Yearbook of International Humanitarian Law, Volume 25 (2022): International Humanitarian Law and Neighbouring Frameworks (Yearbook of International Humanitarian Law, 25) 9462656185, 9789462656185

Table of contents :
Editorial Board
Editorial
Contents
Part I International Humanitarian Law and Neighbouring Frameworks
1 You Say Precautions, I Say Prevention: Towards the Systemic Integration of International Humanitarian Law and International Environmental Law
1.1 Introduction
1.2 The International Legal Order: Fragmentation, Interpretation and Harmonisation
1.2.1 Article 31(3)(c) VCLT: Requirements
1.2.2 Purpose, Use and Limitations
1.2.3 The Harmonisation of IHL and IEL: Developments
1.3 The General Targeting Framework and the Environment
1.3.1 Application of General Rules to the Environment
1.4 The IEL Prevention Principle and Systemic Integration
1.4.1 Satisfying the Requirements of Article 31(3)(c) VCLT
1.5 “Taking into Account” the Prevention Principle to Interpret the IHL Rules
1.5.1 Precautions in Attacks
1.5.2 Precautions Against the Effects of Attacks
1.5.3 Achieving Systemic Integration in Reality: Where Next?
1.6 Conclusion
References
2 International Humanitarian Law and International Investment Law: Mapping a Developing Relationship
2.1 Introduction
2.2 The Protection of Property Under International Humanitarian Law
2.2.1 The Notion of Armed Conflict
2.2.2 Protection of Property and the Notion of Military Necessity
2.2.3 Protection from the Effects of Attacks
2.3 The Protection of Foreign Investments Under International Investment Law in the Context of Armed Conflict
2.3.1 Continuity During Armed Conflict
2.3.2 Overview of Relevant Investment Protection Standards
2.4 Norm Conflict or Symbiosis?
2.4.1 Normative Conflicts
2.4.2 Treaty Interpretation
2.4.3 The Impact of International Humanitarian Law on Investment Treaties
2.5 Conclusion
References
3 Defences to State Responsibility in International Humanitarian Law
3.1 Introduction
3.2 Two Premises: Jus Cogens and Lex Specialis
3.3 Consent
3.3.1 Inter-state Consent
3.3.2 Non-state Actor Consent
3.4 Self-defence
3.5 Countermeasures
3.6 State of Necessity
3.7 Distress
3.8 Force Majeure
3.9 Conclusion
References
4 Thinking with IHL in Contexts of Counterterrorism: The Case of Criminal Justice Systems in the Sahel
4.1 Introduction
4.2 Prosecutions in the Sahelian Context: With Counter-Terrorism Laws, Without IHL
4.3 Prosecuting Without IHL: Examining the Pitfalls of Counter-Terrorism Based Prosecutions
4.4 Prosecuting With IHL: A Way to Protect Humanitarian Actors
4.5 Prosecuting With IHL: What Does It Look Like?
4.6 Concluding Remarks
References
Part II Focus Section: International Humanitarian Law, and the Russian Aggression Against Ukraine
5 Who is at War? On the Question of Co-belligerency
5.1 Introduction
5.2 Assistance and Co-belligerency
5.3 Revisionism
5.4 The Humanitarian View: Reducing Suffering
5.4.1 The Case for (and Against) Disobedience
5.4.2 Peace, Suffering, and the Rights of the Innocent
5.5 Conclusion
References
6 “Inside” and “Outside”: Assessing the Russian Blockade Against Ukraine
6.1 Introduction
6.2 The Basic Legal Framework
6.3 How to Assess the Russian Blockade of Ukraine?
6.4 Conclusion
References
7 Heads of State as War Criminals: The Prospects and Challenges of Tracing War Crimes to Senior Political Leaders in Russia
7.1 Introduction
7.2 Joint and/or Indirect Perpetration
7.3 Ordering
7.3.1 The Potential Elusiveness of Direct Orders
7.3.2 Establishing the Existence of Orders from the Existence of a Pattern of War Crimes
7.4 Command/Superior Responsibility
7.4.1 Does Putin Have Effective Control Over the Russian Armed Forces?
7.4.2 What Kind of “Superior” Is the Head of State?
7.4.3 What Does a Head of State Need to Know to Be Liable?
7.4.4 The Crimes Were Committed as a Result of a Failure to Exercise Control Properly
7.4.5 What Counts as a Failure to Take All Necessary and Reasonable Measures within One’s Power?
7.5 Conclusion
References
Part III Year in Review
8 Year in Review 2022
8.1 Armed Conflicts and Related Developments
8.1.1 Afghanistan
8.1.2 Burkina Faso
8.1.3 Colombia
8.1.4 Ethiopia
8.1.5 Israel/Palestine
8.1.6 Nagorno-Karabakh (Artsakh)
8.1.7 Kyrgyzstan/Tajikistan
8.1.8 Myanmar
8.1.9 Niger
8.1.10 South Sudan
8.1.11 Ukraine
8.1.12 Yemen
8.1.13 Other Potential Conflicts
8.2 Courts and Tribunals
8.2.1 International Courts
8.2.2 Hybrid and Regional Courts and Tribunals
8.2.3 Human Rights Courts and Bodies
8.2.4 National Courts
8.3 Arms Control and Disarmament
8.3.1 Arms Trade
8.3.2 Conventional Weapons
8.3.3 Non-conventional Weapons
8.3.4 Other Developments
References
Table of Cases
Index

Citation preview

Yearbook of International Humanitarian Law 2022

Yearbook of International Humanitarian Law Volume 25

Editor-in-Chief Heike Krieger, Department of Law/Public Law, Free University of Berlin, Berlin, Germany Series Editors Pablo Kalmanovitz, International Studies Department, Instituto Tecnológico Autónomo de México (ITAM), Mexico City, Mexico Eliav Lieblich, Buchmann Faculty of Law, Tel Aviv University, Tel Aviv, Israel Managing Editor Stavros Evdokimos Pantazopoulos, T.M.C. Asser Instituut, The Hague, The Netherlands

The Yearbook of International Humanitarian Law is a leading annual publication devoted to the study of international humanitarian law. It provides a truly international forum for high-quality, peer-reviewed academic articles focusing on this crucial branch of international law. Distinguished by contemporary relevance, the Yearbook of International Humanitarian Law bridges the gap between theory and practice and serves as a useful reference tool for scholars, practitioners, military personnel, civil servants, diplomats, human rights workers and students.

Heike Krieger · Pablo Kalmanovitz · Eliav Lieblich · Stavros Evdokimos Pantazopoulos Editors

Yearbook of International Humanitarian Law, Volume 25 (2022) International Humanitarian Law and Neighbouring Frameworks

Editors Heike Krieger Department of Law/Public Law Free University of Berlin Berlin, Germany Eliav Lieblich Buchmann Faculty of Law Tel Aviv University Tel Aviv, Israel

Pablo Kalmanovitz Department of International Studies Instituto Tecnológico Autónomo de México (ITAM) Mexico City, Mexico Stavros Evdokimos Pantazopoulos T.M.C. Asser Instituut The Hague, The Netherlands

The views expressed in this Yearbook are not necessarily those of the members of the Editorial Board, the Board of Advisors to the Editorial Board, the Board of Recommendation and/or those institutions they represent, including the T.M.C. Asser Instituut and t.m.c. asser press. ISSN 1389-1359 ISSN 1574-096X (electronic) Yearbook of International Humanitarian Law ISBN 978-94-6265-618-5 ISBN 978-94-6265-619-2 (eBook) https://doi.org/10.1007/978-94-6265-619-2 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 2024 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 art: vs148 via Shutterstock (https://www.shutterstock.com/image-vector/cyber-technology-innova tion-background-idea-global-1666515409). 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 Paper in this product is recyclable.

Editorial Board General Editors Prof. Heike Krieger (Editor-in-Chief), Free University of Berlin Prof. Pablo Kalmanovitz (Editor), Instituto Tecnológico Autónomo de México (ITAM), Mexico City Prof. Eliav Lieblich (Editor), Tel Aviv University Managing Editor Dr. Stavros Evdokimos Pantazopoulos, T.M.C. Asser Instituut, The Hague Editorial Assistants Belén Guerrero Romero, T.M.C. Asser Instituut, The Hague

Board of Advisors to the Editorial Board Dr. Louise Arimatsu, Centre for Women, Peace and Security, London School of Economics Dr. William Boothby, Geneva Centre for Security Policy Prof. Geoffrey Corn, Texas Tech University School of Law Dr. Hanne Cuyckens, Leiden University College Dr. Cordula Droege, International Committee of the Red Cross BGen. Prof. Paul Ducheine, Netherlands Defence Academy/University of Amsterdam Prof. Dr. Wolff Heintschel von Heinegg, Europa Universit¨at Viadrina, Frankfurt (Oder) Prof. Dr. Jann K. Kleffner LL.M., Swedish Defence University Prof. Dr. Nils Melzer, International Committee of the Red Cross/University of Glasgow Prof. Dr. 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, Lieber Institute West Point/Just Security Dr. Kinga Tibori-Szab´o, UN Iraq BGen. Kenneth W. Watkin (Ret’d)/Former Judge Advocate General, Canada Prof. Dr. Gentian Zyberi, Norwegian Centre for Human Rights

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

Guest Reviewers Prof. Dr. Andrew Clapham, Geneva Graduate Institute Dr. Tom Dannenbaum, Fletcher School of Law and Diplomacy Dr. François Delerue, IE University Dr. Julia Grignon, Institut de Recherche Stratégique de l’École Militaire/Commission Nationale Consultative des Droits de l’Homme de la Republique Française Prof. Adil Haque, Rutgers Law School Prof. Dr. Karen Hulme, University of Essex Dr. Miles Jackson, University of Oxford Dr. Ira Ryk-Lakhman, OA Consultants Dr. Britta Sjöstedt, Lund University Dr. Marie-Louise Tougas, International Committee of the Red Cross Dr. Sharon Weill, The American University of Paris/Sciences Po Paris Dr. Jure Zrilic, City University of London

Editorial

When modern international humanitarian law (IHL) began to take form in the nineteenth century, it emerged as the main, if not sole, regulatory framework that governed belligerent conduct during war. Amongst others, according to a traditional—but never undisputed—view, a formal state of war terminated all treaties in force between the belligerents. Of course, specific rules of the laws of war always had their ambiguities, and the mere notion of war was and still remains contested. Nonetheless, it was at least clear that when war was formally declared, belligerents and third parties were to look to the rules of jus in bello (supplemented by the laws on neutrality) for guidance. Nowadays, however, this is far from the case. It is widely agreed that armed conflict does not ipso facto terminate treaties. More importantly, the twentieth century saw a dramatic increase in both substantive international legal frameworks and institutions of global governance. This “fragmentation” of international law has been frequently observed, questioned, decried, or celebrated. For better or for worse, it is clear today that all situations of armed conflict requiring international legal attention are regulated by more than just one international legal framework, as well as by a variety of formal and non-formal frameworks of global governance. Take, by way of example, the international law of belligerent occupation. In the past, the occupant’s powers and duties were circumscribed by its obligation to ensure public order and safety in the territory, as reflected in the general and specific provisions of the Fourth Geneva Convention.1 Today, each measure undertaken by the occupant may be additionally subject to diverse legal sources, such as international environmental law or international economic law, as well as to a myriad of other international legal instruments. While this development has, of course, not been lost on scholars and practitioners of IHL, the traditional preoccupation within IHL has been on its relations with international human rights law, the law on the use of force ( jus ad bellum), and international criminal law. Accordingly, many judicial decisions and countless 1

Geneva Convention Relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, UNTS 973 (entered into force 21 October 1950), Article 64. vii

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scholarly publications have addressed the interactions between these bodies of law. Much less attention has been given to the relations between IHL and other normative frameworks which are no less important during armed conflict. This volume contributes to begin filling this gap. Our open call invited authors to discuss, both in general and specific terms, doctrinally and theoretically, interactions between IHL and other neighbouring frameworks, such as international environmental law; the law on foreign investor protection; international organizations law; counterterrorism; world trade law; the law of the sea, and more. The volume contains four chapters dedicated to IHL and neighbouring legal frameworks. In Chap. 1, Yiokasti Mouratidi assesses whether and how the prevention principle under customary international environmental law can be utilized to interpret precautionary duties under IHL in the conduct of hostilities. The analysis centres around the concept of systemic integration under Article 31(3)(c) of the Vienna Convention on the Law of Treaties. Analysing IHL’s targeting rules from the perspective of environmental harm, the author argues that there are still considerable loopholes and interpretative uncertainties within the legal frameworks, for instance concerning the interpretation of Article 58 Additional Protocol I to the 1949 Geneva Conventions. Building on the prevention principle and its due diligence standard under international environmental law, Mouratidi exemplifies how due diligence obligations could concretize belligerents’ obligations under IHL. For example, she argues for applying a simplified version of the procedural duties stemming from Environmental Impact Assessments to targeting decisions. In order to make such suggestions practically workable, the author calls for the implementation of more concrete guidelines at the domestic level. In Chap. 2, Tobias Ackermann and Sebastian Wuschka analyse the developing and relatively uncharted relationship between IHL and international investment law. As they argue, treaties for the protection of foreign investments continue to apply alongside IHL during armed conflict. Ackermann and Wuschka survey arbitral awards rendered in recent years in this context and delve into the possible interactions between such fields of international law. Normatively, the authors claim that IHL should affect the interpretation of investment treaties in order to prevent normative inconsistencies. Chapter 3 by Federica Paddeu and Kimberley Trapp analyses the relationship between IHL and the International Law Commission’s Articles on State Responsibility. It specifically considers whether the general defences in the law of state responsibility—namely, consent, self-defence, countermeasures, force majeure, distress, and state of necessity—apply to state violations of IHL. Their central claim is that only force majeure can have some legal effect, if only marginal, in the context of hostilities. Overall, the authors suggest that IHL either directly precludes the application of some defences (including consent or self-defence) or operates as the lex specialis in relation to the more general law contained in the Articles on State Responsibility—that is, IHL specifies the content of the defences under the particular circumstances of hostilities (e.g. countermeasures as reprisals or distress as necessity).

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In Chap. 4, Julien Antouly and Rebecca Mignot-Mahdavi address the complex interactions between IHL, international counter-terrorism law, and domestic criminal law. Their discussion is grounded in the Sahel region, where multiple terrorist groups and several state forces have been involved in armed conflicts for over a decade now. Leveraging their close knowledge of domestic prosecutions associated with the Sahel conflicts, the authors document generalized neglect of IHL in domestic fora as well as excessive reliance on the “pre-emptive criminal policies” enabled by the counterterror framework. While opposing a lex specialis treatment of IHL relative to counterterrorism, Antouly and Mignot-Mahdavi do argue for giving IHL a more prominent normative role in domestic prosecutions, both as a way to introduce basic due process guarantees in criminal proceedings and to protect humanitarian actors from the overreach of counterterrorism laws. Volume 25 includes, for the second consecutive time, a “Focus Section”. While Volume 24’s focus comprised a mini-symposium on Samuel Moyn’s book Humane, we decided to dedicate Volume 25’s Focus Section to current events, specifically to IHL controversies arising from Russia’s aggression against Ukraine. The war is still raging, and grave, self-evident violations of IHL are one of its tragic features. In the section, we identified some liminal questions that are especially vexing from a legal perspective. Marcela Prieto Rudolphy in Chap. 5 discusses the question of co-belligerency. Owing to the vast support received by Ukraine from third parties, mainly through the transfer of military equipment, a pressing question is whether—and under what circumstances—these third states may become parties to the conflict. To add a fresh perspective on the issue, Prieto Rudolphy takes a step back and addresses the topic through the lens of the ethics of war. For this purpose, she analyses what impact revisionist stances, such as those expressed by McMahan, exert on the concept of co-belligerency—a standpoint that has so far not been explored in the pertinent literature. She identifies certain tensions between these perspectives and doctrinal IHL approaches and suggests that a “humanitarian view” can relieve some, albeit not all, of such frictions. According to this author, the remaining tensions eventually exhibit the “fraught moral compromise” on which contemporary IHL is built. Alejandro Chehtman and Eduardo Rivera López in Chap. 6 address the Russian blockade against Ukraine and, in particular, the underexplored question whether the rules concerning naval blockades are set out to exclusively protect the blockaded population, or rather, if they should additionally protect individuals in third-party states. In the Ukrainian context, this question is imperative since the blockade significantly disrupts the export of grains from Ukraine, which are essential for global food supply chains. While the authors acknowledge that the laws on blockades should take into account harms to those “outside” the blockaded area, they are sceptical as to whether the harm to third parties in the specific case of the Russian blockade amounts in and of itself to a violation of IHL. As Chehtman and Rivera López argue, a wider perspective should be upheld in order to understand the diverse factors that drive food prices up high globally, within which the Russian blockade is but one of those factors. Still, they argue that the blockade may be deemed unlawful by having established itself as a constitutive element of Russia’s aggression.

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The third contribution to our focus is Chap. 7 by Frédéric Mégret and Camille Marquis Bissonnette, which discusses legal avenues through which Vladimir Putin could be brought to trial for war crimes committed by Russian armed forces in Ukraine. The authors approach this subject by analysing the modes of liability of coperpetration, ordering, and superior responsibility, as well as by reflecting in general terms on their legal viability and capacity to convey the significance of prosecuting heads of state. In the case of Putin, Mégret and Marquis Bissonnette argue that the strongest and most pertinent mode of liability is that of superior responsibility. In doing so, they discuss various ways to circumvent the ability of heads of state to insulate themselves from the day-to-day conduct of hostilities through governmental and military intermediaries. Finally, and as usual, the volume concludes with the Year in Review section, compiled by the T.M.C. Asser Institute’s Catherine Gregoire, Noemi Zenk-Agyei, and Níamh Frame. This chapter (Chap. 8) addresses developments concerning the classification of active armed conflicts during 2022, and it additionally offers an overview of relevant IHL-related international proceedings and evolutions in the field of arms control and disarmament over that year. We thank the authors for their contributions and the peer reviewers for their useful comments. We would also like to express our gratitude to Catherine Gregoire, Belén Guerrero Romero, and Srilatha Jayaraman for their help in the editing process. We hope that the volume is both helpful and enjoyable to read. Mexico City, Mexico Berlin, Germany Tel Aviv, Israel July 2023

Pablo Kalmanovitz Heike Krieger Eliav Lieblich

Contents

Part I

International Humanitarian Law and Neighbouring Frameworks

1 You Say Precautions, I Say Prevention: Towards the Systemic Integration of International Humanitarian Law and International Environmental Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . Yiokasti Mouratidi

3

2 International Humanitarian Law and International Investment Law: Mapping a Developing Relationship . . . . . . . . . . . . . . . . . . . . . . . . Tobias Ackermann and Sebastian Wuschka

41

3 Defences to State Responsibility in International Humanitarian Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Federica I. Paddeu and Kimberley N. Trapp

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4 Thinking with IHL in Contexts of Counterterrorism: The Case of Criminal Justice Systems in the Sahel . . . . . . . . . . . . . . . . . . . . . . . . . . 109 Julien Antouly and Rebecca Mignot-Mahdavi Part II

Focus Section: International Humanitarian Law, and the Russian Aggression Against Ukraine

5 Who is at War? On the Question of Co-belligerency . . . . . . . . . . . . . . . 141 Marcela Prieto Rudolphy 6 “Inside” and “Outside”: Assessing the Russian Blockade Against Ukraine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157 Alejandro Chehtman and Eduardo Rivera-López 7 Heads of State as War Criminals: The Prospects and Challenges of Tracing War Crimes to Senior Political Leaders in Russia . . . . . . . 175 Frédéric Mégret and Camille Marquis Bissonnette

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Part III Year in Review 8 Year in Review 2022 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203 Catherine Gregoire, Noemi Zenk-Agyei and Niamh Frame Table of Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297 Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 305

Part I

International Humanitarian Law and Neighbouring Frameworks

Chapter 1

You Say Precautions, I Say Prevention: Towards the Systemic Integration of International Humanitarian Law and International Environmental Law Yiokasti Mouratidi

Contents 1.1 1.2

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The International Legal Order: Fragmentation, Interpretation and Harmonisation . . . . . 1.2.1 Article 31(3)(c) VCLT: Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2.2 Purpose, Use and Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2.3 The Harmonisation of IHL and IEL: Developments . . . . . . . . . . . . . . . . . . . . . . . 1.3 The General Targeting Framework and the Environment . . . . . . . . . . . . . . . . . . . . . . . . . . 1.3.1 Application of General Rules to the Environment . . . . . . . . . . . . . . . . . . . . . . . . . 1.4 The IEL Prevention Principle and Systemic Integration . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.4.1 Satisfying the Requirements of Article 31(3)(c) VCLT . . . . . . . . . . . . . . . . . . . . . 1.5 “Taking into Account” the Prevention Principle to Interpret the IHL Rules . . . . . . . . . . . 1.5.1 Precautions in Attacks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.5.2 Precautions Against the Effects of Attacks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.5.3 Achieving Systemic Integration in Reality: Where Next? . . . . . . . . . . . . . . . . . . . 1.6 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4 6 8 9 10 14 15 17 20 25 25 28 30 34 35

Abstract Environmental harm during armed conflict is a cross-cutting issue that comes within the remit of both international humanitarian law (IHL) and international environmental law (IEL). Yet, until recently, the interrelationship between these two “neighbouring” frameworks has been underexplored, leading to a need for in-depth analysis of how norms from the two frameworks interact and consideration as to whether they can be harmonised. By identifying key gaps and uncertainties within the IHL targeting framework and corresponding precautionary duties as applied to the environment, this chapter examines the extent to which the IEL prevention principle can inform these. It does so through the lens of treaty interpretation, in particular the method of systemic integration reflected in Article 31(3)(c) of the Vienna Convention This chapter is written in a personal capacity, and does not necessarily reflect the views of any institution the author is or has been affiliated with. Y. Mouratidi (B) UK Foreign, Commonwealth and Development Office, Brussels, Belgium © T.M.C. ASSER PRESS and the authors 2024 H. Krieger et al. (eds.), Yearbook of International Humanitarian Law, Volume 25 (2022), Yearbook of International Humanitarian Law 25, https://doi.org/10.1007/978-94-6265-619-2_1

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on the Law of Treaties. By examining the IEL prevention principle and IHL precautionary duties side by side and setting out where and how they intersect, this chapter demonstrates the need for and potential of such analyses to standardise processes and decision-making that entail collateral environmental harm during the conduct of hostilities, with a view to providing greater environmental protection. Keywords International humanitarian law · Conduct of hostilities · Collateral environmental harm · International environmental law · Systemic integration · Precautionary duties · Prevention principle · Treaty interpretation

1.1 Introduction The environment has often been described as a “silent casualty of war”.1 Historically, this has only sporadically been an item of concern on the international community’s agenda, with interest usually being sparked following specific catastrophic practices, such as the use of Agent Orange during the Vietnam War and oil spills in Kuwait during the First Gulf War.2 In reality, however, less striking practices are common causes of environmental harm during armed conflicts,3 whereby such harm is considered collateral or incidental to the conduct of hostilities between the belligerent parties. Common collateral harm includes water contamination, air pollution and the release of hazardous and toxic materials into soil.4 This can result from the military target that is being attacked, such as energy facilities or chemical plants,5 the specific means used to carry out an attack, such as explosive weapons,6 or a combination of both. The infliction of environmental harm during armed conflict lies at the “intersection”7 of (at least)8 two branches of international law: international environmental law (IEL) and international humanitarian law (IHL). Yet IHL developments on conflictrelated environmental harm have largely followed their own trajectory, with little connection to the developments found under IEL.9 In recent years, exploration of this interrelationship has gained momentum among scholars, with Bothe examining the 1

ICRC 2020b. UNEP 2009, p 8. Accessed 4 June 2022. 3 Sjöstedt 2021, pp 26–29. 4 Biswas 2001, pp 304–306. 5 For a recent example, see BBC News 2022. 6 Action on Armed Violence 2020. 7 Wyatt 2010, p 593. 8 Other fields, beyond the scope of this chapter, include international criminal law and international human rights law. 9 Lehto (2022), Roundtable Panel on Implementation of and Compliance with the International Law Protecting the Environment in Armed Conflict (Second International Conference on Environmental Peacebuilding, 3 February 2022). https://www.youtube.com/watch?v=f8Um9AggrgM. Accessed 25 May 2022. 2

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IEL precautionary approach alongside the IHL framework on precautions,10 Hulme assessing the IHL duty to take “care” regarding the environment,11 and Sjöstedt delving into the protection multilateral environmental agreements can provide during armed conflicts.12 Building upon this research, and pursuant to the theme of IHL and “neighbouring” frameworks, this chapter examines the following research question: to what extent can the customary IEL prevention principle inform the interpretation of precautionary duties under IHL in relation to environmental harm during the conduct of hostilities? The focus therefore is on examining these neighbouring frameworks through the lens of treaty interpretation. The prevention principle has been selected as the IEL rule for this analysis because its impact on the IHL rules on the conduct of hostilities remains unexplored. Moreover, whilst it uses the customary articulation of the prevention principle, due it being binding upon all states, the principle is also included within IEL treaties pertaining to specific environmental elements.13 Thus, the ensuing analysis, with appropriate tailoring, could extend to the treaty-based codifications of the prevention principle. Whilst the analysis does not distinguish between international armed conflicts (IAC) and non-international armed conflicts (NIAC) except where necessary to address specific issues that arise in the context of either of these, the ensuing interpretation applies only vis-à-vis the obligations of a state that is a party to an armed conflict due to it being unexplored whether non-state armed groups (NSAG) have obligations under IEL. Nonetheless, an argument could be made that pursuant to the principle of equality of belligerents, insofar as a state’s obligations under IHL are informed by IEL, the same interpretation should also apply to NSAGs.14 This argument, as well as the exploration of subsequent implementation difficulties particular to NSAGs, merits further separate research. The significance and relevance of this research question is threefold. Firstly, despite the ILC finalising its Draft Principles on the Protection of the Environment in Relation to Armed Conflicts (Draft Principles on PERAC) in late 2022, it is unlikely that states will agree a new treaty regarding this in the near future. It is therefore necessary to examine and clarify the extent to which existing rules can be tailored to the environment to enhance this protection. Secondly, the potential overlapping application of IEL and IHL is part of the broader phenomenon of fragmentation in international law.15 In order to avoid the possibility of an obligation bearer having conflicting duties under different specialist legal regimes, it is necessary to strive for the harmonisation of different legal frameworks. Thirdly, the general IHL targeting framework is largely identical under customary international law for both IACs and

10

Bothe 2020. Hulme 2010. 12 Sjöstedt 2021. 13 For example, Convention on Biological Diversity, opened for signature 5 June 1992, 1760 UNTS 69 (entered into force 29 December 1993), Article 3. 14 Van Steenberghe 2022, pp 1373–1375. 15 Bothe et al. 2010, p 580. 11

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NIACs.16 Whilst the Vienna Convention on the Law of Treaties 1969 (VCLT) applies to treaty interpretation,17 there is growing discourse that it is equally applicable to interpreting rules of customary international law.18 Therefore, the same analysis and conclusions as regards the interpretation of treaty rules on conduct of hostilities would also apply to the equivalent customary rules for IACs and NIACs, thereby pertaining to all armed conflicts. This is significant, since the majority of conflicts today are NIACs. This chapter is divided into four sections. First, it places the need to explore the interrelationship between IEL and IHL in the context of the broader international legal framework, introducing and assessing the interpretational tool of “systemic integration”, reflected in Article 31(3)(c) VCLT (Sect. 1.2). Next, it assesses how the general IHL targeting rules apply to the environment (Sect. 1.3). In light of apparent uncertainties in this framework, it then turns to the IEL prevention principle to consider how these gaps and ambiguities can be addressed (Sect. 1.4). The chapter culminates in an analysis of what “taking into account” the prevention principle when interpreting the IHL precautionary duties would look like in practice, noting potential limiting factors arising within the context of armed conflicts. This includes reflecting on the steps required to make the harmonisation of these rules a practical reality on the part of states (Sect. 1.5). In concluding, the chapter returns to the research question and provides thoughts on the need to undertake further comprehensive analysis on how specific IEL rules can inform the interpretation of specific IHL rules (Sect. 1.6). Thus, beyond the examination of the identified rules, this contribution may serve as a template of the issues to be examined when seeking to undertake such exercises.

1.2 The International Legal Order: Fragmentation, Interpretation and Harmonisation The international legal framework is characterised by its horizontal nature.19 Legal rules and organisations, whether law-making, judicial or quasi-judicial, exist in parallel with one another. Since the end of the Cold War, the international legal order has undergone unprecedented dynamic development, ranging from growth of specialist fields of law to the establishment of international organisations.20 This ensuing pluralism led to concerns about fragmentation, i.e. the lack of homogeneity

16

ICRC 2005, Rules 1, 7–24. Vienna Convention on the Law of Treaties, 1155 UNTS 331 (adopted 23 May 1969, entered into force 27 January 1980) (VCLT). 18 Merkouris 2022. 19 Higgins 1994, p 1. 20 Peters 2017, p 673. 17

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in the international legal system,21 with legal obligations which may be in conflict or incompatible with one another.22 The need to avoid such conflicts from arising in the first place has led to efforts of harmonisation, an overarching objective of achieving enhanced coherence within the international legal system.23 To this end, the International Law Commission (ILC) carried out a study on the issue of fragmentation, published in 2006, within which it noted that it cannot be over-stressed that whether there is a conflict depends on how the relevant rules are interpreted.24 The process of interpretation can thus play an important role in pursuing harmonisation between different legal norms and to the extent that this is not achieved, determining that there is a conflict.25 The general rules of interpretation, found in Article 31 VCLT and also of a customary nature,26 begin with the “ordinary meaning” of a provision’s terms in their context and the treaty’s object and purpose.27 Under Article 31(3), the following shall be “taken into account” together with the context: any subsequent agreement between the parties regarding the interpretation of the treaty or application of its provisions (Article 31(3)(a)); any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation (Article 31(3)(b)); any relevant rules of international law applicable in the relations between the parties (Article 31(3)(c)). In case of outstanding ambiguity or manifest absurdity or unreasonableness after utilisation of the general rules, Article 32 sets out “supplementary” means of interpretation. Whilst the factors listed in Article 31(3) VCLT are part of the mandatory interpretation process, there is no hierarchy amongst these.28 The relevance and importance of particular rules will therefore vary depending on the provision at hand.29 Particularly relevant for the purposes of the cohesion of the international legal order is Article 31(3)(c). The revival in interest in the specific function and purpose of this provision has been accredited to the International Court of Justice’s (ICJ) explicit use in the 2003 Oil Platforms case.30 Subsequently, the aforementioned ILC report on fragmentation confirmed the practical importance of Article 31(3)(c) in light of growing pluralism in the international legal order, as a legal basis for tackling fragmentation.31 The report recognised Article 31(3)(c) as embodying the principle 21

McLachlan 2005, p 285. Peters 2017, p 678. 23 Matz-Lück 2006, p 42. 24 ILC 2006, p 69. 25 McLachlan 2005, p 286. 26 ICJ Guinea-Bissau v Senegal, Arbitral Award of 31 July 1989, Judgment of 12 November 1991, [1991] ICJ Rep 53, para 48. 27 VCLT, above n. 17, Article 31(1). 28 McLachlan 2005, p 290. 29 Ibid., p 310. 30 Todeschini 2018, p 378; ICJ, Iran v USA, Judgment, 6 November 2003 (Oil Platforms), [2003] ICJ Rep, p 161. 31 ILC 2006, paras 410–480. 22

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of systemic integration,32 enabling rules “to appear as parts of some coherent and meaningful whole”.33

1.2.1 Article 31(3)(c) VCLT: Requirements The first requirement under Article 31(3)(c) VCLT is that external provisions used for interpretation purposes are “rules”, meaning they stem from the formal sources of international law, i.e. treaties, customary international law and general principles of law.34 Combined with the requirement that they are “applicable”, non-binding instruments are understood to be outside the scope of this,35 although there is debate as to the role of soft law in treaty interpretation.36 The second requirement is that the rules are “relevant”. Whilst this is understood to mean that the rules concern the same subject matter,37 other factors such as the object and purpose of the rules at hand may also assist in determining their relevance.38 Finally, the rules must be “applicable in the relations between the parties”. When it comes to the interpretation of multilateral treaties, it is disputed whether all parties to the treaty must be bound by the external rule, or only those to the dispute.39 Given that the IEL rule to be used in this contribution is customary, therefore binding on all states, it is not necessary to address this question. Instead, the more significant issue is clarity whether the external rules must apply at the time of the conclusion of the treaty, or at the time of interpreting and applying the treaty. The former approach reflects the fact that upon agreeing a treaty, parties do so whilst “bearing in mind the normative framework” at that moment in time.40 Contrastingly, the latter approach reflects the fact that treaties do not exist in a static vacuum but are interpreted and applied in light of evolving understandings and developments.41 To this end, the ILC suggests that rather than having a general and abstract applicable choice between the “past and present”, it is necessary to consider the treaty language itself and whether it provides for taking into account future developments.42 Relevant factors include whether the terms are “evolutionary” rather than static and/

32

Ibid., para 33. Ibid., para 414. 34 Merkouris 2015, p 19. 35 Villager 2009, p 433. 36 Gardiner 2015, p 310; notably, the European Court of Human Rights (ECtHR) does utilise soft law instruments for the purposes of Article 31(3)(c), see Tzevelekos 2010. 37 Todeschini 2018, p 362. 38 Bhat 2019, p 190. 39 ILC 2006, para 428. 40 Ibid., para 476. 41 Ibid., paras 476–478. 42 Ibid., para 478. 33

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or the obligations are framed in general terms.43 The ICJ has also held upon considering the specific terms of a treaty, it may be the case that it “is not static, and is open to adapt to emerging norms of international law.”44

1.2.2 Purpose, Use and Limitations The primary purpose of Article 31(3)(c) VCLT is to promote coherence in international law and reduce fragmentation.45 Pursuant to the goal of harmonisation, when multiple norms pertain to the same subject, their interpretation should strive to be conciliatory.46 Whilst systemic integration is grounded in Article 31(3)(c) VCLT, judicial institutions also sometimes resort to this technique implicitly, without citing this provision.47 For example, the ICJ has proclaimed that the interpretation and application of international law “cannot remain unaffected by the subsequent development of law” but rather has to take place “within the framework of the entire legal system prevailing at the time of interpretation”.48 Typically, the technique has been used when a provision is unclear, to resolve this ambiguity by taking into account a rule from a different legal framework.49 It has also been used when provisions are “open-textured”, such that taking into account other rules will assist in providing content to the rule.50 From this perspective, there are limits to the utility of this tool to achieve harmonisation. According to Sjöstedt, as a rule of interpretation, it cannot “substitute, displace, or modify” rules, but only be used to offer clarity.51 Reliance on this provision has thus been criticised at times for purporting to “reconcile the irreconcilable”, stretching this method in the name of harmonisation.52 Another risk is that rules from other legal frameworks may be “abused” to interpret another legal rule,53 for example by judicial institutions whose expertise does not extend to rules from other specialist legal frameworks. A further limitation, according to Sjöstedt, is that Article 43

Ibid. ICJ, Gabˇcíkovo-Nagymaros Project (Hungary v Slovakia), Judgment, 25 September 1997 (Gabˇcíkovo-Nagymaros), [1997] ICJ Rep 7, p 68. 45 McLachlan 2005, p 281. 46 Tzevelekos 2010, p 631. 47 Todeschini 2018, p 378. 48 ICJ, Legal Consequences for States of Continued Presence of South African in Namibia (SouthWest Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 21 June 1971, [1971] ICJ Rep 16, pp 32–33. 49 McLachlan 2005, p 312. 50 Ibid. 51 Sjöstedt 2021, pp 11–12. 52 ECtHR, Case of Hassan v UK, Grand Chamber Judgment, 16 September 2014, Application No. 29750/09, Partly Dissenting Opinion of Judge Spano Joined by Judges Nicolaou, Bianku and Kalaydjieva, para 16. 53 Howe 2007. 44

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31(3)(c) operates within the framework of Article 31, where a number of other rules also operate without priority.54 In light of these perceived difficulties and limitations, scholars have turned to suggesting alternative techniques for achieving harmonisation. Particularly in the context of IHL and IEL, Sjöstedt put forward the concept of a “reconciliatory approach”, which would enable harmonisation also with non-binding soft law instruments, prevalent within IEL,55 even though there is no obligation for doing so.56 Similarly, van Steenberghe puts forward a “coherency-based approach”, dismissing the principle of systemic integration due to it not determining which rules are “relevant” for the purpose of interpreting the rule at stake.57 Finally, Dienelt has identified the need to go beyond the existing framework of Article 31(3)(c) when examining the interaction of more than two specialist legal frameworks, such as IHL, IEL and IHRL in the context of environmental protection during armed conflict; in doing so, we must look for the “common objectives” that intersect these regimes such as to underpin their harmonious interpretation.58 Notwithstanding the above, Article 31(3)(c) VCLT provides the clearest formal grounds for achieving harmonisation,59 thereby lending legal and methodological legitimacy to this exercise. Dismissing the utility of this provision risks leading to a meta-fragmentation in the approaches to addressing fragmentation, proposing techniques for how the interrelationship of different legal frameworks and individual rules is to be determined without first utilising the existing legal framework for interpretation. This gap is therefore addressed herein, by using Article 31(3)(c) to examine the extent to which a customary IEL principle can inform the interpretation of general IHL targeting rules, bearing in mind the traditional use, purpose and limitations of this tool.

1.2.3 The Harmonisation of IHL and IEL: Developments Turning to developments to date in the harmonisation of IHL and IEL, this subsection considers pronouncements that have been made regarding this interrelationship by four international institutions: the ICJ, the International Committee of the Red Cross (ICRC), the United National Environmental Programme (UNEP) and the ILC. Throughout this, it considers the extent to which Article 31(3)(c) VCLT is the tool used either implicitly or explicitly to address these regime interactions. 54

Sjöstedt 2021, pp 11–12. Whilst soft law instruments are themselves not binding, within IEL certain instruments have played a key normative role in leading to the crystalising of customary rules, see Dupuy and Viñuales 2018, pp 40–41. 56 Sjöstedt 2021, p 78. 57 Van Steenberghe 2022, p 1366. 58 Dienelt 2022. 59 ILC 2006, para 420. 55

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One of the earliest significant developments in the interrelationship between IHL and IEL came from the ICJ’s Nuclear Weapons Advisory Opinion (1996), which stated: existing international law relating to the protection and safeguarding of the environment… indicates important environmental factors that are properly to be taken into account in the context of the implementation of the principles and rules of the law applicable in armed conflict.60

It thereafter refers specifically to the IHL principles of necessity and proportionality, noting that respect for the environment is one of the elements to consider in making these assessments. This has been understood to mean that rules and principles of IEL must be “taken into account” during armed conflicts,61 even though the reference is to environmental “factors”, rather than IEL. It is therefore unclear whether this represents an articulation of the pursuit of systemic integration between these bodies of law, although some scholars consider it does.62 In 2020, the ICRC updated its Guidelines on the Protection of the Natural Environment in Armed Conflict (Guidelines), originally published in 1994. Whilst these were limited to analysing the relevant rules of IHL, they made some general observations regarding its relationship with IEL. Firstly, as regards IEL treaty rules that continue to apply during armed conflicts, it stated that where a rule under IEL is more protective of the environment than the parallel IHL rule, they should be considered to be incompatible only if there are “clear reasons”,63 without elaborating on such reasons. Secondly, the Guidelines noted that the interaction between two rules from IEL and IHL applying in parallel is “highly context specific”.64 Thus, whilst recognising the potential interaction between IEL and IHL, the ICRC did not provide any specific detail on this. Perhaps the greatest development in the harmonisation of IHL and IEL led by the ICRC is the explicit inclusion of the IEL “precautionary approach” in customary Rule 44 of its Customary IHL Study.65 According to Rule 44, “[l]ack of scientific certainty as to the effects on the environment of certain military operations does not absolve a party to the conflict from taking such precautions”. In doing so, the ICRC went beyond the nuanced interpretative framework of systemic integration, in that it purports to create a new, freestanding rule in IHL, based on IEL. This has been controversial, primarily due to practice being insufficient to support the existence of this customary rule within IHL.66 In addition, the status of the precautionary approach within IEL is not settled, thus highlighting the aforementioned risk of abusing norms which do not fall within the remit of expertise of the institutions undertaking the process of 60 ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996 (Nuclear Weapons), [1996] ICJ Rep 226, para 33. 61 Droege and Tougas 2013, p 47. 62 Dupuy and Viñuales 2018, p 427. 63 ICRC 2020b, para 35. 64 Ibid., para 37. 65 ICRC 2005, Rule 44. 66 Sjöstedt 2021, p 68.

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interpretation. Nonetheless, it demonstrates the broad objective of harmonisation in international law, moving IHL closer to IEL.67 In 2009, UNEP published an extensive inventory on the protection afforded by different branches of international law to the environment during armed conflict. One of its findings included that “[u]nless otherwise stated, IEL continues to apply during armed conflicts and could be used as a basis for protection” and accordingly IEL could also be used to interpret incomplete or insufficiently clear norms of IHL.68 Despite this finding, the report is largely limited to describing the IEL framework, including treaties, customary and soft law instruments, and examining their continuing application during armed conflict, without going into analysis of the impact these can have on the interpretation of IHL rules. Finally, the ILC began working on the Draft Principles on PERAC in 2013, concluding in May 2022; these were subsequently adopted by the UN General Assembly in December 2022.69 The Draft Principles on PERAC take a chronological approach: pre-conflict, during armed conflict, including occupation, and postconflict. Most notably for the purposes of this chapter, Draft Principle 13(1) PERAC, pertaining to the phase during armed conflict, states that “[t]he natural environment shall be respected and protected in accordance with applicable international law and, in particular, the law of armed conflict”. In the accompanying commentary, the ILC notes that the law of armed conflict is cited due to being the set of rules “specifically designed” for armed conflicts, but that other rules of international law providing environmental protection, including IEL, “retain their relevance”. To this end, it cites the aforementioned ICJ Advisory Opinion on Nuclear Weapons.70 An earlier draft commentary to Draft Principle 13 PERAC noted that the law of armed conflict is lex specialis during armed conflict, but that other rules of international law providing environmental protection, including IEL, “remain relevant”.71 The final version, however, moved the reference to lex specialis to an opening “General Commentary” section: The draft principles were prepared bearing in mind that the law of armed conflict, where applicable, is lex specialis but that other rules of international law, to the extent that they do not enter into conflict with it, also remain applicable. Such rules may generally complement and inform the application of the law of armed conflict.72

On the one hand, this seems to be putting the cart before the horse: it should first be assessed whether norms can be reconciled and only to the extent that this is not possible should lex specialis arise. In previous work, the ILC has confirmed that lex specialis does not come into play simply because two provisions pertain to the same subject matter, but some actual inconsistency must exist or a “discernible 67

Ibid., p 84. UNEP 2009, Finding 8. 69 UN General Assembly (2022) Resolution: Protection of the Environment in Relation to Armed Conflict, UN Doc. A/RES/77/104. 70 ILC 2022a, p 141. 71 ILC 2019, p 251. 72 ILC 2022a, p 97. 68

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intention” that one is to exclude the other.73 Moreover, without explanation it asserts that IHL always provides the special rule over IEL on a regime-wide basis, rather than recognising the need to determine this on a context and rule specific basis.74 On the other hand, the ILC is reinforcing that IEL can be used to complement and inform IHL norms. Thus, in line with the aim of harmonisation, IEL is not completely displaced but plays a “residual part” in interpreting IHL.75 As such, in its Commentary to the Draft Principles on PERAC the ILC seems to implicitly reflect the notion of systemic integration as in Article 31(3)(c) VCLT. Moreover, prior to the finalisation of the Draft Principles on PERAC, in early 2022 states submitted comments to the Draft Principles and Commentary. Israel was firmly against what it called the “forced integration” of IHL and IEL.76 Contrastingly, Portugal and the Nordic countries expressed they are “pleased” that the ILC’s Draft Principles confirm that IHL incorporates rules from inter alia IEL;77 Spain considered it would be “desirable” to have more integration between IEL and IHL in the Draft Principles;78 Japan and Switzerland considered the ILC’s work should explain further the relationship between IEL and IHL in practice.79 Of the states that did address IEL, therefore, there was primarily a positive response but also a desire for further clarity in what this interrelation means in practice. Scholars have also previously expressed disappointment at the lack of exploration by the ILC of how different identified fields of international law actually interplay.80 Overall, there has been a piecemeal movement towards acknowledging that IEL can inform the interpretation of IHL norms. However, there is vagueness around the harmonisation of IHL and IEL in practice and the understanding of this interrelationship is currently superficial. The remainder of this chapter fills this gap by utilising Article 31(3)(c) VCLT, examining IHL targeting rules and the IEL prevention principle side by side and assessing how IEL can be “taken into account” to inform IHL.

73

ILC 2001a, p 140. Duffy 2020, p 49. 75 ILC 2006, para 85. 76 ILC 2022b, pp 13–18. 77 Ibid., p 72. 78 Ibid., p 23. 79 Ibid., p 72. 80 Dienelt 2016, p 55. 74

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1.3 The General Targeting Framework and the Environment Before examining the general targeting framework as applied to the environment, it is worth briefly outlining the IHL rules which explicitly address the environment. As will be seen, it is the latter’s perceived weaknesses which arguably lead to the need to examine how the general framework can provide greater environmental protection. Articles 35(3) and 55(1) Additional Protocol I 1977 to the Geneva Conventions of 1949 (API) pertain specifically to the environment in international armed conflicts (IACs).81 The former prohibits means and methods of warfare which “are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment”. The latter requires “care” to be taken in warfare to protect the natural environment from “widespread, long-term and severe damage”, including a prohibition on using means and methods of warfare causing such harm and thereby prejudicing the health or survival of the population. The two provisions provide an absolute limitation to environmental harm beyond a certain threshold, which cannot be justified under other IHL rules, such as military necessity.82 However, difficulties arise in the utility and application of these provisions. Firstly, the requirements of “widespread, long-term and severe” environmental damage in both provisions are not defined, either in the treaty, the ICRC’s Commentary or travaux préparatoires to API.83 Secondly, the factors are cumulative, so even if they were clear, some consider that these provisions are of next to no practical relevance due to setting the threshold of harm very high.84 Indeed, in light of these difficulties, scholarly-led conferences were held in the early 1990s regarding a “Fifth Geneva Convention” pertaining to environmental protection during armed conflicts.85 Finally, API is not universally ratified and pertains only to IACs, with no equivalent provisions in treaties pertaining to NIACs; whilst according to the ICRC the two provisions are of customary nature in IACs, the position as regards NIACs is not certain.86 Given the above difficulties, it has been suggested that environmental protection could be better achieved by turning instead to the long-standing general targeting rules of IHL, which extend to the environment.87 These apply distinctly and alongside the absolute prohibitions under Articles 35 and 55 API.88 The key targeting rules underpinning the regime on the conduct of hostilities during armed conflicts are 81

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 1979) (API). 82 Fleck 2021, pp 346–347. 83 ICRC 2020b, para 51. 84 Fleck 2021, p 346. 85 Plant 1992. 86 ICRC 2005, Rule 45. 87 Baker 1993, p 351. 88 Henckaerts and Constantin 2014, pp 474–477.

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military necessity,89 distinction,90 and proportionality.91 To give effect to these rules, parties to the conflict are obliged to take precautions in attacks and against the effects of attacks.92 However, because these general rules are not specifically tailored to the environment, there are uncertainties in their application to the same. It has therefore been suggested that IEL may assist in filling these gaps within the IHL regime.93

1.3.1 Application of General Rules to the Environment The starting point in applying the general targeting framework to the environment is that elements of the environment are most often civilian objects but can be subject to change.94 This will be the case if they meet the criteria for a military objective in Article 52(2) API, namely an object which by its “nature, location or use” makes an “effective contribution to military action and whose total or partial destruction, capture or neutralisation, in the circumstances ruling at the time, offers a definite military advantage”. Given the wide-ranging aspects of the environment, from flora to water resources and even the atmosphere, the exact parameters of when these elements may become military objectives are not always clearcut. It has been suggested, for example, that soldiers moving across nature areas transform the latter into a military objective.95 This remains unsettled, with diverging views on the ease with which areas become military objectives due to the presence of combatants.96 If part of the environment becomes a military objective, then it must be assessed whether other provisions of API prohibit attacking this. This would include the threshold of “widespread, long-term and severe” damage under Articles 35(3) and 55(1) API, in which case the attack could not be justified under military necessity. However, even if certain aspects of the environment become a military objective, the attack may still be unlawful if damage caused to other aspects of the environment retaining their civilian character, together with civilians and other civilian objects, is excessively disproportionate to the military advantage anticipated. Examples of incidental harm which would have to be weighed against the military advantage could be air and soil pollution resulting from attacks on industrial facilities, sewage leaks and wastewater, and oil pollution originating from industrial or oil extraction facilities.97 89

For the first modern codification of military necessity, see Instructions for the Government of Armies of the United States in the Field, 24 April 1863 (Lieber Code), Article 14 90 API, above n. 81, Article 48. 91 Ibid., Article 51(5)(b). 92 Ibid., Articles 57 and 58 API respectively. 93 Bothe et al. 2010, p 571. 94 Ibid., p 576; ILC Commentary on Draft Principle 13(3) and 14 ILC 2022a. 95 Fleck 2021, pp 343–344. 96 Droege and Tougas 2013, p 28. 97 Fleck 2021, p 341.

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When the environment retains its status as a civilian object, IHL permits damage to be caused to it as a result of an attack against a military objective, where such an attack is justified by military necessity, the collateral environmental harm does not reach the threshold of widespread, long-term and severe, and is proportionate, together with harm to other civilian objects, to the military aim pursued.98 In order to make these assessments, parties to the conflict must meet their obligations to take precautions in attacks. As long as targeting decisions conform to this, environmental harm is viewed as “collateral damage” permissible under IHL. In order to enable opposing parties to the conflict to also comply with their obligations in attacks, parties must also take precautions against the effects of attacks during peacetime and once conflict breaks out. Proceeding on the basis that the environment retains its status as a civilian object, expected harm to this must form part of the proportionality assessment, together with any other civilian objects or civilians anticipated to suffer harm. Accordingly, the threshold for environmental harm to be disproportionate is “excessive” as against the anticipated military advantage. Whilst damage that is widespread, long-term and severe may meet this threshold, lesser harm may also satisfy this and/or the anticipated military gains may be comparatively low.99 The proportionality principle has been criticised for its imprecise wording and terminology,100 particularly in relation to what it means in concreto and how it is to be applied.101 It envisages a balancing exercise between variable factors that differ significantly, such as loss of civilian life with anticipated military advance, and there is also no established formula for determining when collateral damage will be “excessive”. Even though assessing the proportionality of an intended attack is mandatory, the question remains on how to define, quantify and balance the extent of the environmental damage foreseen in relation to the anticipated military advantage.102 What it ultimately entails is a value judgment, since the factors to be balanced are so different in nature that to balance them quantitatively is impossible.103 Moreover, the operational impact of the proportionality principle vis-à-vis environmental harm requires clarity.104 In other words, what are the procedural steps to assess whether incidental harm to the environment is “excessive”, and how is this harm weighed up in the proportionality assessment? Such an assessment and evaluation is also relevant for the purposes of precautions in the choice of means and methods of attack such as to avoid or minimise incidental environmental harm. On the flipside, Article 58 API requires parties to a conflict to take precautions “to the maximum extent feasible” in relation to the harmful effects of attacks. According

98

Thürer 2011, p 93. ICRC 2020b, p 55. 100 ICRC 1987, para 1977 101 ICTY 2000, paras 71–79. 102 Henckaerts and Constantin 2014, pp 474–477. 103 Ibid. 104 Ibid., pp 485–486. 99

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to the ICRC, this provision extends to taking measures during peacetime.105 For example, states are required to take precautions relating to where they locate military objectives during peacetime,106 such as to minimise the risk of indiscriminate attacks in the event that an armed conflict breaks out. Parties to the conflict shall “endeavour” to remove civilian objects from the vicinity of military objectives and avoid locating military objectives in or near densely populated areas. The “real tragedy” relating to this provision is that the all-surrounding nature of the environment means it cannot, for example, be “removed” from the vicinity of military objectives as envisaged by Article 58(a) API.107 Seemingly the most relevant provision in relation to precautions against the effects of attacks is Article 58(c), which requires parties to “take the other necessary precautions to protect … civilian objects under their control against the dangers resulting from military operations”. For example, the ICRC’s 2020 Guidelines highlight the issue of conflict in zones of major ecological importance or particular fragility and therefore consider that the choice of location of fixed military installations forms part of precautionary measures to be taken during peacetime; after the outbreak of a conflict, precautions can include informing the parties to the conflict of conservation areas, even seeking to agree to designate such locations as demilitarised zones prohibiting the presence of combatants and military material.108 However, there is no definitive checklist regarding the scope of “other necessary precautions” in relation to the environment and how to determine appropriate precautionary measures. Thus, in line with the traditional use and purpose of Article 31(3)(c) VCLT, the open-textured and general formulations of these provisions provide an opportunity to consider whether, and if so how, the IEL prevention principle can inform their interpretation.

1.4 The IEL Prevention Principle and Systemic Integration Having identified how key IHL targeting rules apply to the environment, this section describes the development of the IEL prevention principle as a due diligence obligation of states to not cause damage to the environment of other states or areas beyond national jurisdiction. Thereafter, it examines whether it meets the requirements of Article 31(3)(c) VCLT such as to inform the interpretation of the identified IHL framework. IEL originates and revolves around the prevention of harm,109 which has evolved from a state-centric concern to protect the sovereign rights of neighbouring states

105

ICRC 1987, para 2244. ICRC 2020b, p 62. 107 Hulme 2010, p 687. 108 ICRC 2020b, pp 63–64. 109 Brunnée 2021. 106

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towards protecting the environment per se, reflected in the prevention principle.110 The IEL no-harm rule was first articulated in the United States (US) Trail Smelter case: no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another… when the case is of serious consequence and the injury is established by clear and convincing evidence.111

Whilst the facts of this case concerned transboundary pollution by fumes, the ICJ confirmed as customary a general articulation of the rule in the Corfu Channel case in 1949, namely “every state’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other states.”112 It is a rule for determining liability once environmental harm is caused to another state.113 A move towards broadening the scope and focus of the no-harm rule was first evident in Principle 21 of the Stockholm Declaration 1972, a soft law instrument. This provided that states have the sovereign right to exploit their own resources, as well as the duty that “activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction”.114 This formulation provided for the “progressive development” of the no-harm rule,115 by pertaining also to areas beyond the jurisdiction of states, such as the high seas. It thereby seeks to protect the environment per se as opposed to the state-centric focus of the no-harm rule. This shift in focus led to what is understood today as the prevention principle, perceived as removing any spatial considerations as to where the harm materialises.116 Given today’s understanding of the interconnectedness of the environment and that “safeguarding the ecological balance” is an essential interest of all states,117 harm to “common goods”, such as the climate, biodiversity and endangered species,118 may disrupt this balance. Adverse effects to the climate, for example, are transcending the territory of all states.119 Thus, “transboundary” is no longer limited to a traditional conception of fumes passing from one state to another, as in Trail Smelter. When environmental harm in a state’s own territory presents a risk 110

Dupuy and Viñuales 2018, p 66. Trail Smelter Arbitral Tribunal, United States v Canada (1938 and 1941), 3 RIAA 1905 (Trail Smelter), p 1965. 112 ICJ, The Corfu Channel Case (UK v Albania), Judgment on the Merits, 9 April 1949, [1949] ICJ Rep 4 (Corfu Channel), p 22. 113 Dupuy and Viñuales 2018, p 66. 114 Declaration of the United Nations Conference on the Human Environment, adopted 16 June 1972, UN Document A/CONF.48/14/Rev 1, Principle 21; see also Rio Declaration on Environment and Development, adopted 13–14 June 1992, UN Document A/CONF.151/26, vol 1, (Rio Declaration) Principle 2. 115 Dupuy and Viñuales 2018, p 66. 116 Duvic-Paoli and Viñuales 2020, pp 301–302. 117 Gabˇ cíkovo-Nagymaros, above n. 44, para 53. 118 Vöneky 2001; Afriansyah 2013, p 84. 119 Dupuy and Viñuales 2018, p 98. 111

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of significant harms to these perceived “common goods”, the prevention principle applies. The customary nature of the prevention principle was formally confirmed for the first time by the ICJ in the Nuclear Weapons Advisory Opinion.120 The ICJ initially framed this as a “general obligation” of states, with later elaboration in the Pulp Mills case that the principle originates from the due diligence that a state is required to exercise in its territory.121 Thus, the prevention principle pertains to duties prior to any environmental harm actually materialising.122 The underlying rationale is that prevention is better than cure, given the often irreversible nature of environmental damage.123 It therefore requires “anticipatory investigation, planning, and action” from states prior to their potentially harmful activities.124 Whilst closely linked, the prevention principle is distinct from the no-harm rule,125 as it is an obligation of conduct to prevent harm rather than an obligation of result not to cause harm.126 The prevention principle will be held to be breached if a state does not fulfil its due diligence obligations when there is risk of significant (transboundary) harm, regardless of whether that harm materialises.127 It also differs from the so-called precautionary approach, which was included in the ICRC’s Customary IHL study. Accordingly, whilst the precautionary approach requires that lack of full scientific certainty as to serious or irreversible environmental consequences is not used as an excuse for inaction,128 the prevention principle plays a role in responding to risks of harm that are certain.129 As a due diligence standard, the prevention principle is contextual.130 Generally, it requires states to take appropriate regulatory and policy measures relating to private and public actors.131 As regards specific planned activities, there are two key procedural IEL duties that the customary prevention principle can give rise to, according to ICJ jurisprudence. At the outset, a state must first ascertain whether a certain activity which has the potential to adversely affect the environment of another state entails a risk of significant transboundary harm.132 If so, this would in turn trigger the

120

Nuclear Weapons, above n. 60, para 30. ICJ, Case Concerning Pulp Mills on the River Uruguay (Argentina v Uruguay), Judgment, 20 April 2010, [2010] ICJ Rep 14 (Pulp Mills) para 101. 122 Sands and Peel 2012, p 201. 123 Gabˇ cíkovo-Nagymaros, above n. 44, para 140. 124 Nanda and Print 2013, p 62. 125 Trouwborst 2009, p 111. 126 Brunnée 2021, p 276. 127 Ibid., p 279. 128 Rio Declaration, above n. 114, Principle 15. 129 Duvic-Paoli and Viñuales 2020. 130 Brunnée 2021, p 274. 131 Pulp Mills, above n. 121, para 197; ibid., p 275. 132 ICJ, Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v Nicaragua), Judgment, 16 December 2015, [2015] ICJ Rep 665 (Certain Activities), para 104. 121

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procedural obligation of conducting an environmental impact assessment (EIA).133 The content of an EIA is to be determined by each state in its domestic legislation or ahead of each project, depending on the specific circumstances at hand, including the nature and magnitude of the project and its likely adverse environmental impact.134 Should the EIA confirm that there is a risk of significant transboundary harm, the second procedural obligation under due diligence would be triggered, namely the duty to cooperate through notification and consultation with potentially affected states, where that is necessary to determine the appropriate measures to mitigate or prevent that risk.135 Once the activities are instigated, states are required to monitor their progression.136 Whilst ICJ jurisprudence suggests that states must carry out their due diligence obligations in successive fashion, scholars have noted that in practice the process is more nuanced.137 For example, it may be necessary for states to cooperate prior to undertaking an EIA, in order to inform the contents of this.138 Given that the duty to conduct an EIA and the duty to cooperate are freestanding obligations under general international law, they are better understood as finding expression as some of the measures required under the due diligence standard of the prevention principle without necessarily the rigid structure suggested by the ICJ. They might also go beyond the scope suggested by the ICJ, such as the duty of cooperation entailing the possibility to request assistance from international organisations.139

1.4.1 Satisfying the Requirements of Article 31(3)(c) VCLT The prevention principle is undoubtedly a “rule” for the purposes of Article 31(3)(c) VCLT, given its binding customary law nature. The two key issues to explore prior to ascertaining how it can be “taken into account” for the purposes of the IHL precautionary duties are whether it is “relevant” vis-à-vis these IHL rules and whether it is “applicable”. At the outset, it is acknowledged that judicial and non-judicial bodies do not undertake such rigorous analysis when seeking to harmonise different legal frameworks, but rather use Article 31(3)(c) as a convenient hook which enables them to remark that other legal frameworks can be taken into account. Notwithstanding this approach, given the fact that the exploration of the interrelationship of IHL and IEL is at early stages, it is important from a scholarly perspective to ground harmonisation on a clear formal legal basis which enables one to make persuasive legal arguments. 133

Ibid; Pulp Mills, above n. 121, para 204. Pulp Mills, above n. 121, para 205. 135 Certain Activities, above n. 132, para 104. 136 Pulp Mills, above n. 121, para 197. 137 Dupuy et al. 2021, pp 397–398. 138 Ibid., p 398. 139 Ibid., p 399. 134

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To date, the utility of Article 31(3)(c) has been examined, and often dismissed, by scholars exploring the interrelationship of IHL and IEL treaty rules,140 but the same remains underexplored in the context of customary international law. The following subsection therefore fills this gap, highlighting what difficulties arise in this analysis and providing legal reasoning to overcome these.

