, a right giving rise to obligations erga omnes. The UN Human Rights Committee (HRC) recently affirmed that the right to life “should not be interpreted narrowly”, and that it “concerns the entitlement of individuals to be free from acts and omissions that are intended or may be expected to cause their unnatural or premature death, as well as to enjoy a life with dignity”.88 The HRC said that the right implies a duty on the part of States to “take appropriate measures to address the general conditions in society that may give rise to direct threats to life or prevent individuals from enjoying their right to life with dignity”, including “widespread hunger and malnutrition and extreme poverty and homelessness”; and that this calls for “measures designed to ensure access … to essential goods and services such as food, water, shelter, healthcare, electricity and sanitation, and other measures designed to promote and facilitate adequate general conditions, such as … emergency response operations”.89 If the suffering of a civilian population amounts to deprivation of the right to life with dignity, then it ought to follow that there is an obligation erga omnes to alleviate that suffering, and in turn, that the alleviation of that suffering is an essential interest of the international community—such as to justify a plea of necessity. In relation to international organisations, it is worth noting further that the ILC’s Commentary on the ARIO suggests that the plea of necessity will have particular relevance where the “essential interest” at stake is one that the international organisation in question has been charged with protecting. Thus, “when an international organisation has been given powers over certain matters, it may, in the use of these powers, invoke the need to safeguard an essential interest of the international community”.90 One of the purposes of the UN is to achieve “international cooperation in solving problems of [a] … humanitarian character, and in promoting and encouraging respect for human rights”.91 This clearly coincides with an interest of the international community. Thus, it may be surmised that the UN is particularly well placed to invoke either the alleviation of humanitarian suffering or the protection of human rights as an essential interest that needs to be safeguarded, such as to justify a plea of necessity. In order for an essential interest to justify a plea of necessity, the essential interest must be subject to “grave and imminent peril”. This is not defined in the ILC Commentaries, beyond a stipulation that the peril must be “objectively established and not merely apprehended as possible”, and also “imminent in the sense of being proximate”.92 The ICJ in the Gabˇcíkovo-Nagymaros Project case noted that the peril 88

UN Human Rights Committee (2019) General Comment 36: Right to Life, UN Doc. CCPR/C/GC/36, para 3. 89 Ibid., para 26. 90 ILC (2011) Report of the International Law Commission on the Work of its 63rd Session, UN Doc. A/66/10, p 120. 91 Charter of the United Nations, opened for signature 26 June 1945, 1 UNTS XVI, 26 June 1945 (entered into force 24 October 1945) (UN Charter), Article 2(3). 92 ILC (2001) Report of the International Law Commission on the Work of its 53rd Session, UN Doc. A/56/10, p 83.

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may be “far off”, but that it must nevertheless be “certain and inevitable”.93 The ILC has acknowledged that there may be a degree of scientific uncertainty in assessing whether a peril is grave and imminent—thus, as Heathcote observes, “the existence of a measure of scientific uncertainty need not preclude necessity”.94 The ARSIWA, the ARIO and the ICJ in the Gabˇcíkovo-Nagymaros Project case all state that necessity may only be invoked if it does not seriously impair an essential interest of the wronged State.95 There is little question that territorial integrity is an essential interest of States. But while territorial integrity is itself an essential interest, it may be argued that that interest would not be seriously impaired by the targeted provision of lifesaving, non-consensual humanitarian assistance. The possibility that some actions might impair an essential interest, but only marginally, was considered by Special Rapporteur on State Responsibility Roberto Ago in 1980. Ago said that while serious assaults on sovereignty could never be justified by a state of necessity, it was possible that circumstances of necessity could preclude the wrongfulness of “less serious” assaults, such as “actions by States in the territory of other States which, … serve only limited intentions and purposes bearing no relation to the purposes characteristic of a true act of aggression.”96 Ago described the common feature of such cases as being “the existence of a grave and imminent danger to the State, to some of its nationals or simply to people, a danger of which the territory of the foreign State in question has a duty to avert by its own action but which its unwillingness or inability to act allows to continue”.97 In 1999, Special Rapporteur James Crawford considered the related issue of whether circumstances of necessity could preclude the wrongfulness of a violation of only some “aspects” of peremptory norms of international law. Referring specifically to the question of “humanitarian intervention”—a concept typically used to refer to the use of force for humanitarian protection purposes—Crawford said that while the 1996 Draft ARSIWA expressly excluded violations of peremptory norms (including the use of force) from the scope of the plea of necessity, [t]he commentary appears to suggest that this difficulty can be avoided by differentiating between the peremptory status of some aspects of the rules relating to the use of force (e.g. the prohibition of aggression) and the non-peremptory status of other aspects (e.g. the injunction against a use of force even when carried out for limited humanitarian purposes). By implication, therefore, necessity can excuse the wrongfulness of genuine humanitarian action, … since such action does not, at any rate, violate a peremptory norm.98 93

The Gabˇcíkovo-Nagymaros Project 1997, above n 75, para 54. Heathcote 2020, p 498. 95 ILC (2001) Report of the International Law Commission on the Work of its 53rd Session, UN Doc. A/56/10, p 80; ILC (2011) Report of the International Law Commission on the Work of its 63rd Session, UN Doc. A/66/10, p 118; The Gabˇcíkovo-Nagymaros Project 1997, above n 75, para 52. 96 ILC (1980) Addendum to the Eighth Report on State Responsibility, by Mr. Roberto Ago, Special Rapporteur, UN Doc. A/CN.4/318/ADD.5-7, p 39. 97 Ibid. 98 ILC (1999) Second Report on State Responsibility, by Mr. James Crawford, Special Rapporteur, UN Doc. A/CN.4/498, p 72. 94

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Crawford expressed concern that this “raises complex questions about the ‘differentiated’ character of peremptory norms”, and proposed therefore that “humanitarian intervention” not be encompassed within the scope of the plea of necessity.99 This is reflected in the 2001 ARSIWA, the Commentary to which states that “the question whether measures of forcible humanitarian intervention, … may be lawful under modern international law is not covered by article 25 [regarding necessity].”100 Regrettably, Crawford did not address the issue of humanitarian “interventions” that do not involve the use of force and only minorly impair a State’s essential interest. Such operations are neither explicitly included nor excluded from the scope of the plea of necessity. It seems reasonable to assert that in extreme circumstances, the provision of non-consensual humanitarian assistance could satisfy the conditions enumerated above: the “essential interest” would be the interest of the international community in protecting fundamental human rights; there are many real-world scenarios in which that interest is threatened by “grave and imminent peril”; and similarly there are many real-world circumstances in which the only way of safeguarding that interest is the provision of humanitarian assistance without consent.101 Assuming such pleas were accepted, this would effectively preclude the wrongfulness of what might otherwise—although not indisputably—be a violation of the host State’s territorial integrity. However, as many scholars have observed and as humanitarian practitioners know well, in such scenarios, “arguments based on law will not be used in litigation”.102 In reality, because such issues are unlikely to be adjudicated in court, the theoretical possibility of a successful plea of necessity is unlikely to assuage the concerns of States and international organisations about the prima facie illegality of humanitarian assistance provided without consent. Accordingly, the remainder of this chapter considers whether the General Assembly could play a role in facilitating the provision of humanitarian assistance by passing a resolution determining that the situation gives rise to a state of necessity, thus warranting (and legally justifying) the provision of humanitarian assistance without consent.

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Ibid. ILC (2001) Report of the International Law Commission on the Work of its 53rd Session, UN Doc. A/56/10, p 84 (emphasis added). 101 A similar conclusion is reached by: Ryngaert 2013, p 15; Gillard 2014, p 373; Akande and Gillard 2016, p 53; Spiermann 2002. 102 Gillard 2014, p 354. 100

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5.4 A Role for the General Assembly in Determining a State of Necessity The UN Charter empowers the General Assembly to make recommendations on any matters within the scope of the Charter.103 Article 11(1) explicitly empowers it to make recommendations regarding international peace and security, and Article 13(1) empowers it to make recommendations to assist in “the realization of human rights”.104 In the framework of the UN Charter, the Assembly’s recommendatory powers are subject to two explicit restrictions. The first is Article 12(1), which prohibits the Assembly from making recommendations with regard to disputes or situations in respect of which the Security Council is “exercising its functions”, unless the Council so requests. This provision was initially interpreted to mean that the Assembly was barred from considering any matter on the agenda of the Council;105 however as observed by the UN Legal Counsel in 1968, the Assembly has consistently interpreted the words “‘is exercising’ to mean ‘is exercising at this moment’”.106 In its Wall Advisory Opinion in 2004, the ICJ observed that “there has been an increasing tendency over time for the General Assembly and the Security Council to deal in parallel with the same matter concerning the maintenance of international peace and security”,107 and it found this “accepted practice” to be consistent with the UN Charter.108 This was relied upon by the President of the General Assembly in 2016, in rejecting an argument put forward by Syria, Russia and others that the Assembly violated Article 12(1) when it established the International, Impartial and Independent Mechanism for Syria.109 Today, Article 12(1) is generally regarded as having limited relevance.110 The more significant restriction on the General Assembly’s competence is Article 11(2), which provides that while the Assembly may discuss any question relating to the maintenance of international peace and security, any question “on which action is necessary shall be referred to the Security Council”. There are different views as to whether this prevents the Assembly from recommending the use of military force, however there is broad consensus that this restriction does not prevent the Assembly from recommending measures not including the use of force.111 As such, 103

UN Charter, above n 92, Article 10. Ibid., Article 11(1), 13(1)(b). 105 See Johnson 2014, p 109; Klein and Schmahl 2012a, p 290. 106 Klein and Schmahl 2012b, p 511. 107 ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004 (Wall Case), [2004] ICJ Rep 136, para 27. 108 Ibid., paras 27–28. 109 Wenaweser and Cockayne 2017, p 220. For the arguments put forward by Russia and others see: UNGA (2016) Verbatim Record, UN Doc. A/71/PV.66, pp 21–22, 26; UNGA (2017) Note Verbale dated 8 February 2017 from the Permanent Mission of the Russian Federation to the United Nations addressed to the Secretary-General, UN Doc. A/71/793. 110 Higgins et al. 2017, pp 59–60. 111 See White 2018; Klein and Schmahl 2012a; Andrassy 1956. 104

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it would appear to be well within the Assembly’s competence to pass a resolution recommending the provision of cross-border humanitarian assistance, with or without the consent of the host State. However, in light of the above discussion regarding the ambiguous legality of non-consensual humanitarian assistance, in order for an Assembly resolution to suffice as a basis for action by States and/or international organisations, it would need to do more than just recommend; it would also need to provide States and international organisations with a legal basis for action. The UN Charter does not endow the General Assembly with legislative or judicial authority. Nevertheless, in some situations Assembly resolutions may have a determinative effect—that is, they can make a determination regarding the application of existing legal principles to a particular set of facts. Such determinations are not legally binding, however if contained in a resolution passed by consensus or strong majority, they may attest to the existence of international consensus regarding the characterisation of a situation that would be difficult to refute.112 The making of determinations of this nature is firmly entrenched in the General Assembly’s practice. By way of example, the Assembly has: • Characterised situations as threats to international peace and security without those situations first having been described as such by the Security Council. To provide just one example, in 1980 the Assembly described the continued presence of foreign forces in Kampuchea as “seriously threatening international peace and security”, despite the Council not having determined as such.113 • Made determinations regarding the legitimacy of particular regimes, and the validity of the processes by which they came to power. In relation to Crimea in 2014, for example, the Assembly “underscor[ed] that the referendum held in the autonomous republic of Crimea and the city of Sevastopol … [had] no validity”.114 In 1976, the Assembly “proclaim[ed] that the racist regime of South Africa is illegitimate and has no right to represent the people of South Africa”.115 In relation to Korea in 1948, the Assembly “declare[d] that there has been established

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See: Öberg 2005; White 2005; Schachter 1964; Johnson 1955–6. UNGA (1980) Resolution 35/6 (1980), UN Doc. A/RES/35/6. For other examples see: UNGA (1960) Resolution 1568(XV) (1960) on South West Africa, UN Doc. A/RES/1568(XV); UNGA (1962) Resolution 1807(XII) (1962) on the Portuguese Territories, UN Doc. A/RES/1807(XII); UNGA (1963) Resolution 1889(XVIII) (1963) on Southern Rhodesia, UN Doc. A/RES/1889(XVIII); UNGA (1978) Resolution S-9/2 (1978) on Namibia, UN Doc. A/RES/S-9/2; UNGA (1980) Resolution ES-7/2 (1980) on Palestine, UN Doc. A/RES/ES-7/2; UNGA (1981) Resolution 36/27 (1981) on Israel and Iraq, UN Doc. A/RES/36/27; UNGA (1981) Resolution 36/172C (1981) on Angola, UN Doc. A/RES/36/172C. The Assembly’s competence to determine the existence of a threat to international peace and security is accepted by numerous scholars as uncontroversial: see Klein and Schmahl 2012a, p 503; Vallat 1952, p 74. 114 UNGA (2014) Resolution 68/262 (2014), UN Doc. A/RES/68/262. For other examples see: UNGA (1963) Resolution 1883(XVIII) (1963) on Southern Rhodesia, UN Doc. A/RES/1883(XVIII); UNGA (1973) Resolution 3111(XXVIII) (1973) on Namibia, UN Doc. A/RES/3111(XXVIII). 115 UNGA (1976) Resolution 31/6I (1976), UN Doc. A/RES/31/6I. 113

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a lawful government … having effective control and jurisdiction”, and that this was the “only such Government in Korea”.116 Characterised actions carried out by illegal regimes as null and void. In 1981, for example, the Assembly “declare[d] … that Israel’s decision to impose its laws, jurisdiction and administration on the occupied Syrian Golan Heights is null and void and has no legal validity and/or effect whatsoever”.117 The following year in relation to Namibia, the Assembly “declare[d] that all so-called laws and proclamations issued by the illegal occupation regime … are illegal, null and void”.118 Passed judgment on the legitimacy of struggles against illegitimate regimes. In relation to Namibia in 1982, for example, the Assembly reaffirmed “the legitimacy [of the struggle of the Namibian people] by all means at their disposal, … against the illegal occupation of their territory by South Africa”.119 Made findings regarding a State’s entitlement to Statehood. In 2012 the Assembly “decide[d] to accord to Palestine non-member observer State status in the United Nations”;120 and similarly in 1976, it recognised the South West People’s Organisation in Namibia as the “authentic representative of the Namibian people” and invited it to “participate in the sessions and the work of the General Assembly as an observer”.121 Issued quasi-judicial characterisations of State conduct. The Assembly has, variously, characterised State conduct as aggression,122 illegal,123 genocide,124 a violation of the territorial integrity of another State,125 a gross and systematic

UNGA (1948) Resolution 195(III) (1948), UN Doc. A/RES/195. UNGA (1982) Resolution ES-9/1 (1982), UN Doc. A/RES/ES-9/1. 118 UNGA (1982) Resolution 37/233A (1982), UN Doc. A/RES/37/233A. For other examples see: UNGA (1981) Resolution 36/226A (1981) on the Middle East, UN Doc. A/RES/36/226A; UNGA (1999) Resolution ES-10/6 (1999) on the occupied Palestinian Territory, UN Doc. A/RES/ES-10/6; UNGA (2014) Resolution 68/262 (2014) on Ukraine, UN Doc. A/RES/68/262. 119 UNGA (1982) Resolution 37/233A (1982), UN Doc. A/RES/37/233A. See also UNGA (1976) Resolution 31/6I (1976) on South Africa, UN Doc. A/RES/31/6I. 120 UNGA (2012) Resolution 67/19 (2012), UN Doc. A/RES/67/19. 121 UNGA (1976) Resolution 31/152 (1976), UN Doc. A/RES/31/152. 122 UNGA (1984) Resolution 39/50A (1984) on Namibia, UN Doc. A/RES/39/50A; UNGA (1981) Resolution 36/172C (1981) on South Africa, UN Doc. A/RES/36/172C; UNGA (1973) Resolution 3061(XXVIII) (1973) on the Portuguese Territories, UN Doc. A/RES/3061(XXVIII); UNGA (1981) Resolution 36/27 (1981) on Israel/Iraq, UN Doc. A/RES/36/27. 123 UNGA (1978) Resolution S-9/2 (1978) on Namibia, UN Doc. A/RES/S-9/2; UNGA (1969) Resolution 2508(XXIV) (1969) on Southern Rhodesia, UN Doc. A/RES/2508(XXIV). 124 UNGA (1982) Resolution 37/123D (1982) on the Middle East, UN Doc. A/RES/37/123D. 125 UNGA (1983) Resolution 38/10 (1983) on Central America, UN Doc. A/RES/38/10; UNGA (1983) Resolution 38/7 (1983) on Grenada, UN Doc. A/RES/38/10. 117

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violation of human rights,126 and a violation of the UN Charter,127 the Geneva Conventions128 and international humanitarian law.129 Made findings regarding a State’s entitlement to self-defence. In 1993, for example, the Assembly “reaffirm[ed] that the Republic of Bosnia and Herzegovina has the inherent right to individual or collective self-defence … until the Security Council has taken the measures necessary to maintain international peace and security”.130 Found States to be entitled to compensation. In 1986, for example, the Assembly “affirm[e]d the right of the Libyan Arab Jamahiriya to receive appropriate compensation” following a US attack on the cities of Tripoli and Benghazi.131 Made findings regarding the identity of parties to a conflict and the characterisation of a conflict, and affirmed the applicability of the Geneva Conventions in particular contexts. In relation to Namibia in 1984, for example, the Assembly “declare[d] that the liberation struggle … is a conflict of an international character” within the meaning of Article 1(4) of Additional Protocol I to the Geneva Conventions.132 In relation to the Syrian Golan Heights in 1982 the Assembly “reaffirm[ed] its determination that all the provisions of the Hague Conventions of 1907, and the [fourth Geneva Convention] continue to apply to the Syrian territory occupied by Israel”.133 Expressed its view on the “necessity” of particular courses of action, such as sanctions134 or assistance to national liberation movements.135 Specifically with regard to humanitarian crises, in relation to Hungary in the 1950s the Assembly affirmed the urgent need for food and medical supplies, and stated that the distribution of such supplies was being interfered with and that “humanitarian duties” could be “fulfilled most effectively through international cooperation”.136 In relation to South Africa in the 1980s, it reaffirmed that humanitarian assistance was “appropriate and essential”.137 In relation to Palestine, it has affirmed the “urgent

UNGA (1992) Resolution 47/121 (1992) on Bosnia and Herzegovina, UN Doc. A/RES/47/121. UNGA (1956) Resolution 1005(ES-II) (1956) on Hungary, UN Doc. A/RES/1005(ES-II); UNGA (1981) Resolution 36/27 (1981) on Israel/Iraq, UN Doc. A/RES/36/27. 128 UNGA (1982) Resolution 37/123F (1982) on the Middle East, UN Doc. A/RES/37/123F. 129 UNGA (2003) Resolution ES-10/12 (2003) on the occupied Palestinian Territory, UN Doc. A/RES/ES-10/12. 130 UNGA (1992) Resolution 47/121 (1992), UN Doc. A/RES/47/121. 131 UNGA (1986) Resolution 41/38 (1986), UN Doc. A/RES/41/38. For another example see UNGA (1985) Resolution 40/6 (1985) on Israel/Iraq, UN Doc. A/RES/40/6. 132 UNGA (1984) Resolution 39/50A (1984), UN Doc. A/RES/39/50A. 133 UNGA (1982) Resolution ES-9/1 (1982), UN Doc. A/RES/ES-9/1. See also UNGA (1982) Resolution 37/233A (1982) on Namibia, UN Doc. A/RES/37/233A. 134 UNGA (1981) Resolution 36/172D (1981) on South Africa, UN Doc. A/RES/36/172D; UNGA (1967) Resolution 2262(XXII) (1967) on Southern Rhodesia, UN Doc. A/RES/2262(XXII). 135 UNGA (1979) Resolution 34/93A (1979) on South Africa, UN Doc. A/RES/34/93A. 136 UNGA (1956) Resolution 1005 (ES-II) (1956), UN Doc. A/RES/1005/ES-II. 137 UNGA (1979) Resolution 33/183A (1979), UN Doc. A/RES/33/183A. 127

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necessity for international assistance”,138 as well as the “necessity” for the unimpeded operation of the UN Relief and Works Agency for Palestinian Refugees in the Near East and of ensuring open borders for Palestinian refugees.139 The ICJ has accepted that in certain situations, the General Assembly is competent to pass resolutions with determinative effect. In its 1971 Namibia Advisory Opinion, the Court was called upon to consider the validity of a determination by the Assembly that South Africa had breached its mandate in Namibia. It found that the Assembly was “not making a finding on facts, but formulating a legal situation”, and that it would not be correct to assume that, because [the Assembly] is in principle vested with recommendatory powers, it is debarred from adopting, in special cases within the framework of its competence, resolutions which make determinations or have operative design.140

Moreover, beyond explicitly recognising that the General Assembly is competent to pass resolutions with determinative effective, the ICJ has repeatedly affirmed that the practice of the political organs of the UN should serve as a guide to the interpretation of their powers. In its Certain Expenses Advisory Opinion, for example, in considering whether expenses related to peacekeeping operations could be considered “expenses of the organization” within the meaning of Article 17(2) of the UN Charter, the Court referred to the Assembly’s “consistent practice” of including such expenses in its budget resolutions, and found no basis for “challenging the legality of the [Assembly’s] settled practice”.141 In Namibia, the Court referred to the Security Council’s practice of accepting abstentions from the Council’s permanent members in lieu of affirmative votes, and found that the procedure had been “generally accepted by Members of the United Nations and evidences a general practice of that Organisation”.142 In its Wall Advisory Opinion, in deciding whether Article 12(1) of the UN Charter prohibited the Assembly from requesting an Advisory Opinion on a matter that was on the agenda of the Council, the Court—as discussed above—referenced the “increasing tendency over time” for the Assembly and the Council to “deal in parallel with the same matter”, and found the “accepted practice of the General Assembly” to be consistent with the Charter.143 It is pertinent to note that the Court has relied upon the “practice of the organization” without referencing the acceptance of that practice by member States,144 and relatedly, that in assessing such practice the Court has not constrained itself to reliance on resolutions adopted unanimously. 138

UNGA (1994) Resolution 49/21N (1994), UN Doc. A/RES/49/21N. UNGA (2016) Resolution 71/93 (2016), UN Doc. A/RES/71/93. 140 ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 21 June 1971 (Namibia), [1971] ICJ Rep 16, para 105. 141 ICJ, Certain Expenses of the United Nations, Advisory Opinion, 20 July 1962 (Certain Expenses), [1962] ICJ Rep 151, pp 160–162. 142 Namibia 1970, above n 140, para 22. 143 Wall 2004, above n 107, paras 27–28. 144 See ILC (2015) Third Report on Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties, Report by Georg Nolte, Special Rapporteur, UN Doc. A/CN.4/683, pp 16–17, discussing: ICJ, Competence of the General Assembly for the Admission of a State to the 139

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On several occasions the Court has relied upon resolutions adopted with negative votes, finding it sufficient—in order for the resolutions to attest to the practice of the organization—for the resolutions to be adopted “by the requisite two-thirds majority”.145 Accordingly, it would appear that in the case of the Assembly there is a very clear “practice of the organization” of passing resolutions which—in the words of the ICJ in Namibia—“make determinations or have operative design”.146 Several scholars have recognised the General Assembly’s determinative competence. Nigel White, for example, suggests that Assembly determinations adopted either by consensus or large majorities may be “acceptable as authoritative … legal determinations.”147 Oscar Schachter observes similarly that the political organs of the UN have on several occasions “passed judgments on whether States have observed their obligations”, and that “in some of these cases, the proceedings may be said to exhibit a broad consensus on the characterisation of certain conduct as legally impermissible.148 Michael Ramsden, similarly again, asserts that the Assembly is “able to certify the existence of a state of affairs in international relations”, and that such certifications are “capable of having a ‘quasi-judicial character’, resolving questions that are not readily susceptible to judicial determination”.149 General Assembly determinations have been accorded evidentiary value in international courts and tribunals. In its 2007 Judgment in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), the ICJ noted the fact that the Assembly had condemned “the killing of civilians in connection with ethnic cleansing” in Bosnia and Herzegovina and “express[ed] alarm at reports of mass killings”, and it concluded that “massive killings” had occurred.150 The Assembly’s resolutions in that case assisted by corroborating the “overwhelming evidence” regarding the occurrence of atrocities.151 More substantively, in 2015 the Prosecutor of the International Criminal Court (ICC) referred to the Assembly’s resolution granting Palestine observer status in the UN, and concluded that from the date of the Assembly’s resolution, Palestine was entitled to accept the jurisdiction of the ICC.152 The Court said that the Assembly’s resolution was “determinative of Palestine’s ability to accede to the [ICC] Statute”.153 United Nations, Advisory Opinion, 3 March 1950, [1950] ICJ Rep 4; ICJ, Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, Advisory Opinion, 15 December 1989, [1989] ICJ Rep 177; Certain Expenses 1962, above n 141. 145 Certain Expenses 1962, above n 141, p 174; Wall 2004, above n 107, para 27; and see discussion in Arato 2013, pp 320–29. 146 Namibia 1970, above n 140, para 105. 147 White 2005, p 178. 148 Schachter 1964, p 961. 149 Ramsden 2016, p 15. 150 ICJ, 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, paras 274–276. 151 Ibid., para 276. 152 ICC 2015. 153 Ibid. (emphasis added).

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Similarly, in its preliminary investigation into the situation in Georgia in 2015, the ICC’s Pre-Trial Chamber cited Assembly resolutions referring to South Ossetia as part of Georgia, and went on to say that the Prosecutor therefore “considers that South Ossetia was a part of Georgia at the time of commission of the alleged crimes”.154 Similarly again, in relation to Crimea, the ICC Prosecutor referred to the Assembly’s determination that the referendum preceding the alleged incorporation of Crimea into Russia had been invalid, and thus found that the “situation within the territory of Crimea and Sevastopol factually amounts to an ongoing state of occupation”.155 More recently, the ICJ in January 2020 relied on General Assembly resolutions when it ordered provisional measures to prevent genocide in Myanmar. The Court cited— among other things—the Assembly’s “deep distress … that unarmed individuals in Rakhine State … continue to be subjected to the excessive use of force and violations of human rights and international humanitarian law by the military and security and armed forces”, and it concluded that there was a “real and imminent risk” of genocide.156 There are a range of determinative statements that the Assembly could make in order to strengthen the legal basis for States and/or international organisations to provide humanitarian assistance inside the territory of a State without the consent of the host government. First, bearing in mind what has been said above about humanitarian assistance and the principle of non-intervention, it should be noted as a starting point that the Assembly could pass a resolution affirming the principle recognised by the ICJ in Nicaragua and Barcelona Traction, that exclusively humanitarian assistance is not an unlawful intervention in the internal affairs of a State. Beyond that, the Assembly could: affirm the extent and urgency of humanitarian needs; affirm that needs cannot be sufficiently met via currently authorised cross-border and cross-line access routes; declare that the wrongfulness of what might otherwise be regarded as an unlawful intervention by States and/or international organisations may be precluded on the ground of necessity; declare that the protection of the rights of the civilian population is an essential interest of the international community, and that that essential interest faces grave and imminent peril; and declare that the only way of safeguarding that interest is for States and international organisations to provide lifesaving humanitarian assistance utilising any possible access routes. By passing such a resolution, the Assembly would effectively be making a pre-emptive, quasi-judicial finding that the wrongfulness of what might otherwise be an unlawful interference in the host State’s territorial integrity—the provision of humanitarian assistance without consent—would be precluded by the plea of necessity. In October 2020 the General Assembly’s Third Committee passed a draft resolution on Syria, which came close to doing just this. The resolution “[e]mphasis[ed] 154

ICC, Situation in Georgia, Request for Authorisation of an Investigation Pursuant to Article 15, 17 November 2015, Case No. ICC-01/15, p 33. For discussion of this and the Palestine case, see Ramsden and Hamilton 2017, p 904. 155 ICC 2016, p 35. 156 ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v Myanmar), Order for Provisional Measures, 23 January 2020 (Gambia v Myanmar), para 75.

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that the humanitarian cross-border mechanism remains an essential and life-saving channel to address the humanitarian needs of a significant portion of the population of the Syrian Arab Republic, which cannot be reached through existing operations within the Syrian Arab Republic”. It also “call[ed] for the continuation of crossborder humanitarian support beyond July 2021”—July 2021 was at that time the expiry of the Security Council’s resolution authorising cross-border assistance.157 The resolution did not go quite so far as to adopt the legal language of necessity as a circumstance precluding wrongfulness, in the terms used in the ARSIWA and the ARIO; but language such as this may nevertheless suffice to convey the view of most of the member States of the UN that a continuation of cross-border humanitarian assistance, with or without authorisation, is the only way to protect an essential interest of the international community.

5.5 Conclusion This chapter has sought to address three specific legal questions pertaining to the provision of humanitarian assistance without host State consent. Namely, does such assistance violate the host State’s territorial integrity; if so, in the context of a humanitarian crisis, could the prima facie wrongfulness of such violation be precluded on the grounds of necessity; and if so, could the General Assembly play a role by passing a resolution determining that the situation in question constitutes a circumstance of necessity, such as to warrant the provision of humanitarian assistance without host State consent. It has been argued that the answer to the first of these questions ought to be no (albeit accepting that this is not the conventional view); and that the answer to questions two and three should be yes. In order to provide the strongest possible basis for action, both legal and political, a General Assembly resolution determining that a particular set of circumstances constitute a situation of necessity, thus warranting the provision of humanitarian assistance without host State consent, would ideally be coupled with a recommendation that humanitarian assistance be provided. That is to say, the Assembly could pass a resolution recognising the international community’s essential interest in protecting fundamental human rights, such as the right to life with dignity; recognising that that essential interest faces grave and imminent peril; recognising that the only way for the right in question to be protected is through the provision of humanitarian assistance; and on that basis recommending that States and international organisations provide humanitarian assistance via any possible access routes—including from across international borders. This chapter is motivated as much by a desire to progress scholarship on these legal issues for the benefit of those in future humanitarian crises, as it is by a desire to see General Assembly action on the Syrian crisis now. That being said, it is obviously 157

UNGA Third Committee (2020) Situation of Human Rights in the Syrian Arab Republic, UN Doc. A/C.3/75/L.33.

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in relation to Syria that these legal issues are most immediately relevant. It is thus pertinent to observe that in that context, the question of whether these legal issues are of any more than academic interest hinges on two questions: first, whether there is any prospect (politically) of the Assembly passing such a robust resolution on Syria; and second, whether such a resolution would in fact make a difference for donor States, the UN or NGOs. Such questions are largely beyond the scope of this chapter, however some brief observations can be made. Regarding the likelihood of the Assembly passing such a resolution, it is worth noting that the Security Council’s paralysis in relation to the Syrian crisis has prompted criticism of the Council at a level scarcely seen since the Cold War. In 2012, the Assembly by a large majority passed a resolution “deploring the failure of the Security Council”,158 reflecting language last used to condemn Western States’ use of the veto in relation to South African apartheid in the 1980s. The successive Russian/Chinese vetoes blocking action on Syria since 2011 have been consistently condemned by the Council’s other members, particularly when used to limit humanitarian access. When Russia and China vetoed a resolution to block the Council’s re-authorisation of two border crossings in northwest Syria in July 2020, US Ambassador Kelly Craft said that: The US will not relent in its efforts to reach those in need in Syria. We will not restrain our outrage. We will not cede to Russian and Chinese cynicism. We will not believe or give credence to Russian and Chinese lies and misdirection about what is happening on the ground. This must stop, and it must stop now. I ask all my UN counterparts to speak now and speak with one voice to repudiate this action and demand its reversal.159

The Security Council’s ineffectiveness in relation to Syria has prompted not only condemnation of the Council, but increased interest in the role of the General Assembly. In 2016, the Canadian Government on behalf of 69 member states wrote to the General Assembly President, noting that the General Assembly had “responsibilities which should be exercised”, and requesting that “concerted action” be explored.160 The Assembly’s establishment of the International, Impartial and Independent Monitoring Mechanism for Syria in 2015 broke new ground for the Assembly in the field of international justice, and—as discussed above—was achieved despite objections from Syria and Russia that the Assembly was encroaching on the Council’s exclusive remit. The growing interest in recourse to the Assembly when the Council is paralysed by the veto has been highlighted most recently by Liechtenstein’s proposal that the Assembly be convened every time a Security Council resolution is vetoed.161 With this background, it seems feasible that if the Council fails to authorise crossborder humanitarian assistance in the face of well-established humanitarian need, there could be appetite within the General Assembly to assume a more prominent role with a view to providing a legal basis for such assistance to proceed. Indeed, the October 2020 resolution of the Assembly’s Third Committee on Syria, passed 158

UNGA (2012) Resolution 66/253B (2012), UN Doc. A/RES/66/253B. United States Mission to the United Nations 2020. 160 Permanent Mission of Canada to the UN 2016. 161 See Wenaweser and Alavi 2020. 159

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with 99 votes in favour to 13 against with 61 abstentions, suggests as such.162 It is worth noting here that the Assembly’s previous determinative resolutions have been accorded evidentiary value by the ICJ despite having been adopted with significant negative votes. The Assembly’s resolution declaring the 2014 referendum in Crimea to be invalid, for example, later relied upon by the ICJ to find that the situation in Crimea amounted to a situation of occupation, was passed by a majority of 100 in favour to 11 against, with 58 abstentions.163 The Assembly’s resolution regarding the situation of the Rohingya in Myanmar, relied upon by the ICJ to support its finding that there was a “real and imminent risk of genocide”, was adopted by a majority of 134 to 9, with 28 abstentions.164 Based on this precedent, one could expect a General Assembly resolution describing a particular set of circumstances as giving rise to a state of necessity to be accorded evidentiary value by the ICJ—in the hypothetical scenario of such a matter actually coming before the Court—provided it was adopted by the requisite two-thirds majority. As to what practical difference such a resolution would make in Syria, and for whom, it may be observed firstly that some States have always been willing to fund (and have funded, and at the time of writing continue to fund) NGOs to operate in opposition-held areas other than those accessed via the Security Council-authorised border crossings. However, there are also States—in particular smaller donors who lack the capacity to conduct their own legal/political analyses—that are unwilling to fund humanitarian assistance in opposition-held areas in the absence of either host State consent or Security Council authorisation. It seems reasonable to suppose that for these States, a General Assembly resolution such as that described above could provide the assurance they require in order to fund programs in these contentious circumstances.165 More significant than the availability of funding from donor States, however, is the role played by the UN. At the time of writing, the UN is relying upon a legal assessment that it may not either directly operate, or fund programs, inside Syria without either the Syrian Government’s consent or the Security Council’s authorisation. A large portion of humanitarian funds are channelled through UN agencies, and the UN plays an indispensable role in the leadership and coordination of cross-border operations, as well as providing critical administrative, logistical and technical support to NGOs. NGOs in northwest Syria assert that a discontinuation of UN involvement in cross-border humanitarian operations would have devastating implications for Syrians.166 It is not known to this author what would be required 162

UNGA Third Committee (2020) Recorded Vote on A/C.3/75/L.33. https://www.un.org/en/ga/ third/75/docs/voting_sheets/L.33.pdf. Accessed 22 January 2020. 163 UNGA (2014) Resolution 68/262 (2014), UN Doc. A/RES/68/262; for voting record see UNGA (2014) Verbatim Record, 68th Session, 80th Plenary Meeting, UN Doc. A/68/PV.80; and for ICJ reliance on the resolution see The Gambia v Myanmar 2020, above n 156, para 75. 164 UNGA (2019) Verbatim Record, 74th Session, 52nd Plenary Meeting, UN Doc. A/74/PV.52, p 35. 165 The discussion in this paragraph is based on interviews conducted (remotely) with the staff of international NGOs operating in northwest and northeast Syria, as well as donors, January 2021. 166 Ibid.

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in order for the UN to reconsider its legal assessment regarding the feasibility of operating without Security Council authorisation; one might hope, however, that a General Assembly resolution describing the situation as one of necessity, such as to legally justify the provision of humanitarian assistance without either host State consent or Security Council authorisation, might be persuasive. As noted above, at the time of writing cross-border assistance in Syria is authorised through till January 2022, with the expectation of a further six-month renewal, through till July 2022. Beyond that, the future of cross-border assistance in Syria is uncertain, and moreover, it seems almost inevitable that a similar scenario will be encountered in future humanitarian crises. It could not have been the intention of the drafters of the Charter of the UN, let alone the diplomats at the 1974–77 Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law, that the provision of life-saving humanitarian assistance in territory controlled by non-State actors would be so precarious. For now, legal arguments notwithstanding, humanitarian access in Syria is likely to remain curtailed so long as the conflict continues; but in the interests of those who will suffer the effects of future crises, the opportunity to explore all possible options for legally circumventing the significant restrictions on the provision of humanitarian assistance where consent is arbitrarily withheld should not be lost.

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UNGA (1983) Resolution 38/10 (1983), UN Doc. A/RES/38/10 UNGA (1984) Resolution 39/50A (1984), UN Doc. A/RES/39/50A UNGA (1985) Resolution 40/6 (1985), UN Doc. A/RES/40/6 UNGA (1986) Resolution 41/38 (1986), UN Doc. A/RES/41/38 UNGA (1991) Resolution 46/182 (1991), UN Doc. A/RES/46/182 UNGA (1992) Resolution 47/121 (1992), UN Doc. A/RES/47/121 UNGA (1994) Resolution 49/21N (1994), UN Doc. A/RES/49/21N UNGA (1999) Resolution ES-10/6 (1999), UN Doc. A/RES/ES-10/6 UNGA (2003) Resolution ES-10/12 (2003), UN Doc. A/RES/ES-10/12 UNGA (2012) Resolution 66/253B (2012) UN Doc. A/RES/66/253B UNGA (2012) Resolution 67/19 (2012), UN Doc. A/RES/67/19 UNGA (2014) Resolution 68/262 (2014), UN Doc. A/RES/68/262 UNGA (2014) Verbatim Record, 68th Session, 80th Plenary Meeting, UN Doc. A/68/PV.80 UNGA (2016) Resolution 71/93 (2016), UN Doc. A/RES/71/93 UNGA (2016) Verbatim Record, UN Doc. A/71/PV.66 UNGA (2017) Note Verbale dated 8 February 2017 from the Permanent Mission of the Russian Federation to the United Nations addressed to the Secretary-General, UN Doc. A/71/793 UNGA (2019) Verbatim Record, 74th Session, 52nd Plenary Meeting, UN Doc. A/74/PV.52 UNGA Third Committee (2020) Recorded Vote on A/C.3/75/L.33. https://www.un.org/en/ga/third/ 75/docs/voting_sheets/L.33.pdf. Accessed 22 January 2020 UNGA Third Committee (2020) Situation of Human Rights in the Syrian Arab Republic, UN Doc. A/C.3/75/L.33 United States Mission to the United Nations (2020) Statement from Ambassador Craft on Russian and Chinese Vetoes of a UN Security Council Resolution to Extend Cross-Border Aid in Syria. https://usun.usmission.gov/statement-by-ambassador-kelly-craft-on-the-russianand-chinese-veto-of-the-syria-humanitarian-resolution/. Accessed 15 January 2020 UN OCHA (2019) Under Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator, Mark Lowcock, Briefing to the Security Council on the Humanitarian Situation in Syria. https://reliefweb.int/sites/reliefweb.int/files/resources/Under%20Secretary-Gen eral%20for%20Humanitarian%20Affairs%20and%20Emergency%20Relief%20Coordinator% 2C%20Mark%20Lowcock%20-%20Briefing%20to%20the%20Security%20Council%20on% 20the%20humanitarian%20situation%20in%20Syria.pdf. Accessed 14 January 2021 UNSC (2014) Resolution 2165 (2014), UN Doc. S/RES/2165 UNSC (2019) Security Council Rejects 2 Draft Resolutions Authorising Cross-Border, Cross-Line Humanitarian Access in Syria, UN Doc. SC/14066 UNSC (2020) Implementation of Security Council Resolutions 2139 (2014) [and others on Syria]: Report of the Secretary General, UN Doc. S/2020/576 UNSC (2020) Resolution 2504 (2020), UN Doc. S/RES/2504 UNSC (2020) Resolution 2533 (2020), UN Doc. S/RES/2533 UNSC (2020) Review of Alternative Modalities for the Border Crossing of Ya’rubiyah: Report of the Secretary General, UN Doc. S/2020/139 UNSC (2021) Resolution 2585 (2021), UN Doc. S/RES/2585 USAID (2020) Syria Complex Emergency, Fact Sheet No 3. https://www.usaid.gov/crisis/syria/fy1 9/fs3. Accessed 15 January 2021 Vallat FA (1952) The General Assembly and the Security Council of the United Nations. British Yearbook of International Law 29: 63–104 Watts S (2014) Low Intensity Cyber Operations and the Principle of Non-Intervention. Baltic Yearbook of International Law 14: 137–162 Wenaweser C, Alavi S (2020) Innovating to Restrain the Use of the Veto in the United Nations Security Council. Case Western Reserve Journal of International Law 52(1) 65–72 Wenaweser C, Cockayne J (2017) Justice for Syria? Journal of International Criminal Justice 15(2): 211–230

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White N (2005) The Law of International Organisations, 2nd edn. Manchester University Press, Manchester White N (2018) The Relationship between the UN Security Council and the General Assembly in Matters of International Peace and Security. In: Weller M (ed) The Oxford Handbook of the Use of Force in International Law. Oxford University Press, Oxford

Cases IACHR, Victims of the Tugboat “13 de Marzo” v Cuba, 16 October 1996, Case No 11.436 ICC, Situation in Georgia, Request for Authorisation of an Investigation Pursuant to Article 15, 17 November 2015, Case No. ICC-01/15 ICJ, The Corfu Channel case, Merits, 9 April 1949, [1949] ICJ Rep 4 ICJ, Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion, 3 March 1950, [1950] ICJ Rep 4. ICJ, Certain Expenses of the United Nations, Advisory Opinion, 20 July 1962, [1962] ICJ Rep 151 ICJ, Case Concerning the Barcelona Traction, Light and Power Company, Limited (Belgium v Spain) (New Application: 1962), Judgment, 5 February 1970, ICJ Rep 3 ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 21 June 1971, [1971] ICJ Rep 16 ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment, 27 June 1986, [1986] ICJ Rep 14 ICJ, Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, Advisory Opinion, 15 December 1989, [1989] ICJ Rep 177 ICJ, Case Concerning the Gabˇcíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, 25 September 1997, [1997] ICJ Rep 7 ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, [2004] ICJ Rep 136 ICJ, 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, Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, 22 July 2010, [2010] ICJ Rep 141 ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v Myanmar), Order for Provisional Measures, 23 January 2020

Treaties Charter of the United Nations, opened for signature 26 June 1945, 1 UNTS XVI, 26 June 1945 (entered into force 24 October 1945) Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflict, opened for signature 8 June 1977, 1125 UNTS 609 (entered into force 7 December 1978)

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Rebecca Barber is a Research Fellow at the Asia Pacific Centre for the Responsibility to Protect and a Ph.D. Candidate at the TC Beirne School of Law, University of Queensland, Australia.

Chapter 6

Article 36: Review of AI Decision-Support Systems and Other Emerging Technologies of Warfare Klaudia Klonowska Contents 6.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2 Legal Review of a New Weapon, Means or Methods of Warfare . . . . . . . . . . . . . . . . . . . 6.2.1 Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2.2 Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3 Case Study: AI Decision-Support Systems . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3.1 Compliance with IHL Rules and Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3.2 Integrity to Military Decision-making . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3.3 Significance to Military Operations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3.4 Offensive Capabilities: The Co-production of Hostilities . . . . . . . . . . . . . . . . . . . 6.4 Discussion: A Legal Review of Technologies of Warfare . . . . . . . . . . . . . . . . . . . . . . . . . 6.5 Final Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract Artificial intelligence (AI) decision-support systems significantly impact how States make warfare decisions, conduct hostilities, and whether they comply with international humanitarian law. Decision-support systems, even if they do not autonomously execute targets, can play a critical role in the long chain of humanmachine and machine-machine decision-making infrastructure, thus contributing to the co-production of hostilities. Due to a lack of a definition of the treaty terms weapons, means or methods of warfare, it is unclear whether non-weaponized AI decision-support systems should be subjected to a legal review prescribed by Article 36 of the Additional Protocol I. It remains a challenge to determine exactly what should be subjected to review beyond weapons. This chapter suggests that based on the following four criteria it can be determined whether an item should be subjected to a legal review: (i) it poses a challenge to the application of international humanitarian law; (ii) it is integral to military decisionmaking; (iii) it has a significant impact on military operations; (iv) and it contributes to critical offensive capabilities. These four criteria are derived from a detailed analysis of the conceptualization of the terms weapons, means or methods of warfare by K. Klonowska (B) T.M.C. Asser Instituut, The Hague, The Netherlands e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2022 T. D. Gill et al. (eds.), Yearbook of International Humanitarian Law 2020, Yearbook of International Humanitarian Law 23, https://doi.org/10.1007/978-94-6265-491-4_6

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states. If an item meets all four criteria, it should not be deployed without the issue of legality being explored with care. By applying the legal review to AI decision-support systems, States fulfil the duty to observe international humanitarian law in decision-making and mitigate risks to unlawful conduct in warfare. The author further promotes the conceptualization of Article 36 as a review of technologies of warfare. Keywords Article 36 · Legal review · Technologies of warfare · Military AI · Decision-support systems · Recommender systems

6.1 Introduction A broad range of artificial intelligence (AI) systems are implemented into the military domain. Among the most vigorously discussed are AI decision-making systems such as autonomous weapon systems (AWS) where the operating system determines the course of action and enables an independent application of force.1 There is a wide range of AI decision-support systems defined as tools that use AI techniques to analyze data, provide actionable recommendations, and “assist decision-makers situated at different levels in the chain of command to solve semi-structured and unstructured decision tasks”.2 Decision-support systems may range from those that assist human operators in reach back facilities (e.g., in relation to drone strikes) to inflight control systems. Thus, in this chapter I make a conceptual distinction between decision-support AI technologies that assist human agents in making decisions, and decision-making AI that to a certain degree may replace human decision-makers.3 Decision-making systems, particularly those that autonomously apply force to inflict harm or cause damage, may not be lawfully deployed without a prior review of their system functionalities and compliance with international humanitarian law (IHL). However, it is not clear whether AI decision-support systems, particularly those that are non-weaponized, should be reviewed to ensure their compliance with IHL. This chapter devotes attention to the question of ensuring compliance of new technologies of warfare and the resulting military conduct with IHL. In this chapter, I argue that AI systems in the military domain deployed in relation to critical decision-making functions (e.g., targeting) should be brought under the Article 36 legal review, although not explicitly done so by the legislator. It is primarily 1

The definition of the autonomous weapon systems is highly contested. I use here the definition provided by the International Committee of the Red Cross that has been widely referenced by scholars. See ICRC 2014. 2 For more definitions of the decision-support systems, see Su¸ ¸ snea 2012, pp 132–133. 3 It may be questioned whether the distinction between decision-making and decision-support systems is useful. In fact, autonomy comes in degrees and AI technologies will fall somewhere on the scale in between these two categories. For the purposes of this chapter, the terms are used only to highlight the risks of excluding decision-support systems from the legal review due to their non-full autonomy in acting upon algorithmic recommendations and the involvement of the human in this process.

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because due to the many limitations discussed in this chapter—legal interpretation, battlefield complexities, and technical limitations—AI systems may indirectly lead to avoidable unlawful harm, damage or injury that Article 36 aspires to prevent from happening. The legal review is prescribed by Article 36 of the Additional Protocol (I) of the Geneva Conventions of 1977 (hereinafter, API): 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.4

This provision instructs States party to API (hereinafter, Parties) to conduct a careful assessment of the legality of “a new weapon, means or methods of warfare” before deployment. The treaty, however, does not define the key terms of this provision. Weapons, means or methods of warfare have been interpreted and re-interpreted by international institutions including the International Committee of the Red Cross (ICRC), states, and scholars. It remains unclear “what else should fall under the category of ‘means’ apart from, of course, weapons”.5 I observe that a shared understanding of the scope of Article 36 has evolved. Even though weapons remain at the core of the review, new items such as cyber capabilities are subjected to review. The discussion of whether AI systems other than AWS should be brought under legal review is nonetheless at its initial stages. At the Governmental Group of Experts (GGE) Convention on Conventional Weapons (CCW) States recognized the obligation to review AWS.6 The question of whether decision-support AI should also fall within the meaning of weapons, means or methods of warfare has not been explored in depth. Focusing on the regulation of weapons, we risk that the impact of other emerging technologies of warfare will be overlooked. We should hence rethink the scope of Article 36 legal review. In this chapter, I analyze whether AI decision-support systems may be considered to significantly contribute to offensive capabilities (i.e., impact the conduct of hostilities) and indirectly cause harm, damage or injury. The analysis reveals that even if AI systems are not embedded into a weapon (i.e., are not weaponized) and do not autonomously pull the trigger, there is a considerable concern that the algorithmic recommendations in a chain of human-machine and machine-machine interactions lead to the engagement of targets. The human in this chain of events has a limited 4

Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978) (Additional Protocol I), Article 36. 5 UN General Assembly (2017) 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, Weapons Review Mechanism submitted by the Netherlands and Switzerland, UN Doc. CCW/GGE.1/2017/WP.5, para 29. 6 UN Convention on Certain Conventional Weapons (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 9, 28.

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capacity, is unwilling (i.e., automation bias) or incapable (i.e., data overload, time constraints), to control or critically challenge the outcome of the algorithmic recommendation. These conditions highlight that AI decision-support systems may come to play a significant role in critical military decision-making infrastructure. This chapter’s methodology is as follows. In Sect. 6.2, I interpret the meaning of Article 36 to determine the scope of the legal review. As a general rule, provided by Article 31 of the Vienna Convention on the Law of Treaties (VCLT), treaty provisions should be interpreted in good faith in accordance with (i) “the ordinary meaning”, (ii) “in their context”, and (iii) “in light of its object and purpose”.7 Since the definition of the terms “weapon, means or methods of warfare” is not included in nor does it follow clearly from the treaty, the meaning must be interpreted in light of its context and purpose. Hence, I first analyze the context and purpose of the provision by looking at the other treaty provisions (i.e., Article 35, API) and the Commentary on the Additional Protocols of 8 June 1977 published in 1987 which explains the provisions of the protocols. This first step reveals that the treaty terms were intentionally left broad and inclusive, “presumably to be given meaning in light of the circumstances prevailing at the time of interpretation”.8 In the second step, I apply a dynamic approach to determine the meaning of terms at the time of the interpretation based on the developments in subsequent state agreements and State practice.9 I rely on the statements of the Parties at the United Nations General Assembly, relevant documents of the GGE CCW, ICRC guidelines, and the Parties’ national legislations.10 State practice analysis is drawn mostly from European States, and although it does not adequately represent all of the Parties, it must be noted that it is not a selection of the author but a result of a lack of widespread and transparent implementation of Article 36 obligations.11 This Article additionally draws insights in rare occasions from the practice of the United States that, although is not a party to the API, has committed itself to the implementation of the legal review through its national policy.12 7

Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980) (VCLT), Article 31. 8 Dörr and Schmalenbach 2012, para 25. 9 VCLT, above n 7, Article 31(3)(a) and Article (3)(b); and Dörr and Schmalenbach 2012, para 26. 10 Dörr and Schmalenbach 2012, para 78. The authors explain regarding the interpretation of state practice: “No particular form is required, so that official statements or manuals, diplomatic correspondence, press releases, transactions, votes on resolutions in international organizations are just as relevant as national acts of legislation or judicial decisions. In fact, ‘practice’ in this respect is not limited to the central government authorities of states, rather any public body acting in an official capacity can contribute to demonstrating the state’s position towards its treaty commitments.” 11 It should be noted that VLTC, Article 31 requires the interpretation to be reasonable, but does not necessarily have to be reflected through practice of all Parties. Therefore, it suffices to interpret the existing state practice, as long as other Parties have not expressly objected to such application. Dörr and Schmalenbach 2012, para 83. 12 Interpretation of Article 36 should not necessarily include the subsequent practice of the United States, as it is not a party to API. Nevertheless, the author chose to include the United States in this analysis since it is one of the oldest known legal review mechanisms in existence and has thus influenced the formation of legal review practices in other states. See Jevglevskaja 2018, footnote 84.

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In Sect. 6.3, based on previously-identified characteristics of “weapons, means and methods of warfare”, I analyze whether AI decision-support systems may reasonably fall within the scope of Article 36 review. I investigate the role of AI decision-support systems in military targeting capabilities and the impact on the conduct of hostilities. A broad category of AI decision-support systems is discussed and, where possible, I define further whether the limitations are specific to machine learning or deep learning algorithms. Following, I develop four criteria to identify key elements that indicate whether a given technology of warfare should be subjected to the legal review: (i) poses a threat to IHL compliance, (ii) is integral to military decisionmaking, (iii) is significant to military operations, and (iv) contributes to a critical offensive capability. In Sect. 6.4, I discuss the challenges to the application of Article 36. Primarily, I highlight that there is a need to move away from a common description of Article 36 as weapons review and employ an inclusive conceptualization of technologies of warfare review. This chapter concludes, in Sect. 6.5, by highlighting the remaining questions for future research.

6.2 Legal Review of a New Weapon, Means or Methods of Warfare 6.2.1 Purpose The obligation to conduct a legal review of weapons, means or methods of warfare should be interpreted within a broader context of the API of 1977, relevant rules and principles related to the protection of victims of international armed conflicts. To understand the purpose of Article 36, it is necessary to first look at its preceding provision. Article 35, also referred to as the basic rule, limits the right of Parties “to choose methods or means of warfare”.13 The provision under all circumstances instructs that parties to the conflict “are not free to use any methods or any means of warfare whatsoever”, whether conventional weapons or not.14 This notion was historically developed by a Dutch jurist, Hugo Grotius, in 1625.15 It was then expressed in the St. Petersburg Declaration of 1868 as a requirement of humanity,16 and was uncontestably included in the Hague Regulations of 1907 stating that “the right of

The practice of the United States, however, is never taken alone and is only analyzed in relation to the practice of States party to API. 13 Sandoz et al. 1987. 14 Ibid., p 389. 15 Ibid., p 390. 16 Declaration of St. Petersburg of 11 December 1868 Renouncing the Use, in Time of War, of certain Explosive Projectiles Under 400 Grammes Weight, opened for signature 29 November 1868 (entered into force 11 December 1868).