1.4.1.1

Is the Prevention Principle “Relevant”?

At a basic level, the prevention principle is relevant to the general IHL targeting rules due to both rules encompassing the same subject matter: environmental harm. Whilst the prevention principle has traditionally been tied to the use of natural resources, the ICJ has confirmed that it includes all activities that may have a significant adverse impact in a transboundary context.141 Thus, the “activity” in which a state engages can be one of armed conflict.142 The relevance of the prevention principle is also confirmed through comparison of the object and purpose of the two frameworks. Both invariably entail procedural obligations of conduct. The prevention principle is one of due diligence, the exact parameters of which vary depending on the circumstances at hand. Similarly, precautions under IHL are “obligatory standards of conduct”,143 depending on what is feasible, or reasonably foreseeable for the purposes of proportionality assessments, in a given situation. Precautions under IHL have a preventive nature akin to that in IEL, given that when collateral risks to civilian objects are identified, measures are required to minimise this harm.144 Thus, similar to the prevention principle’s proactive approach of procedural duties so that the harm does not occur in the first place,145 precautions in and against attacks seek to minimise collateral environmental harm prior to its occurrence. Likewise, neither rule seeks to outright prohibit environmental harm. The ILC has noted that the prevention principle, as a due diligence obligation, does not intend to guarantee the complete prevention of harm, but the “best possible efforts” of the state to minimise the risk of this materialising.146 Similarly, IHL recognises that some environmental harm is inevitable, but precautionary obligations pertain to assessing and minimising this. On the flipside of the protective aspect of these rules is the need to preserve state interests—traditionally, the right to development and exploitation of natural resources under IEL and the pursuit of military necessity under IHL. However, whilst in both circumstances the environmental harm is incidental to the main activity pursued, there is arguably a difference in the underlying intent and 140

See Sect. 1.2.2. Certain Activities, above n. 132, para 104. 142 Hulme 2004, p 135. 143 Quéguiner 2006, p 794. 144 Stefanik 2017, p 115. 145 Vessey 1998, pp 181–182. 146 ILC 2001b, p 154. 141

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purpose in causing this harm. Particularly in the context of IACs, it is the “essence of warfare” to use one’s territory to damage that of an enemy,147 with the overarching purpose of the “activity” being harming that state. By contrast, a clearer delimitation is envisaged by the prevention principle between the activity pursued on one’s territory (traditionally for economic purposes) and the incidental harm this leads to in another state’s territory. Addressing this tension in 1992, Leibler noted that as a matter of logic, if IEL pertains to negligent or unintentional damage, it must also apply to intentional damage.148 Since then, it is notable that the customary status of the prevention principle was confirmed by the ICJ in its aforementioned Advisory Opinion relating to the use of nuclear weapons, a means of warfare, whereby the ICJ affirmed that the obligations to “respect and protect” the environment “naturally” apply to the actual use of nuclear weapons in armed conflicts, as well as their testing.149 This has been interpreted as confirming the relevance of the prevention principle in interpreting or complementing rules on the conduct of hostilities.150 Most recently, the Preamble of the ILC’s Draft Principles on PERAC notes that effective protection of the environment in relation to armed conflict requires, inter alia, measures to “prevent” environmental harm. An accompanying statement references the ICJ’s pronouncement in Gavcikovo-Nagymaros Project that when it comes to environmental protection, “vigilance and prevention” are required.151 Moreover, Draft Principle 22 PERAC, pertaining to occupation, is an explicit application of the prevention principle. As such, whilst the delimitation between the “activity” of targeting a military objective on another state’s territory and the environmental harm that this entails are both underpinned by a hostile intent, rather than negligence as associated with the prevention principle, this does not preclude the latter’s relevance.

1.4.1.2

Is the Prevention Principle “Applicable”?

The second question for satisfying Article 31(3)(c) VCLT is whether the prevention principle is “applicable”. This raises two temporal questions. As set out in Sect. 1.2.1 above, the usual temporal question is whether the external rule must have existed at the time of drafting the treaty, which for API would be 1974–1977. Whilst some consider the prevention principle became customary international law shortly after its first soft law codification in 1972,152 ultimately it is difficult to pinpoint the exact moment in time when this occurred. The ICJ’s 1996 Advisory Opinion did not shed any light on this.

147

Schmitt 1997, p 46. Leibler 1992, p 70. 149 Nuclear Weapons, above n. 60, para 32. 150 Dupuy and Viñuales 2018, p 427. 151 ILC 2022c. 152 Vessey 1998, p 182. 148

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The ILC’s approach of examining the specific terms of a provision to consider whether they can take into account evolving norms of international law, such as whether its language is “evolutionary”, is therefore relevant. Firstly, as regards the assessment of collateral environmental damage, there was never a clear formula for determining when this might be “excessive” and how to compare factors that are not alike. Ultimately, this opens the door for this to be a value-based judgment,153 which depends on the decision-maker but also the specific circumstances at hand. Secondly, whilst Articles 57 and 58 API provide for the circumstances in which precautions are to be taken (in and against attacks), the exact scope of these is framed in general terms. Notably, Article 57(2)(ii) requires “all feasible precautions” in relation to the choice of means and methods of warfare; Article 58(c) contains the broad phrasing of “take the other necessary precautions”. In other words, these provisions are opentextured and relatively ambiguous, and can therefore be informed by taking into account the prevention principle. A second ambiguity surrounds the notion of a rule being “applicable”, unique to the context of armed conflicts given the impact a conflict may have on the continuing application of other bodies of law. The question is whether the relevant rule must continue to apply between the parties to the conflict, in parallel to IHL, in order to also inform its interpretation? Van Steenberghe answers this question in the negative, by distinguishing between the role a treaty rule can play in interpreting another norm and the freestanding application of that rule. He accordingly considers that for the purposes of being an “applicable” rule under Article 31(3)(c) VCLT, it suffices that states have ratified the treaty containing the rule even if it does not itself apply to the exact situation.154 Extending the same rationale to customary law, it would suffice that states are generally bound by these rules, even if they do not continue to apply as freestanding rules during an armed conflict. In its Guidelines, the ICRC also seems to consider that “taking into account” environmental norms to inform IHL is a distinct question from whether IEL applies in parallel to IHL.155 The ILC’s and ICJ’s generic pronouncements that IEL remains relevant for the interpretation of IHL were also made seemingly without considering it necessary to address whether IEL in itself continues to apply between the parties to the conflict. Accordingly, it would not be necessary to examine whether the prevention principle continues to apply between the belligerent parties in order to inform their duties under IHL. Taking one step back, however, if the two rules do not apply distinctly to the same situation then the issue of harmonising obligations to avoid fragmentation becomes moot. Moreover, in its Updated Commentaries, the ICRC seemingly takes the view that the relevant rules must continue to apply during conflicts, by noting that a rule informs the interpretation of IHL in so far as “all the conditions relating to geographic, temporal and personal scope of application [of the rule] are fulfilled”.156 Under this 153

Smith 2019, p 772. Van Steenberghe 2022, p 1357. 155 ICRC 2020b, para 30. 156 ICRC 2016, Introduction, Footnote 34. 154

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approach, it would seemingly be necessary for the rule to continue to apply in order to also inform the interpretation of IHL. Even if this were the case, however, these are significant legal developments to support the assertion that the customary prevention principle continues to apply, particularly given the general shift away from the historic perspective that IHL applies to the exclusion of other “peacetime” regimes.157 Principle 24 of the Rio Declaration 1992, a soft law instrument, states that “[w]arfare is inherently destructive of sustainable development. States shall therefore respect international law providing protection for the environment in times of armed conflict”. Scholars have noted that the reference to “international law” goes beyond IHL, including IEL,158 thereby paving the way for assertions that general principles of IEL, such as the prevention principle, continue to apply during armed conflict.159 Moreover, some scholars consider that the ICJ stated in the Nuclear Weapons Advisory Opinion that IEL continues to apply during armed conflicts.160 Whilst this is an overstatement, since the ICJ made the more nuanced pronouncement that existing international law indicates “environmental factors” (not rules) to be taken into account, it provides the basis for such arguments, including by the ICRC.161 Finally, in 2011 the ILC adopted its Draft Articles on the Effects of Armed Conflicts on Treaties (Draft Articles).162 In particular, the Draft Articles include an indicative list of treaties that continue to apply, in whole or in part, by implication of their subject matter; treaties relating to the international protection of the environment are included in this list.163 Using the same logic, it has been suggested that there is no reason, in principle, to exclude the continuing application of customary IEL, including the prevention principle.164 This is further supported by Draft Article 10, which states that the impact armed conflict may have on treaty obligations does not impair duties the state may have independently of that treaty,165 under customary law for example. Overall, the notion of “applicable” may not require establishing that IEL actually continues to apply during armed conflict in order to also inform the interpretation of IHL. Yet even if its continuing application was necessary, strong legal arguments can be made to this effect.

157

Bothe et al. 2010, p 580. Viñuales 2015, p 53. 159 Tougas 2015. 160 Stefanik 2017, p 93. 161 ICRC 2005, Rule 44. 162 ILC 2011. 163 Ibid., Article 7 and Annex. 164 Pavoni and Piselli 2022. 165 ILC 2011, Draft Article 10. 158

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1.5 “Taking into Account” the Prevention Principle to Interpret the IHL Rules Given the contextual nature of both the IEL and IHL frameworks, it is difficult to abstractly set out with certainty what “taking into account” the IEL prevention principle will entail in each military operation. It will be relevant, on a case-by-case basis, to consider the exact environmental elements that may be harmed, such as a watercourse, biodiversity, air pollution, flora, fauna and so on. What IHL precautions are feasible in a given situation will also depend on the circumstances of each military operation. Nonetheless, it is possible to map out in broad terms where opportunities for crossover arise, so as to examine what harmonisation could entail and also highlight limiting factors.

1.5.1 Precautions in Attacks Once an armed conflict breaks out, the regime for precautions in attacks under Article 57 API will apply. Proceeding on the basis that distinction has been complied with and a military objective identified, two key obligations have scope to be informed by the prevention principle: the choice of means and methods of warfare such as to avoid and minimise incidental environmental harm; refraining from launching an attack that may be expected to cause excessively disproportionate harm to civilian objects, including the environment. Pursuant to the harmonisation of these provisions with the prevention principle, targeting decisions should entail environmental considerations and assessments, including the procedural duties of EIAs and cooperation. Firstly, EIAs can be utilised to assess the extent of foreseeable environmental harm, such as to inform the decision on choosing the appropriate means or methods of warfare and whether the attack would be lawful, bearing in mind the collateral environmental harm. The duty to cooperate, in principle, would play a role in the information gathering stage and in seeking to minimise risks of environmental harm. Hulme has set out in detail what a “simplified” EIA in these circumstances would entail.166 Whilst she ties this procedural step to the duty to take “care” under Article 55 API, the analysis is equally applicable in relation to precautionary under Article 57, since it also entails the duty to take “constant care” to spare inter alia the environment as a civilian object. Accordingly, the information that requires gathering for an EIA prior to an attack pertains to the nature of the target itself, for example the contents of a military facility; what the effect may be on attacking that installation, for example, in terms of the toxic substances or risk of explosion; the features of the local environment.167 166 167

Hulme 2004, p 84. Ibid.

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Limiting factors that could arise in carrying out the above would be lack of information, lack of expertise and time constraints. Hulme addresses the issue of lack of information as to the facility by reasoning that in order for it to be identified as a military objective in the first place, sufficient information has to already be known about its function.168 She further argues that it would be a breach of good faith to attack an installation without being able to predict the scale of environmental consequences.169 As for information relating to the surrounding environment of the military objective, presumably there would not be a lack of this in relation to a state’s own territory. The key difficulty arises in “cooperating” with opposing belligerent states, since such a concept would seem incompatible with armed conflict. Whilst the ILC’s Draft Principle 24 PERAC notes that states shall grant access to relevant information for the purposes of facilitating remedial measures after an armed conflict, there is no equivalent provision for the phase during armed conflict, perhaps in acknowledgment of the above tension and unreasonableness of such a proposition. However, states have to use “all the means at [their] disposal”170 to fulfil their obligations under the prevention principle. When it therefore comes to information on the environmental elements surrounding the area of the intended military objective, but also generally the existence of significant environmental factors or vulnerabilities present throughout the territory of another belligerent state, states can seek to consult with neutral independent actors, such as NGOs or international organisations, for this information. The ICRC already plays a role in relation to civilian protection, for example by facilitating humanitarian corridors; an analogous role can be played by independent actors working on minimising environmental harm. Turning to the lack of expertise, it is not expected that commanders have the capabilities and expertise to carry out such highly technical EIAs. One reasonable obligation that can therefore flow from the harmonised obligations is the need for armed forces personnel dedicated to environmental protection. This is not a novel concept, since a number of armed forces already employ “Environmental Health Officers” to provide advice on health and environmental safety issues.171 A trilateral collaboration between the defence organisations of the United States, Sweden and Finland has published a report on environmental tools for use during military exercises, with a view to standardising “environmental documents, procedures and technical solutions” for NATO and EU member states.172 This includes a toolkit containing checklists for processes by “Environmental Protection Officers” and “Environmental Protection Planners” and the establishment of an “Environmental Protection Working Group”.173

168

Ibid., p 85. Ibid., p 87. 170 Pulp Mills, above n. 121, para 101. 171 See, for example, New Zealand Air Force, Environmental Health Officer. https://www.defenceca reers.mil.nz/air-force/careers/browse-roles/environmental-health-officer/. Accessed 8 June 2022. 172 Clark-Sestak 2019, p 2. 173 Ibid., Appendix B. 169

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However, the Toolkit is intended for military exercises by individual NATO and EU member states, whether individually or multilaterally.174 It is thus not tailored to decision-making pursuant to precautions in attack. In principle, however, there is no reason why the roles of such officers should not extend to also cover the phase of active conduct of hostilities, with appropriate guidelines and assessment tools being drawn up by states during peacetime for use by such officers. Using these, the role of such officers would be to advise commanders on the foreseeable environmental impact of an attack. A significant development in this regard is the “digital revolution” in relation to earth observation data and open-source investigations on environmental harm arising from armed conflicts.175 Thus, the widespread availability of satellite images and data assessment from previous and ongoing environmental harm from conflicts means “[t]he scope and severity of environmental damage resulting from attacks is more foreseeable than ever before.”176 Given that the prevention principle’s own substance and level of care continues to evolve as environmental risks, technological and regulatory standards continue to develop,177 this in turn could lead to the evolving understanding of environmental harm within armed conflict. In this sense, the standard of environmental harm that is deemed to be foreseeable could arguably be lower on a case-by-case basis when viewed through the lens of duties flowing from both IEL and IHL, than if it were just under IHL. Whilst this does not guarantee that environmental harm does not eventually ensue, since ultimately a commander’s final conclusion may be that the collateral damage remains proportionate to the anticipated military gain, good faith would require that the findings as to environmental harm are used to inform the attack, as well as minimise the harm, to the extent feasible.178 It has been noted that currently, commanders’ ignorance over environmental factors is leading to the undervaluation of collateral damage.179 Integration with the prevention principle would address this issue, leading to better informed decision making on the basis of expertly carried out EIAs. Whilst it would not resolve the fact that there is no exact formula in balancing the competing factors of harm to civilian objects and military gain, it could mean that the value attributed to environmental harm is made more objective. As for the level of information required and depth of analysis entailed in an EIA, these will likely be shaped by time constraints. What is reasonably foreseeable for the purposes of assessing proportionality, which is a mandatory step for an attack to be lawful, can be interpreted to depend upon how far in advance an attack is planned. To this end, the due diligence standard can be read to require states to set out clear guidelines for determining the level of information and assessment needed on a caseby-case basis, depending on time constraints and other battlefield conditions. This

174

Ibid., 2. Zwijnenburg 2021. 176 Ibid. 177 Brunnée 2021, p 274. 178 Hulme 2004, p 87. 179 Smith 2019, p 773. 175

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will serve to standardise and systematise such processes, ensuring that less rigorous assessments are in fact justified in specific circumstances. Finally, Article 57(2)(c) API requires advance warning to civilians when circumstances so permit. When read in light of the duty to cooperate, which entails the obligation to notify and consult, the same obligation can extend to advance warning in order to minimise environmental harm. As for the duty to consult, it seems unrealistic that parties to the conflict will have open dialogue such as to consult over the means or methods of attack to cause lesser environmental harm. A different interpretation would be upon notification, it places the onus on the attacked state to then consider appropriate precautions against the effects of this attack and “consulting” with the attacking state in relation to this. This can mean requesting time to relocate the military objective, if movable.180 Overall, once an armed conflict breaks out, the prevention principle can inform precautions in attacks both at the decision-making stage and immediately prior to the implementation of an attack. EIAs can play a role in ascertaining the extent of environmental harm and lead to better informed decision making from an environmental perspective. The duty to cooperate can feed into the requirement to notify the other side prior to the launch of an attack such as to enable it to take precautions against these effects.

1.5.2 Precautions Against the Effects of Attacks Turning to the scope for precautions against the effects of attacks to take into account the prevention principle, this extends to both peacetime and once conflict breaks out. Firstly, it can be taken into account in relation to decisions on the location of military installations in a state’s own territory, tying in directly with the obligation under Article 58(c) API. The ICRC has already suggested that this obligation during peacetime means locating facilities which would become targetable as military objectives in the event of conflict outbreak should consider the impact this would have on the surrounding environment as collateral damage. The same suggestion has been supported by scholars.181 Given that this course of action has already been suggested in relation to Article 58(c) without necessarily relying on the prevention principle, the question arises as to what added value this provides. It is submitted that this is twofold. Firstly, given the vagueness of the framing of taking “other necessary precautions”, the prevention principle strengthens the legal basis of the need to not locate military objectives close to environmentally significant areas, by tying it to a legal obligation from the specialist regime of IEL. Thus, by viewing this provision as a matter of course through both lenses of IHL and IEL, it strengthens the legal underpinning of this proposed precautionary action. 180 181

Hulme 2010, p 687. Bothe 2010.

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Secondly, the prevention principle provides for the procedural steps to be taken in this decision-making. Accordingly, any decision relating to the placement of a military installation during peacetime would require an expertly carried out EIA to ascertain the environmental risks of this, in the event it came under attack upon the outbreak of hostilities. This would also include the duty to cooperate with other potentially affected states, to seek any relevant information to feed into the EIA, consult with them about the potential environmental harm that would risk ensuing and what measures can be taken to minimise the collateral environmental harm in the event of the military objective being targeted. Whilst the above would be the harmonised framework in principle, in practice states may be hesitant to cooperate on decision-making relating to potential national security information, such as what function will be served by the installation. Rather, the sense of self-preservation “continues to drive military defense preparedness and can create short sightedness as it relates to environmental protections”.182 Here, however, the contextual nature of the prevention principle is of significance. It can thus be interpreted to require states to cooperate with states they are in existing alliances with, such as NATO member states. In absence of such relations, states can seek to enter bilateral or multilateral agreements to govern their cooperation on these matters. In addition to informing decisions on where to place a military objective, states would have to consider designating areas of environmental significance or vulnerability as protected zones. This is already included by the ILC as Draft Principle 4 PERAC. The ability to agree on demilitarised zones upon the outbreak of hostilities requires states to identify areas within their own territory during peacetime, when they will be free from the constraints of armed conflict. Tying this IHL precautionary duty to the IEL prevention principle and precautionary approach has already been suggested by scholars.183 Since the existence and identification of a protected environmental zone would not necessarily be obvious to an adversary, it is for the territorial state, during peacetime, to identify and designate environmental protected areas, pursuant to the aim and procedural steps of the prevention principle, and refrain from placing any military objective in their vicinity. Pursuant to the duty to cooperate, states can thereafter make known the existence of the protected area, either by publishing a list, marking it with an emblem or sharing a list with adversaries upon the outbreak of hostilities.184 States should also seek to agree with adversaries on the demilitarised status of such areas, converting unilateral decisions into bilateral or multilateral agreements. The notable aspect of the above proposals is that they flow from the existing IHL rules and indeed have already been suggested as coming under them. The significance of the prevention principle is that it provides a stronger legal basis for these actions and is able to better inform their procedural aspects. From this perspective, there is strong harmonisation potential for the two legal frameworks, which are largely 182

Smith 2020, p 120. Bothe 2010. 184 United Kingdom 2004, para 5.30.2. 183

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complementary. In addition, the decision-making to be taken in peacetime will be free from battlefield constraints.

1.5.3 Achieving Systemic Integration in Reality: Where Next? As noted, one of the shortcomings of Article 31(3)(c) VCLT is that it does not exclusively determine the interpretation of a rule, given that other factors, notably subsequent state practice under Article 31(3)(b), are also relevant.185 However, in the author’s view, this is not a limiting factor only in the context of this tool of harmonisation. Even if the same analysis flows by using other methodologies, there would still be a need for states to acknowledge and act in accordance with the interrelationship of different fields of law in order to make this a practical reality. This final section sets out some of the necessary developments to pave the way towards realising the systemic integration of IEL and IHL. Given that both IHL and IEL lack a judicial or quasi-judicial enforcement mechanism, there are limited opportunities for authoritative interpretation on this interrelationship to be handed down through dispute resolution. As the “guardian” of IHL, the ICRC seeks to fill this gap in clarifying and developing IHL,186 notably through its Commentaries on the Geneva Conventions and their Additional Protocols. Although not binding, at the very least its Commentaries and studies can generate responses from states and scholarly discussion as regards the current state of the law. As of 2022, the ICRC Commentaries to the first three Geneva Conventions have been updated, all of which utilise Article 31(3)(c) VCLT as the legal basis for referring to other rules of international law, such as international criminal law and IHRL.187 Whilst IEL has not been included to date, perhaps because it is not “relevant” for the purposes of the aforementioned treaties, it is hoped that the prevention principle will feature in forthcoming updated Commentaries, particularly the framework of API examined herein. Moreover, the use of Article 31(3)(c) by the ICRC reaffirms its dynamic purpose, in that it is not limited simply to use by judicial organs when a formal legal dispute arises between states. Rather, it provides states with the tool for “autointerpretation”.188 In this analysis, the general obligation under the prevention principle to take appropriate regulatory and policy measures requires states to develop guidelines and regulations on preventing environmental harm during armed conflict. Such a domestic framework, reflecting the interactions mapped out in previous subsections, such as the role of EIAs, the duty to cooperate and measures such

185

Since there are no “subsequent agreements” for the purposes of Article 31(3)(a) VCLT regarding the interpretation of API, this factor is not relevant. 186 ICRC 2011. 187 ICRC 2016, paras 36–45. 188 Samson 2011, p 701.

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as appointing expert personnel, would enable more consistent and standardised decision-making before and during armed conflict. A significant effort in terms of demonstrating what such domestic guidelines can look like has been made by the aforementioned trilateral collaboration between the United States, Sweden and Finland, which in 2008 published the ‘Environmental Guidebook for Military Operations’.189 The Guidebook pertains to the entire life cycle of a military operation, including pre-deployment and during deployment, and contains guides and template checklists for assessing and responding to environmental harm. The following template, for example, provides the “generic process for establishing, executing and reviewing appropriate actions for any types of environmental consideration”,190 which is to be tailored to a specific type of environmental element (Fig. 1.1). The notion of an EIA is also explicitly recognised in relation to on-site hazards for deployed forces, as demonstrated in the following checklist191 (Fig. 1.2). However, the above and overall purpose of the Guidebook is seemingly not aimed at environmental harm that will be caused during active hostilities, but more the impact the presence of the armed forces at a specific site will have on the surrounding environment, as well as the need to avoid adverse health impacts on service members.192 As such, whilst a significant effort in terms of recognising the need to minimise environmental harm during the lifecycle of a deployment, it does not go as far as explicitly extending to the precautionary duties in and from the effects of attacks. In principle, however, such guidelines, accompanied by sample templates, can pave the way for states to begin integrating their IEL obligations with guidelines on the targeting framework. Once states draw up the relevant policies and tools, either within military manuals or distinct guidelines, they would have the obligation to disseminate this to armed forces.193 International institutions and other non-governmental actors are increasingly highlighting the environmental consequences of conflict. In doing so, they are shining a light on the wealth of expertise and advanced methods in analysing ongoing and anticipated environmental impacts, and advocating for states to prevent such harm.194 Meanwhile, the lack of public insight into the carrying out of proportionality assessments means it is unclear how the environment is currently weighed up in targeting decisions by states. A notable public example is the US’ actions in response to the Gulf War oil spill in January 1991. As per its letter to the UN Security Council: after full consultation with oil and environmental experts and the Governments of Kuwait and Saudi Arabia, United States aircraft destroyed two manifold areas used for pumping oil along pipelines. We believe this action has halted the discharge of oil into the Gulf. At the 189

Waleij et al. 2008, p 21. Ibid., p 23. 191 Ibid., p A10-1. 192 Ibid., p iii. 193 ICRC undated. 194 See, for example, in the context of the armed conflict in Ukraine ongoing at the time of writing, UNEP 2022 and OECD 2022. 190

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Fig. 1.1 Template assessment process for environmental considerations throughout the lifecycle of military operations. Source Waleij et al. 2008

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Fig. 1.2 Template checklist for environmental screening on a site visit prior to execution of a planned project. Source Waleij et al. 2008

request of the Government of Saudi Arabia, the United States dispatched expert personnel and specific equipment to help contain the slick and minimize its environmental impact.195

195

United States, Letter dated 30 January 2021 from the Permanent Representative of the USA to the United Nations Addressed to the President of the Security Council (1991) UN Doc S/22173, pp 2–3 (emphasis added).

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This may only be an anecdotal example, rather than a sign of ordinary practice for every attack. Nonetheless, it demonstrates the feasibility of steps such as cooperation with experts and other states and the preventive action of dispatching expert personnel and equipment. Through the lens of the prevention principle, such steps would be made systematic considerations. The finalising of the Draft Principles on PERAC and their adoption by the General Assembly provides the required impetus for the states that expressed interest in understanding what the interrelationship of IHL and IEL means in practice to unilaterally or jointly take stock of their IHL and IEL obligations and reflect the integration of the duties flowing from each framework.

1.6 Conclusion In order to clarify and enhance environmental protection during armed conflicts, this chapter examined the extent to which the IEL prevention principle can inform the gaps within the general IHL targeting framework in relation to the environment, as underpinned by the obligations to take precautions in and from the effects of attacks. It identified Article 31(3)(c) VCLT as a suitable method to examine this interrelationship. To this end, it established that the prevention principle is “relevant” and “applicable” for the purposes of informing precautionary duties under IHL. In assessing what “taking into account” the prevention principle could look like in practice, it mapped out where the two frameworks intersect and analysed how duties flowing from the prevention principle, notably EIAs and the duty to cooperate, can better inform the application of IHL precautionary duties as applied to the environment. In answer therefore to the research question, it demonstrated that there is great scope for the prevention principle to inform the interpretation of IHL precautionary duties. The prevention principle is capable of informing not only the underlying content of the IHL rules where these are vague, such as what “other necessary precautions” against the effects of attacks entail, but also the procedural steps by which required assessments can be undertaken. It evidenced the utility of Article 31(3)(c) in that “legal interpretation, and thus legal reasoning, builds systemic relationships between rules and principles”.196 More generally, it has been noted that the incidence of environmental harm in armed conflict is a prime opportunity to analyse cross-sectoral international law norms “from a plurality of perspectives and evaluate them in the context of the objectives, principles, approaches and norms of each relevant branch”.197 As such, the relevance of the prevention principle is not limited to the selected IHL rules in this chapter; similarly, other principles of IEL, such as the principle of inter-generational equity, can also inform the interpretation of IHL provisions.198 This chapter has demonstrated the utility of setting out IHL and IEL rules side by side and undertaking 196

ILC 2004, para 29. Wyatt 2010, p 646. 198 Dienelt 2016, p 56. 197

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a technical analysis of the extent to which IEL can inform the interpretation of IHL. Further research and implementation efforts are now needed by state and non-state actors to pave the way for greater environmental protection during armed conflict to become a reality before it becomes too late. Acknowledgements This chapter is based on an LLM thesis, written in a personal capacity, and does not necessarily reflect the views of any institution the author is or has been affiliated with. The author would like to thank Dr. Jérôme de Hemptinne for his supervision of the LLM thesis, Dr. Katharine Fortin for her feedback on a revised version, and the peer reviewers and editors of the Yearbook for International Humanitarian Law for their constructive comments and guidance.

References (Online) Articles, Books and Chapters in Books Action on Armed Violence (2020) ‘The Broken Land’: A Review of the Environmental Impact of Explosive Weapons. https://aoav.org.uk/2020/the-broken-land-overview-and-introduction/. Accessed 18 June 2022 Afriansyah A (2013) The Adequacy of International Legal Obligations for Environmental Protection during Armed Conflict. Indonesia Law Review 3:55–96 Baker B (1993) Legal Protections for the Environment in Times of Armed Conflict. Virginia Journal of International Law 33:351–383 BBC News (2022) Ukraine War: Chemical Plant Hit as Fighting Rages in Severodonetsk. https:// www.bbc.co.uk/news/world-europe-61773356. Accessed 18 June 2022 Bhat S (2019) A Study of the Issue of ‘Relevant Rules’ of International Law for the Purposes of Interpretation of Treaties under Article 31(3)(c) of the Vienna Convention on the Law of Treaties. International Community Law Review 21:190–219 Biswas A (2001) Scientific Assessment of Long-Term Environmental Consequences of War. In: Austin J, Bruch C (eds) The Environmental Consequences of War: Legal, Economic and Scientific Perspectives, 1st edn. CUP, Cambridge, pp 303–315 Bothe M (2010) Principle of Prevention in International Environmental Law and Principle of Precaution in in the Laws of Armed Conflict. Conference, Protection of the Environment in Relation to Armed Conflict – Beyond the ILC Conference, Hamburg, 7-8 March 2019. https://www.unige. ch/droit/eau/files/5615/5381/4277/Booklet_final.pdf. Accessed 4 June 2022 Bothe M (2020) Precaution in International Environmental Law and Precautions in the Law of Armed Conflict. Goettingen Journal of International Law 1:267–281 Bothe M, Bruch C, Diamond J, Jensen D (2019) International Law Protecting the Environment During Armed Conflict: Gaps and Opportunities. International Review of the Red Cross 92:569– 592 Brunnée J (2021) Harm Prevention. In: Rajamani L, Peel J (eds) The Oxford Handbook of International Environmental Law, 2nd edn. OUP, Oxford, pp 269–284 Clark-Sestak S (2019) Environmental Tools for Use During Environmental Exercises, Institute for Defense Analyses. https://www.ida.org/-/media/feature/publications/e/en/environmental-toolsfor-use-during-military-exercises/d-10504.ashx. Accessed 8 June 2022 Crawford C, Pert A (2020) International Humanitarian Law, 2nd edn. CUP, Cambridge Dienelt A (2016) Is the ILC’s Work Enhancing Protection for the Environment in Relation to Warfare? A reply to Stavros-Evdokimos Pantazopoulos and Karen Hulme. Questions of International Law 34:43–56

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Dienelt A (2022) Armed Conflicts and the Environment: Complementing the Laws of Armed Conflict with Human Rights Law and International Environmental Law, 1st edn, Springer, Switzerland Dinstein Y (2012) The Principle of Proportionality. In: Mujezonovic Larsen K, Cooper C G, Nystuen G (eds) Searching for a ‘Principle of Humanity’ in International Humanitarian Law, 1st edn. CUP, Cambridge, pp 72–85 Droege C, Tougas M-L (2013) The Protection of the Natural Environment in Armed Conflict – Existing Rules and Need for Further Legal Protection. Nordic Journal of International Law 82:21–52 Duffy H (2020) Trials and Tribulations: Co-Applicability of IHL and Human Rights in an Age of Adjudication. In: Bohrer Z, Dill J, Duffy H (eds) Law Applicable to Armed Conflict, 1st edn. CUP, Cambridge, pp 15–105 Dupuy P-M, Le Moli G, Viñuales J (2021) Customary International Law and the Environment. In: Rajamani L, Peel J (eds) The Oxford Handbook of International Environmental Law, 2nd edn. OUP, Oxford, pp 385–401 Dupuy P-M, Viñuales J (2018) International Environmental Law, 2nd edn. CUP, Cambridge Duvic-Paoli L-A, Viñuales J (2020) Prevention of Environmental Harm. In: Viñuales J (ed) The UN Friendly Relations Declaration at 50. 1st edn. CUP, Cambridge, pp 283–313 Fleck D (2021) Protection of the Environment in Relation to Armed Conflicts. In: Fleck D (ed) The Handbook of International Humanitarian Law, 4th edn. OUP, Oxford, pp 338–350 Gardiner R (2015) Treaty Interpretation, 2nd edn. OUP, Oxford Henckaerts J-M, Constantin D (2014) Protection of the Natural Environment. In: Clapham A, Gaeta P (eds) Oxford Handbook of International Law in Armed Conflict, 1st edn. OUP, Oxford, pp 469–491 Higgins R (1994) Problems and Processes: International Law and How We Use It, 1st edn. OUP, Oxford Howe R (2007) The Use and Abuse of Other “Relevant Rules of International Law” in Treaty Interpretation: Insights from WTO Trade/Environment Litigation, IILJ Working Paper. https://www.iilj.org/publications/the-use-and-abuse-of-other-relevant-rules-of-internati onal-law-in-treaty-interpretation-insights-from-wto-tradeenvironment-litigation/. Accessed 10 May 2022 Hulme K (2004) War Torn Environment, 1st edn. Martinus Nijhoff, Leiden Hulme K (2010) Taking Care to Protect the Environment Against Damage: a Meaningless Obligation? International Review of the Red Cross 92:675–691 ICRC (undated) Dissemination. https://casebook.icrc.org/glossary/dissemination. Accessed 1 June 2022 ICRC (1987) Commentary on Additional Protocol I. https://ihl-databases.icrc.org/applic/ihl/ihl. nsf/Comment.xsp?action=openDocument&documentId=78C0DA9A7B459ACEC12563CD 0042F649. Accessed 5 May 2022 ICRC (2005) Customary International Humanitarian Law Database. https://ihl-databases.icrc.org/ customary-ihl/eng/docs/v1. Accessed 7 May 2022 ICRC (2011) Strengthening International Humanitarian Law. https://www.icrc.org/en/doc/whatwe-do/other-activities/development-ihl/overview-development-ihl.htm. Accessed 8 June 2022 ICRC (2016) Commentary on Geneva Convention I. https://ihl-databases.icrc.org/applic/ihl/ihl. nsf/Comment.xsp?action=openDocument&documentId=5087F3472575591CC1257F15004 9C80B. Accessed 8 June 2022 ICRC (2020a) When Rain Turns to Dust: Understanding and Responding to the Combined Impact of Armed Conflicts and the Climate and Environment Crisis on People’s Lives. https://www.icrc.org/sites/default/files/topic/file_plus_list/rain_turns_to_dust_climate_c hange_conflict.pdf. Accessed 4 June 2022 ICRC (2020b) Guidelines on the Protection of the Natural Environment in Armed Conflict. https://www.icrc.org/en/document/guidelines-protection-natural-environment-armedconflict-rules-and-recommendations-relating. Accessed 4 June 2022

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ICTY (2000) Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign against the FRY. International Legal Materials. Vol 39. https://www.icty.org/en/press/final-report-prosecutor-committee-established-review-natobombing-campaign-against-federal. Accessed 25 September 2022 ILC (2001a) Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries, 53rd Session, UN Doc A/56/10 ILC (2001b) Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, with Commentaries, 53rd Session, UN Doc A/56/10 ILC (2004) Study on the Function and Scope of the Lex Specialis Rule and the Question of SelfContained Regimes: Preliminary Report by Mr Martti Koskenniemi, Chairman of the Study Group 56th Session, UN Doc ILC(LVI)/SG/FIL/CRD.1 ILC (2006) Report of the study group of the ILC: Fragmentation of International law: Difficulties Arising from the Diversification and Expansion of International Law, 58th Session, UN DOC A/CN4/L682 ILC (2011) Draft Articles on the Effects of Armed Conflicts on Treaties, with Commentaries, 63rd Session, UN Doc A/66/10 ILC (2019) Draft Principles on the Protection of the Environment in Relation to Armed Conflicts, 71st Session, UN Doc A/74/10 ILC (2022a) Comments and Observations received from Governments, international organisations and others, 73rd Session, UN Doc A/CN.4/749 ILC (2022b) Draft Principles on the Protection of the Environment in Relation to Armed Conflicts, with Commentaries, 73rd Session, UN Doc A/77/10 ILC (2022c) Statement of the Chairperson of the Drafting Committee, Mr Ki Gab Park, 73rd Session, 2022c. https://legal.un.org/ilc/documentation/english/statements/2022_dc_chairman_ statement_peac.pdf. Accessed 4 June 2022 Leibler A (1992) Deliberate Wartime Environmental Damage: New Challenges for International Law. California Western International Law Journal 23:67–137 Matz-Lück N (2006) Harmonisation, Systemic Integration and Mutual Supportiveness and ConflictSolution Techniques: Different Modes of Interpretation as a Challenge the Negative Effects of Fragmentation. Finnish Yearbook of International Law 17:39–53 McLachlan C (2005) The Principle of Systemic Integration and Article 31(3)(c) VCLT. International and Comparative Law Quarterly 54:279–320 Merkouris P (2015) Article 31(3)(c) VCLT and the Principle of Systemic Integration: Normative Shadows in Plato’s Cave, 1st edn. Brill Nijhoff, Leiden Merkouris P (2022) Interpreting Customary International Law. In: Merkouris P, Kammerhofer J, Arajärvi N (eds) The Theory, Practice, and Interpretation of Customary International Law, 1st edn. CUP, Cambridge, pp 347–369 Nanda V, Print G (2013) International Environmental Law and Policy for the 21st Century, 2nd edn. Brill Nijhoff, Leiden OECD (Organisation for Economic Co-operation and Development) (2022) Environmental Impacts of the War in Ukraine and Prospects for a Green Reconstruction. https://www.oecd.org/ukr aine-hub/policy-responses/environmental-impacts-of-the-war-in-ukraine-and-prospects-for-agreen-reconstruction-9e86d691/#boxsection-d1e261. Accessed 20 February 2023 Pavoni R, Piselli D (2022) Armed Conflicts and the Environment: an Assessment of Principle 24 of the Rio Declaration Thirty Years on. University of Sienna Working Paper. https://papers.ssrn. com/sol3/papers.cfm?abstract_id=4071106. Accessed 27 May 2022 Peters A (2017) The Refinement of International Law: from Fragmentation to Regime Interaction and Politicization. International Journal of Constitutional Law 15:671–704 Plant G (1992) Environmental Protection and the Law of War: A ’Fifth’ Geneva Convention on the Protection of the Environment in Time of Armed Conflict. 1st edn. Belhaven Press, London Quéguiner J-F (2006) Precautions Under the Law Governing the Conduct of Hostilities. International Review of the Red Cross 88:793–821

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Rajamani L, Peel J (2021) International Environmental Law: Changing Context, Emerging Trends, and Expanding Frontiers. In: Rajamani L, Peel J (eds) The Oxford Handbook of International Environmental Law, 2nd edn. OUP, Oxford, pp 1–30 Samson M (2011) High Hopes, Scant Resources: A Word of Scepticism about the AntiFragmentation Function of Article 31(3)(c) of the Vienna Convention on the Law of Treaties. Leiden Journal of International Law 24:701–714 Sands P, Peel J (2012) Principles of International Environmental Law, 2nd edn. CUP, Cambridge Schmitt M (1997) Green War: An Assessment of the Environmental Law of International Armed Conflict. Yale Journal of International Law 22:1–109 Sjöstedt B (2021) The Role of Multilateral Environmental Agreements: A Reconciliatory Approach to Environmental Protection in Armed Conflict, 1st edn. Bloomsbury, Oxford Smith K (2020) Environmental Protection, the Military, and Preserving the Balance: “Why it Matters, in War and Peace”. Seattle Journal of Technology, Environmental & Innovation Law 11:112–132 Smith T (2019) Critical Perspectives on Environmental Protection in non-International Armed Conflict: Developing the Principles of Distinction, Proportionality and Necessity. Leiden Journal of International Law 32:759–779 Stefanik K (2017) The Environment and Armed Conflict – Employing General Principles to Protect the Environment. In: Stahn C, Iverson J, Easterday J (eds) Environmental Protection and Transitions from Conflict to Peace: Clarifying Norms, Principles and Practices, 1st edn. OUP, Oxford, pp 93–118 Thürer D (2011) International Humanitarian Law: Theory, Practice, Context, 1st edn. Brill Nijhoff, Leiden Todeschini V (2018) The Impact of International Humanitarian Law on the Principle of Systemic Integration. Journal of Conflict and Security Law 23:359–382 Tougas ML (2015) Principle 24: The Environment in Armed Conflict. In: Viñuales J (ed) The Rio Declaration on Environment and Development: A Commentary, 1st edn. OUP, Oxford, pp 571–584 Trouwborst A (2009) Prevention, Precaution, Logic and Law – the Relationship between the Precautionary Principle and the Preventative Principle in International Law and Associated Questions. European Law Review 2:105–127 Tzevelekos V (2010) The Use of Article 31(3)(c) of the VCLT in the Case Law of the ECtHR: an Effective Anti-Fragmentation Tool or a Selective Loophole for the Reinforcement of Human Rights Teleology? Between Evolution and Systemic Integration. Michigan Journal of International Law 31:621–690 United Kingdom (2004) The Joint Service Manual of the Law of Armed Conflict. https://assets. publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/27874/ JSP3832004Edition.pdf. Accessed 8 June 2022 UNEP (United Nations Environment Programme) (2009) Protecting the Environment During Armed Conflict: An Inventory and Analysis of International Law. https://wedocs.unep.org/ bitstream/handle/20.500.11822/7813/Protecting%20the%20Environment%20During%20A rmed%20Conflict_An%20Inventory%20and%20Analysis%20of%20International%20Law2009891.pdf?sequence=3&%3BisAllowed=. Accessed 4 June 2022 UNEP (United Nations Environment Programme) (2022) The Environmental Impact of the Conflict in Ukraine: a Preliminary Review. https://wedocs.unep.org/bitstream/handle/20.500.11822/ 40746/environmental_impact_Ukraine_conflict.pdf?sequence=3&isAllowed=y. Accessed 20 February 2023 van Steenberghe R (2022) The Impacts of Human Rights Law on the Regulation of Armed Conflict: A Coherency-based Approach to Dealing with both the “Interpretation” and “Application” Processes. International Review of the Red Cross 104:1345–1396 Vessey J (1998) The Principle of Prevention in International Law. Austrian Review of International and European Law 3:181–207

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Villager M (2009) Commentary on the 1969 Vienna Convention on the Law of Treaties, 1st edn. Brill Nijhoff, Leiden Viñuales J (2015) The Rio Declaration on Environment and Development: A Commentary, 1st edn. OUP, Oxford Vöneky S (2001) Peacetime Environmental Law as a Basis of State Responsibility for Environmental Damage Caused by War. In: Austin J, Bruch C (eds) The Environmental Consequences of War: Legal, Economic and Scientific Perspectives, 1st edn. CUP, Cambridge, pp 190–225 Waleij A, Bosetti T, Clark-Sestak S, Ebbhagen CG, Kajander S, Kivipelo A, Liljedahl B, Nicholls W, Olsson S, Scott Anderson Å, Schiltheis T, Sovijärvi A, Uusitalo H (2008) Trilateral Collaboration between the US, Sweden and Finland Environmental Guidebook for Military Operations. https:// www.defmin.fi/files/1256/Guidebook_final_printing_version.pdf. Accessed 2 June 2022 Watts S (2020) Interpretation in the Updated GCIII Commentary. Lieber Westpoint. https://lieber. westpoint.edu/interpretation-updated-gciii-commentary/. Accessed 1 June 2022 Wyatt J (2010) Law-making at the Intersection of International Environmental, Humanitarian and Criminal Law: the Issue of Damage to the Environment in International Armed Conflict. International Review of the Red Cross 92:593–646 Zwijnenburg W (2021) Data-Driven Environmental Decision-Making and Action in Armed https://blogs.icrc.org/law-and-policy/2021/06/01/data-driven-environmental-dec Conflict. ision-making-armed-conflict/. Accessed 8 June 2022

Other Documents Instructions for the Government of Armies of the United States in the Field 24 April 1863. https:// ihl-databases.icrc.org/ihl/INTRO/110?OpenDocument. Accessed 18 June 2022 New Zealand Air Force, Environmental Health Officer. https://www.defencecareers.mil.nz/airforce/careers/browse-roles/environmental-health-officer/. Accessed 8 June 2022 United States, Letter dated 30 January 2021 from the Permanent Representative of the USA to the United Nations Addressed to the President of the Security Council (1991) UN Doc S/22173

Cases ECtHR, Case of Hassan v UK, Grand Chamber Judgment, 16 September 2014, Application No. 29750/09 ICJ, Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v Nicaragua), Judgment, 16 December 2015, [2015] ICJ Rep 665 ICJ, Case Concerning Pulp Mills on the River Uruguay (Argentina v Uruguay), Judgment, 20 April 2010, [2010] ICJ Rep 14 ICJ, Oil Platforms (Iran v USA), Judgment, 6 November 2003, [2003] ICJ Rep 161 ICJ, Gabˇcíkovo-Nagymaros Project (Hungary v Slovakia), Judgment, 25 September 1997, [1997] ICJ Rep 7 ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, [1996] ICJ Rep 226 ICJ, Arbitral Award of 31 July 1989 (Guinea-Bissau v Senegal), Judgment, 12 November 1991, [1991] ICJ Rep 53 ICJ, Legal Consequences for States of Continued Presence of South African in Namibia (South-West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 21 June 1971, [1971] ICJ Rep 16

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ICJ, The Corfu Channel Case (UK v Albania), Judgment on the Merits, 9 April 1949, [1949] ICJ Rep 4 Trail Smelter Arbitral Tribunal (United States v Canada) (1938 and 1941) 3 RIAA 1905

Treaties Convention on Biological Diversity, opened for signature 5 June 1992, 1760 UNTS 69 (entered into force 29 December 1993) Declaration of the United Nations Conference on the Human Environment, adopted 16 June 1972, UN Document A/CONF.48/14/Rev 1 (1973) Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, opened for signature 7 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1979) Rio Declaration on Environment and Development, adopted 13-14 June 1992, UN Document A/ CONF.151/26, vol 1 (1992) Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980)

Yiokasti Mouratidi is an LLM graduate in Public International Law from Utrecht University, the Netherlands. She currently works at the UK Mission to the EU in Brussels under the UK Foreign, Commonwealth and Development Office.

Chapter 2

International Humanitarian Law and International Investment Law: Mapping a Developing Relationship Tobias Ackermann and Sebastian Wuschka

Contents 2.1 2.2

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Protection of Property Under International Humanitarian Law . . . . . . . . . . . . . . . . . 2.2.1 The Notion of Armed Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2.2 Protection of Property and the Notion of Military Necessity . . . . . . . . . . . . . . . . 2.2.3 Protection from the Effects of Attacks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3 The Protection of Foreign Investments Under International Investment Law in the Context of Armed Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3.1 Continuity During Armed Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3.2 Overview of Relevant Investment Protection Standards . . . . . . . . . . . . . . . . . . . . 2.4 Norm Conflict or Symbiosis? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4.1 Normative Conflicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4.2 Treaty Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4.3 The Impact of International Humanitarian Law on Investment Treaties . . . . . . . 2.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

42 43 43 44 45 47 48 49 56 56 57 59 61 63

Abstract In light of much greater issues at play, the legal protection of foreign investors and their assets might appear almost irrelevant in situations of armed conflict. From the viewpoint of international humanitarian law (IHL), private property is merely incidentally protected for the sake of humanitarian concerns rather than its economic value. Investment treaties, by contrast, specifically entail the promotion and protection of foreign investments for such economic reasons. These agreements continue to apply alongside rules of IHL during armed conflict and many of them specifically cater for situations of armed conflicts. In recent years, arbitral awards have been rendered in relation to armed conflicts and Russia’s war of aggression against Ukraine is likely to lead to further investment claims. This chapter reviews the T. Ackermann (B) BLOMSTEIN Partnerschaft von Rechtsanwälten mbB, Berlin, Germany e-mail: [email protected] S. Wuschka Practice Group Complex Disputes, Luther Rechtsanwaltsgesellschaft mbH, Hamburg, Germany e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2024 H. Krieger et al. (eds.), Yearbook of International Humanitarian Law, Volume 25 (2022), Yearbook of International Humanitarian Law 25, https://doi.org/10.1007/978-94-6265-619-2_2

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normative framework applicable in these situations and analyses the potential interaction between norms of IHL and investment treaties. It first shows how IHL protects private property in armed hostilities and belligerent occupation and, subsequently, analyses if and how investment treaties protect foreign investments in these scenarios. The chapter argues that IHL should have significant relevance for the interpretation of investment treaties to avoid normative incoherence as far as possible. Keywords International investment law · Investment treaties · International humanitarian law · Foreign investment · Property · Treaty interpretation · Systemic integration · Military necessity · Lex Specialis · Arbitral tribunals · Occupation · Annexation · Conflict of norms

2.1 Introduction In light of much greater issues at play, the legal protection of foreign investors and their assets might appear almost irrelevant in situations of armed conflict. For international humanitarian law (IHL), the protection of foreign investments is of no particular concern. Still, the rules for the protection of civilians, civilian objects, and private property—mostly out of humanitarian concerns1 —effectively also protect foreign investors and their tangible assets, ranging from factories, offices, plants, and construction sites to vehicles and inventory. International investment law, by contrast, protects specifically investors and their investments at all times and potentially also in context of armed violence. Indeed, the very first arbitration based on a bilateral investment treaty (BIT), AAPL v Sri Lanka, concerned an operation of Sri Lankan security forces during an internal conflict that ultimately led to the destruction of the investor’s shrimp farm and the death of several of its employees.2 In recent years, further arbitral awards have been rendered in relation to (ongoing) armed conflicts in Libya, Syria and Yemen,3 as well as Russia’s conduct on the occupied Crimean Peninsula.4 Russia’s war of aggression against Ukraine is likely to lead to further investment claims.5

1

See Brilmayer and Chepiga 2008. Asian Agricultural Products Ltd. v Sri Lanka, Award, 27 June 1990, ICSID Case No. ARB/87/3 (AAPL v Sri Lanka). 3 E.g., Cengiz In¸ ˙ saat Sanayi ve Ticaret A.S. v Libya, Final Award, 7 November 2018, ICC Case ˙ saat ve Mühendislik A.¸S. et al. v Syria, Award, 31 No. 21537/ZF/AYZ (Cengiz v Libya); Güri¸s In¸ August 2022, ICC Case No. 21845/ZF/AYZ (Güri¸s v Syria); Gujarat State Petroleum Corp. Ltd. et al. v Yemen and the Yemeni Ministry of Oil and Minerals, Final Award, 10 July 2015, ICC Case No. 19299/MCP. 4 E.g., Stabil LLC et al. v Russia, Award, 12 April 2019, PCA Case No. 2015-35; Everest Estate LLC et al. v Russia, Jurisdiction, 20 March 2017, PCA Case No. 2015-36. 5 See Ballantyne 2022. On the applicability of investment treaties in this context, see Ackermann and Wuschka 2023. 2

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This chapter reviews the normative framework applicable in these scenarios and addresses the potential interaction between IHL and investment treaty norms. In a first step, it delineates the protection of private property accorded by IHL in the context of armed hostilities and belligerent occupation (see Sect. 2.2). Secondly, the chapter analyses the application of investment treaties and their substantive protection standards in this scenario (see Sect. 2.3). Bringing the two legal regimes together, the chapter subsequently examines their parallel application and argues that investment treaties should be interpreted in light of IHL to avoid normative friction (see Sect. 2.4). The closing section further illustrates the benefits such an approach might bring for both investment law and IHL (see Sect. 2.5).

2.2 The Protection of Property Under International Humanitarian Law IHL protects civilians and civilian objects from the effects of the conduct of hostilities, thus also shielding private property from the effects of military attacks. It applies in cases of armed conflict, the notion of which deserves some brief attention as a starting point for the present discussion (see Sect. 2.2.1). In case of armed conflict as well as belligerent occupation, IHL protects private property from destruction or seizure, unless such infringements are militarily necessary (see Sect. 2.2.2). When it comes to military attacks, IHL establishes more detailed rules on what objectives may be attacked under which circumstances (see Sect. 2.2.3).

2.2.1 The Notion of Armed Conflict The trigger for the application of IHL is the factual existence of an international or non-international armed conflict. Such a conflict, as the International Criminal Tribunal for the former Yugoslavia explained in Prosecutor v Tadi´c, “exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organised armed groups or between such groups within a State.”6 An international armed conflict thus refers to all cases of interstate armed violence, principally without regard to the intensity of the violence.7 Internal armed violence, on the other hand, has to reach a certain threshold to be considered a noninternational armed conflict8 and trigger the application of common Article 3 of the 6

ICTY, Prosecutor v Dusko Tadi´c aka ‘Dule’, Jurisdiction, 2 October 1995, Case No. ICTY-94-1, para 70. 7 Geneva Conventions for the Protection of War Victims, opened for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950), common Article 2(1). See Casey-Maslen and Haines 2018, pp 30–36. 8 See Cameron et al. 2016, pp 151–153.

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four Geneva Conventions, which establishes certain minimum guarantees.9 The more detailed rules of Additional Protocol II to the Geneva Conventions (AP II) further require the involvement of organized armed groups, which requires a commandstructure, the exercise of control over a part of the respective state’s territory and the group’s ability to conduct “sustained and concerted military operations”.10

2.2.2 Protection of Property and the Notion of Military Necessity The general rule for the protection of property in the conduct of hostilities is reflected in Article 23(g) of the 1907 Hague Regulations. It prohibits the destruction and seizure of property, “unless such destruction or seizure be imperatively demanded by the necessities of war.” Importantly, this reference to the necessities of war does not mean that military interests justify the abandonment of legal rules. Military necessity has nothing to do with an overriding principle in the sense of the old German Kriegsraison, according to which military necessity overrides the rules of armed conflict.11 Instead, it only applies as part of specific clauses, such as Article 23(g) of the Hague Regulations, requiring the act in question to be taken for a military purpose and be otherwise in conformity with IHL. Military necessities are, therefore, defined by the operation of the applicable rules of IHL.12 IHL thus protects against the unnecessitated destruction or seizure of private property during armed conflict. The same is true for situations of belligerent occupation. As the United States Military Tribunal at Nuremberg put it, there “must be some reasonable connection between the destruction of property and the overcoming of the enemy forces.”13 Whereas wanton destruction is prohibited,14 incidental damage caused by the movement or transportation of troops as well as the temporary seizure of private property may be militarily necessary and, therefore, legal.15

9

See Fleck 2021, pp 650–651. 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) (AP II), Article 1. See Dwyer and McCormack 2016, pp 56–60. 11 See Solis 2016, pp 265–266. 12 See Hayashi 2020, p 375. See also already United States Department of War 1863, Article 14. 13 United States Military Tribunal at Nuremberg, Trial of Wilhelm List et al (Hostages Trial), Judgment, 19 February 1948, p 66. 14 See also Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, open for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950), Article 50; Rome Statute of the International Criminal Court, open for signature 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002), Article 8(2) (a) (iv) and (e) (xii). 15 Johansen 2019, pp 357–360. 10

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2.2.3 Protection from the Effects of Attacks When it comes to active combat, IHL entails a detailed set of rules that serve the protection of civilian property from military attacks and their effects. While this chapter’s scope does not allow for a detailed discussion, it is helpful to highlight the most important rules governing the lawfulness of property destruction during hostilities. As already noted, IHL does not protect property as a goal on its own but with a view to minimizing the suffering of civilians. Consequently, the destruction of property in the course of military attacks is subject to the same restrictions as the harming of civilians. Three fundamental principles and rules stand out in this respect: the principle of distinction (Sect. 2.2.3.1), the principle of proportionality (Sect. 2.2.3.2), and the principle of precaution (Sect. 2.2.3.3).

2.2.3.1

Principle of Distinction

First, according to the fundamental principle of distinction, intentional attacks on civilian targets or indiscriminate attacks are absolutely prohibited.16 Under Article 52 of Additional Protocol I to the Geneva Conventions (AP I), attacks may only be directed against “objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralisation, in the circumstances ruling at the time, offers a definite military advantage.” IHL thus prohibits direct attacks on private property, as far as that property constitutes a civilian object. Certain tangible property, such as military vehicles or factories for the production of military supplies, can already constitute a military objective by their nature.17 Other property can easily turn into a military object if it is converted for military purposes. For instance, the Azovstal facility in Mariupol, Ukraine, was a privately owned iron and steel plant and thus a civilian object by nature. During the Russian siege of Mariupol, however, Ukrainian defenders retreated to the plant, using it as a defence position. This arguably turned the facility into a military objective. Russian troops were accordingly permitted, in principle, to make it the target of attacks, although the ensuing siege likely breached IHL as it also affected civilians who sheltered in the steel plant.18 If the property in question is rendered a military object, it may thus generally be attacked as far as its destruction offers a definite military advantage.19

16

Protocol Additional (I) 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 313 (entered into force 7 December 1978) (AP I), Article 48; AP II, above n. 10, Article 13(2); Henckaerts and Doswald-Beck 2005, rules 1 and 7. 17 Dinstein 2016, p 110; Solis 2016, p 511. 18 Dannenbaum 2022; Winter 2022. 19 See Dinstein 2016, pp 106–109; Jachec-Neale 2015, pp 116–119. See also, with respect to foreign investments in particular, Ryk-Lakhman 2018, pp 184–190.