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belligerents to adopt means of injuring the enemy is not unlimited.”17 Nowadays, the limited right of States to choose methods or means of warfare is a principle of customary international law.18 Thus, the necessity emerged to implement relevant mechanisms to ensure that Parties comply with the aforementioned limitation and do not deploy means and methods of warfare without “the issue of legality being explored with care”.19 Parties agreed to conduct a legal review “in the study, development, acquisition or adoption of a new weapon, means or methods of warfare”, embedded in API, Article 36.20 Besides reviewing whether a given weapon, means or method is per se prohibited by international law, Parties should additionally review the compliance with international legal norms of technical description, intended and foreseeable use, means of destruction, accuracy and reliability, and intended area of use.21 The reviewing authority may decide to halt the development or acquisition of weapons, means or methods of warfare, if their deployment would “in some or all circumstances” violate international law.22 The context reveals that Article 36 legal review is designed as a control mechanism. It is an instrument “that can act as a brake on the abuses resulting from the arms race or on the possibility of future abuses”.23 More specifically, it may be described as an ex-ante control mechanism characterized by Verdiesen et al. as “a preliminary control mechanism that defines the boundaries of the autonomy of agents to achieve a delegated task”.24 Together with a range of other ex-ante mechanisms, Article 36 contributes to pre-emptive measures to prevent unlawful conduct of hostilities.25 It effectively limits the autonomy and influences the behavior of agents. The reviewing authority is typically accountable to “the Ministry of Defence or its equivalent” in accordance with the ICRC guidelines”.26 When viewed in a broader spectrum of technical, socio-technical, and governance mechanisms, an Article 36 review is amongst the mechanisms that contribute to accountability over the use of weapons, means or methods in an armed conflict.27 17

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, (entered into force 10 March 1908) (Hague Regulation IV), Article 22. 18 Henckaerts and Doswald-Beck 2005, rule 70. 19 The enforcement of relevant legal mechanisms that limit the right to choose means and methods of warfare was particularly important for smaller Parties that wanted to ensure that their more powerful counterparts do not develop nor acquire weapons that violate principles of IHL. Sandoz et al. (1987), pp 422–424. 20 Additional Protocol I, above n 4, Article 36. 21 Lawand (2006), pp 945–948. 22 Ibid., p 954. 23 Sandoz et al. 1987, p 427. 24 Verdiesen et al. 2020 25 Ibid. 26 Lawand 2006, p 949. 27 Article 36 is only one of the many obligations of Parties that contribute to the accountability and compliance of States with IHL rules and principles. For example, Article 82 requires Parties to

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6.2.2 Scope Article 36 stipulates that the legal review applies to “a new weapon, means or methods of warfare”.28 Notably, the treaty itself does not clarify the key terms; there are neither definitions nor a preamble to this provision. It is understood that drafters of the API intentionally left the scope open-ended to capture a wide variety of weapons, means and methods of warfare. It was a balance of making the scope of the legal review “sufficiently inclusive”, on the one hand; and combating the challenges faced by “applying different terminology” to subjects of review by Parties, on the other hand.29 This way, drafters intended to prevent High Contracting Parties from circumventing prohibitions on selected weapons, for example, by developing and defining “new weapons with different capabilities”.30 For the purposes of interpretation, it is significant that the key terms in Article 36 are not clarified. As follows from the VCLT, terms of which the interpretation does not emerge in the context of the treaty are presumed “to be given meaning in light of the circumstances prevailing at the time of interpretation”.31 In other words, to understand the scope of Article 36 it is necessary to interpret their meaning using a dynamic approach that takes into consideration current developments, relevant agreements between Parties, and their subsequent practice.32 It is continually debated what constitutes “a new weapon, means or methods of warfare”. As expressed by the Netherlands and Switzerland at the GGE CCW debate, “the core component of the review requirement, that is what needs to be reviewed, is up for debate”.33 In practice, Article 36 has commonly been referred to as the “weapons review”.34 It is especially unclear what constitutes means or methods of warfare. These terms are notoriously used inconsistently in literature and international fora—sometimes means and methods constitute the weapon itself and, at other times, are themselves the subject of review. A lack of a common understanding obfuscates the true scope of Article 36 and challenges a uniform application ensure that legal advisers are available, when necessary, to advise military commanders. The relation between Article 36 review and Article 82 legal advice is discussed in the following sections. 28 Additional Protocol I, above n 4, Article 36. 29 UN General Assembly (2017) 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, Weapons Review Mechanism submitted by the Netherlands and Switzerland, UN Doc. CCW/GGE.1/2017/WP.5, para 26. 30 McClelland 2003. 31 Dörr and Schmalenbach 2012, para 25. 32 VCLT, above n 7, Article 31(3)(a) and Article (3)(b); and Dörr and Schmalenbach 2012, para 26. 33 UN General Assembly (2017) 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, Weapons Review Mechanism submitted by the Netherlands and Switzerland, UN Doc. CCW/GGE.1/2017/WP.5, para 3(c). 34 See, for example, McClelland 2003 and Jevglevskaja 2018.

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of this obligation by Parties. The emergence of non-traditional military technologies has further put the interpretation of these terms under pressure. This section analyses statements of Parties at the United Nations General Assembly, relevant documents of the GGE CCW, ICRC guidelines, and implementation of the legal review in national legislation to elucidate the material scope of Article 36.35

6.2.2.1

Weapons

The first item mentioned in Article 36 is a weapon. The provision has been interpreted to include “weapons in the widest sense”, including current and future technologies.36 This is reflected in the ways that Article 36 is applied by Parties. A survey of State documentation of the legal review reveals that national definitions include a broad range of weapons—from traditional weapons (e.g., firearms) to munitions, missiles, non- or less-lethal weapons, and delivery systems.37 The only known explicit exclusions are of nuclear weapons by the United Kingdom and Germany.38 Definitions of weapons are thus broadly focusing on the capacity to cause harm or damage to objects or persons. For example, the Netherlands and Sweden specify that weapons “are intended to cause harm to persons (including injury or death) or damage to objects (including destruction, capture and neutralization) as well as incapacitation of persons or objects”.39 The analysis of definitions reveals that the critical characteristic of weapons is that there is a causal relationship between the object and the (destructive, harmful) effects in an armed conflict. Notably, some Parties subject weapon systems to legal review. For example, the Danish legal review encompasses “all weapon, weapon systems and delivery systems”.40 Similarly, the United States reviews all components required for the operation of a weapon under the term “weapon systems”.41 Originally, the term systems referred to the combination of a weapon with a concomitant platform (e.g., “used to aim, arm and launch or fire the weapons”).42 With time, it additionally 35

Dörr and Schmalenbach 2012, para 78. Cf. footnote 10. Lawand 2006, p 9. 37 Boulanin and Verbruggen 2017b. 38 Reservations made by the United Kingdom and Germany refer to national legislations and do not represent official reservations to AD1; Boulanin and Verbruggen 2017b. 39 UN General Assembly (2017) 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, Weapons Review Mechanism submitted by the Netherlands and Switzerland, UN Doc. CCW/GGE.1/2017/WP.5, para 27. 40 Danish Ministry of Defence 2016, p 380. 41 The United States is not a party to the API, nevertheless, it has implemented a review of weapons as a matter of policy. See also above n 12. 42 UN General Assembly (2017) 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, Weapons Review 36

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included radars, sensors, or other software that support weapon functions. However, not all systems are subjected to legal review. The Netherlands and Switzerland in the GGE CCW intervention argued that a system that “lacks the ability to cause harm” is excluded from the review while clarifying that a weapon system should be reviewed in full where there is a high level of integrity between the weapon and the system.43 For example, “a targeting sensor which is acquired and installed as part of, or perhaps as a critical component of the missile systems as a whole, does need to be considered when reviewing that missile system”.44 Parties’ practice and statements indicate that technologies that themselves are not weapons but nevertheless are integral to the capacity of a weapon inflicting harm or damage should be reviewed under Article 36. This interpretation of weapon systems is emphasized in the context of the GGE CCW debate regarding the lethal AWS, commonly defined as weaponized systems “capable of selecting and attacking targets without human intervention”.45 Even though the definition of lethal AWS remains contested, in 2018 states “emphasised the importance of reaffirming relevant states’ obligations for a legal review of current and new weapons systems”.46 Significantly, Parties continue to reaffirm that not only a weapon itself but also its integral system should be reviewed.

6.2.2.2

Means and Methods of Warfare

Whereas there is a common understanding of what constitutes weapons and weapon systems, interpretations of what exactly constitutes means or methods of warfare are more inconsistent. Sometimes means and methods refer respectively to the choice of weapons and the ways in which they are used. Other times, the word method is used independently to refer to tactics or strategies that are used in hostilities. There is also a prevailing confusion between the terms weapons and means.47 For example, Article 35 refers only to “means or methods of warfare”, thus rendering means and weapons hardly distinguishable. The obfuscated definitions and application of terms have made it unclear what exactly—besides weapons—should be subjected to Article 36 review. Mechanism submitted by the Netherlands and Switzerland, UN Doc. CCW/GGE.1/2017/WP.5, para 28. 43 Ibid. 44 Ibid. 45 Ekelhof 2017. 46 UN Convention on Certain Conventional Weapons (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 9, 28. 47 UN General Assembly (2017) 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, Weapons Review Mechanism submitted by the Netherlands and Switzerland, UN Doc. CCW/GGE.1/2017/WP.5, para 29.

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In the initial interpretations of Article 36, in the ICRC commentary to API, means were equated with weapons and used interchangeably in describing the legal review obligation.48 It remains a recurrent approach to group means and weapons together. It was not until 2003 that McClelland suggested defining means of warfare as “items of equipment which, whilst they do not constitute a weapon as such, nonetheless have a direct impact on the offensive capability of the force to which they belong.”49 This interpretation has since been adopted in numerous academic and ICRC publications.50 Critically, this interpretation allowed for the means of warfare, and subsequently Article 36, to be applied to items other than weapons. The term means of warfare became valuable in limiting the right of Parties to deploy cyber capabilities. Without an iron and steel appearance, cyber capabilities do not resemble conventional weapons, do not directly apply force to the battlefield, and yet their effects may be equally destructive.51 As explained by Boothby, cyberattacks through a “chain of effects” (or orders of effect) achieve an intended purpose of inflicting harm or damage on the enemy.52 With cyber capabilities, it became accepted that harm, damage or injury may be inflicted indirectly through secondorder effects.53 More importantly, the emphasis in the analysis of cyber capabilities was placed not on their technical description but the intended purpose to inflict harm or damage, which characterize the conduct of hostilities and therefore should be executed in accordance with IHL. In 2015, states agreed that international legal rules and principles should apply to cyber capabilities,54 followed in 2017 by a recommendation to conduct a legal review of “cyber means of warfare” articulated in Rule 110 of the Tallinn Manual 2.0.55 The Tallinn Manual subsequently influenced state practice in adding “cyber capabilities intended for use in cyber operations” to the scope of the legal review, as seen from the developments in Denmark and the United States.56 However, there exists a particular challenge to the conceptualization of cyber capabilities as means of warfare or, as has also been used, cyber weapons. There are blurred lines between cyber capabilities used for espionage (i.e., to extract data from alien servers) and those that are more complex and capable of analyzing data, 48

Sandoz et al. 1987, pp 421–428. McClelland 2003, p 405. 50 See, for example, Boulanin and Verbruggen 2017b, p 3; Roscini 2014, p 171; Bernard 2012, p 483. 51 An example of the destructive capabilities of cyber means is the use of the Stuxnet malicious computer worm to disturb the workings of the centrifuges of the Iranian Natanz nuclear plant. The extent to which Stuxnet was able to meddle in the workings of a nuclear plant displays the threats it may pose to indirectly cause harm, damage and injury. 52 Boothby 2013, p 389; Wallace 2018, pp 9–11. 53 De Tomas Colatin and Väljataga 2020, p 5. 54 UN General Assembly (2015) Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security, UN Doc. A/70/174, para 28(b-f). 55 Schmitt 2017, Rule 110. 56 US Department of the Air Force 2011; Danish Ministry of Defence 2016, p 386. 49

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exploiting system vulnerabilities, and executing operations.57 Only the latter is a tool intended to set in motion a chain of effects that would contribute to offensive capabilities. As Lewis explains, a cyber capability that is weaponized is capable of “transforming the passive collection of information into active disruption”.58 Not all cyber capabilities are intended nor capable of contributing to the conduct of hostilities, and thus not all would be required to undergo a legal review. The capability to transform information into actionable intelligence is critical to this distinction. This discussion is particularly relevant to the case study presented in this chapter and will be explored in further detail below. As shown with the example of the cyber capabilities, the term means of warfare is no longer easily equatable with weapons. Emerging technologies in many ways no longer resemble traditional weapons. In those times, the term means of warfare may be of growing relevance to defining the scope of Article 36. Lastly, let me briefly define methods of warfare. Due to diverging interpretations, there is no universal definition of methods of warfare; we may nevertheless identify two common approaches. The first approach defines methods as the ways in which weapons (or means) are used in hostilities.59 For example, according to Article 51(4)(a) of the API, weapons may not be used indiscriminately. The second approach is to consider methods as “a plan, concept or doctrine for a military modus operandi that is intended to support certain military operations and capabilities or impair those of an adversary”.60 Under this definition, perfidy or starvation constitute methods of warfare prohibited under customary international law.61 Unlike previously mentioned scholarly work, Biller and Schmitt argue that cyber capabilities constitute a method of warfare seen as a sequence of digital instructions, equated with Tactics, Techniques, and Procedures (TTPs) that describe how to execute a cyber operation.62 In doing so, they use the second approach to the understanding of methods of warfare. This application of methods of warfare to cyber capabilities, however, is not commonly accepted as shown in the aforementioned examples.

57

De Tomas Colatin and Väljataga 2020, p 7. Lewis 2012, p 66. 59 Boothby 2013, p 387. This interpretation is also reflected in Lawand 2006, p 932; and UN General Assembly (2017) 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, Weapons Review Mechanism submitted by the Netherlands and Switzerland, UN Doc. CCW/GGE.1/2017/WP.5, para 30. 60 Boulanin and Verbruggen 2017a. 61 Boothby 2013, p 170. 62 Biller and Schmitt 2019, pp 217–219. 58

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In practice, the only known Parties that explicitly refer in the Military Manuals to the review of methods are the United Kingdom63 and Germany.64 Those two countries, following the second approach to interpretation, instruct the review of military doctrine and other concepts that define military operations. In contrast, in the Netherlands and the United States, methods are infrequently reviewed prior to deployment, and instead, ad hoc military strategies and operations are subject to review by a legal adviser as prescribed by Article 82 of API.65 With these few exceptions, it is more common for States to find the first approach to the interpretation of methods of warfare which implies the review of how weapons (or means) are used. In conclusion, in this chapter I interpreted the material scope of Article 36 in light of its purpose, the context of relevant agreements, and subsequent state practice and ICRC guidelines. Firstly, a broad range of weapons remains at the core of the legal review. A weapon system may be additionally subjected to review, specifically where the system is considered to form an integral part of the weapon’s function. Secondly, whereas the terms weapons and means of warfare are frequently used interchangeably, there is merit—in light of emerging technological developments—in applying the term means of warfare to items, devices, and tools that do not constitute weapons themselves but have an intended impact on the offensive capabilities. A broader category of means of warfare that are intended and capable of applying force indirectly through a chain of effects is distinguished here from a narrower category of weapons that directly cause harm, damage or injury. Thirdly, there seems to be little convergence in the interpretation of the term methods of warfare amongst Parties. The term continues to entail an assessment of ways in which hostilities are conducted, including relevant military doctrines and concepts as well as ways in which a weapon or means are deployed. Altogether, the interpretation of the key terms of Article 36 indicates that all instruments and ways of conducting hostilities that are integral to the conduct of hostilities are intended to advance offensive capabilities and may directly or indirectly cause harm, damage or injury should be reviewed. All items that are instrumental and conducive to war, and more specifically to the application of force, impact offensive capabilities. Thus, Parties should review all instruments that may directly or indirectly contribute to unlawful conduct in an armed conflict in order to mitigate the risks of incompliance with IHL. Given the aforementioned interpretation, the following section studies whether AI decision-support systems for target identification and selection could reasonably fall within the meaning of “a new weapon, means or methods of warfare”, as defined here, and be subjected to a legal review. 63

The United Kingdom include the military doctrine under the review of the methods of warfare. See UK Ministry of Defence 2016. 64 Germany under the term methods of warfare includes “planning, concepts or doctrines for the military operations designed to counter, interfere or support enemy military operations and capabilities to interfere or support their own military operations and capabilities”. See Federal Ministry of Defence 2016. 65 Minister of Defence 2014; Boulanin and Verbruggen 2017b, p 8; Additional Protocol I, above n 4, Article 82.

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6.3 Case Study: AI Decision-Support Systems In the military domain, there is a widespread interest to develop and acquire technologies that assist in formulating actions, making more accurate and efficient decisions, especially for high-intensity and increasingly complex conflict situations.66 Such decision-support systems are intended to act as assistants to decision-makers by supporting them with the gathering and analysis of data, identifying and diagnosing problems, proposing and evaluating courses of action.67 However, as will be argued here, the role of the decision-support systems is often far more significant than is often acknowledged. Importantly, due to the nature of AI decision-support systems, many are connected to other AI technologies in the military domain. The MQ-9 Reaper, an unmanned aerial vehicle (UAV) is an example of such harmonization of machine-machine decision-making infrastructure. The MQ-9 Reaper is equipped with either precision weapons to perform strike attacks or sensors and decision-support systems to aid surveillance and reconnaissance. Hence, it may but is not necessarily weaponized. The non-weaponized version is then equipped with the Gorgon Stare, a wide-area surveillance sensor system. The Gorgon Stare contributes to surveillance and reconnaissance capabilities by capturing and processing images and video.68 It allows operators to track movements of objects (e.g., vehicles) or persons in real-time or retrospectively.69 Additionally, MQ-9 Reaper is supported by the Agile Condor targeting system. The Agile Condor is a technology designed to autonomously “detect, categorize, and track potential items of interest” using big data analysis and machine learning.70 The key performance function of the Agile Condor is the ability to provide “actionable intel in real-time” to human operators at control centers or other remote locations informing them of recommended targets and adapting their decisions.71 The interaction between these three technologies—MQ-9 Reaper, Gorgon Stare, and Agile Condor—provides the UAV with self-navigating capabilities, the sensors to collect and store visual data, and the operating system to process information. The example of the MQ-9 Reaper further highlights that there is a very thin line between AI applications that are used remotely to support decision-making and those that are implemented into weaponized systems. This is an important consideration to bear in mind throughout the case study. The purpose of this section is to analyze whether non-weaponized AI decisionsupport systems fall within the scope of Article 36. I do so by answering the following four questions:

66

Ekelhof 2018, p 16. Phillips-Wren 2012. 68 Rogoway 2015. 69 Ibid. 70 Trevithick 2020. 71 SRC Defense 2020, p 2; and Trevithick 2020. 67

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(i)

First, does this technology challenge States’ compliance with IHL? An AWS that is incapable of discriminating a civilian from a combatant poses a grave concern to States’ compliance with IHL, but does a decision-support system under human control pose a similar challenge? Second, is this technology integral to military decision-making? As previously mentioned, an algorithm embedded in an AWS enabling an autonomous engagement of targets is integral to its performance; however, may the same algorithm used to identify targets embedded in the broader military decision-making process be considered integral to the conduct of hostilities? Third, does this technology significantly influence military decisions and warfare operations? Does it provide actionable intelligence to military personnel? Fourth, given the abovementioned characteristics, does this technology constitute an offensive capability? Is it intended and capable of resulting in direct or indirect effects on the battlefield, such as harm, damage, or injury?

(ii)

(iii)

(iv)

Together, the study of these four elements: IHL compliance, integrity to military decision-making, significance to operations, and the impact on the offensive capabilities shed a light on the question of inclusion of AI decision-support systems under Article 36 review.

6.3.1 Compliance with IHL Rules and Principles When conducting hostilities States must first and foremost comply with the basic principles of distinction, proportionality, and precaution in the attack. In this analysis, I focus on only one of the principles to briefly illustrate existing tensions. The principle of distinction instructs States to “distinguish between the civilian population and combatants and between civilian objects and military objectives”.72 This fundamental customary rule of IHL requires to fully respect the protection of civilians and civilian objects in an armed conflict.73 In this section, I discuss three aspects that challenge compliance with the obligation to distinguish civilians vs. combatants and civilian vs. military objects when using decision-support systems.

6.3.1.1

Legal Interpretation

Firstly, the application of the principle of distinction relies on the understanding of the legal differences between a civilian and a combatant. It must be observed that the legal definition of civilians is established negatively, meaning that civilians are those that are not combatants. This approach has its benefits. On the one hand, all persons 72 73

Additional Protocol I, above n 4, Article 48. Additional Protocol I, above n 4, Articles 51(2) and 52(2).

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that do not meet the characteristics of combatants must immediately be protected under the status of civilians.74 On the other hand, no one can be a combatant and a civilian at the same time. This classification, though, is not straightforward. Legally, the protective status is granted to all civilians, to persons that are neither members of the armed forcesnor do they take a direct part in hostilities (DPH). Defining the latter, that is DPH, blurs the binary classification of civilians and combatants. The concept of DPH requires an assessment of whether an individual: (i) engages in activities likely to adversely affect the enemy forces or inflict harm or damage to civilians;75 (ii) is connected through an uninterrupted chain of events to the final hostile act;76 and (iii) is “specifically designed to directly cause the required threshold of harm in support of a party to the conflict”.77 Failure to meet one of the three criteria may result in the removal of protective civilian status. The assessment is not purely numerical; it requires a qualitative context-specific analysis of “the circumstances prevailing at the relevant time and place”, as well as intentions of the actor.78 For example, identifying that a person carries a gun is not sufficient to determine DPH; in certain contexts, a gun can be carried by a peaceful hunter without hostile intent. Similar challenges emerge in distinguishing military objectives and civilian objects.79 Whereas in principle all civilian objects (e.g., a hospital) are protected, their use by adversary forces for hostilities may subsequently elevate their status to a lawful military target.80 To assess whether such a dual-use object can be lawfully attacked requires “reliable, conclusive and up-to-date information” that can confirm the use for adversarial purposes, and the decision must be further subjected to the principle of proportionality in the attack.81 The principle of distinction requires a judgement that may in some respects be inherently human. Scholars show time and again that the level of algorithmic intelligence is far from being able to infer contextual information or the intentions of actors.82 However, even if algorithms were able to observe and interpret contextual information and human behavior, the definition of lawful targets is not easily translated into a binary numeral system. Consider the example of the Skynet project, a machine learning algorithm that was designed to assist the United States military forces to identify couriers that deliver messages to known and suspected terrorists in Pakistan.83 To identify couriers, the Skynet project analyzed travel patterns, phone 74

The exception to this dichotomy is the status of unlawful combatants, persons that are “fighters by night and farmers by day”, which leads to distinct legal consequences to their protection. See Dinstein 2004, p 28. 75 Dinstein 2004, pp 47–51. 76 Melzer 2009, pp 51–55. 77 Ibid., pp 58–61. 78 Melzer 2009, p 10; Human Rights Watch 2012, pp 30–32. 79 Melzer 2009, p 11; Dinstein 2004, p 28. 80 Additional Protocol 1, above n 4, Article 47(2). 81 State of Israel 2009, p 83. 82 Farres Jimenez 2019, p 3. 83 US National Security Agency 2007.

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usage, social networks activity, and more.84 Deviant behavior was flagged to operators as potential involvement in terrorist networks.85 The design of the Skynet algorithm was critical to the recommended potential targets. Terrorist couriers were identified based on predefined characteristics selected by human designers in the process of adjusting the relevant features and training the algorithm, and notably, certain assumptions had to be made.86 For example, it was assumed that terrorist couriers portray significantly distinct travel and phone usage patterns than the rest of the civilian population. It is unclear on what basis the underlying criteria were selected or whether the military intelligence units participated in the design process. The inherently context-specific and dynamic lines between a civilian and a combatant or a civilian object and a military objective challenge the possibility to embed the criteria of a lawful target in an algorithmic system. Instead, it should be made clear that an AI decision-support system identifies suspected targets or persons of interest, some of which may be lawful targets.87 Since the legally protected group of civilians is a concept that requires a dynamic and context-specific assessment, it is unlikely to be satisfactorily defined by predetermined criteria in an AI design.

6.3.1.2

Battlefield Complexity

Secondly, the distinction of civilians and combatants is obscured by the translation of legal classification into the algorithmic codes as well as by the complexities of the modern battlefield. Scholars observe an erosion of the civilian and military dichotomy. In asymmetric conflicts and urban battlefields, it is common for the adversary to exploit the civilian objects and civilians “in the hope that this will deter the other side from attack”.88 Non-state actors notoriously violate the obligation to protect civilians to overcome their strategic disadvantage vis-à-vis military powers.89 Enemies are no longer easily identifiable, as their networks are extensively dispersed and they blend in with the local population and “fight from within the civilian infrastructure”.90 At times, civilians may intentionally assist combatants in hostilities, hence becoming a lawful target. At other times, the participation of civilians may not be voluntary, for example, in the form of human shields.91 Humans find it difficult to navigate in this landscape. Some may thus place hope in algorithms to assist military personnel in making more accurate assessments of the complex battlefields. 84

Ibid. Ibid. 86 Farres Jimenez 2019, p 2. 87 Leaked presentation slides of the Skynet project say: “Skynet applies complex combinations of geospatial, geothermal, pattern-of-life, and travel analytics to bulk DNR data to identify patterns of suspect activity”. SRC Defense 2020. 88 Blank 2012, p 774. 89 Chertoff and Manfredi 2017, p 39. 90 Blank 2012, pp 766–774. 91 Ibid., p 777. 85

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The accuracy of recommendations depends, among other things, on the quality of training data. These so-called ground truths are datasets on which machine learning algorithms are trained to differentiate objects and identify patterns. Algorithms should be trained on datasets that are representative of the operational environment to prevent bias, misidentification, and error.92 The increasing use of sensors, collection of data, and surveillance provide the military with an abundance of big data.93 The volume of video footage and images that captured human behavior in Afghanistan, Pakistan, and other conflict areas has increased exponentially in the last two decades.94 However, an abundance and high variance in data may lead the algorithms, specifically deep-learning models, to be sensitive to small fluctuations subsequently causing bias.95 This is also referred to as the overfitting problem. At the same time, specific AI applications in warfare may still face scarcity of comparable data points and lead to the underlying problem. For example, to distinguish couriers from amongst the civilian population the Skynet project was trained using just a handful of samples of a courier’s profile.96 As highlighted by Boulanin et al, algorithms can be used reliably in “restricted situations”, that is controlled and highly predictable environments, whereas “combat scenarios are unambiguous (ambiguous scenarios include people or objects entitled to protection under IHL, but also friendly forces that could be mistaken for legitimate military targets) or do not allow an adversary to deploy decoy and deception tactics such as spoofing”.97 The complexity of the battlefield poses additional challenges to ensuring that the algorithm correctly distinguishes lawful and unlawful targets.

6.3.1.3

Technical Limitations

Thirdly, the distinction between civilians and combatants, and civilian objects and military objectives is further challenged by technical limitations. The following list which discusses data bias, the learning curve, and the classification issue is nonexhaustive but provides a sense of the technical limitations that may occur. Data bias is a common type of error that occurs when the training dataset does not represent accurately the end-use environment’s characteristics. Biases that may occur in the collection, annotation, and selection of data may consequently influence the accuracy, inclusiveness, and fairness of the machine learning algorithms.98 Data bias in the military domain may pose a grave challenge to IHL compliance. Project Maven, 92

Zarsky 2016, p 121; and Deeks 2018. Shanker and Richtel 2011. 94 Ibid. 95 de Laat 2018, pp 525–541. 96 Ars Technica (2016) The NSA’s SKYNET Program May Be Killing Thousands of Innocent People. arstechnica.com/information-technology/2016/02/the-nsas-skynet-program-may-bekilling-thousands-of-innocent-people/. Accessed 10 October 2020. 97 Boulanin et al. 2020, p 16. 98 Zarsky 2016, pp 121–122; and McGregor 2019. 93

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for example, was trained using “thousands of hours of archived battlefield video captured by drones in the Middle East”.99 However, the deployment of Project Maven algorithms to an area outside the Middle East challenged its accuracy when analyzing data points in a new environment. Differences such as urban density or cultural differences in female and male clothing may impact the accuracy of predictions. These differences may adversely affect the capability of the AI decision-support system to identify lawful targets. The steep learning curve of machine learning algorithms instructs that the initial inaccuracy of the algorithmic recommendations may be improved over time. Through continuous increment of training datasets and tuning of (hyper)parameters, an algorithm may significantly improve the level of accuracy.100 Furthermore, humanmachine interaction may expose some of the biased outputs and provide the human operator with the possibility to validate and/or revalidate outputs.101 For example, in the first week of deployment, Project Maven’s algorithms required adjustment and updates “even eight times in a week”, which yielded an improvement of accuracy from 60–80%.102 Afterward, human operators continued to train the algorithm by flagging misidentified objects.103 The possibility of improving the accuracy of machine learning algorithms offers many opportunities for their use not only in the military domain; however, it also creates an inherent issue of determining exactly at which stage the algorithm is satisfactorily accurate to be relied upon when identifying or engaging targets. This issue will be dealt with further in the following section. A third major technical limitation to accurately identify targets is a limited sensitivity of AI, specifically machine learning, towards unique individual characteristics, also referred to as the classification problem. Machine calculations treat all data points as part of a global pattern, which notably assumes that human behavior is consistent and predictable consequently neglecting any individual characteristics.104 Binns explains that this exposes the incapability of AI technologies serving “individual justice”.105 The aforementioned Skynet project flagged Ahmad Muaffaq Zaidan as an individual fitting the algorithmic profile of a “terrorist courier” in Pakistan. Skynet appropriately identified that Ahmad had on occasion travelled to Al Qaida hot spots and frequently visited airports.106 What such an algorithm fails to comprehend is the unique characteristics of Ahmad’s work as a journalist, who was in contact with the terrorist network but was not a courier nor was he involved in the terrorist activities. This type of misidentification exposes the limitation of machine learning algorithms and underscores the unique ability of humans to contextualize information. Especially for algorithms employed in targeting decisions, the inability of algorithms 99

Weisgerber 2017. Lowe 2019. 101 Ibid. 102 Weisgerber 2017. 103 Ibid.; Holland 2019b. 104 Zarsky 2016, p 120; and McKendrick 2019, p 18. 105 Binns 2020. 106 Robbins 2016. 100

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to identify rare deviations in individual cases reveals the limitation in applying the principle of distinction to warfare scenarios. The objective is not to claim nor conclude that the AI decision-support systems will never be capable of complying with the principle of distinction. Rather, the objective is to expose that there are inherent challenges to the prospect of the AI systems to accurately perform a distinction between lawful and unlawful targets. These challenges stem from the fact that the principle of distinction requires a context-specific, highly sensitive, and dynamic assessment of human activities and intentions. Due to the modern battlefield complexities and technical limitations, there are concerns that the inaccuracies of the AI decision-support systems may result in wrongful identification of targets and pose a challenge to States’ compliance with the IHL principle of distinction. This analysis took the principle of distinction as an example, but similar considerations can be made in relation to other IHL rules. Nonetheless, identifying the limitations of the AI systems to the application of legal judgements in warfare does not immediately lead to the conclusion that such systems should be subjected to a legal review. It should be further examined what the role is of such algorithms in military decision-making and in the exercise of offensive capabilities.

6.3.2 Integrity to Military Decision-making In the debate regarding the legality of AWS, scholars and States have called for the implementation of a meaningful human control (MHC) requirement to ensure minimum retention of control by human agents over the actions of an automated system.107 For example, it is suggested that to fulfil the standards of MHC an operator must be allowed to decide whether to follow or disregard the proposed course of action by a machine.108 However, even where humans remain formally in the loop,109 their control over the decision-making process may remain far from meaningful. To explain this phenomenon, it is necessary to look at the automation bias, the impact of data overload, and the impact of algorithmic systems on human alertness. Automation bias is a tendency of humans to blindly accept the validity and strength of non-intuitive algorithmic conclusions.110 This tendency has been observed in the use of AI technologies for commercial purposes as well as in the military domain. An experiment conducted with pilots in airplane cockpit simulators revealed that the presence of automated decision aids led participants to a decrement in vigilance as well as higher rates of error in comparison to participants in traditional cockpit

107

Advisory Council on International Affairs 2015. Chavannes and Arkhipov-Goyal 2019, p 16. 109 The term ‘human in-the-loop’ lacks a common definition. In general terms, it refers to the possibility of a human to intervene before the execution of algorithmic decisions; Boulanin et al. 2020. 110 McGregor 2019. 108

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simulators.111 Even when participants were aware that the support system was not 100% accurate, they trusted faulty recommendations rather than their judgement.112 Other studies have shown that educating participants about the inaccuracies and biases of the system in the long-term proves to be of little benefit as they continue to experience automation bias.113 Similarly, teaming did not change human overreliance on automated aids.114 Importantly to the context of the conflict situations, psychologists have shown that automation bias increases in high-intensity situations where time pressure and stress increase reliance on automated tools. The reasons behind this phenomenon are related to the human tendency of choosing the simplest cognitive task and willingness to diffuse the responsibility combined with perceived greater trust in the superior analytical capability of machines.115 The need for AI decision-support systems in the military domain is incentivized by increasing data overload: innumerable minutes of video, recordings of tapped phone calls, personal data points, satellite images, geolocation points, etc. Human operators may navigate through the innumerable footage to a specific day and time to investigate a singular event. This refers to the ability of human operators to find known unknowns—that is events, places, and persons that the military personnel does not know about but may be of interest and relevance to the military objectives—which would take an excruciating amount of personnel, resources, and time unless the task was automated.116 From the onset, this creates a widening gap between human and machine analytical capacities, especially in the high-intensity battlefield.117 The combination of AI and big data is expected to alleviate the burden of data overload and provide analytical capabilities exceeding those of humans.118 At the same time, it creates a situation in which humans are not only cognitively prone to accept algorithmic outputs (automation bias) but also unable to validate them. Lastly, the use of automated aids has proven to weaken the alertness and ability of humans to perceive their broader environment. By relying on the algorithmic tools, the number of out of sight spots increase. Humans tend to have a decremental vigilance, as previously mentioned in the experiment with cockpit pilots.119 It has also been observed that soldiers that “operate a tank while monitoring remote video feeds” have failed to see targets “right around them” but outside the video view.120 More broadly, when relying on algorithmic tools, humans are prone to oversee information that is not prioritized nor displayed by the recommender system. Thus, even in a

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Skitka et al. 1999, pp 999–1002. Ibid., p 1001; and Mittelstadt et al. 2016, p 3. 113 Skitka et al. 1999, p 1004. 114 Parasuraman and Manzey 2010, p 397. 115 Ibid., p 392. 116 Holland 2019a. 117 Boothby 2016, pp 251–252. 118 Radin 2019. 119 Skitka et al. 1999, pp 999–1002. 120 Shanker and Richtel 2011. 112

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human-machine team, humans are limited by their abilities to observe and analyze information beyond those explicitly exposed by the decision-support system. The discussion in this section shows that even where a human remains in formal control over the use of force, AI tools may significantly impact their cognitive abilities to assess a situation and make sense of information. Especially when facing hightempo situations and data overload, the human decision-making process is prone to influence by algorithms. This dynamic undermines the understanding of the human as a controlling agent in the human-machine interaction and exposes the integral role of such decision-support systems to military decision-making.

6.3.3 Significance to Military Operations It is important to introduce into this discussion a nuanced difference between algorithms that simply present information and those that provide actionable intelligence. Both may provide recommendations during the targeting cycle but only a portion of them will significantly impact the operations of the military forces. This distinction is important because a mere representation of gathered information does not necessarily have the potential to alter the course of decision-making. An algorithm that presents information may relieve human personnel from the burden of cataloguing events and assist them in categorizing or visualizing information. For example, the previously-mentioned Gorgon Stare, a motion imagery sensor and surveillance system, displays unaltered video footage from a given area either in real-time or when accessed through archived files. Then, the human operator may engage with displayed information and decide to select objects or persons on the video, which will then be followed to show and mark travel patterns.121 The capacity of the AI decision-support system to process, analyze, and prioritize data makes a critical difference to military decision-making. It then produces results that otherwise would not have been reached with human cognitive capabilities only (or would have taken a considerably longer time). These are systems that not only visualize data but are equipped with machine learning algorithms or deep neural networks that based on predetermined features and self-learned patterns identify moving objects, the direction of movement, the identity of individuals, connections between individuals in a network, and much more. The AI then, without human intervention during deployment, engages with information by filtering certain data points, prioritizing and selecting features that it identifies as relevant. Agile Condor is an example of a system in the military domain that “specifically weight[s] possible areas of interest over others and prioritize[s] certain targets”.122 The Agile Condor’s interface identifies a target, displaying personal details and the level of accuracy, and monitors target’s location and movement.123 As reported in 121

Bloomberg 2016. Trevithick 2020. 123 SRC Defense 2020, p 2. 122

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the White Paper, Agile Condor’s key performance function is the ability to provide “actionable intel in real-time” to human operations, thus “adapting [emphasis added] their decision-making based on collected information”.124 Deeks argues that “machine calculations could consequently play a critical role in life and death decisions for whole countries, impacting far more lives than the autonomous weapons currently being so vigorously debated”.125 She then continues to state, “the role of algorithms in the underlying calculations could lead states to unwittingly make war-related decisions almost entirely based on machine calculations and recommendations”.126 The AI decision-support systems that do not merely assist in making decisions but potentially alter outcomes play a significant role in the military decision-making infrastructure. Such decision-support systems are characterized by the capacity to transform information into actionable intelligence. Similarly, Ekelhof argued that systems that turn “raw data into actionable intelligence that can be used for targeting” on the battlefield are critical to the conduct of hostilities.127 McClelland too held that a system capable of “altering the nature or content of data” contributes to the offensive capabilities of the military forces.128 Lewis highlighted the critical influence of cyber capabilities capable of “transforming passive collection of information into active disruption”.129 The author of this publication stands with these observations. So far, it has been shown that some AI decision-support systems may challenge compliance with IHL, be integral to decision-making, and significantly impact the final decisions in warfare. For the purposes of the Article 36 review, it is important to take the ultimate step of analyzing whether the AI decision-support systems may contribute to critical offensive capabilities.

6.3.4 Offensive Capabilities: The Co-production of Hostilities At this last step of the analysis, the technology at hand should be evaluated from the perspective of its intended application. It may be that an AI decision-support system challenges IHL compliance, underscores human control, and may even significantly impact the outcome of decision-making; however, it is not intended to form an offensive capability. For example, an AI decision-support system may be used to decide the best hiding spots from enemies’ fire or to identify landing strips for military planes. Such decisions do not necessarily raise concerns in light of the obligation to protect civilians in warfare. It is only when the algorithm is intended to support decisions that contribute to the engagement in hostilities that the concern arises. In 124

Ibid. Deeks et al. 2018, p 17. 126 Ibid. 127 Ekelhof 2018, p 17. 128 McClelland 2003, p 405. 129 Lewis 2012, p 66. 125

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2019, the ICRC asserted that the “most significant are decisions on the use of force, determining who and what is targeted and attacked in armed conflict”.130 Hence, the focus in this analysis lies with the AI applications in the military targeting cycle. In the previous sections, the targeting decisions were perceived as a result of a singular interaction between a machine and a human—this is not a representative description of the reality. Military decision-making is multi-layered and involves a manifold of actors, both humans and machines. The targeting cycle is increasingly accompanied by AI technologies, whether mounted on a drone or a satellite, attached to soldiers’ gear, embedded in airplanes, or located remotely in the reach back facility. These systems may assist in gathering information, selecting, validating, prioritizing targets, and defining the form of attack.131 As Michel Holland once wrote, “eventually, the lead-up to a strike may involve dozens or hundreds of separate algorithms, each with a different job, passing findings not just to human overseers but also from machine to machine”.132 A mistake made by a machine may be replicated over time and by other machines becoming impossible to identify or verify by a human down the kill chain. This points to the human-machine and machine-machine interactions in the targeting process, where non-lethal AI decision aids form an integral part of a long chain of effects that lead to the selection and execution of targets in warfare. Algorithms become a component which “definitely will affect the control or limit the decision of others in the chain”.133 As Arvidsson rightly noticed, human agency is effectively diluted as many high- and low-tech means of warfare are entangled in the targeting practice.134 These systems become intertwined with human agents in the co-production of the targeting cycle, subsequently contributing together to the final act—the target execution. This process that leads up to the target execution is comparable with the “chain of effects” discussed by Boothby concerning cyber operations, where cyberattacks indirectly result in harm, injury, or death of civilians or civilian objects. Coupled with the understanding that humans may in certain circumstances have a limited capacity to exercise control over the decision-making process and instead be biased to accept algorithmic outputs, the AI decision-support systems may inform military decision-making and lead indirectly through a chain of events to the conduct of hostilities. In conclusion, this section discussed the relevance of non-weaponized applications of AI technologies to military decision-making. To evaluate whether AI decisionsupport systems may fall within the meaning of “a new weapon, means or methods of warfare”, the following four criteria were reviewed: (1) IHL compliance, (2) integrity to military decision-making, (3) significance to military operations, and (4) contribution to offensive capabilities. Together, these four elements expose the role 130

ICRC 2019, p 7. Lewis 2012, pp 6–9. 132 Holland 2020. 133 Ekelhof 2018, p 23. 134 Arvidsson 2018, p 23. 131

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of AI decision-support systems in the decision-making process and their significant impact on the lawfulness of military operations. It has been shown that there are concerns over the prospects of AI decisionsupport systems to correctly apply the principle of distinction among other IHL rules and principles, on the one hand, and the capacity of human operators to independently and critically revise algorithmic recommendations, on the other hand. Especially in high-tempo conflict situations, a human has insufficient time, is incapable and may be cognitively limited in contesting the recommendations provided by the algorithmic system. Due to the potential of reaching an integral role in the military decision-making—that is, critically impacting military personnel perceptions, situational awareness, and ultimately decisions—AI decision-support systems will continue to indirectly influence the choices over the conduct of hostilities. Where decision aids are embedded in a broader military decision-making infrastructure, they become an important element in the long chain of events that leads to the coproduction of hostilities. In light of the duty to protect civilians in an armed conflict and taking into consideration the purpose of Article 36 to prevent such violations, Parties should enforce a legal review of the AI decision-support systems where those meet the abovementioned four criteria.

6.4 Discussion: A Legal Review of Technologies of Warfare There are several challenges in bringing to the attention of Parties the inclusion of AI decision-support systems under the legal review. Due to limited transparency and a lack of widespread enforcement of Article 36, there are many differences in how Parties conceptualize and apply the legal review. A lack of common terminology further hinders the exchange of good practices. In this chapter, I used the terms decision-support systems and decision aids. In the literature, one may additionally find terms such as recommender systems, algorithmic decision aid tools, decision-making tools, killer algorithms, lethality-enabling technologies, predictive algorithms, AI prophets, and more.135 There is a need for a common understanding and definition of the military technologies that are at stake, beyond weapon systems. At the same time, I identify that there is a fundamental issue in the way in which we as scholars speak and write about the scope of Article 36. It is necessary to depart from describing Article 36 as strictly the weapons review. The term means of warfare plays an increasingly significant role in highlighting other tools or items that indirectly coproduce hostilities. It is time to acknowledge that the choice of technologies may be equally influential to the offensive capabilities as is the choice of weapons. In this context, the scope of Article 36 should not be limited to “weapons in the widest sense” but instead should include all technologies of warfare. The term technologies of warfare appeared in the report of the ICRC in 2019 when describing the risks to IHL 135

Holland 2020; McKendrick 2019; Farres Jimenez 2019; and Deeks 2018.

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compliance in the use of a wide range of technologies, from autonomous weapons to decision-support systems. The ICRC states, “any new technology of warfare must be used, and must be capable of being used, in compliance with existing rules of international humanitarian law”.136 Technologies of warfare is a term that is adaptive to the modern battlefield, inclusive of both current and future military developments, and supports a broad scope of review in the spirit of Article 36’s rationale. Hence, in the age of exponential technological development, it is more accurate to refer to Article 36 as the technologies of warfare review. Further, there is a concern related to the feasibility of carrying out the Article 36 review of AI technologies. As mentioned above, machine learning and deep learning algorithms are characterized by the black box algorithmic decision-making and constant learning process even during deployment. These characteristics challenge an assessment of the foreseeable AI performance. Other concerns include the establishment of the acceptable standard of system reliability, sustainability of a legal review, and the complexity of the technical evaluation procedure.137 It is, however, important to recognize that this challenge is not specific to the AI decisionsupport systems but will also need to be addressed in the context of AWS. States and academics should continue to engage in an exchange of good practices related to the application of the Article 36 review to develop comprehensive review frameworks. Despite these challenges, Parties should enforce Article 36 not only due to their legal obligation. From a practical perspective, the legal review is a mechanism in the hands of States to prevent and mitigate risks to IHL incompliance. In the words of ICRC, “legal reviews are a common-sense measure to help ensure that the state’s armed forces can conduct hostilities in accordance with their international obligations”.138 The legal review at the early stages of development or acquisition helps to avoid “costly advances in the procurement process” where there are considerable risks to IHL.139 This approach further underscores the importance of implementing a legal review of AI technologies. Furthermore, a review of AI decision-support systems under Article 36 does not undermine but complements other obligations of Parties to ensure the legality of military decisions. Article 82 instructs Parties to provide commanders in an armed conflict with access to legal advice.140 This provision ensures that decisions in warfare are impacted by legal considerations.141 There is a need for a legal adviser to “facilitate the implementation of IHL”, and “seek maintenance of the rule of law when war takes place”.142 Whereas this remains an important provision and obligation of Parties, it must be recognized that the use of AI in the military domain increasingly moves the

136

ICRC 2019, p 2. Boulanin and Verbruggen 2017a, pp 21–25. 138 ICRC 2019, p 2. 139 Lawand 2006, p 952. 140 Additional Protocol I, above n 4, Article 82. 141 Berger 2017, p 658. 142 Ibid. 137

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decision-making process down the pipeline from military commanders to AI engineers. The review should be performed when key decision-making moments occur. The design and development of the AI systems are critical in setting the parameters for the algorithmic decisions and the choice architecture available to the end-users subsequently influencing military operations. It highlights that, when using AI technologies, important military decisions are already made by designers and developers at the back-end. The review of military decision-making must adapt. This has also been recently argued by Copeland and Sanders, who noted that an Article 36 review should be implemented instead of at the moment of acquisition, already in the phases of research, design, and development with the view to ensuring that IHL compliance measures mitigate technological risks.143 The application of the Article 36 review to AI decision-support systems is fit for this purpose. Thus, in this chapter, I argued that Parties have the duty to ensure that the design and development of AI decision-support systems observe international obligations to prevent unlawful conduct of hostilities when algorithmic recommendations significantly impact the military decision-making and conduct of hostilities. In this section, I further discussed that it is also in the best interest of states to assess the legal challenges that may arise from the use the AI decision-support systems. In light of Article 36’s purpose, technologies of warfare should not be used without the issue of legality being explored with care.

6.5 Final Remarks In conclusion, in assessing whether non-weaponized AI decision-support systems should be subjected to legal review, this contribution brought attention to the question of the material scope of Article 36. An analysis of the treaty terms reveals that a lack of a clear definition of “weapon, means or methods of warfare” challenges uniform enforcement of this provision but is also one of its greatest values permitting a dynamic interpretation of the emerging and evolving military technology. Over the years, Parties went from a focused review of weapons into further inclusion of weapon systems and cyber capabilities. Today, all instruments and ways of conducting hostilities that form an integral part of or significantly impact the offensive capabilities and may directly or indirectly cause harm, damage or injury fall within the scope of Article 36 and the meaning of weapons, means or methods of warfare. The author suggests four criteria to determine whether an emerging technology should be subjected to a review: (1) IHL compliance, (2) integrity to military decisionmaking, (3) significance to military operations, and (4) contribution to critical offensive capabilities. By evaluating each criterion, it may be determined whether an item poses a threat to the application of IHL principles, is integrated into the military decision-making infrastructure, provides actionable intelligence to significantly alter military operations, and thus indirectly leads to the co-production of hostilities. If an 143

Copeland and Sanders 2021.

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item fulfils all four criteria it becomes evident that a system significantly impacts the offensive capabilities of the military forces and may (in)directly cause harm, damage, or injury. Such systems fall within the meaning of weapons, means or methods of warfare. The AI decision-support systems were introduced and evaluated in this chapter according to these four criteria. There is a valid concern that AI systems for the moment have a limited capability to satisfactorily identify lawful targets. Even where such systems are not equipped in autonomous targeting functions, their capacity to turn information into actionable intelligence in high-tempo conflict situations undermines the exercise of human judgement and significantly impacts final decisions in warfare. This underscores the integral role of AI decision-support systems in the long-chain of military human-machine decision-making leading to the conduct of hostilities. Such systems constitute technologies of warfare, may reasonably be considered to fall within the scope of Article 36 and should be reviewed before use or deployment in warfare to mitigate the risks of the unlawful conduct of hostilities. In the next steps, the academic community will need to further respond to the challenges posed by the review of AI systems. Firstly, what are the requirements for an effective Article 36 review of AI decision-support systems: how frequently should the review be performed; what should be the role of third-party developers in the process; what information regarding the system can or should they provide to the reviewers; how should the system be tested to evaluate the accuracy levels and suitability of the system to the end-use environment? Secondly, what are the minimum standards for the AI technology to satisfy the review procedure, for example, minimum levels of accuracy; the desirable design of the interface and human-machine interactions? Thirdly, given that Article 36 is an ex-ante control mechanism, what other mechanisms are required to ensure that the conduct of hostilities influenced by AI decisionsupport systems is lawful? I intend to continue to explore these and other relevant questions in future research.