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Principle of Proportionality and “Collateral” Damage

Secondly, in case an attack is directed against a lawful military objective, IHL tolerates certain harm inflicted upon civilians or civilian objects as inevitable “collateral” damage. Thus, if private property is not targeted directly but destroyed or damaged incidentally during an attack on a lawful military objective, IHL tolerates, to a degree, such destruction as a result of a legitimate military operation.20 The attacker, however, has to observe the principle of proportionality which prohibits the infliction of “excessive” loss of civilian life, injury to civilians or damage to civilian objects.21 In assessing the extent of the anticipated civilian harm and military advantage, the attacker needs to prevent any “significant imbalance between the military advantage anticipated and the expected collateral damage.”22 This is determined from an ex ante perspective of a reasonable military commander, which allows for a certain margin of appreciation.23 When it comes to property, it is important to note that its monetary value is not, as such, a relevant factor in the balancing exercise military commanders need to employ under IHL.24

2.2.3.3

Principle of Precaution

Thirdly, the attacker as well as the defender must take constant care to minimize the risk to civilians and civilian objects.25 For instance, as stipulated by Article 57 AP I, to ensure compliance with the principle of distinction, attackers must do everything feasible to verify their target and to prevent or at least minimize collateral damage when exercising their military operations. Defenders, in turn, are required under Article 58 AP II to protect civilians and civilian objects from attacks by the other party to the conflict and, hence, to separate them from objectives that may be targeted lawfully. The standard for these precautionary duties is not absolute but one of feasibility: The parties to the conflict must do what is practicable or practically possible, which is measured against all relevant circumstances, including not only humanitarian but also military considerations.26 The “reasonable commander test” as well as this standard of feasibility highlight that IHL takes into account the often-chaotic circumstances of armed activities. It does not only make room for military consideration but likewise “allows for some rate of error, sometimes a high rate of error, so long as the party

20

Crawford and Pert 2020, p 47. AP I, above n. 16, Article 51(5) (b). See also Henckaerts and Doswald-Beck 2005, rule 14. 22 Schmitt 2015, p 283. 23 See, elaborately, Johansen 2019, pp 64–89. 24 Ackermann 2022, pp 108–109. 25 AP I, above n. 16, Article 57(1); APP II, above n. 10, Article 13(1); Henckaerts and Doswald-Beck 2005, rule 15. See also Corn and Schoettler 2015; Quéguiner 2006. 26 See Schmitt 2015, p 286; Boothby 2012, p 121; Henckaerts and Doswald-Beck 2005, p 54. 21

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acts in good faith, relies on reasonable efforts to verify military targets and contain attacks to them.”27

2.3 The Protection of Foreign Investments Under International Investment Law in the Context of Armed Conflict Unlike IHL, international investment law does not constitute a confined set of rules established through multilateral instruments. Instead, it consists of a variety of bilateral and multilateral treaties. These agreements entail, on a reciprocal basis, the promotion and protection of foreign investments by investors of the “home state” in the territory of the “host state”.28 All of these treaties are separate instruments. They, however, follow common structures.29 Most investment treaties protect against unlawful expropriation and discrimination, and guarantee certain (minimum) standards, in particular, full protection and security (FPS) as well as fair and equitable treatment (FET).30 These standards are often drafted in broad terms and as part of rather short agreements,31 although more recent treaty practice has shifted towards instruments with more detailed rules, exceptions and guidance on interpretation.32 In case of mistreatment, foreign investors can usually initiate dispute settlement procedures directly against their investment’s host state through investor-state arbitration and obtain, in case of success, a legally binding and internationally enforceable award.33 These principles continue to apply in times of armed conflict. From the outset, armed conflicts do not put into the question the continued operation of investment treaties, even in case the state parties participate in hostilities on opposite sides (see Sect. 2.3.1). Investment treaties thus apply to the conduct of host states on their territory during armed conflict and indeed regularly provide for several provisions that become relevant in the context of armed conflict and may thus apply in parallel to IHL (see Sect. 2.3.2).

27

Waxman 2008, p 1394. Jacob 2014, para 1. 29 Salacuse 2021, pp 8–12. 30 See generally Reinisch and Schreuer 2020; Schill 2009. 31 See Salacuse 2021, p 16. See also Perrone 2021, pp 7–8. 32 See Alschner 2022, pp 40–41. 33 For further details, see Reinisch 2018. 28

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2.3.1 Continuity During Armed Conflict In classical international law, the outbreak of war was held to abrogate most treaty relations between the belligerents.34 However, already at the turn of the 20th century, this rule was abandoned.35 The outlawry of war as a legal institution as well as the adoption of the Vienna Convention on the Law of Treaties (VCLT)36 finally buried it. Still, fragments of the old “doctrine on the effects of war on treaties” persist. Most prominently, the International Law Commission (ILC) proposed rules on an alleged right to terminate or suspend some treaties or parts thereof under certain situations.37 Although these rules are worthy of criticism,38 the ILC noted that treaties for the protection of foreign investment in any event would generally not be affected by armed conflict.39 The same conclusion is reached under the rules of the VCLT on the supervening impossibility of treaty performance and the fundamental change of circumstances.40 The assessment under both the ILC’s approach as well as Articles 61 and 62 VCLT relates to similar considerations: Host states affected by armed conflict remain principally able to perform their investment treaty obligations, as these duties mainly require refraining from impeding foreign investments or adopting reasonable measures for their protection. What is more, the very object and purpose of investment treaties is to guarantee protection of particular interests of individuals independent from the diplomatic, political, or even military confrontations between states. The existence of treaty clauses found in many agreements that specifically foresee their application during armed conflict confirm this consideration.41 The decision in Güris et al. v Syria is instructive in this respect. In this case, an investor-state arbitral tribunal had to decide a claim by Turkish investors in Syria. The claimants alleged that Syria had failed to offer adequate compensation for losses sustained due to the internal armed conflict in Syria. The respondent argued that the involvement of Turkey in the Syrian civil war, which arguably constituted an international armed conflict between the two countries, led to the suspension of the Syria-Turkey BIT.42 The arbitrators rejected this argument. Citing the ILC’s work, they first confirmed that the occurrence of an armed conflict does not automatically 34

See, e.g., Phillimore 1857, p 456. See, e.g., North Atlantic Coast Fisheries (Great Britain v United States), Award, 7 September 1910, 11 RIAA 167, p 181. 36 Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980) (VCLT). 37 ILC 2011a. 38 See Ackermann 2022, pp 52–68. 39 ILC 2011b, para 43. 40 See Ackermann 2022, pp 32–35; Ostˇranský 2015, p 140; Schreuer 2019, p 10. 41 See also Zriliˇ c 2019, pp 86–87; Schreuer 2019, pp 7–8. 42 Agreement between the Republic of Turkey and the Syrian Arab Republic Concerning the Reciprocal Promotion and Protection of Investments, signed 6 January 2004 (entered into force 3 January 2006). See Güri¸s v Syria, above n. 3, para 141. 35

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suspend or even terminate treaties—Syria had not given notice of any intention to suspend the BIT to Turkey.43 Moreover, the tribunal took note of several provisions found in the relevant BIT that pointed towards their continued application and found that international investment law was aimed at protecting “private rights at times of uncertainty or dispute in international relations”.44 The tribunal further persuasively argued that the BIT “protects investors’ economic rights, in essence property rights, which in principle […] transcend changes in sovereignty or statehood. The States Parties obligations to promote and protect [investments] are not inexorably contingent upon the absence of armed conflict between the States Parties.”45 Accordingly, investment treaties remain operative during armed conflict and are not susceptible to unilateral suspension or termination.

2.3.2 Overview of Relevant Investment Protection Standards While investment treaties continue to apply during times of war, the presence of armed conflict is not without impact on several types of investment treaty clauses. This section focuses on three typical investment treaty provisions that stand out as bearing the most practical relevance in this context: clauses that stipulate obligations explicitly with a view to losses suffered during armed conflict (see Sect. 2.3.2.1), the general obligation to provide (physical) protection and security to investments (see Sect. 2.3.2.2), and exception clauses that limit the liability of host states for measures taken in the pursuit of their security interests (see Sect. 2.3.2.3).

2.3.2.1

Armed Conflict Clauses

So-called armed conflict clauses (sometimes also labelled “war clauses” or “compensation for losses clauses”) specifically concern compensation for harm sustained during armed conflict and similar situations. Two types can be distinguished: a “basic” clause, which establishes a guarantee of non-discrimination when it comes to the compensation of investors, and an “extended” clause that confers a substantive right to claim compensation under certain conditions.46 The basic model of the armed conflict clause is present in most treaties47 and typically guarantees that investors are not to be treated less favourably than investors from other countries and/or domestic investors with respect to compensation for 43

Ibid., paras 146–150. Ibid., para 149. 45 Ibid., para 158. 46 For a detailed account of these clauses, see Ackermann 2022, pp 117–145; Ryk-Lakhman 2021; Zriliˇc 2019, pp 106–124. 47 See UNCTAD 2023, showing that 2392 out of 2584 mapped treaties contain such clauses (as of 8 March 2023). 44

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losses suffered due to war, armed conflict, or—depending on the clause in question— other extraordinary events, such as revolts or revolutions. For example, Article 12 (1) of the Israel-Japan BIT states: Each Contracting Party shall accord to investors of the other Contracting Party that have suffered loss or damage relating to their investments in the Territory of the former Contracting Party due to armed conflict or a state of emergency such as a revolution, insurrection, civil disturbance or any other similar event in the Territory of that former Contracting Party, treatment, as regards restitution, indemnification, compensation or any other settlement, that is no less favorable than that which it accords to its own investors or to investors of a nonContracting Party, whichever is more favorable to the investors of the other Contracting Party.48

Such clauses require non-discrimination in case the host state provides for a compensation scheme due to international commitments, in compliance with its domestic laws, or even on a voluntary basis.49 Importantly, the basic armed conflict clause does not supersede the other substantive investment treaty protections. The majority of arbitral tribunals which had to deal with claims in the connection with Libya’s civil war rightly concluded that these provisions do not sweepingly replace all other treaty standards.50 A different reading would severely undermine the level of protection in cases of armed conflict and turmoil of lower intensity, limiting it to a basic guarantee of non-discrimination only.51 In contrast to the basic model, extended armed conflict clauses provide for a standalone right to claim compensation for specific damages. These clauses are less widely prevalent but still present in about a third of the over 2,500 treaties mapped by the United Nations Conference on Trade and Development (UNCTAD).52 In particular, this clause typically provides for such a right in case of damages resulting from requisitioning of the investment by the host state or from destruction of the investment caused by it, as far as it was “not required by the necessity of the situation”. Article 5 (2) of the Austria-Libya BIT, for example, reads: An investor of a Contracting Party who in any of the events referred to in paragraph (1) [i.e., armed conflict, state of emergency, revolution, etc.] (a) requisitioning of its investment or part thereof by the forces or authorities of the other Contracting Party, or (b) destruction of its investment or part thereof by the forces or authorities of the other Contracting Party, which was not required by the necessity of the situation, shall in any case be accorded by

48

Agreement between the State of Israel and Japan for the Liberalization, Promotion and Protection of Investment, signed 1 February 2017 (entered into force 5 October 2017). 49 Salacuse 2021, p 447. See also Ackermann 2022, pp 191–121. 50 See, e.g., Güri¸s v Syria, above n. 3, para 235; Cengiz v Libya, above n. 3, paras 353–370; Way2B ACE v Libya, Award, 24 March 2018, ICC Case No. 20971/MCP/DDA, as reported by Peterson 2019. But see also Özta¸s Construction, Construction Materials Trading Inc. v Libya, Final Award, 14 June 2018, ICC Case No. 21603/ZF/AYZ, para 167. 51 Ackermann 2022, pp 139–141. See also Salacuse 2021, p 447; Newcombe and Paradell 2009, p 500. 52 UNCTAD 2023, showing that 862 out of 2584 mapped treaties contain extended armed conflict clauses (as of 8 March 2023).

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the latter Contracting Party restitution or compensation which in either case shall be prompt, adequate and effective […].53

In Strabag v Libya, the claimant was awarded damages under this clause for the destruction of property during the civil war in Libya. Evidence suggested that damage to the investor’s facilities was due to acts of “vandalism or destruction driven by spite or purely for the sake of destruction” and not necessitated by any military concern.54 Requisition, in turn, connotes the temporary seizure of property for military purposes.55 In case losses are incurred due to such act performed by the forces or authorities of the host state, the extended version of the armed conflict clause grants a right to claim compensation without further material requirements.

2.3.2.2

The Full Protection and Security Standard

A large majority of investment treaties contain an FPS clause,56 which may also offer investors relief in case of damages suffered during armed conflict. The FPS standard is typically expressed by guaranteeing that investments “shall enjoy full protection and security” in the host state,57 while some other formulations—such as “most constant protection and security” under the Energy Charter Treaty58 —exist. The details of this type of provision remain disputed in scholarship and arbitral practice. This pertains, for example, to the question whether the FPS standard also comprises legal protection59 as well as its relationship to the customary standard of treatment.60 For the purpose of the present chapter, however, it is sufficient to focus on the element of FPS, which grants physical protection from harm. Although not uncontested in arbitral practice and scholarship, the FPS clause is insofar best understood as including, on the one hand, a negative obligation not to actively harm foreign investments and establishing strict liability of states for wrongful conduct attributable to it.61 After all, the protection from unjustified interferences with the physical integrity of foreign investors and their investments squarely falls within 53

Agreement between the Republic of Austria and the Great Socialist People’s Libyan Arab Jamahiriya for the Promotion and Protection of Investments, signed 18 June 2002 (entered into force 1 January 2004). 54 Strabag SE v Libya, Award, 29 June 2020, ICSID Case No. ARB(AF)/15/1 (Strabag v Libya), paras 317–318. 55 Wortley 1959, p 29. See, e.g., Strabag v Libya, above n. 54, paras 79, 257. 56 See UNCTAD 2023, indicating that 1,983 out of 2,584 mapped treaties contain an FPS clause (as of 8 March 2023). 57 E.g., Agreement between the Government of the United Kingdom of Great Britain and Northern Island and the Government of the Arab Republic of Egypt for the Promotion and Protection of Investments, signed 11 June 1975 (entered into force 24 February 1976), Article 2(2). 58 Energy Charter Treaty, opened for signature 17 September 1994, 2080 UNTS 95 (entered into force 16 April 1998), Article 10(1). 59 See Reinisch and Schreuer 2020, pp. 568–579. 60 See Reinisch and Schreuer 2020, pp 545–550. 61 See Ackermann 2022, pp 148–151 with further references.

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the meaning of providing “protection and security”.62 In addition, this interpretation corresponds to the traditional notion of police protection of aliens under customary international law, which arguably forms the basis of the FPS standard63 and to which FPS clauses sometimes expressly refer to.64 On the flipside of the negative element is the host state’s due diligence obligation to protect foreign investment from third-party harm. As the International Court of Justice (ICJ) noted, the stipulation to offer protection and security does not constitute “warranty that property shall never in any circumstances be occupied or disturbed.”65 Rather, the host state is required by this obligation of conduct to adopt all measures reasonably available to prevent and repress harmful acts to the investment by third parties.66 It is debated whether this translates into an objective standard of care or one susceptible to the subjective conditions of the concrete host state.67 Arguably, the latter interpretation is more convincing. The contents of a duty diligence obligation to protect can only be determined in light of the prevailing circumstances in the individual case.68 The actual or constructed knowledge of relevant factual circumstances, such as the existence of threat to foreign investments, as well as the capacity to intervene are important elements that define what is required by the host state.69 Thus, for instance, the loss of control over territory to opposing forces during an armed conflict may deprive the host state of the capacity to adopt protective measures and consequently exclude its responsibility under the FPS standard. The same may be true in case an investment is harmed by armed groups without warning. In Ampal v Egypt, for instance, the tribunal dismissed the investor’s claim for damages resulting from first attacks on its pipeline by insurgents due to their unforeseeable nature, whereas it found that these attacks constituted warning signals that further attacks could be carried out and that Egypt was in breach of its FPS obligation as it did

62

See also De Brabandere 2015, pp 333–334. Foster 2012, pp 1116–1124. 64 E.g., Agreement Between the Government of Canada and the Government of the Hong Kong Special Administrative Region of the People’s Republic of China for the Promotion and Protection of Investments, signed 10 February 2016 (entered into force 6 September 2016), Article 6(1). 65 ICJ, Elettronica Sicula SpA (USA v Italy), Judgment, 20 July 1989, [1989] ICJ Rep 15, para 108. See also, e.g., Ampal-American Israel v Egypt, Decision on Liability and Heads of Loss, 21 February 2017 (Ampal v Egypt), para 241; Noble Ventures, Inc. v Romania, Award, 12 October 2005, para 164; CME Czech Republic B.V. v Czech Republic, Partial Award, 13 September 2001, para 353. 66 See, e.g., Rumeli Telekom A.S. and Telsim Mobil Telekomunikasyon Hizmetleri A.S. v Kazakhstan, Award, 29 July 2008, para 668; Saluka Investments B.V. v Czech Republic, Partial Award, 17 March 2006, para 484; Kulesza 2016, p 113. 67 See, e.g., Braun 2022; Baumann 2021; Gallus 2005; Kriebaum 2013. 68 E.g., Pantechniki S.A. Contractors & Engineers v Albania, Award, 30 July 2009, ICSID Case No. ARB/07/21, para 77; Mamidoil Jetoil Greek Petroleum Products Societé SA v Albania v Albania, Award, 30 March 2015, ICSID Case No. ARB/11/24, para 824. 69 See Ackermann 2022, pp 161–169; Monnheimer 2021, p 117; Mantilla Blanco 2019, pp 457 and 459. 63

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not “take any concrete steps to protect the Claimant’s investment” from subsequent attacks.70 In the specific context of damages suffered during armed conflict at the hands of the state’s armed forces, specialized extended armed conflict clauses arguably supersede the general FPS standard.71 However, the FPS standard remains of significant practical relevance for three main reasons: First, many investment treaties do not contain extended armed conflict clauses, but do include some stipulation of (full) protection and security. Secondly, whereas extended armed conflict clauses only refer to harm inflicted upon the investment, the FPS clause also concerns the protection of investors and their employees as natural persons.72 And, finally, the FPS standard entails not only a negative duty to abstain from harming investors or their investments, but also a positive duty to protect, which is not part of extended armed conflict clauses.

2.3.2.3

Security Exceptions

Some have criticized the Ampal v Egypt tribunal for allegedly overemphasizing the protection owed to foreign investors in situations of armed violence.73 Although this criticism is, in our view, not justified in light of the differentiated reasoning of the tribunal, it is an understandable concern, from a state’s perspective, that liability should be limited in case of sensitive issues of armed conflict and national defence. This consideration may explain why several investment treaties contain so-called security exceptions.74 These clauses specifically address the occurrence of armed conflict with the aim of increasing the respective state’s leeway in adopting measures to tackle threats to its security interests. An infamous example is the “non-precluded measures clause” of Article XI of the USA-Argentina BIT.75 The provision reads: “This Treaty shall not preclude the application by either Party of measures necessary for maintenance of public order, the fulfilment of its obligations with respect to the maintenance or restoration of international peace or security, or the protection of its own essential security interests.” Other clauses are more elaborate but share common elements 70

Ampal v Egypt, above n. 65, paras 289–290. Ackermann 2022, p 144. 72 See, e.g., Gold Reserve Inc. v Venezuela, Award, 22 September 2014, ICSID Case No. ARB(AF)/ 09/1, para 622; AAPL v Sri Lanka, above n. 2, para 85(b). 73 E.g., Howse and Yacoub 2022. 74 See UNCTAD 2023, showing that 400 out of 2584 mapped treaties contain security exceptions (as of 8 March 2023). 75 Treaty between the United States of America and the Argentine Republic Concerning the Reciprocal Encouragement and Protection of Investments, signed 14 November 1991 (entered into force 20 October 1994). The clause played a major role in a several disputes revolving around Argentina’s response to its economic and financial crisis in 2001 and 2002. See, e.g., Continental Casualty Co. v Argentina, Award, 5 September 2008, ICSID Case No. ARB/03/9 (Continental Casualty v Argentina), para 189; CMS Gas Transmission Co. v Argentina, Award, 12 May 2005, ICSID Case No. ARB/01/8, paras 344–352. 71

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with that provision. For instance, Article 17(4) of the Canada-Mali BIT76 states that the agreement does not “prevent a Party from taking any actions that it considers necessary to protect its essential security interests […] taken in time of war or other emergency in international relations.” Such clauses are apparently modelled on the security exception found in the General Agreement on Tariffs and Trade (GATT).77 It is likely that essential security interests could play a major role in the context of armed conflict.78 This impression is enforced by the investment tribunal’s finding in Deutsche Telekom v India that the host state has some deference in defining its own essential security interests, as long as the interest goes to the core of state security.79 The involvement of military considerations, national defence, the protection of critical infrastructure or that of supply chains naturally goes to the very core of the state’s functions. However, this general consideration does not negate the necessity to assess the invocation of essential security interests in the individual case, especially to avoid abusive treatments of such clauses. As seen above, some clauses additionally require the state’s measure to be taken “in times of war or other emergency in international relations”. Whereas “war” constitutes a reference to international armed conflict, the alternative term “other emergency in international relations” is less clear. Arguably, non-international armed conflicts, at least if such conflicts have some significant proportion, can constitute such emergencies.80 This is supported by the consideration that the United Nations (UN) Security Council has treated several internal armed conflicts as a threat to the peace under Chapter VII of the UN Charter81 without requiring any additional indication for transnational effects.82 In some cases, such as the non-precluded measure clause in the USA-Argentina BIT, exceptions refer to “measures necessary” for essential security interests. This is an objective criterion subject to full review by arbitral tribunals.83 While it appears

76

Agreement between Canada and Mali for the Promotion and Protection of Investments, signed 28 November 2014 (entered into force 8 June 2016). 77 See General Agreement on Tariffs and Trade 1994, Annex 1A to the Marrakesh Agreement Establishing the World Trade Organization, open for signature 15 April 1994, 1867 UNTS 187 (entered into force 1 January 1995) (GATT), Article XXI. 78 See also WTO Panel, Russia—Measures Concerning Traffic in Transit, Report, 29 April 2019, WT/DS512/R (Russia—Traffic in Transit), para 7.76. 79 Deutsche Telekom AG v India, Interim Award, 13 December 2017, PCA Case No. 2014–10 (Deutsche Telekom v India), paras 235–236. See also CC/Devas Ltd. et al. v India, Award, 25 July 2016, PCA Case No. 2013–09 (Devas v India), paras 244–245; Russia—Traffic in Transit, above n. 78, para 7.130. 80 But see Schreuer 2022, p 712. 81 Charter of the United Nations, opened for signature 26 June 1945, 1 UNTS XVI (entered into force 24 October 1945). 82 See Krisch 2012, paras 19–20. 83 See Deutsche Telekom v India, above n 79, para 231; Devas v India, above n. 79, para 219; Schill and Briese 2009, p 69.

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settled that this notion of necessity does not relate to the very restrictive state of necessity under the law of state responsibility,84 the exact meaning of the term remains somewhat vague. The tribunal in Continental Casualty v Argentina drew inspiration from the WTO Appellate Body’s approach under the general exception clause found in Article XX GATT and weighed the interests involved, the contribution to the measure to the realization of the pursued end and the impact on international commerce, without however employing a full proportionality test.85 Consequently, the tribunal accorded Argentina a margin of appreciation in light of the prevailing crisis and assessed whether the host state had had reasonable, less restrictive alternatives.86 This indeed appears to be an adequate approach that promises balanced results.87 Other clauses, by contrast, refer to measures the invoking state “considers necessary”.88 Such “self-judging” exception clauses give the host state explicit discretion and thus restrict the level of arbitral review. That said, states are not entirely free to rely on such exceptions, as argued for instance by the United States and Russia before WTO panels.89 Otherwise, nothing would prevent arbitrary invocations of these clauses, which could, in turn, severely damage the integrity of the respective agreement.90 International dispute settlement bodies rightly affirmed that selfjudging language merely increases the state’s margin of appreciation.91 The review is restricted to an assessment of whether the host state relies on the security exception in good faith.92 In conducting this assessment, the WTO panel in Russia—Traffic in Transit assessed whether “a minimum requirement of plausibility” was met, namely

84 See, e.g., Deutsche Telekom v India, above n. 79, paras 228–229; Devas v India, above n. 79, paras 252–256; Sempra Energy International v Argentina, Annulment, 29 June 2010, ICSID Case No. ARB/02/16, paras 195–208; Salacuse 2021, pp 477–479; Viñuales 2014, pp 351–353. 85 See, e.g., WTO Appellate Body, Brazil—Measures Affecting Imports of Retreaded Tyres, Report, 12 March 2007, WT/DS332/AB/R, para 182. 86 Continental Casualty v Argentina, above n. 75, paras 181, 192 and 194. See also Deutsche Telekom v India, above n. 79, paras 238–239. 87 See also Kurtz 2016, pp 218–227; Ranjan 2016, p 291; Henckels 2015, p 96; Newcombe and Paradell 2009, pp 503–504. 88 See Schill and Briese 2009. 89 E.g., Russia—Traffic in Transit, above n. 78, para 7.57; WTO Panel, USA—Certain Measures on Steel and Aluminium Products (EU), Communication from the USA, 11 June 2018, WT/DS548/13. 90 See already GATT (pre-WTO) Panel, USA—Trade Measures Affecting Nicaragua, Report (unadopted), 13 October 1986, L/6053, para 5.17. 91 See ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v USA), Judgment (Merits), 27 June 1986, [1986] ICJ Rep 14, para 222; ICJ, Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Iran v USA), Judgment (Preliminary Objections), 3 February 2021, [2021] ICJ Rep 9, para 109; Russia—Traffic in Transit, above n. 78, paras 7.101–7.103. 92 E.g., ICJ, Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France), Judgment, 4 June 2008, [2008] ICJ Rep 177, para 145; Continental Casualty v Argentina, above n. 75, para 182; Burke-White and von Staden 2008, pp 377–378.

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whether it was “implausible that Russia implemented the measure for the protection of its essential security interests arising out of the emergency.”93

2.4 Norm Conflict or Symbiosis? Different rules of international law, applied to the same set of facts, may lead to opposing results. The fragmented nature of international law is in fact prone to such incongruence. In case two international norms stand in conflict to one another, one norm might need to be sacrificed for the sake of the other. This section first elaborates on such normative conflicts and whether they arise in the parallel application of the IHL and investment treaty norms outlined above (see Sect. 2.4.1). It then shows how certain types of conflict may be resolved through interpretation (see Sect. 2.4.2) and how such conflict avoidance can be achieved in the present context (see Sect. 2.4.3).

2.4.1 Normative Conflicts A norm conflict in the strict sense prerequisites the mutual exclusiveness of two norms: As the simultaneous compliance with both of these norms is impossible, the state concerned must choose to abide by one rule and thus defect from the other.94 In such situations, conflict resolution tools are necessary to determine which of the two rules shall prevail. The maxim of lex specialis is one of these tools. It states that the specialized rule prevails over the more general one.95 In the present context, one could indeed consider IHL, as is often done, to be the lex specialis for the context of armed conflict.96 However, the same is true for international investment law when it comes to the protection of foreign investments. But determining whether one sets of rules is “more special” than the other is a futile exercise. For one, the lex specialis rules applies with respect to two opposing individual norms, not entire legal regimes.97 Therefore, one cannot conclude that IHL simply supersedes other sets of rules. Instead, the question of whether there is a norm conflict and, if this is the case, how the conflict should be resolved, can only be identified on the level of individual norms.98 93

Russia—Traffic in Transit, above n. 78, paras 7.138–7.139. See also WTO Panel, Saudi Arabia— Measures Concerning the Protection of Intellectual Property Rights, Report, 16 June 2020, WT/ DS567/R, para 7.293. 94 Pauwelyn 2003, pp 183–184; Jenks 1953, p 426. 95 See ILC 2006, para 56. See also Pulkowski 2014, pp 318–334. 96 See, e.g., ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, [1996] ICJ Rep 226 (Nuclear Weapons), para 25. 97 ILC 2006, para 47. 98 See Kleffner 2013, p 73; Milanovic 2011, p 232.

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A closer look at the norms of IHL and investment law shows that their parallel application does not actually lead to norm conflicts in the strict sense. Even if IHL permits, for instance, the destruction of an investment, it does not mandate the host state to do so and possibly violate investment protection standards. In other cases, IHL and investment law are even compatible, as they pursue a similar purpose, namely the protection of private interests (albeit for different reasons).99 Still, normative conflict in a broader sense may indeed arise, where invoking permissions or complying with more limited obligations under IHL could potentially result in liability under investment treaties.100 Norm conflicts in this broader sense are situations “where two rules or principles suggest different ways of dealing with a problem.”101 Put differently, two norms also conflict “if one constitutes, has led to, or may lead to, a breach of the other.”102 For example, where a belligerent attacks a foreign investor’s factory, which has been turned into a military command centre by enemy forces, the host state may rely on the permissive norms of IHL and lawfully attack the military objective. At the same, the destruction of the factory as an investment could be considered a violation of the FPS standard and lead to liability under investment treaties. It is true, as the ICJ noted, that “a particular act may be perfectly lawful under one body of legal rules and unlawful under another.”103 Human rights law, for instance, may provide for a higher level of protection in certain situations than IHL. State conduct could thus violate human rights, despite being lawful under IHL,104 although it appears questionable whether the same is true the other way around. In any event, accepting incongruence can only stand at the end of a legal analysis of the applicable legal framework. In fact, it must primarily be determined whether that incongruence can be avoided, particularly through means of treaty interpretation.105

2.4.2 Treaty Interpretation Under Article 31 (1) VCLT, treaties “shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” Together with the context, there “shall be taken into account”, under Article 31 (3) (c) VCLT, also “any relevant rules of international law applicable in the relations between the parties.” The rules of interpretation, which 99

See also Braun 2021, p 36; Zriliˇc 2019, p 164. See Ackermann 2022, pp 77–78. 101 ILC 2006, para 25. 102 Pauwelyn 2003, pp 175–176. See also Vranes 2006, pp 414–415; Pulkowski 2014, p 152; Milanovic 2009, p 73. 103 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia), Judgment (Merits), 3 February 2015, [2015] ICJ Rep 3, para 474. 104 Diab 2020, p 346. 105 Pauwelyn 2003, pp 5–6. 100

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apply also with respect to investment treaties,106 thus require interpreters to consider other rules of international law and dissolve normative conflicts, provided the details of the respective treaty allow for such a harmonious approach. When interpreting investment treaties, the rules of IHL can constitute relevant rules in this sense. Of course, the methodology under Article 31 (3) (c) of the VCLT needs to be kept in mind, raising the questions as to what constitutes a “rule”, when such rule is “relevant” and under which circumstances it can be considered “applicable in relation between the parties”.107 The character of norms of IHL as rules of international law is beyond doubt, subject to the condition that the respective norm is an established, not simply an emerging one.108 Whether the rule is “applicable in relation between the parties” depends on a number of factors: On the one hand, not all states are subject to all conventional rules of IHL, leading to an applicability only of customary rules in some instances. On the other hand, the definition of who the relevant “parties” are opens up another debate.109 This relates to the question whether the term “parties” generally encompasses only the parties to a concrete dispute or to all contracting parties of a (multilateral) treaty. In case of an investor-state dispute, however, the investor’s involvement as a private party adds the element of mixed adjudication. Yet, in the comparable situation of human rights courts and treaty bodies, an approach has been adopted under which the adjudicators will assess whether the respondent state was subject to the rule in question.110 This approach is feasible in investor-state arbitration as well. Rules of IHL would accordingly be “applicable in relation between the parties” as soon as the respondent state is bound by them. As to the threshold to determine a rule’s “relevance” in the particular case, different theories have been advanced. Some advocate for a broad understanding of the concept of “relevance”, whereas others argue a narrow understanding would be more appropriate.111 The middle ground,112 and equally the general tendency, appears to be “to consider rules that concern the same subject matter.”113 Arguably, this is especially the case for rules of IHL when investment treaty norms are to be applied in the context of armed hostilities. Where the above conditions are fulfilled, the customary rules on treaty interpretation require the interpreter, such as the competent arbitrators in the interpretation of investment treaty norms, to take the rules of IHL duly into account.114 In this way, the normative values and judgments of IHL can impact the interpretation of investment treaties in the context of armed conflict. Such an approach is, most prominently, 106

See generally Weeramantry 2012. Generally, on systemic integration in relation to investment law and arbitration, see Rosentreter 2015. 108 Todeschini 2018, p 362. 109 For an overview of the approaches, see Todeschini 2018, p 362. 110 See further Todeschini 2018, pp 364–367. 111 For an overview of these positions with further references, see Yotova 2017, p 183. 112 Yotova 2017, p 183. 113 Todeschini 2018, p 362 with further references. 114 See Ackermann 2022, pp 87–90. 107

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already widely accepted in the intersection between IHL and human rights law. In this context, for example, the rules of IHL impact the assessment under the human right to life of whether the deprivation of life in the context of armed hostilities is to be considered “arbitrary” within the meaning of Article 6 (1) of the International Covenant on Civil and Political Rights.115 The ICJ thus confirmed that “the test of what is an arbitrary deprivation of life […] can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself.”116 In case of the human right to life as well as the right to liberty, human rights bodies and courts have employed the same logic and interpreted these rights in light of IHL.117 Under their approach, the legality of IHL effectively operates as an implicit yardstick for the interpretation of human rights law, rendering IHL principally “the primary interpretive standard.”118

2.4.3 The Impact of International Humanitarian Law on Investment Treaties Based on the foregoing, it can also be appropriate to consider IHL when interpreting and applying investment treaties in the context of armed conflict. The same holds true for cases of belligerent occupation, which, of course, raise the additional question of the territorial scope of application of investment treaties. Arbitral jurisprudence indicates, however, that investment tribunals feel comfortable to also accept claims relating to state conduct in effectively occupied or annexed areas beyond the respondent states’ de jure territory.119 Where both frameworks come into play jointly, IHL should have a strong bearing on the interpretation of individual investment treaty 115

International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976). 116 Nuclear Weapons, above n. 96, para 25. 117 See, e.g., ECtHR, Hassan v UK, Grand Chamber Judgment, 16 September 2014, Application No. 29750/09, paras 102–104; Human Rights Committee 2014, General Comment No. 35: Article 9 (Liberty and Security of Person), UN Doc. CCPR/C/GC/35, para 64; IACtHR, Santo Domingo Massacre v Colombia, Judgment, 30 November 2012, IACtHR Series C No. 259, para 211. 118 D’Aspremont 2013, p 25. 119 See, e.g., Stabil LLC and others. v Russia, PCA Case No. 2015-35, Award on Jurisdiction (26 June 2017)—confirmed during annulment proceedings by the Swiss Federal Tribunal, Russia v Stabil LLC and others, Swiss Federal Tribunal, Case no 4A 398/2017, Judgment, 16 October 2018—and PrivatBank and Finilon v Russia, PCA Case No. 2015-21, Interim Award, 24 February 2017. Several other decisions on jurisdiction or awards that remain non-public have withstood set-aside applications before the courts at the respective arbitral seat in France, the Netherlands and Switzerland. See Russia v JSC Oschadbank, French Court of Cassation, appeal n° N 2115.390, Judgment, 7 December 2022; Russia v Aeroport Belbek LLC and others, Gerechtshof Den Haag, Judgment, 19 July 2022, ECLI:NL:GHDHA:2022:1296; Russia v Everest Estate and others, Gerechtshof Den Haag, Judgment, 19 July 2022, ECLI:NL:GHDHA:2022:1297; Russia v PJSC Ukrnafta, Swiss Federal Tribunal, Case no 4A 396/2017, Judgment, 16 October 2018. But see also Russia v NJSC Naftogaz of Ukraine and others, Gerechtshof Den Haag, Judgment (19 July 2022), ECLI:NL:GHDHA:2022:1295, where the court partly annulled the arbitral award, albeit for reasons

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clauses in the context of hostilities. This is most apparent in case the investment treaty itself refers to terminology used in IHL. For instance, where extended armed conflict clauses refer to the “requisitioning” of investments, they arguably directly refer to the term under IHL and provide for a right to claim compensation as required under customary international law.120 More significantly, extended armed conflict clauses and their reference to losses sustained due to state measures “not required by the necessity of the situation” should be seen as a reference to the concept of military necessity.121 Reliance on the applicable rules of IHL to interpret this notion should therefore almost come naturally. From the outset, when assessing the “necessity of the situation”, tribunals should follow the fundamental distinction between the jus in bello and the jus ad bellum: In IHL, the legality or illegality of the use of force does not impact on the legal judgment of individual actions on the battlefield.122 Therefore, arbitrators should, when it comes to claims arising from individual acts of hostilities, principally not take into account the legality of the underlying armed conflict. Accordingly, what is lawful under the law of armed conflict should be construed, by means of interpreting investment treaties in light of IHL, as being necessary also under extended armed conflict clauses. In Strabag v Libya, Libya similarly argued that the investor had no right to compensation, since destruction of its property “was a military necessity”.123 Reversely, breaches of IHL are not “required by the necessity of the situation” and trigger a claim to compensation. For instance, in case an investor’s factory site becomes the direct subject of an attack in the absence of any particular military reasons, the attack will violate the IHL principle of distinction. Equally and consequently, there is no possibility to consider such a clear-cut non-discriminatory attack to be “required by the necessity of the situation”. Understood in this way, IHL and extended armed conflict clauses align and do not lead to normative conflict.124 When it comes to the negative side of the general FPS standard, parallel considerations should apply.125 As the provision protects against unlawful infringements of the investment by the host state, as argued above (see Sect. 2.3.2.2), its contours should be defined by reference to IHL as well. One part of this assessment in connection with armed hostilities is whether the host state has followed the precautionary principle. Although the tribunal in AAPL v Sri Lanka did not invoke IHL, it similarly stated that the host state was required to take “all possible measures that could be reasonably

of temporal jurisdiction. For a discussion of the limits of this approach against the background of Russia’s 2022 invasion of Ukraine, see Ackermann and Wuschka 2023. 120 Ackermann 2022, pp 122–124. See also Ryk-Lakhman 2021, pp 67–69, who relies on VCLT, above n. 36, Article 31(1) and (4) and the notion of special meaning instead. 121 See, e.g., Spears and Fogdestam Agius 2019, p 294; Zriliˇ c 2019, pp 113–114; Mayorga 2013, p 8; but see also Braun 2021, pp 41–42. 122 See Sassòli 2007. 123 Strabag v Libya, above n. 54, para 312. 124 Ackermann 2022, pp 124–128. 125 Ibid., pp 151–154 and 169–172. See also Zriliˇ c 2019, pp 262–263.

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expected to prevent the eventual occurrence of killings and property destruction.”126 While its approach is persuasive in principle, the tribunal arguably could have given greater and explicit consideration to IHL obligations, particularly in the preparation and conduct of military attacks.127 As in the case of extended armed conflict clauses, the negative side of the FPS standard thus requires full compliance with the rules of IHL pertaining to the law of targeting and the execution of military attacks in line with the principles of distinction, proportionality and precaution. As a final example of the potential impact of IHL on investment treaties, security exceptions should be interpreted in a way that acts in violation of IHL should not be considered “necessary” in the pursuit of essential security interests. Contrary findings would send out a highly problematic signal, as breaches of IHL and possibly even war crimes should never be held to be “necessary” for any purposes. Conversely, lawful military attacks under IHL should indicate their “necessity” also under investment treaties. Here, the consideration of IHL that attacks on lawful targets, that is, military objectives the destruction of which offers a concrete military advantage, are militarily necessary should restrict arbitrators in assessing the existence of less restrictive alternatives. It should only be assessed whether the attack was in line with the IHL principles of proportionality and precaution outlined above (see Sect. 2.2.3).128 In case the security exception provides for self-judging language, the host state should be barred from invoking it at least in case of obvious violations of IHL, such as deliberate attacks on civilian objects.129 In the context of armed conflict, arbitrators should, therefore, consider an analysis of the rules of IHL as a subordinate step of the interpretive exercise employed to discern the meaning of investment treaties. As far as the other elements of treaty interpretation, in particular the respective wording of the clause in question, do not oppose such an approach, interpreters should rely on IHL to decide upon the investor’s claims. This is not to suggest, of course, that IHL replaces the norms of investment treaties. It merely contextualizes their meaning. Still, as a result, this exercise may mean that the standards of investment protection are arguably lowered as opposed to times of peace.

2.5 Conclusion IHL’s interaction with international investment law might not be as apparent as its much-discussed interaction with human rights law. However, investor-state arbitration in times of armed conflict is a reality. Investment treaties continue to apply during armed conflict and investors have already raised claims and successfully obtained awards in their favour in relation to internal and international armed conflicts. And for 126

AAPL v Sri Lanka, above n. 2, para 85(B). Ackermann 2022, pp 151–154; Zriliˇc 2019, pp 170–179. 128 Ackermann 2022, pp 232–233. See also Mayorga 2013, p 9; Ryk-Lakhman 2019, pp 271–278. 129 Ackermann 2022, pp 236–237. 127

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lack of different fora to claim armed conflict-related damages, investment arbitration is here to stay. As the involvement of arbitral tribunals in such contexts is not without problems, the parallel application of investment treaties and IHL has the potential of leading to counterproductive norm conflicts. If seen in isolation, investment law could, to a degree, undermine the rules of IHL, especially if violations of IHL were found to be in compliance with investment treaty standards. At the same time, it would appear difficult to justify why, in the absence of specific rules to this end, foreign investors would be protected more favourably than other civilians in armed conflicts. This chapter has argued that such adverse effects can and indeed should be avoided by referring to IHL when interpreting international investment treaties. Arbitrators are indeed legally required to do so. In turn, they should accept IHL as the decisive frame of reference, especially when it comes to the damages suffered by foreign investors during the conduct of hostilities or the applicable yardsticks in the context of occupied territory. This has the advantage of introducing into international investment law the long-established value judgments of IHL, which secure basic protection of civilians and their property, while at the same time accounting for the realities of armed conflict. Through the influence of IHL, investment law is opened to adequately take into account overriding military interests, without negating the significance of the protection of private rights and interests. In the best case, investment law can operate in symbiosis with IHL and contribute to enhancing and internalizing international rules in times of armed conflict and belligerent occupation. Equally, investment arbitration could send a signal to states that breaching international law in armed conflict comes with a price. While belligerents violating rules of IHL incur international responsibility,130 civilians are, as the law stands, not entitled to claim damages directly from the perpetrating state under international law. Although IHL provides for a duty to pay compensation,131 this is still widely seen as referring to interstate liability, rather than liability on an individual level. While this is rightly criticized in legal literature,132 state practice does not (yet) reflect an individual right to reparation.133 Investment arbitration could, to a degree, fill in this gap and strengthen the tendencies toward such an individual right. It could operate as a private enforcement mechanism and thus serve also the greater good.134

130

See ILC 2001, Articles 1 and 2. See AP I, above n. 16, Article 91; Hague Convention (IV) Respecting the Laws and Customs of War on Land, opened for signature 18 October 1907, 205 CTS 277 (entered into force 26 January 1910), Article 3. 132 E.g., Schwager 2005. See also Peters 2018. 133 Peters 2016, pp 208–211. 134 See already Wuschka 2020, pp 249–51. 131

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References Articles, Books and Other Documents Ackermann T (2022) The Effects of Armed Conflicts on Investment Treaties. Cambridge University Press, Cambridge Ackermann T, Wuschka S (2023) The Applicability of Investment Treaties in the Context of Russia’s Aggression against Ukraine. ICSID Review—Foreign Investment Law Journal 38:453–471 Alschner W (2022) Investment Arbitration and State-Driven Reform: New Treaties, Old Outcomes. Oxford University Press, Oxford Ballantyne J (2022) Ukraine’s richest man warns of claim against Russia over Mariupol siege. Global Arbitration Review. https://globalarbitrationreview.com/article/ukraines-richest-man-warns-ofclaim-against-russia-over-mariupol-siege. Accessed 8 March 2023 Baumann J (2021) International Investment Law in the Context of State Fragility: Full Protection and Security and Fair and Equitable Treatment. In: Ackermann T, Wuschka S (eds) Investments in Conflict Zones: The Role of international Investment Law in Armed Conflicts, Disputed Territories and ‘Frozen’ Conflicts. Brill Nijhoff, Leiden/Boston, pp 458-486 Boothby WH (2012) The Law of Targeting. Oxford University Press, Oxford Braun J (2022) Host State Circumstances and Absolute Standards of Protection in International Investment Law: Influence on the Interpretation of the Fair and Equitable Treatment and Full Protection and Security Standards. Nomos, Baden-Baden Braun TR (2021) International Law in Revolutionary Upheavals: On the Tension between International Investment Law and International Humanitarian Law. In: Ackermann T, Wuschka S (eds) Investments in Conflict Zones: The Role of International Investment Law in Armed Conflicts, Disputed Territories and ‘Frozen’ Conflicts. Brill Nijhoff, Leiden/Boston, pp 19–53 Brilmayer L, Chepiga G (2008) Ownership or Use? Civilian Property Interests in International Humanitarian Law. Harvard International Law Journal 49:413–446 Burke-White WW, von Staden A (2008) Investment Protection in Extraordinary Times: The Interpretation and Application of Non-Precluded Measures Provisions in Bilateral Investment Treaties. Virginia Journal of International Law 48:307–410 Cameron L, Demeyere B, Henckaerts J-M, La Haye E, Müller I (2016) Article 3: Conflicts not of an International Character. In: International Committee of the Red Cross (ed) Commentary on the First Geneva Convention. Cambridge University Press, Cambridge, pp 126–325 Casey-Maslen S, Haines S (2018) Hague Law Interpreted: The Conduct of Hostilities under the Law of Armed Conflict. Hart Publishing, Oxford Corn G, Schoettler JA Jr (2015) Targeting and Civilian Risk Mitigation: The Essential Role of Precautionary Measures. Military Law Review 223:785–842 Crawford E, Pert A (2020) International Humanitarian Law, 2nd edn, Cambridge University Press, Cambridge D’Aspremont J (2013) Articulating International Human Rights and International Humanitarian Law: Conciliatory Interpretation under the Guise of Conflict of Norm-Resolution. In: Fitzmaurice M, Merkouris P (eds) The Interpretation and Application of the European Convention of Human Rights: Legal and Practical Implications. Nijhoff, Leiden/Boston, pp 3–31 Dannenbaum T (2022) Legal Frameworks for Assessing the Use of Starvation in Ukraine. Just Security. www.justsecurity.org/81209/legal-frameworks-for-assessing-the-use-of-starvation-in-ukr aine/. Accessed 8 March 2023 De Brabandere E (2015) Host States’ Due Diligence Obligations in International Investment Law. Syracuse Journal of International Law and Commerce 42:319–361 Diab NI (2020) Targeting Members of Non-State Armed Groups in NIACs: An Attempt to Reconcile International Human Rights Law with IHL’s (De Facto) Status-Based Targeting. In: Heffes E, Kotlik MD, Ventura MJ (eds) International Humanitarian Law and Non-State Actors: Debates, Law and Practice. T.M.C. Asser Press, The Hague, pp 321–349

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Mayorga OJ (2013) Arbitrating War: Military Necessity as a Defense to the Breach of Investment Treaty Obligations. Harvard Program on Humanitarian Policy and Conflict Research, Policy Brief, Harvard. www.hpcrresearch.org/sites/default/files/publications/081213%20ARBI TRATING%20WAR%20%28final%29.pdf. Accessed 8 March 2023 Milanovic M (2009) Norm Conflict in International Law: Whither Human Rights? Duke Journal of Comparative & International Law 20:69–131 Milanovic M (2011) Extraterritorial Application of Human Rights Treaties. Oxford University Press, Oxford Monnheimer M (2021) Due Diligence Obligations in International Human Rights Law. Cambridge University Press, Cambridge Newcombe A, Paradell L (2009) Law and Practice of Investment Treaties: Standards of Treatment. Kluwer Law International, Alphen aan den Rijn Ostˇranský J (2015) The Termination and Suspension of Bilateral Investment Treaties Due to an Armed Conflict. Journal of International Dispute Settlement 6:136–162 Pauwelyn J (2003) Conflict of Norms in Public International Law: How WTO Law Relates to other Rules of International Law. Cambridge University Press, Cambridge Perrone NM (2021) Investment Treaties and the Legal Imagination: How Foreign Investors Play By Their Own Rules. Oxford University Press, Oxford Peters A (2016) Beyond Human Rights: The Legal Status of the Individual in International Law. Cambridge University Press, Cambridge Peters A (2018) Rights to Reparation as a Consequence of Direct Rights under International Humanitarian Law. Heidelberg Journal of International Law 78:545–549 Peterson LE (2019) Way2B v. Libya Tribunal Finds That BIT’s War-Losses Clause Does Not Exclude Operation of Other BIT Protections (Including Full Protection & Security), but Foreign Investor Fails to Meet Evidentiary Burdens. Investment Arbitration Reporter. www.iar eporter.com/articles/tribunal-finds-that-bits-war-losses-clause-does-not-exclude-operation-ofother-bit-protections-including-full-protection-security-but-foreign-investor-fails-to-meet-evi dentiary-burdens/. Accessed 8 March 2023 Phillimore R (1857) Commentaries Upon International Law, vol 3. T & JW Johnson & Co., Philadelphia Pulkowski D (2014) The Law and Practice of International Regime Conflict. Cambridge University Press, Cambridge Quéguiner J-F (2006) Precautions under the Law Governing the Conduct of Hostilities. International Review of the Red Cross 88:793–821 Ranjan P (2016) Protecting Security Interests in International Investment Law. In: Schmidt J, White ND, Davies-Bright L (eds) Security and International Law. Hart, Oxford/Portland OR, pp 273– 300 Reinisch A (2018) Enforcement of Investment Treaty Awards. In: Yannaca-Small K (ed) Arbitration Under International Investment Agreements: A Guide to the Key Issues, 2nd edn. Oxford University Press, Oxford, pp 671–697 Reinisch A, Schreuer C (2020) International Protection of Investments: The Substantive Standards. Cambridge University Press, Cambridge Rosentreter D (2015) Article 31(3)(c) of the Vienna Convention on the Law of Treaties and the Principle of Systemic Integration in International Investment Law and Arbitration. Nomos, Baden-Baden. Ryk-Lakhman I (2018) Foreign Investments as Non-Human Targets. In: Baade B, Mührel L, Petrov AO (eds) International Humanitarian Law in Areas of Limited Statehood: Adaptable and Legitimate or Rigid and Unreasonable? Nomos, Baden-Baden, pp 171–193 Ryk-Lakhman I (2019) Protection of Foreign Investments Against the Effects of Hostilities: A Framework for Assessing Compliance with Full Protection and Security. In: Fach Gómez K, Gourgourinis A, Titi C (eds) International Investment Law and the Law of Armed Conflict. Springer, Cham, pp 259–282

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Ryk-Lakhman I (2021) The Genealogy of Extended War Clauses: Requisition and Destruction of Property in Armed Conflicts. In: Ackermann T, Wuschka S (eds) Investments in Conflict Zones: The Role of International Investment Law in Armed Conflicts, Disputed Territories and ‘Frozen’ Conflicts. Brill Nijhoff, Leiden/Boston, pp 54–83 Salacuse JW (2021) The Law of Investment Treaties, 3rd edn. Oxford University Press, Oxford Sassòli M (2007) Ius Ad Bellum and Ius in Bello – The Separation between the Legality of the Use of Force and Humanitarian Rules to Be Respected in Warfare: Crucial or Outdated? In: Schmitt M, Pejic J (eds) International Law and Armed Conflict: Exploring the Faultlines—Essays in Honour of Yoram Dinstein. Nijhoff, Leiden/Boston, pp 241–264 Schill SW (2009) The Multilateralization of International Investment Law. Cambridge University Press, Cambridge Schill SW, Briese R (2009) “If the State Considers”: Self-Judging Clauses in International Dispute Settlement. Max Planck Yearbook of United Nations Law 13:61–140 Schmitt MN (2015) Targeting in Operational Law. In: Gill TD, Fleck D (eds) The Handbook of the International Law of Military Operations, 2nd edn. Oxford University Press, Oxford, pp 269–306 Schwager E (2005) The Right to Compensation for Victims of an Armed Conflict. Chinese Journal of International Law 4:417–439 Schreuer C (2019) War and Peace in International Investment Law. In: Fach Gómez K, Gourgourinis A, Titi C (eds) International Investment Law and the Law of Armed Conflict. Springer, Cham, pp 1–21 Schreuer C (2022) Investment Protection in Times of Armed Conflict. Journal of World Investment & Trade 23:701–715 Solis GD (2016) The Law of Armed Conflict: International Humanitarian Law in War, 2nd edn. Cambridge University Press, Cambridge/New York Spears S, Fogdestam Agius M (2019) Protection of Investments in War-torn States: A Practitioner’s Perspective on War Clauses in Bilateral Investment Treaties. In: Fach Gómez K, Gourgourinis A, Titi C (eds) International Investment Law and the Law of Armed Conflict. Springer, Cham, pp 283–317 Todeschini V (2018) The Impact of International Humanitarian Law on the Principle of Systemic Integration. Journal of Conflict & Security Law 23:359–382 United Nations Conference on Trade and Development (UNCTAD) (2023) International Investment Agreements Navigator. https://investmentpolicy.unctad.org/international-investment-agr eements. Accessed 8 March 2023. United States Department of War (1863) Instructions for the Government of Armies of the United States in the Field, General Orders No. 100 Viñuales JE (2014) Sovereignty in Foreign Investment Law. In: Douglas Z, Pauwelyn J, Viñuales JE (eds) The Foundations of International Investment Law: Bringing Theory into Practice. Oxford University Press, Oxford, pp 317–362 Vranes E (2006) The Definition of “Norm Conflict” in International Law and Legal Theory. European Journal of International Law 17:395–418 Waxman MC (2008) Detention as Targeting: Standards of Certainty and Detention of Suspected Terrorists. Columbia Law Review 108:1365–1430 Weeramantry JR (2012) Treaty Interpretation in Investment Arbitration. Oxford University Press, Oxford Winter E (2022) The Russian Siege of the Azovstal Steel Plant in Ukraine: An International Humanitarian Law Perspective. Jurist. www.jurist.org/features/2022/04/28/the-russian-siege-of-the-azo vstal-steel-plant-in-ukraine-an-international-humanitarian-law-perspective/. Accessed 8 March 2023 Wortley BA (1959) Expropriation in Public International Law. Cambridge University Press, Cambridge

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Wuschka S (2020) Investment Tribunals Adjudicating Claims Relating to Occupied Territories: Curse or Blessing? In: Duval A, Kassoti E (eds) Economic Activities in Occupied Territories: EU Law and Business and Human Rights Perspectives. Routledge, New York, pp 235–252 Yotova R (2017) Systemic Integration—An Instrument for Reasserting the State’s Control in Investment Arbitration? In: Kulick A (ed) Reassertion of Control over the Investment Treaty Regime. Cambridge University Press, Cambridge, pp 182–208 Zriliˇc J (2019) The Protection of Foreign Investment in Times of Armed Conflict. Oxford University Press, Oxford

Cases Ampal-American Israel Corp. et al. v Egypt, Liability and Heads of Loss, 21 February 2017, ICSID Case No. ARB/12/11 Asian Agricultural Products Ltd. v Sri Lanka, Award, 27 June 1990, ICSID Case No. ARB/87/3 CC/Devas Ltd. et al. v India, Award, 25 July 2016, PCA Case No. 2013–09 ˙ saat Sanayi v Ticaret AS v Libya, Final Award, 7 November 2018, ICC Case No. 21537/ Cengiz In¸ ZF/AYZ Continental Casualty Co. v Argentina, Award, 5 September 2008, ICSID Case No. ARB/03/9 CME Czech Republic B.V. v Czech Republic, Partial Award, 13 September 2001 CMS Gas Transmission Co. v Argentina, Award, 12 May 2005, ICSID Case No. ARB/01/8 Deutsche Telekom AG v India, Interim Award, 13 December 2017, PCA Case No. 2014–10 ECtHR, Hassan v UK, Grand Chamber Judgment, 16 September 2014, Application No. 29750/09 Everest Estate LLC et al. v Russia, Jurisdiction, 20 March 2017, PCA Case No. 2015-36 French Court of Cassation, Russia v JSC Oschadbank, appeal n° N 21-15.390, Judgment, 7 December 2022 GATT (pre-WTO) Panel, USA—Trade Measures Affecting Nicaragua, Report (unadopted), 13 October 1986, L/6053 Gerechtshof Den Haag, Russia v Aeroport Belbek LLC and others, Judgment (19 July 2022), ECLI:NL:GHDHA:2022:1296 Gerechtshof Den Haag, Russia v Everest Estate and others, Judgment (19 July 2022), ECLI:NL:GHDHA:2022:1297 Gerechtshof Den Haag, Russia v NJSC Naftogaz of Ukraine and others, Judgment (19 July 2022), ECLI:NL:GHDHA:2022:1295Gold Reserve Inc. v Venezuela, Award, 22 September 2014, ICSID Case No. ARB(AF)/09/1 Gujarat State Petroleum Corp. Ltd. et al. v Yemen and the Yemeni Ministry of Oil and Minerals, Final Award, 10 July 2015, ICC Case No. 19299/MCP. ˙ saat ve Mühendislik A.¸S. et al. v Syria, Award, 31 August 2022, ICC Case No. 21845/ZF/ Güri¸s In¸ AYZ IACtHR, Santo Domingo Massacre v Colombia, Judgment, 30 November 2012, IACtHR Series C No. 259 ICJ, Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Iran v USA), Judgment (Preliminary Objections), 3 February 2021, [2021] ICJ Rep 9 ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia), Judgment (Merits), 3 February 2015, [2015] ICJ Rep 3 ICJ, Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France), Judgment, 4 June 2008, [2008] ICJ Rep 177 ICJ, Elettronica Sicula SpA (USA v Italy), Judgment, 20 July 1989, [1989] ICJ Rep 15 ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, [1996] ICJ Rep 226 ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v USA), Judgment (Merits), 27 June 1986, [1986] ICJ Rep 14

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ICTY, Prosecutor v Dusko Tadi´c aka ‘Dule’, Jurisdiction, 2 October 1995, Case No. ICTY-94-1 Mamidoil Jetoil Greek Petroleum Products Societé SA v Albania, Award, 30 March 2015, ICSID Case No. ARB/11/24 Noble Ventures, Inc. v Romania, Award, 12 October 2005, ICSID Case No. ARB/01/11 North Atlantic Coast Fisheries (Great Britain v United States), Award, 7 September 1910, 11 RIAA 167 Özta¸s Construction, Construction Materials Trading Inc. v Libya, Final Award, 14 June 2018, ICC Case No. 21603/ZF/AYZ Pantechniki S.A. Contractors & Engineers v Albania, Award, 30 July 2009, ICSID Case No. ARB/ 07/21 PrivatBank and Finilon v Russia, PCA Case No. 2015-21, Interim Award, 24 February 2017 Rumeli Telekom A.S. and Telsim Mobil Telekomunikasyon Hizmetleri A.S. v Kazakhstan, Award, 29 July 2008, ICSID Case No. ARB/05/16 Saluka Investments B.V. v Czech Republic, Partial Award, 17 March 2006 Sempra Energy International v Argentina, Annulment, 29 June 2010, ICSID Case No. ARB/02/16 Stabil LLC et al. v Russia, Award, 12 April 2019, PCA Case No. 2015-35 Strabag SE v Libya, Award, 29 June 2020, ICSID Case No. ARB(AF)/15/1 Swiss Federal Tribunal, Russia v Stabil LLC and others, Case no 4A 398/2017, Judgment (16 October 2018) Swiss Federal Tribunal, Russia v PJSC Ukrnafta, Case no 4A 396/2017, Judgment (16 October 2018) United States Military Tribunal at Nuremberg, Trial of Wilhelm List et al. (Hostages Trial), Judgment, 19 February 1948. In: (1949) Law Reports of Trials of War Criminals 8:34–76 Way2B ACE v Libya, Award, 24 March 2018, ICC Case No. 20971/MCP/DDA WTO Appellate Body, Brazil—Measures Affecting Imports of Retreaded Tyres, Report, 12 March 2007, WT/DS332/AB/R WTO Panel, Russia—Measures Concerning Traffic in Transit, Report, 29 April 2019, WT/DS512/ R WTO Panel, Saudi Arabia—Measures Concerning the Protection of Intellectual Property Rights, Report, 16 June 2020, WT/DS567/R WTO Panel, USA—Certain Measures on Steel and Aluminium Products (EU), Communication from the USA, 11 June 2018, WT/DS548/13.

Treaties Agreement between Canada and Mali for the Promotion and Protection of Investments, signed 28 November 2014 (entered into force 8 June 2016) Agreement between the Republic of Austria and the Great Socialist People’s Libyan Arab Jamahiriya for the Promotion and Protection of Investments, signed 18 June 2002 (entered into force 1 January 2004) Agreement between the Republic of Turkey and the Syrian Arab Republic Concerning the Reciprocal Promotion and Protection of Investments, signed 6 January 2004 (entered into force 3 January 2006) Agreement between the Government of the United Kingdom of Great Britain and Northern Island and the Government of the Arab Republic of Egypt for the Promotion and Protection of Investments, signed 11 June 1975 (entered into force 24 February 1976) Agreement between the State of Israel and Japan for the Liberalization, Promotion and Protection of Investment, signed 1 February 2017 (entered into force 5 October 2017) Charter of the United Nations, opened for signature 26 June 1945, 1 UNTS XVI (entered into force 24 October 1945)

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Energy Charter Treaty, opened for signature 17 September 1994, 2080 UNTS 95 (entered into force 16 April 1998) General Agreement on Tariffs and Trade 1994, Annex 1A to the Marrakesh Agreement Establishing the World Trade Organization, open for signature 15 April 1994, 1867 UNTS 187 (entered into force 1 January 1995) Geneva Conventions for the Protection of War Victims, opened for signature 12 August 1949, 75 UNTS 31 (entered into force in force 21 October 1950) Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, open for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950) Hague Convention (IV) Respecting the Laws and Customs of War on Land, opened for signature 18 October 1907, 205 CTS 277 (entered into force 26 January 1910) International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) Protocol Additional (I) 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 313 (entered into force 7 December 1978) Protocol Additional (II) 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) Rome Statute of the International Criminal Court, open for signature 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002) Treaty between the United States of America and the Argentine Republic Concerning the Reciprocal Encouragement and Protection of Investments, signed 14 November 1991 (entered into force 20 October 1994) Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980)

Tobias Ackermann, Associate, BLOMSTEIN Partnerschaft von Rechtsanwälten mbB, Berlin, Germany. Sebastian Wuschka, Of Counsel, Practice Group Complex Disputes, Luther Rechtsanwaltsgesellschaft mbH, Hamburg, Germany; Research Fellow, University of Lausanne, Switzerland; Associated Member, Institute for International Law of Peace and Armed Conflict (IFHV), RuhrUniversity Bochum, Germany.

Chapter 3

Defences to State Responsibility in International Humanitarian Law Federica I. Paddeu and Kimberley N. Trapp

Contents 3.1 3.2 3.3

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Two Premises: Jus Cogens and Lex Specialis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.1 Inter-state Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.2 Non-state Actor Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4 Self-defence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.5 Countermeasures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.6 State of Necessity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.7 Distress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.8 Force Majeure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.9 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

72 75 77 79 81 83 88 92 95 96 100 102

Abstract The ILC Articles on State Responsibility contain six general defences: consent, self-defence, countermeasures, force majeure, distress and state of necessity. These defences are, in principle, applicable to the whole range of obligations of States under international law—regardless of their source, character, or addressees—and are therefore at least potentially applicable in respect of obligations under international humanitarian law. In this chapter we argue that, other than force majeure, the defences in the law of responsibility are not applicable to the breach of IHL obligations. There are a variety of reasons for this, which reflect the material scope of the ARS defences and the particularities of the armed conflict context and IHL. Indeed in some cases, IHL may be seen as an actualisation of the concern that is addressed by the general defences, leaving them no further role to play within IHL. In respect of force majeure, which is available as a defence in respect of (certain) IHL breaches, we argue that

F. I. Paddeu (B) Queens’ College, University of Cambridge, Cambridge, UK e-mail: [email protected] K. N. Trapp UCL Faculty of Laws, Bentham House, Endsleigh Gardens, London, UK e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2024 H. Krieger et al. (eds.), Yearbook of International Humanitarian Law, Volume 25 (2022), Yearbook of International Humanitarian Law 25, https://doi.org/10.1007/978-94-6265-619-2_3

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States are obliged to ensure that their conduct in the circumstances respects the object and purpose of IHL as far as this is possible. Keywords State Responsibility · Circumstances Precluding Wrongfulness · Force Majeure · Self-Defence · Necessity · Countermeasures · Reprisals

3.1 Introduction International Humanitarian Law (‘IHL’) is an intellectually interesting set of contradictions. It is a body of law which is premised on the existence of armed conflict— together with climate change, one of the most destructive anthropogenic forces to affect human life and the natural environment on which human life depends. And yet, IHL is a body of law which is, at its heart, protective of these interests. IHL is a guardian of the individual in armed conflict contexts, and yet it responds to and accounts for the macro security interests of States which are not always compatible with those individual interests. It is, perhaps uniquely in international law, a body of law which attempts to reconcile the irreconcilable. And it does so on the basis of an (admittedly imperfect) balance between protective humanitarian aims and the dictates of military necessity. The body of IHL rules which have been formulated in treaty texts,1 the vast majority of which are now reflected in customary international law,2 operates on the basis of this unique internal logic. The question we explore in this chapter is whether, and under what circumstances, this unique logic of the primary law affects or conditions the extent to which the secondary rules of State responsibility apply in this area.3 In particular, we explore whether defences under

1

Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12 1949, 75 UNTS 31 (entered into force 21 October 1950) (‘GCI’); Geneva Convention for the Amelioration of the Conditions of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of August 12 1949, 75 UNTS 85 (entered into force 21 October 1950) (‘CGII’); Geneva Convention Relative to the Treatment of Prisoners of War of August 12 1949, 75 UNTS 135 (entered into force 21 October 1950) (‘GCIII’); Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12 1949, 7 UNTS 287 (entered into force 21 October 1950) (‘GCIV’), together with GCI, GCII, and GCIII, collectively referred to as the ‘Geneva Conventions’; 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) (‘API’); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of NonInternational Armed Conflicts, open for signature 8 June 1977, 1125 UNTS 609 (entered into force 7 December 1978) (‘APII’), together with API, the ‘Additional Protocols’. This chapter, in its articulation of IHL, will rely principally on the treaty law framework of the Geneva Conventions and the Additional Protocols. 2 See ICRC 2005. 3 On which see, generally, Maˇ cák 2021.

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general international law are available, as a matter of principle, to exonerate States for conduct that is inconsistent with their IHL obligations.4 The ARS include six provisions on so-called ‘circumstances precluding wrongfulness’ in Chapter V of Part One. These are: consent, self-defence, countermeasures, force majeure, distress and state of necessity.5 These are largely accepted at customary law and, like all of the provisions in Part One of the ARS, are in principle applicable in respect of all obligations of States, irrespective of their source, character, or addressee.6 There are, of course, limits to their reach. Some of these limits are general: the defences cannot be invoked in respect of breaches of peremptory rules of international law,7 nor can they apply where there is a lex specialis.8 Others are specified by each defence. For example, countermeasures are inapplicable in respect of prohibited reprisals,9 which evidently dictates their application in this field.

4

The term ‘defence’ is, to be sure, ambiguous. One accepted sense is as a catch-all term to refer to substantive arguments that aim to defeat claims on the merits. The latter is precisely the role of the listed ‘circumstances precluding wrongfulness’ in the International Law Commission (‘ILC’) (2001) Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries, in Report of the International Law Commission on the work of its fifty-third session, UN Doc. A/56/10, 31 (‘ARS’ and ‘ARS Commentary’), according to the ARS Commentary to Chapter V of Part One of the ARS, para 8. The term ‘defence’ will be used throughout this chapter to refer to the ILC’s ‘circumstances precluding wrongfulness’. The preference for the term ‘defence’ in this context stems from the fact that the provisions in ARS Articles 20–25 are not clearly categorized into justifications and excuses. The ILC left the question of their classification into these two categories open. Yet, the term ‘circumstance precluding wrongfulness’ is synonymous with justification: namely a circumstance which, when it is present, affects the legal characterisation of conduct as wrongful or lawful. For this reason, it is an inadequate term to refer to the provisions in Chapter V of Part One of the ARS, insofar as it would seem to exclude the possibility that some of these defences do not affect the wrongfulness of the relevant conduct but instead preclude the responsibility of the actor. So as to avoid prejudging the character of each of these circumstances—a matter which is beyond the scope of this chapter—we will use the general term ‘defence’. On the use of this term to refer to the ARS’s ‘circumstances precluding wrongfulness’ see: Okowa 1999; Paddeu 2018, pp 23–62; Jarrett 2019, pp 16–42; Duarte d’Almeida 2020, p 179. 5 ARS, above n 4, Articles 20–25, respectively. 6 ARS, above n 4, Article 12. 7 ARS, above n 4, Article 26. 8 ARS, above n 4, Article 55. 9 ARS, above n 4, Article 50(1)(b).

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The defences have not, so far, played a significant role in the field of IHL. This is partly for practical reasons. There is no international court or tribunal with compulsory jurisdiction over claims for breaches of IHL (either inter-State, or individualState),10 and there have been relatively few cases involving claims of State responsibility for the breach of IHL11 before international tribunals in respect of which the applicability of defences under general international law would be relevant.12 The implementation of responsibility for IHL breaches tends to rely heavily on a criminal law enforcement paradigm, which either takes place before domestic courts, or international criminal courts and tribunals with jurisdiction over war crimes.13 Here, it is individual responsibility that is at stake, so that the defences recognised in the law of State responsibility (to the extent, if at all, that they would be applicable by domestic courts) are irrelevant in their ARS form. But we suggest that there are also legal reasons why the defences have not played a prominent role in respect of international humanitarian law. Aside from the limit imposed by jus cogens, the defences are not applicable in this field either as a result of limitations specific to each defence (making them unavailable in respect of breaches of IHL to begin with), or that relevant rules of IHL effectively address the same concern, thus excluding, limiting or conditioning the application of the defences—operating, that is, as a lex specialis. In each case, the result is to preserve the internal logic of IHL and to maintain its individual protective character in the face of State interests which might well pull in the opposite direction. In what follows, we discuss each of the defences contained in the ARS and assess if and to what extent they are applicable to the breach of IHL obligations. We start 10

In respect of IHL breaches, whether under the Geneva Conventions or Additional Protocols, or under customary international law, jurisdiction would only be available before the International Court of Justice if the State parties to a dispute had each made an optional clause declaration (Statute of the International Court of Justice, opened for signature 18 April 1946 (‘ICJ Statute’), Article 36(2)) or agreed on an ad hoc basis to submit the case to the Court under Article 36(1) ICJ Statute States might also give ad hoc consent to arbitration, as was the case in respect of the Eritrea Ethiopia Claims Commission (‘EECC’). See Agreement between the Government of the Federal Democratic Republic of Ethiopia and the government of the state of Eritrea, 12 December 2000, 2138 UNTS 94, Article 5. 11 Here we draw a distinction between the implementation of responsibility for a breach of IHL, and the normative pull and compliance pressure of IHL, which of course include public attention, reciprocity, diplomacy etc. 12 For example, see ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits, Judgment of 27 June 1986, [1986] ICJ Rep 14 (Nicaragua Case); ICJ, Armed Activities on the Territory of the Congo (DRC v Uganda), Judgment of 19 December 2005, [2005] ICJ Rep 168; EECC, Federal Democratic Republic of Ethiopia v Eritrea, Partial Award, Prisoners of War, 1 July 2003; EECC, Federal Democratic Republic of Ethiopia v Eritrea, Partial Award, Western Front, Aerial Bombardment and Related Claims, 19 December 2005. 13 There has also been a considerable increase in the implementation of State responsibility for human rights breaches which are co-extensive with IHL breaches before human rights courts or treaty monitoring bodies. See generally Zyberi 2018; Steiger 2015. But the applicability of general international law defences to relevant internationally wrongful acts in such cases will be a question asked and answered within the normative and procedural framework of international human rights law, and therefore does not help to address the IHL-specific question addressed in this contribution.

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by addressing two overarching limitations on the reach of the defences: jus cogens and lex specialis. We then consider each defence in the following order: consent, self-defence, countermeasures, state of necessity, distress and force majeure.14 A final section provides some concluding remarks. Before proceeding, it is important to note that we approach the question at a high level of generality, addressing questions of interaction between these two bodies of law principally in the abstract. The conclusions that we reach will not necessarily be dispositive in every case, as not all rules of IHL share the same character or impose the same standard of behaviour. Whether a defence is available in any given case will require analysis on a rule-by-rule basis. Nevertheless, we hope that the analysis in this chapter will provide principled guidance in these cases.

3.2 Two Premises: Jus Cogens and Lex Specialis Our analysis in this chapter proceeds on the basis of two uncontroversial premises. First, that jus cogens poses an absolute bar to the applicability of the defences in the law of State responsibility. Second, that the application of the defences is limited—or moulded—by the lex specialis principle. We address each in turn. Turning to jus cogens first: the defences cannot be invoked to justify or excuse the breach of peremptory rules of international law.15 This is a logical extension of the effect of peremptory rules under Article 53 of the Vienna Convention on the Law of Treaties (‘VCLT’):16 after all, if States cannot agree to derogate from peremptory rules by agreement, then it follows that they cannot do so unilaterally through reliance on one of the defences either. This is a well-established limitation, which was recently confirmed by the ILC—and States in the Sixth Committee—in the context of the Commissions work on the Draft Conclusions on the Identification and Legal Consequences of Peremptory Norms of International law (Jus Cogens).17 Thus, the defences will not be applicable to the extent that rules of IHL are recognised as having jus cogens character.18 To avoid repetition in respect of each defence, the 14

We alter the order in which the defences are listed in the ARS in two respects. First, we address force majeure last because, in our analysis, this is the only defence which is available if with significant limitations in IHL. We thought it would make sense to address all those defences which are not available first. Second, we also invert the order of distress and state of necessity. This is because, in our assessment, distress is a specific form of necessity and the considerations which arise with respect to necessity are equally applicable to distress. 15 ARS, above n 4, Article 26. 16 Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980). 17 ILC (2022) Draft conclusions on the identification and legal consequences of Peremptory Norms of International Law (jus cogens), UN Doc A/77/10, adopted by the Commission at its seventy-third session in 2022, Draft Conclusion 18. 18 It is widely accepted that the ‘basic rules’ of IHL are jus cogens norms. See ARS Commentary, above n 4, Article 40, para 5; ILC (2006), Conclusions of the work of the Study Group on the

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analysis in this chapter will proceed on the basis that the defences we address could only apply (if at all) to those IHL rules that do not have peremptory character. Second, the defences may be excluded, or their application may be conditioned or modified, by relevant lex specialis.19 This is a necessary consequence of the general and residual character of the ARS. Lex specialis in this context is shorthand for the maxim lex specialis derogat legi generali20 and creates the space for the specific field to clarify, update, or modify the general law insofar as is necessary to respond to the particular concerns of and context within which these rules apply.21 As the ILC makes clear in its Conclusions on fragmentation of international law, lex specialis does not normally fully or entirely exclude the application of general law, but instead the general law sits in the background, and operates to the extent it has not been clarified, updated, modified or excluded by the primary rules.22 It should be noted at the outset that we approach the relationship between Chapter V of Part One of the ARS and IHL from the perspective of general international law (and the ILC’s approach to lex specialis). That is to say, we will first address whether the defences are applicable to IHL, in light of their specific ARS requirements and conditions, and then consider the extent to which their applicability is excluded or conditioned by IHL itself. We think this approach is important for systemic reasons, as it highlights that IHL is a key part of the international legal order and that its place within this order should be re-affirmed often and loudly, even while pressing and exploring points of friction. Further, as we hope to show, the defences in the ARS may often be inapplicable to IHL as a result of their specific requirements and conditions,23 quite aside from IHL-based reasons for their non-application. This analysis would be missed if we approached the question simply from the standpoint of IHL. As we will show, just as the IHL system can exclude or modify the applicability of the rules of State responsibility, the general law of State responsibility can be flexible and responsive on its own terms to the broader protective aims of IHL.

Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law in Report of the International Law Commission on the work of its fifty-eighth session, UN Doc. A/61/10 (‘Conclusions of the Study Group on fragmentation of international law’), para 251, conclusion 33. These ‘basic rules’ have been characterized variously in terms of the prohibition of directing hostilities at the civilian population (ILC, Report of the Study Group on fragmentation of international law: difficulties arising from the diversification and expansion of international law (finalized by Martti Koskenniemi), UN Doc. A/CN.4/L.682, Corr.1 and Add.1, para 374), and the prohibitions covered by Common Article 3 and the grave breaches regime of the Geneva Conventions, above n 1. See generally Weatherall 2015, pp 213–219. 19 ARS, above n 4, Article 55. For a general discussion of the application and implications of the lex specialis principle, see Conclusions of the Study Group on Fragmentation of International Law, above n 18, p 177. 20 ARS Commentary, n 4 above, Article 55, para 2; Conclusions of the Study Group on Fragmentation of International Law, above n 18, para 251, conclusion 5. 21 Ibid., conclusions 7 and 8. 22 Ibid., conclusion 9. 23 Some of which, as will be argued, were included specifically to respond to the particular concerns and context of IHL.

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3.3 Consent Article 20 ARS states that: Valid consent by a State to the commission of a given act by another State precludes the wrongfulness of that act in relation to the former State to the extent that the act remains within the limits of that consent.

A State’s consent to a specific conduct by another State precludes the wrongfulness of that conduct in relation to the consenting State, so long as the consent is valid and (as expressly set out in the Article) the conduct remains within the limits of the consent given.24 Through their consent, States can dispense with the performance of obligations owed to them (and, correlatively, the performance of their rights). Consent to the non-performance of an obligation is different from consent to the underlying obligation. While a State can consent to the non-performance of an obligation arising under a treaty, for a particular case, this does not as such suspend or terminate the treaty itself.25 This type of consent is a daily occurrence in international affairs. Some examples include the transit through airspace or internal waters of a State, the exercise of extraterritorial enforcement jurisdiction, and the use of force in the territory of another State.26 To afford a defence, consent must exist before, or at the time, of the conduct in question. When given after the event, consent involves a waiver of claims.27 Consent must also be valid: it must be freely given by a State organ with the authority to consent to the non-performance of the obligation at issue, a matter which may turn on the relevant primary rule,28 and it must not be vitiated by any defects (error, coercion, and so on).29 There are no particular requirements of form: consent can be given orally or in writing, and can be express or tacit.30 In all cases, consent must be clearly established and it can never be presumed.31 Some doubts have been expressed in the literature as to whether consent can afford a defence at all, instead of simply constituting a (negative) element of the definition 24

ARS Commentary, above n 4, Article 20, para 1. On the scope of consent, see ibid., para 9. In the literature, see: Alaimo 1982, p 257; Díaz Barrado 1989; Abass 2004; Bannelier and Christakis 2004; Ben Mansour 2010; Crawford 2013, pp 283–289; Paddeu 2018, pp 131–174. 25 ARS Commentary, above n 4, Article 20, para 3. But see Paparinskis 2016, p 489, writing in the context of investment law, who frames the issue as one concerning the suspension of treaty provisions under the law of treaties. The approach is unduly narrow: it is not required as a matter of ILC Article 20. 26 ARS Commentary, above n 4, Article 20, para 2. 27 Consent given after the conduct in question takes place cannot retroactively render that conduct lawful. Ex post consent amounts to a waiver of claims, regulated in Article 45 ARS, above n 4. See ARS Commentary, above n 4, Article 20, para 3. See Crawford 2013, p 286. 28 ARS Commentary, above n 4, Article 20, para 4. 29 The ARS Commentary here refers to the ‘principles concerning the validity of consent to treaties’: ARS Commentary, above n 4, Article 20, para 6. 30 Crawford 2013, p 284. 31 Presumed consent, says Ben Mansour 2010, p 442, ‘is supposed, not established’. See also: Ago 1939, p 535.

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of international obligations.32 On this view, all obligations in international law would include a ‘without consent’ clause as part of their requirements, making a defence of consent redundant. But this view is not universally shared nor, indeed, based on solid principled or empirical justifications. Jurisprudentially, few would argue that consent—as a token defence—must always amount to a negative rule-element.33 As with other defences,34 an element of consent can indeed be either a negativerule element or a defence, depending on the relevant rule.35 The difficulty is rather of identifying when it is one or the other.36 In practice, moreover, the legislations of several States accept that consent can perform both functions, depending on the rule—at the very least in their criminal laws.37 This is an important debate, but one that exceeds the scope of this contribution. Our analysis will proceed on the basis that consent could operate as a defence in this field. The Commentary to Article 20 also notes that consent, as a circumstance precluding wrongfulness within the framework of the ARS, is an inter-State defence only: it can only apply to the extent that obligations are owed as between States. As a result, and subject to the general limitation concerning peremptory norms noted in the introduction, Article 20 would only be relevant in respect of rules of IHL governing international armed conflicts (‘IAC’ or ‘IACs’ as relevant).38

32

See, e.g., Bannelier and Christakis 2004; Crawford 2013, pp 317–318. The argument tends to be made in a more general way: about whether any defences (and not any token one) can subsist as self-standing requirements, or whether all defences must always be incorporated as negative-rule elements. See, e.g., Stone 1944; Williams 1982; Williams 1988. 34 Legal theorists have indeed argued that certain facts (or their absence) can be incorporated in the rule, or amount to a defence. See, e.g., Finkelstein 1999; Duarte d’Almeida 2015; Schauer 2016; Duarte d’Almeida 2020. 35 See, e.g., in criminal law: Fletcher 2000, pp 565–567; in tort law: Goudkamp 2013, pp 65–8, 113– 14. From a theoretical standpoint, see: Gardner 2007a; Gardner 2007b. Specifically in international law, see Okowa 1999; Paddeu 2018, pp 154–170; Jarrett 2019, pp 16–42; Paddeu 2020. 36 Campbell 1987. 37 German law, for example, distinguishes between the two functions of consent by using different words: Einwilligung to refer to consent as a defence, and Einverständnis to refer to consent as a definitional element, see: Bohlander 2009, p 77. Other jurisdictions that distinguish between these two functions of consent include: France, the Netherlands, New Zealand, Sweden, Turkey, and the US. On which see the chapters in Reed et al. 2017, pp 386, 305–306, 326–327, 420, 367–368, 345, respectively. 38 An international armed conflict is defined in reference to the nature of the parties to the conflict (States only). See Geneva Conventions, above n 1, Common Article 2; API, above n 1, Article 1. Non-international armed conflicts, on the other hand, are defined in reference to a number of criteria (including territory and intensity), but a necessary element is that one of the belligerents is a non-State actor (see Geneva Conventions, above n 1, Common Article 3; APII, above n 1, Article 1)—in which case an inter-State like consent defence would be inapplicable. 33

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3.3.1 Inter-state Consent In respect of the applicability of consent as a circumstance precluding the wrongfulness of an IHL breach in the context of IACs, there are two perspectives from which this question might be addressed. First, whether on its own terms, Article 20 ARS is applicable to IHL governing IACs; and second, whether there are features of the primary IHL rules (set out particularly in the Geneva Conventions and API) which preclude the operation of consent. There is no express language in the text or Commentary to Article 20 ARS which excludes the application of this provision to IHL rules governing IACs, at least in respect of those rules of IHL which do not have a peremptory character. Nevertheless, in our view, the availability of consent as a defence for the non-performance of IHL obligations is significantly limited, or excluded, for two overlapping reasons. First, it must be queried whether consent can validly be given in the context of an armed conflict, or whether it would be vitiated by the circumstances (in particular, due to coercion).39 The ARS Commentary does not provide much explanation in respect to vices of consent, relying instead on a sort of renvoi to the law of treaties on this matter.40 Coercion under the law of treaties is addressed in Article 52 VCLT, pursuant to which the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations (‘UN Charter’) amounts to coercion of a State which voids a treaty.41 The application of a definition of coercion (as a vice of consent) which is framed in terms of a threat or use of force in violation of the Charter of the United Nations to the non-performance of IHL obligations would evidently challenge the separation between the jus ad bellum and IHL.42 As a matter of IHL, the belligerent parties are equally entitled to use lawful (which is to say IHL-compliant) force. IHL applies equally to all belligerents unaffected by the ‘justness of the cause’ for which they fight43 —the lawfulness of force insofar as the UN Charter is concerned does not, and 39

Coercion is a basis for vitiating consent in the ARS Commentary, above n 4. And recognising the inherent potential for coercion in situations of armed conflict, Theodore Meron notes in particular that Common Article 6/6/6/7 of the Geneva Conventions (discussed further below) was adopted in reaction to agreements between belligerents during WWII, for example those between Germany and the Vichy government which, under pressure from the German authorities, deprived French POWs of protections under the 1929 Geneva Convention. Meron 2009, p 624. See further, ICRC 1952, p 71. 40 ARS Commentary, above n 4, Article 20, para 6: ‘the principles concerning the validity of consent to treaties provide relevant guidance’. 41 Schmalenbach notes that ‘Whereas the wording of Article 52 shields the conclusion of the treaty from prohibited force, the question arises whether the treaty performance—e.g., the renunciation of treaty rights—can be the target of coercion as well. As a rule, Article 52 does not address forced treaty performance if this performance is required by the treaty. If, however, the coerced party waives or alters its treaty rights and this act meets the consent of the coercing party, Article 52 is applicable to this renouncement or alteration agreement’, see Dörr and Schmalenbach 2018, p 945. 42 See generally Greenwood 1983. 43 See Oppenheim 1952, pp 217–218; Kunz 1956, p 324. For a useful discussion of the debates regarding the principle of equal application, see Quintin 2020, pp 11–23.

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indeed must not, enter into the calculus. Application of the VCLT approach to vitiation in the IHL context would effectively lead to asymmetrical vitiation and thereby be inconsistent with the fundamental equality of belligerent parties, in that only one of the two parties to the IAC (assuming for argument’s sake a bilateral conflict), namely the party who was using force compatibly with the Charter, could consent to non-performance of IHL obligations. As a result, the Commission’s ‘VCLT-renvoi’ approach to vitiation of consent as a defence simply cannot apply in the armed conflict and IHL context. However, one might query whether the concept of coercion in ARS Article 20 should be limited to the unlawful threat or use of force (as is the case in the law of treaties). After all, the concept of coercion within the ARS is not so limited. Under Article 18 ARS, a State is responsible for the wrongful act of another State where the former coerces the latter to commit that act. The standard of coercion is high: it must force the will of the coerced State, and leave it with no choice but to act as the coercing State demands. But, crucially, coercion in this provision need not involve an unlawful use of force—or an unlawful coercion at all.44 Any pressure applied by another State—lawful or unlawful as it may be—that is capable of forcing the will of the State is sufficient for the purposes of Article 18. Furthermore, Article 23 on force majeure—which we discuss further in Sect. 3.8 below—is premised on the idea that external circumstances may force a State to act in a manner which is incompatible with its obligations. Such circumstances may originate from both anthropogenic and natural causes, including the acts (lawful or unlawful) of other States, as well as human action or natural hazards.45 There are good reasons to understand coercion vitiating consent under Article 20 in line with these two provisions of the ARS. The VCLT provisions on coercion are based—at least in part—on the principle ex injuria, jus non oritur: the invalidity of the treaty in question is a ‘punishment for illegality’.46 By contrast, the defence of consent in Chapter V of Part One of the ARS is a manifestation of sovereignty and the freedom of the State to assess what is best for its interests, including the renunciation of performance of its rights.47 What matters in this context is not whether the renunciation of the State’s right was the result of an illegality, but whether the renunciation was a free one. And a State’s freedom of choice may be restricted not just by unlawful acts. As recognised by other provisions of the ARS, a State’s freedom of choice may be restricted by the lawful acts of another State (Article 18) or by the circumstances (Article 23). Under this broader understanding of coercion as a defect of consent under Article 20, we argue that neither party to an IAC could validly consent to the non-performance of IHL obligations insofar as the circumstances of the armed conflict can amount to pressures capable of forcing the will of the parties. But even if belligerent parties can make an arguable case for freely given consent, limitations to the application of consent are also found within IHL itself at least for the 44

ARS Commentary, n 4 above, Article 18, para 3. ARS Commentary, n 4 above, Article 23, para 3. 46 Corten 2011, p 1209. 47 Paddeu 2018, pp 172–174. 45

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protections conferred by the Geneva Conventions and Additional Protocols.48 The exclusion of consent as a circumstance precluding wrongfulness is both the result of particular provisions in IHL treaties (as set out immediately below), and has equally been derived by certain commentators from some of the basic architecture of the IHL treaty regime, including its grave breaches regime49 and the obligation to respect IHL ‘in all circumstances’.50 In terms of particular provisions, this exclusion can be derived from Common Article 6/6/6/7 Geneva Conventions, which prohibits ‘special agreement[s which] adversely affect the situation of [protected persons], as defined by the [relevant Geneva] Convention, [or] restrict the rights which it confers upon them.’ The 1952 Commentary to the Geneva Conventions clarifies the inapplicability of consent in particularly dramatic fashion. The Commentary notes that belligerent Parties had consented to lesser protections for their own nationals under earlier Geneva Conventions. On this practice, the 1952 Commentaries then ask: ‘could it be alleged that at the very moment when the authors of these instruments were endeavouring to set up universal rules which would be applicable in all circumstances, their intention was to give the Contracting Parties the option of modifying those rules by mutual agreement? No!’51 That exclaimed ‘No!’ is given effect to through Common Article 6/6/6/7 Geneva Conventions, precluding the applicability of consent as a circumstance precluding wrongfulness in respect of the protections offered by IHL.52

3.3.2 Non-state Actor Consent As noted above, Article 20 ARS stipulates that consent is an inter-State defence only. By implication, those rules of IHL which concern internal and non-international armed conflicts are excluded from the scope of Article 20 in that relevant obligations 48

It is not clear whether such an exclusion is also accepted as a matter of customary IHL. This may not be problematic in respect of the Geneva Conventions, given universal participation (such that States would be bound by the treaty-based exclusion). But it could prove problematic in respect of API, which has a lower level of State participation. 49 See Sassòli 2002, at 414. 50 See Condorelli and Boisson De Chazournes 1984, pp 22–23. 51 ICRC 1952, Article 7, p 71. 52 API does not contain a provision akin to that of Common Article 6/6/6/7 of the Geneva Conventions, above n 1, but is understood to be equally covered by the GC prohibition on special agreements which adversely affect the situation of protected persons. See the updated Commentary on GCI, Article 6 (ICRC 2016, paras 957 and 960). It should be noted that there are some protections under IHL which, a contrario, amount to permissions under IHL. For instance, the right of State parties to an international armed conflict to seize military equipment belonging to the adverse party as ‘war booty’ is in part the flipside of the requirement that prisoners of war be allowed to keep all their personal belongings and protective gear (see GCIII, Article 18; ICRC 2005, Rule 49). Should States wish to renounce their rights to claim war booty (through special agreements), there is nothing in the Geneva Conventions which would preclude them from doing so—but neither would such renunciation amount to a breach of IHL needing justification.

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and correlative rights are between States and non-State actors or between non-State actors.53 This said, the Commentary to Article 20 notes that international law ‘may also take into account the consent of non-State entities such as corporations or private persons’.54 So the extent to which private consent is taken into account in IHL will turn on IHL itself. As a matter of the primary rules, in respect of both international and noninternational armed conflicts, consent by non-State actors is excluded insofar as a breach of IHL protections is concerned. The exclusion is clearly and expressly stipulated in Common Article 7/7/7/8 of the Geneva Conventions in that protected persons ‘may in no circumstances renounce in part or in entirety the rights secured to them by the present Convention’.55 Both the 1952 Commentaries and the updated Commentaries to the Geneva Conventions make it clear that the principle of nonrenunciation is absolute,56 and has as its objective ‘to ensure that protected persons in all cases without exception enjoy the protection of the Convention until they are repatriated.’57 The prohibition on renunciation applies in respect of the individual beneficiaries of IHL protections. Where non-State actors are one of the belligerent parties in a non-international armed conflict, whether fighting against a State or against another non-State armed group,58 the limitations to which special agreements are subject (as discussed above in Sect. 3.3.1 above) apply. These effectively preclude consent as a defence where the protections of IHL are concerned. Indeed, the Commentaries 53

An essential definitional element of non-international armed conflicts is that non-State actors are at least one of the belligerent parties. When non-State actors are fighting against a State, the conflict falls within the scope of both Common Article 3 Geneva Conventions, above n 1, and APII, above n 1; and when non-State actors are fighting against each other, the non-international armed conflict falls uniquely within the scope of Common Article 3 Geneva Conventions, above n 1. 54 ARS Commentary, above n 4, Article 20, para 10. 55 Common Article 7/7/7/8 of the Geneva Conventions, above n 1, in its entirety, reads as follows: ‘[Wounded and sick, as well as members of the medical personnel and chaplains]/[Wounded, sick and shipwrecked persons, as well as members of the medical personnel and chaplains]/[Prisoners of War]/[Protected Persons] may in no circumstances renounce in part or in entirety the rights secured to them by the present Convention, and by the special agreements referred to in the foregoing Article, if such there be.’ This rule (entitled ‘Non-renunciation of rights’) applies equally to the protections set forth in APII, above n 1 (which applies to non-international armed conflicts), insofar as APII develops and supplements the Geneva Conventions, without modifying its existing conditions of application (APII, above n 1, Article 1), and is understood to apply to API, above n 1, despite the fact that it does not have a similarly drafted provision on scope of application. See ICRC 2016, Article 7, para 990. 56 The 1952 Commentaries draw on the drafting history of the Geneva Conventions in arriving at this characterization—most particularly that the ICRC’s initial draft excluded the renunciation of rights where ‘induced by constraint or by any other means of coercion.’ (ICRC 1952, Article 7, pp 79–80). To close off the possibility that an a contrario interpretation might be available (whereby renunciation was permissible provided the choice was made completely freely and without any pressure), the current formulation framed in absolute terms was adopted. See further ICRC 2016, Article 7, para 990. 57 ICRC 1952, Article 7, p 78. 58 Ibid., p 71.

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note that the prohibition on special agreements, coupled with the provision on nonrenunciation and the general obligation to ‘respect and ensure respect’ for the Geneva Conventions and API,59 render the protections in IHL ‘inviolable’.60 And in respect of IHL obligations which are not to immediate protective effect, the arguments above in Sect. 3.3.1 in respect of vitiation apply. As a result, in respect of both IACs and NIACs, consent may not operate as a defence within IHL because any consent to the non-performance of IHL protections would most likely be vitiated by coercion, resulting from the circumstances of armed conflict. In any event, the primary rules of IHL preclude the operation of consent as a defence in respect of breaches of IHL protections. They do so by prohibiting belligerent parties from consenting to lesser protections, and by not recognising any purported renunciation of protections by protected persons themselves.

3.4 Self-defence Pursuant to Article 21 ASR: The wrongfulness of an act of a State is precluded if the act constitutes a lawful measure of self-defence taken in conformity with the Charter of the United Nations.

The right of self-defence, codified in Article 51 of the UN Charter, provides a justification for the use of force such that, when a State resorts to force in selfdefence, it is not in breach of the prohibition of force codified in Article 2(4) of the UN Charter.61 Article 21 clarifies the justificatory effect of self-defence beyond the jus ad bellum in respect of impairments of international legal obligations caused by lawful measures of self-defence,62 that is violations of international law caused by self-defensive force which is compatible with Article 51 of the UN Charter.63 When a State uses force in self-defence against its aggressor, it may infringe that State’s territorial sovereignty or political independence. It could also, as illustrated by the facts of the Oil Platforms case, infringe obligations arising under commercial treaties.64 Article 21 ensures that the infringement of these obligations, when they

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Geneva Conventions, above n 1, Common Article 1; API, above n 1, Article 1(1). ICRC 1952, Article 7, p 78. See further ICRC 2016, Article 7, para 989. The 2016 Commentaries enter into the question of whether the Geneva Conventions confer rights on individuals, qualifying the non-renunciation provisions as ‘acknowledging that individuals have rights’ (ICRC 2016, Article 7, para 989), while drawing a distinction between ‘rights attached directly to individuals’ and ‘international legal rights in the sense of rights protected by international treaties and enforced or supervised by courts or treaty bodies’ (ICRC 2016, Article 7, paras 1000–1001). 61 ARS Commentary, above n 4, Article 21, para 1. See generally, Thouvenin 2010, p 455; Christakis and Bannelier 2007; Crawford 2013, pp 289–292; Paddeu 2014, p 90; Paddeu 2018, pp 175–224. 62 What may be termed ‘collateral violations’ caused by self-defensive force: Paddeu 2014. 63 ARS Commentary, above n 4, Article 21, para 1. 64 Oil Platforms (Islamic Republic of Iran v United States of America) (2003) ICJ Rep 161. 60

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occur as a result of self-defensive force, does not amount to a breach of international law in respect of which the defending State would be responsible. However, Article 21 cannot justify the breach of all obligations of the defending State. As the Commentary explains, self-defence does not justify the wrongfulness of conduct in breach of ‘obligations under international humanitarian law and in relation to nonderogable human rights provisions’.65 The Commentary also adds—in line with the Nuclear Weapons Advisory Opinion—that self-defence may not justify the breach of obligations of so-called ‘total restraint’: namely obligations that are ‘expressed or intended to apply as a definitive constraint even to States in armed conflict.’66 Article 21 is made necessary by the decline in importance—at least in practice—of the formal state of war. Historically, the existence of a state war defined the scope of belligerent rights and suspended the normal, peace-time, relations between the States in conflict.67 As such, the use of force could not infringe the peace-time obligations existing between belligerents. In practice, formal states of war are nowadays rare, even when States are engaged in armed conflict.68 When States engage in armed conflict, they do so while formally ‘at peace’: all of their legal relations remain in force,69 such that they may be infringed by forcible measures.70 The question thus arises whether these violations can be justified when the State acts in self-defence. This is precisely what Article 21 addresses, suggesting that these collateral violations are justifiable so long as they have been caused by ‘lawful measures of self-defence’. This is a normatively and systemically desirable result,71 but the status of Article 21 as a matter of customary law remains uncertain.72 In our analysis below, we focus on the substance of the provision in Article 21 and leave aside the question of its customary status. With respect to IHL, the Commentary to Article 21 clearly states that self-defence cannot justify the violation of IHL obligations since these ‘equally apply to all the parties in an international armed conflict’.73 IHL thus constitutes a substantive limitation on the scope of application of Article 21.

65

ARS Commentary, above n 4, Article 21, paras 3–4. ARS Commentary, above n 4, Article 21, paras 3–4. 67 Neff 2005, p 177. 68 For an exhaustive review of practice, see, generally: Mancini 2009. 69 States can suspend or terminate treaties during armed conflict, though it is unclear whether the existence of armed conflict is on its own an accepted ground for suspension or termination. The ILC adopted articles on the Effects of Armed Conflict on Treaties in 2011, (in Report of the International Law Commission on the work of its sixty-third session, UN Doc. A/RES/66/99 (2011)). For a review, and critique, of the ILC’s articles see: Ronen 2014, p 541. 70 As clarified by the ICJ ‘[a] violation of the rights of one party under the Treaty by means of the use of force is as unlawful as would be a violation by administrative decision or by any other means’: Oil Platforms, above n 64, Preliminary Objections, Judgment of 12 December 1996, [1996] ICJ Rep 803, p 812, para 21. 71 Crawford 2013, p 291; Paddeu 2014. 72 See, e.g., Paparinskis 2016, p 493. 73 ARS Commentary, above n 4, Article 21, para 3. 66

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While the unavailability of Article 21 as a defence for breaches of IHL is clear, what remains somewhat more opaque is the broader relationship between Article 21 as a defence in respect of (prima facie) breaches of other rules of international law and IHL. The difficulty stems from the meaning of the term ‘lawful’ in the text of Article 21: is this only a reference to legality under the UN Charter, or does it include legality under the jus in bello? Is it possible to interpret Article 21 as requiring that, in order to justify the collateral infringements of other bodies of law caused by defensive force, the specific measure must be lawful by reference to both Article 51 UN Charter and IHL? So while there is no doubt that IHL acts as a substantive limit on the justificatory reach of Article 21 (insofar as IHL breaches are excluded from its scope), the question remains whether IHL operates also as a substantive requirement for the application of Article 21. Consider the following example: Assume a State is defending itself, within its own territory, against a flagrant and barbaric act of aggression carried out by a neighbouring State. The defending State blows up a civilian factory in response to heavy and sustained attacks from the factory’s roof against the defending forces. The factory is owned by the aggressor State and is protected by a bilateral agreement between the aggressor and defending State. For present purposes, it is stipulated that the defending forces are acting in lawful self-defence.74 The factory appears from a distance to be relatively quiet, and the defending armed forces have very little time within which to carry out a collateral damage assessment,75 but there are nevertheless a number of clues which should have alerted the defending forces as to the number of civilians in the factory. As it turns out, the factory was being used by civilians for shelter, and the defensive attack kills 200 civilians, including elderly civilians, women and children. There are serious questions to be asked about the IHL compliance of the attack—both in respect of the proportionality of the attack and the obligation to take precautionary measures.76 The destruction of the factory is also in breach of the bilateral agreement. Article 21 could not justify any IHL breach occasioned by the defensive attack: for rules of IHL are excluded from the scope of Article 21. This is not in doubt. But the question remains whether the breach of the bilateral agreement can be justified on the basis of Article 21 ARS. There is also no doubt that if the breach of the bilateral agreement was occasioned by a measure that was IHL-compliant, it would be justified. But it is not clear whether the (prima facie) breach of the bilateral treaty could be justified even if the measure in question was in breach of IHL. The Commentary to Article 21 ARS seems to support the view that IHLcompliance is a substantive requirement for the operation of Article 21. In respect of the term ‘lawful’ in the text of Article 21, it states that:

74

See generally O’Meara 2021, pp 25–96, for an analysis of ‘general’ and ‘specific’ necessity within the law of self-defence and O’Meara 2017, p 273. 75 See Trapp 2013, pp 166–67, assessing the impact of time pressure on the obligation to take precautionary measures. 76 See API, above n 1, Articles 51(5) and 57.

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F. I. Paddeu and K. N. Trapp [A]rticle 21 reflects the generally accepted position that self-defence precludes the wrongfulness of the conduct taken within the limits laid down by international law. The reference is to action “taken in conformity with the Charter of the United Nations”. In addition, the term “lawful” implies that the action taken respects those obligations of total restraint applicable in international armed conflict, as well as compliance with the requirements of proportionality and of necessity inherent in the notion of self-defence.77

This paragraph suggests that, in the example discussed, the defending State may not rely on Article 21 to justify the breach of its bilateral treaty with the aggressor State because the measure in question also violates IHL. On this reading, Article 21 would only justify the infringement of the relevant bilateral treaty in the example if the defending forces did everything feasible to ensure that any incidental loss of civilian life, injury to civilians, and damage to the factory (or a combination thereof) would not be excessive in relation to the concrete and direct military advantage anticipated from the attack, and that indeed it was not so excessive.78 The discussions in the ILC leading to the adoption of Article 21, however, cast some doubt on this understanding. The above-quoted Commentary passage originated in discussions relating to Special Rapporteur James Crawford’s proposal to add a second paragraph to the text of Article 21. This paragraph stated that: Paragraph 1 does not apply to international obligations which are expressed or intended to be obligations of total restraint even for States engaged in armed conflict or acting in selfdefence, and in particular to obligations of a humanitarian character relating to the protection of the human person in time of armed conflict or national emergency.79

This second paragraph was introduced to update the text of Article 21 (first adopted in 1979) and bring it into line with the ICJ’s Advisory Opinion in Nuclear Weapons.80 In that Opinion, the Court had recognised that there were certain obligations, so-called of ‘total restraint’, that could not be violated even in self-defence. Special Rapporteur Crawford’s second paragraph was, on its own terms, clearly intended to define the scope of Article 21 as a defence—and to exclude IHL breaches from the reach of its justificatory effect. But for many ILC members, this paragraph was superfluous given, among others, the presence of the term ‘lawful’ in the text of Article 21.81 In their view, this term was sufficiently capacious to include the substance of the 77

ARS Commentary, above n 4, Article 21, para 6 (emphasis added). Ibid. 79 ILC (1999a), Second Report on State Responsibility by James Crawford, Special Rapporteur, UN Doc. A/CN.4/498/Add.2. 80 ILC (1999a, b), p 87. See further ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, [1996] ICJ Rep 226. 81 The discussion at the ILC as to why Crawford’s second paragraph was superfluous is somewhat inconclusive, with some members considering the term ‘lawful’ in the text of Article 21 to already address the issue he was seeking to clarify. ILC (1999b) Yearbook of the International Law Commission, vol I, Summary records of the meetings of the fifty-first session (3 May-23 July 1999), UN Doc A/CN.4/SER.A/1999, interventions by: Pellet, 2589th meeting, p 159, para 45; Rosenstock, ibid., p 159, para 47. Bruno Simma initially viewed the adjective ‘lawful’ in the text of the provision as a reference to the jus ad bellum, but was convinced by Alain Pellet’s explanation that this term made sense only as a reference to the jus in bello. See: Simma, ibid., p 158, para 41, p 159, para 48. 78

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new paragraph proposed by Special Rapporteur Crawford. The Commission, thus, decided not to include this second paragraph in the text of Article 21 and to explain the matter in the Commentary.82 The discussion that led to this paragraph in the Commentary, then, was focused on how to articulate the idea (among others) of IHL obligations as imposing ‘total restraints’ on the use of force in light of the Nuclear Weapons opinion. It focused, that is, on the role of IHL as a limit on the scope of Article 21, and not on IHL as a substantive (and additional) requirement for the operation of Article 21 in respect of other, non-IHL, bodies of international law. The result, in respect of the example above, is that the wrongfulness of the breach of the bilateral treaty, insofar as this was occasioned by a UN Charter compliant act of self-defence, could be precluded on the basis of Article 21 ARS even if it was not compliant with IHL. This conclusion—that Article 21 can operate even where the impugned measure violates IHL—may appear somewhat puzzling. It might be argued that, in light of the inconclusiveness of the ILC debate on this point and the Commentary to Article 21, it is desirable for IHL-compliance to operate as an additional substantive requirement for the operation of Article 21. This would reflect the need to ensure that IHL protections are respected in all circumstances. But whether this is desirable from a broader systemic perspective is uncertain. Would it be desirable for a defending State to owe compensation under a bilateral treaty to an aggressor, for a breach occasioned in the course of its self-defence against that aggressor? This issue may not be likely to arise in practice, as treaties may themselves contain provisions about their application in war83 and the principle of systemic integration may assist in ironing out inconsistencies in the application of the relevant treaty and IHL.84 Nevertheless, the question of principle remains to be addressed.

82

ILC (1999b) Yearbook of the International Law Commission, vol I, Summary records of the meetings of the fifty-first session (3 May–23 July 1999), UN Doc A/CN.4/SER.A/1999, interventions by: Hafner, 2589th meeting, p 158, para 36; Galicki, ibid., p 158, para 37 (while Galicki was ILC Chairman, this intervention was made in his capacity as ILC member); Pellet, ibid., p 159, para 45; Goco, ibid., p 159, para 51; Crawford, ibid., pp 159–160, paras 53–55. 83 Many investment treaties, for example, contain war clauses. Furthermore, defending States could suspend or terminate the operation of the relevant treaties as a result of the armed conflict. 84 On which see Mclachlan 2005.

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3.5 Countermeasures Pursuant to Article 22: The wrongfulness of an act of a State not in conformity with an international obligation towards another State is precluded if and to the extent that the act constitutes a countermeasure taken against the latter State in accordance with chapter II of Part Three.

Countermeasures are an old institution of international law, though the term ‘countermeasure’ is itself of relatively recent adoption.85 They involve unilateral measures adopted by a State (the ‘injured State’) in response to the breach of its rights by the wrongful act of another State (the ‘wrongdoing’ or ‘target’ State), and which infringe the rights of that wrongdoing/target State.86 In accordance with chapter II of Part Three of the ARS, countermeasures are only permissible when they are aimed at inducing compliance by the responsible State with its obligations under Part Two of the ARS, namely the obligations of cessation (if the act is continuing) and reparation.87 As such, countermeasures have a double function in the ARS. First, an instrumental function: they serve as a mechanism for the implementation of State responsibility. Second, an incidental function: they also serve to justify the act of the injured State, such that a measure which would otherwise be a breach of international law (because it is incompatible with the rights of the target State) is deemed to be lawful. The taking of countermeasures is tightly regulated by the ARS, in a framework that is sufficiently strict that it can restrain abuses, yet retains some flexibility to ensure the protection of injured States’ interests. This regime includes both substantive and procedural requirements. In particular, countermeasures can only be taken against a prior wrongful act,88 and only against the wrongdoing State.89 Moreover, subject

85

Sicilianos 2005, p 450. The literature on countermeasures is extensive. For a comprehensive overview, see: Alcaide Fernández 2020. 86 The ARS left the question open whether countermeasures could be taken by States other than the injured State, where the breach involves an erga omnes obligation. ARS, above n 4, Article 54. Since 2001, there have been several studies on countermeasures taken by States other than the injured State, all of which come to the conclusion that these measures are now permitted by customary law. See, e.g., Tams 2005; Proukaki 2011; Dawidowicz 2017. But the notion remains controversial (Focarelli 2016). Given what is set out below in respect of IHL reprisals, the focus in this section is on measures adopted by belligerent parties in the context of an armed conflict and not on third party measures adopted by States who are not participating in the armed conflict. 87 ARS, above n 4, Article 49. 88 ARS Commentary, above n 4, Article 49, para 3. On the difficulties of this requirement, see Trapp 2011, p 187. 89 Crawford 2013, p 687.

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to exclusions listed in Article 50,90 countermeasures may affect any obligation(s) of the target State, so long as they are proportionate.91 As to procedural requirements,92 the State must call upon the responsible State to cease the wrongful act and provide reparations (a requirement also known as sommation), and it must notify the target State of its intention to take countermeasures and offer to negotiate the matter.93 Countermeasures may not be taken, and if taken they must be suspended without ‘undue delay’, if the wrongful act has ceased and the dispute is pending before an international court or tribunal with authority to issue binding decisions on the parties.94 Finally, the measures must be terminated as soon as the responsible State has complied with its obligations under Part Two.95 The defence of countermeasures, as accepted at customary law and codified in the ARS, is as such inapplicable to the breach of IHL obligations.96 This exclusion has three, overlapping, legal bases. First, countermeasures are excluded vis-à-vis jus cogens obligations. This is of course as a matter of the general exclusion of jus cogens from the scope of ARS defences pursuant to Article 26 (as discussed in Sect. 3.2 above), and as a matter of the specific regulation of countermeasures, pursuant to Article 50(1)(d) of the ARS. To the extent that IHL obligations have a jus cogens character,97 they cannot be justifiably breached by countermeasures. Second, the law of State responsibility further limits the availability of countermeasures in respect of certain IHL obligations. Paragraph (1)(c) of Article 50 ARS prohibits countermeasures affecting ‘obligations of a humanitarian character prohibiting reprisals’.98 This provision is modelled on Article 60(5) of the VCLT, and

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These are: the prohibition of force, obligations for the protection of fundamental human rights, obligations of a humanitarian character prohibiting reprisals, and other obligations arising under peremptory rules. Further, countermeasures do not prevent a State from complying with obligations under dispute settlement procedures applicable between it and the responsible State, and those concerning the inviolability of diplomatic or consular agents, premises, archives and documents. 91 O’Keefe 2010, p 1158. 92 Iwasawa and Iwatsuki 2010, p 1152. 93 ARS, above n 4, Article 52. 94 ARS, above n 4, Article 52(3). See also ARS, above n 4, Article 52(4), excluding the application of paragraph 3 if the responsible State does not implement dispute settlement procedures in good faith. 95 ARS, above n 4, Article 53. 96 We are here drawing a distinction between the non-performance of IHL obligations (in respect of which Article 22 ARS is unavailable), and the non-performance of non-IHL obligations—by way of countermeasure—adopted with a view to procuring the cessation of an IHL breach and to achieve reparation for any injury caused thereby. The latter are permissible and unaffected by the exclusions set out in this analysis. 97 See above n 18. 98 Neither the Geneva Conventions nor API provide a definition of ‘reprisal’. The International Committee of the Red Cross (‘ICRC’), in its study on customary international humanitarian law, has defined ‘reprisals’ as ‘an action that would otherwise be unlawful but that in exceptional cases is considered lawful under international law when used as an enforcement measure in reaction to

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reflects ‘the basic prohibition of reprisals against individuals which exists in international humanitarian law’.99 This limitation was endorsed by the Eritrea-Ethiopia Claims Commission in the Prisoners of War claim.100 IHL specifically prohibits reprisals in respect of wounded, sick or shipwrecked persons, medical or religious personnel, medical units, transports and material, prisoners of war, the civilian population and civilian persons, civilian objects, cultural property, objects indispensable to the survival of the civilian population, the natural environment, works and installations containing dangerous forces and the buildings and material used for the protection of the civilian population.101 States may thus not rely on the law of State responsibility to justify measures that involve prohibited reprisals. Third, by application of the principle of lex specialis, IHL has its own, strict, regime for the regulation of belligerent reprisals, which is applicable in respect of those obligations that do not fall under the IHL-prohibited reprisals exclusions. The IHL reprisals regime in general tracks the regime of countermeasures under the ARS.102 Thus, permissible reprisals can only be adopted in response to a prior breach of IHL, and only for the purposes of inducing compliance with IHL by the wrongdoing party to the armed conflict.103 Similarly, the requirements of sommation and notice of intention to resort to countermeasures (as set out in Article 52 ARS in respect of countermeasures) are equally features of the IHL reprisals regime, implicitly but necessarily deriving from the requirement that the measures be adopted to enforce IHL.104 Like countermeasures, IHL reprisals are subject to a proportionality requirement.105 And finally, IHL reprisals must cease as soon as the adverse belligerent party complies with its IHL obligations.106 Moreover, in order to respond to the particular dangers of escalation in an armed conflict context107 and the humanitarian and protective aims of IHL, reprisals are subject to additional, and more stringent, conditions than those established in the ARS for countermeasures. In particular, reprisals may only be carried out as a measure of last resort, when no other lawful measures are available to induce the adversary to unlawful acts of an adversary.’ ICRC 2005, Rule 145. This definition is the IHL functional equivalent of the definition of countermeasure in ARS, above n 4, Articles 22 and 49. 99 ARS Commentary, above n 4, Article 50, para 8. 100 Endorsed in EECC, Federal Democratic Republic of Ethiopia v Eritrea, Partial Award, Prisoners of War, 1 July 2003, sect. 149–150. 101 See GCI, above n 1, Article 46; GCII, above n 1, Article 47; GCIII, above n 1, Article 13; API, GCIV, above n 1, Article 33; API, above n 1, Articles 20, 51(6), 52(1), 53(c), 54(4), 55(2), 56(4); ICRC 2005, Rules 145–147. 102 Note that there are debates, however, as to the customary character of both the ARS regime, and the equivalent IHL regime. As for the IHL regime, see: Darcy 2003; Bílková 2014, p 34. 103 See ICRC 2005 Rule 145 (Conditions); Darcy 2003, p 191. 104 Reprisals which are “carried out in secret can have no deterrent effect and should, on that account, be deemed illegitimate.” McDougal and Feliciano 1961, p 679. 105 See ICRC 2005, Rule 145 (Conditions); Darcy 2003, p 194; Greenwood 1989, p 44. 106 See ICRC 2005, Rule 145 (Conditions). 107 For a regretful historical illustration in respect of World War I of this sort of escalation, see Hull 2014.

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respect the law108 and the ‘decision to resort to reprisals must be taken at the highest level of government’.109 As this brief overview shows, the IHL regime of reprisals replicates the ARS regime for countermeasures, but is more onerous insofar as it adds two further conditions which respond to the particular context and concerns of armed conflicts. This is precisely the type of legal interaction the principle of lex specialis in Article 55 ARS was designed to account for.110 As a result, the IHL-based regime operates as a lex specialis with respect to the ARS-regime. The implication is that the ARS regime of countermeasures is modified by IHL. To justify a belligerent reprisal, States must meet all the requirements and conditions of the IHL-regime and may not rely exclusively on the—more flexible—regime for countermeasures in the ARS. This is not to say that the general ARS regime of countermeasures has no role to play within IHL. As evidenced by the ICRC Customary Law Study, the general regime may remain interpretively relevant, at least in respect of the shared conditions for permissibility are concerned.111 To sum up, the ARS regime of countermeasures is not applicable to the breach of any IHL obligation. The ARS regime is entirely excluded in respect of jus cogens IHL norms and IHL prohibited reprisals. In respect of IHL obligations which do not fall within these two overlapping categories of primary rule, ARS countermeasures are not entirely excluded—insofar as they may remain interpretively relevant in respect of the conditions shared between the countermeasures and IHL reprisals regimes. But the ARS regime of countermeasures does not stand on its own in respect of IHL breaches, and is instead conditioned by the principle of lex specialis.

108

It is relatively clear from the long debates in the ILC regarding the conditions to which the adoption of countermeasures might be subject, including in respect of whether dispute settlement was a pre-condition for the adoption of countermeasures, that these are not legally required to be a measure of last resort. See, e.g., the Symposium on ‘Countermeasures and Dispute Settlement: The Current Debate within the ILC’ in 1994 5 EJIL 20, with articles by Condorelli, Arangio-Ruiz, Tomuschat, Vereshchetin, Bennouna, Simma, Crawford, and Bowett; Alcaide Fernández 2004. 109 ICRC 2005, Rule 145 (Conditions). See further Darcy 2003, pp 187–196; Bílková 2014, pp 34–35. 110 See generally Sect. 3.2 above. Both IHL reprisals and State responsibility countermeasures are defences applicable to an instrumental and responsive breach of international law, and therefore address the same ‘substantive matter’ (Simma and Pulkowski 2010, p 141). This precise form of lex specialis is contemplated by the ILC in the ARS Commentary: “In other cases, one aspect of the general law may be modified, leaving other aspects still applicable”. ARS Commentary, above n 4, Article 55, para 3. See also Bílková 2014, p 33. 111 Indeed, in its Study on Customary IHL, the ICRC relies expressly on the ARS conditions for adopting countermeasures in framing the conditions for reprisals, making it clear that, at least insofar as the ICRC was concerned, the law of State responsibility was entirely relevant to the IHL specific regime. See ICRC 2005, Rule 145 (Conditions).

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3.6 State of Necessity Pursuant to Article 25 ARS: 1. Necessity may not be invoked by a State as a ground for precluding the wrongfulness of an act not in conformity with an international obligation of that State unless the act: (a) is the only way for the State to safeguard an essential interest against a grave and imminent peril; and (b) does not seriously impair an essential interest of the State or States towards which the obligation exists, or of the international community as a whole. 2. In any case, necessity may not be invoked by a State as a ground for precluding wrongfulness if: (a) the international obligation in question excludes the possibility of invoking necessity; or (b) the State has contributed to the situation of necessity.