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Berger A (2017) Legal Advisers in the Armed Forces. In: Lachenmann F, Wolfrum R (eds) The Law of Armed Conflict and the Use of Force: The Max Planck Encyclopedia of Public International Law, 2nd edn. Oxford University Press, Oxford, pp 337–51 Bernard V (ed) (2012) International Review of the Red Cross—New Technologies and Warfare, Vol 94 (886). Cambridge University Press, Cambridge Biller JT, Schmitt MN (2019) Classification of Cyber Capabilities and Operations as Weapons, Means, or Methods of Warfare. International Law Studies 95(179): 180–225 Binns R (2020) Human Judgment in algorithmic loops: Individual justice and automated decisionmaking. Regulation & Governance Blank LR (2012) Taking Distinction to the Next Level: Accountability for Fighters’ Failure to Distinguish Themselves from Civilians. Valparaiso University Legal Review 765: 765–802 Bloomberg (2016) The Eyes in the Sky That Catch Murders on Tape. https://www.youtube.com/ watch?v=mJLr0KMsRAA&ab_channel=BloombergQuickTake. Accessed 10 October 2020 Boothby W (2013) Methods and Means of Cyber Warfare. International Law Studies 89(387): 387-405 Boothby W (2014) Conflict Law: The Influence of New Weapons Technology, Human Rights, and Emerging Actors. T.M.C. Asser Press, The Hague Boothby W (2016) Weapons and the Law of Armed Conflict, 2nd edn. Oxford University Press, Oxford Boulanin V, Verbruggen M (2017a) Article 36 Reviews: Dealing with the Challenges Posed by Emerging Technologies. Stockholm International Peace Research Institute, Solna Boulanin V, Verbruggen M (2017b) Stockholm International Peace Research Institute Compendium on Article 36 Reviews. Stockholm International Peace Research Institute, Solna Boulanin V, Davison N, Goussac N, Peldan Carlsson M (2020) Limits on Autonomy in Weapon Systems: Identifying Practical Elements of Human Control. Stockholm International Peace Research Institute, Solna Chavannes E, Arkhipov-Goyal A (2019) Towards Responsible Autonomy: The Ethics of Robotic and Autonomous Systems in a Military Context. The Hague Centre for Strategic Studies, The Hague Chertoff E, Manfredi Z (2017) Deadly Ambiguity: IHL’s Prohibition on Targeting Civilian Objects and the Risks of Decentered Interpretation. SSRN Electronic Journal Copeland D, Sanders L (2021) Engaging with the industry: integrating IHL into new technologies in urban warfare. Humanitarian Law & Policy Blog. https://bit.ly/3nU5P2S Accessed 2 November 2021 Danish Ministry of Defence (2016) Military Manual on International Law Relevant to Danish Armed Forces in International Operations. https://forsvaret.dk/en/publications/military-manual/. Accessed 1 February 2021 De Laat PB (2018) Algorithmic Decision-Making Based on Machine Learning from Big Data: Can Transparency Restore Accountability? Philosophy & Technology 31(4):525–541 De Tomas Colatin S, Väljataga A (2020) Data as a Weapon: Refined Cyber Capabilities Under Weapon Reviews and International Human Rights Law. NATO Cooperative Cyber Defence Centre of Excellence, Tallinn. www.ccdcoe.org/uploads/2020/05/Data_as_a_weapon_-_reviews_and_ oversight_FINAL_PDF.pdf Deeks A (2018) Predicting Enemies. Virginia Public Law and Legal Theory Research Paper. SSRN Electronic Journal Deeks A, Lubell N, Murray D (2018) Machine Learning, Artificial Intelligence, and the Use of Force by States: Journal of National Security Law & Policy 10 Dinstein Y (2004) The Conduct of Hostilities under the Law of International Armed Conflict. Cambridge University Press, Cambridge Dörr O, Schmalenbach K (2012) Article 31-General Rule of Interpretation. In: Dörr O, Schmalenbach K (2012) Vienna Convention on the Law of Treaties: A Commentary. Springer, Berlin/ Heidelberg

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Ekelhof M (2017) Complications of a Common Language: Why It Is So Hard to Talk about Autonomous Weapons. Journal of Conflict & Security Law 22(2): 311–331 Ekelhof M (2018) Lifting the Fog of Targeting: ‘Autonomous Weapons’ and Human Control through the Lens of Military Targeting. Naval War College Review 71(3) Farres Jimenez A (2019) 42nd Round Table on Current Issues of International Humanitarian Law on the 70th Anniversary of the Geneva Conventions. International Institute of Humanitarian Law, San Remo Federal Ministry of Defence (2016) Joint Service Regulation: Review of New Weapons, Means and Methods of Warfare [Zentrale Dienstvorschrift: Prüfung neuer Waffen, Mittel und Methoden der Kriegführung]. https://dserver.bundestag.de/btd/18/091/1809191.pdf. Accessed 1 February 2021 Henckaerts J, Doswald-Beck L (2005) Customary International Humanitarian Law. Volume I: Rules. Cambridge University Press, Cambridge Holland Michel A (2019a) Eyes in the Sky: The Secret Rise of Gorgon Stare and How It Will Watch Us All. www.youtube.com/watch?v=lbYac5hm4BQ&ab_channel=TheCatoInstitute. Accessed 15 October 2020 Holland Michel A (2019b) How Big Tech Is Helping Build the Pentagon’s All-Seeing Eye-inthe-Sky. www.fastcompany.com/90342971/how-the-pentagon-is-bringing-algorithmic-spycraftand-big-tech-to-war. Accessed 15 October 2020 Holland Michel A (2020) The Killer Algorithms Nobody’s Talking About. www.foreignpolicy. com/2020/01/20/ai-autonomous-weapons-artificial-intelligence-the-killer-algorithms-nobodystalking-about/. Accessed 15 October 2020 Human Rights Watch (2012) Losing Humanity: The Case against Killer Robots. https://www.hrw. org/report/2012/11/19/losing-humanity/case-against-killer-robots. Accessed 9 October 2020 ICRC (2014) Expert Meeting on Autonomous Weapon Systems: Technical, Military, Legal and Humanitarian Aspects. https://www.icrc.org/en/download/file/1707/4221-002-autonomous-wea pons-systems-full-report.pdf. Accessed 1 February 2021 ICRC (2019) Artificial Intelligence and Machine Learning in Armed Conflict: A HumanCentered Approach. www.icrc.org/en/document/artificial-intelligence-and-machine-learningarmed-conflict-human-centred-approach. Accessed 1 February 2021 Jevglevskaja N (2018) Weapons Review Obligation under Customary International Law. International Law Studies 94: 286–221 Lawand K (2006) A Guide to the Legal Review of New Weapons, Means and Methods of Warfare. ICRC, Geneva Lewis JA (2012) In Defense of Stuxnet: Military and Strategic Affairs 4(3): 63–76 Lowe A (2019) Towards Predictive Accuracy: Tuning Hyperparameters and Pipelines. https:// blog.dominodatalab.com/towards-predictive-accuracy-tuning-hyperparameters-and-pipelines/. Accessed 9 October 2020 McClelland J (2003) The Review of Weapons in Accordance with Article 36 of Additional Protocol I: International Review of the Red Cross 85(850): 397–415 McGregor L (2019) The Need for Clear Governance Frameworks on Predictive Algorithms in Military Settings. Humanitarian Law & Policy. https://blogs.icrc.org/law-and-policy/2019/ 03/28/need-clear-governance-frameworks-predictive-algorithms-military-settings/. Accessed 1 February 2021 McKendrick K (2019) Artificial Intelligence Prediction and Counterterrorism. Royal United Services Institute. www.chathamhouse.org/sites/default/files/2019-08-07-AICounterterrorism. pdf. Accessed 1 February 2021 Melzer N (2009) Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law. ICRC, Geneva Minister of Defence (2014) Decision Establishing an Advisory Committee on International Law and the Use of Conventional Weapons [Besluit houdende instelling van de Adviescommissie Internationaal Recht en Conventioneel Wapengebruik]. https://wetten.overheid.nl/BWBR0035211/ 2014-06-20. Accessed 1 February 2021

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Mittelstadt BD, Allo P, Taddeo M, Wachter S, Floridi L (2016) The Ethics of Algorithms: Mapping the Debate. Big Data & Society 3(2) Parasuraman R, Manzey DH (2010) Complacency and Bias in Human Use of Automation: An Attentional Integration. Human Factors: The Journal of the Human Factors and Ergonomics Society 52(3):381–410 Phillips-Wren G (2012) AI Tools in Decision Making Support Systems- A Review: International Journal on Artificial Intelligence Tools 21(2) Radin S (2019) Expert Views on the Frontiers of Artificial Intelligence and Conflict. Humanitarian Law & Policy. https://blogs.icrc.org/law-and-policy/2019/03/19/expert-views-frontiers-artificialintelligence-conflict/. Accessed 1 February 2021 Robbins M (2016) Has a rampaging AI algorithm really killed thousands in Pakistan? The Guardian. https://www.theguardian.com/science/the-lay-scientist/2016/feb/18/has-a-ram paging-ai-algorithm-really-killed-thousands-in-pakistan. Accessed 1 November 2021 Rogoway T (2015) Drones in Afghanistan have the most advanced aerial surveillance ever. Jalopnik. https://foxtrotalpha.jalopnik.com/drones-in-afghanistan-have-the-most-advanced-aer ial-sur-1695912540. Accessed 1 November 2021 Roscini M (2014) Cyber Operations and the Use of Force in International Law. Oxford University Press, Oxford Sandoz Y, Gasser HP, Junod S, De Preux J, Swinarski C, Zimmermann B, Wenger CF (1987) Commentary on the Additional Protocols of 8 June 1997 to the Geneva Conventions of 12 August 1949. ICRC, Geneva Schmitt MN (2017) Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations, 2nd edn. Cambridge University Press, Cambridge Shanker T, Richtel M (2011) In New Military, Data Overload Can Be Deadly. https://www.nytimes. com/2011/01/17/technology/17brain.html. Accessed 10 October 2020 Skitka LJ, Mosier KL, Burdick M (1999) Does Automation Bias Decision-Making? International Journal of Human-Computer Studies 51(5):991–1006 SRC Defense (2020) Agile Condor High-Performance Embedded Computing. https://www.src inc.com/pdf/Intelligence-Surveillance-Reconnaissance-Agile-Condor.pdf. Accessed 1 February 2021 State of Israel (2009) The Operation in Gaza 27 December 2008—18 January 2009. https://mfa.gov. il/MFA_Graphics/MFA%20Gallery/Documents/GazaOperation%20w%20Links.pdf. Accessed 1 February 2021 Su¸ ¸ snea E (2012) Decision Support Systems in Military Actions: Necessity, Possibilities and Constraints: Journal of Defense Resources Management 3(2): 131–140 Trevithick J (2020) MQ-9 Reaper Flies With AI Pod That Sifts Through Huge Sums Of Data To Pick Out Targets. https://www.thedrive.com/the-war-zone/36205/reaper-drone-flies-with-pod ded-ai-that-sifts-through-huge-sums-of-data-to-pick-out-targets. Accessed 15 October 2020 UK Ministry of Defence (2016) UK Weapon Reviews. Development, Concepts and Doctrine Centre, Shrivenham UN Convention on Certain Conventional Weapons (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 UN General Assembly (2015) Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security, UN Doc. A/70/174 UN General Assembly (2017) 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, Weapons Review Mechanism submitted by the Netherlands and Switzerland, UN Doc. CCW/GGE.1/2017/WP.5 US Department of the Air Force (2011) Legal Reviews of Weapons and Cyber Capabilities. Department of the Air Force E-Publishing, Washington DC

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US National Security Agency (2007) SKYNET: Applying Advanced Cloud-Based Behavior Analytics. https://s3.amazonaws.com/s3.documentcloud.org/documents/2074625/skynet-app lying-advanced-cloud-based-behavior.pdf. Accessed 1 February 2021 Verdiesen I, Santoni de Sio F, Dignum V (2020) Accountability and Control Over Autonomous Weapon Systems: A Framework for Comprehensive Human Oversight. Minds and Machines. Minds and Machines 31: 137–163 Wallace D (2018) Cyber Weapon Reviews under International Humanitarian Law: A Critical Analysis. NATO Cooperative Cyber Defence Centre of Excellence. https://ccdcoe.org/uploads/2018/ 10/TP-11_2018.pdf. Accessed 1 February 2021 Weisgerber M (2017) The Pentagon’s New Artificial Intelligence Is Already Hunting Terrorists. https://www.defenseone.com/technology/2017/12/pentagons-new-artificial-intelligence-alr eady-hunting-terrorists/144742/. Accessed 15 October 2020 Zarsky T (2016) The Trouble with Algorithmic Decisions: An Analytic Road Map to Examine Efficiency and Fairness in Automated and Opaque Decision Making. Science, Technology, & Human Values 41(1):118–132

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, 539 (entered into force 10 March 1908) (Hague Regulation IV) Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980) Declaration of St. Petersburg of 11 December 1868 Renouncing the Use, in Time of War, of certain Explosive Projectiles Under 400 Grammes Weight, opened for signature 29 November 1868, (entered into force 11 December 1868) Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978)

Klaudia Klonowska is a Junior Researcher at the T.M.C. Asser Instituut. This chapter was developed in the context of the DILEMA Project on Designing International Law and Ethics into Military Artificial Intelligence, funded by the Dutch Research Council (NWO) Platform for Responsible Innovation (NWO-MVI). The author would like to thank Professor Wouter Werner (VU), Dr. Tom van Engers (UvA, TNO), Dr. Berenice Boutin (Asser Instituut) and Ms. Taylor Woodcock (Asser Instituut) for their contributions.

Part III

Year in Review

Chapter 7

Year in Review 2020 Klaudia Klonowska and Shraddha Dubey

Contents 7.1 Ongoing Conflicts and Other Developments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1.1 Afghanistan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1.2 Armenia/Azerbaijan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1.3 Burkina Faso . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1.4 Cameroon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1.5 Central African Republic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1.6 Colombia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1.7 Democratic Republic of Congo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1.8 Ethiopia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1.9 Israel/Palestine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1.10 Iraq . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1.11 Libya . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1.12 Mozambique . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1.13 Myanmar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1.14 Somalia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1.15 South Sudan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1.16 Syria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1.17 Ukraine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1.18 Western Sahara/Morocco . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1.19 Yemen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2 Courts and Tribunals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2.1 International Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2.2 Regional and Hybrid Courts and Tribunals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2.3 National Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3 Arms Control and Disarmament . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3.1 Arms Trade . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3.2 Conventional Weapons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3.3 Non-conventional Weapons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3.4 Outer Space . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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K. Klonowska (B) · S. Dubey T.M.C. Asser Instituut, The Hague, The Netherlands e-mail: [email protected] S. Dubey e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2022 T. D. Gill et al. (eds.), Yearbook of International Humanitarian Law 2020, Yearbook of International Humanitarian Law 23, https://doi.org/10.1007/978-94-6265-491-4_7

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Abstract The purpose of the Year in Review is to provide readers with an overview of events that took place in 2020 with significant relevance to international humanitarian law (IHL) and international criminal law (ICL). These events include: (i) an outlook on ongoing hostilities and related developments, including the analysis of their classification as international (IAC) and/or non-international armed conflicts (NIAC); (ii) a summary of relevant proceedings and decisions by international courts and tribunals as well as those of national courts under the principle of universal jurisdiction, and (iii) an overview of developments, including the status of relevant treaties, regarding conventional and non-conventional arms control and disarmament, and weaponization of the outer space. Keywords International Humanitarian Law · Armed Conflict · Armed Groups · Terrorism · Counterterrorism · International Criminal Law · International Tribunals · War Crimes · Crimes against Humanity · Genocide · Arms Control · Conventional Weapons · Landmines · Cluster Munitions · Lethal Autonomous Weapons · Chemical Weapons · Biological Weapons · Nuclear Weapons · Weaponization of Outer Space · Universal Jurisdiction

7.1 Ongoing Conflicts and Other Developments Despite the outbreak of the Covid-19 pandemic early in 2020, the international arena continued to observe numerous armed conflicts worldwide; from the longstanding wars in Afghanistan and Syria to the outbreaks of inter-State hostilities in the Nagorno-Karabakh region and intra-State conflict in Ethiopia. These developments bring into question the application by the parties to the conflict of the rules of international humanitarian law (IHL) and international human rights law (IHRL) (though violations of IHRL are not the focus of this analysis). In this section, we outline hostilities that marked the history of 2020. Particularly, we analyze whether those hostilities qualify as international armed conflicts (IACs) and non-international armed conflicts (NIACs) under IHL. Critical to this distinction is the characterization of IACs and NIACs. IACs refer to hostilities between two or more States.1 In cases where a State engages in hostilities against a non-State party on a territory of another State whose consent to intervene has not been obtained, we follow the interpretation of the International Committee of the Red Cross (ICRC) which instructs that such an act constitutes a breach of that State’s sovereignty and qualifies as an IAC.2 NIACs refer to conflicts in which a non-governmental armed group is one of the parties (i.e., between government authorities and armed groups or between such groups only) provided that the group meets the following two requirements: (i) the violence reaches a threshold of intensity (e.g., number of casualties, 1

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), Common Article 2. 2 Ferraro and Cameron 2016, para 224.

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duration, intensity of confrontations, types of weapons used); and (ii) the armed group meets a required degree of organization (e.g., command structure, disciplinary rules, ability to train fighters and provide them with financial resources, ability to plan, coordinate and carry out attacks, ability to enter into negotiations and conclude agreements).3 We take the approach of compartmentalization of conflicts, meaning that each non-State actor’s degree of organization and intensity of violence must be evaluated independently in order to assess whether there is a NIAC to which this group is a party. Thus, a careful assessment of conflicts must be conducted before concluding whether IHL is applicable. Importantly, the two types of armed conflicts may co-exist and/or a conflict situation may evolve from one kind of conflict to another. The analysis in this Year in Review is, therefore, pertinent to the situation as it were in 2020, and is cognizant of the possibility of evolution or change in circumstances with time. To the extent possible, we use these guidelines to characterize the developments described below. The list of conflicts below is not exhaustive, instead, it is a selection of existing conflicts that saw significant developments and of new conflicts that emerged in 2020.

7.1.1 Afghanistan Over the last five decades, Afghanistan has experienced multiple armed conflicts.4 Contemporarily, its armed forces—the Afghan National Security Forces (ANSF)— are embroiled in hostilities against the Taliban.5 The Taliban is a non-State actor that came into power in 1996. It has been engaged in an armed conflict with the Afghan forces since the fall of the Afghan government in 2002 and following the United States’ (US) military intervention.6 The Taliban has an “organized command structure” and “a strong operational capacity”.7 The Taliban have caused considerable violence and casualties. The United Nations Assistance Mission in Afghanistan (UNAMA) attributed “3,960 civilian casualties (1,470 killed and 2,490 injured) to 3 GC I, above n 1, Common Article 3; ICTY, The Prosecutor v Dusko Tadi´ c, Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, Case No. IT-94-1-AR72, para 70; ICTY, The Prosecutor v Dusko Tadi´c, Trial Chamber, Judgment, 7 May 1997, Case No. IT-94-1-T, para 562. For a collected list of qualifying characteristics emerging from the ICTY judgements, see https://www.rulac.org/classification/non-international-armed-conflicts# collapse2accord. 4 BBC (2019) Afghanistan profile—Timeline. https://www.bbc.com/news/world-south-asia-120 24253. Accessed 29 March 2021. 5 Ibid. 6 Al Jazeera (2020) From the 2001 fall of the Taliban to 2020 Afghan peace talks., https://www.aljaze era.com/news/2020/9/12/from-the-2001-fall-of-the-taliban-to-2020-afghan-peace-talks. Accessed 29 March 2021. 7 Centre for International Security and Cooperation, Stanford University (2018) The Afghan Taliban. https://cisac.fsi.stanford.edu/mappingmilitants/profiles/afghan-taliban. Accessed 29 March 2021; Congressional Research Service 2021.

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the Taliban” between January and December 2020, with significant casualties from IEDs, mortars and rockets, and targeted killings.8 The characteristics exhibited by the Taliban, namely a high degree of organization and significant violence, indicate the presence of a non-international nature of an armed conflict. This classification has been affirmed by many entities including the UNAMA, the ICRC, and the International Criminal Court (ICC), among others.9 The involvement of the US in the intra-State conflict between the Afghan armed forces and the Taliban has been prominent, but due to the approval of the Afghan government to the presence of the US troops on its territory, it retains the characteristics of a NIAC.10 The US has conducted attempts at resolving the conflict peacefully, entering into talks with the Taliban. Between 27–28 April 2019, a USTaliban “agreement in principle” was concluded which promised the withdrawal of the US and NATO troops from Afghanistan. This agreement was formally signed by the US and Taliban on 27 February 2020.11 The US began to withdraw its armed forces from Afghanistan, reducing the total number of troops to 2,500 by January 2021.12 However, the US-Taliban agreement has been disrupted by the Afghan government’s refusal to implement a prisoner exchange that was envisaged as part of the agreement. The Taliban resumed violence by attacking government forces in March 2020.13 Since then, attempts have been made to proceed with the prisoner exchange but the progress has been slow. On 12 September 2020, representatives of the Afghan government and the Taliban met in Doha, Qatar to restart peace talks to conclude the two-decades-long conflict.14 However, the negotiations have not given fruit in 2020 and violence continued up until the end of the year. In addition to the conflict with the Taliban, the Afghan government (backed by the US) is also engaged in hostilities against the Islamic State group in Iraq and the Levant (ISIL-KP). The ISIL-KP is the regional Khorasan branch of the Islamic State (IS) group, which was established in 2015. Despite frequent changes in its leadership due to deaths caused by hostilities, it has managed to sustain a small 8

United Nations Assistance Mission in Afghanistan and United Nations Human Rights Office of the High Commissioner, Afghanistan (2021) Protection of Civilian in Armed Conflict, Annual Report 2020. https://unama.unmissions.org/sites/default/files/afghanistan_protection_of_c ivilians_report_2020_revs3.pdf. Accessed 29 March 2021. 9 Ibid.; ICC The Office of the Prosecutor 2016; Cameron et al. 2016, para 400. 10 RULAC (2021) Non-international armed conflicts in Afghanistan. https://www.rulac.org/ browse/conflicts/non-international-armed-conflicts-in-afghanistan#collapse4accord. Accessed 27 May 2021; Akande 2012. 11 International Crisis Group (2020) Afghanistan Peace Talks Since 2018: A Timeline. https://www.crisisgroup.org/asia/south-asia/afghanistan/afghanistan-between-february-2018and-august-2020-timeline. Accessed 29 March 2021. 12 Congressional Research Service 7.2021. 13 BBC (2020) Afghan conflict: Taliban to resume attacking local forces after deal with US. https:// www.bbc.com/news/world-asia-51706126. Accessed 12 April 2021. 14 International Crisis Group (2020) Afghanistan Peace Talks Since 2018: A Timeline. https://www.crisisgroup.org/asia/south-asia/afghanistan/afghanistan-between-february-2018and-august-2020-timeline. Accessed 12 April 2021.

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but stable organizational structure consisting of commanding squads and members specialized in different tasks such as bomb-making.15 While there has been a relative reduction in armed activities from before, the ISIL-KP has continued to be violent. It claimed responsibility for major bombings in Afghanistan in 2020. These bombings caused hundreds of casualties, including the attack on a prison complex in Jalalabad where 29 people died, around 50 were injured and more than 1,300 inmates fled the prison.16 Considering the level of organization displayed by the ISIL-KP and its continued involvement in violent attacks against Afghan citizens and the governmental infrastructure, it can be concluded that in 2020 the ISIL-KP and the Afghan government were engaged in a NIAC. Additionally, further developments took place concerning prior participation of other countries in the conflict in Afghanistan. For instance, in Australia, a four-year investigation was concluded into the crimes committed by the Australian Defense Forces in Afghanistan between 2005 and 2016. The so-called Bretton report written by the Inspector-General of the Australian Defence Force (IGADF) found that 25 special forces soldiers were allegedly implicated in unlawful killings of 39 Afghan civilians.17 The report further describes “systemic behavior” and a “warrior culture” that led to many other atrocities in Afghanistan, which indicate that there was command responsibility and that “the organization became voluntarily ‘collectively blind’” to the ongoing violations of IHL and international criminal law (ICL).18 The investigation and prosecution of crimes will proceed in 2021. For more information about ongoing international cases relating to crimes committed in Afghanistan, see ICC’s preliminary examinations and investigations in Sect. 7.2.1.1 and a case at the European Court of Human Rights (ECHR) in Sect. 7.2.2.4. In 2020, Afghanistan joined as a party to the Arms Trade Treaty (see Sect. 7.3.1).

7.1.2 Armenia/Azerbaijan Since 1994, Armenian military troops have occupied the Nagorno-Karabakh region in Azerbaijan. They effectively exercised authority over the region by “equipping,

15

RULAC (2021) Non-international armed conflicts in Afghanistan. https://www.rulac.org/browse/ conflicts/non-international-armed-conflicts-in-afghanistan#collapse2accord. Accessed 29 March 2021. 16 Security Council Report (2020) September 2020 Monthly Forecast, Afghanistan. https://www. securitycouncilreport.org/monthly-forecast/2020-09/afghanistan-9.php. Accessed on 14 April 2021; International Crisis Group (2020) Tracking Conflict Worldwide, Afghanistan. https://www. crisisgroup.org/crisiswatch/database?location%5B%5D=36&date_range=custom&from_month= 10&from_year=2020&to_month=03&to_year=2021. Accessed 27 May 2021. 17 Human Rights Watch (2020) Australia: Ensure Justice for Alleged War Crimes. https://www. hrw.org/news/2020/12/09/australia-ensure-justice-alleged-war-crimes. Accessed 1 February 2021. 18 Afghanistan Inquiry Report 2020.

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financing or training” the self-proclaimed Nagorno-Karabakh Republic’s forces.19 In July 2020, hostilities erupted between Armenia and Azerbaijan in the NagornoKarabakh region, and they escalated into a six-week war in September 2020. The conflict, of which the highest hostilities took place between September and November 2020 on the trench-lined border, left hundreds of civilians and an estimated 5,000 soldiers dead.20 Many people, especially Armenians, were displaced as a result of the conflict. Hostilities involved the exchange of fire using sophisticated technologies, including armed drones, rocket artillery, and missiles. The use of these technologies by Azerbaijan enabled targeted attacks that disabled Armenian tanks, artillery units and air defense, and damaged opponents’ supply lines and logistics.21 The UN High Commissioner for Human Rights warned that the use of cluster munitions, indiscriminate attacks, and artillery strikes against civilianpopulated areas if prosecuted, may amount to crimes under IHL.22 Human Rights Watch also reported that the Azerbaijani government was found to have subjected Armenian prisoners of war (POWs) and civilian detainees to cruel and degrading treatment, including torture.23 Due to the involvement of two States in open combat, the Armenia-Azerbaijan hostilities qualify as an IAC under international law. During the conflict, Turkey declared direct support to Azerbaijan. Russia, which was reported to have previously provided both sides of the conflict with weaponry, called for a ceasefire. The UN Security Council, the UN Secretary-General, and the UN High Commissioner for Human Rights have expressed concerns over the conduct of hostilities and called for peace talks.24 Finally, on 9 November, the ceasefire brokered by Russia was reached. This nine-point ceasefire halted hostilities, gave several territories back to Azerbaijan, including a strategic town of Shusha.25 The ceasefire also agreed to the deployment of Russian peacekeeping forces to the capital of Nagorno-Karabakh, Stepanakert, the access road of Lachin Corridor, and the threemile-wide buffer zone during the next five years. However, the question of the legal status of the Nagorno-Karabakh region was unresolved in the ceasefire and may continue to cause tensions between Azerbaijan and Armenia in the near future. 19

RULAC (2021), Military occupation of Azerbaijan by Armenia., https://www.rulac.org/bro wse/conflicts/military-occupation-of-azerbaijan-by-armenia#collapse1accord. Accessed 29 March 2021. 20 BBC (2020) Nagorno-Karabakh conflict killed 5,000 soldiers. https://www.bbc.com/news/worldeurope-55174211. Accessed 29 March 2021. 21 CSIS (2020) The Air and Missile War in Nagorno-Karabakh: Lessons for the Future of Strike and Defense. https://www.csis.org/analysis/air-and-missile-war-nagorno-karabakh-lessons-futurestrike-and-defense. Accessed 29 March 2021. 22 UN News (2020), UN rights chief warns of possible war crimes in Nagorno-Karabakh conflict., https://news.un.org/en/story/2020/11/1076672. Accessed 29 March 2021. 23 Human Rights Watch (2021) Azerbaijan: Armenian POWs Abused in Custody. https://www.hrw. org/news/2021/03/19/azerbaijan-armenian-pows-abused-custody. Accessed 19 March 2021. 24 UN News (2020) Nagorno-Karabakh: UN rights chief calls for urgent ceasefire as hostilities mount. https://news.un.org/en/story/2020/10/1075022. Accessed 29 March 2021. 25 The New York Times (2020) Facing Military Debacle, Armenia Accepts a Deal in NagornoKarabakh War. https://www.nytimes.com/2020/11/09/world/middleeast/armenia-settlement-nag orno-karabakh-azerbaijan.html. Accessed 29 March 2021.

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7.1.3 Burkina Faso The situation in the northern Sahel region of Burkina Faso is dire due to violent conflicts compounded by spiraling conditions of climate change and food scarcity. In the first quarter of 2020, the Liptako Gourma region—at the intersection of Burkina Faso, Mali, and Niger’s borders—experienced a significant increase in violent incidents and a rapid deterioration of security.26 In many regions, the government of Burkina Faso has no control over the situation, with access to primary health care and education halted.27 Due to changing power structures and continued hostilities, the borders in the Sahel region are constantly changing. By September 2020, over a million people were forcibly displaced leaving their only source of food and income, cattle and farms, behind.28 Numerous non-State armed groups operate in Burkina Faso and the adjacent regions of Mali and Nigeria. The most prominent are: (i) the Islamic State in West Africa Province (ISWAP), (ii) the Islamic State in the Greater Sahara (ISGS), and (iii) the Group for the Support of Islam and Muslims (JNIM). Each of these groups has to be assessed independently to determine whether a NIAC is present. However, this assessment is obfuscated by scarce information about the organization of these groups, and an unclear responsibility for attacks and fatalities. Additionally, the presence of the Ansaroul Islam, a home-grown jihadist group operating out of Soum province, indicates that another non-State actor is emerging in Burkina Faso. However, in 2020, there was insufficient evidence to conclude whether the degree of organization and intensity of violence of Ansaroul Islam meets the threshold under IHL. First, ISWAP has been supported by the Nigeria-based Boko Haram Islamist group. Hostilities between the government forces and ISWAP have happened sporadically throughout 2020, with activities taking place primarily “along the borders in the south-eastern part of Niger and the south-western part of Chad”.29 In May, eight soldiers were killed near a mining site in Yagha province, while 20 jihadists died in later clashes. Although some have referred to ISWAP as a party to a NIAC,30 little is known about ISWAP’s organization, nor is there sufficient evidence of the high intensity of hostilities, therefore it is not conclusive whether, in 2020, ISWAP was a party to a conflict against the government forces.

26

ICRC (2020) A conflict without borders continues to play out in the Sahel. https://www.icrc.org/ en/document/conflict-without-borders-continues-play-out-sahel. Accessed 30 April 2021. 27 Ibid. 28 Cordaid (2020) Saving Lives and Reducing Conflict in The Sahel Region. https://www.cordaid. org/en/news/saving-lives-and-reducing-conflict-in-the-sahel-region/. Accessed 30 April 2021. 29 UK Ministry of Immigration and Integration (2020) Violent Extremism in West Africa. https:// www.justice.gov/eoir/page/file/1308976/download. Accessed 10 May 2021. 30 RULAC (2021) Non-international armed conflicts in Burkina Faso. https://www.rulac.org/ browse/conflicts/non-international-armed-conflicts-in-burkina-faso#collapse1accord. Accessed 23 June 2021.

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Second, the ISGS is a non-State armed group led by the Western Saharan militant Adnan Abu Walid al-Sahrawi.31 It operates in Burkina Faso, as well as along the Niger-Mali border.32 The ISGS is known to have a limited number of fighters, but it has exhibited a high coordination of attacks and “increasingly sophisticated tactics”.33 ISGS has an affiliation with the IS group, indicating a capacity and leadership to represent the group externally, and a degree of organization that meets the required threshold under IHL.34 Whereas the attacks conducted by ISGS in 2019 caused extensive deaths, the reports of hostilities in 2020 are more dispersed.35 Some 36 fighters, alleged members of ISGS, died in hostilities.36 Further evidence is required from the level of hostilities in 2020 to determine whether ISGS qualified as a party to a NIAC. Third, the JNIM is a group that emerged in 2017, with Iyad Ag Ghali as its leader.37 Due to ongoing hostilities and networks of the JNIM group beyond Burkina Faso, it is regarded as “the most dangerous armed group operating in the Sahel region”.38 It has allegedly been affiliated with al-Qaeda.39 Its high degree of organization is exhibited by the capabilities to acquire weapons, recruit fighters, and conduct coordinated attacks.40 Among other attacks, in April 2020 suspected members of JNIM “killed at least nineteen soldiers in Loroum province, in the northern region”.41 In May, JNIM militants claimed responsibility for the ambush of army and volunteer fighter forces, 31

The New Humanitarian (2020) Jihadis, Vigilantes, and Demoralised Troops: A who’s who in Burkina Faso’s spiralling crisis. https://www.thenewhumanitarian.org/analysis/2020/03/09/who-iswho-burkina-faso-crisis. Accessed 30 April 2021. 32 UK Ministry of Immigration and Integration 2020. 33 ICCT (2020) The Shifting Sands of the Sahel’s Terrorism Landscape. https://icct.nl/publication/ the-shifting-sands-of-the-sahels-terrorism-landscape/. Accessed 20 May 2021. 34 ICCT (2020) The Shifting Sands of the Sahel’s Terrorism Landscape. https://icct.nl/publication/ the-shifting-sands-of-the-sahels-terrorism-landscape/. Accessed 20 May 2021. 35 ACLED (2019) Heeding the Call: Sahelian Militants Answer Islamic State Leader Al-Baghdadi’s Call to Arms with a Series of Attacks in Niger. https://acleddata.com/2019/05/23/heeding-the-callsahelian-militants-answer-islamic-state-leader-al-baghdadis-call-to-arms-with-a-series-of-attacksin-niger/. Accessed 20 May 2021. 36 RULAC (2021) Non-international armed conflicts in Burkina Faso. https://www.rulac.org/ browse/conflicts/non-international-armed-conflicts-in-burkina-faso#collapse1accord. Accessed 30 April 2021. 37 Ibid. 38 Ibid. 39 ICCT (2020) The Shifting Sands of the Sahel’s Terrorism Landscape. https://icct.nl/publication/ the-shifting-sands-of-the-sahels-terrorism-landscape/. Accessed 20 May 2021. 40 Eizenga and Williams (2020) The Puzzle of JNIM and Militant Islamist Groups in the Sahel, https://africacenter.org/publication/puzzle-jnim-militant-islamist-groups-sahel/. Accessed 30 April 2021. 41 RULAC (2021) Non-international armed conflicts in Burkina Faso. https://www.rulac.org/ browse/conflicts/non-international-armed-conflicts-in-burkina-faso#collapse1accord. Accessed 30 April 2021.

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killing 3 and seizing governmental vehicles and arms.42 On another occasion, in June, suspected JNIM militants detonated an IED against an army vehicle.43 In September, the Burkinabe army conducted a combined air-ground operation in Loroum Province killing about fifteen suspected JNIM militants and seizing their equipment.44 If the involvement of JNIM members is indeed confirmed, there is an indication that the group conducted significant violent acts and thus met the threshold of the second condition under IHL in 2020. The high degree of organization and the intensity of hostilities tell us that in 2020 JNIM could be considered a party to a NIAC against the government of Burkina Faso. Notably, on 13 January 2020 France met with heads of five Sahel States in the socalled Pau summit which resulted in the reaffirmation of the Sahel States’ desire, including that of Burkina Faso, for French troops’ involvement in the region.45 Operation Barkhane and the Task Force Takuba were enhanced, and the ISGS nonState group was designated as the priority target of this counterterrorism offensive.46 French forces (in coalition with the government forces of Burkina Faso) conducted several airstrikes against presumed members of the ISGS group, among others, in Koutougou, Ti-n-Samane, Tassamakat, and in Erafnaman where they killed 20 members of the group.47 Particularly, in April a French air strike destroyed a militant base and killed a suspected ISGS militant commander.48 Due to the local government’s acceptance of French troops’ presence on its sovereign territory, these hostilities do not qualify as an IAC.

7.1.4 Cameroon Cameroon continues to be involved in a NIAC with Boko Haram. Boko Haram is a non-State armed group that operates in Nigeria and the Lake Chad Basin area,

42

ACLED (2019) Heeding the Call: Sahelian Militants Answer Islamic State Leader Al-Baghdadi’s Call to Arms with a Series of Attacks in Niger. https://acleddata.com/2019/05/23/heeding-the-callsahelian-militants-answer-islamic-state-leader-al-baghdadis-call-to-arms-with-a-series-of-attacksin-niger/. Accessed 20 May 2021. 43 Ibid. 44 Ibid. 45 France Diplomatique (2020) G5 Sahel – Pau Summit – Statement by the Heads of State. https:// www.diplomatie.gouv.fr/en/french-foreign-policy/security-disarmament-and-non-proliferation/ news/2020/article/g5-sahel-pau-summit-statement-by-the-heads-of-state-13-jan-2020. Accessed 20 May 2021. 46 Ibid. 47 ACLED (2019) Heeding the Call: Sahelian Militants Answer Islamic State Leader Al-Baghdadi’s Call to Arms with a Series of Attacks in Niger. https://acleddata.com/2019/05/23/heeding-the-callsahelian-militants-answer-islamic-state-leader-al-baghdadis-call-to-arms-with-a-series-of-attacksin-niger/. Accessed 20 May 2021. 48 Ibid.

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including regions of Cameroon, Chad, and Niger.49 It has a complex and sophisticated organizational structure consisting of a head, council of elders, commander, sub-commanders, and members.50 Despite fluctuations in its composition and functioning, it has continued to exercise sufficient control over the region through violent armed attacks.51 Since January 2020, Boko Haram has carried out attacks in the Far North region of Cameroon almost daily leading to killings, thefts, abductions, and destruction of property. Boko Haram was also involved in carrying out multiple suicide bombings across the Far North region.52 Besides this, Cameroon is embroiled in hostilities with many Anglophone separatist groups demanding independence from the government in the Northwest and Southwest regions of the country.53 These separatist demands began in 2016 progressing into a conflict-like situation in 2017. While many groups have been involved in this pro-independence conflict, two groups continued to operate in 2020: the Ambazonian Defense Forces (ADF) and the Southern Cameroons Defence Force (SOCADEF).54 In the wake of the Covid-19 pandemic, SOCADEF called for a ceasefire while the ADF refused to put down its arms.55 In June 2020, government officials initiated peace talks with the Ambazonian Interim Government, an umbrella organization of the main separatist groups.56 However, the peace talks did not succeed in ending violence.57 The governmental security forces dealt with the separatist groups’ violence with “a heavy hand”, often resulting in the death of civilians.58 Most of the separatist groups lack a high organization, except a few such as the ADF.59 Despite some armed confrontations, the intensity of violence in terms of its number, duration, and type of weapons used by the separatist groups, do not appear to achieve the threshold required for a NIAC.60 Therefore, while Cameroon is involved in a NIAC 49 International Crisis Group (2016) Q&A: Boko Haram in Cameroon. https://www.crisisgroup. org/africa/central-africa/cameroon/q-boko-haram-cameroon. Accessed 10 May 2021. 50 RULAC (2021) Non-international Armed Conflict in Cameroon. https://www.rulac.org/browse/ conflicts/non-international-armed-conflict-in-cameroon#collapse5accord. Accessed 10 May 2021. 51 Ibid. 52 Human Rights Watch 2021a. 53 RULAC, Non-international Armed Conflict in Cameroon. https://www.rulac.org/browse/confli cts/non-international-armed-conflict-in-cameroon#collapse5accord. Accessed 10 May 2021. 54 RULAC, Non-international Armed Conflict in Cameroon. https://www.rulac.org/browse/confli cts/non-international-armed-conflict-in-cameroon#collapse5accord. Accessed 10 May 2021. 55 BBC (2020) Cameroon rebels declare coronavirus ceasefire. https://www.bbc.com/news/worldafrica-52053738. Accessed 10 May 2021. 56 Al Jazeera (2020) Cameroon holds first peace talks with main separatist group. https://www. aljazeera.com/news/2020/07/04/cameroon-holds-first-peace-talks-with-main-separatist-group/. Accessed 10 May 2021. 57 Human Rights Watch 2021a. 58 Ibid. 59 International Crisis Group (2019) Cameroon’s Anglophone Crisis: How to Get to Talks? https:// d2071andvip0wj.cloudfront.net/272-cameroon-anglophone-crisis_0.pdf. Accessed 10 May 2021. 60 RULAC, Non-international Armed Conflict in Cameroon. https://www.rulac.org/browse/confli cts/non-international-armed-conflict-in-cameroon#collapse5accord. Accessed 10 May 2021.

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with Boko Haram, its conflict with the Anglophone separatist groups, in 2020, did not amount to the threshold required by IHL and constitutes only a serious internal security crisis involving human rights violations.

7.1.5 Central African Republic Many non-State armed and rebel groups operate within the territory of the Central African Republic (CAR) and are involved in multiple armed conflicts against the government and each other. Both the government of the CAR as well as the UN Security Council have referred to CAR as a country in armed conflict.61 The CAR government with the help of the UN Multidimensional Integrated Mission (MINUSCA) is engaged in mitigating efforts with these rebel forces.62 It is important to note that, on 6 February 2019, the CAR government with the mediation of the African Union (AU), signed a Political Agreement for Peace and Reconciliation with 14 armed groups.63 Four out of these 14 groups, namely Mouvement Patriotique Centrafricain (MPC), the Popular Front for the Rebirth (or Renaissance) of Central African Republic (FPRC), Union for Peace in CAR (UPC), and the Return, Reclamation and Rehabilitation (3R) group were supposed to be demobilized as per the agreement. However, the peace agreement did not sustain and intense violence was recorded soon after and throughout 2020. In January 2020 itself, several casualties occurred as fighters from the anti-Balaka group, the MPC, the FPRC, and the Central African Liberators for Justice Movement (MLCJ) clashed with each other in different instances.64 While violence continued, in April 2020, seven other rebel groups withdrew from the Political Agreement of 2019 and joined the ongoing clashes.65 For example, it has been reported that women and children were used as human shields by FPRC to prevent MINUSCA peacekeepers from operating in the town of Ndele.66 It is beyond the scope of this review to analyze every group’s organizational structure and violence. However, some preliminary conclusions emerge from the above-mentioned observations. Notably, the MPC, the FPRC, the UPC, the 3R, the 61

UN Security Council (2017a) The situation in Central African Republic, UN Doc. S/PV.7901; UN Security Council 2017b, Resolution 2387, UN Doc. S/RES/2387. 62 RULAC (2021) Non-international armed conflicts in the Central African Republic. https://www. rulac.org/browse/conflicts/non-international-armed-conflict-in-the-central-african-republic#collap se2accord. Accessed 15 April 2021. 63 UN Security Council (2019) Political Agreement for Peace and Reconciliation in the Central African Republic, UN Doc. S/2019/145. 64 International Crisis Group (2020) Global Overview, January 2020. https://www.crisisgroup.org/ crisiswatch/february-alerts-and-january-trends-2020. Accessed 15 April 2021. 65 Global Conflict Tracker (2021) Violence in the Central African Republic. https://www.cfr.org/ global-conflict-tracker/conflict/violence-central-african-republic. Accessed 15 April 2021. 66 UN News (2021) Central Africa Republic: Security Council reflects on peace deal anniversary. https://news.un.org/en/story/2020/02/1057731. Accessed 15 April 2021.

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MLCJ, and the anti-Balaka group exhibit a strong organizational structure with the ability to carry out military attacks, participate and conclude peace negotiations.67 While hostilities continue, the dynamic and overlapping nature of violence renders it impossible to clearly ascribe responsibility for the attacks to a specific group. Therefore, a collective assessment of the prevailing situation exhibiting a high degree of organization of these groups and continued high intensity of hostilities, indicates that there are NIACs in CAR. The ongoing conflict situation has created a humanitarian crisis in the CAR with 2.6 million people (out of a population of 4.6 million) in need of humanitarian assistance.68 As the Covid-19 pandemic worsened, the MLCJ and the 3R group eventually declared their intention to cooperate with the government to tackle the pandemic, however, as of 2020, the results of this intention were not yet observed.69 For information about the ongoing trials concerning crimes committed on the territory of CAR, see cases in the trial phase at the ICC in Sect. 7.2.1.1. Additionally, the Bangui Court of Appeal in CAR tried one case of international legal importance, see Sect. 7.2.3.5.

7.1.6 Colombia Despite the peace accords of 2016, hostilities continued between the government of Colombia and numerous non-State groups, including the Ejército de Liberación Nacional (National Liberation Army) (ELN) and dissidents of Fuerzas Armadas Revolucionarias de Colombia’s (FARC-EP). In January 2020, the ELN group offered olive branches as a symbol to invite the government of Colombia to enter peace talks.70 However, the government refused to enter the negotiations. In response, in February ELN implemented an armed strike (transl. paro armado) in several provinces under its control which entailed restrictions on citizens’ movement, and several designations of shops and vehicles without special permission as military targets.71 Among others, in the province of Arauca, civilians’ freedom of movement was seriously restrained by ELN and there were reports of

67 RULAC (2021) Non-international armed conflicts in the Central African Republic. https://www. rulac.org/browse/conflicts/non-international-armed-conflict-in-the-central-african-republic#collap se2accord. Accessed 15 April 2021. 68 United Nations Office for the Coordination of Humanitarian Affairs (2021) Central African Republic. https://www.unocha.org/car. Accessed 15 April 2021. 69 RULAC (2021) Non-international armed conflicts in the Central African Republic. https://www. rulac.org/browse/conflicts/non-international-armed-conflict-in-the-central-african-republic#collap se2accord. Accessed 15 April 2021. 70 RULAC (2021) Non-international armed conflicts in Colombia. https://www.rulac.org/bro wse/conflicts/non-international-armed-conflicts-in-colombia#collapse3accord. Accessed 29 March 2021. 71 Ibid.

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murder, kidnappings, disappearances, child recruitment, and rape.72 In March, due to the outbreak of the Covid-19 pandemic and the pressure from civil society, ELN announced a month-long unilateral ceasefire in which it committed to a temporary peace.73 The government did not reciprocate this ceasefire and violence broke out again at the end of April. In May, the government attacked the ELN group killing at least 22 fighters, including the leader of ELN known as Mocho Tierra.74 Hostilities continued throughout 2020. These incidents show a high degree of control exercised by ELN over the provinces of Cauca, Norte de Santander, and Arauca and their continued engagement in hostilities that do not spare civilian lives. Furthermore, the ELN’s high degree of organization is observed in its code of conduct, capacity to “speak with one voice”, and a clear hierarchy.75 Therefore, ELN’s high degree of organization and high intensity of hostilities indicates that in 2020 it continued to be a party to a NIAC. FARC’s first characterization as a party to a NIAC dates back to the guerrilla wars in 1964. Following the peace accords of 2016, the FARC armed group was demobilized. However, not all members handed in weapons and instead continued fighting. 25 dissident groups operate on the territories that were previously controlled by FARC.76 Whether the hostilities between the dissidents of FARC and the government of Colombia qualify as a NIAC depends on a two-step assessment: (i) first, whether the hostilities are conducted by a successor of FARC; and (ii) second, if hostilities are conducted not by a successor but a new independent entity, then an independent assessment of the degree of organization and intensity of violence must be conducted.77 The government of Colombia has taken the position in 2017 that all FARC dissident groups are parties to a NIAC and are, thus, subject to rules of

72

The Guardian (2020) Armed rebels impose brutal rules in Venezuela-Colombia border region. https://www.theguardian.com/world/2020/jan/21/venezuela-colombia-border-region-human-rig hts-watch. Accessed 29 March 2021. 73 WOLA (2020) ELN Unilateral Ceasefire an Important Opportunity for Peace in Colombia. https://www.wola.org/2020/03/eln-coronavirus-ceasefire/#:~:text=2020%20%7C%20WOLA% 20Statement-,ELN%20Unilateral%20Ceasefire%20an%20Important%20Opportunity%20for% 20Peace%20in%20Colombia,and%20end%20on%20April%2030. Accessed 29 March 2021. 74 DW (2020) Colombia military strike kills ELN rebel commander. https://www.dw.com/en/ colombia-military-strike-kills-eln-rebel-commander/a-53444891. Accessed 29 March 2021; Daily Sabah (2020) Colombian army bombs ELN’s camp, over 20 killed. https://www.dailysabah.com/ world/americas/colombian-army-bombs-elns-camp-over-20-killed. Accessed 29 March 2021. 75 Serralvo (2020) Legal Classification of Armed Conflicts in Colombia. https://www.unisabana. edu.co/programas/unidades-academicas/facultad-de-derecho-y-ciencias-politicas/anuariodih/art iculos/clasificacion-de-conflictos-armados-en-colombia/#_ftnref65. Accessed 29 March 2021. 76 Pappier and Johnson (2020) Does the FARC still exist? Challenges in Assessing Colombia’s ‘Post Conflict’ under International Humanitarian Law. https://www.ejiltalk.org/does-the-farc-still-existchallenges-in-assessing-colombias-post-conflict-under-international-humanitarian-law/. Accessed 29 March 2021. 77 RULAC (2021) Non-international armed conflicts in Colombia. https://www.rulac.org/bro wse/conflicts/non-international-armed-conflicts-in-colombia#collapse3accord. Accessed 29 March 2021.

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engagement under IHL.78 However, legal scholars have indicated that this assessment is not clear-cut given the multiplicity of armed groups in Colombia, unclear connections between these groups and the FARC, and limited sources describing their command structure.79 The ICRC specifies that several groups are “truly linked” through a hierarchical relationship to former FARC’s 1st, 7th, and 40th fronts (or the Eastern Bloc). These groups are parties to an armed conflict since those fronts have officially rejected the peace accords and therefore continue the hostilities of the former long-lasting NIAC (as described in the scenario above).80 Some of these groups are led by the same person, alias Gentil Duarte, and under a hierarchical military-like structure.81 However, not all groups may be considered direct successors of FARC; their links to FARC are either not established or are not claimed. A detailed analysis is necessary to establish each group’s level of organization and intensity of violence that opposes them to the Colombian armed forces (as described in scenario ii above). For example, the Second Marquetalia group was established by alias Ivan Marquez who rejected the peace accords and established a new group (whose name refers to the place where the FARC group was created in 1964). Second Marquetalia operates independently from the other dissident FARC groups and has even engaged in fighting against them.82 Limited accounts of violence conducted by Second Marquetalia in 2020 further leave us with insufficient evidence to determine whether the group met the required threshold of violence and the degree of organization under IHL during that year. In 2020, Colombia continued to prosecute several individuals involved in war crimes and crimes against humanity, see Sect. 7.2.3.6.

7.1.7 Democratic Republic of Congo The Democratic Republic of Congo (DRC), in 2020, continued to be embroiled in numerous hostilities on its territory against several non-State armed groups. It was 78

Pappier and Johnson (2020) Does the FARC still exist? Challenges in Assessing Colombia’s ‘Post Conflict’ under International Humanitarian Law. https://www.ejiltalk.org/does-the-farc-still-existchallenges-in-assessing-colombias-post-conflict-under-international-humanitarian-law/. Accessed 29 March 2021. 79 Ibid. 80 ICRC (2019) Colombia: Five armed conflicts – What’s happening? https://www.icrc.org/en/ document/colombia-five-armed-conflicts-whats-happening#:~:text=Currently%2C%20the%20I CRC%20considers%20that,Eastern%20Bloc)%20of%20the%20FARC%2D. Accessed 29 March 2021. 81 Serralvo (2020) Legal Classification of Armed Conflicts in Colombia. https://www.unisabana. edu.co/programas/unidades-academicas/facultad-de-derecho-y-ciencias-politicas/anuariodih/art iculos/clasificacion-de-conflictos-armados-en-colombia/#_ftnref65. Accessed 29 March 2021. 82 Pappier and Johnson (2020) Does the FARC still exist? Challenges in Assessing Colombia’s ‘Post Conflict’ under International Humanitarian Law. https://www.ejiltalk.org/does-the-farc-still-existchallenges-in-assessing-colombias-post-conflict-under-international-humanitarian-law/. Accessed 29 March 2021.

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reported that over 130 armed groups were operating in DRC’s provinces of North and South Kivu and Ituri, and were involved in attacking civilians.83 The Congolese armed forces (FARDC) along with the UN Organization Stabilization Mission in the Democratic Republic of the Congo (MONUSCO) are involved in hostilities against numerous non-State armed groups.84 This ensuing armed violence has drastically affected the civilian population with over 933,024 fleeing DRC in search of asylum by the beginning of 2021.85 The UN High Commissioner for Human Rights reported that over 1,300 civilians were killed by non-State armed groups and government forces between October 2019 and June 2020 alone.86 Hundreds of others were added to this count by the end of the year.87 Of all armed groups, the Ugandan Allied Democratic Forces (ADF) was the most powerful group in the fight against the governmental forces. In January 2020, DRC made gains against the ADF by capturing the city of Madina, their stronghold in the Kivu region.88 However, by February the armed group ADF regained momentum and conducted a military operation in Ituri killing 63 civilians.89 In April, it continued conducting attacks, including on civilians, in the Beni region of North Kivu.90 Subsequently, it has been involved in armed clashes against the FARDC as well as civilians, killing 22 and 40 civilians in November and December 2020, respectively. While the ADF’s hierarchical structure has been subject to a recent change, its sophisticated military capabilities and ability to procure and distribute arms suggest a highly organized structure.91 Due to both a high degree of organization and continued intensity of violence throughout 2020, we conclude that ADF was a party to a conflict qualifying under the requirements of IHL. The FARDC has also been involved in armed confrontations against Mai-Mai Yakutumba, another non-State actor. Even though many members of the Mai-Mai Yakutumba surrendered to the State forces, violence between the group and the 83

Human Rights Watch 2021b. RULAC (2021) Non-international Armed Conflicts in Democratic Republic of Congo. https:// www.rulac.org/browse/conflicts/non-international-armed-conflict-in-democratic-republic-ofcongo#collapse4accord. Accessed 15 April 2021. 85 Operational Portal Refugee Situations (2021) Refugees and asylum seekers from DRC. https:// data2.unhcr.org/en/situations/drc?id=45. Accessed 15 April 2021. 86 United Nations Human Rights Office of the High Commissioner (2021) 1,300 civilians killed in DRC in past eight months – Bachelet. https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews. aspx?NewsID=25928&LangID=E. Accessed 15 April 2021. 87 Human Rights Watch 2021b. 88 International Crisis Group (2020) Global Overview, January 2020. https://www.crisisgroup.org/ crisiswatch/february-alerts-and-january-trends-2020. Accessed 3 May 2021. 89 International Crisis Group (2020) Global Overview, February 2020. https://www.crisisgroup.org/ crisiswatch/march-alerts-and-february-trends-2020. Accessed 3 May 2021. 90 International Crisis Group (2020) Global Overview, April 2020. https://www.crisisgroup.org/cri siswatch/may-alerts-and-april-trends-2020. Accessed 3 May 2021. 91 RULAC (2021) Non-international Armed Conflicts in Democratic Republic of Congo. https:// www.rulac.org/browse/conflicts/non-international-armed-conflict-in-democratic-republic-ofcongo#collapse4accord. Accessed 15 April 2021. 84

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FARDC continued.92 Similarly, armed clashes between the Rwandan Democratic Forces for the Liberation of Rwanda (FDLR) and the FARDC also continued in 2020, uprooting thousands in North Kivu.93 Additionally, the Cooperative for the Development of Congo (CODECO) is a non-State group that continued hostilities against armed forces causing immense loss of civilian life. Violence continued by the CODECO despite signing a unilateral commitment to end hostilities in the WalenduPitsi sector, Djugu territory in Ituri province on 1 August 2020.94 Despite undergoing modifications over time, it appears that each of these armed groups continues to possess sufficient organizational structural and operational capacity to partake in armed conflicts.95 While the exact number of ongoing NIAC’s in DRC is difficult to ascertain due to a large number of active non-State armed groups and lack of information, it is widely believed that the government of DRC (with support from the MONUSCO) is involved in multiple parallel NIACs against at least the ADF, Mai-Mai Yakutumba, FDLR, and CODECO. Although armed conflicts continue to affect the country, the DRC is also making simultaneous efforts to ensure accountability. See Sect. 7.2.3.7 for more information about ongoing trials.

7.1.8 Ethiopia In 2020, an armed conflict erupted within Ethiopia’s territory. Since November 2020, the Ethiopian armed forces and the Tigray People’s Liberation Front (TPLF) have been involved in violent clashes.96 The TPLF was founded in 1975 in the Tigray region in northern Ethiopia. Since the early 1990s, the TPLF has led the Ethiopian government and continues to be characterized by a well-organized structure. It has been reported that since 2018, the TPLF has added to its organizational structure a

92

International Crisis Group (2021) Global Overview, February 2020. https://www.crisisgroup.org/ crisiswatch/march-alerts-and-february-trends-2020. Accessed 15 April 2021. 93 RULAC (2021) Non-international Armed Conflicts in Democratic Republic of Congo. https:// www.rulac.org/browse/conflicts/non-international-armed-conflict-in-democratic-republic-ofcongo#collapse4accord. Accessed 15 April 2020. 94 International Crisis Watch (2021) Tracking Conflicts Worldwide – Democratic Republic of Congo. https://www.crisisgroup.org/crisiswatch/database?location%5B%5D=7&date_range= last_12_months&from_month=01&from_year=2005&to_month=02&to_year=2021. Accessed 15 April 2021. 95 RULAC (2021) Non-international Armed Conflicts in Democratic Republic of Congo. https:// www.rulac.org/browse/conflicts/non-international-armed-conflict-in-democratic-republic-ofcongo#collapse4accord. Accessed 15 April 2021. 96 Human Rights Watch (2021) Ethiopia: Eritrean Forces Massacre Tigray Civilians. https://www. hrw.org/news/2021/03/05/ethiopia-eritrean-forces-massacre-tigray-civilians. Accessed 30 March 2021.