The defence of necessity in the ARS is narrowly defined.112 A successful plea must meet six conditions. First, there must be a ‘grave and imminent peril’ threatening an essential interest of the State. This requires the existence of a risk of harm to an essential interest of the State, the objective establishment of such risk, and the gravity of the threatened harm. Second, the peril must affect an essential interest of the State or of the international community. The Commentary does not define the concept of essential interests, which are determined by reference to qualitative and quantitative criteria. Among others, ecological interests,113 the preservation of the State’s existence, and the wellbeing and safety of its people in time of public emergency,114 have been accepted as essential interests. Third, the act in necessity must not harm an essential interest of the other State or of the international community: the interest safeguarded must be one ‘outweighing all other considerations’.115 Fourth, the act in necessity must be the ‘only way’ to avert harm to the essential interest. Fifth, the defence is unavailable if the invoking State has substantially contributed to the situation.116 Finally, the defence of necessity may be excluded by the relevant primary rule seeking to regulate the situation.117 The defence codified in Article 25 is concerned with situations in which interests are in conflict. These are dilemmatic situations in which one of the interests in conflict will inevitably suffer harm. The defence of necessity addresses these situations through a consequentialist lens: namely by seeking to reduce overall net-harm. 112

ARS Commentary, above n 4, Article 25, para 1. ICJ, Gabˇcíkovo-Nagymaros Project (Hungary/Slovakia), Judgment of 25 September 1997, [1997] ICJ Rep 7, p 40, para 53. 114 ARS Commentary, above n 4, Article 25, para 14. 115 ARS Commentary, above n 4, Article 25, para 17. 116 ARS Commentary, above n 4, Article 25, para 20. 117 ARS, above n 4, Article 25(2)(a). For up-to-date analysis of the defence, including review of the cases to date, see: Paddeu and Waibel 2022. 113

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For this reason, the defence requires that the two interests in question are balanced, so as to identify the one which is most important or weighty (‘essential’) by reference both to its character and to the expected harm.118 It then permits State action which seeks to safeguard that interest from harm. This defence is drafted in general and abstract terms, and does not specify in advance the interests that may be protected under the defence, nor the balance to be struck between them: the balancing is to be performed on a case-by-case basis. Legal systems also include rules which address similar situations and which reflect this same logic—namely, the idea that certain rules must strike a balance between conflicting interests. These are rules ‘in necessity’s image’,119 to use Sarah Heathcote’s evocative expression, and they usually identify in advance the interests in question and strike a balance between them ex ante. IHL may be seen as a body of law that essentially specifies the abstract rule in Article 25 for specific and concrete situations. Armed conflicts are, according to Marco Sassòli, ‘by definition emergency situations’,120 in which there will be opposing interests at play. In this context, as insightfully argued by Lawrence HillCawthorne, the concept of necessity—in the sense of a balancing of conflicting interests—plays a broader constitutive role in IHL, in that it is the ‘underlying state of necessity (which exists by virtue of an international or non-international armed conflict) that is the raison d’être of IHL; it is that state of necessity which explains the non-adherence to many of the normal peacetime rules of law’.121 IHL thus specifies the interests that must be taken into account in the balancing (humanity and military necessity), and regulates the conduct of the parties to an armed conflict in keeping with a balance between these two principles that is fixed and determined in advance. The result are rules which give effect in the particular case of armed conflict to the overarching aim of the defence of necessity: to ensure a balance between opposing interests. In this way, the considerations that would be relevant to a defence of necessity under Article 25 (identifying interests in conflict and balancing them with a conception of proportionality in play) are already addressed by IHL itself. While IHL as a whole is an attempt to balance these two conflicting interests, the way in which this balance plays out may vary from rule to rule. Thus, specific rules may dictate when, for example, military necessity prevails over considerations of humanity.122 In addition, there are a number of IHL obligations which impose due diligence standards of conduct. For example, the obligation to take precautions in attack in the conduct of military operations.123 These obligations are conditioned by 118

ARS, above n 4, Article 25, para 15. Heathcote 2005, pp 131–132. 120 Sassòli 2002, pp 401, 416. 121 Hill-Cawthorne 2014, p 232. 122 Such is the case, for instance, in Article 54(5) API, above n 1, which prohibits attacks against objects which are indispensable to the survival of the civilian population, but permits derogations to this provision where required by ‘imperative military necessity’ in cases of defence of national territory against invasion. 123 API, above n 1, Article 57. 119

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feasibility (including what is militarily possible) with a view to ensuring proportionality between ‘incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof’, and the ‘concrete and direct military advantage anticipated’ from military operations—thereby accounting very precisely for the balancing of interests that might otherwise fall to the ARS defence of necessity. In all cases not expressly provided for, the necessity of the situation cannot override the balances between humanity and military necessity achieved by particular rules.124 The role played by military necessity in IHL (requiring a balance with the principle of humanity) and necessity as a defence (requiring a balance between two different interests),125 entails that whatever role the general defence could play in this field has already been performed at the level of the primary rule itself. The Commentary to Article 25 recognises this aspect of IHL, and states that: ‘the doctrine of “military necessity” [is] the underlying criterion for a series of substantive rules of the law of war and neutrality, as well as being included in terms in a number of treaty provisions in the field of international humanitarian law.’126 Indeed, to the extent that ‘considerations akin to those underlying article 25 may have a role’, the ILC continued, ‘they are taken into account in the context of the formulation and interpretation of the primary obligations.’127 The implication is that, in line with Article 25(2)(a), the defence of necessity is ‘excluded’ by IHL itself. Note that the language in the text of Article 25 (‘excluded’) is strong and may suggest that Article 25 has no role to play in IHL: either as a defence, or—potentially—as an interpretive aid.128

124

See for e.g., UK Ministry of Defence 2005, sects. 2.3 and 23. Hill-Cawthorne 2014, pp 229–234. 126 ARS Commentary, above n 4, Article 25, para 21. On this point, see Fletcher and Ohlin 2014; Hill-Cawthorne 2014. 127 ARS Commentary, above n 4, Article 25, para 21. See, more clearly, ILC (1980) Report of the Commission on the work of its thirty-second session, UN Doc A/35/10, draft Article 33, commentary, para 28. The ILC’s understanding on this point is widely accepted by IHL commentators. See for example Schmitt 2010, p 798. 128 The relation between the necessity defence under customary law (in Article 25) and treatybased necessity defences was addressed, extensively, in the investment law context in connection with so-called ‘non-precluded measures clauses’ in bilateral investment treaties. Reviewing the different approaches taken by tribunals, see, e.g., Waibel 2007; Kürtz 2008; Von Staden 2011. See also Henckels 2019, addressing specifically situations of armed conflict in the context of investment treaties. Note, however, that the interaction in this field was between two rules: the essential security clause in bilateral investment treaties, and the customary defence of necessity. In IHL, as we have argued, the interaction is more complex as the essence of IHL is a balance between conflicting interests. 125

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3.7 Distress Article 24: 1. The wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if the author of the act in question has no other reasonable way, in a situation of distress, of saving the author’s life or the lives of other persons entrusted to the author’s care. 2. Paragraph 1 does not apply if: (a) the situation of distress is due, either alone or in combination with other factors, to the conduct of the State invoking it; or (b) the act in question is likely to create a comparable or greater peril

The defence has five requirements. First, there must be a threat to life to the State organ or to individuals entrusted to their care. A risk of serious injury is not enough.129 Second, there must be a special relationship between the State organ and the individuals in danger.130 This requirement is intended to exclude the application of the plea to situations of ‘more general emergencies’ which, according to the Commentary, are ‘more a matter of necessity than distress’.131 Third, the measure in question must be the only ‘reasonable way’ to deal with the threat. The reasonableness criterion is intended to strike a balance between providing some ‘flexibility regarding the choice of action’ for the saving of life, acknowledging that there may be no time or personnel to properly assess the situation or that urgent action might be needed, while still strictly confining the scope of the defence.132 Fourth, the State organ must not have contributed to the situation of peril, but in any case ‘priority should be given to necessary life-saving measures’.133 Finally, the measures must not create a comparable or greater peril: the interest protected, as well as the means chosen to protect it, must ‘clearly outweigh the other interests at stake in the circumstances’.134 Distress concerns the situation where a State organ disregards an international obligation of the State with a view to preserving her own life, or the lives of individuals entrusted to her care.135 The characteristic feature of distress is its so-called ‘human dimension’: the defence seeks to protect life, including that of the State’s organs. It thus regards State organs not in their quality as representatives of the State, but

129

ARS Commentary, above n 4, Article 24, para 9. ARS Commentary, above n 4, Article 24, para 7. Nationality is irrelevant: ibid., para 1. 131 ARS Commentary, above n 4, Article 24, para 7. 132 ARS Commentary, above n 4, Article 24, para 6. 133 ARS Commentary, above n 4, Article 24, para 10. 134 ARS Commentary, above n 4, Article 24, para 10. For example, the plea is excluded in the case where ‘a nuclear vessel in distress might threaten the health and safety of the port in which it sought refuge’: Fasoli 2013, para 7. 135 See, generally, Scalese 2008, pp 147–156; Szurek 2010a, b, p 481; Crawford 2013, pp 301–305; Fasoli 2013; Paddeu 2018, pp 430–464. 130

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‘qua human beings’,136 and prioritises their lives over (certain) other obligations. The defence of distress may thus be seen as an instantiation of the general defence of necessity,137 a rule ‘in necessity’s image’.138 In the context of IHL, similar considerations apply to distress under Article 24, as to necessity under Article 25. Distress as a factual situation (in which life is imperilled), and the importance of the protection of human life, are both accounted for in the primary rules of IHL. In the first instance, armed conflict is one continuing situation of distress—such that there is nothing exceptional to which distress as a defence might respond. As argued by Sassòli, ‘[i]ndividuals are as much in distress when engaged in armed conflicts as States are in a state of necessity. The rules of IHL must be presumed to take this into account.’139 Second, IHL accounts for the conduct of combatants or fighters whose lives are in jeopardy, both through permissive rules in respect of lethal force against fighters who pose a threat to life, and exceptions to prohibitions in the case of a change of circumstances.140 To the extent that IHL already takes into account the considerations relevant to the defence of distress under Article 24, this defence has no role to play within IHL.

3.8 Force Majeure Force majeure is codified in the ARS in the following terms: 1. The wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if the act is due to force majeure, that is the occurrence of an irresistible force or of an unforeseen event, beyond the control of the State, making it materially impossible in the circumstances to perform the obligation. 2. Paragraph 1 does not apply if: (a) the situation of force majeure is due, either alone or in combination with other factors, to the conduct of the State invoking it; or (b) the State has assumed the risk of that situation occurring.

The defence of force majeure is largely accepted as part of customary international law.141 This said, it sets a very high standard that is almost never met. 136

ILC (1979) Yearbook of the International Law Commission, vol I, Summary records of the meetings of the thirty-first session (14 May–3 August 1979), UN Doc A/CN.4/SER.A/1979, intervention by Ago, 1573rd meeting, p 207, para 9. 137 Paddeu 2018, p 431. 138 Heathcote 2005, pp 131–132. 139 Sassòli 2002, p 417. 140 For instance, the prohibition of direct attacks against civilians is suspended for so long as they are directly participating in hostilities (which participation puts lives at risk). API, above n 1, Article 51(3). 141 In general on this defence, see Scalese 2008, pp 63–100; Szurek 2010a; Paddeu 2011; Crawford 2013, pp 295–301.

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A successful claim must fulfil four conditions. First, there must be an event that triggers the material impossibility to perform, and which is beyond the control of the State. It can consist of an ‘unforeseen event’, in the sense that it is neither (subjectively) foreseen nor ‘of an easily foreseeable kind’,142 or an ‘irresistible force’, namely one that creates ‘an element of constraint which the State was unable to avoid or oppose by its own means’.143 The triggering event(s) can be of natural or anthropogenic origins, or be the result of a combination of the two,144 and must be the cause—even if not the sole cause—of the material impossibility to perform.145 Second, the triggering event must make it ‘materially’ impossible for the State to perform an obligation. This must be an ‘actual impossibility’,146 and increased difficulty of performance will not suffice.147 Third, the State must not have contributed to the situation of impossibility. The plea is excluded if the situation of force majeure ‘is due, either alone or in combination with other factors, to the conduct of the State invoking it’.148 Lastly, the State must not have assumed the risk of the situation occurring.149 Every one of the ARS defences so far explored have been inapplicable to IHL— whether because the ARS conditions for application were not met, the ARS conditions for making the defence inapplicable were met, because the primary rules act as lex specialis. In each case, the protections and balances which the primary rules seek to achieve between protective and humanitarian impulses and military necessity are preserved. This is particularly the case in respect of distress and necessity—both of which are already fully accounted for in the primary rules. The defence of force majeure does not require such balancing: the defence is applicable when circumstances which the State cannot control (because they are unforeseen or irresistible) render compliance with its obligations ‘materially impossible’. In these circumstances, the State cannot but fail to comply. The defence is afforded precisely because, as explained in the ARS Commentary, this non-compliance ‘is involuntary or at least involves no element of free choice.’150 As such, the balances which IHL seeks to achieve, in protecting individuals from the tragedy of armed

142

ARS Commentary, above n 4, Article 23, para 2. On foreseeability, see ICSID, Autopista Concesionada de Venezuela v Bolivarian Republic of Venezuela, Award, 23 September 2003, Case No ARB/00/5, paras 115–117. 143 ARS Commentary, above n 4, Article 23, para 2. 144 ARS Commentary, above n 4, Article 23, para 3. Indeed, it can originate in pressures from another State: see ARS Commentary, above n 4, Article 18, para 4. 145 ARS Commentary, above n 4, Article 23, para 2. 146 There are disagreements in the literature as to the standard of impossibility. Arguing that impossibility need not be absolute, see: Crawford 2013, p 299; Tzanakopoulos and Lekkas 2014, pp 329–330; Gourgourinis 2017, p 293. Arguing that the standard requires an absolute impossibility, see: Scalese 2008, p 69; Szurek 2010a, pp 479–480; Paddeu 2018, pp 320–323. 147 ARS Commentary, above n 4, Article 23, para 3. 148 ARS Commentary, above n 4, Article 23, para 9. 149 See ICC, Güris and others v Syria, Award, 5 April 2016, Case No 21845/ZF/AYZ, para 322. 150 ARS Commentary, above n 4, Article 23, para 1.

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conflict, while accounting for military necessity, are in the circumstances, simply not achievable. Force majeure is thus, in principle, applicable to IHL obligations. To the best of our knowledge, there have not been any instances in which force majeure has been invoked in this context. But a scenario in which the defence would be applicable can be found in the context of the Falklands/Malvinas conflict in 1982: The tents which the UK had shipped to the area for the purposes of interning Argentine prisoners of war (‘POWs’)151 were lost at sea due to Argentine attacks. The POWs were therefore interned on ships, this ‘being the only way to protect the over 10,000 POWs from the Falklands’ abominable weather.’152 On the specific facts, it may be queried whether UK reliance on shipping (given the active hostilities at sea) to transport tents for the purposes of housing POWs amounts to an ‘assumption of risk’ or a contribution to the situation of impossibility (both of which could exclude the defence of force majeure). However, it seems clear that if the ship carrying tents was lost at sea due to a violent storm that was unforeseen or irresistible, the plea would be available. Nevertheless, IHL imports at least two broad limitations to the scope of application of force majeure. First, IHL obligations which impose due diligence standards of conduct conditioned by feasibility153 account for the concerns that the defence of force majeure addresses. Due diligence obligations are, by definition, limited by possibility. Thus, as stated by Alice Ollino, if the material circumstances affect a state’s possibility of acting in accordance with its due diligence obligation, there is no need to resort to any secondary rule like force majeure to exclude responsibility: the scope and content of the obligation in question will be curtailed and the state will have complied with its duty as long as the degree of diligence displayed matched what the state was able to exercise.154

Second, IHL itself makes some provision for unforeseen situations. Thus, GCI and GCII expressly address unforeseeability in the context of an armed conflict.155 These conventions provide that ‘[e]ach Party to the conflict, acting through its commandersin-chief, shall ensure the detailed execution of the preceding Articles and provide for

151

Under GCIII, above n 1, Article 22: Prisoners of war may be interned only in premises located on land and affording every guarantee of hygiene and healthfulness. Except in particular cases which are justified by the interest of the prisoners themselves, they shall not be interned in penitentiaries. 152 Aust 2013, p 262. Aust relies on this example in the context of suspension of treaty obligations under Article 61 VCLT, although the situation seems particularly relevant, perhaps more so, to force majeure. See also Simes 2012 for a further discussion of the facts. 153 For example, consider the obligation to take precautions in attack in the conduct of military operations, API, above n 1, Article 57; and the obligation to take precautions against the effects of attacks, API, above n 1, Article 58. 154 Ollino 2022, p 220. See also: Lozano Contreras 2007, pp 220–228; Paddeu 2018, p 306. 155 While GCIII, GCIV and the Additional Protocols do not contain similar provisions, the 2016 Commentaries have framed the obligation as in keeping with the general obligation of ‘respect and ensure respect’ in Common Article 1 of the Geneva Conventions and API. ICRC 2016, para 2716. Geneva Conventions, above n 1, Common Article 1; API, above n 1, Article 1(1).

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unforeseen cases, in conformity with the general principles of the present Convention.’156 The 1952 Commentaries to the Geneva Conventions explain that the conventions do not provide for every eventuality, suggesting that what is principally contemplated by Article 45 GCI/Article 46 GCII is the lack of completeness of the Geneva Conventions as legal codes governing conduct during armed conflict.157 Furthermore, the examples provided in the updated Commentary to Article 45 GCI concern situations which are not addressed specifically by the Geneva Conventions, seemingly framing the Article as one which addresses a type of non liquet.158 In other words, these provisions address situations which have not been regulated by the Conventions: unforeseen situations in respect of which there are no specific IHL rules applicable. In this sense, these provisions are different from the situation of force majeure: this defence concerns unforeseen situations in respect of which there are applicable rules, but which have become materially impossible to perform. Thus, it is not likely that these provisions constitute lex specialis excluding the applicability of force majeure.159 Having said so, both provisions in GCI and GCII raise an important issue which is also relevant in situations of force majeure. Both conventions provide for what may be called a ‘closure rule’, which is intended to guide the conduct of States in situations in which the express rules of the Conventions have run out. In requiring States to ‘provide for unforeseen cases, in conformity with the general principles of the present Convention’,160 the Geneva Conventions impose on States an obligation to adhere to the object and purpose of IHL as far as possible. That is, where situations unforeseen by the Conventions arise, States are not free to act as they wish (subject to potential limits imposed by other rules of international law): on the contrary, they must, within the constraints of the unforeseen event, act in accordance with the protective purposes of IHL. We think there is a good case to be made that this limit should be understood to apply also where a situation of force majeure has rendered compliance with IHL obligations materially impossible. According to ARS Article 27(a), the successful invocation of a defence is without prejudice to ‘compliance with the obligation in question, if and to the extent that the circumstance precluding wrongfulness no longer exists’. This provision is intended to emphasise the effect of defences as shields, and not swords. Namely, to emphasise that the defences in the law of responsibility have no effect on the continued existence of the primary obligation affected, and they can only provide cover for the temporary non-performance.161 But the Commentary to this provision also adds that: ‘The words “and to the extent” are intended to cover situations in which the conditions preventing compliance gradually lessen and 156

Emphasis added. GCI, above n 1, Article 45; GCII, above n 1, Article 46. ICRC 1952, p 341. 158 ICRC 2016, paras 2722–2726. 159 See Gaeta 2016, p 45; Zerbe 2019, p 601, each assuming that force majeure applies to breaches of IHL. 160 Emphasis added. GCI, above n 1, Article 45; GCII, above n 1, Article 46. 161 ARS Commentary, above n 4, Article 27, paras 1–2. 157

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allow for partial performance of the obligation.’162 This is certainly desirable, as situations covered by the defences, including force majeure, may still cause injury, and even material damage, on the party whose rights are affected.163 But this is only an exhortation by the ILC, not an injunction. Indeed, Article 27(a) is framed as a without prejudice clause, such that it is not possible to derive from this provision an obligation of ‘as near as possible’ compliance as the exceptional circumstances lessen or of mitigation (to fulfil the object and purpose of the relevant obligations as near as possible in the circumstances) where they do not.164 But in the field of IHL, an obligation of ‘as near as possible’ performance, or an obligation to mitigate, can be derived more generally from Articles 45 GCI and 46 GCII and from the general obligation to ‘respect and ensure respect’.165 As such, where a State is prevented from complying with an IHL obligation due to force majeure, these provisions can be read to require that the State must act in accordance with its obligations as closely as possible and that the State must resume as much compliance as possible as soon as this is feasible. To illustrate, consider the POW example mentioned earlier. In that situation, interning POWs on a ship, by way of fulfilling the GCIV obligations to ensure their health and safety, is as near compliance as possible—given the unavailability of tents to house the POWs on land. In this case, force majeure would apply with respect to the failure to house POWs on land, but the State would nevertheless be required by IHL to protect POWs from the elements where an alternative form of compliance (in keeping with the object and purpose of the provisions in question and the protective spirit of the Conventions) was available.

3.9 Conclusion The ILC Articles on State Responsibility aim to provide a coherent and complete system of rules for the determination of the responsibility of a State under international law. The system of responsibility it codifies applies to the whole range of obligations of States under international law. This claim to generality and comprehensiveness, in turn, determine some of its key features: its residual and flexible character. The system, to make good on its claim to generality and comprehensiveness, must yield to leges speciales and make allowance for the peculiarities of (some) of the infinite variety of obligations of States under international law. The ARS, therefore, apply in principle, and in a residual manner, to the field of IHL. However, the general defences included in the ARS are, for the most part, inapplicable or only partially applicable in the field of IHL. This stems from a variety of 162

ARS Commentary, above n 4, Article 27, para 2. As acknowledged by ARS, above n 4, Article 27(b). 164 Note, moreover, that the ILC clarifies that partial compliance is still wrongful: ARS Commentary, above n 4, Article 12, para 2. 165 Geneva Conventions, above n 1, Common Article 1; API, above n 1, Article 1(1). 163

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different limitations. Several of these limitations reflect the fact that the defences—as codified in the ARS—account in their own terms for some of the ‘peculiarities’ of IHL (if we may, for present purposes and without intending any disrespect, refer to the protective mission of IHL in such terms). Thus, self-defence as a justification may have no role to play in this field, as its application would upend the separation between the jus ad bellum and the jus in bello, and the consequent principle of equality of application of IHL to the parties in conflict. Similarly, a defence of consent in respect of IHL rules may not be available to either party in an armed conflict: any consent expressed in these situations is likely to be vitiated insofar as the circumstances of armed conflict are coercive of the will of either party. Other limitations reflect the fact that IHL already regulates the circumstances that would normally give rise to defences under general international law. This is most particularly evident in respect of the defences of distress and necessity. These defences concern what are, in essence, emergency situations in which essential interests, such as the defence of the State and individual life, are under threat. IHL is itself a set of rules that try to regulate a particular type of emergency situation: one that originates from armed conflict, and the dangers that armed conflict poses for the State and individuals. The logic of IHL, as well as its particular rules, effectively articulate the way in which, in light of the exigencies of armed conflict, the balance between the humanitarian and protective objectives of IHL and military necessity must be performed. This is a balance that is performed ex ante and in concreto by IHL. Insofar as necessity and (to a lesser extent) distress provide for an abstract balance to be performed on a case-by-case basis, IHL may be seen as an actualisation of the concern that is addressed by these rules. By implication, the defences of distress and necessity have no further role to play within IHL. Similar considerations apply in respect of countermeasures. Countermeasures in the ARS and reprisals in IHL developed in parallel, sometimes borrowing from each other. Thus, the requirements of sommation and the limitations concerning humanitarian considerations in the ARS are grounded in, among others, the Naulilaa award— an award which concerned belligerent reprisals.166 It is therefore not surprising that there is a fair degree of overlap in the two regimes. However, IHL has developed stricter conditions for the adoption of reprisals with a view to maximally supporting the protective mission of IHL. For this reason, the IHL-reprisals regime operates as a lex specialis, modifying the role of the ARS regime of countermeasures within this field. Which brings us to force majeure—the only ARS defence which might apply to preclude the wrongfulness of a breach of IHL. Even so, we have argued that States which are in the impossibility of strictly complying with IHL obligations due to force majeure must do what they can, in the circumstances, to comply with the protective mission of IHL. Anything less would undermine the inviolability of these protections.

166

ARS Commentary, above n 4, Article 50, para 6. See also Commentary, ibid., Article 49 (fn 745).

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Simma B, Pulkowski D (2010) Leges Speciales and Self-Contained Regimes. In: Crawford J, Pellet A, Olleson S (eds) The Law of International Responsibility. Oxford University Press, Oxford Steiger D (2015) Enforcing International Humanitarian Law through Human Rights Bodies. In: Krieger H (ed) Inducing Compliance with International Humanitarian Law. Cambridge University Press, Cambridge. Stone J (1944) Burden of Proof and the Judicial Process. Law Quarterly Review 60:262 Szurek S (2010a) Force Majeure. In: Crawford J, Pellet A, Olleson S (eds) The Law of International Responsibility. Oxford University Press, Oxford, pp 475–480 Szurek S (2010b) Distress. In: Crawford J, Pellet A, Olleson S (eds) The Law of International Responsibility. Oxford University Press, Oxford, pp 481–490 Tams CJ (2005) Enforcing Obligations Erga Omnes in International Law. Cambridge University Press, Cambridge Thouvenin JM (2010) Self-Defence. In: Crawford J, Pellet A, Olleson S (eds) The Law of International Responsibility. Oxford University Press, Oxford, pp 455–468 Trapp KN (2011) State Responsibility for International Terrorism. Oxford University Press, Oxford Assessing Compliance with API Obligations in the Information Age. In: Saxon D (ed) International Humanitarian Law and the Changing Technology of War. Nijhoff Publishers, The Hague, pp 151–170 Tzanakopoulos A, Lekkas S (2014) Pacta Sunt Servanda versus Flexibility in the Suspension and Termination of Treaties. In: Tams J, Tzanakopoulos A, Zimmermann A (eds) Research Handbook on the Law of Treaties. Edward Elgar, Cheltenham, pp 312–240 UK Ministry of Defence (2005) The Manual of the Law of Armed Conflict. Oxford University Press, Oxford Von Staden A (2011) Towards Greater Doctrinal Clarity in Investor-State Arbitration: Treaty Exceptions, Necessity, and the CMS, Sempra, and Enron Annulment Decisions. Czech Yearbook of International Law 2:207 Waibel M (2007) Two Worlds of Necessity in ICSID Arbitration: CMS vs. LG&E. Leiden Journal of International Law 20:637 Weatherall T (2015) Jus Cogens. Cambridge University Press, Cambridge Williams GL (1982) Offences and Defences. Legal Studies 2:233 Williams GL (1988) The Logic of “Exceptions”. Cambridge Law Journal 47:261 Zerbe Y (2019) Autonomous Weapons Systems and International Law: Aspects of International Humanitarian Law, Individual Accountability and State Responsibility. Swiss Review of International and European Law 29:581 Zyberi G (2018) Enforcement of International Humanitarian Law. In: Oberleitner G (ed) Human Rights Institutions, Tribunals and Courts: Legacy and Promise. Springer, pp 377–400

Cases EECC, Federal Democratic Republic of Ethiopia v Eritrea, Partial Award, Prisoners of War, 1 July 2003 EECC, Federal Democratic Republic of Ethiopia v Eritrea, Partial Award, Western Front, Aerial Bombardment and Related Claims, 19 December 2005 ICC, Güris and others v Syria, Award, 5 April 2016, Case No 21845/ZF/AYZ ICJ, Armed Activities on the Territory of the Congo (DRC v Uganda), Judgment of 19 December 2005, [2005] ICJ Rep 168 ICJ, Gabˇcíkovo-Nagymaros Project (Hungary/Slovakia), Judgment of 25 September 1997, [1997] ICJ Rep 7 ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, [2004] ICJ Rep 136

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ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, [1996] ICJ Rep 226 ICJ, Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America), Merits, Judgment of 27 June 1986, [1986] ICJ Rep 14 ICJ, Oil Platforms (Islamic Republic of Iran v United States of America), Merits, Judgment of 6 November 2003, [2003] ICJ Rep 161 ICJ, Oil Platforms (Islamic Republic of Iran v United States of America), Preliminary Objections, Judgment of 12 December 1996, [1996] ICJ Rep 803 ICSID, Autopista Concesionada de Venezuela v Bolivarian Republic of Venezuela, Award, 23 September 2003, Case No ARB/00/5 ICSID, Cargill, Inc v Mexico, Award, 18 September 2009, Case No ARB/(AF)/05/2 Libyan Arab Foreign Investment Company (LAFICO) v Burundi, Arbitral award of 4 March 1991, [1991] 96 ILR 279 UNCLOS Annex VII Tribunal, Guyana v Suriname, Award in the arbitration regarding the delimitation of the maritime boundary between Guyana and Suriname, Award of 17 September 2007

Treaties Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12 1949, 75 UNTS 31 (entered into force 21 October 1950) Geneva Convention for the Amelioration of the Conditions of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of August 12 1949, 75 UNTS 85 (entered into force 21 October 1950) Geneva Convention Relative to the Treatment of Prisoners of War of August 12 1949, 75 UNTS 135 (entered into force 21 October 1950) Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12 1949, 7 UNTS 287 (entered into force 21 October 1950) Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature 8 June 1977; 1125 UNTS 3 (entered into force 7 December 1978) Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, open for signature 8 June 1977, 1125 UNTS 609 (entered into force 7 December 1978) United Nations Convention on the Law of the Sea, open for signature 10 December 1982, 1833 UNTS 397, entered into force 16 November 1994

UN Documents ILC (1979) Yearbook of the International Law Commission, vol I, Summary records of the meetings of the thirty-first session (14 May-3 August 1979), UN Doc A/CN.4/SER.A/1979 ILC (1980) Report of the Commission on the work of its thirty-second session, UN Doc A/35/10 ILC (1999a) Second report on State responsibility by James Crawford, Special Rapporteur, UN Doc. A/CN.4/498/Add.2 ILC (1999b) Yearbook of the International Law Commission, vol I, Summary records of the meetings of the fifty-first session (3 May-23 July 1999b), UN Doc A/CN.4/SER.A/1999b

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ILC (2001) Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries, in Report of the International Law Commission on the work of its fifty-third session, UN Doc. A/56/10 ILC (2006) Conclusions of the work of the Study Group on the Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law in Report of the International Law Commission on the work of its fifty-eighth session, UN Doc. A/61/10 ILC (2011) Articles on the Effects of Armed Conflict on Treaties in Report of the International Law Commission on the work of its sixty-third session, UN Doc. A/RES/66/99 ILC (2022) Draft conclusions on the identification and legal consequences of Peremptory Norms of International Law ( jus cogens) in Report of the International Law Commission on the work of its seventy-third session, UN Doc. A/77/10

Federica I. Paddeu Associate Professor and Derek Bowett Fellow in Law, Queens’ College, University of Cambridge. Kimberley N. Trapp Professor of Public International Law, UCL Faculty of Laws (Bentham House, Endsleigh Gardens, London).

Chapter 4

Thinking with IHL in Contexts of Counterterrorism: The Case of Criminal Justice Systems in the Sahel Julien Antouly and Rebecca Mignot-Mahdavi

Contents 4.1 4.2 4.3

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Prosecutions in the Sahelian Context: With Counter-Terrorism Laws, Without IHL . . . . . Prosecuting Without IHL: Examining the Pitfalls of Counter-Terrorism Based Prosecutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4 Prosecuting With IHL: A Way to Protect Humanitarian Actors . . . . . . . . . . . . . . . . . . . . 4.5 Prosecuting With IHL: What Does It Look Like? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.6 Concluding Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract Building on the Sahel situation, the chapter argues that prosecutors and judges working on acts perpetrated in the framework of armed conflicts should be encouraged to use IHL-derived norms of their criminal code, and related IHL reasoning in addition to, or instead of the counter-terrorism arsenal of their criminal code. The first reason for this is that the evidentiary threshold is higher for IHLderived crimes than for ordinary or counter-terrorism offences and appears to be essential to preserve domestic criminal law’s cornerstone principles. The way ordinary criminal law offences or new counter-terrorism specific offenses are interpreted in terrorist cases leads to the dilution of the elements of the crime and thus to the violation of the principle of individualization of sentences. This, the chapter argues, would not happen should the IHL framework fully coexist with the counter-terrorism (CT) apparatus, in which case it would at the very least promote a less pre-emptive prosecution culture. The second reason to prosecute on the basis of IHL-derived norms is to protect humanitarian actors, who otherwise face growing risks of prosecution when they operate in areas where terrorist armed groups are active. Indeed, the turn to pre-emptive criminal justice, the related extension of terrorism-related J. Antouly University of Paris Nanterre, Paris, France e-mail: [email protected] R. Mignot-Mahdavi (B) Sciences Po Law School, Paris, France e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2024 H. Krieger et al. (eds.), Yearbook of International Humanitarian Law, Volume 25 (2022), Yearbook of International Humanitarian Law 25, https://doi.org/10.1007/978-94-6265-619-2_4

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offences and dilution of the elements of the crime tend to criminalize all kinds of links and interactions with terrorist groups, without requiring the actual participation in, or intention to participate in a terrorist act. IHL also contains provisions which explicitly protect humanitarian and medical personnel and forbid their harassment, arrest and prosecution. This analysis might even make a case for having IHL-based prosecution prevail, and not just to encourage the coexistence of the IHL lens with the CT lens. The chapter ends with some indications of how reinvigorating the IHL framework and mode of reasoning can look like in practice, in a context where actors of the criminal justice system need to gain habitus in thinking about IHL norms, and more importantly IHL doctrinal debates. Keywords International criminal law · International humanitarian law · Prosecution · Non-international armed conflicts · Terrorism · Counterterrorism · Sahel · Terrorist groups · Individualization · Sentences · Humanitarian actors · Medical personnel

4.1 Introduction Pre-emptive criminal policies and sanctions have become the norm in counterterrorism contexts around the world. Their primary focus lies in the prevention of terrorist attacks and mitigation of the risk and threats posed by terrorist organizations, rather than the prosecution of perpetrators of terrorist attacks.1 Under the impetus of “legislative”2 resolutions adopted by the United Nations (UN) Security Council (UNSC), new offences have been created to prosecute individuals for having ties with or supporting terrorism. States are required to criminalize the financing of terrorism,3 the act of traveling to conflict zones where terrorist groups are active,4 as well as acts—for instance, recruitment activities—facilitating the travel of individuals to states where they will receive terrorist training or perpetrate, plan or participate in terrorist acts.5 Another major trend has been the loose and extensive interpretation of existing criminal offences such as the participation in a terrorist group. Judges have used it to criminalize the project of joining a group: for instance, travelling to Syria or planning to travel to Syria have been taken by judges in some Western states as

1

De Goede 2008, pp 163–164: “The politics of preemption in the war on terror is a practice of securitization that has to be conceptualized through the larger philosophical-political turn towards risk in diverse areas of contemporary politics”. French authors speak about “prévention pénale”, see for example Poncela 2016. 2 Szasz 2002, pp 901–905. 3 UN Security Council (2001) Resolution 1373 (2001), UN Doc. S/RES/1373; UN Security Council (2014) Resolution 2178 (2014), UN Doc. S/RES/2178, para 6(b). 4 UN Security Council (2014) Resolution 2178 (2014), UN Doc. S/RES/2178, para 6(a). 5 Ibid.

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sufficient signs of belonging to Islamic State of Iraq and Syria (ISIS).6 In this context of race for pre-emption, UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Fionnuala Ní Aoláin, urged states “to prosecute their nationals or persons within their effective control for serious violations of human rights and humanitarian law, including war crimes, genocide and crimes against humanity” instead of using offences that might facilitate sentencing (as they do not require much evidence) but do not live up to the gravity of the facts and of the situations.7 This question is not only relevant for states prosecuting citizens who had left to fight abroad upon their return—a scenario which has attracted a lot of scholarly attention8 —but also in states which experience armed conflicts on their territory. This second scenario has also led to discussions on the pros and cons of the application, exclusion or co-application of international humanitarian law and counterterrorism legislation in such contexts. While most scholars agree that in situation of armed conflict, the two regimes are not intended to be mutually exclusive,9 normative arguments have been formulated to prioritize either the counter-terrorism or the International Humanitarian Law (IHL) framework to prosecute acts committed in the context of an armed conflict. Some scholars have highlighted the advantages of the application of counter-terrorism laws. The argument rests on the wide range of prosecuting options available in this counter-terrorism framework and on the idea that counter-terrorism laws allow to criminalize all conducts already forbidden in IHL, as well as other conducts not criminalized in IHL (hijacking, handling of nuclear materials, etc.), or even conducts otherwise authorized in IHL. For instance, numerous preparatory acts that make the commission of a crime possible (assisting, financing) are not prohibited in IHL but would be under counter-terrorism laws. Moreover, in domestic trials for terrorism offences judges often charge the accused for two or more distinct offenses (carrying guns, and membership of a terrorist organization for example) and sometimes impose cumulative sentences.10 Finally, in many countries, counter-terrorism frameworks may provide extraordinary procedural, investigative and international cooperation tools not always permitted under war crimes legislation. For all these reasons, proponents of more prosecution pathways have argued in favour of using counter-terrorism laws in priority. Conversely, arguments have been formulated in favour of prioritizing IHL frameworks.11 Such arguments have referred to the fact that IHL breaches and war crimes regimes are older and thus much better defined than terrorist acts. The fact that these 6

For the Netherlands and the United Kingdom, see Anwar and De Goede 2021. For France, see Decoeur 2017, pp 299–326 and Mignot-Mahdavi 2023a. 7 United Nations General Assembly (2020) Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism Fionnuala Ní Aoláin, UN Doc. A/75/337, para 47. 8 Capone et al. 2023. 9 See, for instance, Saul 2020, p 158. 10 Sarfati 2021, Cuyckens 2021. 11 For an example of a call for an exclusive application of the lex specialis, see Kaikobad 2007, pp 213–214.

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regimes allow to address the (il)legality of the acts committed by all parties to a conflict, including state armed forces, has also led some authors to call for an exclusive application of IHL, or at least a co-application of IHL and counter-terrorism laws in situation of armed conflict.12 The inclusion of the acts committed by all parties to the conflict in the scope of prosecution has, in the same vein, be considered as favourable to conflict resolution and peace building efforts.13 The other side of the story is that applying counter-terrorism legislation rather than international crimes regimes is more than a procedural anecdote, but a “deep – and alarming – legal trend which bears multiple consequences”,14 including for conflict resolution purposes. Based on these arguments, organizations, among the International Committee of the Red Cross (ICRC),15 and scholars,16 claim for the introduction of clauses excluding activities governed by IHL from the scope of criminal law instruments (“IHL exclusion clause”). However, as observed by Saul, “there is clearly little support in State practice for entirely quarantining armed conflict from counterterrorism law (CTL) and exclusively applying IHL”.17 On the contrary, states seem to support the application of a counter-terrorism framework that exclude the activities of state armed forces in armed conflict from the scope of prosecution. This chapter’s aim is neither to conduct a holistic study of possible normative conflicts between these two regimes, nor to argue in favour or against their exclusive or concurrent application. Putting ourselves in the shoes of domestic judges, we tell a Sahelian story of the modalities, hurdles and implications of the co-application of IHL and counter-terrorism laws in a national context of armed conflicts that involve multiple terrorist groups and various state armed forces. Based on our respective experiences, we invite the reader to navigate the practical and conceptual underpinnings of the norms’ coexistence. On the occasion of the Antonio Cassese Initiative training, one of the authors was asked to provide courses to prosecutors and judges from the African continent on the interactions between in IHL and criminal law. In light of some preliminary research on the state of criminal justice and prison systems in the countries most represented among the participants’ work location, and a particular emphasis on the countries of the Sahel region, the training focused on the practical and conceptual implications of the application of IHL norms for prosecution purposes in cases related to the context of protracted confrontations between jihadist groups and state armed forces. Discussions with participants during and after the training have inspired parts of the present chapter. Concurrently, as part of various research projects, the other author 12

Thynne 2021, Saul 2020, p 423 notes that “When CTL (counterterrorism law) takes sides in this way, it can undermine the already weak incentives for armed groups to respect IHL”. 13 Pejic 2012, p 196. 14 TRIAL International 2020, p 14. 15 Ferraro 2016, p 29. 16 Van Poecke et al. 2021. This chapter analyses the chief mechanism for dissipating this tension, being a clause excluding activities governed by IHL from the scope of criminal law instruments on terrorism. 17 Saul 2020, p 301.

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has conducted studies on anti-terrorist legislation in the Sahel and has participated in several anti-terrorist trials in Bamako (Mali) at the end of 2021 in person. On this occasion, he had access to documents related to these trials, including judgements, which are otherwise difficult if not impossible to consult.18 Building on these empirical materials we first observe the lack of recourse to IHL norms to prosecute crimes committed in the Sahel region in times of and in relation to armed conflicts, despite the normative fabric available to do so. We then move on to criticize this missed opportunity, as we argue that ensuring the active coexistence of this framework would avoid harming the core principles of criminal law, afford better protection to humanitarian personnel, and allow the prosecution of individuals belonging to all parties to the conflict, thereby providing more legitimacy to the often-contested work of actors of the judicial system.

4.2 Prosecutions in the Sahelian Context: With Counter-Terrorism Laws, Without IHL The Sahelian states have been facing serious security crises for several years, marked in particular by the emergence of numerous organized armed groups in the region— some of which control entire portions of territory—and by constant developments. In 2020, Héni Nsaibia and Caleb Weiss provided an overview of the evolution of the Sahelian jihadi constellation since 2007, showing that this constellation includes a multiplicity of groups and has ceaselessly change over the years.19 In response to the activities of these various non-state armed groups, numerous military operations have been conducted by states in the region and with the support of third states, most notably France and Russia.20 Without delving into legal debates regarding the characteristics of these various armed groups, or the temporal limits of the situations of armed conflicts,21 it is clear that several non-international armed conflicts are underway in these states, thus triggering the application of IHL. While

18

This difficulty has been raised several times in publications relevant to Malian legislation. See Thynne 2021: “It was challenging to find any comprehensive information of court judgements from Mali and Afghanistan, other than in the US country report. NGO reports also make reference to efforts by the courts but do not provide any specific statistics that would be worth including. Hence, these numbers are not complete”. 19 Nsaibia and Weiss 2020. The author map Al Qaida in the Islamic Maghreb (AQIM), which emerged in 2007 and is still active, the Movement for oneness and Jihad in West Africa (2011– 2015), Al Mulathimin (2011–2013), Al Mulathimin (2013–2015), Ansar Dine (2011–2017), Katiba Salabeddine (2013–2017), Katiba Macina (2015–2017), Islamic State in the Greater Sahara (2015 to present), Ansaroul Islam (2016 to present) and Group for Support of Islam and Muslims (JNIM— 2017 to present). 20 On the French intervention in the Sahel, see Carayol 2023. On the Russian involvement, see Stronski 2023. 21 Mignot-Mahdavi 2023b.

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international armed conflicts exist between two or more states regardless of the intensity, duration and scale of violence,22 the intensity of hostilities has to be sufficiently high and the non-state armed group sufficiently organised for a non-international armed conflict (NIAC) to exist.23 Since 2013, the Sahelian conflicts have caused the death of thousands of people, and displaced millions.24 In light of the consequences of the protracted conflict, the national armies themselves, and even some of the nonstate armed groups,25 fully recognized the existence of armed conflicts and thus, the application of IHL. The military responses to these insurgencies have been accompanied by an increasing criminalization of people arrested during military/counter-terrorism operations. The past decade was also marked by prosecution based on already-existing ordinary offences, which have been interpreted extensively in the counter-terrorism context. Such extensive interpretations have been justified on account of the terrorist character of the act and have led to higher sentences. Today, ordinary offences are still widely used in anti-terrorist trials. In addition to the recourse to existing offenses to prosecute people arrested during military/counter-terrorism operations, prosecution has also been facilitated by the gradual emergence and proliferation, in the Sahel, of terrorist offences in the late 2000s, with the adoption of special antiterrorism laws.26 The terrorist offences included in these new laws were often the result of direct transposition of international antiterrorist conventions and French anti-terrorism legislation. Illustrations of this legislative activism can for instance be found in the special laws on money laundering and terrorist financing that have been adopted as of 2015, under the influence of regional or non-binding instruments.27 In Burkina Faso, a 2015 law amended the provisions of the previous 2009 anti-terrorism law and created several 22

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, UNTS 970 (entered into force 21 October 1950) (Geneva Convention I), Article 2(1); ICRC 1958, p 3. 23 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 1(1). ICRC 2016, Article 3 Common to the Geneva Conventions: Commentary of 2016. 24 UNOCHA 2022. 25 For example, the “Coordination des Mouvements de l’Azawad” has signed a Deed of Commitment on the Protection of Medical Care in Armed Conflict in October 2022. 26 Statute: Loi N°060-2009/AN du 11 mars 2010 portant répression d’actes de terrorisme au Burkina Faso [Law No. 060-2009/AN of March 11, 2010 on the suppression of acts of terrorism in Burkina Faso]; Statute: Loi n°08-025 du 23 juillet 2008 portant répression du terrorisme au Mali [Law No. 08-025 of July 23, 2008 on the Suppression of Terrorism in Mali]; Decree : Ordonnance n°2011-12 du 27 janvier 2011 portant modification du Code pénal nigérien [Decree No. 2011-12 of January 27, 2011 amending the Nigerien Penal Code]. 27 Sahelian countries are members of the West African Economic and Monetary Union, which adopted dedicated regulations targeting this kind of criminality. They are also members of the Economic Community of West African States (ECOWAS), which includes a specific working group on fight against terrorist financing and money laundering, the Inter-Governmental Action Group against Money Laundering in West Africa (GIABA 2021).

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offenses to prosecute the support of terrorism,28 before a dedicated law was adopted in 2016 to transpose a West African Economic and Monetary Union (WAEMU) directive and created a new stand-alone terrorism financing offense.29 In Mali, the legal framework was also complemented in 2016 by a law dedicated to terrorist financing, which is also a transposition of the WAEMU directive. Finally, Niger experienced a double development in 2016. A law passed in June amended the Penal Code and created new offenses of support for terrorism (apology and incitement, criminal association to commit terrorist acts, receiving terrorists, etc.). A few months later, in October 2016, Niger also adopted a law on the financing of terrorism to transpose the WAEMU directive, the content of which is very similar to the model law and laws adopted in Mali and Burkina Faso.30 Moreover, Mali, Niger, Mauritania and Burkina Faso have established specialized judicial units to prosecute terrorism offenses and transnational organized criminality.31 These units are typically composed of specially trained judges, prosecutors, and investigators who have a specific expertise in investigating terrorism cases. They are part of the national justice system, but they may operate with greater autonomy than other judicial unit and may also have access to specialized resources. In consequence, in more than a decade of legislation, the legal framework of the fight against terrorism has been strongly reinforced and substantially oriented towards the repression of all sorts of contributions, even indirect ones, to terrorism, in addition to direct terrorist acts. In Mauritania, new offences were included in the criminal code in 2010 to reinforce the counterterrorism apparatus.32 These new offences facilitate pre-emptive criminal sanctions as they not only cover actual participation in terrorist activities, but also all sorts of non-violent acts. The spectrum of prosecution possibilities is broad, from the affiliation with a terrorist group with a view to preparing or committing terrorist offences, the act 28

Statute: Loi n°084-2015/CNT portant modification de la loi n°060-2009/AN du 11 mars 2010 portant répression d’actes de terrorisme au Burkina Faso [Law No. 084-2015/CNT amending Law No. 060-2009/AN of March 11, 2010 on the suppression of acts of terrorism in Burkina Faso], Articles 15 bis to 15 quinties (among offences created are apology of terrorism, or consultation of website promoting terrorism). 29 Statute: Loi n°016-2016/AN relative à la lutte contre le blanchiment de capitaux et le financement du terrorisme au Burkina Faso [Law No. 016-2016/AN relating to the fight against money laundering and the financing of terrorism in Burkina Faso], Article 8. 30 Loi n°016-2016, above n 29. 31 Statute: Loi n°2013-016 du 21 mai 2013 portant modification du code de procédure pénale [Law No. 2013-016 of May 21, 2013 amending the Code of Criminal Procedure]; Statute: Loi n° 2010.035 du 23 juillet 2010 relative à la lutte contre le terrorisme en Mauritanie [Law No. 2010.035 of July 23, 2010 on the fight against terrorism in Mauritania]; Decree : Ordonnance n° 2011-13 du 27 janvier 2011 modifiant et complétant certaines dispositions du code de procédure pénale au Niger [Decree No. 2011-13 of January 27, 2011 amending and supplementing certain provisions of the Code of Criminal Procedure in Niger]; Statute: Loi n°006-2017/AN du 19 janvier 2017 portant création, organisation et fonctionnement d’un pole judiciaire spécialisé dans la répression des actes de terrorisme [Law No. 006-2017/AN of January 19, 2017 on the creation, organization and functioning of a judicial pole specialized in the repression of acts of terrorism]. 32 Statute: Loi n° 2010.035 du 21 juillet 2010 relative à la lutte contre le terrorisme [Law No. 2010.035 of July 21, 2010 on the fight against terrorism].

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of following a training—locally or abroad—to commit a terrorist offence (on the national soil or abroad), the non-reporting of information or facts related to the preparation or perpetration of terrorist offences that one has heard of (even when bound by professional secrecy), to the apology or glorification of terrorism.33 The same law also criminalised the fact of encouraging ethnic, racial or religious fanaticism, or the use of a sign or symbol with a view to promoting a terrorist organization, as well as the provision of meeting venues or accommodation to people who have ties with terrorist organisations. These offences do not punish direct violent acts, but speech or signs of ideological as well as material support or belonging to a group established for the purpose of preparing terrorist acts. As further critically analysed below, this means that these offences’ material element is already less tangible than that of criminal offences punishing a directly harmful act, and mainly aim to prevent the harm that they could cause to other members of society. As a result of the congestion of courts, and of pre-emptive criminal policies, the prison population in the region is constantly growing. Burkina Faso, Chad, Niger, Mali and Mauritania present the highest prison overcrowding rates in the world, ranging from 120 to 232% back in 2020.34 In part, this overcrowding results from the use of counter-terrorism frameworks to prosecute individuals. Despite the existence of several NIACs in these States and despite the implementation of war crimes regimes in domestic law, few efforts have been made to prosecute the alleged perpetrators of international crimes. In Mali, the scant efforts that have been made first consisted in referring the situation in the territory to the International Criminal Court (ICC), leading to the prosecution of only two individuals in ten years.35 Later, the UN established an International Commission of Inquiry for Mali, in accordance with the Algiers Peace Accords, signed in 2015. This Commission produced an extensive report gathering proofs and allegations of dozens of war crimes and crimes against humanity committed in Mali between 2012 and 2018.36 However, no prosecution followed this report although the main international crimes are incorporated in the Criminal Code of Mali since 2001, with definitions very similar to those of the Rome Statute, ratified by Mali in 2002. This is partly due to jurisdictional issues. Until 2019, the courts with jurisdiction for international crimes were local courts, with territorial jurisdiction; they were only competent with regards to the crimes committed in their specific remits. The problem is that most of these local courts were inoperative and closed due to the ongoing hostilities. It was only in 2019 that the jurisdiction of the Specialized Judicial Unit was extended to international crimes, but the habitus and tendency to use

33

Ibid., Article 6. Vermeersch and Dal Santo 2020. 35 ICC, Situation in the Republic of Mali, ICC-01/12, https://www.icc-cpi.int/mali. Accessed 26 May 2023. 36 Letter dated 17 December 2020 from the Secretary-General addressed to the President of the Security Council, Report of the International Commission of Inquiry for Mali, S/2020/1332; see Antouly 2021. 34

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the counter-terrorism framework still prevails.37 Besides, jurisdiction over crimes committed by the state military and security forces is shared between the military courts and the specialized judicial unit, which ultimately leads to no one taking the lead: in practice, allegations of war crimes committed by the Malian Armed Forces or its international partners remain uninvestigated.38 Should the judges of the specialized judicial unit use the IHL-derived norms that are available in their criminal code, members of state armed forces could very well be prosecuted. The use of the sole CT framework instead is a way to disregard this possibility. In Burkina Faso, a specific law to determine the jurisdiction and procedure for the implementation of the Rome Statute by the Burkina courts was adopted in 2009.39 This law contained a comprehensive definition of international crimes, and provisions on the specific criminal procedure and the possibilities of cooperation with the ICC. In addition, in 2018, the Penal Code of Burkina Faso was redrafted to add a full chapter on international crimes, with a broad definition of war crimes, encompassing all grave breaches of the Geneva Conventions, of IHL customary norms, and all grave breaches of “laws and customs applicable” in NIACs.40 Despite this solid IHL arsenal, the counter-terrorism legislative apparatus is still the favourite pathway of domestic judges to prosecute individuals having committed crimes in the context of the ongoing armed conflicts. Moreover, as in Mali, the prosecution of crimes committed by the military and security forces remains under the jurisdiction of military courts and are not investigated. Should ordinary courts use the IHL framework, and not solely the CT apparatus, the armed conflict situation as well as the multiplicity of war crimes perpetrated in this context of armed conflict by all parties would be made visible. The IHL framework, by making visible crimes committed by all parties to the conflict, including members of state armed forces, could potentially prompt the reaction of military courts. In Niger, a specific law has also been adopted in 2003, in order to implement the Rome Statute.41 Then, the revised Penal Code adopted in 2018 also created a specific chapter for international crimes.42 However, here again and despite these provisions, we found no evidence of prosecutions and trials for international crimes since the beginning of the conflict.

37

Amnesty International 2021, p 8. Ibid. 39 Statute: Loi n° 052-2009/AN du 03 décembre 2009 portant détermination des compétences et de la procédure de mise en œuvre du statut de Rome relatif à la Cour pénale internationale par les juridictions burkinabè [Law No. 052-2009/AN of December 03, 2009 determining the competences and the procedure for the implementation of the Rome Statute relating to the International Criminal Court by the courts of Burkina Faso]. 40 Penal Code of Burkina Faso, Article 411-1 et seq. [Livre IV]. 41 Loi n° 2003-25 du 13 juin 2003. 42 Republic of the Niger, Criminal Code, 2018. The Criminal Code was also revised in 2022 to include enforced disappearances as a crime against humanity. Agence Nigérienne de Presse (2022) Le Parlement modifie le code pénal pour prendre en compte les actes de disparition. http://www.anp.ne/article/niger-le-parlement-modifie-le-code-penal-pour-prendre-encompte-les-actes-de-disparition. Accessed 26 May 2023. 38

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Against this background of domination of the counter-terrorism framework despite the IHL normative arsenal, we will now explore whether and why judging acts perpetrated in the context of armed conflicts should be done by using the constellation of available norms including IHL-derived norms. The first reason for integrating IHL into domestic criminal law reasoning and practice is that in some cases, it allows to better respect and preserve core criminal law principles, captured by the principle of individualization of sentences. The second reason to prosecute on the basis of IHL-derived norms is to protect humanitarian actors, who otherwise face growing risks of prosecution when they operate in areas where terrorist armed groups are active. Indeed, counter-terrorism arsenals tend to criminalize all kinds of links, even very loose ones, to these armed groups, without actually requiring the participation in, or intention to participate in a terrorist act. Because humanitarian actors might have interactions with such groups when providing aid, they run illegitimate risks of prosecution.

4.3 Prosecuting Without IHL: Examining the Pitfalls of Counter-Terrorism Based Prosecutions Someone can be found criminally responsible only for his or her own wrongdoing according to the criminal law cornerstone principle of individualization of sentences. This implies that criminal judges identify the individual responsibility of the accused in order to sentence him or her, and this entails, in most domestic criminal systems, the identification of both an actus reus (a “guilty act”) and a mens rea (“a guilty mind”). Despite this requirement, in terrorist cases around the world, both are fading, and the Sahel region is no exception. Punishment is not individualised both because the material element, or actus reus, is diluted in terrorist cases and because the mental element, or mens rea, is less and less a requirement to find the accused guilty. In Mali, several individuals suspected of belonging to non-state armed groups have been prosecuted and judged for “acts of terrorism” committed since 2018 in the north and centre of the country. The Specialized Judicial Unit has focused on individuals showing signs of “belonging to an armed group involved in terrorist activities”, or “possession of weapons in connection with terrorist activities”.43 The investigated cases did not concern the commission of violent acts that these individuals or the groups to which they were suspected to belong have or might have committed. Mah Mamadou Koné, acting as a defence lawyer in some of these cases, very critically reacted to the special session held in November 2021 at the Court of Appeal of Bamako which led to one death penalty, 17 life sentences, 7 acquittals and 32 convictions in absentia. The criticism stems from the fact that most individuals convicted to life sentences did not participate in violent terrorist acts. Rather, they 43

Appeal Court of Bamako, Rôle Journalier: Session d’Octobre 2021 de la Cour d’Assises Siégeant à Bamako [Daily Role: October 2021 Session of the Assize Court Sitting in Bamako], 27 September 2021.

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were sentenced based on indications of belonging to terrorist groups (such as the possession of weapons or financial contributions, even when indirect or without a clear demonstration of the moral element). Offences are interpreted in a way that puts the constitutive threshold of the moral and material elements of the offense quite low. In Mali, we focused on various cases of the special session held in 2021, through participation and observation in situ during the audiences in Bamako, or by analysing key material related to those cases examined by the “Specialized Judicial Unit” (Pôle judiciaire spécialisé), such as the evidence used by judges in their preliminary ruling and the chosen charges. The Malian judges adopt a very broad interpretation of the terrorist offenses by diluting their material element. This trend, which facilitates the constitution of the terrorist offence, is already well described in European contexts as the “dematerialization of criminal law”.44 An analysis of several indictments reveals a broad interpretation of the notion of membership to a terrorist group, and a very low requirement concerning the material element proving this membership. For example, in a case,45 a defendant was arrested and considered as a member of the terrorist group Groupe Salafiste pour la Prédication et le Combat (GSPC) in the late 2000s.46 While the defendant did not deny having participated in the group’s activities for a while, he proved having left the group following an accident that left him one-eyed and one-armed. While the court recognized that he was not participating in any activity of the group, he was nevertheless charged and sentenced to life imprisonment for belonging to a combat group in connection with a terrorist undertaking, on the basis that he had received financial support from several terrorist leaders to facilitate his economic reinsertion.47 The judges thus considered that the fact of keeping contacts, or receiving money—albeit for non-military and non-violent purposes—is sufficient to characterize the offense of belonging to a terrorist group. Other cases, examined thanks to in situ observation of certain trials, reveal a propensity for the judges to rely on elements related to the appearance, language, culture or manners of the accused to legally qualify the facts. In a case involving a shepherd suspected of belonging to a terrorist group, the accused explained that he was not a member of a terrorist group but, rather, a member of a self-defence group named Ganda Izo.48 During the audience, when examining his narrative, judges 44

Alix 2010, p 162. Appeal Court of Bamako, Ministère public c. Taher Amni, Arrêt de mise en accusation et de renvoi n°707 [Judgement of indictment and dismissal n°707], 29 December 2020 (Taher Amni 2020); Appeal Court of Bamako, Ministère public c. Taher Amni, Judgement, 7 October 2021 (Taher Amni 2021). 46 The “Groupe Salafiste pour la Prédication et le Combat” was founded in Algeria and became Al Qaida in the Islamic Maghreb (AQIM) in 2007. Bencherif 2021, pp 335–353. 47 Taher Amni 2020, above n 45, p 3: “considérant qu’il affirme avoir rencontré plusieurs chefs terroristes et avoir reçu de l’aide en provenance de groupes armés terroristes pour s’installer à Arzagha avec des animaux payés par les groupes armés terroristes” [He claims to have met with several terrorist leaders and to have received assistance from terrorist armed groups to settle in Arzagha with animals paid by the terrorist armed groups]. 48 Appeal Court of Bamako, Ministère public c. Boukari Housseini, Arrêt de mise en accusation et de renvoi n°644 [Judgement of indictment and dismissal No. 644], 17 November 2020 (Boukari 45

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questioned the accused about his language, where he lives and his profession.49 Since the final judgements are not reasoned by the judges, it is impossible to state with certainty that these elements were decisive in the conviction of this individual. However, since the judges repeatedly asked such questions, and did not pause on any other evidentiary element, we can formulate the hypothesis that these factors were key in their decision to sentence him for belonging to a terrorist group. Judges seem to have considered that the Fulani language of the accused and his profession as a shepherd were indications of his belonging to a jihadist group. The offence of terrorism financing is also interpreted in an extensive manner, thus weakening and diluting the material element of the offense. In Mali, the first trial involving this kind of offense took place in October 2020 and concerned, among other defendants, “Ibrahim 10”, convicted on several counts and sentenced to death (a penalty not applied in Mali), including the financing of terrorism.50 This case raises two serious procedural concerns: first, the facts took place in 2015, and the law regarding terrorist financing was passed in 2016;51 and second, one of the defendants was a minor and was judged as an adult.52 While Ibrahim 10 did not personally finance the activities,53 the judge considered that someone could be sentenced for terrorism financing for having purchased goods and services for the benefit of a person or a terrorist project, even if the accused did not make any of his resources available. In that case, we clearly see the preference of judges to prosecute individuals on the basis of terrorist and common offences, rather than international crimes. Indeed, in the indictment, the Specialized Judicial Unit considered that the main defendant was a combatant for the group Al Murabitoune and committed the attack under the direct orders of the group’s leader. As the attack was committed in relation to the existing armed conflict between the Malian state and this non-state armed group, and deliberately targeted civilians, it could have been characterized and prosecuted as a war crime. However, judges did not use the war crime paradigm and condemned the main defendant on the basis of terrorist and common offences (participation in Housseini 2020); Appeal Court of Bamako, Ministère public c. Boukari Housseini, Judgement, 7 October 2021 (Boukari Housseini 2021). 49 The terrorist group in question is often associated with an important participation of Fulani shepherd. On the contrary, the self-defence group is more often associated with another ethnic group and language (Songhaï). 50 Fawaz Ould Ahmed, alias Ibrahim 10, has been convicted for the organization of two terrorist attacks in Bamako, targeting the Radisson Blu Hotel and the restaurant “La Terrasse” in 2015. 51 Appeal Court of Bamako, Ministère public c. Fawaz Ould Ahmed, Arrêt de mise en accusation et de renvoi n°506 [Judgement of indictment and dismissal No. 506], 1 September 2020 (Fawaz 2020). In the judgement, a clear reference is made to the law regarding terrorism financing adopted on 17 March 2016. However, the attack of “La Terrasse” took place on 7 March 2015. 52 Appeal Court of Bamako, Ministère public c. Fawaz Ould Ahmed, Abdrahamane Maïga, Moussa Maïga and Adama Maïga, Arrêt de mise en accusation et de renvoi n°462 [Judgement of indictment and dismissal No. 462], 26 May 2020 (Fawaz and al. 2020). Two of the accused (Abdrahamane Maïga and Moussa Maïga) were born in 1999 and were 16 when the attack occurred. However, they were judged on the same grounds as other accused. 53 Fawaz 2020, above n 51. The preliminary judgement clearly indicated that he did not fund the attack, but he received 200,000 euros from Belmokhtar, a terrorist leader, to organize it.

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a terrorist group, financing of terrorism, carrying guns, murder). That even in most straightforward cases, the war crime offense does not at least appear in the list of charges, shows that IHL-derived norms of the criminal code are almost dead letter. As a result of this case law, what remains of the material element of these preventive offences is reduced, which, in turn, multiplies the instances where people are sentenced. Along with the material element, the moral element is often diluted as the prosecutor and judges tend to consider that there is no need to demonstrate the willingness of the author to pursue the terrorist objectives of the group for the mens rea to be established. Indeed, not only the material element but also the moral element of offences, as interpreted by judges in terrorism-related cases is diluted. When some elements indicate that an individual has ties with a terrorist group, and even in the absence of evidence of participation in the group’s violent activities, judges tend to automatically pronounce prison sentences. Yet, automatic and systematic sentencing for signs of belonging to a group is strikingly at odds with the cornerstone criminal law principle of individualization of sentences. Malian judges mainly rely on existing offenses and reclassify them as terrorist acts when they are committed in connection with a terrorist enterprise.54 According to the principle of proportionality of the criminal sanction, a distinct moral element should be required, especially when considering that offenses relating to a terrorist enterprise trigger a distinct jurisdictional procedure and much more important penalties. Notwithstanding this requirement, Malian judges, inspired by French case law, do not search for the individual intent to commit a terrorist act, but simply aim to identify the intention to participate in the group despite the knowledge of the group’s terrorist project.55 This intention to participate in a terrorist group is increasingly deduced from the material element, thus diluting the moral element of the crime.56 We end up in a situation where links with a criminal group are sufficient to establish both the material and moral element of the offense.57 There are many illustrations of this phenomenon in antiterrorist trials in Mali. For example, during a trial where the accused recognized the possession of weapons but not the terrorist intent, the prosecutor affirmed that “the very presence of this arsenal of war shows terror”.58 In another case, an individual accused of illegal possession of weapons in relation with a terrorist enterprise denied the terrorist purpose of his armed activities. He claimed that he was a combatant of Ganda Izo group, a progovernmental militia fighting against jihadist groups. In other words, the accused recognized bearing guns and ammunitions, but denied the terrorist dimension and 54

In Malian law, it is defined as “en relation avec une entreprise individuelle ou collective ayant pour but de troubler gravement l’ordre public par la terreur et l’intimidation” [in connection with an individual or collective enterprise aimed at seriously disturbing public order through terror and intimidation]. 55 Decoeur 2017, pp 299–326, Weill 2020, Besnier and Weill 2019, p 38. 56 Mignot-Mahdavi 2023b. 57 Alix 2010, pp 302–304. 58 Appeal Court of Bamako, Ministère public c. Ibrahim Djibo, Judgement, 6 October 2021 (Djibo 2021): [translated from French] during the audience, the Prosecutor declared “par la présence de cet arsenal de guerre, la terreur est déjà semée”.

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intent of his armed activities. Without demonstrating his belonging to a terrorist group, judges reversed the burden of proof: because he was not able to demonstrate his belonging to Ganda Izo for instance by showing a membership card, they decided to sentence him for participation in a terrorist enterprise.59 Beyond the principle of individualization of sentences and the expectation that the elements of the crimes be constituted, the pre-emptive turn of criminal policies threatens core criminal procedure principles. In Mali, an individual was arrested in 2020 and judged in October 2021 for possession of weapons linked to a terrorist enterprise. During the trial, the accused indicated that the police forces tried to make him confess to the link between the weapon he possessed and a terrorist activity. For this, they allegedly tortured him.60 The Malian authorities did not investigate the allegation of torture and he was sentenced to five years of imprisonment and 3000 euros fine.61 The pre-emptive nature of the criminal policy led actors of the criminal justice system to focus on meagre indications of belonging to a terrorist group such as the possession of weapons. Yet, establishing a link between a weapon and a terrorist activity, especially in violent areas where the possession of weapons is common, is extremely difficult. This difficulty creates the conditions for a confession to be the only mode of evidence of both the material and moral elements of the crime, and thus creates room for coercion techniques to reach the confession.62 In other words, even if it is far from excusing the recourse to torture, confession as the queen of evidence is a risky precondition to individual criminal responsibility. Not only do new offences and interpretations of existing offences in the counterterrorism context undermine the principle of individualization of sentences, but they also put the principle of fidelity of criminal evidence at risk. All states in the Sahel region have rules of procedure and evidence which, although they build on the principle that offences can be proved by any means, do not authorise the recourse to evidentiary and investigative practices that harm human integrity and dignity.63 All these cases reveal that not only the principles of proportionality and individualization of sentences, but also key procedural requirements are breached when the counter-terrorism framework is chosen and when prosecution revolves around the objective of anticipation. While there are cases where ordinary criminal offenses 59

Appeal Court of Bamako, Ministère public c. Ousmane Dicko and Ahma Mahamadou, Arrêt de mise en accusation et de renvoi n°227 [Judgement of indictment and dismissal No. 227], 27 April 2021 (Dicko and al. 2021), p 3: “Qu’à ce stade de l’information, il n’a pu apporter aucune preuve quant à son appartenance à cette milice (une carte de membre ni le site de campement). Qu’aucun responsable de cette milice en l’état n’a entrepris la moindre démarche pour approcher les autorités compétentes de sa situation” [At this stage of the procedure, he has not been able to provide any evidence of his membership in this militia (a membership card or the site of his camp). No one in the responsible command of this militia has taken the slightest step to approach the competent authorities about his situation]. 60 Interview with Me Oumar Mallet, defence lawyer, special trial sessions on terrorism-related cases, October 2021, conducted and reported by Amnesty International. Amnesty International 2021. 61 Amnesty International 2021, p 58. 62 Barret 2013, Rogozinski 2013, Brafman 2016. 63 UNODOC 2012, pp 71–73.

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and terrorism offenses are used to convict individuals for the violent acts they have committed in the context of armed conflicts, the flourishing case law in the Sahel shows that judges and prosecutors tend to exploit the open texture of these offenses to set forth very extensive interpretations of their constitutive elements and condemn individuals based on indications of their belonging to terrorist groups. On the contrary, if the IHL paradigm was given a more prominent place and envisaged as grounds for prosecutions alongside the counter-terrorism framework,64 the prosecution culture would be more in line with criminal law’s core principles. Giving at least some space and importance to IHL-derived norms in trials against members of terrorist groups could create, across the board, some expectations and habits of searching for higher evidentiary thresholds to constitute the elements of the crimes. Although international criminal law has been criticised for weaking the mens rea requirement, this criticism has mostly been formulated in cases concerning command responsibility of people who were high in the chain of command at the time of the commission of war crimes for which they are convicted. Indeed, the mens rea is diluted when the commander is considered, for instance, as an accomplice of the acts perpetrated by subordinates in the absence of proof of knowledge of what the subordinates were doing and, instead, on the basis that the commander had, as such, “reasons to know”.65 In cases, however, that concern the principal perpetrator of war crimes, there is no need to have recourse to low forms of mens rea such as that created for the commander responsibility. In such cases, which would be the most common ones at the domestic level when someone is arrested for having participated in a war crime, the level of evidence required would thus be much higher to constitute both the material and moral elements of the crime than what is required for counter-terrorism offenses when prosecution is pre-emptive (i.e., when no violent act has been committed by the accused). This is not to say that nothing should be done for less grave acts or in cases of suspicion of support or involvement in terrorist activities, but rather that responses of different nature than criminal repression (for instance, socio-economic responses) should deployed to address potential threats. Finally, prosecuting individuals on the basis of IHL-derived norms could also give a more prominent role to victims in the judicial process. Indeed, in the few cases where individuals were prosecuted for committing violent acts or even assassinations targeting civilians, the victims were not represented at the trials, and the judges focused on proving membership in a terrorist group rather than the commission of violent acts. Interesting to note is that the only plaintiff in these trials was the Malian State. A focus on violations of the principle of distinction would potentially place the emphasis on the harm caused to civilian populations.

64 65

In accordance with the following call: UN General Assembly (2020), above n 7. Green 1995, Parks 1973, Gil 2014, Schabas 2002.

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4.4 Prosecuting With IHL: A Way to Protect Humanitarian Actors While we have underlined the importance of activating the available IHL framework alongside the counter-terrorism paradigm to create a culture of criminal repression that is more compliant with core criminal law principles, there is a case to make for supporting the prevalence of IHL-derived norms as lex specialis to protect humanitarian actors. Humanitarian organizations increasingly warn about the risk of “criminalization of aid”,66 a phenomenon occurring in armed conflicts between states and terrorist groups and ultimately hindering the provision of humanitarian aid. Humanitarian personnel are increasingly arrested, targeted by legal proceedings, and subjected to criminal sentences or other forms of sanctions.67 Indeed, a growing body of UN and NGO reports and academic literature highlight the fact that many national legislations, under the impetus of UNSC resolutions, incriminate all forms of material, financial or human support to terrorism in terms that are often broad and imprecise.68 As a result, humanitarian or even medical aid can be explicitly considered as an act of support to terrorism and therefore prohibited in some countries.69 Beyond the cases of arrests and prosecutions, which remain relatively rare, humanitarian organizations denounce the existence of a chilling effect, described as the permanent fear of prosecution and arrest, leading to a form of self-censorship and over-compliance. Recently, the UN Secretary General blasted the “uncertainty and anxiety” caused by counter-terrorism measures on humanitarian workers.70 In the Sahel, there is no record of humanitarian or medical personnel convicted for terrorist offences. However, the extensive interpretations of criminal offenses studied above, together with counterterrorism measures and investigative practices have a growing impact on the work of humanitarian and medical personnel, as well as on their ability to fulfil their mandate. This is particularly true for areas controlled by designated terrorist armed groups as they are subject to enhanced counter-terrorism practices. Indeed, according to data collected by specialized security sources, we observe an important increase in arrests, searches and brief detention of humanitarian actors accused by security forces of aiding terrorist groups in Mali or Burkina Faso.71 66

Mackintosh and Duplat 2013, pp 102–104. In order to reduce this impact, the UN Security Council recently adopted a general carve-out for humanitarian activities in all its sanctions regimes, see UN Security Council (2022) Resolution 2664 (2022), UN Doc. S/RES/2664. 68 Burniske and Modirzadeh 2017, p 64, Weizmann 2022, p 337, Buissoniere et al. 2018, p 15, MSF 2021. 69 UN General Assembly (2020), above n 7, para 30. 70 ICRC 2021; UN Security Council 2019, Report of the Secretary-General: Protection of civilians in armed conflicts, UN Doc. S/2019/373, para 41: “Aside from their direct impact on humanitarian operations, such measures cause uncertainty and anxiety among humanitarian organizations and their staff with regard to the threat of prosecution or other sanctions for carrying out their work”. 71 INSO 2022: “Burkina Faso – In Dori, an NGO staff member was detained for several hours by security forces following a search of properties in the area. Areas on the outskirts of the city are associated with gangs and search operations have increased since a local increase in OAG 67

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On top of institutional pressure, it is increasingly difficult and risky for humanitarian actors to operate in these areas, and the dissuading prospect of prosecution is reinforced by two main factors. First, and following our above diagnosis, recent case law demonstrates that the risk of prosecution for humanitarian actors is higher because judges automatically perceive presence in the areas controlled by terrorist groups, or perceived to be controlled, as support to terrorism. In Boukary Housseini’s case,72 Mr Housseini, a shepherd, was accused of terrorism financing after being arrested with cash (522,000 Central African franc (FCFA), so approximately 798 euros) and material equipment, and convicted to life imprisonment. The judges considered that the seized material and money were probably destined for terrorist groups “operating in the area”, one of them adding during the trial that it was irresponsible to carry out this sum of money in the North of Mali, due to the presence of terrorist armed groups.73 In another case,74 the judge clearly demonstrated that medical activities can be explicitly considered as terrorism assistance. Indeed, an alleged “logistician” for a jihadist group was arrested by the French Barkhane forces in 2020 and then transferred to the Malian authorities, “with a box containing large quantities of medical equipment intended for the treatment of injured terrorists”.75 He was convicted to life imprisonment for participation in a combat group, in relation with a terrorist enterprise. Second, some administrative or military measures to combat terrorism include the prohibition of entry in entire areas to civilians in order to facilitate military operations. The result of such measures is that if civilians, including humanitarian personnel, enter these prohibited areas, they run the risk of being prosecuted for assisting or participating in terrorist activities. For example in Burkina, following the adoption of a law authorizing the government to act by ordinance in June 2022, the Superior Council of National Defence decided to create two “zones of military interest” (ZMI) activity in late 2021” […] “Finally, two NGO staff were assaulted by security forces personnel in Djibo, despite showing identity cards, and the soldiers accused the victims of assisting OAGs. This occurred around the time that Djibo, along with the cities of Pama and Thiou, were blockaded by OAGs”. 72 Boukari Housseini 2021, above n 48. 73 Ibid.: “Il sait bien comment la situation est au nord du Mali, pourquoi accepter quelque chose de la part d’un membre de Ganda Izo ? […] Il est avec Ansar Eddine ? Pourquoi est-il allé au Burkina ? […] Il ne peut pas se permettre de transporter cela dans une zone comme le nord du Mali, c’est difficile à comprendre.” [He knows well how the situation is in the north of Mali, why accept something from a member of Ganda Izo? […] Is he with Ansar Eddine? Why did he go to Burkina? […] He can’t afford to take this to an area like northern Mali, it’s hard to understand]. 74 Appeal Court of Bamako, Ministère public c. Hadadoum Ag Idar, Judgement, 8 October 2021 (Hadadoum Ag Idar 2021). 75 Diarra 2021: “Les pièces du dossier d’inculpation montrent qu’il a été capturé en possession d’un grand carton contenant une quantité de matériels médicaux, dont il s’est empressé de se débarrasser, des seringues, antibiotiques, pansements, kits de perfusion, destinés au traitement des blessures des membres du groupe armé terroriste” [The documents in the indictment file show that he was captured in possession of a large box containing various medical supplies, which he hastened to get rid of, syringes, antibiotics, bandages, infusion kits, intended for the treatment of wounds of members of the armed terrorist groups].

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in the east and north of the country.76 In Mali, similar measures were adopted in March 2022, at the border with Mauritania.77 To justify these measures, the authorities put forward a series of arguments, among which explicitly features the objective of preventing these groups from receiving material support from the population or from humanitarian organizations.78 These trends have serious repercussions on the lives of civilians in these areas, and completely transform the vision and application of IHL by the armed forces. More importantly for our analysis, this kind of measures de facto prohibits the presence of humanitarian actors as they are not only exposed to the consequences of military operations, but also to a greater risk of prosecution.79 These risks have already materialized in the region. On 12 April 2022, a press release from the Malian Army announced a series of arrests of terrorists in the area of Diabaly and specified that “five suspects, including three European nationals” had been arrested. The information was quickly confirmed by several media outlets which identified them as German citizens working for an NGO, accompanied by Malian staff from the same organization. A few days later, a local NGO (AEI Mali) confirmed this information, indicating that these people were in this territory as part of a program related to food security, and were apprehended because they were in this area considered “dangerous”.80 The case was transferred to the Specialized Judiciary Unit and the suspects were eventually released. However, this scenario highlights the growing risk for humanitarian actors to be prosecuted for being present in the vicinity of terrorist groups. More recently, the offices of two international NGOs involved in medical activities were reportedly searched by the Malian Armed Forces in Ansongo town.81 These organisations were suspected of having treated fighters belonging to a terrorist group. The new extensive interpretations of criminal offences can put many people without actual links to such groups, including humanitarian actors, at risk. Due to these trends and the risk of conviction of humanitarian actors, prosecuting on the basis of IHL could have two major benefits in the Sahel for humanitarian assistance. The first advantage is that, by requiring higher material and moral element than terrorist offences, IHL-derived norms are very unlikely to include humanitarian activities among unlawful behaviours, even if they benefited directly to designated terrorist armed groups. The second clear and direct benefit is that humanitarian actors are protected under in IHL. More precisely, in both international armed conflicts 76

Decree: Ordonnance n°2022-003/PRES-TRANS portant création d’une zone d’intérêt militaire pour les opérations dans la Région de l’Est [Decree No. 2022-003 creating a zone of military interest for operations in the Eastern Region], 22 June 2022; Decree: Ordonnance n°2022-004/ PRES-TRANS portant création d’une zone d’intérêt militaire pour les opérations dans la Région du Sahel [Decree No. 2022-004 creating a zone of military interest for operations in the Sahel Region], 22 June 2022. 77 Communiqué n°022 of Malian Transition Government, 23 March 2022. 78 On 1 August 2022, the Burkinabe government held a press conference regarding the implementation of these measures. It explained that there were “aimed to permanently dry up the supply sources of the terrorist groups”. 79 Pozo Marín and Ben Ali 2021, pp 543–544. 80 AEI Mali, Press Release (disseminated through various WhatsApp channels in Mali). 81 Insecurity Insights 2022.

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(IACs) and NIACs, the Additional Protocols are unambiguous regarding the risk of conviction of medical personnel as they unequivocally affirm that “under no circumstances shall any person be punished for carrying out medical activities compatible with medical ethics, regardless of the person benefiting therefrom”.82 However, it is worth noting that other humanitarian actors are only protected against prosecution in IACs, as Additional Protocol I (API) states that “no one shall be harmed, prosecuted, convicted or punished for such humanitarian acts”.83 But in that regard, and building on the ICRC study on customary IHL, the protection of medical personnel against punishment has arguably reached the status of customary law in both IACs and NIACs.84 Regarding humanitarian personnel, the ICRC study considers that they must be respected and protected, thus forbidding any practice of harassment, illegal arrest or detention.85 Of course, these conclusions can be challenged as the ICRC study only rests on state practice of states having ratified Additional Protocol I, whereas state practice beyond API states clearly shows contrary practices of humanitarian personnel prosecution.86 That being said, our analysis shows that using IHLderived norms to prosecute individuals for crimes committed in armed conflict situations would protect humanitarian personnel from the risk of prosecution. Such a risk being detrimental to the delivery of humanitarian assistance and, hence, to civilians living in particularly violent areas, this could also make a case for giving priority to the IHL framework.

4.5 Prosecuting With IHL: What Does It Look Like? We have shown that there has been virtually no use of IHL in domestic prosecutions in the Sahel for acts perpetrated in the framework of armed conflicts, despite from the fact that it would be desirable to have recourse not only to the counterterrorism (CT) framework but also to the IHL apparatus. We now turn to the question of why that might be the case and what reviving IHL-based prosecution might require for actors of criminal justice systems in the Sahel. It is suggested that the lack of recourse to 82

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, UNTS 17512 (entered into force 7 December 1978) (Additional Protocol I), Article 16; Additional Protocol II, above n 23, Article 10. 83 Additional Protocol I, above n 82, Article 17. 84 ICRC Study on customary IHL, Rule 26. 85 ICRC Study on customary IHL, Rule 31: “In addition to the prohibition of attacks on such personnel, practice indicates that harassment, intimidation and arbitrary detention of humanitarian relief personnel are prohibited under this rule. The collected practice also contains examples in which the following acts against humanitarian aid personnel have been condemned: mistreatment, physical and psychological violence, murder, beating, abduction, hostage-taking, harassment, kidnapping, illegal arrest and detention”. 86 For example, the data gathered by the Aid Worker KIKA (Killed, Injured, Kidnapped or Arrested) database show a very high number of aid workers arrested in Myanmar. In Israel, various judgements have been held in the last years. See for example McKernan 2022.

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IHL-derived norms to prosecute at least acts perpetrated by members of non-state armed forces in the context of armed conflicts may have to do with a lack of habitus in IHL and adequate training. Actors of the criminal justice system, like any other actors, are physical, embodied actors, subject to social and cognitive constraints, and governed by the institutional and material configurations of their environment. Their knowledge and skills primarily consist of socially-embedded cognitive structures and habitus that transform and are simultaneously shaped by their environment.87 Habitus are not the mere mechanical behaviour or the stimulus-response of a lab rat, but rather reflects the competence of experts that mechanically undertake an activity or thought process in their field.88 Therefore, far from reflecting a lack of strategy and knowledge, habitus entails skills and know-how. The existence of habitus in domestic criminal systems other than the IHL habitus—associated to the international law realm—might at least partly explain the difficulties in prosecuting with IHL. Until recently, international crimes have been widely regarded as an area falling exclusively under the remit of international criminal jurisdictions, as the referral of the Malian situation to the ICC at the onset of the conflict testifies. More specifically, we suggest that gaining IHL habitus and thinking with IHL is more complex for judges of domestic criminal justice systems than gaining habitus in CT law for two main reasons. The first reason is that the development at domestic level of a CT arsenal, although it reflects an international tendency and is called for by international institutions, takes its roots in ordinary criminal law norms. As demonstrated above, it either consisted in developing extensive interpretations of existing offenses or criminalizing terrorist-specific conducts by analogy with long-established criminal offenses. The second reason why the CT apparatus, even in its newness, is not as troubling as the IHL derived norms for actors of domestic criminal justice systems is that CT offenses comprise traditional elements of the crime related to act prosecuted. On the contrary, offenses derived from IHL call for a two-level demonstration to show that both the material and moral elements of the offense are constituted. The first level pertains to the existence of an armed conflict and includes a classification exercise, and the second level to the individual act committed in the context of an armed conflict; we could add a third level of demonstration aimed at showing the nexus between the two. Despite the trouble, overcoming the difficulties to prosecute and judge on the basis of, or rather with, IHL is not an impossible task now that judicial institutions have been established specifically to prosecute terrorist crimes in the Sahel region. These judicial institutions potentially are spaces for gaining IHL habitus, especially when they have a specific competence to prosecute international crimes. They are environments where all actors can reflect on the usefulness and modes of applying IHL to terrorism-related cases, build a common language and practice. The actors of 87

Piaget 1970, Gruber and Vonèche 1995. Habitus is an ambiguous concept that does not have a unique and straightforward definition in Bourdieu’s work. Although this paper mainly builds on Bourdieu’s conceptualization of habitus in Bourdieu 1977, Bourdieu 1984, Bourdieu 1990, Bourdieu 1992 and Bourdieu 2000; it is important to note that the concept is also developed by other theorists, such as Mauss, Weber, Adorno, Husser, Elias and Deleuze.

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these special units, and through special procedures, can gain IHL cognitive habitus that they do not have time and space to develop when they juggle multiple sorts of (criminal) cases in ordinary tribunals.89 In relation to the two-level demonstration, or multi-layered reasoning required by IHL offenses, a series of key IHL questions have to become part of judges’ reasoning. One question for instance relates to the scope of application of IHL and, thereby, to the jurisdictional scope of their competence should they start applying the IHL framework to crimes committed in armed conflicts. Antonio Cassese training participants, for instance, were interested in familiarizing themselves with the different interpretative options for the geographical and temporal scope of armed conflicts.90 Participants expressed interest in figuring out the possibilities provided by the existing room for reasonable disagreements and coexisting interpretations of norms in IHL. For instance, one option participants in the training were all familiar with was the idea that whenever armed conflicts oppose states and organised non-state armed groups, they can be considered as NIACs. Alternatively, they had not considered that if judicial activism recommends recognizing a situation as an IAC to allow for prosecution (if the considered offences do not fall under Chapter 3 on NIACs of the Burkina Faso code, which is thinner than that on IACs, for instance), corresponding interpretations of IHL that put the emphasis on the geography of the conflict and its transnational character are available. Similarly, the intricate IHL debate relating to the temporal scope of NIACs was discussed and envisaged as another a productive space for judges deciding on their own jurisdictional capacities.91 Indeed, the temporal scope of NIACs has a bearing on domestic criminal proceedings and constrains the intention to prosecute and judge acts on the basis of IHL. To be sure, in order for an act to be punished as a war crime, actors of the criminal justice system have to substantiate that the contested act took place at a time where the situation could (still) be considered as an armed conflict. It is not sufficient to demonstrate that at a certain point in time, the situation could be and/or was defined as an international armed conflict. Again, prosecutors and judges need to be acquainted with the doctrinal debate on this question and understand the room for interpretative manoeuvre in IHL to consider (or not) that a NIAC (still) exists. IHL provides very little guidance when it comes to ascertaining the end of non-international armed conflicts92 as per Common Article 3 and Additional Protocol II (APII) do not contain express provisions concerning the termination of non-international armed conflicts (NIACs). In fact, there is a spectrum of interpretative possibilities on the endpoint of the application of international humanitarian law that have been summed up by four alternative theories on the end of armed conflicts, 89

Mauss 1973. Antonio Cassese Training on terrorism and international humanitarian law, conducted by Rebecca Mignot-Mahdavi and Tanguy Quidelleur, “Renforcement des capacités des magistrats en matière de répression des crimes internationaux et transnationaux en Afrique- Formation de suivi”, 9 March 2021, online (participants have been anonymized). 91 Ibid. 92 Lewis et al. 2017. 90

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identified by Blum, Lewis and Modirzadeh in their legal briefing “Indefinite War”.93 At the extremes we find the idea that conflicts end as soon as some of the constitutive elements of a NIAC are not present anymore; and at the other end, the theory that conflicts end only when there is no reasonable risk of hostilities to resume (a theory which can lead to endless warfare, especially if the threshold to assess the absence of reasonable risk is high). Again, this is an issue and a set of reflections that actors of the criminal justice system need to be able to navigate when prosecuting and judging on the basis of IHL. This is especially true considering the fast-evolving conflict situations and the multiplicity of non-state armed groups fought concomitantly in a given region. The example of the Sahel is particularly telling.94 The death, emergence and coexistence of groups shows that composite conflict situations exist and coexist in some regions. In such scenarios, it is complex but also crucial to determine the temporal scope of NIACs for actors of criminal justice systems. Beyond questions of scope, a wide range of IHL debates will matter to domestic judges in the Sahel in light, for instance, of the multiplicity and coexistence of groups that spring up and dissolve over the years. Among other debates, the question of whether a group is sufficiently organised for a situation to qualify as a NIAC is an important and intricate one. As is well known by IHL experts, but less so by actors of domestic criminal justice systems, the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) have played a decisive role in shaping the IHL concept of organisational level of the non-state armed group. They have established a set of factors that can be used to identify the level of group organisation95 but this list is not exhaustive, and the criteria they put forward are not cumulative. Therefore, actors of domestic criminal justice systems who intervene in complex conflict situations can further shape this IHL concept in light of the peculiar characteristics of transnational NIACs in the counterterrorism context. Ultimately, prosecuting on the basis of IHL means much more than applying criminal law norms derived from or transposing IHL norms. Prosecuting on the basis of IHL really consists in thinking with IHL, that is in becoming proficient in IHL language, doctrinal debates, and grey areas. Discussions with actors of criminal justice systems in complex conflict situations indicate that 93

Ibid., p 96. Nsaibia and Weiss 2020. 95 ICTY, Prosecutor v. Tadic, Trial Judgement, 7 May 1997, Case No. IT-94-1-T (Tadic 1997); ICTY, Prosecutor v. Muci´c et al., Trial Judgement, 16 November 1998, Case No. IT-96-2 (Muci´c et al. 1998); ICTY, Prosecutor v. Halilovi´c, Trial Judgement, 16 November 2005, Case No. IT-0148 (Halilovi´c 2005); ICTY, Prosecutor v. Slobodan Miloševi´c, Rule 98 bis Decision, 5 February 2004, Case No. IT-02-54 (Miloševi´c 2004); ICTY, Prosecutor v. Limaj et al., Trial Judgement, 30 November 2005, Case No. IT-03-66 (Limaj et al. 2005); ICTY, Prosecutor v. Mrkši´c et al., Trial Judgement, 27 Sept 2007, Case No. IT-95-13/1 (Mrkši´c et al. 2007); ICTY, Prosecutor v. Haradinaj et al., Trial Judgement, 3 April 2008, Case No. IT-04-84 (Haradinaj et al. 2008), para 60; ICTY, Prosecutor v. Hadžihasanovi´c & Kubura, Trial Judgement, 15 March 2006, Case No. IT-01-47 (Hadžihasanovi´c & Kubura 2006); ICTY, Prosecutor v. Marti´c, Trial Judgement, 12 June 2008, Case No. IT-95-11 (Marti´c 2007). 94

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this is one of the reasons why prosecuting on the basis of IHL is troublesome, if not altogether avoided. Against this background, IHL appears as a mode of thinking, perspective or lens applied by domestic courts in specific contexts rather than as a set of rules that should merely be formally transposed into domestic law. In other words, it is considered as both less and more than a legal framework. Of course, having offenses of war crimes in domestic legislation is a precondition for actors of the criminal justice system to think with IHL but these actors also need schemes for community and knowledge production; that is the structure, space and intellectual support to become a community that prosecutes and judges with IHL, that builds collective representations of IHL norms and the multiple ways they can be interpreted. The idea is not to argue in favour of criminal justice system’s actors to gain ‘mastery of’ or ‘expertise in’ IHL. The figure of the expert that would mechanically apply the law with distance, in a precise and axiologically neutral way is not only flawed but also inoperative.96 Not only does it rest on a fallacious understanding of norms (as knowing only one possible accurate interpretation)97 but also would it prevent actors of the criminal justice system to pursue an agenda, in our case the agenda to prosecute less and better with IHL. Indeed, pursuing an agenda and developing a criminal policy is only possible if norms are considered as giving ample room for interpretation.98

4.6 Concluding Remarks In a context where there is virtually no use of offenses derived from IHL in domestic criminal codes by actors of criminal justice systems to prosecute individuals for acts committed in the context of armed conflicts, this chapter has argued in favour of ensuring a proper coexistence of the CT and IHL frameworks. In addition to promoting a prosecution culture that is less pre-emptive in nature, thereby promising to preserve criminal law’s core principle better, seriously considering prosecution for offenses derived from IHL also holds the promise of alleviating the anxieties of humanitarian actors who run a risk of prosecution when the CT arsenal is the sole basis for prosecution. The IHL framework also allows, in contrast to terrorism-related offences, to prosecute individuals for war crimes they have committed as part of state armed forces. We have also seen that prosecuting with IHL requires not necessarily IHL experts, but processes of communication, institutional mechanisms, and social spaces in which actors of the criminal justice system can gain IHL habitus. Such 96

Kennedy 2016, pp 90–167, Kennedy 2005, Koskenniemi 2009, pp 7–19. On the figure of the expert, see also Latour 2004, pp 207, 252. 97 Bhuta and Mignot-Mahdavi 2021a, b From Brownlie to Brandom: Recollective Stories of the Right of Self-Defense and a Theory of the Pragmatic Semantics of Legal Conceptual Change. http://opiniojuris.org/2021/04/20/from-brownlie-to-brandom-recollective-stories-of-the-right-ofself-defense-and-a-theory-of-the-pragmatic-semantics-of-legal-conceptual-change/. Accessed 26 May 2023. 98 Ibid.

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institutional and intellectual efforts, we consider, were less needed for CT offenses which take their roots in and very much replicate ordinary criminal law norms and reasoning. Several reasons for ensuring the coexistence of and recourse to both IHL and CT norms could not be fully developed in this chapter and surely deserve more attention. As briefly mentioned, actors of domestic criminal justice systems would certainly appear more impartial by investigating, prosecuting and sentencing individuals for war crimes conducted by all parties to the conflict. It suffices to take one type of war crime as an example to conclude that members of all parties to the conflict, and not just members of non-state armed groups, could and should be prosecuted for such war crimes in the Sahel region. Throughout the past decade, sexual violence war crimes have been reported in the region.99 Recently, not only non-state armed groups but also the Malian Defence and Security Forces have been reported to be implicated in cases of gang rape, forced marriage, abduction and sexual slavery, sometimes only a few days after sexual violence actually occurred.100 On 9 September 2022, five days after the reported acts of sexual violence took place, several media started spreading testimonies from inhabitants of Nia Ouro, a village in central Mali, revealing cases of rape and sexual assault committed by mercenaries of the Russian private military company Wagner upon arrival in the region accompanied with the Malian Armed Forces (FAMA).101 On a practical and operational level, which were not the objects of the present study, the difficulty in prosecuting and judging acts of terrorism with IHL also relates to the coexistence, in the same complex conflict security cosmos of the military forces and law enforcement personnel. This coexistence, among other things, renders the collection of evidence difficult. Even more problematic is the lack of coordination between actors of the judiciary, law enforcement actors and military personnel. For instance, there is no system in place facilitating the participation of a judiciary police unit in the counterterrorism military operations conducted nationally or transnationally with the G5 Sahel Joint Task Force.102 Such a unit could preserve some pieces of evidence in fields and moments that are difficult-to-access and where proofs easily disappear; this would allow actors of the judiciary to establish transcripts respecting the evidentiary procedures and thresholds in preliminary investigations. The necessity to establish cooperation channels and procedures in conflict situations shows how problematic is the disconnection between two communities traditionally thought of as separated along two distinct legal frameworks—military personnel in charge of the application of IHL on the one hand, and actors of the criminal justice system in charge of criminal law’s application on the other hand. 99

United Nations Security Council (2022) Report of the Secretary-General: Conflict-related sexual violence, UN Doc. S/2022/272, p 27. 100 UN Security Council (2021) Report of the Secretary-General: Conflict-related sexual violence, UN Doc. S/2021/312. 101 Roger 2022. 102 The need for cooperation is mentioned in UNODOC 2018, p 60: “while the need for cooperation is taken into consideration, no institution, procedure or infrastructure seems to be put in place, at least back when the report was drafted, to host and organise such cooperation”.

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Thinking in terms of one hydra-headed community, organized around common processes and mechanisms, and altogether constituting a field within which sets of practices and strategies can exist and flourish is a way for IHL to emerge, not just as a legal framework, a static set of rules waiting to be applied, but as a web of collective representations, as a lens to look at and act upon the word.

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Stronski P (2023) Russia’s Growing Footprint in Africa’s Sahel Region. Carnegie Endowment for International Peace. https://carnegieendowment.org/2023/02/28/russia-s-growing-footprint-inafrica-s-sahel-region-pub-89135. Accessed 26 May 2023 Szasz P (2002) The Security Council Starts Legislating. American Journal of International Law 4 (96): 901–905 Thynne K (2021) Better a war criminal or a terrorist? A comparative study of war crimes and counterterrorism legislation. International Review of the Red Cross (103): 916–917 TRIAL International (2020) Universal Jurisdiction Annual Review 2020: “Terrorism and International Crimes: Prosecuting Atrocities for What They Are”. https://www.ecchr.eu/en/publication/ terrorism-and-international-crimes-prosecuting-atrocities-for-what-they-are/. Accessed 26 May 2023 UNOCHA (2022) Sahel Dashboard: Humanitarian Overview (as of 13 September 2022), https:// www.unocha.org/publications/report/nigeria/sahel-dashboard-humanitarian-overview-13-sep tember-2022. Accessed 29 September 2023 UNODOC (2012) Lutte contre le terrorisme dans la région du Sahel: cadre juridique, techniques d’enquête et coopération policière. Module de formation à l’attention des Officiers de Police Judiciaire (OPJ) du Burkina Faso, du Mali, de la Mauritanie et du Niger [Combating terrorism in the Sahel Region: legal framework, investigating and judicial cooperation techniques. Training module for Judicial Police Officers (OPJ) from Burkina Faso, Mali, Mauritania and Niger]. https://www.unodc.org/documents/terrorism/Publications/Lutte_contre_le_ter rorisme_dans_la_region_du_Sahel_2012/Lutte_contre_le_terrorisme_Sahel.pdf. Accessed 26 May 2023 UNODOC (2018) Curriculum de formation à l’attention des écoles de formation judiciaire et d’application à la loi. Lutte contre le terrorisme au Mali [Training curriculum for judicial and law enforcement schools. Combating terrorism in Mali]. https://pcjs-sahel.org/wp-content/upl oads/2019/03/Mali-Curriculum-de-formation-jan-2018.pdf. Accessed 26 May 2023 Van Poecke T, Verbruggen F, Yperman W (2021) Terrorist offences and international humanitarian law: The armed conflict exclusion clause. International Review of the Red Cross (103): 916–917, 295–324 Vermeersch E, Dal Santo E (2020) Violent Extremist Offenders Rehabilitation and Reintegration in Prison: A focus on the challenges and way forward in Mali. United Nations Interregional Crime and Justice Research Institute (UNICRI). https://unicri.it/news/Violent-Estremist-Offenders-Art icle. Accessed 26 May 2023 Weill S (2020) Transnational Jihadism and the Role of Criminal Judges: An Ethnography of French Courts. Journal of Law and Society 1 (47): S30–S53 Weizmann N (2022) Respecting international humanitarian law and safeguarding humanitarian action in counterterrorism measures: United Nations Security Council resolutions 2462 and 2482 point the way. International Review of the Red Cross (103): 916–917

UN Documents United Nations General Assembly (2020) Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism Fionnuala Ní Aoláin, UN Doc. A/75/337 United Nations Security Council (2019) Report of the Secretary-General: Protection of civilians in armed conflict, UN Doc. S/2019/373 United Nations Security Council (2021) Report of the Secretary-General on the Situation in Mali, UN Doc. S/2021/1117 United Nations Security Council (2022) Report of the Secretary-General on the Situation in Mali, UN Doc. S/2022/278

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Cases International Criminal Tribunal for the Former Yugoslavia ICTY, Prosecutor v. Tadic, Trial Judgement, 7 May 1997, Case No. IT-94-1-T ICTY, Prosecutor v. Muci´c et al., Trial Judgement, 16 November 1998, Case No. IT-96-2 ICTY, Prosecutor v. Slobodan Miloševi´c, Rule 98 bis Decision, 5 February 2004, Case No. IT-02-54 ICTY, Prosecutor v. Halilovi´c, Trial Judgement, 16 November 2005, Case No. IT-01-48 ICTY, Prosecutor v. Limaj et al., Trial Judgement, 30 November 2005, Case No. IT-03-66 ICTY, Prosecutor v. Hadžihasanovi´c & Kubura, Trial Judgement, 15 March 2006, Case No. IT-01-47 ICTY, Prosecutor v. Marti´c, Trial Judgement, 12 June 2008, Case No. IT-95-11 ICTY, Prosecutor v. Mrkši´c et al., Trial Judgement, 27 Sept 2007, Case No. IT-95-13/1 ICTY, Prosecutor v. Haradinaj et al., Trial Judgement, 3 April 2008, Case No. IT-04-84 Appeal Court of Bamako, Ministère public c. Fawaz Ould Ahmed, Abdrahamane Maïga, Moussa Maïga and Adama Maïga, Arrêt de mise en accusation et de renvoi n°462 [Judgment of indictment and dismissal No. 462], 26 May 2020 Appeal Court of Bamako, Ministère public c. Fawaz Ould Ahmed, Arrêt de mise en accusation et de renvoi n° 506 [Judgment of indictment and dismissal No. 506], 1 September 2020 Appeal Court of Bamako, Rôle Journalier: Session d’Octobre 2021 de la Cour d’Assises Siégeant à Bamako [Daily Role: October 2021 Session of the Assize Court Sitting in Bamako], 27 September 2021 Appeal Court of Bamako, Ministère public c. Boukari Housseini, Arrêt de mise en accusation et de renvoi n°644 [Judgment of indictment and dismissal No. 644], 17 November 2020 Appeal Court of Bamako, Ministère public c. Boukari Housseini, Judgement, 7 October 2021 Appeal Court of Bamako, Ministère public c. Ibrahim Djibo, Judgement, 6 October 2021 Appeal Court of Bamako, Ministère public c. Hadadoum Ag Idar, Judgement, 8 October 2021 Appeal Court of Bamako, Ministère public c. Ousmane Dicko and Ahma Mahamadou, Arrêt de mise en accusation et de renvoi n°227 [Judgment of indictment and dismissal No. 227], 27 April 2021 Appeal Court of Bamako, Ministère public c. Taher Amni, Arrêt de mise en accusation et de renvoi n°707 [Judgment of indictment and dismissal No. 707], 29 December 2020 Appeal Court of Bamako, Ministère public c. Taher Amni, Judgement, 7 October 2021

Treaties International Geneva Conventions of 1949 and Additional Protocols 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, UNTS 970 (entered into force 21 October 1950) Geneva Convention Relative to the Protection of the Wounded, Sick and Shipwrecked of Armed Forces at Sea, opened for signature 12 August 1949, UNTS 971 (entered into force 21 October 1950) Geneva Convention Relative to the Treatment of Prisoners of Wars, opened for signature 12 August 1949, UNTS 972 (entered into force 21 October 1950) Geneva Convention Relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, UNTS 973 (entered into force 21 October 1950)

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

National Statute: Loi n°08-025 du 23 juillet 2008 portant répression du terrorisme au Mali [Law No. 08-025 of July 23, 2008 on the Repression of Terrorism in Mali] Statute: Loi n°084-2015/CNT portant modification de la loi n°060-2009/AN du 11 mars 2010 portant répression d’actes de terrorisme au Burkina Faso [Law No. 084-2015/CNT amending Law No. 060-2009/AN of March 11, 2010 on the repression of acts of terrorism in Burkina Faso] Statute: Loi n° 2010.035 du 23 juillet 2010 relative à la lutte contre le terrorisme en Mauritanie [Law No. 2010.035 of July 23, 2010 on the fight against terrorism in Mauritania] Statute: Loi N°060-2009/AN du 11 mars 2010 portant répression d’actes de terrorisme au Burkina Faso [Law No. 060-2009/AN of March 11, 2010 on the repression of acts of terrorism in Burkina Faso] Decree: Ordonnance n° 2011-13 du 27 janvier 2011 modifiant et complétant certaines dispositions du code de procédure pénale au Niger [Decree No. 2011-13 of January 27, 2011 amending and supplementing certain provisions of the Code of Criminal Procedure in Niger] Statute: Loi n°2013-016 du 21 mai 2013 portant modification du code de procédure pénale malien [Law No. 2013-016 of May 21, 2013 amending the Malian Code of Criminal Procedure] Statute: Loi n°016-2016/AN relative à la lutte contre le blanchiment de capitaux et le financement du terrorisme au Burkina Faso [Law No. 016-2016/AN relating to the fight against money laundering and the financing of terrorism in Burkina Faso] Decree: Ordonnance n°2022-003/PRES-TRANS portant création d’une zone d’intérêt militaire pour les opérations dans la Région de l’Est, 22 juin 2022 [Decree No. 2022-003/PRES-TRANS creating a zone of military interest for operations in the Eastern Region, 22 June 2022]

Julien Antouly, Ph.D. Candidate in International Humanitarian Law at the University of Paris Nanterre. Rebecca Mignot-Mahdavi, Assistant Professor at Sciences Po Law School, (Ph.D. in Law, European University Institute & Ecole des Hautes Etudes en Sciences Sociales).

Part II

Focus Section: International Humanitarian Law, and the Russian Aggression Against Ukraine

Chapter 5

Who is at War? On the Question of Co-belligerency Marcela Prieto Rudolphy

Contents 5.1 5.2 5.3 5.4

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Assistance and Co-belligerency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Revisionism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Humanitarian View: Reducing Suffering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4.1 The Case for (and Against) Disobedience . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4.2 Peace, Suffering, and the Rights of the Innocent . . . . . . . . . . . . . . . . . . . . . . . . . . 5.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract When does a state, by assisting one of the parties to an international armed conflict (IAC), become a party to it? Although the doctrinal answer to this question is somewhat unsettled, this chapter does not dispute or defend a specific doctrinal view. Instead, it explores the tension between philosophical accounts of the ethics of war and international humanitarian law (IHL), as it arises in the context of co-belligerency. After canvassing different doctrinal answers, the chapter discusses McMahan’s and similar revisionist views and to what extent they conflict with IHL’s positive answer to the question of co-belligerency. Then, the chapter argues that the ‘humanitarian view’ can partially solve this conflict, but it is still open to an important objection concerning IHL’s ability to reduce suffering, particularly in the long term. In order to dispel this objection in a morally attractive way, we have to concede that sometimes IHL reduces suffering at the expense of the rights of the innocent. This concession, the chapter argues, raises overarching concerns about IHL’s moral coherence and standing. Keywords International humanitarian law · Co-belligerency · International armed conflict · Revisionism · Humanitarian view · Rule consequentialism

M. Prieto Rudolphy (B) Gould School of Law, University of Southern California, Los Angeles, USA e-mail: [email protected] Universidad Adolfo Ibáñez, Escuela de Derecho, Santiago, Chile © T.M.C. ASSER PRESS and the authors 2024 H. Krieger et al. (eds.), Yearbook of International Humanitarian Law, Volume 25 (2022), Yearbook of International Humanitarian Law 25, https://doi.org/10.1007/978-94-6265-619-2_5

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5.1 Introduction Who is at war?1 Or, more precisely, when does a state, by assisting one of the parties to an international armed conflict (IAC), become a party to it? This question has become the focus of considerable interest in the context of the conflict between Russia and Ukraine, particularly, regarding the assistance provided by many countries to the latter.2 The emphasis in the scholarly discussion has been on the doctrinal issues at stake. In this chapter, my aim is neither to dispute nor to defend a specific doctrinal answer to the question. Instead, I want to explore, and attempt to solve, the tension between philosophical accounts of the ethics of war and international humanitarian law (IHL), as it arises in the context of co-belligerency. As I will argue, one of the most morally attractive ways of solving this tension raises overarching concerns about IHL— concerns that are not easily solved, and that I do not attempt to solve here. Instead, I limit myself to pointing out the tension and some of its implications. The chapter proceeds as follows. Section 5.2 discusses how international law addresses the issue of co-belligerency through assistance to a party to an IAC. Section 5.3 discusses one of the predominant accounts in the ethics of war and its implications regarding co-belligerency. Section 5.4 explores what is known as ‘the humanitarian view’ as a way to solve the tension between IHL and the philosophical account. There are two main objections against the humanitarian view, and the chapter argues that the most promising way of dispelling one of them raises a pressing concern about IHL as a whole. Section 5.5 concludes.

5.2 Assistance and Co-belligerency The issue of state assistance to parties to an IAC raises various legal questions. Some of them relate to the jus ad bellum and the jus in bello; some of them relate to the law of neutrality; others to the rules on state responsibility. Although assistance—e.g., provision of weapons or intelligence, and access to, and use of, infrastructure—will often constitute a breach of the law of neutrality,3 breaching the law of neutrality doesn’t entail that the assisting state is now a party to the conflict. For example, states’ provision of weapons to Ukraine might violate neutrality duties. But it doesn’t make the assisting states parties to the conflict, nor does it entail that Russia could respond by using force against them.4 These questions, related to co-belligerency—who the parties to an IAC are, and at what point assistance to one of the parties to an IAC amounts to participation in it—are answered by the 1

Schmitt 2022b. See e.g. AJIL 2022. 3 Some argue that the UN Charter has modified the law of neutrality. See Hathaway and Shapiro 2022; Schmitt 2022a. 4 But see Bradley and Goldsmith 2005; Bridgeman 2010. Against, see Ingber 2017. 2

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jus ad bellum and the jus in bello. Nonetheless, the exact contours of that answer remain somewhat unsettled.5 Traditionally, for a state to be considered party to an IAC, an act of war seems to have been required.6 But this still leaves open which acts of assistance count as acts of war. A high threshold, consistent with the UN Charter’s prohibition on the use of force, would require that assistance rises to the level of an armed attack or a resort to armed force between states.7 Alternatively, one might posit that when an IAC is ongoing, the threshold of ‘armed attack’ is too high, and any assistance that constitutes direct or material participation in hostilities would suffice to make the assisting state a party to the conflict.8 In non-international armed conflicts (NIAC), the ICRC has favored a support-based approach, whereby the decisive element to determine co-belligerency is the directness of the contributions made by the assisting parties to the collective conduct of hostilities.9 Several scholars think this approach might be applicable to IACs too.10 Finally, for the purposes of classifying conflicts into IACs or NIACs, the International Criminal Tribunal for the Former Yugoslavia (ICTY) famously developed the ‘overall control’ test, according to which, if the State wields control over organized military groups not only “by equipping or financing the group, but also by coordinating or helping in the general planning of its military activity”, regardless of whether the State has issued specific instructions, the conflict is rendered international in character.11 Although the test was designed to classify conflicts,12 it might affect co-belligerency: once a party has overall control of organized armed groups, the conflict becomes an IAC and the party with overall control, a co-belligerent. These three alternatives are ‘collectivist:’ the focus is on a collective agent (the state). Under these ‘collectivist’ thresholds for co-belligerency, some acts, such as using force against Russian airplanes to enforce a no-fly zone in cooperation with Ukraine, would clearly make the assisting states parties to the conflict.13 Others, like 5

Schmitt 2022a. Greenwood 2008; Wentker 2022. 7 Droege and Tuck 2017; Ferro and Verlinden 2018; Hathaway and Shapiro 2022; Heintschel Von Heinegg 2007, pp 552–553. 8 Dinstein 2012, 25. Similarly, requiring direct or indirect intervention in the conflict through engagement in the hostilities, planning and supervising military operations of another state, or even making military bases available, see Grignon 2022; Greenwood 2008, 58; Ambos 2022; Oppenheim 1912 (paras 320; 358–359) requires ‘hostilities’. 9 Ferraro 2015. 10 Schmitt 2022b; Droege and Tuck 2017; Wentker 2022. 11 ICTY, The Prosecutor v. Dusko Tadi´ c Judgement of the Appeals Chamber, 15 July 1999, IT-941-A, (Tadi´c 1999), paras 99–137 12 The International Court of Justice (ICJ) later found the test unpersuasive in matters of state responsibility and left its application to the question of conflict classification somewhat open. ICJ, Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment of 26 February 2007, paras 402–407. 13 Wentker 2022. 6

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merely supplying weapons, clearly would not.14 Under lower standards, some acts could meet the required threshold—e.g., intelligence sharing, assistance in planning military operations—depending on the circumstances.15 Once an assisting state becomes party to an IAC, its military objects become lawful targets under the jus in bello. Of course, the question regarding permissible targets is not just determined by co-belligerency. IHL also provides for a more individualistic assessment, whereby individuals from non-belligerent states who directly participate in hostilities are also permissible targets under the jus in bello. But the fact that individuals from non-belligerent states directly participate in hostilities cannot, in and of itself, make those non-belligerent states parties to the conflict. The latter requires one of the alternatives just explored. Under the jus ad bellum, however, a state engaged in an illegal use of force cannot use force against the co-belligerents of the victim state, who are engaged in a legal use of force.16 Further, states violate international law if they assist the aggressor state (though they do not, on the basis of that violation, become co-belligerents).17 In sum, international law leaves the question of when assisting states become parties to an IAC somewhat unsettled. There are three plausible answers: one requires an armed attack; the second one establishes a slightly lower threshold; and the third one requires ‘overall’ control. But once a state is party to an IAC, its military objects, including combatants, become lawful targets under the jus in bello.

5.3 Revisionism In recent years, some moral philosophers have developed a view about the ethics of war (revisionism) that puts into question fundamental tenets of IHL. Much has been written about the implications of revisionism regarding the symmetry thesis and the principle of distinction.18 But there is almost no discussion of its implications regarding other areas of IHL, such as co-belligerency. Yet, as we will see, the revisionist view has important implications regarding the latter too. Generally speaking, revisionists argue that only just combatants fighting a “just war” (i.e., a war with a just cause) have a moral justification for harming unjust combatants.19 Although there are different versions of revisionism, most agree that unjust combatants are liable to defensive harm, and some, like McMahan, Frowe, and Tadros, argue that civilians from the unjust side of the war can also become liable to attack.20 In McMahan’s famous formulation of the view both unjust combatants 14

Ibid. Ibid. 16 Schmitt 2022a; Wentker 2022. 17 Hathaway and Goodman 2022. 18 See, e.g., Lazar 2015a. 19 McMahan 2009; Frowe 2014; Tadros 2020. 20 Ibid. 15

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and civilians can become permissible targets if they forfeit their rights against harm by being morally responsible for an objectively wrongful threat of harm.21 Just combatants, on the contrary, by posing justified threats of harm, cannot become liable to attack. Revisionism is also often—though not necessarily—committed to a reductivist individualist view about war.22 This means that war can be understood as several individual instantiations of self-defense (individualism), and that the morality of war is continuous with the morality of peace (reductivism).23 McMahan’s version of revisionism, like all individualist views, focuses on individual actions, and in particular, on individuals’ moral responsibility regarding those actions.24 As a result, individuals who are morally responsible for unjust threats of harm can become liable—i.e., they forfeit their rights—to defensive harm, even if they are not posing threats themselves.25 In some accounts of revisionism, causal contribution to the threat, with the required degree of moral responsibility, is enough to render someone liable, regardless of the agent’s proximity—temporal and spatial— to the threat.26 Insofar as harming the agent is proportionate and necessary to avert the threat, they are liable to defensive harm. McMahan’s and similar revisionist views have some attractive features. Mainly, individuals who pose objectively justified threats of harm (often those who fight or contribute to a war with a just cause) are impermissible targets. This reflects a common intuition, which is that just and unjust wars are not morally equal. But the revisionist view, in the version that allows it to explain most killing in war, tends to collapse into total war.27 It expands, as a matter of morality, permissible targets into anyone—civilians and combatants—who is responsible for an unjust threat of harm. Applied to the question of co-belligerency via assistance, this view has radical implications.28 In an individualist view like McMahan’s, the actions of individuals— one or many—are the only focus of moral attention. Thus, revisionism might have something to say about whether it’s permissible for a state’s representatives to assist another state involved in an IAC and whether in doing so, the state’s representatives become liable to attack. But a state’s so-called “co-belligerency”, however we define it, cannot entail, in and of itself, that the state’s military objectives—including combatants—have now become morally liable to attack. 21

McMahan 2009. Lazar 2015b. For example, one might think that individual actions are all that matters from the viewpoint of morality, but that war gives reasons for killing that are not present during peacetime. In that case, one would be a non-reductivist individualist. Tadros, who is a reductivist, has parted ways with some dimensions of individualism in recent work. Tadros 2020. 23 Lazar 2015b. 24 McMahan 2009. 25 Ibid. 26 See, e.g., Frowe 2014; Tadros 2020. 27 See Lazar 2010. 28 Most revisionists do not think that the law should reflect these implications. See, e.g., McMahan 2008. 22

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The moral question about liability must be answered individually. Revisionists don’t generally think that institutions, like states, can alter fundamental moral rights, nor are they likely to endorse an account whereby individuals, just by being members of a state, can lose rights against harm simply because the political representatives of that state have decided to assist a threat. This would turn on a collectivist account of liability, which revisionists, for powerful moral reasons, don’t generally endorse. It is, of course, open to revisionism to say that a state will be party to an IAC when a sufficient number of its individuals become liable to defensive force through their acts of assistance to an unjust threat. But this has implausible implications, even as a matter of description. It would entail, for example, that if 50%+one of a state’s population individually assists an unjust threat posed by another state, then we could describe that state as “party to the IAC”, even if those individuals were providing such assistance against the will, and without the consent of, the political representatives of their own state. Under revisionism then, whether a state is “party to an IAC” does not have any immediate implications regarding who are permissible targets. In international law, once a state is a co-belligerent, its military objectives become lawful targets under the jus in bello. But under revisionism, this cannot be so as a matter of morality. The question about liability to defensive harm remains individualist: assistance to an unjust threat can make someone liable to defensive harm insofar as one is morally responsible for the assistance, in the relevant sense. This answer implies, on the one hand, that individuals who assist a state engaged in a just war and thus, generally contribute to posing justified threats of harm, cannot become morally liable to defensive harm—even if their assistance amounts to armed attacks or direct participation in hostilities.29 This result is somewhat inconsistent with positive jus ad bellum—which prohibits assistance to illegal wars and force against legal uses of force—given that wars can be illegal but just, or legal but unjust.30 And it is obviously inconsistent with the symmetrical nature of positive jus in bello, which does not distinguish between parties fighting legal and illegal wars. On the other hand, individuals who assist a state engaged in an unjust war—and, as a result, contribute to posing unjustified threats of harm—can become morally liable to defensive harm, if certain conditions obtain.31 This is true regardless of whether such assistance rises to the level of an armed attack or participation in hostilities. And it is true even if those who contribute would qualify as civilians under IHL, and even if the assistance is provided not through the state but through private channels. This result is obviously at odds with international law. Under certain versions of revisionism, like McMahan’s and Frowe’s, the threshold for becoming a lawful target through acts of assistance is individualist, not state-based. And that individualist 29

Revisionism is interested in individual actions. Thus it is possible that assistance to a war with a just cause makes someone liable to defensive harm if it is assistance to prohibited acts, like say, certain war crimes or genocide. McMahan 2009. 30 Prieto Rudolphy 2023. 31 Liability is instrumental, and often involves internal (or external) constraints, known as narrow proportionality, necessity, and wide proportionality. See McMahan 2009.

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threshold is lower than any of the collectivist thresholds set by positive IHL (an act of war, direct participation in hostilities, overall control) and the individualist threshold applicable to those who directly participate in hostilities but belong to non-belligerent states.

5.4 The Humanitarian View: Reducing Suffering The fact that revisionism has implications for co-belligerency that are inconsistent with international law is not an objection against revisionism. Revisionism doesn’t aim to give an account of the laws of war—it only aims to provide a moral theory about war. Of course, one might doubt that the revisionist view is correct, as a matter of morality.32 We might question whether someone can become liable to defensive harm when one is not posing an immediate threat, or we might embrace some form of pacifism. But even if revisionism is incorrect in these ways, it is likely correct about the moral asymmetry that exists between just and unjust wars. Perhaps more importantly, the revisionist view—at least regarding the moral asymmetry between just and unjust combatants—is the predominant view amongst philosophers writing about the ethics of war.33 And, although there are different plausible interpretations regarding IHL’s positive threshold for co-belligerency, all of them are at odds with revisionism. This raises a question of justification worth answering. Let us focus on the prohibitive dimension of the problem: why should we accept the state-based legal threshold required by IHL for assistance to become co-belligerency if such threshold is individualist and much lower in morality for those who contribute to unjust threats of harm? There are different ways to construct such a justification,34 but let us focus on a view that is arguably present in international law: the idea that one—if not the primary—goal of IHL is to reduce suffering during war, to limit its damage.35 This is

32

See e.g., Prieto Rudolphy 2023; Dill and Shue 2012. Adil Haque, who is committed to individualism and reductivism, does not think that civilians from the unjust side of a war are liable. See Haque 2017. 33 See Lazar 2015b, p 22, noting that the orthodox view has come under sustained attack in philosophy, and Tadros 2014, p 55, noting that it is “uncontroversial that combatants on the unjust side are liable to be killed”. Against revisionism see Waldron 2010; Dill and Shue 2012. 34 Haque 2017, for example, thinks that IHL performs a moral service for combatants. 35 The St. Petersburg Declaration, in its preamble, states that “the progress of civilization should have the effect of alleviating as much as possible the calamities of war.” The preamble of the fourth Hague Convention similarly notes that it is important to revise the general laws and customs of war, “either with a view to defining them with greater precision or to confining them within such limits as would mitigate their severity as far as possible.” See Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight, St. Petersburg, signed 11 December 1868, 138 Consolidated Treaty Series 297 (St. Petersburg Declaration), Preamble; Hague Convention (IV) Concerning the Laws and Customs of War on Land and the Regulations annexed thereto, (entered into force 26 January 1910) (The Hague Convention (IV)), Preamble.