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special military force.97 It was in 2018, that due to discontentment expressed by the population, the TPLF stepped down and Dr. Abiy Ahmed became the Prime Minister. The TPLF was not a part of the ruling coalition. The situation became complicated when in March 2020 the Ethiopian electoral board announced the postponement of the elections due to the Covid-19 pandemic. The TPLF declared this decision unconstitutional and held new elections, which were consequently declared null and void by the central government of Ethiopia.98 On 4 November 2020, Prime Minister Abiy Ahmed launched a military offensive against the TPLF. It was claimed that the offensive was in response to an attack conducted by the TPLF against a federal army base, even though the TPLF denies the allegation.99 Since then both parties have been involved in hostilities, involving armed attacks on the capital city of Tigray and the launching of rocket attacks on airports in Amhara.100 Notably, the conflict led to a humanitarian crisis with the deaths and displacement of thousands of civilians.101 Prime Minister Abiy Ahmed has himself indicated the possibility that war crimes were committed during the conflict by the TPLF.102 Due to the TPLF’s high intensity of violence and a high degree of organization, it qualified as a party to a NIAC in 2020. In November 2020, Debretsion Gebremichael, leader of the TPFL, accused Eritrea of assisting the Ethiopian central government during the conflict and engaging in fighting—these allegations as of 2020 remain unverified.103 The presence of Eritrean troops in the conflicting region has been confirmed by the United Nations and the European Union aid workers.104 In response, the TPLF launched attacks against Eritrea.105 However, up until the end of 2020 the Eritrean and Ethiopian governments continued to deny these allegations and there was insufficient evidence to conclude that Eritrea is a party to this armed conflict. 97

International Crisis Group (2021) Clashes over Ethiopia’s Tigray Region: Getting to a Ceasefire and National Dialogue. https://www.crisisgroup.org/africa/horn-africa/ethiopia/ethiopias-clash-tig ray-getting-ceasefire-and-national-dialogue. Accessed 7 June 2021. 98 International Crisis Group (2021) Steering Ethiopia’s Tigray Crisis Away from Conflict. https:// www.crisisgroup.org/africa/horn-africa/ethiopia/b162-steering-ethiopias-tigray-crisis-away-con flict. Accessed 30 March 2021. 99 RULAC (2021) Military occupation of Eritrea by Ethiopia. https://www.rulac.org/browse/confli cts/military-occupation-of-ethiopia-by-eritrea#collapse3accord. Accessed 30 March 2021. 100 Ibid. 101 BBC (2021) Tigray crisis: Ethiopia region at risk of huge ‘humanitarian disaster’. https://www. bbc.com/news/world-africa-55905108. Accessed 30 March 2021. 102 Al Jazeera (2021) Ethiopia PM admits Eritrean soldiers entered Tigray. https://www.aljazeera. com/news/2021/3/23/ethiopia-pm-abiy-ahmed-says-atrocities-committed-in-tigray. Accessed 30 March 2021. 103 Reuters (2020) In escalation of Ethiopia war, Tigray leader says his forces fired rockets at Eritrea. https://www.reuters.com/article/us-ethiopia-conflict-idUSKBN27V05M. Accessed 13 April 2021. 104 RULAC (2021) Military occupation of Eritrea by Ethiopia. https://www.rulac.org/browse/con flicts/military-occupation-of-ethiopia-by-eritrea#collapse3accord. Accessed 30 March 2021. 105 BBC (2020) Ethiopia Tigray crisis: Rockets hit outskirts of Eritrea capital. https://www.bbc. com/news/world-africa-54942546. Accessed 13 April 2021.

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Additionally, for the last two decades, Ethiopia has been in occupation of parts of Eritrea. Ethiopia has continued to occupy around 1000 km of Eritrea’s territory since a border conflict between the two countries in May 1998.106 The border dispute was concluded in December 2000, with the help of the Algiers Peace Agreement.107 The Eritrea-Ethiopia Boundary Commission was set up pursuant to this agreement to demarcate the disputed border. The Commission concluded that the disputed town of Badme was a part of Eritrean territory.108 Ethiopia refused to acknowledge the decision and did not withdraw its troops.109 Since the conflict involves two States, the nature of the conflict is of an international armed conflict, involving the law of military occupation.

7.1.9 Israel/Palestine The occupation of the Palestinian territories on the Gaza Strip and the West Bank by Israeli forces continued. It is a situation governed by the law of occupation, ICL, and IHRL. Notably, the tension on the West Bank escalated in 2020 due to the Israeli government’s reaffirmed intention to annex these territories. In April, the Israeli government approved the construction of 7,000 new settlement units within the West Bank; by the end of the year, 10,000 additional settlement units were announced.110 In November, the Israeli forces raided and destroyed a Palestinian village. This raid was “the largest demolition in the past decade”.111 It forced a displacement of 73 people, including 41 children. In early 2021, it seems that de facto annexation of the West Bank continued through the action of demolition of old settlements and construction of new Israeli units.112 The report published by Human Rights Watch in early 2021 conducts a thorough analysis of the situation on the West Bank and in Gaza and concludes that Israel has committed grave violations amounting 106

RULAC (2021) Military occupation of Eritrea by Ethiopia. https://www.rulac.org/browse/con flicts/military-occupation-of-ethiopia-by-eritrea#collapse3accord. Accessed 29 March 2021. 107 UN Security Council (2020) Annex to the Identical Letters Dated 12 December 2000 from the Permanent Representative of Algeria to the United Nations Addressed to the Secretary-General and the President of the Security Council, UN Doc A/55/686-S/2000/1183. 108 Eritrea-Ethiopia Boundary Commission (2002) Decision Regarding Delimitation of the Border between the State of Eritrea and the Federal Democratic Republic of Ethiopia. https://www. rulac.org/assets/downloads/Ethiopia_ERitrea_Delimitation_Decision_April_2002.pdf. Accessed 29 March 2021. 109 RULAC (2021) Military occupation of Eritrea by Ethiopia. https://www.rulac.org/browse/con flicts/military-occupation-of-ethiopia-by-eritrea#collapse3accord. Accessed 30 March 2021. 110 RULAC (2021) Military occupation of Palestine by Israel. https://www.rulac.org/browse/confli cts/military-occupation-of-palestine-by-israel#collapse2accord. Accessed 30 April 2021. 111 The Guardian (2020) Israeli forces leave 41 children homeless after razing Palestinian village, UN says. https://www.theguardian.com/world/2020/nov/05/israeli-forces-leave-41-children-hom eless-after-razing-palestinian-village-un-says. Accessed 30 April 2021. 112 RULAC (2021) Military occupation of Palestine by Israel. https://www.rulac.org/browse/confli cts/military-occupation-of-palestine-by-israel#collapse2accord. Accessed 30 April 2021.

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to crimes against humanity, namely crimes of apartheid and persecution, due to systematic discrimination, deprivation of fundamental rights, inhumane treatment, and repression of the Palestinians.113 Notably, the situation in Palestine has been under preliminary examination at the ICC, see Sect. 7.2.1.1.

7.1.10 Iraq The year 2020 started on a critical note for Iraq, as a US drone strike killed Lt. Gen. Qassem Soleimani, the Quds Force commander of Iran’s Islamic Revolutionary Guards Corps, at Baghdad airport.114 The US claimed that the attack was in response to multiple rocket attacks carried out by unnamed groups against US targets in Iraq.115 Following the attack, Iraq passed a resolution to expel the US-led coalition troops from the country which is yet to be executed.116 In August 2020, the US announced the reduction of its force in Iraq by one-third to 3,500 troops which were originally positioned as a part of the military intervention against the Islamic State (ISIS) in Iraq. The US also declared an increase in its humanitarian assistance to Iraq.117 Despite Iraq’s claimed victory over ISIS and the reported end of this group’s activities, Iraq still faces risks of a resurgence of ISIS.118 ISIS developed from the Islamic State of Iraq, an umbrella group including various Sunni insurgency groups in 2006, and was dominated by al-Qaeda in Iraq. It had a complex organizational structure and displayed strong operational capacities.119 In 2020, the Iraqi government found itself in a continued armed conflict as remnants of ISIS resumed violence by targeting security forces and civilians. Renewed activities of ISIS’s military operations were 113

Human Rights Watch (2021) A Threshold Crossed: Israeli Authorities and the Crimes of Apartheid and Persecution. https://www.hrw.org/sites/default/files/media_2021/04/israel_palestine 0421_web_0.pdf. Accessed 30 April 2021. 114 New York Times (2020) U.S. Strike in Iraq Kills Qassim Suleimani, Commander of Iranian Forces. https://www.nytimes.com/2020/01/02/world/middleeast/qassem-soleimani-iraqiran-attack.html. Accessed 20 April 2021. 115 BBC (2020) Qasem Soleimani: Strike was to ‘stop war’, says Trump. https://www.bbc.com/ news/world-middle-east-50989745. Accessed 20 April 2021. 116 Al Jazeera (2020) Iraqi parliament calls for expulsion of foreign troops. https://www.aljaze era.com/news/2020/1/5/iraqi-parliament-calls-for-expulsion-of-foreign-troops. Accessed 20 April 2021. 117 Wall Street Journal (2020) U.S. to Cut Troop Presence in Iraq by About One-Third, Officials Say. https://www.wsj.com/articles/u-s-to-cut-troop-presence-in-iraq-by-about-one-third-officialssay-11598625823. Accessed 20 April 2021; Reuters (2020) U.S. announces nearly $204 million in additional humanitarian assistance for Iraq. https://www.reuters.com/article/us-usa-iraq-aid-idU SKCN25F245. Accessed 20 April 2021. 118 RULAC (2021) Iraq: An Ongoing Non-International Armed Conflict despite the Claimed Victory against ISIS. https://www.rulac.org/news/iraq-an-ongoing-non-international-armed-con flict-despite-the-claimed-victor. Accessed 20 April 2021. 119 Ibid.

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declared and their activities killed at least tens of civilians in 2020.120 It, therefore, appears that Iraq continues to be in a NIAC with ISIS and its existing factions. Meanwhile, Iraq continues to be engaged in an IAC with Turkey.121 Turkey initiated military operations against the Kurdistan Workers’ Party (PKK) in Iraq in 2013. The previous year witnessed a perpetuation of Turkey’s actions against the PKK without Iraq’s consent. On 15 June 2020, Turkey announced Operation Claw-Eagle and Claw-Tiger, targeting members of the Kurdistan Workers Party and Kurdistan Free Life in the northern region of Iraq.122 Turkey carried out numerous airstrikes, killing over a dozen civilians.123 Some Iraqi individuals are facing war crimes allegations in the courts of Finland (see Sect. 7.2.3.8), France (Sect. 7.2.3.9), and Germany (Sect. 7.2.3.10). Additionally, in November 2020, Iraq executed capital punishments of 21 men on terrorism charges under the 2005 Counter-Terrorism Law in the Nasiriyah prison; details of their specific crimes were not released.124 The UN condemned Iraq for the violation of the right to a fair trial and the torture or ill-treatment of prisoners.125

7.1.11 Libya Libya is embroiled in hostilities against local non-State armed groups. These conflicts are orchestrated by the two main parties to the conflict: the Government of National Accord (GNA) in Tripoli and the Libyan National Army (LNA) controlled by general Khalifa Haftar. Additionally, many foreign powers are involved in this conflict. GNA was formed as a result of the UN-led initiative in 2015 and has since been supported by Germany, Italy, the US, and Turkey. The LNA has received support from Russia, Egypt, Saudi Arabia, the United Arab Emirates, and France, and it controls most of the Libyan territories, including its extensive oil fields. The year 2020 promised many opportunities to resolve the Libyan crisis. In January 2020, all States involved in the support of the parties to this NIAC met

120

Amnesty International 2020/21. RULAC (2021) International armed conflict in Iraq. https://www.rulac.org/browse/conflicts/int ernational-armed-conflict-in-iraq#collapse1accord. Accessed 20 April 2021. 122 Anadolu Agency (2020) Turkey launches Operation Claw-Tiger in northern Iraq. https://www.aa. com.tr/en/middle-east/turkey-launches-operation-claw-tiger-in-northern-iraq/1879479. Accessed 20 April 2021. 123 Human Rights Watch (2020) Iraq: Turkish Airstrike Disregards Civilian Loss. https://www.hrw. org/news/2020/07/22/iraq-turkish-airstrike-disregards-civilian-loss. Accessed 20 April 2021. 124 Arab News (2020) Iraq executes 21 convicted of ‘terrorism’ at notorious Nasiriyah prison. https://www.arabnews.com/node/1763941/middle-east. Accessed 1 February 2021. 125 France 24 (2020) Hundreds of Iraqi prisoners risk ’imminent’ execution: UN. https://www. france24.com/en/live-news/20201117-hundreds-of-iraqi-prisoners-risk-imminent-execution-un. Accessed 1 February 2021. 121

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in Berlin.126 During the meeting, States agreed to respect the long-standing UN arms embargo in Libya and to end military backing. The peace talks in Berlin, however, did not result in the reduction of violence. Direct parties to the conflict, GNA and LNA representatives, were present during the negotiations but refused to sit down together at the same table. In June, LNA attacked the capital city of Tripoli, launching rocket fire and drone attacks.127 LNA did not succeed in taking the city. The attack on Tripoli was followed by numerous battles. Amongst them was the battle of Sirte, where GNA forces campaigned into central Libya.128 During the campaign, the GNA discovered mass graves in Tarhuna; the Libyan National Commission for the Identification of Missing Persons determined that the bodies were those of the formerly imprisoned government soldiers. Both groups, LNA and GNA, have shown to have the capacity to enter into negotiations with a single voice indicating a high degree of organization; furthermore, both parties continued to engage in hostilities in 2020 despite the peace talks, thus we conclude that both of these groups continued to be parties to NIACs against the State forces of Libya. With the efforts of the UN envoy Stephanie Williams, peace talks resumed on 23 October 2020. GNA and LNA met in Geneva where they agreed to a ceasefire.129 Further, states agreed to withdraw their troops, foreign fighters, and mercenaries from Libya within three months. Towards the end of 2020, skepticism remained that the agreement signed has not dealt satisfactorily with the underlying causes of the conflict such as control of the government or the oil reserves, and may be unsuccessful in ending the hostilities. In December 2020, the UN called on all parties to proceed with the withdrawal of their forces.130 In 2021, the UN will support the creation of the Libyan-led Ceasefire Monitoring Mechanism and monitor the implementation of the ceasefire. In 2020, Libyan individuals were being tried for crimes committed concerning this armed conflict in the US courts (see Sect. 7.2.3.24).

126

DW (2020) Berlin: Libya peace summit agrees on commitment to UN arms embargo. https://www.dw.com/en/berlin-libya-peace-summit-agrees-on-commitment-to-un-armsembargo/a-52058307. Accessed 2 April 2021. 127 Al Jazeera (2020) Libya: At least five civilians killed in Tripoli rocket attack. https://www. aljazeera.com/news/2020/6/1/libya-at-least-five-civilians-killed-in-tripoli-rocket-attack. Accessed 2 April 2021. 128 Al Jazeera (2020) Libya: Haftar’s forces ‘slow down’ GNA advance on Sirte. https://www.aljaze era.com/news/2020/6/11/libya-haftars-forces-slow-down-gna-advance-on-sirte. Accessed 2 April 2021. 129 Al Jazeera (2020) UN says Libya sides reach ‘permanent ceasefire’ deal. https://www.aljaze era.com/news/2020/10/23/un-says-libya-sides-reach-permanent-ceasefire-deal. Accessed 2 April 2021. 130 Radio Free Europe (2020) Russia Backs UN Security Council Call For Withdrawal Of Foreign Fighters From Libya. https://www.rferl.org/a/un-security-council-libya-russia-foreign-fighters/310 03211.html. Accessed 2 April 2021.

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7.1.12 Mozambique Mozambique experiences continued violence and terrorism conducted by Ansar alSunna (or also known as al-Shabaab,131 Ahlu Sunnah Wa-Jamaor, and the Islamic State’s Central African Province). Due to the high level of organization of the group and high intensity of violence, analyzed below, we conclude that the hostilities between this group and Mozambique Defence Armed Forces indicate that there is an ongoing NIAC.132 There is also a reported presence of a private military company Dyck Advisory Group in support of the Mozambique armed forces.133 A report by Amnesty International, from March 2021, provides a detailed account of the atrocities happening in Mozambique and uncovers the increase of violence conducted by Ansar al-Sunna against the civilians, as well as the extrajudicial executions by the government security forces and indiscriminate attacks by Dyck Advisory Group in the year of 2020.134 Most hostilities took place in the northern province of Cabo Delgado, which is a region rich in natural gas reserves. Among others, Ansar al-Sunna conducted a major attack on Quissanga in March. They looted stores and burned district headquarters and other buildings.135 The attack resulted in hostilities lasting a few months that saw killings, rape, and abductions including children.136 In May 2020, Ansar al-Sunna entered the villages of Litamanda, Chai Sede, and Macamia. In these cities, the group conducted widespread burning of houses, some of them still with people inside that were sick or unable to leave.137 The Dyck Advisory Group arrived by helicopters to these towns and conducted airstrikes which led to civilians casualties and destroyed civilian infrastructure.138 From June to August, another battle between Ansar al-Sunna and the Dyck Advisory Group took place in Mocímboa da Praia where many were killed, abducted, raped, and a hospital was destroyed.139 These events show a high intensity of hostilities conducted both by Ansar al-Sunna and the mercenary group on behalf of the Mozambique forces. Estimates of deaths in 2020 in Mozambique from hostilities almost tripled, from around 600 fatalities in 2019 to over 1700 in 2020 according to the Armed Conflict Location and Event Data Project (ACLED).140 Many deaths were a result of reported

131

Al-Shabaab means “the youth”. There are no known connections between the al-Shabaab group in Mozambique and the jihadist group al-Shabaab in Somalia. 132 Amnesty International 2021. 133 Ibid. 134 Ibid. 135 Amnesty International 2021, pp. 18–22. 136 Ibid. 137 Ibid., pp. 23–25. 138 Ibid., pp. 27–28. 139 Ibid., pp. 31–33. 140 BBC News (2021) Mozambique conflict: What’s behind the unrest? https://www.bbc.com/news/ world-africa-56441499. Accessed 7 April 2021.

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beheadings in various villages.141 The number of displaced people increased drastically in 2020 to an estimated 530000 people, representing around one-quarter of the province’s total population.142 The deaths in Mozambique resulting from operations of Ansar al-Sunna indicate that the high threshold of violence described by IHL is met. At the same time, Ansar al-Sunna is a group that exhibits a high degree of organization. Reports from 2020 have estimated that the group may have 30 operational leaders and commanders and has organized training camps for its recruits in northern Tanzania through contacts with foreign terrorist groups.143 Trade of “wood, charcoal, ivory, and rubber, involving partners in Tanzania, the Great Lakes, China and Vietnam” as well as ransom, drugs, and arms trafficking have provided this group with substantial financial revenues that they have used to conduct operations, spread propaganda, as well as to provide economic incentives for their recruits, “such as monthly salaries that exceed the minimum wage, welfare benefits and other forms of compensation”.144 Furthermore, since 2019, the affiliation of Ansar al-Sunna with the IS group has become apparent resulting in the group’s great access to international terrorist networks, funding, and recruitment methods.145 The capacity of the group to conduct military and financial operations, and to enter into trading relationships with foreign partners indicates their high degree of organization. Having described the high intensity of violence including large death rates and displacements among civilians, and a high degree of organization including an organized hierarchical structure, the hostilities between Ansar al-Sunna and the forces of Mozambique constitute an armed conflict of a non-international nature. Hostilities continued as of early 2021.

7.1.13 Myanmar Hostilities between Myanmar and several Ethnically Armed Organizations (EAOs) continued throughout 2020. These organizations are non-State actors that are affiliated with ethnic groups, mainly in the Rakhine, Kachin, and Shan states.146 In the Rakhine state, many armed groups have been embroiled in violence with government authorities Myanmar Armed Forces (Tatmadaw). The notable EAOs operating in Rakhine are (i) the Arakan Rohingya Salvation Army (ARSA) and (ii) the Arakan 141

BBC News (2020) Militant Islamists ‘behead more than 50’ in Mozambique. https://www.bbc. com/news/world-africa-54877202. Accessed 7 April 2021. 142 Amnesty International 2021. 143 Tony Blair Institute for Global Change 2020, p. 5. 144 Ibid., pp. 6–8. 145 Ibid., pp. 8–10. 146 United Nations Human Rights Office of the High Commissioner (2018) Myanmar: UN FactFinding Mission releases its full account of massive violations by military in Rakhine, Kachin and Shan States. https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=23575& LangID=E. Accessed on 10 May 2021.

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Army (AA).147 Both have displayed a strong organizational structure and an ability to procure weapons and military equipment to engage in conflict.148 In 2020, the government designated AA as a terrorist organization, leading to further intensification of violence.149 Hostilities also continued between State forces and ARSA.150 Local humanitarians estimate that around 220,000 ethnic Rakhine have been displaced due to the fighting.151 In the Kachin and Shan states, fighting continued between the Tatmadaw and numerous armed groups. Important armed groups operating out of this region are: (i) the Ta’ang National Liberation Army (TNLA), (ii) Myanmar National Democratic Alliance Army (MNDAA) as well as (iii) the AA—together forming the Brotherhood Alliance.152 These organizations were continuously engaged in an armed conflict with security forces, despite a ceasefire.153 Government proposals to hold peace talks were rejected by the groups.154 Despite shifting allegiance and organizational structures, these groups have exhibited sophisticated ability in procuring and transporting arms along with planning and carrying out armed attacks.155 Nongovernmental organizations (NGOs) have reported killing and displacement of civilians due to fighting in the Kachin and Shan states creating a humanitarian crisis in the region.156 Therefore, we conclude that Myanmar continues to be involved in NIACs with many armed groups, notably, ARSA, AA, TNLA, and MNDAA.

147

RULAC (2021) Non-international armed conflicts in Myanmar. https://www.rulac.org/bro wse/conflicts/non-international-armed-conflict-in-myanmar#collapse2accord. Accessed on 10 May 2021. 148 International Crisis Group (2016) Myanmar: A New Muslim Insurgency in Rakhine State. https://www.crisisgroup.org/asia/south-east-asia/myanmar/283-myanmar-new-muslim-insurg ency-rakhine-state. Accessed on 10 May 2021. 149 International Crisis Group (2021) Global Overview, March 2020. https://www.crisisgroup.org/ crisiswatch/april-alerts-and-march-trends-2020. Accessed on 10 May 2021. 150 RULAC (2021) Non-international armed conflicts in Myanmar. https://www.rulac.org/bro wse/conflicts/non-international-armed-conflict-in-myanmar#collapse2accord. Accessed on 10 May 2021. 151 Radio Free Asia (2020) New Attacks and Villages Burning Swell Refugee Ranks in Myanmar’s Rakhine. https://www.rfa.org/english/news/myanmar/rakhine-displaced-091920201 01249.html. Accessed on 10 May 2021. 152 International Crisis Group (2021) Global Overview, January 2019. https://www.crisisgroup.org/ crisiswatch/january-2019. Accessed on 10 May 2021. 153 Human Rights Watch 2021c. 154 International Crisis Group (2021) Global Overview June 2020. https://www.crisisgroup.org/cri siswatch/july-alerts-and-june-trends-2020. Accessed on 10 May 2021. 155 RULAC (2021) Non-international armed conflicts in Myanmar. https://www.rulac.org/bro wse/conflicts/non-international-armed-conflict-in-myanmar#collapse2accord. Accessed on 10 May 2021. 156 Human Rights Watch 2021c.

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In January 2020, the International Court of Justice (ICJ) unanimously ordered Myanmar to prevent the genocide of Rohingya in the Rakhine state.157 However, violent ethnic strife in the Rakhine, Kachin, and Shan regions has continued, compelling the UN High Commissioner for Human Rights Michelle Bachelet to note that actions of Myanmar’s governmental forces may constitute war crimes.158 Meanwhile, in 2020, the International Criminal Court (ICC) continued its investigation into the Situation in Bangladesh/Myanmar with respect to the alleged crimes of humanity committed against the Rohingya population in the Rakhine state.159 The Myanmar senior leadership was brought before the Argentinian national courts for the alleged crimes against humanity in December 2019 (see Sect. 7.2.3.1). Furthermore, in 2020 Myanmar was found to be in violation of the Anti-Personnel Mine Ban Convention (see Sect. 7.3.2.3).

7.1.14 Somalia In 2020, Somalia continued to be embroiled in an armed conflict with the non-State armed group, Al-Shabaab. Al-Shabaab emerged as an independent military wing after the disintegration of the Islamic Courts Union, the biggest military organization in Somalia in 2006.160 (It is a distinct organization from that mentioned in Sect. 7.1.12 regarding the conflict in Mozambique.) Over time Al-Shabaab has demonstrated its organizational strength and military capabilities to employ a large number of fighters and to carry out significant armed attacks.161 The Somali National Army is supported by the AU Mission in Somalia (AMISOM) and the US in its fight against Al-Shabaab.162 In 2020, Somali security forces and Al-Shabaab’s fighters have been engaged in intense armed confrontations. The UN Assistance Mission in Somalia (UNSOM)

157 ICJ, The Gambia v. Myanmar, Request for the Indication of Provisional Measures, Order of 23 January 2020, https://www.icj-cij.org/public/files/case-related/178/178-20200123-ORD-01-00EN.pdf. Accessed on 10 May 2021. 158 Reuters, Myanmar casualties may amount to further war crimes, U.N. rights chief says, 14 September 2020, https://www.reuters.com/article/un-rights-myanmar-idINKBN2651GF?editionredirect=in. Accessed on 10 May 2021. 159 ICC (2021) Bangladesh/Myanmar: Investigation. https://www.icc-cpi.int/bangladesh-myanmar. Accessed on 10 May 2021. 160 Council on Foreign Relations (2021) Backgrounder: Al-Shabab. https://www.cfr.org/backgroun der/al-shabab. Accessed on 9 May 2021. 161 RULAC (2021) Non-international armed conflict in Somalia. https://www.rulac.org/browse/con flicts/non-international-armed-conflict-in-somalia#collapse1accord. Accessed on 9 May 2021. 162 Ibid.

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recorded 596 civilian casualties in 2020.163 Most of these are attributed to AlShabaab’s indiscriminate bombings, shellings, and assassinations.164 Despite the violence, Al-Shabaab’s control over the Somali territory has diminished. In 2020, joint military operations by the Somali National Army and AMISOM succeeded in reclaiming substantial parts of territory formerly under Al-Shabaab’s control.165 Hostilities continued in high intensity at the beginning of 2021.166 Due to the abovementioned high degree of organization of Al-Shabaab and the continued high intensity of violence throughout 2020, this group continues to meet the threshold to qualify as a party to NIAC under IHL.

7.1.15 South Sudan Since December 2013, South Sudan has been engaged in hostilities with non-State armed forces on its territory.167 In 2018, a peace agreement was signed between the government of South Sudan and the Sudan People’s Liberation Movement/Army in Opposition (SPLM/A-IO) and other rebel groups.168 While violence has reduced significantly, sporadic clashes between the government and armed groups not party to the peace deal continued in 2019.169 After a considerable delay, in February 2020 South Sudan formed a transitional government of unity, as was envisaged in the peace agreement.170 The government was led by President Salva Kiir and First Vice President Riek Machar, and four other

163

Human Rights Watch 2021d. International Crisis Group (2021) Tracking Conflict Worldwide: Somalia. https://www.crisis group.org/crisiswatch/database?location%5B%5D=12&date_range=custom&from_month=01& from_year=2019&to_month=03&to_year=2021. Accessed on 9 May 2021. 165 RULAC (2021) Non-international armed conflict in Somalia. https://www.rulac.org/browse/con flicts/non-international-armed-conflict-in-somalia#collapse1accord. Accessed on 9 May 2021. 166 International Crisis Group (2021) Tracking Conflict Worldwide: Somalia. https://www.cri sisgroup.org/crisiswatch/database?location%5B%5D=12&date_range=custom&from_month= 01&from_year=2019&to_month=03&to_year=2021. Accessed on 9 May 2020; RULAC (2021) Non-international armed conflict in Somalia. https://www.rulac.org/browse/conflicts/non-internati onal-armed-conflict-in-somalia#collapse1accord. Accessed on 9 May 2021. 167 RULAC (2021) South Sudan. https://www.rulac.org/browse/countries/south-sudan#collapse1 accord. 19 April 2021. 168 Al Jazeera (2018) South Sudan president signs peace deal with the rebel leader. https://www.alj azeera.com/news/2018/9/12/south-sudan-president-signs-peace-deal-with-rebel-leader. Accessed 19 April 2021. 169 Bloomberg (2019) UN Says 100 Killed in Clashes Involving South Sudanese Army. https:// www.bloomberg.com/news/articles/2019-07-03/un-says-100-killed-in-clashes-involving-southsudanese-army. Accessed 19 April 2021. 170 UN News (2020) UN chief welcomes South Sudan’s Unity government, lauds parties for ‘significant achievement’. https://news.un.org/en/story/2020/02/1057941. Accessed 19 April 2021. 164

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vice presidents from the opposition groups.171 The new government, however, failed to implement major provisions of the peace agreement, including the establishment of security arrangements and accountability mechanisms.172 In 2020, it did not make any progress in establishing the Hybrid Court for South Sudan with the African Union Commission to prosecute international crimes committed during the conflict.173 The government of Sudan along with the SPLA/A-IO, the National Democratic Front, and the non-signatory armed groups to the 2018 peace deal, recommitted to observing a ceasefire in January 2020.174 However, the ceasefire broke down in April 2020 with violence emerging in many parts of the country.175 In April and May, intermittent fighting between the government and armed groups, among others the SPLA/A-IO and the National Salvation Front (NAS), led to the displacement of over 19,000 people and killings, abductions, and sexual abuse of many other civilians.176 Both SPLA/A-IO and NAS have continued to maintain a strong organizational structure with military leadership and demonstrated sufficient operational capacity to carry out armed operations.177 As the violence continued, in August a dispute over a government disarmament operation led to the killing of 82 civilians and the displacement of a thousand more due to clashes between soldiers and armed civilians in the town of Tonj, Warrap state.178 Peace talks eventually resumed in October 2020.179 Developments in South Sudan continue to indicate that despite attempts at establishing peace and reaching consensus between warring factions, the country continues to be embroiled in NIACs against the SPLA/AI-O and NAS. Meanwhile, proceedings into the alleged complicity of the BNP Paribas Bank in crimes against humanity during the armed conflict in Sudan were opened in France (see Sect. 7.2.3.9).

171

Anadolu Agency (2020) South Sudan: New government takes shape as VPs sworn in. https:// www.aa.com.tr/en/africa/south-sudan-new-government-takes-shape-as-vps-sworn-in/1741960. Accessed 19 April 2021. 172 Human Rights Watch 2021e. 173 Ibid. 174 Ibid. 175 United Nations Office for the Coordination of Humanitarian Affairs Services, Relief Web (2020) South Sudan - Intercommunal violence. https://reliefweb.int/report/south-sudan/south-sudan-interc ommunal-violence-dg-echo-media-echo-daily-flash-05-march-2020. Accessed 29 April 2021. 176 Human Rights Watch 2021e. 177 RULAC (2021) South Sudan: Non-international armed conflict in South Sudan. https://www. rulac.org/browse/conflicts/non-international-armed-conflict-in-south-sudan#collapse2accord. Accessed 5 May 2021. 178 Reuters (2020) At least 81 people killed as South Sudan’s disarmament erupts in violence. https://www.reuters.com/article/us-southsudan-unrest-idUSKCN257233. Accessed 19 April 2021. 179 Human Rights Watch 2021e.

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7.1.16 Syria The Syrian government has been involved in hostilities against numerous non-State armed groups since July 2011. The alliance’s offensive against the Hay’at Tahrir al-Sham armed group (formerly known as Jabkhat al-Nusra) drastically increased in northwest Syria in 2020.180 Hay’at Tahrir al-Sham is believed to have been one of the largest and most powerful rebel groups in Syria in 2020.181 Despite their split from al-Qaeda, the group has continued to operate efficiently with the ability to carry out military operations. In 2020, they were involved in numerous clashes with the Syrian government. They were also widely involved in detaining individuals opposing their rule, including journalists and humanitarian workers.182 The nature of the organization displayed by Hay’at Tahrir al-Sham along with the intensity of violent clashes with the Syrian government constitute the presence of a NIAC. In addition, hostilities also continued in 2020 between the Syrian government forces and other armed groups such as the Syrian National Army (formerly Free Syrian Army), Syrian Democratic Forces and ISIS in the regions of Idlib, Aleppo, Hama, and Daraa.183 The Syrian National Army since 2012 has operated as an alliance of rebel forces.184 While its components are difficult to identify, rebel groups under its banner continue to be engaged in hostilities, for example, in March 2020 they engaged in an armed confrontation against government forces in Daraa.185 Similarly, the Syrian Democratic Forces, an umbrella group composed of Kurdish and Arab groups, has been in existence since around 2012.186 Despite the unclear nature of its organization, it appears to have an established command structure.187 Hostilities perpetuated by the Syrian Democratic Forces continued in 2020 with a major clash with the Syrian government in early 2021.188 Additionally, remnants of ISIS also continue to operate in Syria perpetuating attacks against government forces.189 Despite losing control over considerable parts of Syria, ISIS continues to have a complex organizational structure and display strong operational capacities 180

Amnesty International 2020/21. RULAC (2021) Non-international armed conflicts in Syria. https://www.rulac.org/browse/con flicts/non-international-armed-conflicts-in-syria#collapse5accord. Accessed 19 April 2021. 182 Amnesty International 2020/21, p. 345. 183 Ibid. 184 RULAC (2021) Non-international armed conflicts in Syria. https://www.rulac.org/browse/con flicts/non-international-armed-conflicts-in-syria#collapse5accord. Accessed 19 April 2021. 185 The National (2020) Unrest in south-west Syria erupts into urban warfare. https://www.the nationalnews.com/world/mena/unrest-in-south-west-syria-erupts-into-urban-warfare-1.989980. Accessed 19 April 2021. 186 RULAC (2021) Non-international armed conflicts in Syria. https://www.rulac.org/browse/con flicts/non-international-armed-conflicts-in-syria#collapse5accord. Accessed 19 April 2021. 187 Ibid. 188 International Crisis Group (2021) Tracking Conflict Worldwide–Syria. https://www.crisis group.org/crisiswatch/database?location%5B%5D=85&date_range=custom&from_month=01& from_year=2015&to_month=05&to_year=2021. Accessed 19 April 2021. 189 Ibid. 181

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in carrying out hostilities.190 The sustained level of their organization and ability to conduct hostilities by each of these groups indicate existent NIACs between them and the Syrian government. The role played by these groups in IAC’s in Syria will be discussed in later parts of this section. The Syrian government’s engagement in hostilities has been marked by the use of immense force. By 2 March 2020, government forces had recovered control of the Damascus-Aleppo highway along with key cities in the southern Idlib province and the western part of Aleppo.191 Civilians living in these areas faced the brunt of the offensive as the Syrian-Russian military alliance deliberately and indiscriminately attacked schools, hospitals, markets, and other civilian objects.192 It is believed that 18 unlawful attacks were conducted by the Syrian-Russian alliance between January and March 2020, killing at least 112 and injuring at least 359 civilians.193 Destruction of hospitals and suspension of medical facilities due to attacks contributed to exacerbating the effects of the Covid-19 pandemic on the Syrian population.194 A ceasefire in the Idlib province was finally negotiated in March to put an end to the violence.195 Many other smaller groups with overlapping and constantly changing organizational structures have also been engaged in hostilities against the Syrian government. However, there is insufficient evidence to determine conclusively whether these hostilities qualified as NIACs as of 2020. Syria is additionally experiencing conflicts of an international nature. Turkey first took control of the Turkish-Syrian border region in 2016.196 Since then, Turkish forces have continued to partake in military operations against Kurdish forces. In October 2019, Turkey launched Operation Peace Spring to create a safe zone in Syria close to the border with Turkey and remove Kurdish forces from the area.197 This operation led to the creation of a 30 km-long safe zone along the Syrian-Turkish border under Turkish occupation. The operation led to the deaths of many Kurdish fighters and civilians and the displacement of 150,000 civilians.198 The Free Syrian 190

RULAC (2021) Non-international armed conflicts in Syria. https://www.rulac.org/browse/con flicts/non-international-armed-conflicts-in-syria#collapse5accord. Accessed 19 April 2021. 191 Amnesty International 2020/21, p. 345. 192 Ibid. 193 Human Rights Watch (2020) “Targeting Life in Idlib” Syrian and Russian Strikes on Civilian Infrastructure. https://www.hrw.org/report/2020/10/15/targeting-life-idlib/syrian-and-rus sian-strikes-civilian-infrastructure. Accessed 19 April 2021. 194 Human Rights Watch 2021f. 195 The Guardian (2020) Russian and Turkey agree ceasefire in Syria’s Idlib province. https:// www.theguardian.com/world/2020/mar/05/russia-and-turkey-agree-ceasefire-in-syrias-idlib-pro vince. Accessed 19 April 2021. 196 BBC (2016) Syria war: IS ‘loses control along Turkey border’. https://www.bbc.com/news/ world-middle-east-37272895. Accessed 19 April 2021. 197 Al Jazeera (2021) Turkey’s Operation Peace Spring in Northern Syria: One month on. https://www.aljazeera.com/news/2019/11/8/turkeys-operation-peace-spring-in-northern-syriaone-month-on. Accessed 19 April 2021. 198 BBC (2019) Turkey’s Syria offensive explained in four maps. https://www.bbc.com/news/ world-middle-east-49973218. Accessed 19 April 2021; BBC (2019) Turkey Syria offensive: Heavy

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Army (known as the Syrian National Army) also took part in the operation.199 On 22 October 2019, Turkey and Russia concluded an agreement in Sochi, which permitted Turkey to keep its armed forces in the 120 km-long stretch from the frontiers of Ras al-Ain to Tal Abyad, while Russian and Syrian troops were allowed to take control of the rest of the border between Syria and Turkey.200 It was also a part of the ceasefire signed in March 2020 by Syrian forces (supported by Russia) mentioned above.201 However, Turkish attacks against Kurdish fighters in Syria continued throughout 2020. The Syrian National Army supported by Turkey also perpetrated indiscriminate attacks against civilians, pillaging property, arresting individuals, and committing sexual assault on women and girls.202 Even though the Sochi Agreement continued to be in force, Syria’s consent with respect to Turkey’s occupation of their sovereign territory is uncertain. Even though it has been reported that Russia has persuaded Syria to accept Turkish control over the northeast region to reduce Kurdish control, Syria’s President Bashar al-Assad has also raised concerns over the foreign parties’ interference in Syria.203 The consent of the Syrian government to the presence of Turkish forces on its territory is critical; a lack of explicit consent of the Syrian government leads to the conclusion that the Turkish forces are unlawfully occupying the Syrian territories—a circumstance that arises to a situation of an IAC.204 Otherwise, where the Syrian government supports the intervention of Turkey, an independent assessment is required to determine whether the Kurdish forces meet the threshold of a party to a NIAC.

fighting on second day assault. https://www.bbc.com/news/world-middle-east-49998035. Accessed 19 March 2021. 199 Anadolu Agency (2019) Free Syrian Army transforms into Syrian National Army. https:// www.aa.com.tr/en/middle-east/free-syrian-army-transforms-into-syrian-national-army/1607384. Accessed 19 March 2021; Anadolu Agency (2019) Syrian National Army backs Turkish op in northern Syria. https://www.aa.com.tr/en/middle-east/syrian-national-army-backs-turkish-op-innorthern-syria/1608497. Accessed 19 March 2021. 200 BBC (2019) Turkey v Syria’s Kurds: The short, medium and long story. https://www.bbc.com/ news/world-middle-east-49963649. Accessed 19 March 2021; France 24 (2019) Russia and Turkey agree to share control of northeastern Syria. https://www.france24.com/en/20191022-russia-andturkey-agree-to-share-control-of-northeastern-syria. Accessed 19 March 2021. 201 The Guardian (2020) Russian and Turkey agree ceasefire in Syria’s Idlib province. https:// www.theguardian.com/world/2020/mar/05/russia-and-turkey-agree-ceasefire-in-syrias-idlib-pro vince. Accessed 19 April 2021. 202 Amnesty International 2020/21; and Human Rights Watch 2021f. 203 The Guardian (2019) Turkey and Russia agree on deal over buffer zone in northern Syria. https://www.theguardian.com/world/2019/oct/22/turkey-and-russia-agree-deal-over-bufferzone-in-northern-syria. Accessed 19 March 2021; BBC (2019) Turkey Syria offensive: Erdogan and Putin strike deal over Kurds. https://www.bbc.com/news/world-middle-east-50138121. Accessed 19 March 2021. 204 RULAC (2021) Military occupation of Syria by Turkey. https://www.rulac.org/browse/confli cts/military-occupation-of-syria#collapse3accord. Accessed 19 March 2021.

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Syrian Democratic Forces, a Kurdish-led armed group, also continued to operate in Syria and was reportedly responsible for detaining activists on suspicion of affiliation with ISIS. The Kurdish-led authorities, with the support of the US-led military coalition against ISIS, continued to detain thousands of ISIS fighters in desert camps, often in life-threatening conditions.205 The continued hostilities of the US-led coalition on Syrian soil constitute an IAC under IHL. Since the beginning of armed conflicts in Syria in 2011, the country has witnessed the displacement of around 6.7 million civilians.206 Internally displaced individuals continue to live in overcrowded makeshift camps, in different parts of the country, without basic amenities.207 Despite the continuing hostilities, the year 2020, also saw some positive developments in the form of an increase in criminal trials and convictions of Syrians for committing international crimes during the armed conflicts. See Sects. 7.2.3.2, 7.2.3.9, 7.2.3.10, 7.2.3.13, 7.2.3.17, 7.2.3.20, and 7.2.3.22 for more information about the ongoing trials.

7.1.17 Ukraine Since 2014, Ukraine and Russia have engaged in hostilities that classify as an IAC under international law. Even though no evident heavy hostilities took place on land in 2020, the conflict between these two States continues using hybrid warfare methods such as Russia’s use of cyber-attacks and disinformation techniques. For example, Russia distributed one million passports in the occupied regions of eastern Ukraine, concurrently gaining greater influence.208 Russia also continued a naval blockade of the Azov Sea coastline, systematically restraining Ukraine’s access to shipping routes. Alongside, Ukraine is fighting against forces of the self-proclaimed pro-Russian People’s Republic of Luhansk and the People’s Republic of Donetsk. In 2020, the hostilities between these non-State armed groups and Ukrainian forces remained high. Between January and July 2020, there were between 50 to 110 fatalities monthly.209 These two groups have also exhibited a high level of organization, being capable of exercising effective control over large parts of eastern Ukraine, accessing and using artillery, and entering into negotiations with the Ukrainian government’s

205

Human Rights Watch 2021f. Amnesty International 2020/21. 207 Ibid. 208 Atlantic Council (2020) Vladimir Putin’s forever war against Ukraine continues, 20 August 2020. https://www.atlanticcouncil.org/blogs/ukrainealert/vladimir-putins-hybrid-war-aga inst-ukraine-continues/. Accessed 29 March 2021. 209 ACLED (2020) Breaking the Pattern: the Relative Success of the Latest Ceasefire Agreement in Ukraine. https://acleddata.com/2020/11/24/breaking-the-pattern-the-relative-success-of-the-latestceasefire-agreement-in-ukraine/. Accessed 20 May 2021. 206

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officials.210 These two conditions, a high level of hostilities and a sufficient degree of organization indicate that, at least until July 2020, these two groups qualified as parties to parallel NIACs against the Ukrainian forces. On 27 July 2020, a ceasefire agreement was brokered between the Trilateral Contact Group on Ukraine (TCG), a group of representatives from Ukraine, Russia, and the Organization for Security and Co-operation in Europe (OSCE). This ceasefire agreement “led to a sharp reduction in fighting between Ukrainian and Russian-led forces” in Donetsk and Luhansk, and has sustained until at least the end of 2020.211 Although Russia has been known to support these two armed groups, there is a lack of clear evidence of Russia’s control, thus these hostilities are identified as NIACs.212 In November 2019, a case was brought before the ICJ by Ukraine against Russia over its alleged control over the pro-Russian separatist groups in the annexed territories of Crimea.213 The case proceedings are ongoing. The results of the Court’s ruling will have an impact on the assessment of whether the Russian control over these armed groups is sufficient to qualify these hostilities as IAC under IHL. At the same time a preliminary investigation at the ICC is ongoing into the crimes committed in Ukraine from February 2014 onwards, with no end date. For more information on the ICC’s preliminary examination and investigation into Ukraine, see Sect. 7.2.1.1.

7.1.18 Western Sahara/Morocco The occupation of Western Sahara by the Moroccan forces is a long-lasting conflict of an international nature. In 1975, under the Madrid Accords, the Spanish colonial administration withdrew from the Saharan region. Since then, there has been an ongoing dispute between the occupying forces of Morocco and the Polisario Front (backed by Algeria) that seeks independence for the Sahrawi Arab Democratic Republic (SADR). The Polisario Front has a clear connection to the SADR as it initiated the inauguration of the Sahrawi constitution, the establishment of the Sahrawi government, entered and represented the SADR in international negotiations, and it continues to fight alongside the Sahrawi People’s Liberation Army.214 Although it is disputed whether occupation and non-international armed conflict can co-exist, we follow the interpretation of the ICRC experts to conclude that where an organized armed group is controlled or belongs to an occupied State, it should be viewed as 210

RULAC (2021) Non-international armed conflicts in Ukraine. https://www.rulac.org/browse/ conflicts/non-international-armed-conflicts-in-ukraine#collapse2accord. Accessed 29 March 2021. 211 ACLED (2020) Breaking the Pattern: the Relative Success of the Latest Ceasefire Agreement in Ukraine. https://acleddata.com/2020/11/24/breaking-the-pattern-the-relative-success-of-the-latestceasefire-agreement-in-ukraine/. Accessed 20 May 2021. 212 RULAC (2021) Non-international armed conflicts in Ukraine. https://www.rulac.org/browse/ conflicts/non-international-armed-conflicts-in-ukraine#collapse2accord. Accessed 29 March 2021. 213 https://www.icj-cij.org/en/case/166/preliminary-objections. 214 Encyclopedia Britannica (2021) Polisario Front. https://www.britannica.com/topic/PolisarioFront. Accessed 20 May 2021.

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a party to an IAC.215 Therefore, the level of organization and cooperation between SADR and the Polisario Front indicates that these entities are in a conflict of an international nature with Morocco. In 2020, there were significant developments in the conflict in Western Sahara. Hostilities erupted in October on the UN-patrolled buffer zone, with the Polisario Front imposing blockage of key roads. Morocco responded to what they called Sahrawi separatists’ “provocations” with a military operation securing the roads, imposing control of the region, harassing and arresting civilians.216 In November, the Polisario Front declared that the Moroccan military activities were regarded as a violation of a three-decade-long ceasefire between these parties and an outbreak of a new war.217 The year 2020 ended with the US unilateral recognition of Morocco’s sovereignty claim over Western Sahara.218 This declaration was a result of the US government’s negotiations with Morocco, for which in return Morocco declared that it would normalize relations with Israel. Although this decision by Trump’s administration attracted much controversy, it is in line with the UN Security Council’s numerous resolutions that call for “a mutually acceptable political solution” to the conflict.219

7.1.19 Yemen Yemen has been experiencing parallel NIACs on its territory, primarily between the government and the Houthi rebels since 2004, between the government and al-Qaeda in the Arabian Peninsula (also known as Ansar al-Shari’a) since 2009, between the government and the Southern Movement since 2007, and between the non-State groups themselves.220 As will be shown through recent examples below, both the Houthi rebels, al-Qaeda, and the Southern Movement exhibit a high degree of organization and high intensity of violence sufficient to meet the threshold of NIACs 215

ICRC 2012, p. 127. Al Jazeera (2020) Morocco troops launch operation in Western Sahara border zone. https:// www.aljazeera.com/news/2020/11/13/morocco-launches-operation-in-western-sahara-borderzone. Accessed 7 May 2021; Human Rights Watch (2020) Western Sahara: Morocco Cracks Down on Activists. https://www.hrw.org/news/2020/12/18/western-sahara-morocco-cracks-downactivists. Accessed 9 May 2021. 217 Al Jazeera (2020) Morocco troops launch operation in Western Sahara border zone. https:// www.aljazeera.com/news/2020/11/13/morocco-launches-operation-in-western-sahara-borderzone. Accessed 9 May 2021. 218 The Washington Post (2020) The U.S. recognized Moroccan sovereignty over the disputed Western Sahara. https://www.washingtonpost.com/politics/2020/12/11/us-recognized-moroccansovereignty-over-disputed-western-sahara-heres-what-that-means/. Accessed 9 May 2021. 219 Samir Bennis (2021) US Western Sahara Recognition Aligns With Customary International Law. https://www.moroccoworldnews.com/2021/05/341633/us-western-sahara-recognitionaligns-with-customary-international-law/. Accessed 9 May 2021. 220 RULAC (2021) Non-international armed conflicts in Yemen. https://www.rulac.org/browse/con flicts/non-international-armed-conflicts-in-yemen#collapse4accord. Accessed 8 April 2021. 216

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under IHL. It is worth noting that other armed groups are present in Yemen, however, there is insufficient information to determine with certainty their characterization under IHL.221 Early 2020 began with a serious escalation of hostilities in northern Yemen when allegedly the Houthi rebels launched ballistic missiles supported by the use of unmanned aerial vehicles at a military camp in Marib governorate killing at least 111 fighters and injuring at least 66 others as confirmed by the ACLED. These attacks were met with Saudi Arabia’s response in the form of air campaigns and raids.222 In April, the Houthi rebels attacked an Ethiopian refugees’ settlement at a border with Saudi Arabia, firing machine guns, killing at least 250 civilians, and spreading death threats for the alleged involvement of refugees in bringing the coronavirus to their territories according to ACLED. Further, the Houthis have continued their activities at seas and in ports conducting numerous attacks, including on the Saudi oil infrastructure (e.g., tankers, pipelines, installations).223 Their operations on the seas show increased advancement in technical capabilities, including the use of ‘explosive-laden drone boats’ and suicide drone boats.224 These events show not only a high intensity of violence but also that the Houthis are very well organized. They own sophisticated weaponry, they were able to assume effective control of the territories in al-Jawf governorate after battles (e.g., enforcing detentions of locals), and they have remained in control of the capital city of Sana’a since September 2014. Furthermore, their relations with Iran that support the rebels financially and by capacity-building show their ability to enter into partnerships and negotiations with foreign actors.225 Early in January 2021, Trump’s administration in a controversial move designated the Houthi rebels a ‘foreign terrorist organization’.226 The group known as al-Qaeda in the Arabian Peninsula conducted continuous attacks throughout 2020, although some critics say that the group has diminished in numbers of fighters in comparison to a few years ago.227 Among other attacks, alQaeda attacked a medical center in August 2020 as a response to a US strike against

221

Ibid. International Crisis Group (2020) Breaking A Renewed Conflict Cycle in Yemen. https://www. crisisgroup.org/middle-east-north-africa/gulf-and-arabian-peninsula/yemen/breaking-renewedconflict-cycle-yemen. Accessed 8 April 2021. 223 Stable Seas (2020) Violence at Sea: How Terrorists, Insurgents, and Other Extremists Exploit the Maritime Domain. https://www.stableseas.org/sites/default/files/violence-at-sea.pdf. Accessed 8 April 2021. 224 Ibid. 225 RULAC (2021) Non-international armed conflicts in Yemen. https://www.rulac.org/browse/con flicts/non-international-armed-conflicts-in-yemen#collapse4accord. Accessed 8 April 2021. 226 International Crisis Group (2021) The U.S. Should Reverse Its Houthi Terror Designation. https://www.crisisgroup.org/middle-east-north-africa/gulf-and-arabian-peninsula/yemen/usshould-reverse-its-huthi-terror-designation. Accessed 8 April 2021. 227 The Defense Post (2021) Yemen’s Al-Qaeda Regenerates Amid Battle for the North. https:// www.thedefensepost.com/2021/03/16/aqap-yemen-regenerates/. Accessed 8 April 2021. 222

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their militants.228 Notably, in February 2020, the attack conducted by the US killed the leader of al-Qaeda, Abu al-Bara al-Ibbi.229 Just a month later, he was replaced by Khaled Batarfi who swore allegiance to the global al-Qaeda movement. Clearly, not only is al-Qaeda conducting widespread attacks but also, they are organized enough to replace their leadership and continue their allegiances with foreign terrorist cells. Lastly, it is worth noting the rapid rise in violence by the Southern Movement in 2020. This is a UAE-backed armed group that in 2019 declared a secessionist Southern Transitional Council (STC). In April 2020, through a number of hostilities with the Yemeni government, the group succeeded in taking administrative and effective control of the Yemeni southern governorates. It “took control of ministries, local government offices and the Central Bank building in Aden”.230 Events of 2020 indicate that the Southern Movement’s degree of organization is considerably higher in comparison to previous years and that its capacity to conduct violent attacks and ascertain control by force over certain territories is increasing. Therefore, based on the increased organizational structure and continued violence that amounted to effective administrative control, we pose the hypothesis that the hostilities between the Yemeni government and the Southern Movement represent a NIAC. The war in Yemen is causing a grave humanitarian crisis that has deepened in 2020. In November, the UN Secretary-General António Guterres warned that Yemen was in “imminent danger of the worst famine the world has seen for decades” and the UN Children’s Fund (UNICEF) argued that the country is facing “an imminent catastrophe”.231 Food insecurity, malnutrition, and casualties are at drastic and alarming levels–just in the first nine months of 2020, the UN reported 1,500 civilian casualties as a direct result of the hostilities.232

7.2 Courts and Tribunals This section seeks to elucidate some important developments that have taken place in judicial bodies over the year 2020, reflecting important contributions to the jurisprudence of IHL and ICL adjudication. It is divided into three subsections. The first subsection addresses in detail the developments that took place at the international 228

The Defense Post (2020) Al-Qaeda Blows up Yemen Clinic After Executing Dentist. https:// www.thedefensepost.com/2020/08/25/al-qaeda-blows-up-yemen-clinic/. Accessed 8 April 2021. 229 Stable Seas (2020) Violence at Sea: How Terrorists, Insurgents, and Other Extremists Exploit the Maritime Domain. https://www.stableseas.org/sites/default/files/violence-at-sea.pdf. Accessed 8 April 2021. 230 International Crisis Group (2020) Heading Off a Renewed Struggle for Yemen’s South. https://www.crisisgroup.org/middle-east-north-africa/gulf-and-arabian-peninsula/yemen/headingrenewed-struggle-yemens-south. Accessed 8 April 2021. 231 UN News (2020) UN humanitarian office puts Yemen war dead at 233,000, mostly from ‘indirect causes’. https://news.un.org/en/story/2020/12/1078972. Accessed 8 April 2021. 232 UN News, UN humanitarian office puts Yemen war dead at 233,000, mostly from ‘indirect causes’. https://news.un.org/en/story/2020/12/1078972. Accessed 8 April 2021.

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level, particularly those of the ICC and the UN Mechanism for International Criminal Tribunals. It is followed by a subsection on the region-specific jurisprudential developments of hybrid tribunals on the situations in Kosovo, Lebanon, and Cambodia, and the regional European Court of Human Rights. Finally, the third subsection provides a comprehensive overview of cases brought before national courts (most under the universal jurisdiction principle) with implications or relevance to IHL and ICL.

7.2.1 International Courts 7.2.1.1

International Criminal Court

Overview Significant developments took place at the ICC despite the hindrances created by the Covid-19 pandemic. The year 2020 started with a few major judicial developments. In January, the Court announced the start of the Al Hassan trial and in March, the Appeals Chamber unanimously authorized the Prosecutor to commence investigation into the alleged crimes in Afghanistan.233 Later in May, the Court rejected Bemba’s claim for compensation and damages after his acquittal in 2018.234 Even later in the year, the Pre-Trial Chamber decided to sever the cases against Paul Gicheru and Philip Kipkoech Bett.235 Gicheru voluntarily surrendered himself to the Court and made his first appearance on 6 November 2020, whereas Bett had still not been apprehended by 2020.236 The end of the year witnessed the release of the Prosecutor of the Court’s annual Report on Preliminary Examination Activities wherein she declared the completion of preliminary examinations in four situations, namely Palestine, Iraq/UK, Ukraine, and Nigeria. Except for the situation in Iraq/UK, the Prosecution decided to take these cases forward to the investigative stage.237 The following section will elucidate upon some of these developments in detail, along with discussing the progress in different cases at the Court, across all the stages of investigation and trial. But before that, some non-judicial developments took place at the Court which warrants a mention. 233

ICC (2020) Al Hassan case: trial to open on 14 July 2020. https://www.icc-cpi.int/Pages/item. aspx?name=PR1507. Accessed 22 April 2021; ICC (2020) Afghanistan: ICC Appeals Chamber authorises the opening of an investigation. https://www.icc-cpi.int/Pages/item.aspx?name=pr1516. Accessed 22 April 2021. 234 ICC (2020) ICC Pre-Trial Chamber II rejects Mr Bemba’s claim for compensation and damages. https://www.icc-cpi.int/Pages/item.aspx?name=pr1523. Accessed 22 April 2021. 235 ICC (2020) Gicheru and Bett Case: ICC Pre-Trial Chamber A severs case, 11 December 2020. https://www.icc-cpi.int/Pages/item.aspx?name=pr1552. Accessed 2 June 2021. 236 ICC (2020) Paul Gicheru makes first appearance before the ICC: confirmation of charges procedure to be conducted in writing. https://www.icc-cpi.int/Pages/item.aspx?name=pr1545. Accessed 2 June 2021. 237 ICC The Office of the Prosecutor 2020.

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In April 2020, the Court found itself on the receiving end of threats and coercive actions made by the US government.238 The US government imposed sanctions on ICC Prosecutor Fatou Bensouda and senior prosecutorial official Phakiso Mochochoko and issued travel restrictions for certain individuals involved in the ICC investigation of US personnel.239 These steps were perceived as attempts of the US government to prevent actions of the ICC from its investigations into crimes committed in Afghanistan and Palestine and were widely condemned by international actors and governments.240 Almost a year later, these sanctions were lifted by the US administration.241 On 30 September 2020, a group of independent experts appointed to make recommendations about the Court and the Rome Statute system to the Assembly of State Parties and the Court issued their report. The report addressed many aspects of the Court’s functioning including governance, human resources, working methods among others.242 The recommendations of the report are under examination by the Court for their suitability for implementation. And lastly, owing to the Covid-19 pandemic, the Assembly of State Parties’ nineteenth session was held in two parts. The first part of the session took place in December 2020 in The Hague and saw a diminished presence of participants. The session adopted six resolutions by consensus on issues such as the proposed program budget of 2021 and the remuneration of judges. More importantly, it concluded the election of six judges to the Court, bringing gender parity to the ICC’s bench.243 The second part of the session was scheduled for early 2020 in New York with the important agenda of electing the new Chief Prosecutor for the Court.244 In February 2021, British barrister and Head of UN Investigative Team to Promote Accountability for Crimes Committed by Da’eash/ISIL (UNITAD), Karim Khan was elected as the new Prosecutor of the Court scheduled to join in June 2021.245

238

ICC (2020) Statement of the International Criminal Court on recent measures announced by the US. https://www.icc-cpi.int/Pages/item.aspx?name=200611-icc-statement. Accessed 22 April 2021. 239 Human Rights Watch (2021) US sanctions on the International Criminal Court. https://www. hrw.org/news/2020/12/14/us-sanctions-international-criminal-court. Accessed 22 April 2021. 240 Ibid. 241 BBC (2021) US lifts Trump-era sanctions against ICC prosecutor. https://www.bbc.com/news/ world-us-canada-56620915. Accessed 2 June 2021. 242 ICC Independent Expert Review 2020. 243 FIDH (2020) Six judges join the International Criminal Court’s bench as the Court begins a new chapter. https://www.fidh.org/en/issues/international-justice/international-criminal-court-icc/ six-judges-join-the-international-criminal-court-s-bench-as-the-court. Accessed 2 June 2021. 244 ICC (2020) Assembly of States Parties concludes the first resumption of its nineteenth session. https://www.icc-cpi.int/Pages/item.aspx?name=pr1558. Accessed 21 April 2021. 245 The Guardian (2021) British barrister Karim Khan elected ICC’s new chief prosecutor. https://www.theguardian.com/law/2021/feb/12/karim-khan-international-criminal-court-pro secutor. Accessed 2 June 2021.

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Preliminary Examinations and Investigations In 2020, the Office of the Prosecutor (OTP) continued ongoing preliminary examinations of situations in Colombia, Guinea, the Philippines, and Venezuela (I).246 It also initiated two new preliminary examinations in Bolivia and Venezuela (II).247 Afghanistan The ICC’s activities with respect to the situation in Afghanistan have been a source of much controversy. The Pre-Trial Chamber in April 2019 rejected the OTP’s request to initiate a full investigation in Afghanistan.248 Upon appeal, the question before the court was whether the victims, as well as the Prosecutor, could seek leave to appeal before the Pre-Trial Chamber II. The Appeals Chamber decided (Judge Carranza dissenting) that the appeals brought by the victims were inadmissible.249 The complete reasoning for the Chamber’s decision was published on 4 March 2020. The Chamber clarified that the term ‘party’ in Article 82(1) of the Rome Statute, read in conjunction with the context of Article 15, refers only to the Prosecutor. Therefore, only the Prosecutor (and not the victims) is a potential appellant to the Pre-Trial Chamber II decision against authorization.250 On 5 March 2020, the Appeals Chamber unanimously decided to authorize the Prosecutor to commence investigations into the situation in Afghanistan.251 The judgment amended the Pre-Trial Chambers decision of April 2019 that rejected the Prosecutor’s request for authorization of an investigation into the situation in Afghanistan. The Appels Chamber stated that it is the Pre-Trial Chamber’s prerogative to determine whether the Prosecutor has a reasonable factual basis to proceed with an investigation on the basis of crimes committed and the potential case(s) that may arise from the investigation, and not review the Prosecutor’s analysis of the factors behind her decision to commence the investigation.252 246

ICC The Office of the Prosecutor 2020. Ibid. 248 ICC, Situation in the Islamic Republic of Afghanistan, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan, 12 April 2019, Case No. ICC-02/17; ICC (2019) ICC judges reject opening of an investigation regarding Afghanistan situation https://www.icc-cpi.int/CourtRecords/CR2019_020 68.PDF. Accessed 24 January 2021. 249 ICC, Situation in the Islamic Republic of Afghanistan, Transcript of hearing, 5 December 2019, Case No. ICC-02/17-T-002-ENG; ICC, Situation in the Islamic Republic of Afghanistan, Dissenting opinion to the majority’s oral ruling of 5 December 2019 denying victims’ standing to appeal, 5 December 2019, Case No. ICC-02/17 OA OA2 OA3 OA4. 250 ICC, Situation in the Islamic Republic of Afghanistan, Reasons for the Appeals Chamber’s oral decision dismissing as inadmissible the victims’ appeals against the decision rejecting the authorisation of an investigation into the situation in Afghanistan, 4 March 2020, Case No. ICC02/17 OA OA2 OA3 OA4, paras 21. 251 ICC, Situation in the Islamic Republic of Afghanistan, Judgment on the appeal against the decision on the authorisation of an investigation into the situation in the Islamic Republic of Afghanistan, 5 March 2020, Case No. ICC-02/17 OA4. 252 Ibid., paras 37 and 45. 247

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On 15 April 2020, the Prosecutor informed the Pre-Trial Chamber that Afghanistan requested that the Prosecutor defer the investigation of persons who are being investigated or have been investigated by Afghanistan’s domestic criminal justice system. To ensure a proper assessment of complementarity, the Prosecutor agreed to extend the period for Afghanistan to provide information on all relevant domestic investigations and proceedings.253 Comoros The situation on the registered vessels of the Union of Comoros (Comoros), the Hellenic Republic, and the Kingdom of Cambodia was dealt with by the ICC in 2020. The Prosecutor declared her decision to not open an investigation with respect to the crimes allegedly committed in the context of the Israeli interception of the Humanitarian Aid Flotilla bound for the Gaza Strip on 31 May 2010.254 Following this decision, Comoros applied for a judicial review. It submitted that the Prosecutor had not addressed and corrected the errors identified earlier by the Chamber in asking it to reconsider its decision to not commence an investigation into the situation.255 The representatives of the victims also submitted to the Pre-Trial Chamber expressing their support for Comoros’ application to judicially review the Prosecutor’s earlier decision.256 On 16 September 2020, the Pre-Trial Chamber rejected Comoros’ request for judicial review of the Prosecutor’s decision stating that it was unclear to what extent the Pre-Trial Chamber could request the Prosecutor to correct its errors related to law, application of law to fact and assessment of gravity requirement.257 On 22 September 2020, the government of Comoros applied for leave to appeal against the aforementioned decision of the Pre-Trial Chamber based on three issues: (i) error of law and procedure, (ii) improper interpretation of the Appeals Chamber’s guidance, and (iii) OPCV’s invitation of the Court to reconsider the request to impose

253

ICC, Situation in the Islamic Republic of Afghanistan, Notification to the Pre-Trial Chamber of the Islamic Republic of Afghanistan’s letter concerning Article 18(2) of the Statute, 15 April 2020, Case No. ICC-02/17. 254 ICC, Situation on the Registered Vessels of the Union of the Comoros, The Hellenic Republic, and the Kingdom of Cambodia, Final decision of the Prosecutor concerning the “Article 53(1) Report” as revised and refiled in accordance with the Pre-Trial Chamber’s request of 15 November 2018 and the Appeals Chamber’s judgment of 2 September 2019, 2 December 2019, Case No. ICC-01/13-6-AnxA. 255 ICC, Situation on the Registered Vessels of the Union of the Comoros, The Hellenic Republic, and the Kingdom of Cambodia, Application for Judicial Review by the Government of the Comoros, 2 March 2020, Case No. ICC-01/13. 256 ICC, Situation on the Registered Vessels of the Union of the Comoros, The Hellenic Republic, and the Kingdom of Cambodia, Response of the Victims to the “Application for Judicial Review by the Government of the Comoros”, 4 May 2020, Case No. ICC-01/13. 257 ICC, Situation on the Registered Vessels of the Union of the Comoros, The Hellenic Republic, and the Kingdom of Cambodia, Decision on the ‘Application for Judicial Review by the Government of the Comoros’, 16 September 2020, Case No. ICC-01/13.

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sanctions on the Prosecutor.258 On 21 December 2020, the Pre-Trial Chamber I gave its majority decision declaring that the three issues raised by the government of Comoros did not arise from the Chamber’s impugned decision.259 Thus, the Chamber rejected the request for leave to appeal by Comoros. Nigeria The preliminary examination of the situation in Nigeria has been underway since November 2010. In 2019, the OTP published findings on subject matter jurisdiction and identified potential cases concerning members of Boko Haram and the Nigerian Security Forces.260 The OTP concluded that according to the information available there is a reasonable basis to proceed with the investigation of members of Boko Haram including its splinter groups, and the Nigerian Security Forces, that are believed to have been involved in committing crimes against humanity and war crimes during the armed conflict in Nigeria.261 On 14 December 2020, the OTP released its Report on Preliminary Examination Activities wherein it declared that the preliminary examination into the situation of Nigeria was concluded and that all criteria to proceed with an investigation into the situation were met.262 The OTP also completed its admissibility assessment in terms of complementarity and gravity and determined that potential cases likely to arise from an investigation into the situation in Nigeria would be admissible. Concerning complementarity, since 2013 in particular, the OTP has encouraged genuine and relevant proceedings. Several cases against Boko Haram members have been initiated in Nigeria but these do not appear to conflict with the Court’s jurisdiction since they do not appear to consider the same or similar conduct, and if they do then those cases are against low-level perpetrators. With respect to the Nigerian Security Forces, the available information suggests a lack of action or proceedings by the Nigerian authorities.263 The OTP has determined that the potential cases it identified in the situation in Nigeria were of sufficient gravity concerning their nature, scale, manner of commission, and impact to be potentially included under the ICC proceedings.264

258

ICC, Situation on the Registered Vessels of the Union of the Comoros, The Hellenic Republic, and the Kingdom of Cambodia, Application on behalf of the Government of the Union of the Comoros for Leave to Appeal the “Decision on the ‘Application for Judicial Review by the Government of the Comoros’, 21 September 2020, ICC-01/13. 259 https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-01/13-115. 260 ICC The Office of the Prosecutor 2020. 261 Ibid., paras 256 and 257. 262 ICC The Office of the Prosecutor 2020. 263 Ibid. 264 Ibid., para 260.

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Palestine The situation in Palestine had been under preliminary examination since 16 January 2015.265 On 20 December 2019, the OTP notified that sufficient evidence indicated that war crimes had been committed in the West Bank and that the preliminary examination into the situation in Palestine had been concluded.266 The OTP found there to be a reasonable basis to believe that members of the Israel Defense Forces and members of Hamas and Palestinian armed groups committed war crimes.267 Since there had been a referral from the State of Palestine, the Prosecutor was not required to seek authorization from the Pre-Trial Chamber to commence an investigation into the situation. However, given the highly contested legal and factual issues of the case, especially with regards to the territory within which the investigation may be conducted, the Prosecutor requested an expeditious ruling under Article 19(3) of the Rome Statute.268 The request sought to confirm that the territory of Palestine over which the Court may exercise its jurisdiction comprises of the Occupied Palestinian Territory, that is West Bank, East Jerusalem, and Gaza.269 On 18 January 2020, through an order issued for setting out the procedure on the Prosecutor’s request, the Pre-Trial Chamber I invited the State of Palestine, the State of Israel, and victims of the situation in Palestine to submit written applications; the Pre-Trial Chamber I also invited States, organizations, and persons to submit applications for leave to file written observations.270 The Prosecution responded to the observations filed by a large number of approved participants, by stating that upon careful consideration of the observations, it continues to hold the view that the Court has jurisdiction over the Occupied Palestinian Territory.271 On 19 May 2020, President Abbas of the State of Palestine issued a statement declaring an end to agreements with Israel, including the Oslo Accords.272 Upon this declaration, the Pre-Trial Chamber I requested Palestine to submit additional 265

ICC (2015) The Prosecutor of the International Criminal Court, Fatou Bensouda, opens a preliminary examination of the situation in Palestine. https://www.icc-cpi.int/Pages/item.aspx?name= pr1083. Accessed 26 January 2021. 266 ICC The Office of the Prosecutor 2019; ICC (2019) Statement of ICC Prosecutor, Fatou Bensouda, on the conclusion of the preliminary examination of the Situation in Palestine, and seeking a ruling on the scope of the Court’s territorial jurisdiction. https://www.icc-cpi.int/itemsD ocuments/2020-PE/2020-pe-report-eng.pdf. Accessed 26 January 2021. 267 ICC The Office of the Prosecutor 2020, para 221. 268 ICC, Situation in the State of Palestine, Prosecution request pursuant to Article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine, 22 January 2020, Case No. ICC-01/18. 269 Ibid., paras 190–192. 270 ICC, Situation in the State of Palestine, Order setting the procedure and the schedule for the submission of observations, 28 January, Case No. ICC-01/18. 271 ICC, Situation in the State of Palestine, Prosecution Response to the Observations of Amici Curiae, Legal Representatives of Victims, and States, 30 April 2020, Case No. ICC-01/18. 272 WAFA News Agency (2020) President Abbas declares end to agreements with Israel, US; turns over responsibility on occupied lands to Israel. https://english.wafa.ps/page.aspx?id=1s724Ua11 7154132029a1s724U. Accessed 26 January 2021.

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information.273 It also ordered the Prosecution to respond and invited Israel to do so.274 On 8 June 2020, Palestine responded by clarifying that the statement has no bearing on before the Chamber and is of no relevance to the legal issues under consideration in the Chamber.275 On 8 June 2020, the Prosecution responded by stating that the statement had bearing on the status of Palestine as a State Party and the Court’s exercise of its jurisdiction in the situation in Palestine.276 The request for a ruling is still under consideration by the Pre-Trial Chamber I. Meanwhile, the OTP continues to assess allegations regarding the violation of the Rome Statute in Palestine. Ukraine Ukraine is not a State Party to the Rome Statute. On 17 April 2014, the Government of Ukraine lodged a declaration under Article 12(3) of the Rome Statute, accepting the jurisdiction of the Court over alleged crimes committed on its territory from 21 November 2013 to 22 February 2014.277 Subsequently, the situation in Ukraine has been under preliminary examination since 25 April 2014.278 In September 2015, the Government of Ukraine lodged a second declaration under Article 12(3) of the Rome Statute accepting the exercise of jurisdiction of the ICC concerning alleged crimes committed on its territory from 20 February 2014 onwards, with no end date.279 The Prosecution then announced an extension of the Preliminary examination to include alleged crimes that occurred after 20 February 2014 in Crimea and eastern Ukraine.280 273

ICC, Situation in the State of Palestine, Order Requesting additional information, 26 May 2020, Case No. ICC-01/18. 274 ICC, Situation in the State of Palestine, Order Requesting additional information, 26 May 2020, Case No. ICC-01/18, https://www.icc-cpi.int/CourtRecords/CR2020_02105.PDF. Accessed 26 January 2021. 275 ICC, Situation in the State of Palestine, The State of Palestine’s response to the Pre-Trial Chamber’s Order requesting additional information, 4 June 2020, Case No. ICC-01/18. 276 ICC, Situation in the State of Palestine, Prosecution Response to “The State of Palestine’s response to the Pre-Trial Chamber’s Order requesting additional information”, 8 June 2020, Case No. ICC-01/18. 277 ICC (2020) Ukraine accepts ICC jurisdiction over alleged crimes committed between 21 November 2013 and 22 February 2014. https://www.icc-cpi.int/Pages/item.aspx?name=pr997& ln=en. Accessed 30 January; Embassy of Ukraine to the Kingdom of the Netherlands (2014) Government of Ukraine declaration under Article 12(3) of the Rome Statute. https://www.icc-cpi.int/ite msDocuments/997/declarationRecognitionJuristiction09-04-2014.pdf. Accessed 30 January 2021. 278 ICC (2014) The Prosecutor of the International Criminal Court, Fatou Bensouda, opens a preliminary examination in Ukraine. https://www.icc-cpi.int/Pages/item.aspx?name=pr999&ln=en. Accessed 30 January 2021. 279 Minister for Foreign Affairs of Ukraine, Government of Ukraine (2015) Declaration under Article 12(3) of the Rome Statute requesting the exercise of jurisdiction in relation to alleged crimes committed on its territory from 20 February 2014 onwards. https://www.icc-cpi.int/iccdocs/ other/Ukraine_Art_12-3_declaration_08092015.pdf#search=ukraine. Accessed 30 January 2021. 280 ICC (2015) ICC Prosecutor extends preliminary examination of the situation in Ukraine following second article 12(3) declaration. https://www.icc-cpi.int/Pages/item.aspx?name=pr1156. Accessed 30 January 2021.

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The OTP concluded its analysis of subject matter jurisdiction in 2019 and established a reasonable basis to believe that crimes against humanity and war crimes under the Rome Statute have been committed in the context of Crimea and eastern Ukraine.281 The OTP also determined that potential cases that may arise from the situation in Ukraine would be admissible in terms of complementarity and gravity.282 In 2020, the OTP declared that it concluded its preliminary examination of the situation in Ukraine and established that the criteria for proceeding with an investigation are satisfied. The OTP intends on proceeding with the investigation into the situation in Ukraine keeping in mind the operational challenges brought about by the Covid-19 pandemic, and seeks to consult with the new incoming prosecutor on the operational and strategic issues related to prioritization of the OTP’s workload.283 Cases in the Trial Phase Central African Republic On 30 May 2014, the Prosecutor received a referral from CAR authorities regarding crimes allegedly committed in CAR since 1 August 2012. Subsequently, the Prosecutor commenced an investigation into the situation in CAR regarding crimes against humanity.284 In 2018, arrest warrants were issued for Yekatom and Ngaïssona.285 The two suspects are being tried at the Court for allegedly committing crimes against humanity and war crimes in CAR between December 2013 and December 2014. The cases of Yekatom and Ngaïssona were joined to enhance the fairness and expeditiousness of proceedings.286 Yekatom was formerly a caporal-chief in the Forces Armées Centrafricaines and a member of the parliament in CAR. He commanded a group of 3,000 members operating within the Anti-Balaka movement and was popularly known as Rombo.287 Ngaïssona was allegedly the most senior leader and the National General Coordinator of the Anti-Balaka movement in CAR.288 They are believed to be responsible for committing war crimes of murder, torture, conscription, enlistment, and use of children under the age of 15 years to participate actively in hostilities, and crimes 281

ICC The Office of the Prosecutor 2020. Ibid., paras 282–284. 283 Ibid., para 289. 284 ICC (2014) Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on opening a second investigation in the Central African Republic. https://www.icc-cpi.int/pages/ item.aspx?name=pr1043. Accessed on 30 January 2021. 285 ICC, Situation in the Central African Republic II, Public Redacted Version of “Warrant of Arrest for Alfred Yekatom”, 11 November 2018, Case No. ICC-01/14-01/18; ICC, Situation in the Central African Republic II, Public Redacted Version of “Warrant of Arrest for Patrice-Edouard Ngaïssona”, 7 December 2018, Case No. ICC-01/14-02/18. 286 ICC (2019) ICC Pre-Trial Chamber II joins Yekatom and Ngaïssona cases. https://www.icc-cpi. int/Pages/item.aspx?name=PR1439. Accessed on 30 January 2021. 287 ICC (2021) Yekatom and Ngaïssona case, The Prosecutor v. Alfred Yekatom and PatriceEdouard Ngaïssona. https://www.icc-cpi.int/carII/yekatom-nga%C3%AFssona. Accessed on 30 January 2021. 288 Ibid. 282

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against humanity of deportation, forcible transfer of population, and persecution, among others. The ICC concluded that there exist substantial grounds to believe that Yekatom committed the aforementioned crimes jointly with others or through other persons and that Ngaïssona aided, abetted, or otherwise assisted in the commission of the aforementioned crimes.289 On 11 December 2019, the Pre-Trial Chamber II partially confirmed the charges of war crimes and crimes against humanity against Yakatom and Ngaïssona.290 It did not confirm other charges on the grounds that they were not supported by the evidence presented by the Prosecutor. The Prosecutor filed a request for reconsideration of, or leave to appeal, the decision.291 This request was rejected by the Pre-Trial Chamber II on 11 March 2020.292 On 13 March, the Registrar transmitted the Decision confirming the charges and the record of the proceedings to the Court’s Presidency.293 On 16 March, the Presidency constituted Trial Chamber V to be in charge of the case.294 The trial is scheduled to open on 9 February 2021 with the Prosecution’s presentation of evidence due to start on 15 March 2021. Mali On 13 July 2012, the Government of Mali referred the situation in Mali since January 2012 to the Court.295 After conducting a preliminary examination, the Prosecutor commenced an investigation into the situation, based on the determination that there exists a reasonable basis to believe that crimes under the Court’s jurisdiction have been committed in Mali.296 In particular, Al Hassan is a suspect in this case for 289

ICC (2021) Case Information Sheet, Situation in the Central African Republic II, The Prosecutor v. Alfred Yekatom and Patrice-Edouard Ngaïssona. https://www.icc-cpi.int/CaseInformationSheets/ yekatom-nga%C3%AFssonaEn.pdf. Accessed on 30 January 2021. 290 ICC, Situation in the Central African Republic II, Corrected Version of ‘Decision on the confirmation of charges against Alfred Yekatom and Patrice-Edouard Ngaïssona’, 11 December 2019, Case No. ICC-01/14-01/18. 291 ICC, Situation in the Central African Republic II, Prosecution’s Request for Reconsideration of, or alternatively Leave to Appeal, the “Decision on the confirmation of charges against Alfred Yekatom and Patrice Edouard Ngaissona”, 2 March 2021, Case No. ICC-01/14-01/18. 292 ICC, Situation in the Central African Republic II, Decision on the Prosecutor’s request for reconsideration or, in the alternative, leave to appeal the ‘Decision on the confirmation of charges against Alfred Yekatom and Patrice- Edouard Ngaïssona’, 11 March 2021, Case No. ICC-01/1401/18. 293 ICC (2021) Case Information Sheet, Situation in the Central African Republic II, The Prosecutor v. Alfred Yekatom and Patrice-Edouard Ngaïssona. https://www.icc-cpi.int/CaseInformationSheets/ yekatom-nga%C3%AFssonaEn.pdf. Accessed on 30 January 2021. 294 ICC, Situation in the Central African Republic II, Decision constituting Trial Chamber V and referring to it the case of The Prosecutor v. Alfred Yekatom and Patrice-Edouard Ngaïssona, 16 March 2021, Case No. ICC-01/14-01/18 . 295 ICC (2012) ICC Prosecutor Fatou Bensouda on the Malian State referral of the situation in Mali since January 2012. https://www.icc-cpi.int/Pages/item.aspx?name=pr829. Accessed on 30 January 2021. 296 ICC (2013) ICC Prosecutor opens investigation into war crimes in Mali: “The legal requirements have been met. We will investigate”. https://www.icc-cpi.int/Pages/item.aspx?name=pr869. Accessed on 30 January 2021.

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allegedly committing crimes against humanity and war crimes in Timbuktu, Mali between 2012 and 2013. On 27 March 2018, an arrest warrant for Al Hassan was issued by the Pre-Trial Chamber I.297 Soon after, on 31 March 2018, he was surrendered to the Court by Malian authorities.298 Al Hassan is allegedly a former member of Ansar Eddine and de facto chief of Islamic police, believed to have been involved in the work of the Islamic court in Timbuktu.299 On 30 September 2019, the Pre-Trial Chamber I issued a confidential decision confirming charges of war crimes and crimes against humanity against Al Hassan and committed him to trial.300 He is allegedly responsible for crimes against humanity, torture, rape, sexual slavery, war crimes, cruel treatment, an outrage upon personal dignity, and intentionally directing attacks against buildings dedicated to religion and historic monuments, among other crimes.301 The Pre-Trial Chamber I rejected the Defence’s request for leave to appeal against the decision of confirmation of charges. On 21 November 2019, the Presidency constituted Trial Chamber X to be in charge of the conduct of the trial.302 On 19 February 2020, the Court’s Appeal Chamber unanimously confirmed the Pre-Trial Chamber’s decision that the case against Al Hassan is of sufficient gravity to permit further action by the Court.303 On 23 April, it partially granted the Prosecutor its request to modify the charges against Al Hassan to include additional facts in the charges already confirmed against him.304 On 14 and 15 July 2020, the trial commenced before Trial Chamber X with the presentation of charges to the accused. The trial then resumed on 8 September 2020, when the Prosecution presented its evidence and called its witnesses before the judges. At the request of the Legal Representatives of Victims and the Defence, 297

ICC, Situation in the Republic of Mali, Warrant of Arrest for Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, 27 March 2018, Case No. ICC-01/12-01/18. 298 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 on 30 January 2021. 299 ICC (2021) Al Hassan Case, The Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud. https://www.icc-cpi.int/mali/al-hassan. Accessed on 30 January 2021. 300 ICC, Situation in the Republic of Mali, Redacted version of decision confirming charges against Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, 30 September 2019, Case No. ICC-01/1201/18. 301 ICC (2021) Case Information Sheet, The Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud. https://www.icc-cpi.int/CaseInformationSheets/al-hassanEng.pdf. Accessed on 30 January 2021. 302 ICC (2019) Al Hassan Case: ICC Presidency constitutes Trial Chamber X. https://www.icc-cpi. int/Pages/item.aspx?name=pr1498. Accessed on 30 January 2021. 303 ICC, Situation in the Republic of Mali, Judgment on the appeal of Mr Al Hassan against the decision of Pre-Trial Chamber I entitled ‘Décision relative à l’exception d’irrecevabilité pour insuffisance de gravité de l’affaire soulevée par la défense’, 19 February 2020, Case No. ICC-01/12-01/18 OA. 304 ICC, Situation in the Republic of Mali, Redacted version of decision to grant Prosecutor’s request to add facts in the charges confirmed against Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, 23 April 2020, Case No. ICC-01/12-01/18.

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the Court permitted both to make their opening statements at the beginning of the presentation of their evidence once the Prosecution has concluded its case. The presentation of evidence by the Prosecution is ongoing and will continue when the trial resumes on 8 February 2021.305 Uganda In December 2003, the Government of Uganda referred the situation concerning northern Uganda to the OTP. In July 2004, the Prosecutor determined a reasonable basis to open an investigation into the situation concerning northern Uganda.306 In July 2005, Pre-Trial Chamber II issued warrants of arrest under seal against five individuals namely, Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo, and Dominic Ongwen for the alleged commission of crimes against humanity and war crimes.307 In January 2015, Dominic Ongwen was transferred to the ICC Detention Centre in The Hague.308 Following his arrest, the Pre-Trial Chamber severed his proceedings from the case of The Prosecutor v. Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ongwen to not delay proceedings against Ongwen, considering that the other three suspects remained at large.309 In December 2016, the trial commenced before Trial Chamber IX where Ongwen pleaded not guilty to the charges. In January 2017, the trial resumed with the presentation of evidence by the Prosecution and calling of witnesses to the Chamber by the Legal Representatives of Victims. In September 2018, the Defence made its opening statements and presented its evidence. On 12 December 2019, the closure of the submission of evidence in the case was declared.310 The closing briefs in the case were filed on 24 February 2020.311 The closing statements in the trial took place from 10 to 12 March 2020 when the Prosecution, the Legal Representatives of Victims, and the Defence presented their final arguments.312 On 12 November 2020, Judge Bertram Schmitt of Trial Chamber

305

ICC (2021) Case Information Sheet, The Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud. https://www.icc-cpi.int/CaseInformationSheets/al-hassanEng.pdf. Accessed on 30 January 2021. 306 ICC (2021) Case Information Sheet, The Prosecutor v. Dominic Ongwen. https://www.icc-cpi. int/CaseInformationSheets/OngwenEng.pdf. Accessed on 20 February 2021. 307 ICC, Situation in Uganda, Warrant of Arrest for Dominic Ongwen, 8 July 2005, Case No. ICC-02/04. 308 ICC (2015) Dominic Ongwen transferred to The Hague. https://www.icc-cpi.int/pages/item. aspx?name=pr1084. Accessed on 20 February 2021. 309 ICC (2015) ICC Pre-Trial Chamber II separates Dominic Ongwen case from Kony et al. case. https://www.icc-cpi.int/pages/item.aspx?name=PR1088. Accessed on 20 February 2021. 310 ICC (2021) Case Information Sheet, The Prosecutor v. Dominic Ongwen. https://www.icc-cpi. int/CaseInformationSheets/OngwenEng.pdf. Accessed on 20 February 2021. 311 ICC, Situation in Uganda, Order Regarding the Closing Statements, 5 February 2020, Case No. ICC-02/04-01/15. 312 ICC (2020) ICC Trial Chamber IX to deliberate on the Ongwen case. https://www.icc-cpi.int/ Pages/item.aspx?name=pr1519. Accessed on 20 February 2021.

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IX announced that judgment in the case will be delivered on 12 January 2021.313 Following the announcement on 25 November 2020, the Defence filed a request to reschedule the date of delivery of judgment to 19 January 2021 on account of preventing any negative effects of the judgment on the Ugandan elections scheduled from 14 January 2021. It also mentioned that such a delay would prevent disenfranchisement of members of the Defence, Prosecution, Victims or Registry who may vote in the elections.314 Soon after, on 27 November 2020, the Legal Representatives of Victims made a similar request for a delay of the delivery of judgment to 4 February 2021 citing that the postponement is necessary for ensuring the safety and security of participating victims in the electoral process and adequate dissemination of the judgment in Uganda.315 Both requests were accepted by the Prosecution.316 Finally, on 4 February 2021, the Trial Chamber IX of the Court gave the judgment in the Ongwen case. He was found guilty of 70 charges of crimes against humanity and war crimes, including the crime of forced pregnancy which was considered by the Court for the very first time in this case.317 He was sentenced to 25 years of imprisonment.318 Cases in the Appeal Phase Côte d’Ivoire Laurent Gbagbo and Charles Blé Goudé were tried for crimes against humanity of murder, rape, and other inhumane acts allegedly committed in the post-election violence in Côte d’Ivoire between 16 December 2010 and 12 April 2011.319 On 15 January 2019, Trial Chamber I acquitted them from all charges of crimes against humanity.320 On 16 September 2019, the Prosecutor filed a notice of appeal against this decision.321

313

ICC, Situation in Uganda, Order Scheduling the Delivery of the Judgment, 12 November 2020, Case No. ICC-02/04-01/15. 314 ICC, Situation in Uganda, Public Redacted Version of “Defence Request to Reschedule the Delivery of the Article 74(5) Judgment”, 25 November 2020, Case No. ICC-02/04-01/15. 315 ICC, Situation in Uganda, Victims’ request for postponement of the delivery of the judgment, 27 November 2020, Case No. ICC-02/04-01/15. 316 ICC, Situation in Uganda, Prosecution’s Consolidated Response to the Defence and LRV Requests to Postpone the Delivery of the Judgment, 27 November 2020, Case No. ICC-02/04-01/15. 317 ICC, The Prosecutor v. Dominic Ongwen, Trial Judgment, 4 February 2021, Case No. ICC02/04-01/15. 318 ICC (2020) Dominic Ongwen sentenced to 25 years of imprisonment. https://www.icc-cpi.int/ Pages/item.aspx?name=pr1590. Accessed 2 June 2021. 319 ICC (2021) Case Information Sheet, The Prosecutor v. Laurent Gbagbo and Charles Blé Goudé. https://www.icc-cpi.int/CaseInformationSheets/gbagbo-goudeEng.pdf. Accessed on 20 February 2021. 320 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 on 20 February 2021. 321 ICC (2021) Gbagbo and Blé Goudé case, The Prosecutor v. Laurent Gbagbo and Charles Blé Goudé. https://www.icc-cpi.int/cdi/gbagbo-goude. Accessed 2 June 2021.

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Between 22 and 24 June 2020, the Appeals Chamber of the Court held a partially virtual hearing of the case due to the ongoing Covid-19 pandemic. It delivered its final decision on 31 March 2021, whereby it confirmed Trial Chamber I’s decision of acquittal of both Laurent Gbagbo and Charles Blé Goudé from all charges.322 The Court also revoked all conditions on their release and directed the ICC’s Registry to make arrangements for their safe transfer.323 Democratic Republic of the Congo Bosco Ntaganda was tried for war crimes and crimes against humanity committed in Ituri in the DRC.324 On 8 July 2019, Trial Chamber V found Ntaganda guilty of 18 counts of war crimes and crimes against humanity committed between 2002 and 2003.325 On 9 September 2019, the Defence Counsel of Ntganda filed a notice of Appeal against his conviction.326 On 7 November 2019, Ntaganda was sentenced to 30 years of imprisonment.327 On 9 December 2019, the Defence Counsel filed an appeal against the sentence and called it excessive and disproportionate.328 The hearing was held from 12 to 14 October 2020.329 During the hearing, the Defence Counsel and Ntaganda himself addressed the court and appealed to the Appeals Chamber to acquit him owing to errors of law and fact in the judgment.330 Before the Appeal Chamber announced its judgment, Trial Chamber IV delivered its reparations order on 8 March 2021 by holding Ntaganda liable for USD

322

ICC (2020) Appeals hearing in the Gbagbo and Blé Goudé case: Practical information. https:// www.icc-cpi.int/Pages/item.aspx?name=ma253. Accessed 2 June 2021. 323 ICC (2021) ICC Appeals Chamber confirms Trial Chamber I’s decision acquitting Laurent Gbagbo and Charles Blé Goudé of all charges of crime against humanity. https://www.icc-cpi.int/ Pages/item.aspx?name=pr1583. Accessed 2 June 2021. 324 ICC (2021) Case Information Sheet, The Prosecutor v. Bosco Ntaganda. https://www.icc-cpi. int/CaseInformationSheets/NtagandaEng.pdf. Accessed on 20 February 2021. 325 ICC, Situation in the Democratic Republic of the Congo, Judgment, 8 July 2019, Case No. ICC-01/04-02/06. 326 ICC, Situation in the Democratic Republic of the Congo, Mr. Ntaganda’s Notice of Appeal against the Judgment pursuant to Article 74 of the Statute, 9 September 2019, Case No. ICC-01/04-02/06 A. 327 ICC, Situation in the Democratic Republic of the Congo, Sentencing judgment, 7 November 2019, Case No. ICC-01/04-02/06. 328 ICC, Situation in the Democratic Republic of the Congo, Notice of Appeal against Sentencing Judgment, 9 December 2019, Case No. ICC-01/04-02/06 A. 329 ICC, Situation in the Democratic Republic of the Congo, Second order scheduling a hearing, 20 August 2020, Case No. ICC-01/04-02/06 A A2 A3. 330 International Justice Monitor (2020) Ntaganda Asks ICC Appeals Judges to Acquit Him: Claiming Conviction Filled with Errors. https://www.ijmonitor.org/2020/10/ntaganda-asks-iccappeals-judges-to-acquit-him-claiming-conviction-filled-with-errors/. Accessed on 20 February 2021; International Justice Monitor (2020), Ntaganda Tells ICC Judges, “I Wonder How I Was Convicted?” https://www.ijmonitor.org/2020/10/ntaganda-tells-icc-judges-i-wonder-how-iwas-convicted/. Accessed on 20 February 2021.

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30,000,000.331 Later on 30 March 2021, the Appeals Chamber confirmed the conviction and sentencing order for Ntaganda.332

7.2.1.2

Mechanism for International Criminal Tribunals

Overview Multiple developments took place in the UN Residual Mechanism for International Criminal Tribunals in 2020, both with respect to judicial proceedings and administrative functioning of the Court. The most significant of the judicial developments was the arrest of Félicien Kabuga and his appearance before the Court.333 The Court also commenced the trial in the contempt case of Prosecutor v. Maximilien Turinabo et. al. and concluded witness testimonies in the Staniši´c and Simatovi´c case.334 The Appeals Chamber heard oral arguments in the Mladi´c case.335 Moreover, the Mechanism’s Office of the Prosecutor confirmed the death of Augustin Bizimana, a fugitive alleged to have been a senior leader during the 1994 genocide in Rwanda.336 Concerning the functioning of the Court, the UN Secretary-General, António Guterres, appointed Judge Carmel Agius to a second term as President of the Court.337 He also re-appointed the other 24 judges on the judicial roster of the Court for a term of two years and appointed Lord Iain Bonomy as a new judge of the Court.338 In addition 331

ICC (2021) Ntaganda Case: ICC Trial Chamber VI orders reparations for victims, https://www. icc-cpi.int/Pages/item.aspx?name=pr1572. Accessed on 2 June 2021. 332 ICC (2021) Ntaganda Case: ICC Appeals Chamber confirms conviction and sentencing decisions. https://www.icc-cpi.int/Pages/item.aspx?name=pr1582. Accessed 2 June 2021. 333 IRMCT (2020) Mechanism fugitive Félicien Kabuga arrested today. https://www.irmct.org/ en/news/20-06-09-mechanism-fugitive-felicien-kabuga-arrested-today. Accessed on 23 February 2021; IRMCT (2020) Félicien Kabuga appears before the Mechanism for his initial appearance. https://www.irmct.org/en/news/20-11-11-felicien-kabuga-appears-before-the-mechanism-ini tial-appearance. Accessed on 23 February 2021. 334 IRMCT (2020) Start of trial in the Turinabo et al. contempt case: Practical information and case background. https://www.irmct.org/en/news/20-10-21-start-trial-turinabo-et-al-contempt-case-pra ctical-information-and-case-background. Accessed on 23 February 2021; IRMCT (2020) Conclusion of witness testimony in the Staniši´c and Simatovi´c case. https://www.irmct.org/en/news/2010-08-conclusion-witness-testimony-stanisic-and-simatovic-case. Accessed on 23 February 2021. 335 IRMCT (2020) The Appeals Chamber of the International Residual Mechanism for Criminal Tribunals hears oral arguments in the Mladi´c case. https://www.irmct.org/en/news/20-08-26-app eals-chamber-hears-oral-arguments-mladic-case. Accessed on 23 February 2021. 336 IRMCT (2020) Mechanism Prosecutor Serge Brammertz confirms the death of fugitive Augustin Bizimana. https://www.irmct.org/en/news/20-06-09-mechanism-prosecutor-serge-brammertz-con firms-death-fugitive-augustin-bizimana. Accessed on 23 February 2021. 337 IRMCT (2020) UN Secretary-General reappoints Judge Carmel Agius as Mechanism President and renews terms of Mechanism judges. https://www.irmct.org/en/news/20-06-30-un-secretary-gen eral-reappoints-judge-carmel-agius-mechanism-president-and-renews. Accessed on 23 February 2021. 338 IRMCT (2020) UN Secretary-General reappoints Judge Carmel Agius as Mechanism President and renews terms of Mechanism judges. https://www.irmct.org/en/news/20-06-30un-secretary-general-reappoints-judge-carmel-agius-mechanism-president-and-renews. Accessed

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to the judicial appointments, the UN Security Council reappointed Prosecutor Serge Brammertz as the Prosecutor for the Court for two years. The UN Security Council also concluded its review of the progress of the work of the Court.339 Cases in Pre-Trial The Prosecutor v. Félicien Kabuga Félicien Kabuga was the President of the Comité Provisoire of the Fonds de défense nationale (National Defence Fund) in Rwanda from 25 April 1994 to July 1994. He is also believed to have co-founded Comité d’Initiative of Radio Television Libre des Milles Collines (RTLM) during the Rwandan genocide.340 He is charged with genocide along with complicity in genocide, attempt to commit genocide, direct and public incitement to commit genocide, and crimes against humanity of persecution and extermination.341 Until 2020, Kabuga had been held in the custody of the Court in Arusha. On 1 October 2020, President Carmel Agius of the Court assigned the case to a Trial Chamber consisting of Judge Iain Bonomy as the presiding judge, along with Judge Susana Gatti Santana, and Judge Elizabeth Ibanda-Nahamya. This Chamber was to be effective upon the transfer of Kabuga to the seat of the relevant branch of the Court.342 On 21 October 2020, Judge Iain Bonomy issued a decision to amend the warrant of arrest and order for the transfer of Kabuga to the Hague branch of the Court. The order for transfer was accepted on the grounds of health concerns in Tanzania owing to the Covid-19 pandemic and the poor health condition of Kabuga.343 On 26 October 2020, Kabuga was transferred into the custody of the Court’s branch in the Hague. On 11 November 2020, he appeared before the Trial Chamber where he pleaded not guilty with respect to the charges in the indictment.344 The trial is set to proceed throughout 2021. on 23 February 2021; IRMCT (2020) Secretary-General appoints Judge Iain Bonomy of the United Kingdom of Great Britain and Northern Ireland to serve as Mechanism Judge. https://www.irmct.org/en/news/20-09-18-secretary-general-appoints-judge-iain-bon omy-united-kingdom-great-britain-and-northern. Accessed on 23 February 2021. 339 IRMCT (2020) UN Secretary Council reappoints Prosecutor Serge Brammertz and completes review of Mechanism’s progress of work. https://www.irmct.org/en/news/20-06-26-un-securitycouncil-reappoints-prosecutor-serge-brammertz-and-completes-review. Accessed on 23 February 2021. 340 IRMCT (2021) Félicien Kabuga (MICT-13-38), Case Background Information. https://www. irmct.org/en/cases/mict-13-38. Accessed on 23 February 2021. 341 IRMCT (2021) Case Information Sheet, Félicien Kabuga. https://www.irmct.org/sites/default/ files/cases/public-information/IRMCT-CIS-Kabuga-EN.pdf. Accessed on 23 February 2021. 342 IRMCT, The Prosecutor v. Félicien Kabuga, Order Assigning a Trial Chamber, 1 October 2020, Case No. MICT-13-39-I. 343 IRMCT, The Prosecutor v. Félicien Kabuga, Decision on Félicien Kabuga’s Motion to Amend the Arrest Request to Amend the Warrant of Arrest and Order for Transfer, 21 October 2020, Case No. MICT-13-39-I. 344 IRMCT (2021) Félicien Kabuga (MICT-13-38), Case Background Information. https://www. irmct.org/en/cases/mict-13-38. Accessed on 23 February 2021.

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Cases in Trial The Prosecutor v Maximilien Turinabo et al. Maximilien Turinabo, Anselme Nzabonimpa, Jean de Dieu Ndagijimana, Marie Rose Fatuma, and Dick Prudence Munyeshuli were indicted on 5 June 2018 by the Prosecutor of the Court for contempt of court and incitement to commit contempt by violating protective measures ordered by the International Criminal Tribunal for Rwanda.345 On 24 August 2018, the indictment was confirmed.346 Similarly, on 10 October 2019, an indictment against Augustin Ngirabatware was confirmed for contempt of court and incitement to commit contempt.347 On 10 December 2019, the Ngirabatware case was joined with the Turinabo et al. case. Each of the six accused has pleaded not guilty to the charges.348 The indictments filed against Turinabo et al. and Ngirabatware allege that following the Court’s Appeals Chamber’s affirmation of Ngirabatware’s conviction for genocide and direct and public incitement, Turinabo et al. engaged in efforts to secure their acquittal during the review stage of the proceeding through witness interference. During this period, Dick Prudence Munyeshuli, Maximilien Turinabo, and Augustin Ngirabatware also allegedly committed contempt by violating certain court orders related to protected witnesses.349 On 27 September 2019, the Appeal Chamber pronounced its Review Judgment rejected Ngirabatware’s attempt to prove that the four key witnesses underpinning his convictions for direct and public incitement to commit genocide and instigating and aiding and abetting genocide had truthfully withdrawn their trial testimonies. Ngirabatware has been sentenced to 30 years of imprisonment.350 On 22 October 2020, the trial in the Turinabo et al. case commenced with the Prosecution presenting its opening statements.351 The Defence teams of Dick Prudence Munyeshuli and Augustin Ngirabatware presented their opening statements and 345

IRMCT, The Prosecutor v. Maximilien Turinabo, Anselme Nzabonimpa, Jean de Dieu Ndagijimana, Marie Rose Fatuma, and Dick Prudence Munyeshuli, Notice of Filing Public Redacted Version of the Indictment, 5 June 2018, Case No. MICT-18-116. 346 IRMCT, The Prosecutor v. Maximilien Turinabo, Anselme Nzabonimpa, Jean de Dieu Ndagijimana, Marie Rose Fatuma, and Dick Prudence Munyeshuli, Order on Confirmation of Indictment, 24 August 2018, Case No. MICT-18-116. 347 IRMCT (2021) Maximilien Turinabo et al. (MICT-18-116), Case Background Information. https://www.irmct.org/en/cases/mict-18-116. Accessed on 23 February 2021. 348 IRMCT, The Prosecutor v. Maximilien Turinabo, Anselme Nzabonimpa, Jean de Dieu Ndagijimana, Marie Rose Fatuma, and Dick Prudence Munyeshuli and Prosecutor v. Austin Ngirabatware, Decision on Prosecution Motion for joinder of the Ngirabatware and Turinabo et al. contempt cases, 10 December 2019, Case No. MICT-18-116-PT and MICT-19-121-PT. 349 IRMCT (2021) Turinabo et al.—Case Information Sheet, Contempt Case. https://www.irmct. org/sites/default/files/cases/public-information/cis_turinabo-et-al_en.pdf. Accessed on 23 February 2021. 350 Ibid. 351 IRMCT (2020) Start of trial in the Turinabo et al. contempt case: Practical information and case background. https://www.irmct.org/en/news/20-10-21-start-trial-turinabo-et-al-contempt-case-pra ctical-information-and-case-background. Accessed on 23 February 2021.

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Maximilien Turinabo personally stated before the Court. The Prosecution presented nine witnesses between 26 October and 24 November 2020.352 The next phase of the trial with the Defence presentations is scheduled for February 2021. The Prosecutor v. Staniši´c and Simatovi´c Jovica Staniši´c was the Head of the State Security Service and Franco Simatovi´c was employed in the second administration of the State Security Service of the Ministry of Internal Affairs in the Republic of Serbia. Both the accused are being re-tried for charges for crimes against humanity and war crimes committed during the conflict in former Yugoslavia in 1991.353 On 30 May 2013, Trial Chamber I of the International Criminal Tribunal for the Former Yugoslavia (ICTY) acquitted Staniši´c and Simatovi´c of all charges.354 Following an appeal by the Prosecution, the Appeal Chamber of the ICTY partly granted the appeal and quashed the acquittals. It held that the Trial Chamber was erroneous in finding the existence of a common criminal purpose and in establishing the essential elements of joint criminal liability.355 Following the judgment, the re-trial commenced on 13 June 2017. The Prosecution’s case concluded on 21 February 2019 and the Defence’s case commenced on 18 June 2019.356 On 8 October 2020, the Court concluded hearing witness testimonies. Between 1 September and 8 October 2020, the final five witnesses of the Defence were heard.357 The final requests for the admissions of documentary evidence were due on 2 November 2020. The closing arguments in the trial are scheduled for March 2021 with the judgment expected in the first half of 2021.358 Cases in Appeal The Prosecutor v. Ratko Mladi´c Ratko Mladi´c was the Commander of the Main Staff of the army of the Serbian Republic of Bosnia and Herzegovina. He was charged with multiple counts of genocide, crimes against multiple, and war crimes by the ICTY.359 352

IRMCT (2021) Félicien Kabuga (MICT-13-38), Case Background Information. https://www. irmct.org/en/cases/mict-13-38. Accessed on 23 February 2021. 353 IRMCT (2021 Staniši´ c and Simatovi´c (MICT-15-96), Case Background Information. https:// www.irmct.org/en/cases/mict-15-96. Accessed on 25 February 2021. 354 ICTY (2021) Press Release, Jovica Staniši´ c and Franko Simatovi´c acquitted of all charges. https://www.icty.org/en/sid/11329. Accessed on 25 February 2021. 355 ICTY, Prosecutor v. Jovica Staniši´ c and Franko Simatovi´c, Judgment by the Appeals Chamber, 9 December 2015, Case No. IT-03-69-A. 356 IRMCT (2021) Staniši´ c and Simatovi´c (MICT-15-96), Case Background Information. https:// www.irmct.org/en/cases/mict-15-96. Accessed on 25 February 2021. 357 IRMCT (2020) Conclusion on witness testimony in the Staniši´ c and Simatovi´c case. https://www. irmct.org/en/news/20-10-08-conclusion-witness-testimony-stanisic-and-simatovic-case. Accessed on 25 February 2021. 358 Ibid. 359 IRMCT (2021) Ratko Mladi´ c, Case Information Sheet. https://www.irmct.org/sites/default/files/ cases/public-information/cis_mladic_en.pdf. Accessed on 25 February 2021.

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On 17 November 2017, the ICTY Trial Chamber found Mladi´c guilty and sentenced him to life imprisonment.360 On 18 December 2017, Mladi´c filed a request seeking an extension of time to file his notice of appeal owing to the breadth and complexity of the judgment. On 22 March 2018, both the Prosecution and the Defence filed their respective notices of appeal. Subsequently, both parties submitted their appellants’ briefs and their replies to them.361 The appeal hearing commenced on 25 August 2020 in the Courts branch in The Hague. The hearing consisted of an introductory statement from the Presiding Judge in the case, Judge Prisca Matimba Nyambe. Oral arguments were presented by the Defence and the Prosecution, following which the hearing concluded on 26 August 2020.362 The Court is scheduled to deliver the judgment on the appeals on 8 June 2021 in the Hague.