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known as “the humanitarian view”,36 which adopts a rule-consequentialist approach to the justification of IHL. Under the humanitarian view, we would argue that IHL’s positive threshold for co-belligerency is justified because it reduces more suffering than other, possible, thresholds. Those alternatives might be higher thresholds or a threshold closer to McMahan’s view. This would be the case with a threshold that granted a permission to the legal side of a war to target anyone who, with the required degree of moral responsibility, assists the illegal side of the war. IHL’s threshold would then be justified if we could show that it reduces more suffering than other alternatives. Compared to a threshold consistent with the revisionist morality—and to other, lower thresholds—this is plausible.37 Given that every state is likely to claim that their war is legal and/or just, IHL’s higher threshold prevents them from employing that argument to target those who, with the required threshold of moral responsibility, are assisting states engaged in an IAC. Further, given the considerable epistemic difficulties in ascertaining who is assisting who and individuals’ degree of moral responsibility for that assistance, if left to their own devices, states would likely make mistakes. Finally, wars would quickly escalate under a lower threshold, since many states and individuals would find themselves involved in armed conflict as a result of each state targeting anyone who assists other states at war. These arguments provide a plausible case in favor of IHL’s threshold, which effectively prohibits attacks against those who assist other states unless such assistance is provided by the state and rises to a certain level or an individual from a non-belligerent state is directly participating in hostilities. It does seem then that IHL’s threshold reduces considerable suffering: the suffering of those who would be targeted if such threshold were closer to the revisionist view. But this justification of IHL’s threshold faces two important objections. Both objections arise out of an obvious point about the humanitarian view and, in fact, about any view that is rule-consequentialist in nature: they are unable to offer categorical support for the rules they endorse.38 That is, IHL’s threshold for co-belligerency is justified only insofar as it is true that it does reduce more suffering than other alternatives.39 But we might question whether (1) it does so in every instance and under any circumstances and (2) in the long term. The first objection then concerns the temptation to disobey the rule and act on first-order reasons (i.e., in order to reduce suffering) under certain circumstances. This objection has limited power. The second objection—whether IHL’s threshold effectively reduces suffering, particularly in the long term—is harder to dispel, and the most morally attractive way of doing so generates destabilizing implications for IHL as a whole. 36

See, e.g., Haque 2017, p 38. McMahan 2008 discusses the humanitarian view regarding the prohibition on killing civilians and the symmetry thesis. 38 Kutz 2016, p 51. I briefly discuss these objections regarding the symmetry thesis in Prieto Rudolphy 2023. 39 Waldron 2010; Kutz 2016, p 51. 37

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Let us take them in turns.

5.4.1 The Case for (and Against) Disobedience The first objection against the humanitarian view is that there might be many scenarios where we could reduce more suffering if we disobeyed IHL’s threshold. For example, some might argue that if the just side could target those who are providing weapons to the unjust side, the unjust party would eventually run out of supplies. This would make for a shorter war, and a shorter war would bring about less suffering than a longer one. Individuals will thus be tempted to engage in first-order reasoning about the optimal course of action—i.e., the course of action that reduces the most suffering— rather than abiding by the threshold.40 Given that this might have destabilizing effects on compliance with the rule, we should keep the rule’s justification and purpose hidden, so as to make individuals think that IHL’s threshold is, as a matter of morality, categorical in nature—that it enshrines an absolute moral prohibition.41 Hiding the justification of the threshold would potentially require two classes of people: those who would know what the aims of the threshold are, and those in charge of making targeting decisions, who would be kept in the dark. This outlook, famously termed “Government-house utilitarianism” by Bernard Williams,42 presents many problems. It is manipulative, of course, but it is also likely to demand highly coercive institutions and political restrictions to be sustainable.43 There are two issues here. One concerns whether the humanitarian view necessarily requires keeping the justification hidden. This is unlikely to be the case. There are, of course, pro tanto reasons for doing so, but, all things considered, the case for secrecy is not very persuasive: maintaining the justification hidden seems very difficult and costly, and if such efforts failed—as they are likely to do—the rule’s standing in society might become even more fragile. The second issue concerns the humanitarian view’s inability to offer categorical support for the threshold and the temptation to disobey the rule that this generates. But although it is true that the case for disobedience is impossible to eliminate entirely, we should not overestimate its power. There are several weighty reasons for complying with IHL’s threshold, even if its underlying justification is known. First, it’s possible for agents to understand that there are times when they are called to be ideal prescribers—that is, those who know and act on the basis of the purpose of the rule—and times when they should uncritically follow the rule.44 There 40

See Haque 2017, p 42, making a similar point. Kutz 2016, p 51. 42 Williams 1985, pp 108–109. 43 Williams 1973, p 139. 44 Hare 1981, p 45. Hare called the ideal prescriber ‘archangel’ and the uncritically obedient, the ‘prole’. 41

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are huge epistemic difficulties in war, and as a result, it is quite implausible that any given agent will know better than the rule which course of action will reduce more suffering.45 Further, agents will often be poorly positioned to make an impartial decision on the matter, given that their own political community’s existence might be at stake. In such circumstances, agents might be prone to underestimating the bad effects of disobeying the law and overestimating the extent to which disobeying it would better further its aims.46 Agents can thus understand why in war they will be often poorly positioned to act on first-order reasons—to be ideal prescribers—but better positioned to follow the rule. Second, law itself can introduce additional incentives against disobedience. For example, other rules in the legal system might constrain, partially or completely, the liberty of agents in resorting to the rule’s purpose to justify non-compliance.47 Third, any agent thinking about disobeying the threshold must consider not only the reduction in suffering that she will obtain with her disobedience, but also the effects of her violation on the legal regime, both in the short and the long term.48 As Waldron has argued regarding the prohibition on targeting civilians, the point of having and upholding a certain rule can be so important as to trump any possible good outcome that could come from disobedience.49 Although in most cases, violating conventions has trivial consequences, in others, those consequences can be quite serious.50 This argument is often dismissed because individual instances of non-compliance with legal rules are unlikely to destabilize the legal rule or system, and some violations can be conducted in secret.51 However, these arguments lose some force when applied to the laws of war. These laws depend largely on self-application,52 and there is a limited set of actors who apply them. One violation can thus have great destabilizing power,53 and it would be very difficult—if at all possible—to keep violations secret. This is especially—but not exclusively—true of violations by official actors. As Murphy has argued, the bad effects of official lawlessness differ fundamentally in magnitude from those of non-official and individual noncompliance, and they become more severe the higher up the political (and in this case, also military) hierarchy the individual is positioned in.54 Finally, the consequences of disobedience must include not only the effects of one violation on the legal system, but also, the possibility of retaliation from the other

45

Focusing on epistemic difficulties, see, e.g., Haque 2017; Raz 2002. Dan-Cohen 1984, pp 625, 625, 638. 47 Rawls 1955, pp 3, 16. 48 Brandt 1972, p 147. 49 Waldron 2010, pp 104–110. 50 Ibid. 51 McCloskey 1957, p 472; Smart 1973, pp 57–59; Rawls 1955, p 15. 52 Waldron 2015, p 80. 53 Waldron 2010, pp 104–110; Waldron 2015, pp 87–88; Murphy 2018, pp 120–121. 54 Murphy 2018, pp 120–121. 46

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side. Disobedience is likely to lead to total war, thus resulting in more suffering than complying with the threshold. These arguments show why disobedience for the purpose of achieving immediate reduction of suffering is unlikely to be warranted in most cases, but they do not completely eliminate the case—or temptation—for disobedience. Yet, the fact that this temptation remains is not necessarily an objection against having the rule. The humanitarian view can justify IHL’s threshold and its categorical nature insofar as we distinguish the justification of the rule from the question of whether a particular agent, in a particular set of circumstances, should obey that rule.55 IHL’s threshold is justified then as the kind of rule we should have, and would benefit from, in the long term,56 provided that the case for disobedience remains exceptional.

5.4.2 Peace, Suffering, and the Rights of the Innocent A second objection against IHL’s threshold on the basis of the humanitarian view is that the threshold is self-defeating, that is, that it is bad at doing what it is supposed to do (i.e. reducing suffering), particularly in the long term. This, of course, is an empirical question. But one could argue that although IHL’s threshold might reduce suffering by constraining the damage caused by any given war, states, corporations, and individuals would be less likely to assist states involved in IACs if they knew that mere assistance, with the required threshold of moral responsibility, would make them parties to the conflict, and thus, lawful targets. If the incentives worked in this way, a much lower threshold might reduce more suffering than the current one by severely constraining states’ and private parties’ assistance to wars, and possibly wars’ duration. And by minimizing incentives to assist other states involved in IACs, a lower threshold might also contribute to, for example, lowering the production of weapons, and, perhaps, war would occur less often as a result. The moral case for severely restricting assistance to armed conflicts is not outright implausible. Assistance to legal uses of force—which is allowed under international law—will sometimes involve assistance to unjust uses of force. And contributions to just uses of force are themselves morally risky. War imposes grievous harm, directly or indirectly, on many people. Frowe, for example, has argued that third-party states will often lack a justification to assist just wars, given that they have other, less harmful and less costly, alternatives available to contribute to just causes.57 By contrast, the current, higher, threshold might incentivize assistance to armed conflicts, particularly in the case of states and private corporations. In the long term, this might result in entrenching the practice of war itself, as well as the currently 55

On the distinction between justifying a practice or a rule and an action falling under it, see Rawls 1955. 56 Rawls 1955, p 11. 57 Frowe 2022.

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existing war-supporting machinery.58 This might occur for different reasons. It might occur because an institutional focus on constraining war will eventually tend to institutional and societal neglect of questions pertaining to the justness or legality of those wars and whether, and to what extent, we should assist them.59 Or because assisting wars might become extremely profitable, and thus, there will be a vast supply of weapons readily available, resulting in longer, bloodier conflicts. But when war takes place more often, when it becomes “endless”,60 suffering is only stretched over time—it is not reduced. Finally, if we focus on the permissive dimensions of IHL’s threshold, we can see that a threshold closer to the revisionist view would entail that a state’s cobelligerency would have very limited impact on whether its own military objectives are lawful targets. This shift to an individualist assessment—if correctly applied— might actually lead to fewer permissible targets in certain conflicts than the current, state-based one, and thus, to significantly less suffering. I will come back to this later. That IHL’s threshold might be self-defeating in this way can be understood as a tension between the humanization of war and peace61 —a tension that might be internal to international law. We might, in fact, think that the latter is morally fragmented: while the jus in bello might aim to reduce suffering when war breaks out, the jus ad bellum might aim at eliminating war altogether.62 And while both goals— reducing suffering and eliminating war—can be pursued together, they can also clash dramatically. This is particularly the case when suffering is reduced in the short term, but war occurs more often, and lasts longer. Of course, this objection—that IHL’s threshold is self-defeating—can only be successful to the extent that we accept that, as a matter of morality, certain versions of revisionism are correct and individuals can lose rights against harm due to their acts of assistance. If we reject this claim, it is perfectly reasonable to respond to the objection by pointing out that there are limits to how IHL can aim at reducing suffering. It cannot do so at the expense of the fundamental rights of individuals. If this is true, then IHL’s threshold, although able to reduce some suffering by constraining the scope of war, also finds its justification in the moral prohibition against killing the innocent and, particularly, against using the innocent as means to an end. If such a moral prohibition exists, the case for lowering the legal threshold fails— even if the moral case for constraining assistance in war still obtains. But there is an important cost in making this argumentative move to defend IHL’s threshold—that 58

Moyn 2021; Arkin 2021; Megret 2012; Prieto Rudolphy 2023. Moyn 2021. 60 Ibid., p 13. 61 Moyn 2021. 62 The latter aspiration can be seen in the preamble to several treaties, such as The Hague Convention (IV), above n 35, Preamble; 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, UNTS 3 (entered into force 7 December 1978) (API), Preamble. Additionally, May 2008 has argued that one way of interpreting the UN’s purpose is to understand international law as generally committed to some form of pacifism. 59

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is, in holding that, in addition to reducing suffering, the threshold responds to a moral prohibition. Doing so raises overarching concerns about some rules central to IHL. If we agree that individuals cannot lose rights against harm due to acts of assistance, then it is likely that many unjust combatants are not liable to defensive harm— that they are morally prohibited targets. Private parties who knowingly assist unjust wars by, say, selling or providing weapons, not only contribute significantly to the commission of grievous moral wrongs, but often do so with higher degrees of moral responsibility than combatants on the lower end of the chain of command, who might have been coerced to fight. Thus, if we want to argue that these individuals, who often have higher levels of responsibility than some combatants, are not liable, we must likely accept that many unjust combatants, who have lower levels of moral responsibility, and who sometimes contribute negligibly to the war, are also not liable. But if many unjust combatants—who are lawful targets under the jus in bello—are not liable, then IHL does reduce suffering at the expense of the rights of the innocent: the rights of non-liable unjust combatants. And this would not be the only instance of IHL doing so. After all, combatants are lawful targets regardless of the nature of the wars they fight; once a state becomes a party to the conflict, its combatants become permissible targets regardless of their own individual circumstances; and collateral harm against civilians is not categorically prohibited. Reducing suffering at the expense of the rights of the innocent poses an almost unsurmountable justificatory challenge.63 It means that IHL deliberately fails to protect fundamental moral rights in order to reduce suffering. And whether in fact IHL succeeds in reducing suffering, particularly in the long term, remains uncertain. This raises a question about the permissive or “facilitative” dimensions of positive jus in bello64 —e.g., rules that make all combatants lawful targets in war and that allow for collateral harm against civilians. These facilitative dimensions are also present in IHL’s threshold for co-belligerency: once a state becomes a party to an IAC, its combatants become lawful targets as a result. In sum, even if certain revisionist views are true, IHL’s threshold for cobelligerency, in its prohibitive dimension, can be justified on the basis of the humanitarian view, but with important limitations. The humanitarian view can sustain a strong case for obeying the prohibitive dimensions of IHL’s threshold. However, it is subject to another objection: that the threshold is self-defeating (i.e., it is unable to reduce suffering, particularly in the long term.) This latter objection can be resisted if we argue that revisionism is incorrect, and individuals do not lose rights against harm through acts of assistance. But although doing so succeeds in justifying IHL’s threshold for co-belligerency in its prohibitive dimension, it also unearths questions about IHL’s facilitative dimensions, including in the context of co-belligerency: it raises the concern that IHL reduces suffering at the expense of the rights of the innocent, and whether, if so, IHL’s facilitative dimensions can be justified.

63 64

Prieto Rudolphy 2023; Kant 1983, para 8: 370; Rodin 2011, pp 459–460. Lieblich 2019.

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5.5 Conclusion I have explored the tension between IHL and the revisionist view in the context of the question of co-belligerency. I have argued that this tension can be solved, but that providing a satisfactory answer raises further questions about the facilitative dimensions of IHL and their justification. An argument in favor of lack of constraints in war does not follow from any of this. But it is important to acknowledge the fraught moral compromise that regulating war with a view to reducing suffering can involve and that valuable aims—reducing suffering, eliminating war—can conflict. Awareness of the moral compromise is, however, not enough. Moral compromises whereby suffering is reduced at the expense of the rights of the innocent should be put into question. And the aim of reducing suffering should also come with a commitment to control—and eventually eliminate—war.

References Articles, Books and Other Documents Ambos K (2022) Will a State Supplying Weapons to Ukraine Become a Party to the Conflict and Thus Be Exposed to Countermeasures? https://www.ejiltalk.org/will-a-state-supplying-wea pons-to-ukraine-become-a-party-to-the-conflict-and-thus-be-exposed-to-countermeasures/. Accessed 17 October 2022 American Journal of International Law (AJIL) (2022) The United States and Allies Provide Military and Intelligence Support to Ukraine.116 American Journal of International Law, 646–652 (2022) Arkin WM (2021) The Generals Have No Clothes: The Untold Story of Our Endless Wars. Simon & Schuster, New York Bradley CA, Goldsmith JL (2005) Congressional Authorization and the War on Terrorism. Harvard Law Review 118(7): 2047–2133 Brandt RB (1972) Utilitarianism and the Rules of War. Philosophy & Public Affairs 1(2): 145–165 Bridgeman T (2010) The Law of Neutrality and the Conflict with Al Qaeda. New York University Law Review 85(4): 1186–1224 Dan-Cohen M (1984) Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law. Harvard Law Review 97(3): 625–677 Dill J, Shue H (2012) Limiting the Killing in War: Military Necessity and the St. Petersburg Assumption. Ethics & International Affairs 26(3): 311–333 Dinstein Y (2012) War, Aggression, and Self-defence, 5th edn. Cambridge University Press, New York Droege C, Tuck D (2017) Fighting Together and International Humanitarian Law: Setting the Legal Framework (1/2). https://blogs.icrc.org/law-and-policy/2017/10/12/fighting-together-int ernational-humanitarian-law-setting-legal-framework-1-2/. Accessed 17 October 2022 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 97(900): 1227–1252 Ferro L, Verlinden N (2018) Neutrality During Armed Conflicts: A Coherent Approach to ThirdState Support for Warring Parties. Chinese Journal of International Law 17: 15–43 Frowe H (2014) Defensive Killing, 1st edn. Oxford University Press, Oxford

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Frowe H (2022) Liability for Wrongful Assistance: On Causing Unjust Harm in the Course of Suboptimal Rescue. Journal of Applied Philosophy 39(1): 23–37 Greenwood C (2008) Scope of Application of Humanitarian Law. In: Fleck D (ed) The Handbook of International Humanitarian Law, 2nd edn. Oxford University Press, Oxford, pp 44–79 Grignon J (2022) “Co-Belligerency” or When Does a State Become a Party to an Armed Conflict? Strategic Brief - 39 IRSEM Haque AA (2017) Law and Morality at War. Oxford University Press, Oxford Hare RM (1981) Moral Thinking: Its Levels, Method, and Point. Clarendon Press; Oxford University Press, Oxford Hathaway OA, Goodman R (2022) Why China Giving Military Assistance to Russia Would Violate International Law. https://www.justsecurity.org/80709/why-china-giving-military-assist ance-to-russia-would-violate-international-law/. Accessed 17 October 2022 Hathaway OA, Shapiro S (2022) Supplying Arms to Ukraine Is Not an Act of War. https://www. justsecurity.org/80661/supplying-arms-to-ukraine-is-not-an-act-of-war/. Accessed 17 October 2022 Heintschel Von Heinegg W (2007) Benevolent Third States in International Armed Conflicts: The Myth of the Irrelevance of the Law of Neutrality. In: Schmitt M, Pejic J (eds) International law and Armed Conflict: Exploring the Faultlines. Brill Nijhoff, Leiden, pp 543–568 Ingber R (2017) Co-Belligerency. Yale Journal International Law 42(1): 67–120 Kant I (1983) To Perpetual Peace. A Philosophical Sketch. In: Humphrey T (ed) Perpetual Peace and Other Essays. Hackett Publishing, Indianapolis Kutz C (2016) On War and Democracy. Princeton University Press, Oxford Lazar S (2010) The Responsibility Dilemma for Killing in War: A Review Essay. Philosophy & Public Affairs 38(2): 180–213 Lazar S (2015a) Sparing Civilians. 1st edn. Oxford University Press, Oxford Lazar S (2015b) Method in the Morality of War. In: Lazar S, Frowe H (eds) The Oxford Handbook of Ethics of War. Oxford University Press, Oxford, pp 19–40 Lieblich E (2019) The Facilitative Function of Jus in Bello. European Journal of International Law 30(1): 321–340 May L (2008) Aggression and Crimes Against Peace. Cambridge University Press, Cambridge McCloskey HJ (1957) An Examination of Restricted Utilitarianism. The Philosophical Review 66(4): 466–485 McMahan J (2008) The Morality of War and the Law of War. In: Rodin D, Shue H (eds) Just and Unjust Warriors: The Moral and Legal Status of Soldiers. Oxford University Press, Oxford, pp 19–43 McMahan J (2009) Killing in War. Oxford University Press, Oxford Megret F (2012) What Is the Specific Evil of Aggression? https://papers.ssrn.com/abstract=254 6732. Accessed 20 October 2022 Moyn S (2021) Humane: How the United States Abandoned Peace and Reinvented War, 1st edn. Farrar, Straus and Giroux, New York Murphy L (2018) The Normative Force of Law: Individuals and States. In: Gardner J, Green L, Leiter B (eds) Oxford Studies in Philosophy of Law, vol. 3. Oxford University Press, Oxford, pp 87–122 Oppenheim LF (1912) International Law. A Treatise, vol. 2. Longmans, Green and Co., London Prieto Rudolphy M (2023) The Morality of the Laws of War: War, Law, and Murder. Oxford University Press, Oxford Rawls J (1955) Two Concepts of Rules. The Philosophical Review 64(1): 3–32 Raz J (2002) Practical Reasons and Norms. Oxford University Press, Oxford Rodin D (2011) Morality and Law in War. In: Strachan H, Scheipers S (eds) The Changing Character of War. Oxford University Press, Oxford, pp 446–463 Schmitt MN (2022a) Providing Arms and Materiel to Ukraine: Neutrality, Co-Belligerency, and the Use of Force. https://lieber.westpoint.edu/ukraine-neutrality-co-belligerency-use-of-force/. Accessed 17 October 2022

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Schmitt MN (2022b) Ukraine Symposium - Are We at War? https://lieber.westpoint.edu/are-we-atwar/. Accessed 17 October 2022 Smart JJC (1973) An Outline of a System of Utilitarian Ethics. In: Smart JJC, Williams B (eds) Utilitarianism: For and Against. Cambridge University Press, Cambridge, pp 3–76 Tadros V (2014) Orwell’s Battle with Britain: Vicarious Liability for Unjust Aggression. Philosophy & Public Affairs 42(1): 42–77 Tadros V (2020) To Do, to Die, to Reason Why: Individual Ethics in War. Oxford University Press, Oxford Waldron J (2010) Torture, Terror, and Trade-offs: Philosophy for the White House. Oxford University Press, Oxford Waldron J (2015) Deep Morality and the Laws of War. In: Lazar S, Frowe H (eds) The Oxford Handbook of Ethics of War. Oxford University Press, Oxford, pp 80–96 Wentker A (2022) At War: When Do States Supporting Ukraine or Russia Become Parties to the Conflict and What Would That Mean? https://www.ejiltalk.org/at-war-when-do-states-suppor ting-ukraine-or-russia-become-parties-to-the-conflict-and-what-would-that-mean/. Accessed 17 October 2022 Williams B (1973) A Critique of Utilitarianism. In: Smart JJC, Williams B (eds) Utilitarianism: For and Against. Cambridge University Press, Cambridge, pp 77–150 Williams B (1985) Ethics and the Limits of Philosophy. Harvard University Press, Cambridge

Cases ICJ, Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment of 26 February 2005. ICTY, The Prosecutor v. Dusko Tadi´c, Judgement of the Appeals Chamber, 15 July 1999, IT-94-1-A.

Treaties Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight, St. Petersburg, signed 11 December 1868, 138 Consolidated Treaty Series 297. Hague Convention (IV) Concerning the Laws and Customs of War on Land and the Regulations annexed thereto, (entered into force 26 January 1910). 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, UNTS 3 (entered into forced 7 December 1978).

Marcela Prieto Rudolphy Associate Professor of Law, University of Southern California, Gould School of Law, Los Angeles, USA. Profesora Adjunta Extraordinaria, Universidad Adolfo Ibáñez, Escuela de Derecho, Santiago, Chile.

Chapter 6

“Inside” and “Outside”: Assessing the Russian Blockade Against Ukraine Alejandro Chehtman and Eduardo Rivera-López

Contents 6.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2 The Basic Legal Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3 How to Assess the Russian Blockade of Ukraine? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract In early May 2022, as part of its push to force Ukraine into submission, Russian ships established a blockade in the Black Sea. The main target of the blockade was Ukrainian exports, particularly those regarding foodstuffs. We examine the legality of the blockade under International Humanitarian Law. In particular, the question before us is whether the rules concerning naval blockades, which have been construed essentially to protect the populations “inside” an encirclement, should be considered to prohibit also actions which mainly harm individuals in third party states, “outside” of it. We suggest that whether the victims of the blockade are “inside” or “outside” the relevant encirclement is not decisive as to whether they are being wronged by the blockade. Nevertheless, we argue that it is not unlawful under IHL. The main reason for this is that it does not deprive individuals of access to indispensable foodstuffs but only increases their price (i.e. it does not violate the prohibition of starvation), nor ultimately causes them harms which are disproportionate vis-à-vis the direct and concrete military advantage anticipated. Indeed, the blockade affects affordability rather than availability of food and, in fact, high food prices are driven to a much larger extent by other factors, unrelated to the blockade. This conclusion, of course, does not mean that the blockade should not be deemed unlawful, in fact criminal, for being a constitutive element of conduct in violation of other rules of international law, notably the prohibition of aggression. A. Chehtman (B) Universidad Torcuato Di Tella, Buenos Aires, Argentina e-mail: [email protected] E. Rivera-López Universidad Torcuato Di Tella/IIF-SADAF-CONICET, Buenos Aires, Argentina e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2024 H. Krieger et al. (eds.), Yearbook of International Humanitarian Law, Volume 25 (2022), Yearbook of International Humanitarian Law 25, https://doi.org/10.1007/978-94-6265-619-2_6

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Keywords Ukraine war · Blockade · International Humanitarian Law · Starvation · Proportionality · Food supply

6.1 Introduction In early May 2022, as part of its push to force Ukraine into submission, Russian ships established a blockade in the Black Sea.1 Some commercial vessels were hit by Russian forces, and mines were laid along the sea, making it unsafe for navigation. The Russian military has further closed the Kerch Strait, tightening its control over the Sea of Azov, and stationed warships off Ukrainian ports.2 The main target of the blockade was Ukrainian exports, particularly those regarding foodstuffs. Ukraine’s president, Volodymyr Zelensky, claimed that the blockade could lead to starvation of millions of people around the world.3 US Secretary of State James Blinken similarly argued that the food supply of millions around the world has been held hostage by the Russian military. EU Foreign policy chief, Josep Borrell, called it a “real war crime”.4 In effect, according to the 2019 figures, Ukraine exported 42% of the world’s exports in sunflower oil, 16% of corn exports, 10% of barley exports and almost 9% of wheat exports.5 95% of Ukrainian exports depart via Black Sea ports.6 Allegations include the weaponization of commercial trade, or more directly of foodstuffs. The editors of this yearbook have kindly invited us to examine the legality of these actions. In particular, the question before us is whether the rules concerning naval blockades under International Humanitarian Law (hereinafter, IHL), which have been construed essentially to protect the populations “inside” an encirclement, should be considered to prohibit actions which do not harm the civilian population of the state subject to the blockade, but rather mainly harm individuals in third party states “outside” of it. Answering this question obviously requires identifying the basic provisions governing naval blockades, as well as the particular harmful consequences of this blockade for the relevant populations. But it further requires, or so we shall argue, clarifying the relationship between the two, that is, the way in which blockades harm individuals. Blockades are governed by specific rules on naval warfare but also through specific provisions against the starvation of the civilian population. More to the point, we 1

Some information suggests, by contrast, that the blockade began even before the full-scale invasion. See Wengle and Dankevych 2022. 2 Harris 2022. 3 Falk 2022. 4 Le Monde 2022. 5 Ritchie 2022. 6 Harris 2022. Although the blockade was eased in July, through the UN-led Black Sea Grain Initiative, it was resumed in late October, under contested pretenses. The Initiative, an unusual form of cooperation in the war, “had allowed more than 9 million tons of grain in 397 ships to leave Ukrainian ports”. See Macias 2022. In any event, the gap between 2021 and 2022 regarding total exports remains very significant.

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argue that, both from a legal and moral perspective, whether the victims of the blockade are “inside” or “outside” the relevant encirclement is not decisive as to whether they are being wronged by the blockade, even though it is less likely that those outside can be deprived of resources which are essential to their survival than those inside. In effect, it is widely acknowledged that the Russian blockade of Ukrainian ports contributes to depriving individuals in different parts of the world of foodstuffs essential for their nutrition (and in some cases, possibly, their survival). Nevertheless, despite the fact that we reject the normative relevance of whether victims are inside or outside the blockade, and that we acknowledge that the blockade contributes to world hunger,7 we reject that this suffices to condemn Russia, or Vladimir Putin specifically for that matter, under IHL. The main reason for this, we shall argue, is that the blockade does not deprive individuals of access to indispensable foodstuffs but only increases their price (i.e. it does not cause starvation), nor ultimately causes them harms which are disproportionate vis-à-vis the direct and concrete military advantage anticipated. That is, it affects their affordability rather than their availability and, therefore, although censurable on other grounds, it does not violate IHL. In fact, we argue that high food prices are ultimately driven to a much more significant degree by the gaps and biases of the international food systems currently in place than by any effect the blockade may have had. This, of course, does not mean that the blockade should not be deemed unlawful, in fact criminal, for being a constitutive element of conduct in violation of other rules of international law, such as the prohibition of aggression. We shall proceed as follows. Section 6.2 succinctly presents the basic legal framework regulating blockades under IHL. Section 6.3, in turn, identifies the way in which blockades harm civilians and examines whether, and the extent to which, the Russian blockade violates the ban on starvation as well as the relevant rules against disproportionate harm to civilians. Section 6.4 briefly concludes.

6.2 The Basic Legal Framework During much of modern history, blockades (even those that caused starvation of civilians) were considered a lawful method of warfare, particularly when it was necessary to bring the war to an end. This position was defended by classic writers, such as Hugo Grotius and Emmerich de Vattel, and boldly endorsed in Article 17 of the Lieber Code: “it is lawful to starve the hostile belligerent, armed or unarmed, so that it leads to the speedier subjection of the enemy.”8 The Hague Regulations of

7

See Sect. 6.3 below. See, respectively, Grotius 2013/1625, para 10; De Vattel 2015/1758, para 112; Instructions for the Government of Armies of the United States in the Field, 24 April 1863 (Lieber Code). The US only formally changed its position as late as 2015.

8

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1899 and 1907 were silent on the matter implicitly confirming this status.9 Even the ICRC at the time conceded the legitimacy of blockades and starvation as a method of warfare.10 Things have somewhat changed. IHL now contains relevant rules that allow us to condemn certain blockades on the grounds of the suffering they inflict on civilians. The first set of such rules pertains to the laws on naval warfare. While there currently is no comprehensive multilateral treaty regulating naval warfare, the San Remo Manual has been an influential effort which sought to codify and clarify the basic rules concerning armed conflicts at sea.11 The Manual defines maritime blockades as “the blocking of the approach to the enemy coast, or a part of it, for the purpose of preventing ingress and egress of vessels or aircraft of all States”.12 One of its key legal requirements is that it must be effective, as opposed to mere “paper” blockades. That is, blockades must be “maintained by a force sufficient really to prevent access to the coast of the enemy”.13 To satisfy this requirement, it suffices that the encirclement renders “ingress or egress of the blockaded area dangerous”.14 The Manual provides for two types of unlawful blockades. Paragraph 102(a) prohibits blockades that have “the sole purpose of starving the civilian population or denying it other objects essential for its survival”.15 Notably, though, it is virtually impossible that any particular action in war has a sole purpose; even a blockade whose primary purpose is to starve the civilian population would pass the test of paragraph 102(a). In the case under analysis, it would suffice for Russia to claim (plausibly) that it also sought to weaken Ukraine’s economy in order to pressure the state into submission. Paragraph 102(b), in turn, prohibits declaring or establishing a blockade which would violate the principle of proportionality, that is, when “the damage to the civilian population is, or may be expected to be excessive in relation to the concrete and direct military advantage anticipated from the blockade.”16 There are a number of issues with the application of the principle of proportionality in armed conflict, and particularly to blockades, that makes it ultimately of limited constraining power for

9

As Dannenbaum recalls, nor was the issue of deprivation by encirclement included in the (nonbinding) London Declaration Concerning the Law of Naval War (1909) which concentrated on the key features of blockade law that remain applicable today. Dannenbaum 2021, p 314. 10 Mulder and Van Dijk 2021, p 707. 11 Doswald-Beck 1995. The Manual is currently undergoing a substantial update. 12 Ibid., p 176. 13 Paris Declaration of April 16, 1856. See further, the 1909 London Declaration, Articles 2–3. A blockade must also be declared and notified as a necessary condition for its legality, specifying the date, geographical scope, etc., and it must be applied impartially. 14 Heintschel von Heinegg 2000, p 213. 15 Doswald-Beck 1995, para 102(a). 16 Ibid., para 102(b). Paragraph 103 provides that, if the civilian population is inadequately supplied, the blockading party “must provide for free passage of such foodstuffs and other essential supplies”. Paragraph 104 mandates the blockading party to “allow the passage of medical supplies for the civilian population or for the wounded and sick members of armed forces”.

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belligerents.17 We will discuss whether the Russian blockade satisfies this requirement in the following section. It may suffice here to note that the constraints these provisions impose on belligerents have been aptly considered “anemic”.18 By contrast, the most striking feature of this regulation is its failure to constrain blockades through the principle of discrimination. This seems readily objectionable (at least de lege ferenda). Blockades are a “blunt instrument” that “can have an impact on the innocent as much (often rather more) than enemy belligerents”.19 The Commentary to the Additional Protocols similarly admits that “it is a well-known fact that all too often civilians, and above all, children, suffer most as a result” of blockades.20 After WW1, Arnold-Foster recognized that the “weapon of blockade is one and indivisible, it cannot be cut in half. It is no good trying to distinguish between civil and military supplies, … between food and other commodities … [;] the weapon must be regarded as liable to be used in its entirety or not at all”.21 During WW2, many commentators similarly argued that “it was practically impossible to distinguish military provisions from food destined for the civilian population”.22 Critically, this type of impact over the civilian population is not merely foreseen, or an “incidental” harm in IHL parlance. As Clapham suggests, blockades have “often been aimed at deliberately creating suffering”.23 That is, a blockade generally “utilizes the populace’s suffering as a lever to pressure the enemy into surrender”.24 There is, thereby, room de lege ferenda to explore whether blockades should also be challenged on the grounds that they violate this further principle of IHL. The second set of rules relevant to examine the permissibility of the Russian blockade may fill this gap, as it specifically addresses starvation. As with blockades, IHL has hardly concerned itself with starvation of civilians as a method of warfare until fairly recently. As recently as WW2 every major power “weaponized mass hunger in the conduct of hostilities, causing enormous suffering and death”, even if Nazi Germany was the most famous for implementing the infamous “hunger plan” to eliminate “useless eaters”.25 Not even the siege of Leningrad, in which over a million Russians died, was considered a war crime.26 17

For useful discussion, see Dannenbaum 2021, pp 355 and ff. Ibid., p 335. Indeed, in the context of the Gaza blockade, different reports have come to contradictory conclusions as to whether they complied with these principles. For example, whereas in Turkel et al. 2010, paras 88–96 the blockade was found compliant with proportionality; UN General Assembly (2010) Human Rights Council Report of the International Fact-Finding Mission to Investigate Violations of International Law, Including International Humanitarian and Human Rights Law, Resulting from the Israeli Attacks on the Flotilla of Ships Carrying Humanitarian Assistance, UN Doc. A/HRC/15/21, paras 51–56 concluded that it violated this same principle. 19 Speller 2019, p 139. 20 Sandoz et al. 1987, para 2095. 21 Arnold-Forster 1920, p 5. 22 Mulder and Van Dijk 2021, p 712, citing Medicott 1952, p 12. 23 Clapham 2021, p 1243. 24 Dinstein 1982, p 204. 25 Dannenbaum 2021, pp 315–6. See, further, Howard 1993, p 161. 26 Marcus 2003, p 248. 18

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This general sensibility began to change in the drafting of the 1949 Geneva Conventions. Article 55 of Geneva Convention IV established “the duty of ensuring the food and medical supplies of the population”, and Article 59 complemented this proposition by establishing an unequivocal obligation to facilitate relief schemes for that population if “inadequately supplied”. Yet these provisions only applied to situations of military occupation, and were not relevant to blockades. During the preliminary work leading to the Conferences, the ICRC had advocated more robust protections against starvation for civilians during sieges and blockades which, despite opposition of the British and the American delegations, gained some traction with a number of other states. Nevertheless, Article 23 of Geneva Convention IV (GC IV) only required parties to allow “essential foodstuffs, clothing and tonics” when they were “intended for children under fifteen, expectant mothers and maternity cases”. Furthermore, this narrow obligation was subject to exception if the belligerent had “serious reasons for fearing” that they may “be diverted from their destination”, when control over them was not effective, and even when such relief would provide a “definite military advantage” to the enemy.27 In short, this exception was so malleable that it deprived even this very thin prohibition of any substantial limiting power. In turn, Article 17 of GC IV required that parties in a conflict “endeavour to conclude local agreements for the removal from besieged or encircled areas, of wounded, sick, infirm and aged persons, children and maternity cases”. Again, this provision only protects a fraction of the civilians being held within the encirclement, and the obligation is merely of means, as it requires parties to “endeavour” to conclude agreements, not to actually do so. The idea of restricting rather than prohibiting starvation was the result of the ICRC wanting to keep the Anglo-American powers on board—they considered a total ban undercut the security provided by their naval power.28 As Dannenbaum rightly concludes, “these provisions [ultimately] left the use of the starvation of civilians as a method of war very much intact.”29 This general approach was finally reversed in the revision of Geneva law under the 1977 Additional Protocols I and II to the Geneva Conventions. Under a new political climate, with the political influence of the G77 and the New International Economic Order, as well as with the horrific experiences in Biafra in the late 1960s and in Bangladesh in the early 1970s in the delegate’s minds, the international community agreed to more substantial restrictions.30 Accordingly, Article 54 of Additional Protocol I establishes that “[s]tarvation of civilians as a method of warfare is prohibited”. Its second paragraph further specifies that it is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as food-stuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies … for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party,

27

GCIV, Article 23. Mulder and Van Dijk 2021, above n. 10, p 717. 29 Dannenbaum 2021, above n. 9, p 320. 30 Mulder and Van Dijk 2021, p 722. 28

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whatever the motive, whether in order to starve out civilians, to cause them to move away, or for any other motive.31

Starvation, note, is construed under this article as a process rather than as an outcome. It suffices for the violation of the rule to deprive individuals of goods that are essential to their survival, regardless of whether they end up suffering hunger or starvation as a result of this deprivation.32 Article 70 of API further states that when the civilian population “is not adequately provided with [food, medical supplies, and other supplies essential to the survival of the civilian population] relief actions which are humanitarian and impartial in character and conducted without any adverse distinction shall be undertaken, subject to the agreement of the Parties concerned in such relief actions”. It further demands that parties to the conflict “shall allow and facilitate rapid and unimpeded passage of all relief consignments, equipment and personnel provided in accordance with this Section, even if such assistance is destined for the civilian population of the adverse Party” (para 2). If still a bit tentative, this provision notably expands the scope of protection as provided in article 23 of Geneva Convention IV, as it protects all civilians and a broader range of supplies. Article 71 further states that activities of the relief personnel or their movements may be restricted only “in case of imperative military necessity” and “temporarily”.33 Starvation is now further considered a war crime. The Rome Statute criminalizes “intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable for their survival, including willfully impeding relief supplies”.34 Admittedly, not everyone agrees that the rules on starvation apply to naval warfare. The connection of blockades to starvation and famine has been recently discussed in the context of the Saudi and Emirati-led blockade, or at least de facto encirclement of Yemen, the UN sanctions imposed against Iraq in response to its invasion of Kuwait in 1990, as well as vis-à-vis the restrictions imposed by Israel on Gaza.35 Philip Drew concludes that, despite being an inhumane act, the rules on starvation have not been considered part of the customary norms applicable to naval blockades.36 Heintschel von Heinegg and several others, by contrast, have argued that Art. 54 API is directly applicable to naval blockades. Indeed, blockades are a form of “sea warfare which 31

Article 14 in Additional Protocol II serves a similar purpose in non-international armed conflicts. See Conley and De Waal 2019, p 700; Akande and Gillard 2019. 33 Article 18 of Additional Protocol II serves a similar function in the context of non-international armed conflicts. 34 Rome Statute of the International Criminal Court, art. 8(2)(b)(xxv). For a similar provision in non-international armed conflicts see art. 8(2)(e)(xix), as amended in 2019, which is still undergoing the process of ratification. 35 Summers 2018. See, also, UN General Assembly (2010) Human Rights Council Report of the International Fact-Finding Mission to Investigate Violations of International Law, Including International Humanitarian and Human Rights Law, Resulting from the Israeli Attacks on the Flotilla of Ships Carrying Humanitarian Assistance, UN Doc. A/HRC/15/21. 36 Drew 2019, pp 320–321. Dannenbaum 2021, pp 337–338 disagrees that blockades should be considered attacks in the IHL sense, but seems to treat them as acts, not as omissions. 32

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may affect the civilian population (…) on land”, in the terms of Article 49(3) API.37 For present purposes, we shall endorse the latter position. Although we believe it stands on firmer grounds, any detailed examination of this issue is beyond the scope of this piece. Those who have doubts about this may at least accept this point of departure for the sake of argument.

6.3 How to Assess the Russian Blockade of Ukraine? In order to address this question it may be useful to start by clarifying the way in which blockades violate the fundamental rights of individuals. In effect, the fact that until very recently blockades and their ensuing harm to civilians (including starvation) have been consistently treated as distinct from direct attacks, and generally considered permissible, suggests that they are considered to warrant differentiated treatment. We believe, by contrast, that there is some conceptual confusion on this matter that it would be useful to dispel. For instance, the International Blockade Committee formed under the League of Nations after WW1 “endorsed the idea that starvation was more humane and thus better than the horrors of war”, and as such need not warrant being considered a war crime.38 More recently, Phillip Drew similarly spoke about the “apparent benign nature” of maritime blockades.39 Mulder and Van Dijk explain this differentiated treatment by suggesting that “[b]lockade derived its attractiveness from being an essentially negative material intervention—prohibiting existing flows of resources, and diverting their course—with low public visibility and high pay-off as a war-fighting strategy.”40 This means that it is “extremely complicated to render the effects of blockade directly visible, and to prove culpability for the deaths that it causes”.41 These deaths are brought about by a number of causes, such as malnutrition, infection, exhaustion, combined with violence sparked by the scarcity of essential goods which makes it much harder to prove than homicide or other direct forms of violence. De Waal further illustrates this by contrasting the treatment afforded to starvation and to murder and extermination, on the basis of the latter’s direct, clear causal path.42 Accordingly, there seems to be something in the “causal structure” of blockades that would justify this differentiated treatment. One way to capture this could be through the distinction between actions and omissions, or between doing and allowing harm. Both moral philosophy and the criminal law—domestic and international—typically capture this distinction and acknowledge that it is generally considered significantly morally worse to kill someone than to let her die. However, the 37

Heintschel von Heinegg 2000, p 217. See, similarly, Clapham 2021, p 1243. Mulder and Van Dijk 2021, p 700. 39 Drew 2019, p 303. 40 Mulder and Van Dijk 2021, p 708. 41 Ibid. See, similarly, De Waal 2018, p 51. 42 De Waal 2018, p 60. 38

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analogy is misleading. When looking at their causal structure, blockades are neither simple actions nor omissions. Rather, they are analogous to situations of “double prevention”, as they have been termed in the philosophical literature on causation and responsibility.43 A typical double prevention situation is that of Person A actively grabbing a lifeguard and thereby preventing her from saving Person B who is drowning at sea. In this situation, a preventer stops an act that would prevent harm to an innocent bystander. Similarly, blockades actively prevent essential goods from reaching the population of the territory affected by the blockade, goods which would have prevented the death and suffering of those individuals. Michael Moore has argued that in this type of situation, the double preventer (preventer/blockader) does not cause the harm, and given that causation is the main ground of responsibility, this type of situation is not equivalent to killing, but rather to failing to save someone. On this view, unlike kinetic attacks, which directly cause harm to their targets, blockades may be seen to have an omissive structure. As a result, they warrant a diminished level of responsibility.44 We disagree. As J. Schaffer argues, beheading someone certainly counts as killing her, and yet, much like the lifeguard situation, it ultimately prevents oxygenated blood reaching the brain, blood which would have prevented the death of the victim.45 Analogously, we suggest that double prevention cases should not be treated differently from typical causation cases. Of course, this controversy is complex, and certainly beyond the scope of this contribution. Yet it seems clear to us that blockades (and double prevention cases in general) are normatively closer to kinetic attacks than to mere omissions. To further motivate our point, compare the following scenarios. Most people would accept that it is permissible for State A not to provide a drug that would save the lives of 10 individuals in State B, if doing so would entail 1 individual in State A dying—a clear case of an omission. By contrast, we doubt that anyone would accept that it is permissible for State A to prevent State C from delivering a life-saving drug to 10 individuals in State B, even if that prevention were necessary to avoid the death of a single person in State A. Similarly, although it seems impermissible to kill a lifeguard that refuses to save a drowning person, even if that would somehow allow the drowning person to survive by holding on to the lifejacket the lifeguard is wearing, it clearly seems permissible to kill a person who prevents the lifeguard from reaching the swimmer (just as any murderer), if that would allow the lifeguard to save him. Accordingly, we may conclude that the specific wrong that characterizes blockades as a form of encirclement is the stopping of a causal chain that would provide individuals with goods essential for their survival. We also see that it is a very serious wrong, relevantly analogous to that of kinetic attacks which kill civilians. Indeed, Drew even

43

See, influentially, Moore 2009. Ibid. He further claims that the relationship between the acts of a double preventer and the harm that ultimately obtains in the world is connected by mere counterfactual dependence (rather than causation). That is, if the act of the double preventer had not obtained, the lifeguard/ships would have prevented the harm to the victims. 45 See, e.g., Schaffer 2012, pp 399–435. 44

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concludes that blockades should be considered attacks in the sense of Article 49 of Additional Protocol I.46 With this clarification in mind we are now in a position to examine whether the Russian blockade violates IHL. The first, and perhaps most obvious obstacle is that the laws on blockades and their ensuing starvation have been typically construed for the protection of individuals inside the encircled area. This is the result of the history of sieges and blockades, as well as of their general tactical employment as a method of warfare. That is, they have been typically pursued to bring populations within the encircled area to submission by threatening their survival through the limitation of their access to essential goods, such as foodstuffs, water or medicine. More simply put, perhaps, given that individuals outside the encircled area have access to the global markets, and the goods available there, it generally makes little sense to equalize them to those inside it. If we follow this reasoning, then, Russia would simply not be causing those outside the blockaded area the relevant form of harm through the blockade of Ukraine’s ports. But this reasoning is unsound. If blockades harm individuals by preventing them from receiving essential goods, and if this is relevantly similar to harming them directly via kinetic weapons, whether they are “inside” or “outside” the encircled area is not what matters, but rather all that matters is that they are being harmed. People outside the encircled area are generally not harmed by a blockade.47 But this is simply because being outside means that they have alternative sources to access such essential goods. If this were not the case, a blockade would harm them through the same mechanism that harms those inside the encircled area when it prevents these goods from coming in. Consider a blockade that would prevent a life-saving medicine from leaving a particular country, when there are no alternative ways of producing the drug elsewhere, at least not on time. The impact that such a measure would have over those outside the encirclement who are sick is indistinguishable from the impact of preventing those inside the encirclement from getting a drug that is unavailable there. Notably, Article 54 of API, proscribing starvation during armed conflict, imposes no restrictions on the class or nationality of civilians protected. Therefore, the Russian blockade cannot be excluded from violating IHL just for the fact that the affected population is not inside the encircled area. The Russian blockade seems, indeed, to affect individuals (civilians) in different parts of the world. Today food systems are notoriously co-dependent, causing the Russian blockade to harm millions through higher food prices, but impacting more directly, and harshly on those developing countries which are significantly more vulnerable and reliant on Ukrainian food exports. To illustrate, Ukraine used to provide 48% of Algeria’s wheat imports, and 26% of Egypt’s corn imports.48 Critically for our purposes, it is widely acknowledged that Ukrainian food exports cannot be replaced easily, nor quickly enough. As a result, the blockade has inevitably caused food shortages which are the main driver of rises in food prices. During the blockade, 46

Drew 2017, p 99. For a similar view, see Schmitt 2002, p 377. Sometimes they are, as when the blockade interrupts a supply chain. 48 Reinhart 2022. 47

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bread prices in Lebanon have increased by 70%, whereas grain shipments to Somalia have entirely stopped.49 According to FAO, the war itself will likely affect global food-systems creating a gap that will raise food and feed prices “between 8 and 22% above already high baseline levels”.50 This, in turn, would end up increasing the number of undernourished people globally by between 8 and 13 million in 2022–3, with the greatest impact in the developing world (Asia-Pacific, sub-Saharan Africa, the Near East and North Africa).51 In sum, it is plausible to suggest that the Russian blockade has pushed millions of individuals in different parts of the developing world towards famine and malnutrition.52 It is not difficult to infer from this that many will die as a result. Nevertheless we do not think that Russia is responsible for violating the rules against starvation as provided under IHL. There are two connected reasons for this. First, in order to qualify as such, a blockade must seriously affect the availability of the vital resource by the victims, not just its affordability. Countries perform different actions that can produce an increase (or a decrease) in the prices of commodities. To illustrate, if a big food exporting country were to close its borders and stop exports under the rule of a nationalist government obsessed with food security, it is unclear that we would condemn it for starvation. Certainly, Russia’s blockade is not a permissible action within the rules of an open market, as it would be the decision of the nationalist government, but an act of war. However, with regard to its impact over the affected populations these two actions are analogous. Neither of them seem equivalent to an act of starvation. Second, and connectedly, the causal contribution of the blockade to the high prices of foodstuffs is marginal compared to other well-known drivers. Among them, critically, are food loss and food waste.53 According to FAO, around 15% of the world’s food is lost after it is harvested and before it reaches the shops, and a further 17% of the food produced ends up being wasted in retail and by consumers.54 Reversing this trend would preserve enough food to feed 2 billion people, more than twice the number of undernourished people across the globe.55 Furthermore, according to the UN Environment Programme, industrialized countries in North America, Europe and Asia collectively waste 222 million tons of food each year, the equivalent of subSaharan Africa production for the same period.56 Put differently, for decades now the 49

Harris 2022. FAO 2022a. 51 Ibid. 52 See, e.g., Delorme et al. 2022. Furthermore, the “soaring price of fertilizers limits the ability of countries to boost their own agricultural productivity just when it is most critical that they make up for a drop in global grain exports.” 53 Though clearly relevant, we leave out our analysis of climate change and environmental degradation as further drivers of food insecurity in the world. We also leave out the shock on global food markets produced by the COVID-19 pandemic. 54 FAO 2022b. This amounts to food that could feed 1.26 billion people every year. 55 World Food Program USA 2021. 56 Ibid. In the US alone, according to the USDA, between 30 and 40% of the food is wasted. See U.S. Department of Agriculture (undated). 50

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world has produced enough food for everyone, and yet it still faces a situation where several hundred million people suffer from chronic undernutrition, and many face famine and starvation.57 To the extent that the current crisis in developing countries is driven by multiple causes, most notably the acts of governments and individuals in different parts of the world (and particularly the developed world), it would be problematically selective to hold Russia responsible for driving people to starvation on the grounds of this blockade. Similarly, we are not persuaded—though the evidence on this is significantly less conclusive—that the blockade ought to be considered disproportionate under the laws of naval warfare. Paragraph 102(b) of the San Remo Manual, you recall, reflects the customary rule prohibiting blockades when the damage to the civilian population is, or may be expected to be, excessive in relation to the concrete and direct military advantage anticipated from the blockade. This test is characteristically difficult to apply to the extent that it requires comparing two largely incommensurable elements (“harm to civilians” and “military advantage”) and that it provides little guidance as to when that relation is unlawful (“excessive”). But it is particularly hard to apply to blockades—at least comparted to discrete kinetic attacks—on grounds their extension, duration, and the fact that as a result of these features they intersect with a larger number of phenomena. Let us concentrate first on the relevant military advantage. The blockade is directly affecting neither against arms trade nor intended to prevent Ukraine from accessing goods or equipment that would be directly used in its military efforts against Russia. By contrast, it is directed to its main source of external income. According to some estimates, by November 2022 the blockade had caused Ukraine economic losses for over $1.5 billion by the government.58 In its study on customary international humanitarian law, the ICRC recognized that “[e]conomic targets that effectively support military operations” are considered military objectives, provided that attacking them “offers a definite military advantage”.59 Arguably these funds would have allowed Ukraine to finance its war efforts to a significant extent, and as such constitute a relevant military advantage for the purposes of the proportionality analysis.60 With regards to the damage caused to civilians we have acknowledged that the blockade increases the prices of certain foodstuffs, and this harms civilians who would not be able to afford essential goods. Yet we have also argued that high prices are essentially driven by other factors not attributable to the Russian Federation. Irrespective of the standard difficulty of identifying how precisely the two considerations compare to each other (“money to buy weapons” v “suffering caused by higher food prices”), the harm expected by rising prices does not seem to be clearly excessive in 57

See Parikh 1991, pp 114 and ff. Wengle and Dankevych 2022. 59 Henckaerts and Doswald-Beck 2005, p 32 (with references to state practice in footnote 51) 60 Israel argued on a similar military advantage when justifying the Gaza blockade. See Turkel et al. 2010. Note, moreover, that the Report of the international fact-finding mission found that the blockade was disproportionate not because this aim was unlawful but rather because the harm the blockade caused was excessive (ibid., para 53). 58

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this context. Insofar the current high price levels is for the most part not its doing, it does not seem clear that Russia would be required to bear such a substantial part of the costs of keeping them low enough, when the cost is the lives of its own citizens. If there is still uneasiness with this conclusion, we suggest its intuitive pull seems to have an altogether different source, namely the underlying ad bellum assessment of the situation according to which Russia’s invasion is altogether unjust. But when assessing in bello proportionality, we must assume that belligerents are symmetrical, and if we imagine that it were Ukraine or any other state legitimately defending itself, it would hardly seem “clearly disproportionate” to withdraw resources from an aggressive state because of the impact this would have on global prices, which are substantially driven by other, external factors. Admittedly, unlike the analysis on starvation above, the proportionality assessment also requires considering other damages the blockade would cause, including those to the Ukrainian economy. It is beyond our possibilities here to assess this issue with any precision, but it is telling, perhaps even decisive that not even Ukraine’s President has argued against the blockade on these grounds.61 Accordingly, it seems hard to conclude that the blockade is disproportionate under IHL, particularly insofar it requires that the test be applied—and the military advantage assessed—independently of the ultimate justice or lawfulness of the war. This last consideration may help us identify what is wrongful, and indeed unlawful of the Russian blockade. To the extent that it is a constitutive part of the military attack against a sovereign state, the blockade constitutes a clear violation of the prohibition of the use of force under article 2(4) of the UN Charter.62 Jus ad bellum rules, it is generally acknowledged, do not regulate only the initiation of war but rather continue to apply throughout the armed conflict.63 In fact, the “blockade of ports or coasts of a State” has been considered an act of aggression under customary international law and a crime under international criminal law, warranting also individual criminal responsibility.64 This entails that the blockade against Ukraine is thereby not only unlawful, but arguably also criminal, albeit not for the reason that it increases the price of food on the desperate situation of millions of destitute people around the world, but rather for contributing to the killing and destruction the unlawful war brings about.

61

Axios 2022. See, for instance, Greenwood 2002, pp 56–57. 63 See, e.g., Greenwood 1983, p 221; Benvenisti 2009, p 544. 64 See, respectively, Definition of Aggression, G.A. Res 3314, Article. 3(c) (Dec. 14, 1974) and Article 8bis, Rome Statute of the International Criminal Court. 62

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6.4 Conclusion In this brief contribution we have sought to critically assess the permissibility of the Russian blockade of Ukrainian ports. We have argued that blockades and their ensuing starvation are grave acts which harm individuals by constituting acts of “double prevention”, namely, they prevent a course of action that would itself prevent serious harm. On this basis we claimed that whether the victims of a blockade are inside or outside the relevant encirclement is not decisive to determine whether such a blockade violates their fundamental rights. Rather, the relevant question is whether it leaves these individuals without access to these essential goods or inflicts upon them harms which are disproportionate. We concluded that despite the fact that the Russian blockade makes individuals outside it significantly worse off, by increasing foodstuffs’ prices and pushing many towards famine and malnutrition, it does not amount to starvation nor violates the relevant rules on blockade under IHL. The reason for this is that it does not make food unavailable, but rather unaffordable. Furthermore, and crucially, high food prices are not centrally traceable to Russia, regardless of whether it intended to provoke hunger and the displacement of affected individuals. That is, food prices, which are the main cause of famine and malnutrition are driven to a much larger extent by the losses and waste of food which occur worldwide (particularly in the Global North), than by any impact the blockade may have. Similarly, we argued that the blockade neither causes disproportionate harm to the civilian population, at least if this test is applied independently of the underlying justice of the war. To that extent, it does not seem censurable under IHL even though it is most likely unlawful, even criminal, on the grounds that it is an important part of a war of aggression. Acknowledgements The authors are grateful to the Editors of the Yearbook of International Humanitarian Law for their invitation to contribute to the yearbook, and to two anonymous reviewers as well as Elisa Belfiori, Leandro Días Leston and Charles Garraway for useful suggestions on a previous draft. The usual disclaimer applies.

References Articles, Books and Other Documents Akande D, Gillard E (2019) Conflict-Induced Food Insecurity and the War Crime of Starvation of Civilians as a Method of Warfare: The Underlying Rules of International Humanitarian Law. BSG Working Paper 2019/030. Arnold-Forster W (1920) The Future of Blockade. Foreign Affairs II(1), 5. Axios (2022) Zelensky Urges Action Against Russia Over Ukrainian Ports Blockade. https:// www.axios.com/2022/05/10/zelensky-russian-blockade-ukrainian-ports-food-crisis. Accessed 23 May 2023. Benvenisti E (2009) Rethinking the Divide Between Jus ad Bellum and Jus in Bello in Warfare Against Nonstate Actors. The Yale Journal of International Law 34:541–548.