7.2.2 Regional and Hybrid Courts and Tribunals Overview Hybrid Tribunals are mixed criminal tribunals that are both national and international in nature. This determination can be made by looking at one of the following three factors. First, the nature of the establishment of the court, for instance, by considering if the Court was established through an agreement between the UN and the host State. Second, based on the subject matter jurisdiction of the court, that is, whether the court can adjudicate upon both international and domestic crimes. Third, the composition of the staff, whether the staff includes both international and national judges and personnel.363 Many hybrid tribunals are currently functioning, amongst them the Extraordinary African Chambers, the Residual Special Court for Sierra Leone, and the Special Criminal Court for the Central African Republic. In this section we focused on the following three tribunals due to the most relevant developments: the Kosovo Specialist Chambers (see Sect. 7.2.2.1), the Special Tribunal for Lebanon (see Sect. 7.2.2.2), and the Extraordinary Chambers in the Courts of Cambodia (see Sect. 7.2.2.3). Additionally, this section mentions a judicial development at the European Court of Human Rights with relevance to IHL.

360

ICTY (2017) Prosecutor v. Ratko Mladi´c, Trial Judgement Summary of for Ratko Mladi´c. https:// www.icty.org/x/cases/mladic/tjug/en/171122-summary-en.pdf. Accessed on 25 February 2021. 361 IRMCT (2021) Ratko Mladi´ c, Case Information Sheet. https://www.irmct.org/sites/default/files/ cases/public-information/cis_mladic_en.pdf. Accessed on 25 February 2021. 362 IRMCT (2020) The Appeals Chamber of the International Residual Mechanism for Criminal Tribunals hears oral arguments in the Mladi´c case. https://www.irmct.org/en/news/20-08-26-app eals-chamber-hears-oral-arguments-mladic-case. Accessed on 24 February 2021. 363 International Crimes Database (2021) Hybrid Courts. http://www.internationalcrimesdatabase. org/Courts/Hybrid. Accessed on 20 April 2021.

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Kosovo Specialist Chambers and Specialist Prosecutor’s Office

The year 2020 was eventful for the Kosovo Specialist Chambers with many developments taking place. First, the Chambers witnessed development with respect to the case of Salih Mustafa, a Commander of the BIA guerrilla unit which operated within the Llap Operational Zone of the Kosovo Liberation Army.364 On 12 June 2020, the indictment against Mustafa was confirmed and eventually made public. He was charged with committing war crimes on the basis of individual criminal responsibility and superior criminal responsibility.365 Mustafa was arrested and transferred to the Detention Unit of the Chamber on 24 September 2020.366 On 28 September he made his first appearance before the Court and on a subsequent appearance on 28 October, he pleaded guilty to all the charges levelled against him in his indictment.367 Second, the case of Hashim Thaçi et al. also witnessed many developments. Thaçi was the head of the Political and Information Directorates of the Kosovo Liberation Army, the Commander-in-Chief, and the Prime Minister of the Provisional Government of Kosovo. The other co-accused in this case, Veseli, Selimi, and Krasniqi were all senior members of the Kosovo Liberation Army.368 On 26 October 2020, the indictment against all four accused was confirmed and made public on 5 November 2020. Charges were presented on multiple counts of crimes against humanity and war crimes based on individual criminal liability and superior criminal responsibility.369 All four accused were arrested and transferred to the Detention Facility of the Chamber.370 On 9 November, Thaçi and Krasniqi made their initial appearance before the Chamber and pleaded not guilty to all the charges in the indictment. On 10 and 11 November, Veseli and Selemi made their initial appearance before the Chamber and also pleaded not guilty.371 364

SCP-KS (2021) Salih Mustafa. https://www.scp-ks.org/en/cases/salih-mustafa/en. Accessed on 26 February 2021. 365 SCP-KS, Specialist Prosecutor v. Salih Mustafa, Public Redacted Version of Indictment, 19 June 2020, Case No. KSB-BS-2020-05. 366 SCP-KS (2020) Arrest and Transfer of Salih Mustafa. https://www.scp-ks.org/en/arrest-and-tra nsfer-salih-mustafa. Accessed on 26 February 2021. 367 SCP-KS (2021) Specialist Prosecutor v. Salih Mustafa (Case No. KSB-BS-2020-05), Case Information Sheet. https://www.scp-ks.org/sites/default/files/public/cis_mustafa-en.pdf. Accessed on 26 February 2021. 368 SCP-KS (2021) Specialist Prosecutor v. Hashim Thaçi, Kadri Veseli, Rexhep Selimi and Jakup Krasniqi (Case No. KSC-BC-2020-06), Case Information Sheet. https://www.scp-ks.org/sites/def ault/files/public/cis_thaci_et_al-en.pdf. Accessed on 26 February 2021. 369 SCP-KS, Specialist Prosecutor v. Hashim Thaçi, Kadri Veseli, Rexhep Selimi and Jakup Krasniqi, Further Redacted Indictment, 4 November 2020, Case No. KSC-BC-2020-06. 370 Reuters (2020) Kosovo President Thaci arrested, moved to The Hague to face war crimes charges. https://www.reuters.com/article/us-warcrimes-kosovo-thaci-idUSKBN27L1DO. Accessed on 26 February 2021. 371 SCP-KS (2021) Hashim Thaçi et al. https://www.scp-ks.org/en/cases/hashim-thaci-et-al. Accessed on 26 February 2021.

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Third and last, the case of Hysni Gucati and Nasim Haradinaj also saw developments. On 11 December 2020, the indictment against both the accused was confirmed and subsequently made public on 14 December 2020.372 As per the indictment, between 7 September and 25 September 2020, on the occasion of broadcasted events and press conferences, both accused revealed without authorization protected information, made disparaging remarks against witnesses, and expressed their intention to undermine the Chambers. They have been charged with criminal offenses against the administration of justice and public order under individual criminal responsibility.373 Gucati and Haradinaj were arrested and transferred to The Hague on 25 and 26 September, respectively.374 On 18 December, Gucati and Haradinaj made their initial appearance before the Chambers where Gucati pleaded not guilty to all counts in the indictment. Haradnija chose to enter his plea within 30 days but when he failed to do so, the Pre-Trial Judge instituted a plea of not guilty on his behalf per Chamber’s Rule 92(2)(f).375

7.2.2.2

Special Tribunal for Lebanon

The most significant development that took place in the Special Tribunal for Lebanon in 2020 was the judgment of the Trial Chamber in the Ayyash et al. case convicting Salim Jamil Ayyash. The case concerns the attack on Lebanese Prime Minister Rafik Harari perpetrated by a suicide bomber killing him along with 21 other people and injuring 226 others.376 The trial against Ayyash, Badreddine, Oneissi, and Sabra commenced in January 2014. In February 2014, the case against Merhi was joined with the Ayyash et al. case. The trial was conducted in absentia. In May 2016, Badreddine was confirmed dead after which proceedings against him were terminated. The Trial Chamber concluded the trial in September 2018 after it received the final briefs, and heard closing arguments from the Prosecutor, Defence, and the Legal Representatives of Victims.377 372

SCP-KS (2021) Hysni Gucati and Nasim Haradinaj. https://www.scp-ks.org/en/cases/hysni-guc ati-nasim-haradinaj/en. Accessed on 26 February 2021. 373 SCP-KS, Specialist Prosecutor v. Hysni Gucati and Nasim Haradinaj, Redacted Indictment, 14 December 2020, Case No. KSB-BC-2020-07. 374 SCP-KS (2020) Arrest and transfer of Hysbi Gucati. https://www.scp-ks.org/en/arrest-andtransfer-hysni-gucati. Accessed on 26 February 2021; SCP-KS (2020) Arrest and transfer of Nasim Haradnija. https://www.scp-ks.org/en/arrest-and-transfer-nasim-haradinaj. Accessed on 26 February 2021. 375 SCP-KS (2021) Specialist Prosecutor v. Hysni Gucati and Nasim Haradinaj, (Case No. KSB-BC2020-07), Case Information Sheet. https://www.scp-ks.org/sites/default/files/public/cis_gucati_har adinaj-en.pdf. Accessed on 26 February 2021. 376 STL (2021) Ayyash et al. Judgment and Sentence – All you need to know. https://www.stl-tsl. org/en/ayyash-et-al-case-judgment. Accessed on 26 February 2021. 377 STL (2021) Ayyash Et Al. Trial – A Bird’s Eye View. https://www.stl-tsl.org/sites/default/files/ documents/cis/Ayyash_et_al-Case_Info_Sheet-EN.pdf. Accessed on 26 February 2021.

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On 18 August 2020, the Trial Chamber pronounced its judgment. It unanimously held Ayyash guilty for committing a terrorist act, for co-perpetrating conspiracy, intentional homicide of Prime Minister Harari and 21 other individuals, and attempted intentional homicide of 226 people by using explosive material. The Court found Oneissi, Merhi and Sabra not guilty of any of the presented charges.378 Subsequently, on 11 December the Court sentenced Ayyash to life imprisonment for each of the five counts on which he was found guilty.379 The Trial Chamber issued a renewed warrant, an international arrest warrant, order, and request for the transfer and detention of Ayyash. The case is currently in appeal.380

7.2.2.3

Extraordinary Chambers in the Courts of Cambodia

In a controversial ruling, Ao An, a senior leader of the Khmer Rouge was released of charges of genocide and crimes against humanity before the Extraordinary Chambers in the Courts of Cambodia (ECCC). Ao An allegedly “was responsible for running forced labor camps, execution sites, and security centers” and was charged with “murder, persecution, extermination, enslavement, imprisonment, torture, forced marriage, rape, and forced labor”.381 The ECCC was set up within the Cambodian court system as an international hybrid tribunal, where two internationally appointed and three national judges presided over the case. In December 2019, the ECCC issued a split decision in which the internationally-appointed judges ruled for the indictment and trial of Ao An and the national judges stated that the court had no jurisdiction over the case. In August 2020, upon a lack of a decisive decision of the court and the argument that the parties to the case are entitled to a fair trial and protected by the principle of legal certainty, the Supreme Court Chamber terminated the case.382

378

STL, The Prosecutor v. Mr. Ayyah, Mr. Merhi, Mr. Oneissi and Mr. Sabra, Judgment, 20 August 2020, Case No. 11-01/T/TC. 379 STL, The Prosecutor v. Mr. Salim Jamil Ayyah, Sentencing Judgment, 11 December 2020, Case No. 11-01/S/TC. 380 STL (2021) The Cases—Ayyah et al. https://www.stl-tsl.org/en/the-cases/stl-11-01. Accessed on 26 February 2021. 381 The Center for Justice & Accountability (2019) Split-Decision in Genocide and Crimes Against Humanity Case Against Khmer Rouge Official Ao An Leaves Prospect of Justice for Victims Uncertain. https://cja.org/split-decision-in-genocide-and-crimes-against-humanity-caseagainst-khmer-rouge-official-ao-an-leaves-prospect-of-justice-for-victims-uncertain/. Accessed 25 February 2021. 382 Extraordinary Chambers in the Courts of Cambodia (2021) Ao An. https://www.eccc.gov.kh/ en/indicted-person/ao. Accessed 25 February 2021.

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European Court of Human Rights

In February 2020, the European Court of Human Rights (ECtHR) heard the case filed by Abdul Hanan with the assistance of the European Center for Constitutional and Human Rights concerning the airstrike in Kunduz, Afghanistan on 4 September 2009. On that day, two US fighter jets under the orders of the German Army Colonel Georg Klein conducted airstrikes against two tanker trucks on a sandbar in the Kunduz River in Afghanistan. However, the forces “failed to sufficiently verify whether and how many civilians were in the vicinity of the tankers before the attack” resulting in deaths and injuries of more than 100 civilians.383 Hanan lost his two sons in these strikes. Since the strikes, the German government failed to lead a thorough investigation into the committed crimes, covering up the consequences of the strikes and the exact number of casualties and prematurely closing the case in April 2010. The case was brought to the ECtHR due to the repeated failed attempts to conform to international human rights standards and the right to redress. Hanan argued that he had “no effective domestic remedy at his disposal to challenge the decision to discontinue the investigation”.384 Due to its extraordinary significance, the case was brought before the ECtHR’s Grand Chamber where the violation of the right to redress as well as the contents of the case will be evaluated by the Court.

7.2.3 National Courts This section describes major developments in national court cases addressing serious international crimes under international law. It addresses cases that are pending further investigations or deliberations and major judicial developments such as acquittals or charges from national courts around the world. Most of the cases described below are tried under the principle of universal jurisdiction, which allows national courts to prosecute international crimes regardless of the jurisdiction in which they were committed. Despite the Covid-19 pandemic, many judicial activities proceeded and adapted quickly to the new reality, with witnesses being interviewed online and trial proceedings continuing remotely.385

7.2.3.1

Argentina

In December 2019, the Burmese Rohingya Organisation UK (BROUK) brought a case to the Argentinian judiciary “regarding the atrocity crimes against the Rohingya 383

ECCHR (2020) ECTHR Grand Chamber Heard Kunduz Airstrike Case. https://www.ecchr.eu/ en/case/ecthr-grand-chamber-heard-kunduz-airstrike-case/. Accessed 17 February 2021. 384 ECtHR, Hanan v Germany, Grand Chamber Statement of Facts, 2 September 2016, Application No. 4871/16, para 17. 385 Trial International 2021.

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minority in Myanmar”.386 The case targets the senior leadership in Myanmar, from military leadership (e.g., Commander-in-Chief Senior General Min Aung Hlaing), political leaders (e.g., State Counsellor Aung San Suu Kyi), to religious leaders and business persons. The case was brought under the principle of universal jurisdiction. Due to the ongoing ICC investigation into the situation in Myanmar (see Sect. 7.1.13) and the concern over overlapping jurisdictions and the duplication of the international prosecution efforts, the Argentinian Court of First Instance in Buenos Aires rejected the case.387 However, in June the decision was overturned by the Court of Appeals, which requested the ICC to provide clarification whether the Argentinian investigation under the principle of universal jurisdiction would duplicate or disrupt the ICC’s investigation.388 The opinion of the ICC in this respect may have a significant impact on the exercise of universal jurisdiction by national domestic courts and the possibility to bring grave human rights violations to courts worldwide as it will determine to what extent national cases may overlap with the cases brought before international courts. Additionally, in 2020, the investigation into the case of Rodolfo Martín Villa and others proceeded. Martín Villa and others are former Spanish officials during the Franco dictatorship and are tried for the alleged crimes against humanity, including acts of torture, committed in Spain between 1936 and 1977.389 Despite the arrest warrants issued by the Argentinian Judge Servini de Cubría, the Spanish authorities have refused to cooperate. Finally, in September 2020 Judge de Cubría was permitted to question Martín Villa in the Argentinian embassy in Madrid for his alleged role in the deaths of 12 victims of the Franco dictatorship.390

7.2.3.2

Austria

The case against Khaled H. and others was opened in Austria in 2016. Khaled H., who is the main suspect in these proceedings, is a former General of the General Intelligence Services from Raqqa, Syria, and is suspected of “committing international crimes in the detention facilities under his command”.391 In 2020, during the investigation, it became known that Khaled H. was helped by the Austrian Office for the Protection of the Constitution to escape France and receive asylum in Austria.392 It is not known yet how this information will impact the proceedings. 386

OpinioJuris (2020) Universal Jurisdiction, the International Criminal Court, and the Rohingya Genocide. https://opiniojuris.org/2020/10/23/universal-jurisdiction-the-international-cri minal-court-and-the-rohingya-genocide/. Accessed 21 January 2021. 387 Ibid. 388 BROUK (2020) Argentinean Judiciary Moves Closer To Opening Case Against Myanmar Over Rohingya Genocide. https://www.brouk.org.uk/argentinean-judiciary-moves-closer-to-ope ning-case-against-myanmar-over-rohingya-genocide/. Accessed 21 January 2021. 389 Trial International 2021, pp. 17–18. 390 Ibid. 391 Ibid., p. 20. 392 Ibid.

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Belgium

Two cases in Belgian courts under the universal jurisdiction saw new developments in 2020, in relation to the Second Congo War and the Rwandan genocide. In January, the court in Brussels decided not to prosecute a Congolese national, Alexis Thambwe Mwamba, who is a former spokesperson for the rebel group Movement for the Liberation of Congo (or RCD).393 Mwamba was a spokesperson for RCD at the time of the shooting of a Congo Airline plane, in which 50 civilians died, during the Second Congo War in October 1998.394 The killing of the Congo Airline was considered a crime against humanity, however, the Belgian court decided that there was insufficient evidence to prove the guilt of Mwamba. In October, the Belgian police arrested three Rwandan nationals, Pierre Basabose, Séraphin Twahirwa, and Christophe Ndangali, who are suspected of involvement in the genocide of 1994 in Rwanda.395 These men were arrested based on an indictment sent more than a decade ago by the Rwandan government. The Belgian courts have held Basabose and Twahirwa in detention, while Ndangali remains free under surveillance, and arrest warrants were issued for three other individuals accused.396 It is important to note the ongoing proceedings of crimes against humanity in Belgian courts that have been postponed indefinitely. Human rights and civil society organizations have repeatedly disapproved of the delayed proceedings claiming that “justice delayed is justice denied”.397 This section highlights two such cases. A criminal investigation is pending in a trial of 11 Belgian nationals for their involvement in the assassination of the first Prime Minister of the Democratic Republic of the Congo Patrice Lumumba on 17 January 1961. Lumumba “was shot by firing squad by Katangese separatists and Belgian mercenaries on 17 January 1961, in south-eastern Congo during the chaotic first months of independence”.398 Due to the Belgian role in DPR Congo at the time, the assassination is tried as a serious violation of the Geneva Convention during decolonization and one of armed conflict between Belgium and DPR Congo.399 In 2001, the Belgian authorities assumed 393

The Brussels Time (2020) Court declines to prosecute Congolese politician for shooting down civilian plane in 1998. https://www.brusselstimes.com/news/belgium-all-news/88886/court-dec lines-to-prosecute-congolese-politician-for-shooting-down-civilian-plane-in-1998/. Accessed 17 February 2021. 394 Trial International 2020. 395 The New Times (2020) Kigali awaits decision by Belgian judiciary on three Genocide fugitives. https://www.newtimes.co.rw/news/kigali-awaits-decision-belgian-judiciary-three-genocidefugitives#.X4b-dn2wZsQ.whatsapp. Accessed 17 February 2021. 396 Trial International 2021, p. 24. 397 Civitas Maxima (2020) Justice Delayed, Justice Denied? https://civitas-maxima.org/2020/11/ 17/justice-delayed-justice-denied/. Accessed 17 February 2021. 398 The Guardian (2020) Belgium mulls charges over 1961 killing of Congo’s first elected leader. https://www.theguardian.com/global/2020/jul/01/belgium-mulls-charges-over-1961-assass ination-of-congos-first-elected-leader. Accessed 17 February 2021. 399 ECCHR (2020) Crimes During Liberation Wars: The Lumumba Murder. https://www.ecchr.eu/ en/case/crimes-during-liberation-wars-the-lumumba-murder/. Accessed 17 February 2021.

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“moral responsibility” but denied any legal responsibility for Lumumba’s death. The case has already been pending for several years and only two of the alleged suspects are still alive. This case is perhaps one of the last decolonization cases today. In 2012, a criminal complaint was filed before the Belgian courts against Martina Johnson for her direct involvement in war crimes and crimes against humanity.400 In 2014, Martina Johnson was arrested. Johnson was allegedly involved in Operation Octopus launched by former Liberian President Charles Taylor and his troops the National Patriotic Front of Liberia (NPFL). Operation Octopus was an offensive attack on the government and peacekeeping troops which resulted in the deaths of hundreds of civilians. The case of Martina Johnson is still in the initial investigation phase and the Belgian courts have not released any further information about the following proceedings. This is one of the longest-standing investigations in Belgium.401

7.2.3.4

Bosnia and Herzegovina

In 2020, nine men were detained on suspicion of committing crimes during the Bosnian war. Suspects were accused of “crimes against humanity, individual and command responsibility, as well as complicity, and participation in crime and incitement to crime” for the events of 22 September 1992.402 Crimes of which these men are accused further involved K.N. whose extradition from Canada was requested and Radislav Krstic who was previously convicted in The Hague.

7.2.3.5

Central African Republic

In February 2020, the Bangui Court of Appeal in CAR brought to justice 32 fighters from the anti-Balaka militia group for killing 75 civilians and 10 UN peacekeepers in an attack on the MINUSCA office in Bangassou. In the attack, they “used heavy weapons and forced thousands of civilians to flee their homes”.403 These fighters were sentenced to 10–15 years in prison, with some that received a life sentence.

400

Trial International (2020) Universal Jurisdiction Annual Review 2020. Civitas Maxima (2020) Justice Delayed, Justice Denied? https://civitas-maxima.org/2020/11/ 17/justice-delayed-justice-denied/. Accessed 17 February 2021. 402 Balkan Insights (2020) Nine Bosnian Serb Ex-Soldiers and Police Arrested for War Crimes. https://balkaninsight.com/2020/09/16/nine-bosnian-serb-ex-soldiers-and-police-arrestedfor-war-crimes/. Accessed 21 January 2021. 403 UN News (2020) 28 militiamen sentenced in Central African Republic for murder of civilians, UN peacekeepers. https://news.un.org/en/story/2020/02/1056962. Accessed 10 May 2021. 401

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217

Colombia

The Colombian courts granted amnesty to three men, Niall Connolly, James Monaghan, and Martin McCauley, who were previously sentenced in December 2004 to 17 years in prison for their involvement in training the Revolutionary Armed Forces of Colombia (FARC) members to manufacture explosives.404 The three men are members of the Irish Republican Army (IRA) and escaped Colombia before they could be imprisoned in Colombia. They live in Ireland which does not have a deportation agreement with Colombia. The amnesty was granted by Colombia’s Special Jurisdiction for Peace (JEP), a special court established following the peace deal of 2016 to prosecute crimes, offer truth to Colombian society, and satisfy the rights of victims of justice. The court decided that there was insufficient evidence to support the previous decision to charge them for terrorism-related offences.

7.2.3.7

Democratic Republic of Congo

In 2020, numerous members of the Raiya Mutomboki militia group faced trial concerning the acts of violence against the civil population in the South Kivu region between 2016 and 2017. In August, two militiamen were convicted for crimes against humanity on counts of torture, imprisonment, and pillaging.405 Following that, in October two members of the militia were found guilty of crimes against humanity and sentenced to 20 years of imprisonment.406 Importantly, the Congolese State was also found responsible for the aforementioned crimes in the case, thus providing additional pathways for victims to receive repatriations. In the first days of 2021, a military leader, Takungomo Mukambilwa Le Pouce, was condemned to 20 years’ imprisonment for “murder, rape, sexual slavery, torture, imprisonment, enforced disappearances and other inhumane acts constitutive of crimes against humanity”.407 In November 2020, a military court in Goma found Ntabo Ntaberi Sheka, the former leader of the Nduma Defense of Congo (NDC) armed group who had surrendered to the MONUSCO, guilty of seven counts of war crimes including sexual slavery, mass rape, and recruitment of child soldiers.408 Many similar trials of those involved in armed conflict are ongoing in the DRC.

404

DW (2020) Alleged IRA bombmakers granted amnesty by Colombia. https://www.dw.com/en/ alleged-ira-bombmakers-granted-amnesty-by-colombia/a-53224117. Accessed 1 February 2021. 405 Trial International (2020) DRC: Three militiamen convicted in Kalehe. https://trialinternational. org/latest-post/drc-three-militiamen-convicted-in-kalehe/. Accessed 12 January 2021. 406 Trial International (2020) 20 years imprisonment and 42 recognized victims in the Hamakombo case (DRC). https://trialinternational.org/latest-post/drc-the-hamakombo-case-soonin-front-of-judges/. Accessed 12 January 2021. 407 Trial International (2021) Migamba Case (DRC): When Exploitation Leads to Mass Crimes. https://trialinternational.org/latest-post/migamba-case-drc-when-mining-exploitation-leads-tomass-crimes/. Accessed 12 January 2021. 408 Human Rights Watch 2020b.

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Finland

Iraqi twin brothers who faced charges for their alleged involvement in the Camp Speicher massacre near Tikrit, Iraq in June 2014 were released. The Camp Speicher massacre was a mass killing of about 1,700 unarmed Iraqi army recruits by members of ISIS.409 The suspects arrived as asylum seekers in Finland in 2015. In 2017, the District Court of Pirkanmaa acquitted the Iraqi brothers for lack of evidence. The prosecution appealed. In February 2020, the final decision was made by the Turku Court of Appeal which dismissed the charges and awarded each brother 213,000 euros compensation for wrongful imprisonment.410 On 10 March 2020, the Finish police arrested a Sierra Leonean national, Gibril Massaquoi, for his suspected involvement in war crimes and crimes against humanity committed in neighboring Liberia during the civil war between 1999 and 2003.411 The detention of Massaquoi came shortly after the conclusion of a pre-trial investigation that lasted since early 2019, which saw the cooperation of the Liberian and Sierra Leonean authorities.412 Massaquoi was arrested in Tampere, Finland on 10 March 2020.413 On 1 February 2021, Gibril Massaquoi will face charges of aggravated war crimes, aggravated crimes against humanity, and murders before the Pirkanmaa District Court in Finland.414

7.2.3.9

France

France had the longest list of universal jurisdiction cases pending in 2020. An arrest of a Chadian rebel leader, Mahamat Nouri, in 2019 resulted in the opening of a trial into the alleged involvement of Nouri in the recruitment of child soldiers and crimes against humanity in Chad and Sudan. Nouri continues to face charges. However, in March 2020, 73-year-old Nouri was released from pre-trial detention due to health concerns related to the Covid-19 pandemic.415 409

Trial International 2020. YLE (2020) Iraqi twins awarded e426,000 for wrongful imprisonment after massacre acquittal. https://yle.fi/uutiset/osasto/news/iraqi_twins_awarded_426000_for_wrongful_imprisonment_ after_massacre_acquittal/11556298. Accessed 19 February 2021. 411 The Daily Observer (2020) Sierra Leone Rebel Official Arrested in Finland over War Crimes in Liberia. https://www.liberianobserver.com/news/sierra-leone-rebel-official-arrested-in-finlandover-war-crimes-in-liberia/. Accessed 1 February 2021. 412 Front Page Africa (2021) Liberia: Trial of former RUF Commander Set to Begin before Finnish Court. https://frontpageafricaonline.com/front-slider/liberia-trial-of-former-ruf-comman der-set-to-begin-before-finnish-court/. Accessed 1 February 2021. 413 Trial International 2020, p. 26. 414 Front Page Africa (2021) Liberia: Trial of former RUF Commander Set to Begin before Finnish Court. https://frontpageafricaonline.com/front-slider/liberia-trial-of-former-ruf-comman der-set-to-begin-before-finnish-court/. Accessed 1 February 2021. 415 Justice Info (2020) French Judge Frees Chad Rebel Chief Charged with Crimes Against Humanity. https://www.justiceinfo.net/en/44058-french-judge-frees-chad-rebel-chief-cha rged-with-crimes-against-humanity.html. Accessed 19 February 2021. 410

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An investigation is pending in the case of Kunti K., a former commander in the United Liberation Movement of Liberia for Democracy (ULIMO), suspected of committing crimes against humanity and torture during the First Liberian Civil War. In 2019, Kunti K. was released from pre-trial detention. In January 2020, he was found in an attempt to escape from France and arrested again.416 In November, the investigative judge ordered Kunti K. to be sent for trial.417 In July 2020, a case was opened against Sabri Essid and Nabil Greseque who are former ISIS fighters.418 They were accused of genocide and crimes against humanity against the Yazidis minority in Syria between 2014 and 2016.419 An arrest warrant was issued to find Essid, while a judicial investigation was opened against Greseque.420 On 15 September, Eric Danboy Bagale, a former head of the CAR Presidential guard and then also a leader of the anti-Balaka militia group, was arrested in France.421 The financial assets of Bagale were previously frozen by French and Monaco, upon finding out that he arrived in France in 2014.422 He will face charges of war crimes, crimes against humanity, torture, enforced disappearances for his participation in the civil war in CAR between 2007 and 2014.423 Also in September, judicial proceedings were opened into the alleged complicity of the BNP Paribas Bank in crimes against humanity, genocide, and acts of torture committed in Sudan between 2002 and 2008, particularly in the region of Darfur.424 The plaintiffs argued that BNP Paribas was a de facto primary bank in Sudan from 1997 to 2007 facilitating Sudan’s government with access to international money markets and means to pay their military and security forces.425 At the time, Sudanese government forces were engaged in an armed conflict, conducting wrongful killings, tortures, forced displacement, rapes, and assaults on tens of thousands of civilians.426 The BNP Paribas was accused of complicity in crimes against humanity committed by the government. The complaint was brought in 2019 by the International Federation for Human Rights (FIDH) and nine Sudanese victims. Another case against a French company, Amesys, was opened in 2012. Amesys is accused of complicity in crimes of torture and other cruel, inhumane, or degrading 416

Civitas Maxima (2021) Kunti K. https://civitas-maxima.org/legal-work/our-cases/kunti-k/. Accessed 19 February 2021. 417 Trial International 2020, p. 40. 418 Ibid., p. 32. 419 Ibid. 420 Ibid. 421 Ibid., p. 39. 422 Ibid. 423 Ibid. 424 RFI (2020) France probes BNP Paribas over accusations of enabling Sudan war crimes. https://www.rfi.fr/en/africa/20200924-france-probes-bnp-paribas-over-accusations-of-ena bling-sudan-war-crimes-darfur. Accessed 1 February 2021. 425 Reuters (2020) France opens probe into BNP Paribas over its role in Sudan. https://www.reuters. com/article/us-france-bnp-paribas-probe-sudan-idUSKCN26F37Q. Accessed 17 February 2021. 426 Trial International 2020.

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treatment in Libya during Muammar Gaddafi’s regime.427 The prosecution found evidence implicating Amesys in providing surveillance technologies to Gaddafi’s regime “to track, arrest and torture political opposition”.428 In 2020, a letter was sent to the Libyan judiciary to request their cooperation to interrogate key witnesses.429 French officials continue to seek the arrest of three Syrian intelligence officials charged with complicity in crimes against humanity, torture and enforced disappearances, and war crimes.430 Charges were brought by the family members of two French-Syrian nationals who died in the Mezzeh detention center in Damascus. In 2020, the French authorities continued investigations into the murder of journalists Rémi Ochlik, Marie Colvin and Edith Bouvier, in an army bombardment of a media center in 2012.431 Furthermore, trials are pending in the cases of Abdulhamid A. (Syrian official for crimes against humanity and torture in 2011), and Ahmed Hamdane El Aswadi (Iraqi national and suspected member of ISIS). Several other cases were pending in 2020. The year ended with the Paris police arresting Roger Lumbala, a national of DRC and a former leader of the Congolese Rally for National Democracy movement, on 19 December 2020.432 Lumbala will face charges of “crimes against humanity, including rape, summary executions, mutilation and cannibalism” which he allegedly committed during the second civil war in the DRC between 2000 and 2003 in the northern provinces of Ituri and Haut-Uélé.433

7.2.3.10

Germany

In 2020, Germany saw a continuation of numerous court cases, including some concerning the Yazidi genocide in Syria and Iraq and the atrocities committed during the Syrian war. The trial of an Iraqi and German national, Taha Al-J, began in Frankfurt. Taha Al-J was arrested in Greece and extradited to Germany. He is facing charges “for genocide, murder, war crimes and crimes against humanity, on allegations that as an IS member he was part of an effort to exterminate the Yazidi religious minority”.434 Teha Al-J is a husband of a German national Jennifer W, who is facing charges for committing war crimes for her involvement in ISIS violent acts in Iraq.

427

Ibid., p. 36. Ibid. 429 Ibid. 430 Ibid. 431 Ibid. 432 Ibid., p. 28. 433 Ibid. 434 The Guardian (2020) Alleged Isis member on trial in Germany for genocide and murder. https://www.theguardian.com/world/2020/apr/24/iraqi-goes-on-trial-in-germany-chargedwith-genocide-and. Accessed 12 January 2021. 428

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In April, the trial began in an important torture-related case of Syrian nationals named Anwar Raslan and Eyad A. at the Higher Regional Court in Koblenz, Germany. They were accused of having committed crimes against humanity and state torture in Syria between 2011 and 2012. Anwar Raslan is a former Syrian policeman charged with complicity in 4,000 cases of torture and 58 murders.435 In 2020, the European Center for Constitutional and Human Rights expanded the charges of Anwar Raslan to include “rape and sexual coercion as part of the crime against humanity indictment”.436 Raslan was a high-ranking officer of Eyad A. On 18 May 2020, Raslan rejected the accusations in what was a long description of his involvement in the Syrian opposition and rejection of any involvement of the Syrian intelligence services in torture. Testimonies were heard of witnesses and expert witnesses.437 Early in 2021, in February, the court convicted Eyad A. of facilitating torture and sentenced him to four and a half years in prison.438 The trial of Anwar R. will continue at least until October 2021. This trial also referred to as the Al-Khatib trial (in reference to the al-Khatib branch 251 where alleged torture acts were committed), is the first trial worldwide on state-sponsored torture in Syria.439 In June, seven Syrian survivors and a range of human rights organizations filed a criminal complaint in regards to nine high-ranking officials of the Syrian Air Force Intelligence Service. Amongst them is the head of the Air Force Intelligence Service, Jamil Hassan.440 The case is pending further investigations, but further evidence was gathered in 2020 implicating the Syrian regime in crimes against humanity, including sexual and gender-based crimes in the detention facilities, as part of the “widespread and systematic attack against a civilian population in Syria”.441 Based on this investigation, three arrest warrants were issued for high-ranking Syrian officials and a former doctor at a military prison in Syria, Alaa M., was detained.442 Omaima A. is a German and Tunisian national who travelled to Syria in 2015. She was accused of enslaving a 13-year-old Yazidi girl, of joining a foreign terrorist organization, and of breaching the Military Weapons Control Act. She was sentenced by the Higher Regional Court in Hamburg to six months in prison in October 2020.443 In November, a German national named Nurten J was indicted by a German court for crimes against humanity allegedly committed in Syria as a member of ISIS. Nurten J stands accused of prosecution of the Yazidi minority, crimes against property for

435

ECCHR (2020) Trial Updates: First Trial Worldwide on Torture in Syria. https://www.ecchr.eu/ en/case/trial-updates-first-trial-worldwide-on-torture-in-syria/. Accessed 17 February 2021. 436 Trial International 2020, p. 48. 437 Ibid. 438 DW (2021) German court hands down historic Syrian torture verdict. https://www.dw.com/en/ german-court-hands-down-historic-syrian-torture-verdict/a-56670243. Accessed 2 June 2021. 439 Ibid. 440 Trial International 2021, pp. 46–47. 441 Ibid. 442 Ibid., p. 50. 443 Ibid., p. 54.

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living in an arbitrarily seized home, and violating weapons laws.444 Nurten J is one of a few German female returnees who are charged with crimes committed as members of IS.445 Further, besides the above-mentioned trials related to the Syrian war and the Yazidi genocide, there were two more cases under the universal principle in Germany related to crimes in Afghanistan, Argentina, The Gambia, and Chile. Ahmad Zaheer D. is a former member of the Afghan military forces and was accused by the German prosecutor of inhumane treatment of the captured enemy fighters.446 He was being tried before the Federal Court of Germany, which found Zaheer guilty of torture of three prisoners. This trial was of significance to international law, given that the Court determined that customary international law does not imply functional immunity of State officials for the commission of international crimes.447 In July, Luis Esteban Kyburg, a former naval officer who allegedly participated in crimes against humanity during the Argentine military dictatorship (1976–83), was discovered and arrested in Berlin.448 After facing imprisonment in Argentina, Kyburg fled to Germany in 2013. In 2018, a case was filed by a sister of one of the victims in Berlin accusing Kyburg of being “involved in the kidnapping and murder of 152 people during the military dictatorship”.449 Due to his dual Argentinian-German nationality, Kyburg will be prosecuted in Germany. Seven Gambian citizens, who allegedly served in the military under the former president Yahya Jammeh’s administration, are under investigation in Germany.450 In 2020, the German prosecutor and federal police searched the apartments of these Gambian citizens. They are sought after for the alleged participation in torture, mistreatment, and killing of opposition members of the Jammeh regime.451 The prosecution appealed the case of Hartmut Hopp and Reinhard Döring suspected of torture and child abuse in Colonia Dignidad, Chile in the 1970s. The case was appealed to in 2020 when the ECCHR lawyer argued that the right to

444

Arab News (2020) German woman charged over crimes against humanity in Syria. https://www. arabnews.com/node/1761811/world. Accessed 12 January 2021. 445 Middle East Monitor (2020) Female Daesh returnee charged with crimes against humanity in Germany. https://www.middleeastmonitor.com/20201112-female-daesh-returnee-charged-with-cri mes-against-humanity-in-germany/. Accessed 12 January 2021. 446 Trial International 2021, p. 57. 447 Ibid. 448 ECCHR (2020) Germany Must Bring Alleged Argentine Dictatorship Criminal Luis K to Justice. https://www.ecchr.eu/en/press-release/germany-must-bring-alleged-argentine-dictators hip-criminal-luis-k-to-justice-1/. Accessed 17 February 2021. 449 The Guardian (2020) Ex-officer accused of human rights crimes in Argentina found living in Berlin. https://www.theguardian.com/world/2020/jul/17/luis-esteban-kyburg-argentina-dictators hip-berlin-germany. Accessed 17 February 2021. 450 Trial International 2021, p. 56. 451 Ibid.

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redress the victims of atrocities committed in Colonia Dignidad was not satisfied.452 However, the claim was rejected by the court and the case was closed definitely.

7.2.3.11

Ghana

A high-profile case brought in 2018 by Human Rights Watch and Trial International against the former President of The Gambia, Yahya Jammeh, is still pending an investigation before the Ghanaian courts. Former President Yahya Jammeh is accused of complicity in enforced disappearances and extrajudicial killings of more than 50 Ghanaian and other West African migrants, in what is known as the 2005 migrants’ massacre. The killings were allegedly carried out “by Jammeh’s closest associates in the army, the navy, and the police, and then summarily executed by the so-called Junglers a unit of Gambian soldiers operating under Jammeh’s orders”.453 Due to a prolonged investigation procedure in Ghana and the repeated attempts of the Gambian government interfering with the court proceedings, international human rights organizations headed by Human Rights Watch in 2020 called for “an international investigation [that] would be best placed to uncover all the facts”.454

7.2.3.12

Guatemala

The year began with the extradition of the Guatemalan national, Cuxum Alvarado, from the US to Guatemala. After having spent six months in US prison for an illegal entry into the country, Alvarado was delivered to the Guatemalan authorities concerning his alleged role in the Maya Achi sexual violence case during the Guatemalan civil war between 1960 to 1996.455 Alvarado is a former member of the civilian militia known as the Rabinal Civil Defense Patrols. In February, the court indicted Alvarado on charges of “crimes against humanity and aggravated sexual assault”.456 The court proceedings are expected to continue into 2021. In March, after the pre-trial evidentiary phase, three former senior military commanders were charged by the Attorney General’s Office with genocide, crimes 452

ECCHR (2020) Colonia Dignidad Remains a Dark Chapter of German Legal History. https://www.ecchr.eu/en/case/colonia-dignidad-remains-a-dark-chapter-of-german-legal-history/. Accessed 17 February 2021. 453 Human Rights Watch (2020) Gambia: No Justice for 2005 Massacre of Migrants. https://www.hrw.org/news/2020/07/21/gambia-no-justice-2005-massacre-migrants. Accessed 19 February 2021. 454 Ibid. 455 International Justice Monitor (2020) Guatemalan Man Wanted in the Maya Achi Sexual Violence Case Arrested. https://www.ijmonitor.org/2020/01/guatemalan-man-wanted-in-the-maya-achi-sex ual-violence-case-arrested/. Accessed 2 February 2021. 456 International Justice Monitor (2020) Former Paramilitary Indicted in Guatemala in Maya Achi Sexual Violence Case. https://www.ijmonitor.org/2020/02/former-paramilitary-indicted-in-guatem ala-in-maya-achi-sexual-violence-case/. Accessed 2 February 2021.

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against humanity, and forced disappearance against the Maya Ixil population.457 Crimes for which these three men are charged occurred under the government of Romeo Lucas García (1978–1982), and concerning the alleged implementation of the policy of genocide. The case experienced disruptions due to the Covid-19 pandemic. In the meantime, it was reported that one of the suspects, Noguera Argueta, died in November 2020. Also in November, the court ruled that there was sufficient evidence to proceed to trial of former special forces soldier Gilberto Jordán for his alleged role in the 1982 Dos Erres massacre. Gilberto Jordán is charged with aggravated sexual assault and crimes against humanity “for his direct participation in the murder of 162 men, women, and children”.458 Earlier in 2020, Gilberto Jordán arrived in Guatemala after having been deported from the US where he served 10 years in prison for immigration fraud and false statements on his naturalization forms. The Tululché Massacre case was closed in January 2020, when charges against Juan Alecio Samayoa Cabrera were dismissed. He was accused of more than 150 human rights abuses, including torture, rape, and extrajudicial killing, in the department of El Quiché in the early 1980s. Even though Cabrera “had been a fugitive of justice for 25 years and was only brought to trial after a lengthy deportation proceeding in the United States”, he was released immediately after the charges were dismissed.459 In November 2020, the victims appealed the decision of the court, new evidence was presented by the plaintiffs, and an arrest warrant against Samayoa Cabrera was issued once more.460 Three other cases are pending trial in the Guatemalan courts concerning the atrocities committed during the Guatemalan civil war. The case of Molina Theissen in which four retired senior military officials were convicted in May 2018 of crimes against humanity, aggravated sexual violence, and enforced disappearance is pending the review of the appeal in February 2021.461 The CREOMPAZ case is one of the largest enforced disappearance cases in Latin America, in which eight former military officials are tried. The Maya Ixil Genocide Trial is yet another case in which a retired general, Luis Enrique Mendoza García, is accused of genocide committed as

457

International Justice Monitor (2020) The Future of War Crimes Prosecutions in Guatemala. https://www.ijmonitor.org/2020/12/the-future-of-war-crimes-prosecutions-in-guatem ala/. Accessed 2 February 2021. 458 International Justice Monitor (2020) Judge Orders Trial of Ex-Kaibil for his role in Dos Erres Massacre. https://www.ijmonitor.org/2020/11/judge-orders-trial-of-ex-kaibil-for-his-role-indos-erres-massacre/. Accessed 2 February 2021. 459 International Justice Monitor (2020) A Perfect Storm: Guatemalan Judge Dismisses War Crimes Charges Against Feared Military Commissioner. https://www.ijmonitor.org/2020/01/a-per fect-storm-guatemalan-judge-dismisses-war-crimes-charges-against-feared-military-commissio ner/. Accessed 2 February 2021. 460 International Justice Monitor (2020) The Future of War Crimes Prosecutions in Guatemala. https://www.ijmonitor.org/2020/12/the-future-of-war-crimes-prosecutions-in-guatem ala/. Accessed 2 February 2021. 461 Ibid.

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a third in command chief of military operations under Ríos Montt’s government.462 The proceedings in these cases are expected to continue into 2021.

7.2.3.13

Hungary

The year 2020 ended with the Hungarian courts sentencing, in December, a former ISIS member to life imprisonment with the possibility of parole after 30 years for crimes against humanity and terrorism offenses.463 Faroud was arrested as a result of a coordinated joint investigation of several European national intelligence services and law enforcement agencies, with the involvement of Hungary’s counter-terrorism force (TEK). Faroud commanded a small unit of ISIS fighters in the province of Homs in Syria between 2015 and 2016. He was accused of ordering the occupation of Al-Sukhnah and executing and beheading people who have rejected joining ISIS, including women and children in town.464 Faroud appealed the decision of the court.

7.2.3.14

Italy

In May 2020, a verdict was reached by the Italian courts in regards to the case of Mohammed Condè, Hameda Ahmed, and Mahmoud Ashuia. All three of them were heading a migrants’ detention center in Libya, which was visited by many migrants on their way to Europe.465 They were accused of their role in the kidnapping, torturing, and human trafficking of migrants that came to their detention center. They were found by one of the victims and arrested by the Italian police in Sicily, Italy in September 2019.466 They were sentenced to 20 years in prison.467 Additionally, a judgment is pending in the case of RWM Italia, an Italian arms manufacturer, for arms exports and complicity in murder and bodily injury in Saudi Arabia.468

462

Ibid. Malta Today (2020) Hungary sentences Islamic State terrorist commander with Malta link to life imprisonment. https://www.maltatoday.com.mt/news/court_and_police/106430/islamic_state_terr orist_commander_with_malta_link_sentenced_to_life_in_hungary_#.YC_Q1mhKiUk. Accessed 19 February 2021. 464 Trial International 2020. 465 Ibid., p. 60. 466 Ibid. 467 Ibid. 468 Ibid., p. 61. 463

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Liberia

Despite last year’s endorsement of the creation of the Economic and War Crimes Court by Liberian President George Weah, no further developments were observed during 2020. The Economic and War Crimes Court is meant to prosecute the atrocities committed during the Liberian civil crises and was a direct recommendation of the Truth and Reconciliation Commission (TRC). The Liberian legislature blocked a resolution in support of the court and Liberia failed to submit the report of the progress made in relation to the TRC recommendations. During the 75th UN General Assembly, human rights organizations and several States urged Liberia “to unequivocally commit to the establishment of a war crimes court for Liberia and to request the assistance of the United Nations in creating the court”.469

7.2.3.16

Lithuania

In November 2020, a Belarusian citizen filed a criminal complaint with the Lithuanian authorities for the torture he suffered during custody in Minsk, Belarus.470 Lithuanian officials opened an investigation into the alleged role of the Belarusian regime in the torture of pro-democracy activists.471

7.2.3.17

Netherlands

A Syrian national, Abu Khuder, was charged in 2019 before the Dutch court with war crimes and terrorism. This is the first case in the Netherlands of a foreign national charged with crimes committed during the Syrian war under the principle of universal jurisdiction. Abu Khuder was granted temporary asylum in the Netherlands in 2014 and was arrested by Dutch police in 2019. Khuder is allegedly a former member of Jabhat al-Nusra, a terrorist group, where he held several command positions and was accused of being involved in the capture and execution of a Syrian lieutenant colonel in 2012. Khuder denied all charges. In 2020, Khuder remained in detention while the judges proceeded with the review of Khuder’s case.472 His trial is expected to be held in 2021. The District Court of The Hague is investigating the case of a dual Afghan and Dutch citizen who was allegedly involved in the inhumane treatment of prisoners at 469

Human Rights Watch (2020) Letter to President George Weah on UNGA Speech and Accountability for Past Crimes. https://www.hrw.org/news/2020/09/15/letter-president-george-weah-ungaspeech-and-accountability-past-crimes. Accessed 2 February 2021. 470 Trial International 2020, p. 62. 471 Ibid. 472 Justice Info (2020) Syria: Why Dutch Prosecutors Link Terrorism and War Crimes. https:// www.justiceinfo.net/en/44620-syria-why-dutch-prosecutors-link-terrorism-and-war-crimes.html. Accessed 19 February 2021.

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the Pul-e-Charki prison in Kabul, Afghanistan.473 Another case is pending trial at the High Secure Court in Amsterdam, which is investigating the crimes of a Syrian national and a former commander of the Ahrar al-Sham militant group for war crimes and membership in a terrorist organization.474 Lastly, Eshmetu Alemu who is a Dutch national and a former member of the Provisional Military Administrative Council in Ethiopia requested an appeal for his sentence to a life of imprisonment for war crimes, including arbitrary detention, inhumane treatment, torture, and murder of the regime opponents.475 In 2020, the Dutch government announced its decision to hold the Assad-led Syrian government accountable for gross human rights violations, in particular torture. This is perceived as an important step in the efforts to prosecute crimes committed in Syria since the conflict began in 2011.476 International efforts to bring the Syrian government to account failed repeatedly, among others, with a lacking jurisdiction of the ICC over crimes committed in Syria. Further, the Security Council vetoed in 2014 a resolution that would have given the ICC a mandate in Syria. The Netherlands, however, found a way to bring the dispute under the jurisdiction of the ICJ as a dispute between States where the Netherlands accused Syria of violating the UN Convention against Torture. Under Article 30(1) of the Convention, the ICJ can exercise jurisdiction over the matter if: (a) there is a dispute pertaining to the “treaty’s application or interpretation”: (b) it is unable to get resolved through negotiation, and (c) the parties are unable to agree on arbitration within six months of a request for the same.477 This development brought by the Dutch government has given many victims and human rights organizations hope to end the Syrian government’s impunity for the role it exercised in the conflict.

7.2.3.18

Senegal

Paul Mwilambwe is a Rwandan national and a former officer at the Congo National Police. He is sought after for the alleged participation in the murder of a human rights defender Chebeya and the disappearance of his colleague Bazana committed in the DRC. While Mwilambwe’s trial is pending in Senegal, in 2020, he flew to Belgium where he requested asylum.478

473

Trial International 2020, p. 75. Ibid, p. 76. 475 Ibid, p. 77. 476 Human Rights Watch (2020) The Netherlands’ Action Against Syria: A New Path to Justice. https://www.hrw.org/news/2020/09/22/netherlands-action-against-syria-new-path-justice. Accessed 19 February 2021. 477 Chaudhry V (2021) Will the Netherlands Government succeed in Ending Syrian Government’s Impunity for War Crimes? http://cilj.co.uk/2021/02/10/will-the-netherlands-government-succeedin-ending-syrian-governments-impunity-for-war-crimes/. Accessed 19 February 2021. 478 Trial International 2020, p. 63. 474

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Spain

In September 2020, Spain’s High Court sentenced Inocente Orlando Montano Morales, a former army colonel and Vice Minister of Public Security in El Salvador, to 133 years of prison.479 Montano Morales was found guilty of committing serious crimes under international law during the 1980-1992 internal armed conflict in El Salvador. He was convicted for the murder of five Spanish Jesuit priests in San Salvador. However, the court further held that Montano Morales was responsible for the deaths of another local Jesuit priest, his housekeeper, and her 16-year-old daughter; however, the court could not prosecute the defendant for these crimes since the extradition of Montano Morales from the US to Spain did not cover these crimes.

7.2.3.20

Sweden

Hamid Noury is an Iranian lawyer who allegedly participated in the arbitrary execution and torture of prisoners of the Karaj prison in Iran in the summer of 1988, also known as the 1988 Massacre. The massacre was a result of an order issued by Iran’s leader Rouhollah Khomeini to execute all prisoners supporting the opposition group known as the People’s Mujahedin Organization of Iran (PMOI).480 The number of victims is estimated to be over 5,000. Noury was arrested in Sweden in November 2019 and detained during the investigation. In November 2020, the Swedish prosecutor’s office continued with the hearings of witnesses and the families of the victims.481 This is the first known case against an Iranian official concerning the 1988 Massacre in Iran. Another case is pending trial in the Swedish courts in relation to the complaint filed by Syrian survivors, the European Center for Constitutional and Human Rights (ECCHR), and others.482 The plaintiffs brought the complaint against Syrian senior officials within the government of President Bashar al-Assad for the torture of peaceful protesters in 15 different detention centers between 2011 and 2015. In 2020, all nine survivors who filed the complaint testified.483

479

CBC (2020) Ex-El Salvador military leader sentenced to prison for 1989 murders of 5 priests. https://www.cbc.ca/news/world/spain-trial-el-salvador-war-1.5720378. Accessed 25 February 2021. 480 Trial International 2020. 481 The summary of the hearings is available on National Council of Resistance of Iran (2020) Report of the Judicial Committee of the National Council of Resistance of Iran (No. 2). https://www.ncr-iran.org/en/news/report-of-the-judicial-committee-of-the-national-council-ofresistance-of-iran-no-2/. Accessed 25 February 2021. 482 Trial International 2020. 483 Ibid., p. 67.

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7.2.3.21

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Serbia

In 2020, two Bosnian nationals were tried for crimes committed in Bosnia and Herzegovina during the war in 1992. First, Osman Osmanovic was indicted for inflicting harm and torturing prisoners at the Rasadnik camp.484 Second, the Serbian Higher Court sentenced Husein Mujanovic for abusing and holding in poor conditions prisoners, some of whom were Serbs, during the Bosnian war.485 Six of the prisoners died as a consequence of beatings. Mujanovic, who is a former commander of a military prison in Hrasnica near Sarajevo, was sentenced to ten years in prison. These trials became the center of a controversial political dispute when the Bosnian officials argued that Mujanovic “should be tried in Bosnia for crimes committed in Bosnia”, requested extradition, and alleged that Serbia did not respect the principles of mutual cooperation and assistance for the prosecution of crimes.486

7.2.3.22

Switzerland

In December 2020, the trial of the former Liberian rebel leader, Alieu Kosiah, was resumed by the Federal Criminal Court in the city of Bellinzona, Switzerland.487 This is the first time that a suspect has been tried for war crimes in a non-military criminal court in Switzerland. Kosiah allegedly committed war crimes during the Liberian civil war between 1989 and 2003, including “recruitment and use of a child soldier, forced transportation, looting, cruel treatment of civilians, attempted murder, murder (directly or by order), desecration of a corpse and rape”.488 Kosiah is the first known member of the United Liberation Movement of Liberia for Democracy (ULIMO) tried for crimes committed during the Liberian war.489 He is being tried in Switzerland, a country of his exile, under the principle of universal jurisdiction. Liberian victims and witnesses are expected to testify in February 2021. Gambia’s former Minister of Interior, Ousman Sonko, remains in the custody of the Swiss Federal Court as the investigation continues into alleged crimes against 484

Balkan Insights (2020) Serbia Indicts Bosnian Ex-Soldier for Crimes Against Prisoners. https://balkaninsight.com/2020/02/26/serbia-indicts-bosnian-ex-soldier-for-crimes-againstprisoners/. Accessed 21 January 2021. 485 Balkan Insights (2020) Serbia Convicts Bosniak Military Prison Chief of Violent Abuse. https://balkaninsight.com/2020/07/06/serbia-convicts-bosniak-military-prison-chief-of-vio lent-abuse/. Accessed 21 January 2021. 486 Balkan Insights (2020) Sarajevo Slams Belgrade for Convicting Bosnian of War Crimes. https:// balkaninsight.com/2020/07/08/sarajevo-slams-belgrade-for-convicting-bosnian-of-war-crimes/. Accessed 21 January 2021. 487 BBC News (2020) Alieu Kosiah: Liberian ex-commander faces war crimes trial. https://www. bbc.com/news/world-europe-55172822. Accessed 1 February 2021. 488 Swiss Info (2020) Liberia war crimes tribunal opens in Switzerland. https://www.swissinfo.ch/ eng/liberia-war-crimes-tribunal-opens-in-switzerland/46201002. Accessed 1 February 2021. 489 Human Rights Watch (2020) Liberia: Milestone Swiss Trial for Wartime Atrocities. https://www. hrw.org/news/2020/12/01/liberia-milestone-swiss-trial-wartime-atrocities. Accessed 25 February 2021.

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humanity and torture.490 Sonko was arrested upon his arrival in Sweden in 2017 and charged with crimes against humanity, including torture, extrajudicial executions, and enforced disappearances.491 His investigation was extended several times to allow for the investigation to proceed. In 2020, witnesses were heard and further evidence was gathered.492 Additionally, two other proceedings are pending in the cases of Khaled Nezzar (former chief of staff of the National Popular Army in Algeria) and Rifaat al-Assad (former Vice President in Syria).493

7.2.3.23

United Kingdom

The Metropolitan Police continued to investigate five alleged perpetrators of the Rwandan genocide of 1994, Vincent Bajinya, Célestin Ugirashebuja, Charles Munyaneza, Emmanuel Nteziryayo, and Célestin Mutabaruka. These suspects are currently living in the United Kingdom. Their alleged involvement in the Rwandan genocide ranging from ordering, encouraging, to committing the killings of Tutsis.494 In 2020, a British member of the House of Lords called for these five suspects to be “extradited and face justice” or to proceed promptly with their prosecution in the United Kingdom.495 They were voluntarily questioned by the police, but none were yet arrested.496

7.2.3.24

United States of America

The year 2020 saw major developments in several high-profile cases before the US courts, in which crimes committed in Libya, Haiti, Bolivia, Argentina, The Gambia, and Sri Lanka were investigated and tried. In 2020, three cases were brought before Virginia’s Eastern District Court against Khalifa Haftar, commander-in-chief of the Libyan National Army (LNA).497 The case was brought by Libyan families who accuse Haftar of torture and killings of 490

Swissinfo (2020) Court keeps ex-Gambian minister Sonko behind bars. https://www.swissi nfo.ch/eng/court-keeps-ex-gambian-minister-sonko-behind-bars/45968004. Accessed 12 January 2021. 491 Trial International 2020, p. 68. 492 Ibid. 493 Ibid., pp. 69–72. 494 Trial International 2020. 495 Virunga Post (2020) Genocide suspects living freely in UK should be extradited to face justice!, senior British parliamentarian. https://virungapost.com/genocide-suspects-living-freely-in-uk-sho uld-be-extradited-to-face-justice-senior-british-parliamentarian/. Accessed 25 February 2021. 496 Trial International 2020, p. 80. 497 Al Jazeera (2020) Two families file complaint against Khalifa Haftar in US lawsuit. https:// www.aljazeera.com/news/2020/2/26/two-families-file-complaint-against-khalifa-haftar-in-us-law suit. Accessed 19 February 2021.

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their relatives. Under the 1991 Torture Victim Protection Act, non-US citizens may file lawsuits against individuals who are accused of crimes of torture and extrajudicial killings. Among many other crimes, Khalifa Haftar is accused of having conducted the occupation of the city of Benghazi and ordered “indiscriminate shelling, murders and forced disappearances against the neighborhoods of Al-Laitti, Bu-Atni, and Ganfouda, where many civilians had found refuge”.498 This is not the first lawsuit against Khalifa Haftar. In 2018, when Haftar was for medical reasons in France, victims’ relatives filed a complaint accusing him of the prosecution of genocide, crimes against humanity, war crimes, and torture. Even though the complaints are open and investigations are ongoing in France, Haftar was allowed to return to Libya. Two years later, Khalifa Haftar is facing the same accusations before the US courts and fights for the dismissal of the trial. Most recently, the judge decided to hold the proceedings for 60 days to allow the US State Department to express its position whether Haftar enjoys diplomatic immunity in the US and whether the proceeding with the lawsuit might interfere with the ongoing diplomatic efforts in Libya.499 The response of the US State Department will weigh into the decision whether to proceed with the trial, however, with Khalifa Haftar remaining in Libya, there is a concern that he will not be arrested. In February, the First Circuit Court of Appeals denied the request of the defendant Jean-Morose Viliena, a former Haitian mayor, to challenge the constitutionality of the claims brought against him.500 In 2018, he was accused by several Haitian citizens under the Torture Victim Protection Act of torture and extrajudicial killings. They claimed that Viliena led a violent campaign against human rights defenders and journalists. The decision of the Court of Appeals means that the case will proceed to trial in the months to follow. In August, the US Court of Appeals of the Eleventh Circuit in Miami revived the case against the former President of Bolivia, Gonzalo Sánchez de Lozada, and the former Minister of Defense, Carlos Sánchez Berzaín. The context of the case relates to a mass killing of over 50 civilians, including Aymara indigenous people, in Bolivia during civil unrest in 2003. In 2018, the jury found the two defendants liable for the abovementioned extrajudicial killings under the Torture Victims Protection Act. However, at the discretion of Judge James Cohn, the unanimous ruling of the jury was overturned “citing insufficient evidence to support the case”.501 The case was appealed by the plaintiffs. In 2020, an important ruling was made by the Eleventh Circuit Court of Appeals in which the previous decision was drastically reversed and 498

Trial International 2020. Lawfare Blog (2020) Is a Libyan Warlord Beyond Law’s Reach? https://www.lawfareblog.com/ libyan-warlord-beyond-laws-reach. Accessed 19 February 2021. 500 The Centre for Justice & Accountability (2020) Court of Appeals Allows Torture and Extrajudicial Killing Case Against Former Haitian Mayor to Proceed. https://cja.org/court-of-appeals-all ows-torture-and-extrajudicial-killing-case-against-former-haitian-mayor-to-proceed/. Accessed 25 February 2021. 501 Human Rights at Harvard Law (2021) Mamani v. Sanchez de Lozada and Sanchez Berzain. https://hrp.law.harvard.edu/areas-of-focus/alien-tort-statute/mamani-v-sanchez-de-lozada-and-san chez-berzain/. Accessed 25 February 2021. 499

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the court requested that a new trial be held. Importantly, this case resulted in Eleventh Circuit Court’s clarification under the Torture Victims Protection Act plaintiffs “need not present evidence of the existence of a preconceived, meticulously coordinated plan, campaign, or strategy to kill civilians to demonstrate that the victims were deliberately killed”.502 The case will proceed to the District Court. In October, a case was brought to the US Courts against Roberto Guillermo Bravo, a former Argentine naval officer, who was allegedly involved in the mass murder and torture of sixteen political prisoners at a military base during the 1972 Trelew massacre in Argentina.503 Three survivors of the Trelew massacre were murdered or disappeared upon their unsuccessful attempt to seek justice. Guillermo Bravo retired and was residing in the US as a naturalized citizen. In 2019, the Argentinian authorities filed a request for extradition upon extraction of new evidence against Guillermo Bravo. The extradition request is pending the decision of a Federal District Court in Florida. The case against Guillermo Bravo was brought parallel to the extradition request by the families of the victims to ensure that justice is served. Michael Sang Correa is a former member of the Gambian paramilitary unit Junglers controlled by then-president Yahya Jammeh during his 22-year rule of The Gambia. The Junglers were responsible for “forced disappearances, extrajudicial killings, sexual violence, torture, and arbitrary detention”.504 In 2019, Correa was arrested in the US. In 2020, resulting from the pressure of human rights organizations, he was indicted before the US District Court of Colorado where he pleaded not guilty. The US Department of Justice alleged that Correa is responsible for torture, executions, inhumane treatment, and other notorious international crimes committed as a member of Junglers.505 The trial will continue. Correa’s trial is significant as it would be the first figure tried for the atrocities of Jammeh’s regime.506 Paul Rusesabagina is a Rwandan public figure who sheltered more than 1,200 refugees from paramilitary forces during the Rwandan genocide and since has frequently spoken out against the Rwandan government and the current president Paul Kagame. His story is well-known from Terry George’s film “Hotel Rwanda”. For many years, Rusesabagina lived in Texas. In August 2020, Rusesabagina was misled to return to Rwanda for public hearings at churches and instead was detained

502

United States Court of Appeal for the Eleventh Circuit, Mamani et al. v. Sánchez de Lozada and Sánchez Berzaín, 3 August 2020, Case No. 18-12728, pp. 47–48. 503 The Center for Justice & Accountability (2021) The Trelew Massacre. https://cja.org/what-wedo/litigation/camps-v-bravo/. Accessed 25 February 2021. 504 The Center for Justice & Accountability (2020) Gambia: US Charges Alleged ‘Death Squad’ Member with Torture. https://cja.org/gambia-us-charges-alleged-death-squad-memberwith-torture/. Accessed 25 February 2021. 505 Human Rights Watch (2020) Gambia: US Charges Alleged ‘Death Squad’ Member with Torture. https://www.hrw.org/news/2020/06/12/gambia-us-charges-alleged-death-squad-membertorture. Accessed 12 January 2021. 506 Trial International 2021, p. 83.

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by Rwandan officials on terrorism charges.507 In 2020, he continued to be held by the Rwandan authorities. In response, Rusesabagina filed charges in his place of residence in the US District Court in San Antonio against GainJet Aviation and Constantin Niyomwungere who he claims conspired in unlawful extradition, arbitrary detention, and torture. In December, the US authorities requested an immediate release of Rusesabagina.508 In 2020, the US courts also saw the case of Gotabaya Rajapaksa, Sri Lanka’s former Secretary of Defense and currently a President of Sri Lanka. In 2019, a case against Rajapaksa was brought by the daughter of journalist Lasantha Wickrematunge who accused him of involvement in his father’s killing as part of widespread and systematic targeting of journalists.509 Rajapaksa oversaw the final years of the war between Sri Lanka and the Liberation Tigers of Tamil Eelam (LTTE), during which gross abuses of human rights took place and journalists became targets of harassment and killings. In August 2019, Rajapaksa appealed to the court claiming that he enjoys immunity from prosecution because the alleged conduct happened in his capacity as a Secretary of Defense. In 2020, the Ninth Circuit Court of Appeals delivered the verdict in which it claimed that Rajapaksa enjoys immunity “so long as he remains president”.510 In the early days of 2021, Wickrematunge’s daughter proceeded to file a complaint against the government of Sri Lanka to the UN Human Rights Committee to seek accountability for the killing of her father.511

7.3 Arms Control and Disarmament In this section, we briefly summarize developments in regards to the conventions and treaties aiming at arms control and disarmament. Most notably, 2020 saw the ratification of the Treaty to Prohibit Nuclear Weapons. These developments have a direct influence on States Parties’ obligations in peacetime as well as in conflict, in the case of the latter especially in regards to the selection of weapons, means or methods of warfare.

507

Courthouse News Service (2020) Jailed ‘Hotel Rwanda’ Hero Sues Over Arrest in US Court. https://www.courthousenews.com/jailed-hotel-rwanda-hero-sues-over-arrest-in-uscourt/. Accessed 12 January 2021. 508 Maloney (2020) Maloney Calls on Rwandan President to Immediately Release Paul Rusesabagina. https://maloney.house.gov/media-center/press-releases/maloney-calls-on-rwandanpresident-to-immediately-release-paul. Accessed 12 January 2021. 509 Trial International 2021. 510 The Center for Justice & Accountability (2020) Ninth Circuit Court of Appeals Issues Decision in Case Against Gotabaya Rajapaksa. https://cja.org/ninth-circuit-court-of-appeals-issues-decisionin-case-against-gotabaya-rajapaksa/. Accessed 25 February 2021. 511 The Center for Justice & Accountability (2021) Daughter of Slain Sri Lankan Journalist Seeks Relief From the UN. https://cja.org/daughter-of-slain-sri-lankan-journalist-seeks-relieffrom-the-un/. Accessed 25 February 2021.

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7.3.1 Arms Trade The sixth Conference of the States Parties (CSP) to the Arms Trade Treaty (ATT) was held through a written procedure in August. Argentina, holding the presidency over the CSP, chose information sharing and transparency for preventing the diversion of conventional weapons to unauthorized uses and users as the main subject of the conference.512 In 2020, considerably fewer States submitted their reports of last year’s arms transfers, potentially due to the disruptions caused by the Covid-19 pandemic.513 In 2020, five new States joined and ratified the ATT: Afghanistan, China, Namibia, Niue, and São Tomé and Príncipe.514 China’s accession to the Treaty was wellreceived as it’s the third of the top five global exporters of major conventional weapons. Neither the US nor Russia are parties to the Treaty. By the end of 2020, the ATT had 111 States Parties and 31 additional Signatories; 61 States have not yet joined the treaty.

7.3.2 Conventional Weapons In 2020, the Conventional Weapons Convention (CCW) celebrated its 40th anniversary of adoption. On this occasion, the UN Secretary-General applauded the evolution of the CCW over the years and its continued relevance to “the pursuit of disarmament that saves lives”.515 No new States acceded to the CCW in 2020. The CCW continues to receive support from 125 States Parties and 50 Signatories.516

7.3.2.1

Lethal Autonomous Weapons Systems

Due to the Covid-19 pandemic, the work of the Group of Governmental Experts on Emerging Technologies in the Area of Lethal Autonomous Weapons Systems (LAWS GGE) was severely disrupted; the first meeting was postponed until September and

512

Abramson (2020) ATT Takes on Arms Diversion. https://www.armscontrol.org/act/2020-09/ news/att-takes-arms-diversion. Accessed 15 December 2020. 513 Ibid. 514 ICRC (2020) Statement of Peter Maurer, President of the ICRC, to the sixth Conference of States Parties to the Arms Trade Treaty. https://www.icrc.org/en/document/statement-peter-maurer-presid ent-international-committee-red-cross-icrc. Accessed 15 December 2020. 515 UN Secretary-General (2020) Secretary-General’s message on the Fortieth Anniversary of the Adoption of the Convention on Certain Conventional Weapons. https://www.un.org/sg/en/content/ sg/statement/2020-10-10/secretary-generals-message-the-fortieth-anniversary-of-the-adoption-ofthe-convention-certain-conventional-weapons. Accessed 15 December 2020. 516 Ibid.

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the second was cancelled.517 Notably, Russia did not join the LAWS GGE meetings in 2020 for the first time since the establishment of the forum.518 In 2020, States Parties expressed continued agreement that IHL applies to all weapons systems, reiterated the need to preserve meaningful human control over the use of force, and some called for a legally binding instrument to prohibit and restrict the LAWS.519 Differences in States’ views persist, specifically on the definitions of LAWS, the compliance with IHL principles of distinction, proportionality, and precautions in attack, and the levels of required human control.520 No new decisions were adopted.

7.3.2.2

Cluster Munitions

The year 2020 marked the 10th anniversary since the Convention on Cluster Munitions entered into force. In November, States Parties participated in a virtual first meeting of the Second Review Conference of the Convention on Cluster Munitions. States discussed the universalization of the Convention, in particular, the Philippines and Chile called upon States Parties for stronger global efforts to promote the signing and ratification of the Convention and the efforts to stop the production and use of cluster bombs.521 The second meeting of the Second Review Conference will follow in 2021. The 2020 Cluster Munition Monitor documents a total of 286 cluster munition casualties in the reported year of 2019, a significant increase (92%) compared to the year 2018 with an annual total of 149 cases.522 Civilians accounted for 99% of all cluster munition casualties recorded in 2019.523 A significant majority of casualties (81%) were directly caused by the cluster munition attacks in Syria, representing over a threefold increase of casualties recorded in 2018.524 Shortly before the publication of the 2020 Monitor, in September 2020, new cluster munition attacks were reported

517

Reaching Critical Will 2020a. Lewis (2020) An Enduring Impasse on Autonomous Weapons. Just Security. https://www.justse curity.org/72610/an-enduring-impasse-on-autonomous-weapons/. Accessed 15 December 2020. 519 GGE (2020) Commonalities in National Commentaries on Guiding Principles. https://doc uments.unoda.org/wp-content/uploads/2020/09/Commonalities-paper-on-operationalization-of11-Guiding-Principles.pdf. Accessed 15 December 2020; and Reaching Critical Will 2020b. 520 Lewis (2020) An Enduring Impasse on Autonomous Weapons. Just Security. https://www.justse curity.org/72610/an-enduring-impasse-on-autonomous-weapons/. Accessed 15 December 2020. 521 Philippine Mission to the United Nations and Other International Organizations (2020) Philippines Calls for Stronger Global Push Against Cluster Bombs. https://genevapm.dfa.gov.ph/phi lippine-mission-s-press-releases/871-philippines-calls-for-stronger-global-push-against-clusterbombs. Accessed 16 December 2020. 522 Data is provided as of 23 September 2020. Cluster Munition Monitor 2020, p. 1. 523 Ibid. 524 Ibid., p. 2. 518

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in the Nagorno-Karabakh conflict.525 The 2020 Monitor reports that none of the 16 countries that still produce or reserve the right to produce cluster munitions in 2019 were parties to the Convention, with evidence showing that China and Russia actively increased research and development of new cluster munitions in 2020.526 The year 2020 saw two States, Saint Lucia and Niue, acceding, and São Tomé and Príncipe ratifying the Convention.527 There are now a total of 110 States Parties and 13 Signatories; 74 States have not yet joined the Convention.528

7.3.2.3

Landmines

The Eighteenth Meeting of the States Parties (18MSP) the 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction (the Anti-Personnel Mine Ban Convention) took place virtually in November, presided over by Sudan. The meeting provided an opportunity for States to review exchange best practices, highlight achievements and challenges in implementing key objectives of the Convention and the Oslo Action Plan adopted in 2019.529 The Landmine Monitor 2020 documents that from mid-2019 until October 2020 antipersonnel mines were used by Myanmar and numerous non-State actors on the territories of Afghanistan, Colombia, India, Libya, Myanmar, and Pakistan.530 “In 2019, at least 5,554 casualties of mines/explosive remnants of war were recorded: 2,170 people were killed, 3,357 people were injured, and for 27 casualties the survival status was unknown.”531 A significant majority of casualties (80%) were civilians, with 43% of those represented by children.532 Additionally, the Landmine Monitor 2020 reported that a significant number of States (20 out of 34) provided no victim assistance or relevant disability plans and that survivors’ access to services and economic opportunities were severely limited.533 In January 2020, the US (non-signatory State) announced a new landmine policy which “reversed a previous directive banning the production and limiting the use 525

Gladstone R (2020) Casualties From Banned Cluster Bombs Nearly Doubled in 2019, Mostly in Syria. New York Times. https://www.nytimes.com/2020/11/25/world/middleeast/cluster-bombcasualties-syria.html. Accessed 16 December 2020. 526 Cluster Munition Monitor, p. 4. 527 Ibid., p. 1. 528 Ibid. 529 United Nations (2020) 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. https://www.apminebanconvention.org/fileadmin/APMBC/MSP/18MSP/ 18MSP-final-report-advance_copy-26Nov2020.pdf. 530 Landmine Monitor 2020, p. 1. 531 Ibid., p. 2. 532 Ibid., p. 2. 533 Ibid., p. 4.

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of antipersonnel mines”.534 The US was also found to have invested in private companies’ development of new anti-vehicle mines.535 The new landmine policy was heavily condemned by the States Parties “as an unjustified step backward, at odds with both global recognition of the ban norm and the impact of this indiscriminate weapon on civilians”.536 Amongst others, the European Union officials said that “the use of anti-personnel landmines anywhere, anytime, and by any actor remains completely unacceptable”.537 No States ratified or acceded to the Anti-Personnel Mine Ban Convention in 2020; the Convention has 164 States Parties and one Signatory State.538

7.3.3 Non-conventional Weapons 7.3.3.1

Chemical Weapons

The Conference of the State Parties to the Chemical Weapons Convention (CSP) meets annually in The Hague under the aegis of the Organisation for the Prohibition of Chemical Weapons (OPCW). For 2020, the CSP was organized in two parts. The first part took place from 30 November to 1 December 2020 and the second part is scheduled for April 2021. The Director-General updated the delegates on the progress in the investigation of the use of chemical weapons in Syria.539 In the report released by the Secretariat, the Investigation and Identification Team concluded that chemical weapons were used on three occasions in the Syrian town of Ltamenah in March 2017.540 In pursuant to this the Secretariat further adopted a decision requesting Syria to declare the chemical weapons used in Ltamenah in March 2017541 but these measures were not

534

Ibid., p. 1. Ismay and Gibbons-Neff (2020) 160 Nations Ban These Weapons. The U.S. Now Embraces Them. New York Times. https://www.nytimes.com/2020/02/07/us/trump-land-mines-cluster-mun itions.html. Accessed 16 December 2020. 536 Landmine Monitor 2020, p. 1. 537 Ismay and Gibbons-Neff (2020) 160 Nations Ban These Weapons. The U.S. Now Embraces Them. New York Times. https://www.nytimes.com/2020/02/07/us/trump-land-mines-cluster-mun itions.html. Accessed 16 December 2020. 538 Landmine Monitor 2020, p. 1. 539 OPCW (2020d) Opening Statement by the Director-General to the Conference of the States Parties at its Twenty-Fifth Session on 30 November 2020, C-25/DG.19. 540 OPCW (2020c) Note by the Technical Secretariat on 8 April 2020, S/1867/2020. 541 OPCW (2020a) Decision Addressing the Possession and Use of Chemical Weapons by The Syrian Arab Republic on 9 July 2020, EC-94/DEC.2. 535

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fulfilled.542 Additionally, the OPCW Fact-Finding Mission in Syria released reports on the alleged use of chemical weapons in Aleppo and Saraqib.543 The Director-General also informed the delegates that the membership of the Chemical Industry Coordination Group (CICG) was expanded to include a representative of the International Chemical Trade Association (ICTA). He also emphasized that the chemical industry associations continue to make a major contribution to OPCW capacity building.544 In 2020, CSP meetings were further overshadowed by the attempted murder of a former Russian agent, Mr Skripal and his daughter, and the death of an innocent bystander, Dawn Sturgess, in Salisbury, UK.545 The use of a nerve agent Novichok in this incident that took place in June 2018 triggered an update to the Chemical Weapons Convention (CWC), which in November 2019 was updated to include Novichok agents in the lists of chemicals subject to the treaty’s declaration requirements. The amendment entered into force on 7 June 2020, and obliges Russia, among others, to declare and dismantle facilities that engage in or have engaged in the development, production, or use of the newly banned Novichok agents.546 Further, the Programme to Strengthen Cooperation with Africa on the CWC was extended for its fifth phase from 2020 to 2022. No new States signed or ratified the CWC in 2020.547 There are 193 State Parties to the Convention.548 Four States have not signed or ratified the convention. Out of these South Sudan, Egypt, and North Korea have neither signed nor ratified it, while Israel continues to be a signatory without ratification.549

542

OPCW (2020e) Report by the Director-General, Implementation of EC-94/Dec.2 on Addressing the Possession and Use of Chemical Weapons by The Syrian Arab Republic on 14 October 2020, EC-96/DG.1. 543 OPCW (2020c) Note by the Technical Secretariat Report of the OPCW Fact-Finding Mission in Syria regarding the Incident of Alleged Use Of Chemicals as a Weapon In Saraqib, Syrian Arab Republic, On 1 August 2016 on 1 October 2020, S/1901/2020; OPCW (2020c), Note by the Technical Secretariat Report of the OPCW Fact-Finding Mission in Syria regarding the Incident in Aleppo, Syrian Arab Republic on 24 November 2018 on 1 October 2020, S/1901/2020. 544 OPCW (2020f) Note by the Director-General Engaging the Chemical Industry Associations on 12 November 2020, C-25/DG.14. 545 BBC (2018), Russian spy: What happened to Sergei and Yulia Skripal? https://www.bbc.com/ news/uk-43643025. Accessed 9 August 2021. 546 Arms Control Association (2020) Updating the CWC: How We Got Here and What Is Next. https://www.armscontrol.org/act/2020-04/features/updating-cwc-we-got-here-what-next. Accessed 7 June 2021. 547 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). 548 Ibid. 549 OPCW (2020b) Evolution of the Status of Participation in the Convention, https://www.opcw. org/evolution-status-participation-convention. Accessed 22 December 2020.

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Biological Weapons

The Biological Weapons Convention550 Meeting of the State Parties (Biological Weapons MSP) was scheduled for December 2020 but has been postponed to a date not earlier than April 2021 due to the ongoing Covid-19 pandemic.551 Besides that, 26 March 2020 marked the 45th anniversary of the Convention coming into force. The occasion was marked by a message from the UN Secretary-General who called upon all countries to “reaffirm their unequivocal rejection of the use of disease as a weapon, as well as their commitment to a robust international health security architecture that guarantees the maintenance of peaceful and healthy societies around the world”.552 Statements and other communications were also issued by India, Russia, the US, and the European Union.553 The Convention has 183 State Parties with no new States signing or ratifying it in 2020.554

7.3.3.3

Nuclear Weapons

After decades of negotiations, the Treaty on the Prohibition of Nuclear Weapons555 finally reached the benchmark it needed to become an instrument of international law, with 84 countries that signed the treaty and 50 that ratified it. On 24 October, Honduras became the 50th Member State to join the Treaty.556 According to Article 15(1), the Treaty needed 50 States to ratify it. Thus, with Honduras’ ratification, the Treaty entered into force on 22 January 2021.557 The Treaty is the first to prohibit the development, production, possession, transfer, and use of nuclear weapons. It further 550

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). 551 United Nations (2020) UNODA Meeting Place, Biological Weapons Convention – Meetings of Experts. https://meetings.unoda.org/meeting/bwc-mx-2020/. Accessed on 22 December 2020. 552 UN Secretary General (2020), Secretary-General’s message on the forty-fifth anniversary of the entry into force of the Biological Weapons Convention. https://www.un.org/sg/en/content/sg/ statement/2020-03-26/secretary-generals-message-the-forty-fifth-anniversary-of-the-entry-forceof-the-biological-weapons-convention. Accessed on 22 December 2020. 553 United Nations Office for Disarmament Affairs (2020) Latest News - Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, Latest News. https://www.un.org/disarmament/the-biologicalweapons-convention/. Accessed on 22 December 2020. 554 Ibid. 555 Treaty on the Prohibition of Nuclear Weapons, opened for signature 20 September 2017, C.N.475.2017.Treaties-XXVI.9 (to enter into force on 22 January 2021). 556 United Nations (2017) Notification of Ratification of Treaty on the Prohibition of Nuclear Weapons by Honduras. https://treaties.un.org/doc/Publication/CN/2020/CN.477.2020-Eng.pdf. Accessed on 22 December 2020. 557 Treaty on the Prohibition of Nuclear Weapons, opened for signature 20 September 2017, C.N.475.2017.Treaties-XXVI.9 (to enter into force on 22 January 2021).

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outlines procedures for the destruction of nuclear weapons stockpiles. Notably, Russia, China, UK, France, India, Pakistan, North Korea, and Israel were all absent from negotiations. The UN General Assembly First Committee on Disarmament and International Security was held from October-November 2020. Over the course of the committee meeting, 15 drafts were approved along with its 2021 program of work. First Committee Chair, Agustin Santos Maraver concluded the session by affirming that “we need to convey to the victims of weapons of mass destruction that we have fulfilled our mandate to the best of our abilities”.558 In January 2020, Iran announced that it would only maintain compliance under the Joint Comprehensive Plan of Action (JCPOA) but would not be bound by its operational limits.559 The US Secretary of State, Michael Pompeo, announced that the US would terminate with Iran all remaining sanctions waivers which allowed for the non-proliferation cooperation project.560 He also announced that all UN sanctions previously lifted from Iran in accordance with the nuclear deal were re-imposed on Iran.561 This claim was, however, dismissed by the UN Secretary-General and the several UN States citing the US’s absence of entitlement to any action by virtue of its withdrawal from the JCPOA in 2018.562 A Ministerial Meeting of the participants of the JCPOA was held virtually on 21 December 2020 where the participants reaffirmed their commitment to preserving the agreement.563

7.3.4 Outer Space In November, the UN General Assembly First Committee on Disarmament and International Security approved several drafts aimed at reducing threats in outer space. 558

UN General Assembly (2020a) First Committee Meeting—Concluding Session, First Committee Approves 15 Drafts on Regional Security, Disarmament Machinery, Agrees on 2021 Work Programme, 10 November 2020, U.N. Doc. GA/DIS/3660. 559 Arms Control Association (2020) The Joint Comprehensive Plan of Action (JCPOA) at Glance. https://www.armscontrol.org/factsheets/JCPOA-at-a-glance. Accessed 22 December 2020. 560 U.S. Department of State (2020) Press Statement, Michael R. Pompeo—Keeping the World Safe From Iran’s Nuclear Program. https://www.state.gov/keeping-the-world-safe-from-irans-nuc lear-program/. Accessed 22 December 2020. 561 U.S. Department of State (2020) Press Statement, Michael R. Pompeo—The Return of UN Sanctions on the Islamic Republic of Iran. https://www.state.gov/the-return-of-un-sanctions-onthe-islamic-republic-of-iran/. Accessed 22 December 2020. 562 Motamedi (2020) US claims UN sanctions on Iran reinstated. The world disagrees. https:// www.aljazeera.com/news/2020/9/20/us-claims-un-sanctions-on-iran-reinstated-the-world-dis agrees. Accessed 23 December 2020. 563 European Union External Action Service (2020) Joint Ministerial Statement on the Joint Comprehensive Plan of Action. https://eeas.europa.eu/headquarters/headquarters-homepage_en/ 90907/Joint%20Ministerial%20Statement%20on%20the%20Joint%20Comprehensive%20Plan% 20of%20Action. Accessed 23 December 2020.

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One of the drafts passed would have the UN General Assembly “encourage the Member States to study existing and potential threats and security risks to space systems and share their ideas on the further development and implementation of norms, rules, and principles of responsible behaviors”.564 Russia’s motion opposing the draft on the grounds that the Committee is not competent to approve “a draft resolution on reducing celestial threats through norms, rules, and principles of responsible behaviors” was rejected.565

References Articles, Books, and Other Documents Akande D (2012) Classification of Armed Conflicts: Relevant Legal Concepts. In: Wilmshurst E (ed) International Law and the Classification of Conflicts. Oxford University Press, Oxford Amnesty International (2020/21) The state of the world’s human rights. https://www.amnesty.org/ download/Documents/POL1032022021ENGLISH.PDF. Accessed 20 April 2021 Amnesty International (2021) ‘What I Saw Is Death’: War Crimes in Mozambique’s Forgotten Cape. https://www.amnesty.lu/wp-content/uploads/2021/03/what-i-saw-is-death-moz ambique-report-2021.pdf. Accessed 2 April 2021 Cameron L, Demeyere B, Henckaerts JM, Haye EL, Müller I (with contributions by Droege C, Geiss R, Gisel L) (2016) Article 3: Conflicts Not of an International Character. In: Commentary on the First Geneva Convention, 2nd edn. ICRC, Geneva Centre for International Security and Cooperation, Stanford University (undated) The Afghan Taliban, https://cisac.fsi.stanford.edu/mappingmilitants/profiles/afghan-taliban. Accessed 29 March 2021 Centre for International Security and Cooperation, Stanford University (2018) The Afghan Taliban. https://cisac.fsi.stanford.edu/mappingmilitants/profiles/afghan-taliban. Accessed 29 March 2021 Cluster Munition Coalition (2020) Cluster Munition Monitor. http://www.the-monitor.org/en-gb/ reports/2020/cluster-munition-monitor-2020.aspx. Accessed 16 December 2020 Congressional Research Service (2021) Afghanistan: Background and U.S. Policy: In Brief. https:// fas.org/sgp/crs/row/R45122.pdf. Accessed 29 March 2021 Ferraro T, Cameron L (2016) Article 2: Application of the Convention. In: Commentary on the First Geneva Convention, 2nd edn. ICRC, Geneva Human Rights Watch (2021a) Cameroon: Events of 2020, World Report. https://www.hrw.org/ world-report/2021/country-chapters/cameroon. Accessed 10 May 2021 Human Rights Watch (2021b) Democratic Republic of Congo: Events of 2020, World Report. https://www.hrw.org/world-report/2021/country-chapters/democratic-republic-congo. Accessed 15 April 2021 Human Rights Watch (2021c) Myanmar: Events in 2020, World Report. https://www.hrw.org/worldreport/2021/country-chapters/myanmar-burma#33eba7. Accessed 10 May 2021 Human Rights Watch (2021d) Somalia: Events on 2020, World Report. https://www.hrw.org/worldreport/2021/country-chapters/somalia. Accessed 9 May 2021

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UN General Assembly (2020b), First Committee Meeting - Sending 14 Drafts to General Assembly, First Committee Defeats Motion Questioning Its Competence to Approve One Aimed at Tackling Outer Space Threats, 6 November 2020, U.N. Doc. GA/DIS/3658. 565 Ibid.

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Human Rights Watch (2021e) South Sudan: Events of 2020, World Report, https://www.hrw.org/ world-report/2021/country-chapters/south-sudan. Accessed 19 April 2021 Human Rights Watch (2021f) Syria: Events of 2020, World Report, https://www.hrw.org/world-rep ort/2021/country-chapters/syria. Accessed 19 April 2021 ICC Independent Expert Review (2020) Final report. https://asp.icc-cpi.int/iccdocs/asp_docs/ ASP19/IER-Final-Report-ENG.pdf. Accessed 7 May 2021 ICC The Office of the Prosecutor (2016) Report on preliminary Examination Activities 2016. https:// www.icc-cpi.int/iccdocs/otp/161114-otp-rep-PE_ENG.pdf. Accessed 21 April 2021 ICC The Office of the Prosecutor (2019) Report on Preliminary Examination Activities 2019. https:// www.icc-cpi.int/itemsDocuments/191205-rep-otp-PE.pdf. Accessed 24 January 2021 ICC The Office of the Prosecutor (2020) Report on preliminary Examination Activities 2020. https:// www.icc-cpi.int/itemsDocuments/2020-PE/2020-pe-report-eng.pdf. Accessed 21 April 2021 ICRC (2012) Expert Meeting: Occupation and Other Forms of Administration of Foreign Territory. https://www.icrc.org/en/doc/assets/files/publications/icrc-002-4094.pdf. Accessed 20 May 2021 Inspector General of the Australian Defence Force (2021) Afghanistan Inquiry Report. https://afg hanistaninquiry.defence.gov.au/. Accessed 29 March 2021 International Campaign to Ban Landmines (2020) Landmine Monitor. http://www.the-monitor.org/ media/3168934/LM2020.pdf. Accessed 16 December 2020 OPCW (2020a) Decision Addressing the Possession and Use of Chemical Weapons by The Syrian Arab Republic on 9 July 2020, EC-94/DEC.2 OPCW (2020b) Evolution of the Status of Participation in the Convention OPCW (2020c) Note by the Technical Secretariat on 8 April 2020, S/1867/2020 OPCW (2020d) Opening Statement by the Director-General to the Conference of the States Parties at its Twenty-Fifth Session on 30 November 2020, C-25/DG.19 OPCW (2020e) Report by the Director-General, Implementation of EC-94/Dec.2 on Addressing the Possession and Use of Chemical Weapons by The Syrian Arab Republic on 14 October 2020, EC-96/DG.1 OPCW (2020f) Note by the Director-General Engaging the Chemical Industry Associations on 12 November 2020, C-25/DG.14 OPCW (2020g) Note by the Technical Secretariat Report of the OPCW Fact-Finding Mission in Syria regarding the Incident of Alleged Use Of Chemicals as a Weapon In Saraqib, Syrian Arab Republic on 1 August 2016 on 1 October 2020, S/1901/2020 OPCW (2020h) Note by the Technical Secretariat Report of the OPCW Fact-Finding Mission in Syria regarding the Incident in Aleppo, Syrian Arab Republic on 24 November 2018 on 1 October 2020, S/1901/2020 Philippine Mission to the United Nations and Other International Organizations (2020) Philippines Calls for Stronger Global Push Against Cluster Bombs. https://genevapm.dfa.gov.ph/philippinemission-s-press-releases/871-philippines-calls-for-stronger-global-push-against-cluster-bombs Accessed 16 December 2020 Reaching Critical Will (2020a) CCW Report Vol. 8 No. 1. https://reachingcriticalwill.org/ima ges/documents/Disarmament-fora/ccw/2020/gge/reports/CCWR8.1.pdf Accessed 15 December 2020 Reaching Critical Will (2020b) CCW Report Vol 8. No. 2. https://reachingcriticalwill.org/ima ges/documents/Disarmament-fora/ccw/2020/gge/reports/CCWR8.2.pdf Accessed 15 December 2020 Tony Blair Institute for Global Change (2020) The Mozambique Conflict and Deteriorating Security Situation. https://institute.global/policy/mozambique-conflict-and-deteriorating-security-sit uation. Accessed 7 April 2021 Trial International (2020) Universal Jurisdiction Annual Review 2020. https://trialinternational.org/ wp-content/uploads/2020/03/TRIAL-International_UJAR-2020_DIGITAL.pdf. Accessed 17 February 2021 Trial International (2021) Universal Jurisdiction Annual Review 2021. https://trialinternational.org/ latest-post/ujar-2021/. Accessed 1 November 2021

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UK Ministry of Immigration and Integration (2020) Violent Extremism in West Africa. https:// www.justice.gov/eoir/page/file/1308976/download. Accessed 10 May 2021 UN General Assembly (2020a) First Committee Meeting - Concluding Session, First Committee Approves 15 Drafts on Regional Security, Disarmament Machinery, Agrees on 2021 Work Programme, 10 November 2020, U.N. Doc. GA/DIS/3660 UN General Assembly (2020b) First Committee Meeting - Sending 14 Drafts to General Assembly, First Committee Defeats Motion Questioning Its Competence to Approve One Aimed at Tackling Outer Space Threats, 6 November 2020, U.N. Doc. GA/DIS/3658 UN Security Council (2017a) The situation in Central African Republic, UN Doc. S/PV.7901 UN Security Council (2017b) Resolution 2387, UN Doc. S/RES/2387 UN Security Council (2019) Political Agreement for Peace and Reconciliation in the Central African Republic, UN Doc. S/2019/145 UN Security Council (2020) Annex to the Identical Letters Dated 12 December 2000 from the Permanent Representative of Algeria to the United Nations Addressed to the Secretary-General and the President of the Security Council, UN Doc A/55/686-S/2000/1183 United Nations (2017) Notification of Ratification of Treaty on the Prohibition of Nuclear Weapons by Honduras. https://treaties.un.org/doc/Publication/CN/2020/CN.477.2020-Eng.pdf. Accessed 22 December 2020 United Nations Assistance Mission in Afghanistan and United Nations Human Rights Office of the High Commissioner, Afghanistan (2021) Protection of Civilian in Armed Conflict, Annual Report 2020. https://unama.unmissions.org/sites/default/files/afghanistan_pro tection_of_civilians_report_2020_revs3.pdf. Accessed 29 March 2021

Cases ECtHR, Hanan v Germany, Grand Chamber Statement of Facts, 2 September 2016, Application No. 4871/16 ICC, Situation in the Central African Republic II, Decision on the Prosecutor’s request for reconsideration or, in the alternative, leave to appeal the ‘Decision on the confirmation of charges against Alfred Yekatom and Patrice- Edouard Ngaïssona’, 11 March 2021, Case No. ICC-01/14-01/18 ICC, Situation in the Central African Republic II, Corrected Version of ‘Decision on the confirmation of charges against Alfred Yekatom and Patrice-Edouard Ngaïssona’, 11 December 2019, Case No. ICC-01/14-01/18 ICC, Situation in the Central African Republic II, Decision constituting Trial Chamber V and referring to it the case of The Prosecutor v. Alfred Yekatom and Patrice-Edouard Ngaïssona, 16 March 2021, Case No. ICC-01/14-01/18 ICC, Situation in the Central African Republic II, Prosecution’s Request for Reconsideration of, or alternatively Leave to Appeal, the “Decision on the confirmation of charges against Alfred Yekatom and Patrice Edouard Ngaissona”, 2 March 2021, Case No. ICC-01/14-01/18 ICC, Situation in the Central African Republic II, Public Redacted Version of “Warrant of Arrest for Alfred Yekatom”, 11 November 2018, Case No. ICC-01/14-01/18 ICC, Situation in the Central African Republic II, Public Redacted Version of “Warrant of Arrest for Patrice-Edouard Ngaïssona”, 7 December 2018, Case No. ICC-01/14-02/18 ICC, Situation in the Democratic Republic of the Congo, Judgment, 8 July 2019, Case No. ICC01/04-02/06 ICC, Situation in the Democratic Republic of the Congo, Mr. Ntaganda’s Notice of Appeal against the Judgment pursuant to Article 74 of the Statute, 9 September 2019, Case No. ICC-01/04-02/06 A ICC, Situation in the Democratic Republic of the Congo, Notice of Appeal against Sentencing Judgment, 9 December 2019, Case No. ICC-01/04-02/06 A

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ICC, Situation in the Democratic Republic of the Congo, Second order scheduling a hearing, 20 August 2020, Case No. ICC-01/04-02/06 A A2 A3 ICC, Situation in the Democratic Republic of the Congo, Sentencing judgment, 7 November 2019, Case No. ICC-01/04-02/06 ICC, Situation in the Islamic Republic of Afghanistan, Dissenting opinion to the majority’s oral ruling of 5 December 2019 denying victims’ standing to appeal, 5 December 2019, Case No. ICC-02/17 OA OA2 OA3 OA4 ICC, Situation in the Islamic Republic of Afghanistan, Judgment on the appeal against the decision on the authorisation of an investigation into the situation in the Islamic Republic of Afghanistan, 5 March 2020, Case No. ICC-02/17 OA4 ICC, Situation in the Islamic Republic of Afghanistan, Notification to the Pre-Trial Chamber of the Islamic Republic of Afghanistan’s letter concerning article 18(2) of the Statute, 15 April 2020, Case No. ICC-02/17 ICC, Situation in the Islamic Republic of Afghanistan, Transcript of hearing, 5 December 2019, Case No. ICC-02/17-T-002-ENG ICC, Situation in the Republic of Mali, Judgment on the appeal of Mr Al Hassan against the decision of Pre-Trial Chamber I entitled ‘Décision relative à l’exception d’irrecevabilité pour insuffisance de gravité de l’affaire soulevée par la défense’, 19 February 2020, Case No. ICC-01/12-01/18 OA ICC, Situation in the Republic of Mali, Redacted version of decision confirming charges against Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, 30 September 2019, Case No. ICC-01/1201/18 ICC, Situation in the Republic of Mali, Redacted version of decision to grant Prosecutor’s request to add facts in the charges confirmed against Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, 23 April 2020, Case No. ICC-01/12-01/18 ICC, Situation in the Republic of Mali, Warrant of Arrest for Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, 27 March 2018, Case No. ICC-01/12-01/18 ICC, Situation in the State of Palestine, Order Requesting additional information, 26 May 2020, Case No. ICC-01/18 ICC, Situation in the State of Palestine, Order setting the procedure and the schedule for the submission of observations, 28 January 2020, Case No. ICC-01/18 ICC, Situation in the State of Palestine, Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine, 22 January 2020, Case No. ICC-01/18 ICC, Situation in the State of Palestine, Prosecution Response to the Observations of Amici Curiae, Legal Representatives of Victims, and States, 30 April 2020, Case No. ICC-01/18 ICC, Situation in the State of Palestine, Prosecution Response to “The State of Palestine’s response to the Pre-Trial Chamber’s Order requesting additional information”, 8 June 2020, Case No. ICC-01/18 ICC, Situation in the State of Palestine, The State of Palestine’s response to the Pre-Trial Chamber’s Order requesting additional information, 4 June 2020, Case No. ICC-01/18 ICC, Situation in Uganda, Order Regarding the Closing Statements, 5 February 2020, Case No. ICC-02/04-01/15. ICC, Situation in Uganda, Order Scheduling the Delivery of the Judgment, 12 November 2020, Case No. ICC-02/04-01/15 ICC, Situation in Uganda, Prosecution’s Consolidated Response to the Defence and LRV Requests to Postpone the Delivery of the Judgment, 27 November 2020, Case No. ICC-02/04-01/15 ICC, Situation in Uganda, Public Redacted Version of “Defence Request to Reschedule the Delivery of the Article 74(5) Judgment”, 25 November 2020, Case No. ICC-02/04-01/15 ICC, Situation in Uganda, Victims’ request for postponement of the delivery of the judgment, 27 November 2020, Case No. ICC-02/04-01/15 ICC, Situation in Uganda, Warrant of Arrest for Dominic Ongwen, 8 July 2005, Case No. ICC-02/04 ICC, Situation on the Registered Vessels of the Union of the Comoros, The Hellenic Republic, and the Kingdom of Cambodia, Final decision of the Prosecutor concerning the “Article 53(1)

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Report” as revised and refiled in accordance with the Pre-Trial Chamber’s request of 15 November 2018 and the Appeals Chamber’s judgment of 2 September 2019, 2 December 2019, Case No. ICC-01/13-6-AnxA ICC, Situation on the Registered Vessels of the Union of the Comoros, The Hellenic Republic, and the Kingdom of Cambodia, Application for Judicial Review by the Government of the Comoros, 2 March 2020, Case No. ICC-01/13 ICC, Situation on the Registered Vessels of the Union of the Comoros, The Hellenic Republic, and the Kingdom of Cambodia, Response of the Victims to the “Application for Judicial Review by the Government of the Comoros”, 4 May 2020, Case No. ICC-01/13 ICC, Situation on the Registered Vessels of the Union of the Comoros, The Hellenic Republic, and the Kingdom of Cambodia, Decision on the ‘Application for Judicial Review by the Government of the Comoros’, 16 September 2020, Case No. ICC-01/13 ICC, Situation on the Registered Vessels of the Union of the Comoros, The Hellenic Republic, and the Kingdom of Cambodia, Application on behalf of the Government of the Union of the Comoros for Leave to Appeal the “Decision on the ‘Application for Judicial Review by the Government of the Comoros’, 21 September 2020, ICC-01/13 ICC, The Prosecutor v. Dominic Ongwen, Trial Judgment, 4 February 2021, Case No. ICC-02/0401/15 ICTY, Prosecutor v. Jovica Staniši´c and Franko Simatovi´c, Judgment by the Appeals Chamber, 9 December 2015, Case No. IT-03-69-A ICTY, The Prosecutor v Dusko Tadi´c, Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, Case No. IT-94-1-AR72 ICTY, The Prosecutor v Dusko Tadi´c, Trial Chamber, Judgment, 7 May 1997, Case No. IT-94-1-T IRMCT, The Prosecutor v. Félicien Kabuga, Decision on Félicien Kabuga’s Motion to Amend the Arrest Request to Amend the Warrant of Arrest and Order for Transfer, 21 October 2020, Case No. MICT-13-39-I IRMCT, The Prosecutor v. Félicien Kabuga, Order Assigning a Trial Chamber, 1 October 2020, Case No. MICT-13-39-I IRMCT, The Prosecutor v. Maximilien Turinabo, Anselme Nzabonimpa, Jean de Dieu Ndagijimana, Marie Rose Fatuma, and Dick Prudence Munyeshuli, Notice of Filing Public Redacted Version of the Indictment, 5 June 2018, Case No. MICT-18-116 IRMCT, The Prosecutor v. Maximilien Turinabo, Anselme Nzabonimpa, Jean de Dieu Ndagijimana, Marie Rose Fatuma, and Dick Prudence Munyeshuli, Order on Confirmation of Indictment, 24 August 2018, Case No. MICT-18-116 IRMCT, The Prosecutor v. Maximilien Turinabo, Anselme Nzabonimpa, Jean de Dieu Ndagijimana, Marie Rose Fatuma, and Dick Prudence Munyeshuli and Prosecutor v. Austin Ngirabatware, Decision on Prosecution Motion for joinder of the Ngirabatware and Turinabo et al. contempt cases, 10 December 2019, Case No. MICT-18-116-PT and MICT-19-121-PT SCP-KS, Specialist Prosecutor v, Hashim Thaçi, Kadri Veseli, Rexhep Selimi and Jakup Krasniqi, Further Redacted Indictment, 4 November 2020, Case No. KSC-BC-2020-06 SCP-KS, Specialist Prosecutor v. Hysni Gucati and Nasim Haradinaj, Redacted Indictment, 14 December 2020, Case No. KSB-BC-2020-07 SCP-KS, Specialist Prosecutor v. Salih Mustafa, Public Redacted Version of Indictment, 19 June 2020, Case No. KSB-BS-2020-05 STL, The Prosecutor v. Mr. Ayyah, Mr. Merhi, Mr. Oneissi and Mr. Sabra, Judgment, 20 August 2020, Case No. 11-01/T/TC STL, The Prosecutor v. Mr. Salim Jamil Ayyah, Sentencing Judgment, 11 December 2020, Case No. 11-01/S/TC United States Court of Appeal for the Eleventh Circuit, Mamani et al. v. Sánchez de Lozada and Sánchez Berzaín, 3 August 2020, Case No. 18-12728

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Treaties 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) 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) Treaty on the Prohibition of Nuclear Weapons, opened for signature 20 September 2017, C.N.475.2017.Treaties-XXVI.9 (to enter into force on 22 January 2021)

Table of Cases*

INTERNATIONAL European Court of Human Rights Al-Jedda v United Kingdom, Application No. 27021/08, 7 July 2011, 51n104 Al-Skeini et al. v United Kingdom, Application No. 55721/07, & July 2011, 51n104 Georgia v Russia (II), Application No. 38263/08, 21 January 2021, 51 Hanan v Germany, Application No. 4871/16, ongoing, 213 Jaloud v the Netherlands, Application No. 44708/08, 20 November 2014, 51n104 Extraordinary Chambers in the Courts of Cambodia Ao An Case, Case No. 004, August 2020, 212 Inter-American Court of Human Rights Victims of the Tugboat “13 de Marzo” v Cuba, Case No. 11.436, 16 October 1996, 101n87 International Court of Justice Advisory Opinions Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, 15 December 1989, 110n144 Certain Expenses of the United Nations, 20 July 1962, 109 Competence of the General Assembly for the Admission of a State to the United Nations, 3 March 1950, 109–110 * 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 2022 T. D. Gill et al. (eds.), Yearbook of International Humanitarian Law 2020, Yearbook of International Humanitarian Law 23, https://doi.org/10.1007/978-94-6265-491-4

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248

Table of Cases

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 9 July 2004, 105 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), 21 June 1971, 109, 110 Judgments Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo), 24 May 2007, 65n9 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), 26 February 2007, 110 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Gambia v Myanmar), 23 January 2020, 111, 114n163, 181 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), 14 February 2002, 65n9 Barcelona Traction, Light and Power Company, Limited (Belgium v Spain), 5 February 1970, 94, 100, 101, 111 Continental Shelf (Libyan Arab Jamahiriya v Malta), 3 June 1985, 71n39 Corfu Channel case, 9 April 1949, 92 Dispute Regarding Navigational and Related Rights (Costa Rica v Nicaragua), 13 July 2009, 65n9 Gabˇcíkovo-Nagymaros Project (Hungary/Slovakia), 25 September 1997, 99–100, 102–103 Jurisdictional Immunities of the State (Germany v Italy), 3 February 2012, 71n37, 77n64 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), 27 June 1986, 93–94, 96–97, 111 North Sea Continental Shelf Cases (Federal Republic of Germany v Denmark, Federal Republic of Germany v Netherland), 20 February 1969, 8n17, 67, 80n81 International Criminal Court Prosecutor v Al Bashir, Case No. ICC-02/05-01/09, 13 December 2011, 71 Prosecutor v Gbagbo and Blé Goudé, Case No. ICC-02/11-01/15, 31 March 2021, 203–204 Prosecutor v Ntaganda, Case No. ICC-01/04-02/06, 30 March 2021, 204 Prosecutor v Ongwen, Case No. ICC-02/04-01/15, 4 February 2021, 202–203 Prosecutor v Yekatom and Ngaïssona, Case No. ICC-01/14-02/18, ongoing, 199–200 Situation in the Islamic Republic of Afghanistan, Case No. ICC-02/17, ongoing, 194–195 Situation on the Registered Vessels of the Union of the Comoros, The Hellenic Republic, and the Kingdom of Cambodia, Case No. ICC-01/13, 21 December 2020, 195–196

Table of Cases

249

Situation in the Republic of Mali, Warrant of Arrest for Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, Case No. ICC-01/12-01/18, ongoing, 200– 202 Situation in the State of Palestine, Case No. ICC-01/18, ongoing, 197–198 International Criminal Tribunal for the Former Yugoslavia Prosecutor v Gali´c, Case No. IT-98-29-A, 30 November 2006, 68n22, n23 Prosecutor v Hadžihasanovi´c, Alagi´c and Kubura, Case No. IT-01-47-PT, 12 November 2002, 73n48 Prosecutor v Mladi´c, Case No. IT-09-92, 17 November 2017, 209 Prosecutor v Simic et al., Case No. ICTY-95-9, 27 July 1999, 68n21 Prosecutor v Tadi´c Case No. IT-94-1-AR72, 2 October 1995, 159n3 Case No.IT-94-1-T, 7 May 1997, 159n3 International Criminal Tribunal for Rwanda Prosecutor v Akayesu, Case No. ICTR-96-4, 2 September 1998, 68n24 Kosovo Specialist Chambers Specialist Prosecutor v Gucati and Haradinaj, Case No. KSB-BC-2020-07, ongoing, 211 Specialist Prosecutor v Mustafa, Case No. KSB-BS-2020-05, ongoing, 210 Specialist Prosecutor v Thaçi et al., Case No.KSC-BC-2020-06, ongoing, 210 Residual Mechanism for International Criminal Tribunals Prosecutor v Kabuga, Case No. MICT-13-39-I, ongoing, 206 Prosecutor v Mladi´c, Case No. MICT-13-56, 8 June 2021, 205, 208–209 Prosecutor v Staniši´c and Simatovi´c, Case No. MICT-15-96, ongoing, 205, 208 Prosecutor v Turinabo et. al, Case No. MICT-18-116, ongoing, 205, 207–208 Special Tribunal for Lebanon Prosecutor v Ayyash et al., Case No. 11-01/T/TC, 18 august 2020, 211–212

NATIONAL Argentina Court of Appeals Crimes against Rohingya Case, 214 Court of First Instance Buenos Aires Crimes against Rohingya Case, 213–214

250

Table of Cases

Australia Federal Court of Australia SRYYY v Minister for Immigration & Multicultural & Indigenous Affairs, Case No. N57 of 2004, 17 March 2005, 79n76 Central African Republic Bangui Court of Appeal Anti-Balaka militia case, February 2020, 216 Congo Democratic Republic Military Court of Goma Sheka case, November 2020, 217 Croatia District Court Zadar M.P. et al., Case No. K. 74/96, 24 April 1997, 64n4, 74 Ethiopia Federal High Court Col. Mengistu Hailamariam et al., File No. 1/87, 12 December 2006, 64n4, 74 Finland District Court of Pirkanmaa Camp Speicher massacre case, 2017, 218 Massaquoi case, 1 February 2021, 218 Turku Court of Appeal Camp Speicher massacre case, February 2020, 218 Germany Federal Court Ahmad Zaheer case, 222 Higher Regional Court Hamburg Omaima A. case, October 2020, 221 Higher Regional Court Koblenz Raslan and Eyad case, February 2021, 221

Table of Cases

251

Netherlands District Court The Hague Pul-e-Charki prison (Kabul) case, 226–227 High Secure Court in Amsterdam Ahrar al-Sham commander case, 227 Serbia High Court Mujanovic case, 229 Spain High Court Montano Morales case, September 202, 228 Switzerland Federal Court Sonko case, 229–230 Federal Criminal Court Bellinzona Kosiah case, 229 United States Court of Appeals (1st Circuit) Viliena case, 231 Court of Appeals (9th Circuit) Rajapakse case, 233 Court of Appeals (11th Circuit) Mamani et al. v Sánchez de Lozada and Sánchez Berzaín, Case No. 1812728, 3 August 2020, 231–232 District Court Colorado Correa case, 232 District Court San Antonio GainJet Aviation and Niyomwungere case, 233 Eastern District Court Virginia Haftar case, 230–231

Index*

A 3R group (Return, Reclamation and Rehabilitation group, Central African Republic), 167, 168 1988 Massacre (Iran), 228 A., Abdulhamid, 220 A., Eyad, 221 A., Omaima, 221 AA (Arakan Army, Myanmar), 179–180 Abbas, Mahmoud (Palestinian president), 197 Absence of consent by host states for humanitarian assistance see Non-consensual humanitarian assistance Accuracy, of machine learning algorithms, 140 ACLED (Armed Conflict Location and Event Data Project), on Yemen conflict, 190 Actionable intelligence, machines turning information into, 144 ADF (Ugandan Allied Democratic Forces), 171 Afghanistan armed conflicts in, 159–161 international crimes committed in ICC investigations into, 192, 193, 194–195 prosecution of, 213, 222, 226–227 African Union and Leuven Manual, 41

mediation in Central African Republic conflict, 167 peacekeeping forces in Somalia (AMISOM), 181 Agile Condors (targeting systems), 135, 143–144 Agius, Carmel, 205, 206 Ago, Roberto, 103 Ahlu Sunnah Wa-Jamaor (Mozambique), 178 Ahmed, Abiy, 173 Ahmed, Hameda, 225 Ahrar al-Sham group (Syria), 227 Aircrafts, medical, 13–14 Airspace, national, limits of, 15 Akande, Dapo, 30, 92 Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, 200–202 Al-J, Taha, 220 Alemu, Eshmetu, 227 Alertness, weakened, in reliance on AI tools, 142–143 Algiers Peace Agreement, 173–174 Algorithms, data biases in, 139–140 Alvarado, Cuxum, 223 Ambazonian Defense Forces (ADF, Cameroon), 166 Amesys (company), alleged complicity in international crimes of, 219–220 Amnesty, for crimes committed in Colombia armed conflict, 217

*

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

© t.m.c. asser press and the authors 2022 T. D. Gill et al. (eds.), Yearbook of International Humanitarian Law 2020, Yearbook of International Humanitarian Law 23, https://doi.org/10.1007/978-94-6265-491-4

253

254 Amnesty International, on Mozambique conflict, 178 Amoroso, Alessandro Mario, 37, 50, 51, 54, 55 AMPLE (Air and Missile Program of Legal Education) training courses, 12 Analytical capacities, of humans versus machines, 142 Andela, Jolanda Jackelien, viii Andersen, Jens, 41n34 Ansar al-Shari’a (Yemen), 189 Ansar al-Sunna (Mozambique), 178–179 Ansar Eddine, 201 Ansaroul Islam, 163 Anti-Balaka movement (Central African Republic), 167, 199, 216, 219 Anti-Personnel Mine Ban Convention, 236–237 Anti-satellite technology, availability of, 31 Ao An, 212 Appelman, Suzanne, 39n16 Argentina, prosecution of international crimes committed in, 213–214, 222, 232 Argueta, Noguera, 224 Armed conflicts, 158–159 law of see IHL (International humanitarian law) UN General Assembly on, 108 see also International armed conflicts; Non-international armed conflicts Armenia, armed conflict with Azerbaijan, 161–162 Arms Trade Treaty, 234 ARSA (Arakan Rohingya Salvation Army, Myanmar), 179–180 Artificial intelligence (AI) decision-support systems, non-weaponized, 124, 135, 145–146 military use of, 123, 124, 125–126 and IHL compliance, 124, 136–143, 144–145 legal weapons review obligation for, 123, 124–125, 127, 135–136, 146–149 Arvidsson, M., 145 Ashuia, Mahmoud, 225 al-Assad, Bashar, 186, 228 al-Assad, Rifaat, 230 el Aswadi, Ahmed Hamdane, 220 Attacks cyber, 132n51, 145 terrorist, 161, 166

Index unlawful, by Syrian-Russian military alliance, 185 Austria, prosecutions of international crimes in, 214 Automation bias, 141–142 Autonomous weapon systems (AWS), 124 legal review obligation for, 125, 131 lethal, 234–235 see also Artificial intelligence (AI) decision-support systems Autonomy, of AI technologies, 124n3 Ayyash, Salim Jamil, 211–212 Azerbaijan, armed conflict with Armenia, 161–162 Azov Sea coastline, Russian blockade of, 187 B Bab al-Hawa crossing (Turkish border), for humanitarian assistance to Syria, 87 Bachelet, Michelle, 181 Bagale, Eric Danboy, 219 Bajinya, Vincent, 230 Bakker, Frank, ix Barber, Rebecca, viii Basabose, Pierre, 215 Batarfi, Khaled, 191 Battlefield complexity, and distinction principle, 138–139 Baxter paradox (R.R. Baxter), 30 Bazana, Mr., 227 Belarus, prosecution of international crimes committed in, 226 Belgium, prosecution of international crimes in, 215–216 Bemba, Jean-Pierre, 192 Benatar, Marco, 39n15 Benghazi, 231 Bensouda, Fatou, 193 Berzaín, Carlos Sánchez, 231 Bett, Philip Kipkoech, 192 Biases in algorithm data, 139–140 automation, 141–142 Biller, J.T., 133 Bindingness of manuals, 5, 52 of treaties, 9, 66 of UN Security Council resolutions, 80 Binns, R., 140 Bizimana, Augustin, 205 BNP Paribas Bank, alleged complicity in international crimes of, 219

Index Boeva, Antoaneta, 41n36 Boko Haram Islamist group, 163 in Cameroon, 165–166 in Nigeria, 196 Bolivia, prosecution of international crimes committed in, 231 Bonomy, Iain, 205, 206 Boothby, William H., 39n18, 132, 145 Bosnia and Herzegovina, prosecution of international crimes committed in, 110, 216, 229 Boulanin, V., 139 Bouvier, Edith, 220 Bowett, Derek F., 45 Brammertz, Serge, 205–206 Bravo, Roberto Guillermo, 232 Bretton report, 161 BROUK (Burmese Rohingya Organisation UK), 213–214 Burkina Faso, armed conflict in, 163–165

C Cabo Delgado region (Mozambique), 178 Cabrera, Juan Alecio Samayoa, 224 Cambodia Extraordinary Chambers in the Courts of (ECCC), 212 genocide in, 64n1 UN on situation in, 106 Cameroon, armed conflict in, 165–166 Camp Speicher massacre (Iraq), 218 Canada, legislation on criminalisation of starvation of civilians, 79 Casualties, civilians in armed conflicts in Afghanistan, 159–160, 161 from cluster munitions, 235–236 in Congo Democratic Republic, 171 in Iraq, 176 in Mozambique, 178–179 in Somalia, 182 in Syria, 185 in Yemen, 191 Ceasefire agreements in armed conflicts in Libya, 177 in Nagorno-Karabakh region, 162 in South Sudan, 183 in Syria, 185 in Ukraine, 188 Central African Republic armed conflicts in, 167–168 prosecution of international crimes committed in, 199–200, 216, 219

255 Chebeya, Mr., 227 Chemical Weapons Convention, 237–238 Chicago Convention on International Civil Aviation (1944), 10 Chile, prosecution of international crimes committed in, 222–223 China and development of Manual on Air and Missile Warfare, 11 voting behaviour in UN Security Council on Syrian conflict, 86, 87, 113 Civilian objects, targeting of, 137 Civilians in armed conflicts casualties in Afghanistan, 159–160, 161 from cluster munitions, 235–236 in Congo, 171 in Iraq, 176 in Mozambique, 178–179 in Somalia, 182 in Syria, 185 in Yemen, 191 IHL protection of, viii, 136–139 and direct participation in hostilities concept, 4, 14–15, 137 see also Starvation of civilians Cluster munitions, use of, 235–236 CODECO (Cooperative for the Development of Congo), 172 Codification of law, 6 lex lata in manuals, 3, 5, 6–7, 17, 27, 43–45 Coercion, criterion for prohibited interventions, 95 Cognitive abilities, impact of use of AI tools on, 143 Cohn, James, 231 Colombia armed conflict in, 168–170 prosecution of international crimes committed in, 217 Colvin, Marie, 220 Combatants, targeting of, 136–137 Command responsibility, 49 Comoros, ICC investigation requested by, 195–196 Complementarity principle of ICC Statute, 76, 196 Compliance with IHL, 136 AP I on, 128–129n27 and use of IA decision-support systems, non-weaponized, 124, 136–143, 144–145

256 Compromises, in development of IHL manuals, 14, 15 Condè, Mohammed, 225 Congo Democratic Republic armed conflict in, 170–172 prosecution of international crimes committed in, 204, 215, 217, 220 Connolly, Niall, 217 Consensus on criminalisation of starvation of civilians, 81 in expert groups’ drafting of manuals, 14, 28–29, 50, 51, 56 Consent for humanitarian assistance by host states, 87 absence of see Non-consensual humanitarian assistance requirement of, 88–91, 98 by Syrian government, to Turkish military presence, 186 Control mechanisms, ex-ante, 128 Convention against Torture, Art. 30(1), 227 Convention on Cluster Munitions, 235–236 Convention on Conventional Weapons (CCW), 234 on automatic weapons systems, 131 Group of Governmental Experts on Emerging Technologies in the Area of Lethal Autonomous Weapons Systems, 234–235 on weapons review obligations, 129 for autonomous weapons systems, 125 Convention on the Law of the Sea (United Nations, 1982), 10 Copeland, D., 148 Correa, Michael Sang, 232 Côte d’Ivoire see Ivory Coast Countermeasures, non-consensual humanitarian relief as, 99 Craft, Kelly, 113 Crawford, James, 103–104 Crimea ICJ on situation of occupation in, 114, 188 UN General Assembly on legitimacy of regime in, 11, 106 see also Ukraine, armed conflict in Criminal law domestic, on starvation of civilians, 72–74 see also International criminal law

Index Criminal responsibility individual, for starvation of civilians, 68, 72 of peace operations commanders and civilian superiors, 49 Criminal tribunals, international, statutes of, starvation of civilians in, 67 Criminalisation of starvation of civilians, 64, 66–67, 68 as customary ICL, 65, 68, 69–81 Criteria for determination of legal review of emerging technologies, 123–124, 127, 148–149 for prohibited interventions, 95 Croatia, prosecution of international crimes in, 74 Cubría, Servini de, 214 Customary international law definitions of, 5, 67, 69 ICL, 68 on starvation of civilians, 69–81 identification of, 63, 65, 67, 69 IHL development of, 8–9 in manuals, 3, 5, 6, 7–10, 29–31 starvation of civilians prohibition, 63, 65, 67–68 non-consensual humanitarian assistance not part of, 97–98 non-intervention principle, 93 territorial integrity of states, 93 Cyber attacks, 132n51, 145 by Russia in Ukraine, 187 see also Tallinn Manuals on cyber warfare Cyber capabilities/weapons, legal review of, 132–133

D D., Ahmad Zaheer, 222 Data biases, in algorithms, 139–140 overload, 142 turned into actionable intelligence, 144 Dawn, Sturgess, 238 Decision-making artificial intelligence tools used for see Artificial intelligence (AI) decision-support systems, non-weaponized military, 145

Index Deeks, A., 144 Dembele, Cheick F. Mady, 41n37 Denmark, weapons reviews policies of, 130, 132 Derogations from human rights, in peace operations, permissibility of, 49, 50–51 Dinniss, Heather Harrison, viii Dinstein, Yoram, viii Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law (1974-1977), 115 Direct participation in hostilities, 4, 14–15, 137 Disappearances, enforced, 223 Displaced persons in Sahel region, 163 in Syrian conflict, 187 Distinction principle of IHL, and use of IA decision-support systems, 136–141 Ditrichova-Ochmannová, Petra, 41n36 Diversity, of expert groups, 25, 40, 53 Domestic law, on criminalisation of starvation of civilians, 72–74, 77, 79 Donetsk, People’s Republic of, 187 Döring, Reinhard, 222–223 Dörr, O., 126n10 Dos Erres massacre, 224 Dubey, Shraddha, ix Dubois, Dirk, 42n38 Dyck Advisory Group, 178 E Ekelhof, M., 144 El Salvador, prosecution of international crimes committed in, 228 ELN (National Liberation Army, Colombia), 168–169 Erga omnes obligations, 94, 100–101 and non-consensual humanitarian assistance, 87–88, 102 Eritrea conflict with Ethiopia, 174 involvement in Tigray conflict, 173 Essential interests, 100–101, 102 and necessity justifications, 102–103 Essid, Sabri, 219 Ethiopia armed conflict in, 172–174 conflict with Eritrea, 174 prosecution of international crimes committed in, 74, 227

257 Ethnically Armed Organizations (EAOs), in Myanmar, 179–180 European Center for Constitutional and Human Rights, 221 European Convention on Human Rights Art. 2, 49 Art. 15.2, 49 European Court of Human Rights (ECtHR), cases, 213 European Union, and Leuven Manual, 41 Ex-ante control mechanisms, 128 Expert manuals, vii–viii, 6–7, 11–12, 22 contents of commentary, 15–16, 28–29, 31 rules, 14–15 customary international law identification in, 3, 5, 6, 7–10, 29–31 expert group role of, 14, 22–23, 28–29 selection of, 23–26, 39–40 views of, 31–32, 33 influence of, 12, 21, 24–25, 27, 29, 32, 51–56 on international law development, 21, 23, 27–28, 32–33 proliferation of, 37 use of, 31, 32 extrajudicial killings, 190–191, 223 Extraordinary Chambers in the Courts of Cambodia (ECCC), 212 F FARC (Fuerzas Armadas Revolucionarias de Colombia), 169–170, 217 Faroud, 225 Fatuma, Marie Rose, 207–208 FDLR (Rwandan Democratic Forces for the Liberation of Rwanda), 171 Fenrick, William, 31 Ferraro, Tristan, 41n28 FIDH (International Federation for Human Rights), 219 Finland, prosecution of international crimes in, 218 Fleck, Dieter, 39n18 Force, use of, UN General Assembly on, 107–108 FPRC (Popular Front for the Rebirth (Renaissance) of Central African Republic), 167 Fragmentation of international law, 24 France military presence in Sahel region, 165

258 prosecution of international crimes in, 218–220 public statements on criminalisation of starvation of civilians by, 78 Free Syrian Army see Syrian National Army

G Gambia, prosecution of international crimes committed in, 222, 229–230, 232 García, Luis Enrique Mendoza, 224–225 García, Romeo Lucas, 224 Gaza Strip Israeli interception of humanitarian aid flotilla for, ICC investigation into, 195–196 Israeli military operations in, 174–175 Gbagbo, Laurent, 203–204 Gebremichael, Debretsion, 173 Geiβ, Robin, ix Gender issues in peace operations, Leuven Manual on, 44n56 Geneva Conventions on the Laws of War (1949) Additional Protocol I (API), Protection of Victims of International Conflicts (1977) Art. 28(4), 13 Art. 35, 127, 131 Art. 36, viii, 123, 124–125, 135, 146 –interpretation of, 126–127, 128–134, 146–147 Art. 51(4)(a), 133 Art. 82, 128–129n27, 134, 147 bindingness of, 9 controversial status of, 5–6, 9 on IHL compliance, 128–129n27 –access to legal advice by commanders on, 147 non-parties to –and customary law status, 30 –United States, 6n10 on search and rescue operations, 13 on weapons reviews obligations, 123, 128–134 –for IA decision-support systems, 124–125, 127, 146–149 Additional Protocol II (APII), Protection of Victims of Non-international Armed Conflicts (1977) Art. 14, 74

Index Art. 18, 88 Art. 18(2), 88–89 Common articles Art. 3, 88 Art. 3(2), 88 customary law status/universal bindingness of, 9 Genocide by IS on Yazidis, 219 on Maya Ixil population (Guatemala), 224–225 prevention of, in Myanmar, 11, 114, 181 Rwandan, prosecution of perpetrators of, 205, 206–208 Geographical representation, in expert manual projects, 52–53 Georgia, ICC investigations in, 111 Germany legal weapons reviews policies of, 134 prosecution of international crimes in, 220–223 Ghali, Iyad Ag, 164 Ghana, prosecution of international crimes committed in, 223 Gicheru, Paul, 192 Gill, Terry C., ix, 39n18, 46 Gillard, Emanuela-Chiara, 92, 100 GNA (Government of National Accord, Libya), 176, 177 Golan Heights, UN on legitimacy of Israeli regime in, 107 Gorgon Stare (wide-area surveillance sensor system), 135, 143 Goudé, Charles Blé, 203–204 Governments, consultations with, in development of manuals, 11–12 Greseque, Nabil, 219 Grotius, Hugo, 127 Guatemala, prosecution of international crimes in, 223–225 Gucati, Hysni, 211 Guterres, António, 191, 205

H H., Khaled, 214 Haftar, Khalifa, 176, 230–231 Hague Regulations (1907), on limits on choice of means and methods of warfare, 127–128 Haiti, prosecution of international crimes committed in, 231 Hanan, Abdul, 213

Index Handbook of the Law of Visiting Forces (Fleck ed.), 45 Haradinaj, Nasim, 211 Harari, Rafik, 211, 212 Hassan, Jamil, 221 Hay’at Tahrir al-Sham (Syria), 184 Heathcote, Sarah, 100, 103 Higgins, Rosalyn, 94 Holland, Michel, 145 Hopp, Hartmut, 222–223 Host states, consent of for humanitarian assistance, 87 absence of see Non-consensual humanitarian assistance requirement for, 88–91 Hostilities in Burkina Faso conflict, 163–165 in Colombia conflict, 169 conduct of, impact of AI decision-making support systems on, 143–146, 149 in Ethiopia conflict, 173 in Mozambique conflict, 178–179 in Nagorno-Karabakh conflict, 162 participation by civilians in, 4, 14–15, 137 in Somalia conflict, 182 in Syrian conflicts, 185–186 in Ukraine conflict, 187 in Western Sahara conflict, 189 in Yemen conflict, 190 Houthi rebels (Yemen), 189, 190 HPCR (Harvard) Manual on Air and Missile Warfare (2013), 11 development of, 14–15 reputation of, 12 Rule 87(b), 13 on search and rescue operations, 13 Human rights derogations, in peace operations, permissibility of, 49, 50–51 protection of, humanitarian interventions for purposes of, 97 see also International human rights law Human Rights Watch on extrajudicial killings and enforced disappearances in Gambia, 223 on international crimes committed by Israel in Gaza Strip and West Bank, 174–175 on Nagorno-Karabakh conflict, 162 ‘Human-in-the-loop’ concept, 141n109 Humanitarian assistance, 95–96

259 consent requirement for, 88–91, 98 non-consensual, 112 justifications for, 85, 87 necessity justifications for, 87–88, 102–104, 114–115 UN General Assembly role in, 85, 86, 88, 89, 106–114 as violation of territorial integrity, 92–98 and non-intervention principle, 96–97, 111 humanitarian crises in Central African Republic, 168 in Yemen, 191 Humanitarian interventions, 103–104 Humanitarian Studies Conference (2018), 78 Humanity, crimes against, prosecution of international/hybrid, 199, 203, 204, 208–209, 210 national, 215, 217, 220, 221, 230 Humans, analytical capacities of, 142 Hungary prosecution of international crimes in, 225 UN General Assembly on need for humanitarian assistance to, 108 Hybrid tribunals, 209 prosecution of international crimes by, 210–212 Hybrid warfare, by Russia in Ukraine, 187 I Ibanda-Nahamya, Elizabeth, 206 al-Ibbi, Abu al-Bara, 191 ICC (International Criminal Court) arrest warrants, 199, 202 cases, 192, 199–204 coercive actions and threats by US against, 193 investigations in Afghanistan, 192, 193, 194–195 Comoros request for, 195–196 in Georgia, 111 Iraq/UK, 192 in Myanmar, 181 in Nigeria, 192, 196 in Palestine, 175, 192, 193, 196–198 in Ukraine, 188, 192, 198–199 judges, 193 jurisdiction of in Palestinian Occupied Territories, 197

260 in Ukraine, 198 prosecutors, 193, 194 report on functioning of, 193 State Parties Assembly, 193 Statute of application of, 66–67 Art. 8(2), 79 Art. 8(2)(b)(xxv), 71, 72 Art. 8(2)(c), 79 Art. 12(3), 198 Art. 15, 194 Art. 19(3), 197 Art. 82(1), 194 criminalisation of starvation of civilians in, 63, 64–65, 66, 68, 71–72, 77 customary law status of, 67 Palestine’s accession to, 110, 198 ratifications of, 66, 71–72 ICJ (International Court of Justice) cases Netherlands-Syria dispute over Torture Convention, 227 Ukraine-Russia, 188 jurisprudence on customary law definition, 5, 8, 67, 69 on necessity precluding wrongfulness of an act, 99–100, 102–103 on non-intervention principle, 93, 94, 96 –and humanitarian assistance, 96–97, 111 on territorial integrity of states, 92, 93 on UN General Assembly, powers of, 105, 109–110, 111, 114 Statute of Art. 38(1), 52 Art. 38(1)(b), 5, 8, 69n29, 69n31 ICRC (International Committee of the Red Cross) autonomous weapon systems definition of, 124n1 on consent requirement for humanitarian assistance, 89 Customary International Humanitarian Law Study, 29 on direct participation in hostilities, 4, 14–15 and Leuven Manual, 41

Index on starvation of civilians prohibition, 67, 68–69 on technologies of warfare, 146–147 on weapons reviews obligations, 132, 147 IHL (International humanitarian law) application of to civilians in armed conflict, viii to non-international armed conflicts, consent requirement for humanitarian assistance, 88–90 compliance with, 136 AP I on, 128–129n27 and use of AI decision-support systems, non-weaponized, 124, 136–143, 144–145 customary development of, 8–9 identification in manuals of, 3, 5, 6, 7–10, 29–31 starvation of civilians prohibition as, 63, 65, 67–68 development of, influence of manuals on, 21, 23, 27–28, 32–33, 44 and international criminal law, 68, 69 and international human rights law, 9 lex specialis standing of, 9 manuals, vii–viii, 3, 17, 22 contents of –commentary, 15–16, 28–29, 31 –rules, 14–15 customary law identification in, 3, 5, 6, 7–10, 29–31 development of, 4–5, 14–15 –by experts, vii–viii, 6–7, 11–12, 22–26, 31–32, 39–40 –government consultations, 11–12 errors in/inconsistencies between, 12–14 influence of, 12, 21, 24–25, 27, 29, 32, 51–56 –on international law development, 21, 23, 27–28, 32–33, 44 lex lata codification in, 3, 5, 6–7, 17, 27, 43–45 military, vii, 12–13 –on legal weapons reviews, 134 proliferation of, 37 and treaty law, 9–10 updating of, 16 use of, 31, 32 obligations distinction principle, 136–141

Index on legal weapons reviews, 123, 127, 128–134 –application to AI decision-support systems, 123, 124–125, 127, 135–136, 146–149 on means and methods of warfare, 127–128, 133 starvation of civilians prohibition, 63, 64–65, 66–68 treaties bindingness of, 9 making of, 5–6 and manuals, 9–10 violations of in Nagorno-Karabakh conflict, 162 by non-State actors, 138 starvation of civilians prohibition, 64, 66–67 ILC (International Law Commission), 24 on customary law identification, 65, 69 state practice evidence, 70–71 Draft Articles on the Protection of Persons in the Event of Disasters, 90–91 Draft Articles on the Responsibility of International Organisations, 99, 102 Draft Articles on Responsibility of States for Internationally Wrongful Acts, 99–100, 103–104 Draft Conclusions on Peremptory Norms of International Law, 101, 102 on necessity precluding wrongfulness of an act, 99–100, 102, 103 Immunity from prosecution, for State officials for international crimes, 222 Impunity, for violations of starvation of civilians prohibition, 66–67 Individual criminal responsibility, for starvation of civilians, 68, 72 Intent, in starvation of civilians crime, 68, 71 Interests, essential, 100–101, 102 and necessity justifications, 102–103 International armed conflicts, 158 classifications Ethiopia-Eritrea, 174 Iraq-Turkey, 176 Nagorno-Karabakh conflict, 162 in Syria, 185, 187 in Ukraine, 188 in Western Sahara, 188–189 criminalisation of starvation of civilians in, 76, 81

261 International community, essential interests of, 100–101, 102 International Covenant on Economic, Social and Cultural Rights (ICESR, 1966), on obligation of consent for humanitarian assistance, 90, 91 International crimes prosecution of functional immunity of State officials for, 222 hybrid –ECCC, 212 –Kosovo Specialist Chambers, 210–211 international –ECtHR, 213 –ICC, 196, 199–204 –MICT, 205–209 national, 213–233 torture, 227, 228, 230–231, 232 see also Humanity, crimes against; War crimes International criminal law (ICL) and IHL, 68, 69 on starvation of civilians, 65, 68, 69–70, 69–81 International human rights law application in peace operations of, 44n57, 48–49, 50–51 on consent requirement for humanitarian assistance, 90–91 and IHL, 9 International, Impartial and Independent Mechanism for Syria (UN), 105, 113 International Institute of Humanitarian Law, on non-consensual humanitarian assistance, 98n67 International law customary, 5, 8, 67, 69 identification of, 63, 65, 67, 69 development of, by expert manuals, 21, 23, 27–28, 32–33, 44 fragmentation of, 24 jus cogens/peremptory norms of, 101, 104 International Law Institute, on non-intervention principle, 94 International organisations practice of, and customary law identification, 74–76 responsibility of, and non-consensual humanitarian assistance, 102

262 International Society for Military Law and the Law of War, and Leuven Manual project, 38–39, 40, 42, 47, 52, 56 Internationally wrongful acts, necessity precluding wrongfulness of, 99–104 Interventions humanitarian, 103–104 prohibited, 94–97 see also Non-intervention principle IRA (Irish Republican Army), 217 Iran international nuclear agreement with, 240 prosecution of international crimes committed in, 228 Stuxnet cyber attack in, 132n51 Iraq armed conflict in, 175–176 prosecution of international crimes committed in, 218, 220 US military presence in, 175 IS (Islamic State) group in Greater Sahara (ISGS), 163, 164 in Iraq, 175–176 Khorasan branch (ISIL-KP), 160–161 in Mozambique, 178 prosecution of crimes committed by members of, 219, 220, 221–222, 225 in Syria, 184–185, 187 in West Africa (ISWAP), 163 Israel interception of humanitarian aid flotilla for Gaza Strip by, ICC investigation into, 195–196 occupation of Palestinian territories by, 174–175 ICC investigations into, 175, 192, 193, 196–198 Prize Courts in, 13n34 UN on legitimacy of regime in Golan Heights of, 107 Italy, prosecution of international crimes committed in, 225 Ivory Coast, prosecution of international crimes committed in, 203–204

J J., Nurten, 221–222 Jabkhat al-Nusra (Syria), 184, 226 Jammeh, Yahya, 222, 223

Index JCPOA (Joint Comprehensive Plan of Action, nuclear deal with Iran), 240 Jennings, Robert, 95 Jihadist groups, in Burkina Faso, 163–165 JNIM (Group for the Support of Islam and Muslims, Burkina Faso), 163, 164–165 Johnson, Martina, 216 Johnstone, Ian, 100 Jordán, Gilberto, 224 Jorritsma, Remy, 39n15, 47 Journalists, harassments and killings of, 233 Jurisdiction of ICC, 197, 198 universal, application of in Argentina, 214 in Belgium, 215–216 in France, 218 in Germany, 222 Jurisprudence on customary law identification, 67 on human rights law in peace operations, 51 national, on starvation of civilians prohibition, 74 see also Prosecution Jus cogens norms, 101, 104

K K., Kunti, 219 Kabuga, Félicien, 205, 206 Kagame, Paul, 232 Kampuchea, see Cambodia Karaj prison massacre (Iran), 228 Kessler, O., 24 Khan, Karim, 193 Khomeini, Rouhollah, 228 Khuder, Abu, 226 Kiir, Salva, 182 Klein, Georg, 213 Klonowska, Klaudia, viii, ix Known unknowns, 142 Kondoch, Boris, 45 Kony, Joseph, 202 Korea, UN on legitimacy of regime in (1948), 106–107 Kosiah, Alieu, 229 Kosovo Specialist Chambers, cases, 210–211 Krasniqi, Jakup, 210 Krieger, Heike, ix

Index Krstic, Radislav, 216 Kunduz, airstrike on, 213 Kurds, Turkish military operations against, 176, 185–186 Kyburg, Luis Esteban, 222

L Landmines, convention on prohibition of, 236–237 Law of armed conflict, see IHL (International humanitarian law) Lebanon Special Tribunal, cases, 211–212 Legal advice, access of military commanders to, 147 Leuven Manual on the International Law Applicable to Peace Operations (2017), viii, 35–36, 56 contents of, 36–37, 43–45 criminal responsibility in peace operations, 49 gaps and uncertainties in the law, 50 gender issues in peace operations, 44n56 human rights obligations in peace operations, 44n57, 48–49, 50–51 international refugee law in peace operations, 44n55 refoulement prohibition, 44n54 updating of, 48–50 dissemination of, 45–47 drafting of, 36, 38–39, 42–43 expert group, 39–40, 53 observers to, 41, 53 quality of, 54–55 influence of, 51–56 international support for, 40–41 Rules no. 5.7, 44n57, 48n91, 50 no. 7.1, 44n56 no. 12.4, 49 no. 14.4.1, 44n55 no. 14.4.6, 44n54 no. 16.5, 49n94 no. 20.4, 49 no. 21.3, 49 Lewis, J.A., 133, 144 Lex ferenda, 6, 7 avoidance of, in manuals, 27 Lex lata, codification in manuals of, 3, 5, 6–7, 17, 27, 43–45 Lex specialis, IHL standing as, 9 Liberia, prosecution of international crimes committed in, 216, 218, 219, 226, 229

263 Libya armed conflict in, 176–177 prosecution of international crimes committed in, 219–220, 225, 230–231 Lieber Code (1863), vii Art. 17, 64n2 on starvation of the enemy, 64 Life, right to, as peremptory norm of international law, 101–102 Limitations in choice of means and methods of warfare, 127–128 on human abilities, 142–143 technical, on distinction between civilians and combatants, 139–141 Liptako Gourma region, 163 Lithuania, prosecution of international crimes in, 226 LNA (Libya National Army), 176, 177 Lozada, Gonzalo Sánchez de, 231 Luhansk, People’s Republic of, 187 Lukwiya, Raska, 202 Lumbala, Roger, 220 Lumumba, Patrice, Belgian involvement in assassination of, 215–216

M M., Alaa, 221 Machar, Riek, 182 Machine learning algorithms, military use of, 139–141 Mai-Mai Yakutumba (Congo), 171 Mali, prosecution of international crimes committed in, 200–202 Mando, Bright, 41n37 Manuals on IHL, vii–viii, 3, 17, 22 contents of commentary, 15–16, 28–29, 31 rules, 14–15 customary law identification in, 3, 5, 6, 7–10, 29–31 development of, 4–5, 14–15 by experts, vii–viii, 6–7, 11–12, 22–26, 31–32, 39–40 government consultations, 11–12 errors in/inconsistencies between, 12–14 influence of, 12, 21, 24–25, 27, 29, 32, 51–56 on international law development, 21, 23, 27–28, 32–33, 44 lex lata codification in, 3, 5, 6–7, 17, 27, 43–45 military, vii, 12–13

264 on legal weapons reviews, 134 proliferation of, 37 and treaty law, 9–10 updating of, 16 use of, 31, 32 Maraver, Agustin Santos, 240 Massaquoi, Gibril, 218 Maya Ixil population, crimes committed against, 224 McCauley, Martin, 217 McClelland, J., 144 Meaningful human control (MHC) requirement, for military use of AI technology, 141–143 Means and methods of warfare, 125, 129–130 definitions, 131–134 limitations on choice of, 127–128 technological developments in, 7–8, 133, 135 see also Starvation of civilians Mechanism for International Criminal Tribunals (MICT), 205–206 cases, 206–209 Medical aircrafts, 13–14 Merhi, Mr., 211–212 Methodologies, used in expert manuals, 29–32 Methods of warfare, see Means and methods of warfare Mhlaba, Luke, 41n34 Military commanders, access to legal advice by, 147 Military decision-making, 145, 147–148 Military manuals, vii and expert manuals, 12–13 on legal weapons reviews, 134 Military objects, targeting of, 137 Military operations impact of AI decision-support systems on, 143–146, 149 by Turkish forces, against Kurds, 176, 185–186 Military personnel, search and rescue operations relating to, 13 Mladi´c, Ratko, 208–209 MLCJ (Central African Liberators for Justice Movement), 167, 168 Mochochoko, Phakiso, 193 Monaghan, James, 217 Montano Morales, Inocente Orlando, 228 Montt, Ríos, 225

Index Morocco, occupation of Western Sahara by, 188–189 Mozambique, armed conflict in, 178–179 MPC (Mouvement Patriotique Centrafricain), 167 MQ-9 Reapers (unmanned aerial vehicles), 135 Mujanovic, Husein, 229 Munyaneza, Charles, 230 Munyeshuli, Dick Prudence, 207–208 Mustafa, Salih, 210 Mutabaruka, Célestin, 230 Mwamba, Alexis Thambwe, 215 Mwilambwe, Paul, 227 Myanmar armed conflict in, 179–181 international crimes committed in ICC investigations into, 181, 214 prosecution of, 213–214 possible genocide in, 11, 114, 181

N Naert, Frederik, 41n38 Nagorno-Karabakh conflict (Armenia-Azerbaijan), 161–162 Namibia, UN on legitimacy of regime in, 107 NAS (National Salvation Front, South Sudan), 183 National Democratic Front (South Sudan), 183 NATO (North Atlantic Treaty Organization), and Leuven Manual, 41, 54 Naval blockades, by Russia in Ukraine, 187 Ndagijimana, Jean de Dieu, 207–208 Ndangali, Christophe, 215 NDC (Nduma Defense of Congo), 217 Necessity non-consensual humanitarian assistance based on, 85, 87–88, 102–104, 114–115 precluding wrongfulness of internationally wrongful acts, 99–103 Netherlands Advisory Committee on Public International Law, 100 legal weapons reviews policies of, 130, 131, 134 prosecution of international crimes in, 226–227

Index public statements on criminalisation of starvation of civilians by, 78 Nezzar, Khaled, 230 Ngaïssona, Patrice-Edouard, 199, 200 Ngirabatware, Augustin, 207 NGOs and customary law development, 8 non-consensual humanitarian assistance by, 98 Nicaragua, US support for contras in, 96 Nigeria, ICC investigations in, 192, 196 Niyomwungere, Constantin, 233 Non-bindingness, of manuals, 5, 52 Non-consensual humanitarian assistance, 87, 112 necessity justifications for, 85, 87–88, 102–104, 114–115 UN General Assembly role in, 85, 86, 88, 89, 106–114 as violation of territorial integrity, 92–98 Non-international armed conflicts, 158–159 classifications as in Afghanistan, 160 in Burkina Faso, 165 in Cameroon, 166 in Central African Republic, 168 in Colombia, 169–170 in Congo, 172 in Ethiopia, 173 in Iraq, 176 in Libya, 176–177 in Mozambique, 178, 179 in Somalia, 182 in South Sudan, 183 in Syria, 184, 185 in Ukraine, 187–188 in Yemen, 189–190, 191 IHL applicable to, on consent requirement for humanitarian assistance, 88–90 starvation as means of warfare in, criminalisation of, 73, 76 Non-intervention principle, 93–96 and humanitarian assistance, 96–97, 111 Non-State actors/armed groups activities of in Burkina Faso, 163–165 in Cameroon, 165–166 in Central African Republic, 167–168 in Colombia, 168–170

265 in Congo, 170–172 in Libya, 176 in Mozambique, 178–179 in Myanmar, 179–180 in Somalia, 181–182 in South Sudan, 182 in Syria, 184, 187 in Western Sahara, 188–189 in Yemen, 189–191 and customary law development, 8 IHL violations by, 138 parties to a conflict, 159 Nouri, Mahamat, 218 Noury, Hamid, 228 Novichok (nerve agent), use of, 238 Nowak, Christina, 97–98 NPFL (National Patriotic Front of Liberia), 216 Ntaganda, Bosco, 204 Nteziryayo, Emmanuel, 230 Nuclear weapons, treaty on prohibition of, 233, 239–240 Nullum crimen sine lege principle, 66–67 Nyambe, Prisca Matimba, 209 Nzabonimpa, Anselme, 207–208 O Obligations erga omnes, 94, 100–101 and non-consensual humanitarian assistance, 87–88, 102 of IHL distinction principle, 136–141 on legal weapons reviews, 123, 127, 128–134 –application to IA decision-support systems, 123, 124–125, 127, 135–136, 146–149 on means and methods of warfare, 127–128, 133 starvation of civilians prohibition, 63, 64–65, 66–68 of international human rights law, to consent to humanitarian assistance, 91 Occupation of Palestinian territories by Israel, 174–175 ICC investigations into, 175, 192, 193, 196–198 Russian presence in Crimea amounting to, 114, 188 unlawful, 186 of Western Sahara by Morocco, 188–189

266 Ochlik, Rémi, 220 Odhiambo, Okot, 202 Offensive capabilities, of AI decision-support systems, 144–146, 149 Oneissi, Mr., 211–212 Ongwen, Dominic, 202 OPCW (Organisation for the Prohibition of Chemical Weapons), 237 Opinio juris identification of, 63, 69, 76 for criminalisation of starvation of civilians, 77–80, 81 in manuals, 44–45 requirement for customary law status, 30, 65, 76 Oppenheim’s International Law (Jennings and Watts), 95 Oslo Manual on Select Topics of the Law of Armed Conflict (2020), 11 Rule 115, 14 on search and rescue operations, 14 Osmanovic, Osman, 229 Otti, Vincent, 202 Outer space limits of, 15 reduction of threats in, 240–241 treaty regime on, 30, 31 warfare in, manuals on, 11 Oxford Handbook of United Nations Peacekeeping Operations, 45 Oxford Manual (1880), vii

P Palestine Israeli occupation of, 174–175 ICC investigations in, 175, 192, 193, 196–198 observer status at UN of, 107, 110 UN General Assembly on need for humanitarian assistance to, 108–109 Parties to conflicts, non-state actors, 159 Peace, UN role in maintenance of, 105–106 Peace agreements in Central African Republic, 167 Ethiopia-Eritrea, 173–174 in South Sudan, 182–183 US-Taliban (2020), 160 Peace negotiations in Afghanistan conflict, 160 in Cameroon conflict, 166

Index in Libyan conflict, 177 Peace operations application of refugee law in, 44n55 manuals on see Leuven Manual on the International law Applicable to Peace Operations (2017) of UN, 49, 159–160, 167, 181–182 Peremptory norms of international law, 101, 104 Perfidy, IHL prohibition on, 133 Petrov, Anton Orlinov, 37, 44, 50 PKK (Kurdistan Workers’ Party), Turkish attacks on, 176 PMOI (People’s Mujahedin Organization of Iran), 228 Polisario Front (Western Sahara), 188, 189 Pompeo, Michael, 240 Pouce, Takungomo Mukambilwa Le, 217 Pregnancy, forced, crime of, 203 Prize adjudication requirement for captured vessels of aircrafts, 12 Prize courts, in Israel, 13n34 Project Maven, 139–140 Prosecution of international crimes hybrid ECCC, 212 Kosovo Specialist Chambers, 210–211 Lebanon Special Tribunal, 211–212 international ECtHR, 213 ICC, 196, 199–204 MICT, 205–209 national, 213–233 starvation of civilians, 64, 66–67, 74 torture, 227, 228, 230–231, 232 see also Humanity, crimes against; War crimes Public statements by states, on criminalisation of starvation of civilians, 77–78

Q al-Qaeda, 164 in Arabian Peninsula, 189, 190–191

R Raiya Mutomboki militia group (Congo), 217

Index Rajapaksa, Gotabaya, 233 Rally for National Democracy movement (Congo), 220 Ramsden, Michael, 110 Raslan, Anwar, 221 RCD (Movement for the Liberation of Congo), 215 Refoulement prohibition, Leuven Manual on, 44n54 Refugee law, international, applicability in peace operations of, 44n55 Regimes, UN on legitimacy of, 106–107 Responsibility of individuals, 49, 68, 72 of international organisations, 102 of states, 99–100, 103–104 Rohingya population, violence/crimes against, 181, 213–214 Rome Statute, see ICC (International Criminal Court), Statute of Rusesabagina, Paul, 232–233 Russia involvement in armed conflicts in Nagorno-Karabakh region, 162 in Syria, 185, 186 UN Security Council voting on, 86, 87, 113 in Ukraine, 187 use of nerve agents by, 238 Rwanda genocide, prosecution of perpetrators of, 205, 206–208, 215, 230 unlawful extradition of opponent of regime to, 232–233 RWM Italia (company), alleged complicity in murder and bodily injury of, 225 Ryngaert, Cedric, 92, 98, 100

S Sabra, Mr., 211–212 SADR (Sahrawi Arab Democratic Republic), 188–189 Sahel region displaced persons in, 163 French military forces in, 165 al-Sahrawi, Adnan Abu Walid, 164 Sahrawi People’s Liberation Army, 188–189 San Remo Manual on Armed Conflicts at Sea (1995), 4 contents of Rule 179, 13

267 on search and rescue operations, 13 expert group, 26, 31 influence of, 12–13, 27 lex ferenda in, 27 prototype role of, 14 updating of, 16 Sanctions, imposed by US on ICC prosecutors, 193 on Iran, 240 Sanders, L., 148 Santana, Susana Gatti, 206 Sari, Aurel, 39n16 Saudi Arabia, involvement in Yemen conflict, 190 Schachter, Oscar, 110 Schmalenbach, K., 126n10 Schmitt, Michael, 23, 26, 29, 31, 133 Sea, Convention on Law of, 10 Search and rescue operations, of military personnel, 13–14 Second Marquetalia group (Colombia), 170 Self-defence rights, UN General Assembly on, 108 Selimi, Rexhep, 210 Senegal, prosecution of international crimes in, 227 Separatists groups, in Cameroon, 166 Serbia, prosecution of international crimes by, 229 Sexual violence crimes, prosecution of, 223, 224 al-Shabaab (Mozambique), 178 al-Shabaab (Somalia), 181–182 Sheka, Ntabo Ntaberi, 217 Simatovi´c, Franco, 208 Sivakumaran, Sandesh, 23, 25 Skripal, Mr., 238 Skynet project, 137–138, 139, 140–141 Sochi Agreement (Turkey-Russia, 2019), 186 Soleimani, Qassem, 175 Somalia, armed conflict in, 181–182 Sonko, Ousman, 229–230 Sources of law, and expert manuals, 21, 32, 52 South Africa public statements on criminalisation of starvation of civilians by, 78 UN General Assembly on legitimacy of regime in, 106 need for humanitarian assistance to, 108 South Ossetia, 111

268 South Sudan, armed conflict in, 182–183 South West People’s Organisation (Namibia), 107 Southern Cameroons Defence Force (SOCADEF), 166 Southern Movement (Yemen), 189, 191 Sovereignty of states, non-consensual humanitarian assistance as violation of, 92–98 Spain international crimes committed during Franco dictatorship in, 214 prosecution of international crimes in, 228 Specially affected State doctrine, 30–31 SPLM/A-IO (Sudan People’s Liberation Movement/Army in Opposition), 182, 183 Sri Lanka, prosecution of international crimes committed in, 233 St. Petersburg Declaration (1868), 127 Staniši´c, Jovica, 208 Starvation of civilians criminalisation of, 64, 66–67, 68 customary law status of, 65, 68, 69–81 IHL prohibition on, 63, 64–65, 66, 133 customary law status of, 63, 65, 67–68 see also Means and methods of warfare, starvation State practice analysis of, 126 on legal weapons reviews, 130, 134 identification of, 63, 70–71, 126n9 in manuals, 3, 7, 8–9, 17, 31, 44–45 on starvation of civilians criminalisation/prohibition, 68–69, 71–76, 81 requirement for customary law status, 8, 30–31, 65 States engagement in expert manual production of, 26–27 host, consent for humanitarian assistance by, 85, 87, 88–91 see also Non-consensual humanitarian assistance public statements by, on criminalisation of starvation of civilians, 77–78 responsibility for internationally wrongful acts, 99–100, 103–104

Index specially affected, doctrine on, 30–31 territorial integrity of, 92–98, 103 Stoffels, Ruth, 92 Stuxnet cyber attack, 132n51 Sudan, prosecution of international crimes committed in, 219 Sweden legal weapons reviews policies of, 130 prosecution of international crimes in, 228 public statements on criminalisation of starvation of civilians by, 78 Switzerland legal weapons reviews policies of, 131 prosecution of international crimes in, 229–230 Syria armed conflicts in, 184–187 chemical weapons used in, 237–238 UN involvement with, 105, 113, 114–115 humanitarian assistance to non-consensual, 98 and United Nations, 86–87, 111–115 prosecution of international crimes committed in, 187, 214, 219, 220, 221, 225, 226, 227 Syrian Democratic Forces, 184, 187 Syrian National Army (alliance of rebel forces), 184, 186

T Taliban, 159–160 Tallinn Manuals on the International Law Applicable to Cyber Warfare, 22–23, 26 contents commentary, 28, 29 on legal review of cyber capabilities, 132 Rule 110 (2.0), 132 expert group, 25, 26, 28, 31 influence of, 26–27 and international law development, 27 Targeted killings, by United States, 190–191 Targeting AI decision-support systems for, 135, 143–144, 145 IHL rules on, see Distinction principle of IHL Taylor, Charles, 216

Index Technical limitations, on distinction between civilians and combatants abilities, 139–141 Technological developments knowledge of, 24, 25 in means and methods of warfare, 7–8, 133, 135 Technologies of warfare, 123, 124, 146–147 legal review of, 123–124, 127, 148–149 Territorial integrity, 94–95 as essential interest of states, 103 non-consensual humanitarian assistance as violation of, 92–98 Terrorist attacks, 161, 166 Terrorists executions of, in Iraq, 176 machine identification of, 137–138, 139, 140–141 Thaçi, Hashim, 210 Tigray region (Ethiopia), armed conflict in, 172–174 Tikrit, Camp Speicher massacre, 218 Torture, prosecution of crime of, 227, 228, 230–231, 232 TPLF (Tigray People’s Liberation Front), 172 Training, of machine learning algorithms, 140 Treaties, 6n13 application of, 63 of IHL bindingness of, 9 making of, 5–6 and manuals, 9–10 on starvation of civilians prohibition, 64–65 interpretation of, 126, 129 non-parties to and bindingness of treaties, 66 customary law status determination based on, 30 Treaty to Prohibit Nuclear Weapons, 239–240 Art. 15(1), 239 ratifications, 233, 239 Trelew massacre (Argentina), 232 Trump, Donald, 189 Tululché massacre, 224 Turinabo, Maximilien, 207–208 Turkey, involvement in armed conflicts border conflicts with Iraq, 176 with Syria, 185–186 in Nagorno-Karabakh region, 162

269 Twahirwa, Séraphin, 215

U UAVs (unmanned aerial vehicles), 135 Uganda, prosecution of international crimes committed in, 202–203 Ugirashebuja, Célestin, 230 Ukraine armed conflict in, 187–188 ICC investigations in, 188, 192, 198–199 ULIMO (United Liberation Movement of Liberia for Democracy), 219, 229 United Arab Emirates, involvement in Yemen conflict, 191 United Kingdom legal weapons reviews policies of, 134 prosecution of international crimes in, 230 United Kingdom Manual of the Law of Armed Conflict (2004), 12–13 United Nations Charter Art. 2(4), 31, 92 –interpretations of, 94–95 Art. 11(1), 105 Art. 11(2), 105 Art. 12(1), 105, 109 Art. 13(1), 105 Art. 13(1)(a), 6 Art. 17(2), 109 Art. 103, 44n57 on General Assembly’s recommendatory powers, 105 essential interests of international community safeguarding by, 102 General Assembly First Committee on Disarmament and International Security, 240–241 and non-consensual humanitarian assistance, 85, 86, 88, 89, 106–114 powers of, 105–108, 109–110, 113–114 on prohibited interventions, 95 Resolutions –with determinative effect, 106–107, 109–111, 114 –No. 2625 (1970) Friendly Relations Declaration, 93, 95 –No. 46/182 (1991) Humanitarian system, 89 Human Rights Committee, on right to life, 102 and Leuven Manual, 41, 54

270 Palestine’s observer status at, 107, 110 peace operations in Afghanistan (UNAMA), 159–160 in Central African Republic (MINUSCA), 167 mandates of Security Council for, 49 in Somalia (UNSOM), 181–182 Secretary General, on Syrian armed conflict, 86, 87 Security Council and General Assembly, 109, 113 mandates for peace operations of, 49 and non-consensual humanitarian assistance, 85, 86–87, 98 Resolutions –No. 2164 (2014) Syria, 86 –No. 2417 (2018) Starvation of civilians condemnation, 75–76, 80 –No. 2504 (2020) Syria, 86 –No. 2533 (2020) Syria, 87 starvation of civilians condemnation by, 75–76, 78, 80 voting on Syrian armed conflict, 86, 87, 113 United States defence policies landmine policy, 236–237 legal weapons reviews, 126, 130, 132, 134 non-ratification of AP I, 6n10 support for contras in Nicaragua, 96 targeted killings, 190–191 foreign policies coercive actions and threats against ICC, 193 nuclear deal with Iran, 240 recognition of Moroccan sovereignty over Western Sahara, 189 Military forces in Afghanistan, 160 in Iraq, 175 in Somalia, 181 prosecution of international crimes in, 230–233 Universal jurisdiction principle application of in Argentina, 214 in Belgium, 215–216 in France, 218 in Germany, 222 UPC (Union for Peace in Central African Republic), 167

Index V Vanheusden, Alfons, viii Verdiesen, I., 128 Veseli, Kadri, 210 Vestner, Tobias, 37, 50, 51, 54, 55 Vienna Convention on the Law of Treaties Art. 2(1)(a), 6n13 Art. 31, 126 Art. 38, 66 definition of treaties in, 6n13 on interpretation of treaties, 126, 129 Viliena, Jean-Morose, 231 Villa, Rodolfo Martín, 214 Violations of IHL in Nagorno-Karabakh conflict, 162 by non-State actors, 138 starvation of civilians prohibition, 64, 66–67 of territorial integrity, non-consensual humanitarian assistance as, 92–98 Violence intensity of, 179 sexual, prosecution of, 223, 224 Voting among expert groups in drafting of manuals, 28 in UN Security Council, on Syrian conflict, 86, 87, 113 W W., Jennifer, 220 War crimes commission of in Afghanistan, by Australian defence forces, 161 in Mozambique, 178 in Myanmar, 181 in Palestinian occupied territories, 196–197 in Syria, 185 ICC Statute on, 79 prosecution of by ICC, 199, 200–201, 203, 204 by Kosovo Specialist Chambers, 210 by MICT, 208–209 national, 217, 227, 229 Warfare hybrid, by Russia in Ukraine, 187 means and methods of, 125, 129–130 definitions of, 131–134 limitations on choice of, 127–128 starvation of civilians, 64, 66

Index –UN Security Council condemnation of, 75–76 technological developments in, 7–8, 133, 135 in outer space, manuals on, 11 technologies of, 123, 124, 146–147 legal review of, 123–124, 127, 148–149 Watts, Arthur, 95 Weah, George, 226 Weapons, 125, 130–131 chemical, 237–238 legal reviews of of cyber capabilities, 132 IHL obligation of, 123, 127, 128–134 –application to AI decision-support systems, 123, 124–125, 127, 135–136, 146–149 by United States, 126n12 nuclear, treaty on prohibition of, 233, 239–240 Weapons systems, 130–131 autonomous, 124, 125, 131, 234–235 legal review of, 134 Werner, W.G., 24 West Bank, Israeli occupation of, 174–175

271 Western Sahara, Moroccan occupation of, 188–189 White, Nigel D., 45, 110 Wickrematunge, Lasantha, 233 Williams, Stephanie, 177 Woomera Manual on the International Law of Military Space Operations drafting of, 27, 28–29 State engagement in production of, 26 Wrongfulness, of internationally wrongful acts, precluded by necessity, 99–104

Y Yazidis, prosecution of crimes committed against, 219, 220, 221–222 Yekatom, Alfred, 199–200 Yemen, armed conflict in, 74, 189–191 Yugoslavia conflict, prosecution international crimes committed in, 110, 208–209, 216, 229

Z Zadar, shelling of, 74 Zaidan, Ahmad Muaffaq, 140