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Clapham A (2021) Booty, Bounty, Blockade and Prize: Time to Reevaluate the Law. International Law Studies 97. Conley B, De Waal A (2019) The Purposes of Starvation. JICJ 17. Dannenbaum T (2021) Encirclement, Deprivation, and Humanity: Revising the San Remo Manual Provisions on Blockade/ International Legal Studies 97. Delorme J, Glynn E, Jolliffe E, Mant K, Osman R, Ramli R, Summers H (2022) A Global Crisis: Tackling the International Fallout of Russia’s War in Ukraine. https://institute.global/policy/glo bal-crisis-tackling-international-fallout-russias-war-ukraine. Accessed 23 May 2023. De Vattel E (2015/1758) Law of Nations. Cambridge University Press, Cambridge. De Waal A (2018) Mass Starvation. The History and Future of Famine. Polity, Cambridge. Dinstein Y (1982) Sea Warfare. In: Bernhardt R (ed) Encyclopedia of Public International Law. North-Holland Publishing Company, Amsterdam, 201–212. Doswald-Beck L (1995) San Remo Manual on International Law Applicable to Armed Conflicts at Sea. Cambridge University Press, Cambridge. Drew PJ (2017) The Law of Maritime Blockade: Past, Present, and Future. Oxford University Press, Oxford. Drew PJ (2019) Can We Starve the Civilians? Exploring the Dichotomy between the Traditional Law of Maritime Blockade and Humanitarian Initiatives. International Law Studies 95. Falk P (2022) Russia’s Envoy Storms Out of U.N. Meeting Amid Allegations His Country is Weaponizing Rape and Food in Ukraine. https://www.cbsnews.com/news/russia-ukraine-warun-ambassador-storms-out-allegations-weaponizing-rape-food/. Accessed 16 May 2023. FAO (2022a) The Importance of Ukraine and The Russian Federation for Global Agricultural Markets and the Risks Associated with the War in Ukraine. FAO (2022b) Tackling Food Loss and Waste: A Triple Win Opportunity. https://www.fao.org/new sroom/detail/FAO-UNEP-agriculture-environment-food-loss-waste-day-2022/en. Accessed 16 May 2023. Greenwood C (1983) The Relationship Between Ius ad Bellum and Ius in Bello. Review of International Studies 9. Greenwood C (2002) The Applicability of International Humanitarian Law and the Law of Neutrality to the Kosovo Campaign. International Law Studies 78. Grotius H (2013/1625) On the Law of War and Peace. Cambridge University Press, Cambridge. Harris S (2022) U.S. Intelligence Document Shows Russian Naval Blockade of Ukraine. https:// www.washingtonpost.com/national-security/2022/05/24/naval-blockade-food-supply-ukrainerussia/. Accessed 16 May 2023. Heintschel von Heinegg W (2000) Naval Blockade. International Law Studies 75. Henckaerts JM, Doswald-Beck L (2005) Customary International Humanitarian Law. Vol I: Rules. https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1. Accessed 23 May 2023. Howard NP (1993) The Social and Political Consequences of the Allied Food Blockade of Germany. German History 11(2): 161–188. Le Monde (2022) EU Calls Russia Ukraine Grain Blockade ‘Real War Crime.’ https://www.lem onde.fr/en/international/article/2022/06/20/eu-calls-russia-ukraine-grain-blockade-real-warcrime_5987485_4.html. Accessed 16 May 2023. Macias A (2022) Russia Halts Participation in the Black Sea Grain Initiative, the UN-Backed Deal that Reopened Ukraine’s Ports to Feed Countries Around the World. https://www.cnbc.com/ 2022/10/29/russia-halts-participation-in-the-black-sea-grain-initiative.html. Accessed 16 May 2023. Marcus D (2003) Famine Crimes in International Law. AJIL 97:245–281. Medicott WN (1952) The Economic Blockade. Vol I. H.M. Stat. Office/Longmans, Green, London. Moore M (2009) Causation and Responsibility. An Essay in Law, Morals and Metaphysics. Oxford University Press, Oxford/New York. Mulder N, Van Dijk B (2021) Why Did Starvation Not Become the Paradigmatic War Crime in International Law? In: Heller KJ, Venzke I (eds) Contingency in International Law. On the Possibility of Different Legal Histories. Oxford University Press, Oxford, pp 370–390.

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Parikh KS (1991) Chronic Hunger in the World: Impact of International Policies. In: Drèze J, Sen A (eds) The Political Economy of Hunger. Clarendon Press, Oxford, pp 114–145. Reinhart RJ (2022) Ukraine War Threatens World’s Food Supply. https://news.gallup.com/opinion/ gallup/390395/ukraine-war-threatens-world-food-supply.aspx. Accessed 16 May 2023. Ritchie H (2022) How could the war in Ukraine impact global food supplies? https://ourworldi ndata.org/ukraine-russia-food. Accessed 16 May 2023. Sandoz Y et al (1987) Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949. International Committee of the Red Cross/Martinus Nijhoff, Geneva. Schaffer J (2012) Disconnection and Responsibility. Legal Theory 18:399–435. Schmitt M (2002) Wired Warfare: Computer Network Attack and Jus in Bello. IRRC 84:846. Speller I (2019) Understanding Naval Warfare. Routledge, Abingdon, Oxon. Summers H (2018) Yemen on Brink of World’s Worst Famine in 100 Years if War Continues. https://www.theguardian.com/global-development/2018/oct/15/yemen-on-brink-worst-fam ine-100-years-un. Accessed 23 May 2023. Turkel J et al (2010) The Public Commission to Examine the Maritime Incident of 31 May 2010. In: Wallace S (ed) The Application of the European Convention on Human Rights to Military Operations. Cambridge University Press. U.S. Department of Agriculture (undated) How Much Food Waste is There in the United States? Food Waste FAQS. https://www.usda.gov/foodlossandwaste/faqs. Accessed 16 May 2023. Wengle S, Dankevych V (2022) Black Sea Blackmail: Ukrainian Food Exports in War Conditions. https://www.ponarseurasia.org/black-sea-blackmail-ukrainian-food-exports-in-war-con ditions/. World Food Program USA (2021) 8 Facts to Know About Food Waste and Hunger. https://www. wfpusa.org/articles/8-facts-to-know-about-food-waste-and-hunger/. Accessed 16 May 2023.

UN Documents UN General Assembly (2010) Human Rights Council Report of the International Fact-Finding Mission to Investigate Violations of International Law, Including International Humanitarian and Human Rights Law, Resulting from the Israeli Attacks on the Flotilla of Ships Carrying Humanitarian Assistance, UN Doc. A/HRC/15/21. UN General Assembly Resolution (1974) Resolution 3314 (XXIX) (Definition of Aggression), UN. Doc. A/RES/29/3314.

Treaties 1949 Geneva Convention relative to the Protection of Civilian Persons in Time of War (GC IV), 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950). Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, opened for signature 8 June 1977, 1125 UNTS 609 (entered into force 7 December 1978) (Additional Protocol II). Declaration Concerning the Law of Naval War. London, 26 February 1909. Declaration Respecting Maritime Law. Paris, 16 April 1856. Rome Statute of the International Criminal Court, adopted on 17 July 1998, (entered into force 1 July 2002). U.S. Department of War, Instructions for the Government of Armies of the United States in the Field, General Orders No. 100 (1863), also known as the Lieber Code.

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Alejandro Chehtman Dean & Professor of Law, Universidad Torcuato Di Tella, Buenos Aires, Argentina. Eduardo Rivera López Professor, Universidad Torcuato Di Tella/IIF-SADAF-CONICET, Buenos Aires, Argentina

Chapter 7

Heads of State as War Criminals: The Prospects and Challenges of Tracing War Crimes to Senior Political Leaders in Russia Frédéric Mégret and Camille Marquis Bissonnette

Contents 7.1 7.2 7.3

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Joint and/or Indirect Perpetration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Ordering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3.1 The Potential Elusiveness of Direct Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3.2 Establishing the Existence of Orders from the Existence of a Pattern of War Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4 Command/Superior Responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4.1 Does Putin Have Effective Control Over the Russian Armed Forces? . . . . . . . . . 7.4.2 What Kind of “Superior” Is the Head of State? . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4.3 What Does a Head of State Need to Know to Be Liable? . . . . . . . . . . . . . . . . . . . 7.4.4 The Crimes Were Committed as a Result of a Failure to Exercise Control Properly . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4.5 What Counts as a Failure to Take All Necessary and Reasonable Measures within One’s Power? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract War crimes are not typically leadership crimes, unlike aggression. In cases where they mobilize important state resources, are committed on a large or consistent scale or are ordered at the highest level, one question is how they can be attributed to heads of state. This chapter discusses some ways in which Vladimir Putin, the current President of Russia, could be brought to trial for alleged war crimes being committed by Russian armed forces in Ukraine. Specifically, it investigates some modes of liability under which could he be held criminally responsible that would particularly F. Mégret (B) Centre for Human Rights and Legal Pluralism, Faculty of Law, McGill University, Montréal, Canada e-mail: [email protected] C. Marquis Bissonnette Département de droit, Université du Québec en Outaouais, Gatineau, Canada e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2024 H. Krieger et al. (eds.), Yearbook of International Humanitarian Law, Volume 25 (2022), Yearbook of International Humanitarian Law 25, https://doi.org/10.1007/978-94-6265-619-2_7

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make sense of his special responsibilities as head of state. Two main possibilities are discussed: ordering and superior/command responsibility. We evaluate what specific challenges and opportunities each of these options involve. We contend that command or superior responsibility would probably come with the highest chance of success and express a strong sense that the head of state is ultimately responsible for how their troop behave in the field. Keywords Head of state · Russia · Ukraine · War crimes · Criminal responsibility · Modes of liability

7.1 Introduction On 17 March 2023, the International Criminal Court (ICC) Prosecutor launched an indictment against, inter alia, the President of the Russian Federation, Vladimir Putin for the war crimes of unlawful transfer of population from occupied territory in Ukraine to Russia and of unlawful deportation of population, being committed against children. This arose in the context of ongoing conversations about war crimes committed by Russian troops in Ukraine, including the forced transfers of population, but also the targeting of civilians and civilian infrastructure. The possibility of prosecuting Putin for aggression, even though the ICC has no jurisdiction over Russia for this crime, has also been extensively mooted. The connection between the President of Russia and specific war crimes, however, for all the speculation about Putin’s role, may not be as evident as it seems. In this chapter, we explore what it might take to impute the responsibility for certain war crimes to the highest echelons of government, notably the head of state. We do so not only with an eye on how to pragmatically securing a conviction but also with an attention to expressivist concerns1 as they arise in relation to heads of state, as persons with a unique access to state resources and command.2 The question is not only “what will work” but, specifically, what modes of liability most make sense of the responsibilities of such individuals.3 Heads of state occupy a unique position in the commission of atrocities and in the history of international criminal law: charges, including modes of imputation of responsibility, should reflect to the highest extent the international community’s urgent concerns with heads of state using their position and power to orchestrate criminal campaigns. The current indictment reflects a particular implicit theory of how best to tie Putin to certain crimes that needs to be problematized. It focuses on quite narrow charges and others may follow that may warrant different modes of imputation. The difficulty of tying heads of state to war crimes reflects, first and foremost, the fact that such offences may in fact very well be committed independently of the head 1

Stahn 2020. Mégret 2023. 3 Van Sliedregt 2012. 2

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of state. This is not the case for all international crimes, some of which are naturally leadership crimes. This is the case, most prominently, of aggression, a crime that can only be committed by leaders.4 Unsurprisingly, at least when it comes to aggression, the head of the Russian state would be a natural target. As to genocide, even if it can be committed by individuals irrespective of position, it will often have been committed by states and decided at the highest level given its scale. The same is true of crimes against humanity, insofar as a “generalized or systematic attack against a civilian population” is hard to conceive of except as flowing from the decisions of senior leadership. The same is not necessarily true, then, of war crimes, which can be committed by individuals acting alone and perhaps even in isolation, as well as at relatively subaltern levels far removed from the higher strata of the state. This makes it necessary but also potentially challenging to establish some link to connect leaders to war crimes. At the same time, the ICC does have “jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.”5 Although this is really only a jurisdictional threshold for the Court which has no implication for the definition of war crimes, it suggests that in practice the ICC is particularly likely to be interested in war crimes that are committed at the instigation or the tolerance of the state. There is no doubt, in fact, that prosecuting heads of state for war crimes has often been felt to be a priority of the highest order. Being a head of state may have implications in terms of immunity under international law, but it is certainly not an obstacle to substantive responsibility. Engaging that responsibility, then, becomes a key way of blaming the state at the highest level. Historically, multiple heads of state have been prosecuted for war crimes before both domestic and international courts. Jozef Tiso, Slovakia’s President during World War II, was convicted and sentenced to death by a Czechoslovak tribunal for having committed war crimes; Ferenc Szálasi, Hungary’s Prime Minister, then head of state for six months in 1944 was convicted of war crimes by a Hungarian tribunal; Ion Antonescu, Romania’s Prime Minister from 1940 to 1944 was convicted of war crimes, after having admitted during his trial the direct ordering of reprisals and deportation of civilians.6 Before international tribunals, moreover, Tojo Hideki, War Minister and Prime Minister of Japan during World War II, was convicted of war crimes and sentenced to death by the International Military Tribunal for the Far East,7 while Karl Dönitz was convicted at the Nuremberg trial for war crimes committed while he was a commander in the Army, prior to briefly acting as the head of state of Germany at the end of World War II. Milan Babi´c, who acted as the President of the selfproclaimed Republika Srpska Krajina was indicted for war crimes and crimes against 4

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 8bis. 5 Ibid., Article 8(1). 6 Deletant 2006, pp 245–261. 7 International Military Tribunal for the Far East, Judgment, 4 November 1948 (Tokyo Judgment), pp 49 and 844.

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humanity by the International Criminal Tribunal for former Yugoslavia (ICTY), although he concluded a plea agreement on the sole charge of crimes against humanity of persecution.8 Milan Marti´c, who held the same function, was convicted of war crimes by the ICTY. More recently, Charles Taylor, former President of Liberia, was convicted of war crimes and crimes against humanity by the Special Court for Sierra Leone (SCSL); and former Chadian President Hissein Habré was convicted of war crimes and crimes against humanity by the Extraordinary African Chambers (EAC) in Senegal. Most famously, Slobodan Miloševi´c, as former President of Serbia, was prosecuted by the ICTY for genocide, crimes against humanity and war crimes, although he died before a verdict. Finally, the ICC issued an arrest warrant in 2009 for then-President of Sudan Omar Al Bashir for war crimes, crimes against humanity and genocide and indicted Jean-Pierre Bemba, former Ivorian President who was finally acquitted, for war crimes and crimes against humanity. Nonetheless, the situation of the head of state in relation to war crimes does present a set of challenges based on a paradox: on one level, their overall responsibility for the war suggests that surely they must bear some overarching responsibility for what happens during it; on another level, heads of state may have a certain ability to insulate themselves, through layers of governmental and military intermediaries, from the day-to-day pursuit of hostilities, in ways that make pinning blame on them difficult. In discussing paths that nonetheless exist in the Ukrainian context to prosecute the highest political leaders for war crimes,9 our assessment of facts will be cursory and to some extent hypothetical. We do not pretend to have any certainty about the nature of war crimes that have been committed in Ukraine. Rather we rely on widely available and prima facie credible assertions of facts to contextualize how one might go about alleging Putin’s personal responsibility for them. The chapter focuses on three modes of imputation of responsibility and assesses them for their ability to do justice to the specific circumstances of a head of state.10 First, we briefly evaluate the responsibility of Putin as a co-perpetrator under Article 25(3)(a), voicing some initial skepticism about the idea of joint or/and indirect perpetration as an appropriate mode of liability for war crimes liability of Putin going forward (Sect. 7.2). Instead, we emphasize two modes of liability which in our view best reflect the hierarchical relationship of Putin to the Russian armed forces and his unique power and responsibilities at the apex of the state: ordering (Sect. 7.3) and command or superior responsibility (Sect. 7.4). We note that only direct commission under Article 25(3)(a) as well as superior responsibility feature in Putin’s indictment

8

ICTY, Prosecutor v Milan Babi´c, Trial Chamber Judgment, 29 June 2004, Case No. IT-03-72-S (Babi´c 2004). 9 Some work has also gone into looking at Putin’s responsibility for war crimes in Syria. See Roth 2022. 10 Imputation under Article 25(3)(c) does not focus much on an actual relation of authority and will therefore not be discussed here. Aiding and abetting, in fact, seems to exactly invert wrongdoing, making the head of state appear as an accessory to the principal commission of his subordinates. The same is true of Article 25(3)(d) which seems to not do justice to the particular nature of the head of state’s position.

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of March 2023 (and only for superior responsibility), but this does not exclude the possibility that orders would be relevant for future war crimes charges.

7.2 Joint and/or Indirect Perpetration One ground of imputation on which the Prosecutor has decided to focus is Article 25(3)(a) which indicates that criminal liability can arise where a person “commits such a crime, whether as an individual, jointly with another or through another person.” It is hard to evaluate that angle at this stage except that it probably reflects the evidence that is available to the Prosecutor. The scope of Article 25(3)(a) is quite broad and encompasses different forms of commission. This would seem superficially a good fit with heads of state, given the Article’s emphasis on those who control as principals, despite their remoteness from the scene of the crime. It stigmatizes their behavior as characteristic of those “most responsible”. Indeed, there is little evidence that Putin will have committed these crimes directly, but the idea is to hold him accountable either as a co-perpetrator, an indirect perpetrator or an indirect co-perpetrator. Co-perpetration includes perpetrators understood as those who “in spite of being removed from the scene of the crimes, control or mastermind its commission because they decide whether and how the offence will be committed.”11 It may thus be particularly suited to accusations of transfer of populations and children as a very specific offence in the context of the war on Ukraine that may involve a direct rapport between Putin and Maria Alekseyevna Lvova-Belova, the other person against whom an arrest warrant has been issued. This would involve demonstrating that Putin made an essential contribution to the realization of a common plan involving the commission of the relevant war crimes, knowingly. Nonetheless, co-perpetration may not the best way to frame Putin’s responsibility for war crimes being committed in Ukraine. It suggests too horizontal a twist to the actual nature of a head of state’s top-down power and criminal responsibility. The Prosecutor could also plead indirect perpetration, which involves exerting control over a crime materially committed by other persons, including through an organised apparatus of power.12 Or the Prosecutor might invoke the theory of indirect co-perpetration, which was created by the Trial Chamber in Katanga and pleaded by the prosecutor against former Ivorian President Laurent Gbagbo,13 to make sense of crimes committed by members of the Wagner Group, for example. This theory, which is not codified into the Statute, is less demanding than the two former modes 11

ICC, Prosecutor v. Thomas Lubanga Dyilo, Decision on the confirmation of charges, 07 February 2007, Case No ICC-01/04-01/06-803-tEN (Lubanga 2007), para 330. 12 ICC, Prosecutor v. Germain Katanga, Trial Chamber Judgment, 7 March 2014, Case no ICC-01/ 04-01/07 (Katanga 2014), paras 1399 and 1403. 13 ICC, Prosecutor v. Laurent Gbagbo and Charles Blé Goudé, Decision on the confirmation of charges, 12 June 2014, Case no ICC-02/11-01/11 (Gbagbo 2014).

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of liability since it does not require direct control by the accused over the material perpetrators; leaders can thus become responsible not only for acts committed by people they control, but also by persons their collaborators control. In this sense, it can be relatively well-suited mode for senior leaders.14 With this last mode of liability, one problem, however, is that the control theory’s status remains in flux, and that significant disagreement persists about its grounding in international criminal law, as substantiated in Ntaganda Appeal Judgment.15 And whilst the “control” theory may have been useful in cases of loose lines of command where “control” of the perpetrators was analytically significant (for example to document the crimes of Katanga and Chui in relation to informal groups in Ituri), it may seem strangely inapposite in the case of a Head of State who by definition exercises not only control but also has de jure authority over an entire army. Indeed, why resort to the complex idea of “control” over immediate perpetrators through an “organization” (Organisationsherrschaft), as is the case for indirect co-perpetration, when that organization is clearly the state, as the site of both the ability to give orders and incur superior responsibility. For these reasons, we incline to think that other modes of liability in Article 25(3) may be more specifically suited to the circumstances of a head of state and certainly do not hint at lesser gravity. In our view, the resort to an overly complex theory of liability based on control of an organization results from the misplaced assumption that direct perpetration is naturally the gravest and that therefore the responsibility of the worst offenders needs to be artificially “niched” within Article 25(3)(a) compared to ordering or superior/command responsibility.16 Transposed to actual state criminality, theories of indirect perpetration based on the control theory are reminiscent of Nuremberg’s unconvincing use of the eminently reductionist notion of conspiracy to wage aggressive war to describe Nazi rule. The Russian state is not a criminal “gang” and the question in Ukraine is not determining the liability of some elusive “Mafia boss” but, quite simply, drawing all the consequences from the evidently superior hierarchical role of the head of state. In emphasizing “control” over groups, co-perpetration or indirect perpetration artificially bypass (and are redundant with) other modes of liability such as ordering or command/superior responsibility that make much more sense of the specific position of the head of state. Indeed, we would contend that if there ever was a moment for the ICC to move away from its fixation with the control theory, it is specifically when it comes to heads of state. This is not because ordering or command/superior responsibility does away with any notion of control, but because they reintegrate such control within an overall normative theory of obligations of agents of the state as well as the de jure and de facto responsibilities attendant to leadership, one that emphasizes abuse 14

ICC, Prosecutor v. Germain Katanga, Decision on the confirmation of charges, 30 September 2008, Case no ICC-01/04-01/07 (Katanga 2008), para 492. 15 Ibid. See, in particular, the Separate opinions of Judges Morrisson and Eboe-Osuji; see also Márquez Velásquez 2022. 16 Aksenova 2015.

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of power.17 Especially when it comes to a range of other war crimes (beyond the current charges) that may be linked to the conduct of hostilities or the protection of civilians, therefore, modes of imputation of liability that better highlight the specific nature of Putin’s vertical responsibilities would seem, all other things being equal, more appropriate.

7.3 Ordering The idea that Putin ordered war crimes sits well with popular perceptions and political discourse about his responsibility. The reality, however, is that proving commission by orders is more complex than it seems. The law on orders as a source of responsibility for war crimes is typically associated with field commanders rather than heads of state, who may be understood to have largely delegated the pursuit of the war to their military. In this section, we highlight the possibility that direct and explicit orders to commit war crimes may be hard to identify but make the case that instructions may be inferred from a pattern of war crimes.

7.3.1 The Potential Elusiveness of Direct Orders The most straightforward way in which war crimes may be committed is simply by ordering them. Indeed, the Geneva Conventions specifically require states to “enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed”18 grave breaches. This is in a sense the easy case. Ordering requires the existence of a formal or informal superior-subordinate relationship, an instruction to commit a crime that has a substantial effect or that substantially contributes to the commission of the crime and the intention that the crime will be committed or the knowledge “that the crime will be committed in the ordinary course of events as a consequence of the execution or implementation of the order.”19 In Russia, the fact that the President is the Supreme Commander of the Army satisfies the de jure authority requirement.20 However, the mere commission 17

Hildering 2007. See, for example, Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War of 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) (Geneva Convention IV), Article 146; This mode of liability is also provided to in the Rome Statute, above n 2, Article 25(3)(b). 19 ICC, Situation in the Democratic Republic of the Congo in the case of The Prosecutor v. Sylvestre Mudacumura. Public redacted version Decision on the Prosecutor’s Application under Article 58, Pre-Trial Chamber Judgment, 13 July 2012, Case No. ICC-01/04-01/12 (Mudacumara 2012), para 63. 20 As in the case of Chambres Africaines Extraordinaires D’Assises, Ministère Public c Hissein Habré, Judgment, 30 May 2016 (Habré 2016), para 1861. 18

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of war crimes under the authority of a head of state does not mean that they ordered them. In the case of the head of state, the element which poses a major challenge is the issuance of instructions, since where war crimes are envisioned on a large scale, senior officials may know better than to explicitly order war crimes or may issue ambiguous orders.21 Helpfully, orders need not be inherently illegal or written. General orders, such as those issued by heads of state, may constitute criminal instructions but they would have to be explicitly criminal on their face. In many cases, the head of state will not order the commission of war crimes22 as much as order military operations that may lead to war crimes but on the basis of subordinates’ actions. The existence of intermediaries (sometimes many of them) between the principal perpetrator and the head of state obviously does not bar the criminal liability of the latter but it is a complicating factor as the former may have distorted the instructions, as underlined by the ICC in the judgment of acquittal of the former Ivorian President Laurent Gbagbo, on charges of crimes against humanity.23 This can nonetheless be overcome, as in the case of Hissein Habré, who was convicted of a war crime even if the order was transmitted by an intermediary to the direct perpetrator, in his name.24 Similarly, Marti´c was convicted of ordering a war crime even if there was no direct evidence that the order was transmitted by him. To establish his liability, the ICTY observed that the issuance of the order by a subordinate happened while he was present and followed a meeting that he attended. In addition, the accused publicly took responsibility in the media for ordering the shelling, proof that one can be responsible for acquiescing to orders that have practically been given by others.25 Some of the Russian military’s strategy seems quite conspicuously premised on committing war crimes, in ways that suggest that there can only have been involvement at the highest strata of the state. For example, the forcible removal of civilians from occupied Mariupol and Kharkiv to Russia,26 or the forced conscription of Ukrainians in occupied territories to fight alongside Russian forces27 seem prima

21

ICTY, Prosecutor v. Stanislav Gali´c, Judgment, 5 December 2003, Case No. IT-98-29-T (Gali´c 2003), para 171. 22 Although the Nuremberg Tribunal established the criminal nature of Hitler’s orders in the US Military Tribunal Nuremberg, High Command Trial. The United States of America vs. Wilhelm von Leeb et al, Judgment, 27 October 1948 (High Command 1948), pp 526–528. 23 ICC, Prosecutor v. Laurent Gbagbo and Charles Blé Goudé. Reasons of Judge Geoffrey Henderson, Appeal Judgment, 15 January 2019, Case No. ICC-02/11-01/15-1263-AnxB-Red (Gbagbo 2019), para 1971. 24 Habré, above n 20, paras 1850–1861 (note, however, that the issuance of an order by Hissein Habré was not contested by the defense in this case). 25 ICTY, Prosecutor v. Milan Marti´ c, Judgment, 12 June 2007, Case No. IT-95-11-T (Marti´c 2007), paras 456–463. 26 Human Rights Watch 2022. 27 The Guardian 2022; these constitute grave breaches of the Geneva Conventions. See Geneva Convention IV, above n 10, Article 147.

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facie to be war crimes which would not occur without political assent at the highest level. Some instances may be more ambiguous. Targeting of the civilian energy infrastructure may be unlawful under international humanitarian law, and could constitute prohibited attacks against civilian objects or against objects essential to the survival of the civilian population, but need not always be so if that infrastructure has a dual civilian/military use.28 An order to attack the electric grid, then, would not be per se unlawful and might be construed, to put it generously, as implicitly only ordering one’s forces to do so in compliance with international law. An order to do so systematically, in the absence of a military objective, or explicitly on the grounds of “making civilians freeze”, however, would undoubtedly be illegal as, effectively, an attack on civilian property. The problem with ordering, in practice, is thus that clear evidence of orders of war crimes may not always be forthcoming. Heads of state may make sure that nothing is left on the record that suggests they explicitly ordered war crimes, leaving the prosecutor in a trial with only circumstantial evidence.

7.3.2 Establishing the Existence of Orders from the Existence of a Pattern of War Crimes In the absence of evidence of instructions issued by the head of state, ordering can thus alternatively be inferred from a pattern of crimes.29 According to the ICTY in the Gali´c case, this circumstantial evidence includes: the number of illegal acts, the number, identity and type of troops involved, the effective command and control exerted over these troops, the logistics involved, the widespread occurrence of the illegal acts, the tactical tempo of operations, the modus operandi of similar acts, the officers and staff involved, the location of the superior at the time and the knowledge of that officer of criminal acts committed under his command.30

When using indirect or circumstantial evidence, however, the existence of orders and of ordering liability must be the only reasonable inferences flowing from the circumstances.31 In the case of Dragomir Miloševi´c, for instance, the Trial Chamber of the ICTY did not base its conviction on specific instructions issued by the commander, but rather on the global character of the attacks launched by the armed forces under his command. The Appeals Chamber, however, found that the issuance of the instruction by the accused could not be inferred from the circumstances beyond 28

Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and Relative to the Protection of Victims of International Armed Conflicts, opened for signature 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1979) (API) Articles 52 and 54; Rome Statute, above n 2, Article 8(2)(b)(iii) and (xxv). 29 See, a contrario, Gbagbo 2019, above n 14, para 1972. 30 Gali´ c 2003, above n 21, para 171. 31 Ventura 2019, para 53.

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reasonable doubt. As the Chamber underlined “when applying such an approach to the facts of the case, great caution is required.”32 Indeed, it is hard to conclude to responsibility beyond reasonable doubt, based only on a pattern of crimes, despite extremely strong suspicions of overall responsibility of the head of state. Inference from a general pattern might still be, in the case of Putin, the best chance for establishing ordering. In the case of the war in Ukraine, many of the war crimes that have presumably been committed seem to follow a global strategy; they occur on many different battlefields or are of a nature that supposes orders or assent in the highest spheres. The UN Independent Commission on Ukraine found a “pattern” of Russian forces shooting civilians fleeing to safety in all four regions under inquiry (Kyiv, Chernihiv, Kharkiv and Sumy).33 It also observed a “pattern” of summary executions in zones occupied by Russia, in all four regions.34 In these cases, for example, it could be argued that the repeated character of such attacks suggests the issuance of an order at the highest military level. Some crimes, in fact, can hardly occur without the instruction of the head of state, for example, if they require acquiescence at the highest level of the state or if they mobilize considerable state resources. The issuance of nationality documents to Ukrainians forcibly displaced to Russia, or the massive abduction of Ukrainian children and their transfer to re-education camps or adoptive families in Russia35 stand out as examples. All in all, establishing Putin’s liability through ordering definitely presents challenges, especially since there will, in all likelihood, be no or little material evidence of orders issued directly by him. Liability could, however, be established through the finding of a pattern of war crimes if the existence of an order is the only reasonable inference from the evidence. This puts the bar quite high, but the option still exists and may be relevant due to the scale of similar war crimes occurring simultaneously on many battlefields in Ukraine. The next section will nonetheless focus on another option to establish a head of state’s liability, superior or command responsibility.

7.4 Command/Superior Responsibility A finding of responsibility of a head of state through orders to commit war crimes remains a more direct and dramatic approach, one that makes the most sense of the popular intuition that the head of state who launched a war of aggression for example is also fundamentally responsible for violations of the laws of war committed therein. At the same time, there is no necessary connection between launching a war 32 ICTY, Prosecutor v. Dragomir Milosevic. Appeal Judgement, Judgment, 12 November 2009, Case No. IT/98/29/1-A (Milosevic 2009), para 265; see also paras 266–267. 33 UN General Assembly, Report of the Independent International Commission of Inquiry on Ukraine, UN Doc. A/77/533, 18 October 2022, paras 56–58. 34 Ibid., para 65. 35 Yale School of Public Health, Humanitarian Research Lab 2023.

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of aggression and committing war crimes therein. Moreover, as discussed in the previous section, proving orders, even inferentially, may be challenging. This is why command/superior responsibility for the acts of subordinates that one omitted to prevent and repress remains at least a second-best option. Indeed, even if a head of state has ordered the commission of some war crimes, it stands to reason that they will not have ordered all war crimes in a war. Their responsibility can thus be engaged subsidiarily on the basis of command/superior status. In fact, there is an arguable case that command responsibility is worse than that of the direct perpetrators. As the Prosecutor put it in the Bemba case (perhaps retrospectively a bit uncautiously in that case), “A commander who lets his troops carry out such criminal tactics is a hundred times more dangerous than any single rapist.”36 This makes sense, a fortiori, of the unique position of the head of state who lets an entire army commit crimes. In order to establish command/superior responsibility for international crimes, one needs to demonstrate a superior-subordinate relationship, in which the superior exercises effective control, a causal relationship between the commission of international crimes and the failure of the superior to exercise effective control to prevent and punish them, a mental element that differs depending on whether the superior is a military commander or a civilian superior, and a failure to take reasonable measures to prevent or punish. In this section, we, therefore, review if Putin’s case could satisfy the elements of command or superior responsibility. We first briefly examine the notion of effective control in relation to Putin (Sect. 7.4.1). We then discuss what kind of a “superior” Putin is in relation to the Russian army (civilian or military) (Sect. 7.4.2) and, accordingly, what kind of knowledge, actual or imputed, he ought to have had to be responsible (Sect. 7.4.3). We then briefly analyze what counts as a failure to exercise control properly (Sect. 7.4.4) and finally look at what kind of corrective action he could be expected to adopt as head of state to remedy the commission of war crimes (Sect. 7.4.5).

7.4.1 Does Putin Have Effective Control Over the Russian Armed Forces? Command responsibility was largely invented as a result of the operation of international humanitarian law (although it has since been extended to all core crimes in the Rome Statute).37 It was felt that military commanders as actors operating particularly close to the field, with considerable authority and disciplinary power as well as wielding a highly exorbitant ability to use force, ought to be criminally responsible for the acts of their subordinates in some circumstances. Famously, Yamashita, the Commanding General of the Fourteenth Army Group of the Imperial Japanese Army in the Philippine Islands was convicted of war crimes under command responsibility 36 37

International Criminal Court 2010. See API, above n 19, Articles 86–87; Rome Statute, above n 2, Article 28.

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by US tribunals.38 As to the responsibility of civilian superiors, it was developed by the ad hoc international criminal tribunals and first codified under the Rome Statute, which sketches close but distinct regimes for each, with somewhat less onerous duties attached to civilian superiors. As the Yamashita case illustrated, however, the challenge is that commanders or superiors may not always be able to exercise de facto the authority they have de jure. Here the Rome Statute clarifies that, whether civilian or military, the superior must have exercised “effective authority and control” over subordinates who have committed crimes. The rationale for this requirement is that if an accused has no such control over his subordinates, he cannot take measures to prevent and repress as is required to establish this mode of liability. Outside situations where troops have gone “rogue” or are otherwise unreachable and separated from the chain of command, heads of state typically exercise effective authority and control over their armed forces. Note that such authority and control are not excluded merely because soldiers committed war crimes ultra vires, since soldiers most likely remain under a chain of command even in those cases. One issue that may come up, however, is the extent to which Putin as President has effective command/authority or control over the Wagner Group. That group, a private military company, acts as a proxy in Ukraine and beyond for the Russian government and is allegedly committing war crimes. Wagner is not a de jure organ of the Russian state, despite its proximity to the Kremlin. The threshold of “effective control” of non-state actors, especially extra-territorially, as set out by the International Court of Justice (ICJ) for the purpose of state responsibility, is quite stringent, requiring almost “complete dependence”.39 But the standard of control for the purpose of individual criminal liability through command or superior responsibility is presumably not as strict and is better understood, in fact, as one of “overall control”.40 Paradoxically, if anything, Putin may have more effective control of the Wagner Group as an individual than the Russian state does. Indeed, evidence suggests that the Wagner Group, which is headed by a Putin protégé (Yevgeny Prigozhin, his former cook) is more responsive to him than to the Russian army. At the same time, there have been suggestions that Prigozhin is emerging as a possible contender for power in Russia and is therefore not simply an instrument of the Kremlin. Obviously, these issues would have to be parsed in more detail in a court of law, but it seems neither impossible nor inevitable that the Russian President would have the sort of effective control of the Wagner Group that would engage his personal command/ superior responsibility. 38

United States Supreme Court, In re Yamashita, Judgment, 4 February 1946, 327 US 1. ICJ, Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgement, 26 February 2007, ICJ Rep 43, para 397; ICJ, Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgement, 27 June 1986, ICJ Rep 14, para 109. 40 ICTY, Prosecutor v. Dusko Tadi´ c, Appeal Judgement, 19 July 1999, Case No. IT-94-1-A (Tadi´c 1999), para 145; Kotzamani 2020, p 1129. 39

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7.4.2 What Kind of “Superior” Is the Head of State? The insistence on command responsibility is a typical requirement in the laws of war and flows naturally from the strict hierarchical nature of the military. The partial extension of that regime to civilian superiors is a more recent phenomenon, albeit one based on conclusive evidence that local officials, for example, may have a significant commanding role in the commission of international crimes, including war crimes. That evolution is trickier because civilian superiors are not embedded in the same strict command hierarchy as the military. Accordingly, as we will see, knowledge requirements are more onerous in the case of military commanders (including knowledge they should have had) than in that of civilian superiors (only extending to a sort of willful blindness). A significant step in the present analysis is therefore to determine whether a head of state is a civilian or a military commander. Whilst the ICC Prosecutor has apparently concluded that if anything Putin is a civilian, we believe the possibility that he is a de facto commander is worth entertaining here. Proving that he is a military commander may be advantageous in pursuing a case against Putin given the more exacting mens rea requirements that bear on such commanders. Whilst there is reason to think that members of the government are generally civilian, the head of state specifically, as typically the commander of the armed forces, is someone who may well have a kind of overall control of military operations and may even have a military background. It has long been considered that the head of state may incur responsibility as a military commander if he is, indeed, a military commander or a “person effectively acting as a military commander”. Moreover, it is certainly not impossible that “a defendant exercised both civilian and military responsibilities at the time relevant to the charges or where the nature of his authority might have evolved over a period of time from military to civilian or the other way round.”41 Indeed, according to the Russian Constitution, the President of Russia is the Commander in chief of the army. Formally, he also has an important role in military operations since he signs the Military Doctrine which enunciates the strategic orientations of the armed forces and appoints and dismisses the supreme command of the army.42 As Guenael Mettraux put it, since commanders do not need to have exclusively military functions, Article 28 “could (…) theoretically be interpreted as encompassing the case of a head of state who, by law or under the Constitution, is the commander-in-chief of the army and who is charged pursuant to that doctrine in relation to the actions of members of the armed forces”,43 as long as they have effective command and control over the military forces. It could be of course that the military command in question is largely ceremonial (e.g.: the British monarch) or that there are strong domestic constitutional reasons for considering that the head of state is very much a civilian commander of the armed forces. This suggests that what may be most relevant, beyond the particulars of his 41

Mettraux 2009, p 27. Constitution of the Russian Federation, Article 83(h)(k) and 87. 43 Mettraux 2009, p 28. 42

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formal responsibilities, is the sort of command that the head of state actually does exercise. Crucially here, one may be a military commander de facto even if one is not de jure but also a fortiori when one is de jure. As the ICC put it in the Bemba case, the category of persons effectively acting as military commanders “refers to those who are not elected by law to carry out a military commander’s role, yet they perform it de facto by exercising effective control over a group of persons through a chain of command.”44 Significantly, Bemba, was deemed by the ICC to be a commander for the purpose of Article 28, based on his effective role rather than on its formal qualification, as Vice-President of the Democratic Republic of Congo (DRC). As it happens, Putin has notoriously had a hands-on approach to military operations in Ukraine, often overruling his generals in ways that suggest that in addition to being a de jure military commander, he very much effectively acts like one.45 Moreover, several commentators have reported Putin is highly involved operationally in the war in Ukraine down to “the level of a colonel or brigadier”.46 If such information was confirmed in front of a criminal tribunal, it would reinforce a sense that his de jure responsibilities were also very much de facto and that they fully qualify him as a military commander. But even if the head of state is not considered to be de jure or de facto a military commander, their responsibility can obviously still derive from their status merely as civilian superiors, as has been repeatedly the case in the past. Superior rather than command responsibility of a head of state for war crimes has been established by the Tokyo Tribunal in the case of Tojo Hideki because he had effective control over the direct perpetrators, knew about the treatment of prisoners of war, and did nothing to prevent or punish the war crimes being committed,47 as well as Karl Dönitz.48 Much later, Hissein Habré was convicted of war crimes committed by the state armed forces and the intelligence services under superior responsibility.49 In these cases, the war crimes concerned the protection of persons in the hands of the state, rather than the conduct of hostilities. In the case of Charles Taylor, however, the SCSL decided that the superior responsibility of the former president, who gave guidance, advice, instruction and direction to commanders of armed groups—rather than the Liberian armed forces, in this case, was not satisfied because he exercised substantial influence rather than control over the perpetrators.50 This hinted strongly, a contrario, at the possibility of superior responsibility of the head of state, even for the conduct of hostilities, assuming that control was sufficient. 44 ICC, Prosecutor v. Jean-Pierre Bemba Gombo. Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, Pre-Trial Chamber II Decision on the Confirmation of Charges, 15 June 2009, Case No. ICC-01/05-01/08 (Bemba 2009), para 409. 45 Barnes et al. 2022. 46 Sabbagh 2022. 47 Tokyo Judgment, above n 5, pp 49, 846–849 and 846. 48 The ONI Review 1946. 49 Habré 2016, above n 11, paras 2291–2292. 50 Special Court for Sierra Leone, Prosecutor v. Charles Ghankay Taylor, Judgment, 18 May 2012, Case No. SCSL-03-01-T (Taylor 2012), paras 6979–6986.

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In sum, Putin could well be held liable under superior responsibility, if an effective command relationship with the physical perpetrators of alleged war crimes could not be established, although the challenge would lie in the mens rea, the standard for which is higher for civilian superiors.

7.4.3 What Does a Head of State Need to Know to Be Liable? Whether a commander or a superior, the key is that there be some kind of knowledge, subjective or constructive, of war crimes being committed by subordinates. What, then, are the knowledge requirements for criminal responsibility of the superior to be established? The thresholds vary significantly for military and civilian superiors and, for the purpose of this chapter, both will be entertained. As stated earlier, Putin may qualify as a military commander. For military commanders, it suffices that “owing to the circumstances at the time, (they) should have known that the forces were committing or about to commit such crimes”. As to a civilian superior, they may be liable but only if it can be proven that “they consciously disregarded information which clearly indicated that the subordinates were committing or about to commit such crimes”. Article 28 of the Rome Statute thus objectivizes the responsibility of military commanders (“should have known”) where it retains a subjective threshold for civilian superiors who need to have been confronted with clear information (“consciously disregarded”). This has been a motif of concern in the literature that we cannot explore here. We note, however, that even if one considers that this is tantamount to a standard of criminal negligence, there are now powerful normative justifications that such a standard responds to a specific need in international criminal law. This is notably when it comes to those higher up the hierarchy who “should know better” given the resources at their disposal and the responsibilities that weigh on them.51 Criminal negligence, to the extent that it manifests a fundamental disregard for human life, is a guilty state of mind. Command responsibility of that kind may only be technically a responsibility as an accessory, but it is certainly no less grave. We leave aside here any reservations one may have about such a distinction specifically in the case of the head of state, who may be nominally a civilian but whose “effective authority and control” over military subordinates might be thought to be as solid as any military superior’s and who may have a much broader ability to appraise themselves of the commission of war crimes on an entire theatre of war. The risk, at any rate, is that heads of state will benefit from and even organize, encourage or tolerate systems of “non-knowledge” that ensure that they are immune from the consequences that would flow from knowledge. This is a classic of organizational criminality, one whereby would-be criminals operate on a need-to-know basis and protect themselves from being compromised by making sure ex ante that they will not be confronted with the knowledge that could implicate them. 51

Robinson 2017.

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Note that whilst there is a definite objectivization of what leaders should do once they know that war crimes may have been committed (take all reasonable measures within one’s power, see infra), there is no clear a priori obligation, particularly for the civilian superior, to deploy such a reasonable standard of diligence when it comes to knowledge collection, at least in a presumptive state of non-commission of war crimes. However, the fact that military commanders at least will be liable if “owing to the circumstances at the time, they should have known that the forces were committing or about to commit” crimes, at least objectivizes the standard somewhat and hints at something proactive. Indeed, the Preliminary Chamber of the ICC in the Bemba case interpreted the “should have known standard” as implying “an active duty on the part of the superior to take the necessary measures to secure knowledge of the conduct of his troops and to inquire, regardless of the availability of information at the time on the commission of the crime”.52 Are there, nonetheless, any circumstances where one would conclude to an “innocent” lack of knowledge by the head of state about war crimes? First, it is true that the tactical conduct of military operations may be far below the responsibilities of a President, who only involves themself at best in broader strategic questions. Putin might argue that he is not “responsible, since war crimes were actions motivated by revenge by ill-disciplined, depraved soldiers not acting according to a chain of command that leads all the way back to the Kremlin”53 and that he did not know about them. One legitimate question, then, is whether heads of state (and every level of commandment) should create structures for any information regarding war crimes to circulate back to them even if they are committed on a tactical level. We contend that this is the case. It is evident that war crimes should attract particular normative alarm and that they have, in fact, a strategic dimension that bears on the entire nature of war. What is relevant is not the particular military and operational context within which they are committed but quite simply the fact that they are committed. Whether the standard is the “should have known” of a military commander or “consciously disregarded information” of a civilian superior, the suggestion is that those standards should be interpreted particularly strictly in the case of a head of state with considerable access to information. Second, it may be that their subordinates deliberately hide information from their superiors, including heads of state. There have been suggestions, for example, that Putin’s inner circle, including his military advisers, do not disclose all information to him and may in fact keep bad news undisclosed. This would presumably mostly concern negative operational news. One would certainly hope that war crimes would be considered “bad news”, but it ought to be considered bad news of a different kind subject to a high obligation of “upward” disclosure and “downward” curiosity. Failure to have been informed could nonetheless theoretically negate a mens rea of knowledge in conditions where there were no clear indicia of the commission of such crimes otherwise, especially if the head of state is considered a civilian superior and can claim that nothing was presented to them. 52 53

Bemba 2009, above n 34, para 433. Bufacchi 2022, p 3.

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Nonetheless, even in the case where it cannot be established through direct evidence that the head of state had knowledge of crimes being committed, evidence of knowledge can be derived from factors such as the number of illegal acts, the scale of their commission, the time over which they occurred, the number of forces involved, the modus operandi and the notoriety, including within media reports, of such acts.54 In the Russian case, Putin could not claim that he had no idea that at least allegations of war crimes were being made. This is a fortiori the case for a head of state acing as a military commander, who ultimately ought to know that his subordinates are (as the case may be) hiding information from him. Third, and more problematically, it may be that the head of state does not “believe” information that does come back to them about the commission of war crimes. Let us distinguish this from a scenario of willful blindness wherein a person briefly becomes cognizant of a crime being committed but deliberately pushes away that thought. Willful blindness is sufficiently close to knowledge that it can, in fact, be considered a form of knowledge and fulfils the lower mens rea standard associated with the responsibility of the civilian superior, which has been interpreted as including the mere possession of information, even if one didn’t acquaint himself of it.55 Aside from willful blindness, then, what of the possibility that Putin genuinely does not believe (to some extent at least) that war crimes are being committed by Russian troops? This is not inconceivable. The war in Ukraine is clearly being fought on the basis of thick ideological presuppositions that may act as powerful blinders. Claims of war crimes by Ukraine may be seen as merely an act of propaganda. Allegations of war crimes in Bucha, for example, have been dismissed as Ukrainian propaganda and as “staged”. Of course, it is entirely possible that the Russian political apparatus is merely cynical about war crimes, and claims that they have not been committed whilst knowing full well that they have. As Kenneth Roth put it, “We don’t know exactly what information reaches Putin, but it is difficult to imagine that he is oblivious to the massive global media attention to, for example, the summary executions in Bucha or the indiscriminate bombardment of Mariupol and Kharkiv.”56 We cannot make a final determination on this. It remains possible (although not probable) that the Russian government is genuinely delusional in a way that makes actual knowledge difficult to pinpoint. However, at least in the case of a military commander, this sort of delusion would be a hard claim to make given the obligation to know, except in “circumstances” that were objectively ambiguous. This is a fortiori the case for a (dictatorial) head of state with a bird’s-eye view of a conflict and the ability to demand investigations and accountability. Still, it remains possible in all the above hypotheses that the lack of knowledge may be a product of cognitive biases in a sort of “one only sees what one wants 54 Bemba 2009, above n 34, para 431; ICC, Prosecutor v. Jean-Pierre Bemba Gombo, Judgment, 21 March 2016, Case No. ICC 01/05-01/08-3343 (Bemba 2016), para 193. 55 ICTY, Prosecutor v. Delali´ c et al., Appeal Judgment, 20 February 2001, Case No. IT-96-21-A (Delali´c et al. 2001), para 239. 56 Roth 2022.

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to see” fashion. In other words, one’s analysis may be hampered by ideological blinders in a context where one is expected by the international community to analyze facts objectively. Russia as a state, and all superiors within the chain of command who are informed of war crimes allegedly being committed, including Putin, are certainly under an obligation to investigate allegations of war crimes,57 in ways that frame how plausible any particular government members’ protestations of ignorance, particularly the head of state’s, are.58 If nothing else, this underscores the importance of proving that Putin can indeed be considered a military commander, because of the way that signals a higher obligation to, as it were, not be deluded. Moreover, in all these cases, information gathering ought to be understood as a dynamic process, especially for a head of state representing his country and with full control over its military. Once commanders become aware of any possibility of war crimes having been committed, they are arguably “put on notice”59 of such crimes and this in itself triggers expectations of reasonable and necessary response to confirm or infirm their suspicion, by virtue of the “should have known” standard. In such a case, “failure to conclude, or conduct additional inquiry, in spite of alarming information constitutes knowledge of subordinate offences.”60 As the ICTY Appeals Chamber put it in the Strugar case, moreover, one is arguably on notice not just of those particular crimes but of what might be termed “the possibility of ongoing and further crimes”: “while a superior’s knowledge of and failure to punish his subordinates’ past offences is insufficient, in itself, to conclude that the superior knew that similar future offences would be committed by the same group of subordinates, this may, depending on the circumstances of the case, nevertheless constitute sufficiently alarming information to justify further inquiry under the ‘had reason to know’ standard.”61 In other words, even though at t − 1, on a generous reading, the commander or superior may not have an obligation to particularly be aware of war crimes (and must be proven to have shut their mind to actual information), at t + 1, when information has started percolating of actual crimes they are already in a situation where they must take all reasonable measures within their power to stem a situation of actual but also potential war crimes commission. And what better way to do this than, precisely, to deploy deliberate and proactive efforts to make sure that they are cognizant of such crimes happening as they happen? In other words, it does not seem impossible to understand the mens rea requirement of Article 28 as already and necessarily partly folded into the proactive “measures” leg of the same Article. Because of the ongoing nature of war crimes committed by subordinates, every action to respond to past crimes also counts towards building awareness of future crimes. 57

See, for example, Geneva Convention IV, above n 9, Article 146; Rome Statute, above n 2, Article

6. 58

Geneva Convention IV, above n 9, Article 146. ICTY, Prosecutor v. Delali´c et al., Judgement, 16 November 1998, Case No. IT-96-21-T (Delali´c et al. 1998), para 383. 60 Ibid., para 232. 61 ICTY, Prosecutor v. Pavle Strugar, Appeal Judgment, 17 July 2008, Case No. IT-01-42-A (Strugar 2008), para 301. 59

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Moreover, we suggest that the appreciation of both standards ought to take into account the particular circumstances of a (authoritarian) head of state as someone with unique access to information and responsibility to garner it. We, therefore, contend that it is highly probable, in the current circumstances, that Putin either “should have known” as a military commander or even “consciously disregarded” as a civilian superior information on the possibility or occurrence of crimes.

7.4.4 The Crimes Were Committed as a Result of a Failure to Exercise Control Properly The element of the superior or command responsibility must be read, moreover, in toto and include an appropriate emphasis on the requirement that the crimes have been committed “as a result of his or her failure to exercise control properly”. This provides a framing of command/superior responsibility that sees responsibility as flowing, fundamentally, from a failure to “do one’s job”, specifically understood as exercising proper control over one’s subordinates. This formula, repeated in both Article 28(a) (commanders) and Article 28(b) (superiors) and thus part of the “chapeau” of command responsibility, has a significant framing role. It can, for example, help contextualize the particular circumstances in which key information is or is not acquired. It is the absence of proper control over one’s troops that one, in fine, becomes unaware of their doings. There is thus a particular onus on the head of state to exercise their control properly. This will avoid a situation where access to knowledge is preempted, compromised or filtered in ways that make it inevitable that it will be consciously neglected. In a sense, all war crimes committed in Ukraine and subsequently neither investigated nor punished are ultimately (and at best, since he may also quite simply have ordered them) the result of Putin not having broadly exercised control over Russian troops to make sure they did not commit war crimes.

7.4.5 What Counts as a Failure to Take All Necessary and Reasonable Measures within One’s Power? Once that basic knowledge element has been proven, it must be demonstrated that the military commander or superior “failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution”. The standard is thus effectively the same, whether the individual in question is classified as a civilian or military. This is notoriously what proved difficult in the Bemba case and may still be problematic in the case of a Putin trial—although one would hope that the Prosecutor

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will be warned this time of the pitfalls of not thinking through thoroughly how to prove that not all reasonable measures were taken. Indeed, one of the important take-homes of the Bemba case is that what constitutes “necessary and reasonable measures” must be assessed on a case-by-case basis “in concreto”, in view of the material power of the superior (in that case a military commander)62 and what means were at his disposal in the circumstances at the time. As the Appeal Chamber notoriously put it: it is not the case that a commander is required to employ every single conceivable measure within his or her arsenal, irrespective of considerations of proportionality and feasibility [...] This means that a commander may take into consideration the impact of measures to prevent or repress criminal behavior on ongoing or planned operations and may choose the least disruptive measure as long as it can reasonably be expected that this measure will prevent or repress the crimes.63

The appeal judgment in Bemba has certainly lowered expectations about the measures that should be taken by a head of state, insisting on the fact that operational considerations and preferences must be taken into account in determining if a commander has taken all possible and reasonable measures. In short, “a commander cannot be blamed for not having done something he or she had no power to do.”64 According to the Appeals Chamber, the impact of remoteness, in the case where troops are operating in a foreign country, on the ability of the head of state to prevent and punish crimes should be taken into account.65 While this factor has been widely criticized in and of itself,66 it should be understood in the context of the specific facts of the Bemba case and obviously not as impugning the very possibility of a head of state liability. How far, then, would Putin, as a head of state, specifically need to go once he was appraised of the likelihood of war crimes having been committed and what is “necessary and reasonable” in the circumstances of Ukraine? The Bemba case concerned the leader of an armed group operating relatively remotely at the invitation of a foreign country, whilst Putin is the head of state and ultimate commander of the Russian armed forces, a very rigidly hierarchic and top-down structure, operating with the full backing of the Russian state and its justice system and attacking another country but occupying significant parts of it. Whilst Bemba, in fact, seems to have been positively diligent and was eventually acquitted because he was not required to “employ every single conceivable measure within his or her arsenal, irrespective of considerations of proportionality and feasibility,” it seems that the reproach when it comes to Putin is that he has taken none of the measures that he could take.

62

Bemba 2016, above n 43, paras 197–198. ICC, Prosecutor v. Jean-Pierre Bemba Gombo, Appeal Judgment, 8 June 2018, Case No. ICC-01/ 05-01/08 A (Bemba 2018), paras 169–170. 64 Ibid., para 167. 65 Ibid., para 171. 66 Sadat 2018, Jackson 2018. 63

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As per Bemba, the standard is, in concreto, that “the commander did not take specific and concrete measures that were available to him or her and which a reasonably diligent commander in comparable circumstances would have taken.”67 In that context, we contend that there is no shortage of necessary and reasonable measures that a head of state can and should adopt in circumstances where its armed forces are committing war crimes and that fall well within their prerogatives (especially authoritarian heads of state). One would expect a head of state “genuinely” committed to making sure that war crimes are not committed but suspecting that some have indeed been committed to, for example: (i) condemn such crimes publicly or at least to relevant military authorities or subordinates; (ii) order that they not be committed; (iii) express support for prosecutions; and (iv) exercise executive authority to reform, change the high command or otherwise improve the armed forces’ ability and willingness to not commit war crimes, including by removing “problematic” troops from the front. There have not remotely been any signs of such diligent action; instead, most of the energy of the Russian presidency has been spent denying that war crimes were committed, where a “commander respecting their legal obligations, upon learning of such atrocities, would immediately order troops to stop.”68 By contrast, there are a number of measures actually adopted by Putin that suggest exactly the opposite of adopting the necessary and reasonable measures to ensure that war crimes are not committed. These include, for example, the award of an honorary title to the 64th Separate Guards Motor Rifle Brigade, which has been accused of committing war crimes in Bucha, including indiscriminate bombings and executions. The letter signed by Putin himself congratulates the unit staff for being “a role model in fulfilling its military duty, valor, dedication and professionalism.”69 Human Rights Watch had similarly earlier pointed out that Putin conferred the Hero of Russia award, the nation’s highest honor, to two Russian generals accused of committing war crimes in Idlib in Syria.70 Such awards can be understood as “tacitly giving the green light for more […] atrocities.”71 Finally, we note the special position of the head of state in relation to the state’s international obligations. The head of state is not just a superior, he is the ultimate political authority in the country. The state itself is obliged not only to “respect” but to “ensure respect” of the Geneva Conventions. This suggests that there is little doubt that on a sovereign level, the obligation is one of proactivity and of guaranteeing to the international community that war crimes will not be committed. The head of state, endowed with the greatest powers available constitutionally, clearly has a particular responsibility to adopt exemplary measures.

67

Bemba 2018, above n 52, para 170. Roth 2022. 69 Ibid. 70 Ibid. 71 Ibid. 68

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7.5 Conclusion This chapter has outlined typical ways in which a head of state might be found culpable of war crimes. In that context, it has been suggested that theories of coperpetration based on the “control” of co-perpetrators find their limits in relation to a head of state. They could, in fact, end up paradoxically minimizing the responsibility of the head of state by not taking advantage of the very real superior responsibility that is vested in them. The personal responsibility of Putin for war crimes allegedly committed in Ukraine is better understood as resulting from orders or command or superior responsibility. In addition, on the basis of available facts, such accusations seem highly plausible. The level of war crimes being committed in Ukraine suggests, if not direct orders, at least a callous indifference to the violation of the laws of war on Russia’s side. This is not compatible with any suggestion that such crimes are the product of rogue actors operating far from the Kremlin’s direct operational reach. Putin will have been put repeatedly on notice by credible sources about the likelihood of crimes being committed. The economy of the laws of war suggests that all allegations of war crimes should be taken with the utmost seriousness and this is simply not what one has been seeing, suggesting a grave failure of leadership. As mentioned in the introduction, if Putin was to be brought to trial for war crimes, it would not be the first time a head of state has to face justice for the crimes committed by his subordinates in the course of an armed conflict. Although beyond the scope of this chapter, it is worth noting that in addition to ordering and command/ superior responsibility, joint criminal enterprise was also used to prosecute Slobodan Miloševi´c and Milan Marti´c at the ICTY, and Hissein Habré at the EAC. As to Taylor, although ordering and superior responsibility were not successfully pleaded, he was convicted of planning and aiding and abetting war crimes by the SCSL.72 Finally, in the warrant of arrest issued by the ICC for Al Bashir, both indirect perpetration and indirect co-perpetration73 were mentioned, while Fujimori was convicted under indirect perpetration for crimes against humanity, by the Supreme Court of Peru in 2009.74 This confirms the existence of alternatives to ordering or superior/command responsibility, although these two probably most do justice to the special responsibility of the head of state in the case of the Ukraine invasion, with an overarching responsibility for setting the tone in a military campaign. Nonetheless, what the war in Ukraine suggests is that, ultimately, the laws of war struggle with the special place of the head of state. In the conventional model, war crimes are imagined to be relatively marginal and committed by “bad apples”, with much hope vested in the state repressing them. Even if it hardly does so always, this is still a qualitatively different situation from a campaign of war crimes flowing directly from the highest echelons of the state. In that scenario, the head of state is doubly 72

Taylor 2012, above n 40. ICC, Situation in Darfur, Sudan in the Case of the Prosecutor v. Omar Hassan Ahmad Al Bashir (‘Omar Al Bashir’). Warrant of Arrest for Omar Hassan Ahmad Al Bashir, Judgment, 4 March 2009, Case No. ICC-02/05-01/09 (Al Bashir 2009), p 7. 74 See Ambos 2011. 73

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responsible, in a sense: for ordering or allowing war crimes to be committed in the first place in flagrant violation of his international duties; and for simultaneously making sure that these crimes are neither prevented nor repressed by providing them with the highest political and ideological cover.

References Articles, Books and Other Documents Aksenova M (2015) The Modes of Liability at the ICC: The Labels that Don’t Always Stick. International Criminal Law Review 15:629–664. Ambos K (2011) The Fujimori Judgment: A President’s Responsibility for Crimes Against Humanity as Indirect Perpetrator by Virtue of an Organized Power Apparatus. Journal of International Criminal Justice 9:137–158. Barnes JE, Cooper H, Schmitt E, Schwartz M (2022) As Russian Losses Mount in Ukraine, Putin Gets More Involved in War Strategy. https://www.nytimes.com/2022/09/23/us/politics/putinukraine.html. Accessed 21 March 2023. Bufacchi V (2022) War Crimes in Ukraine: Is Putin Responsible? Journal of Political Power 16(1):1– 6. Deletant D (2006) Hitler’s Forgotten Allies: Ion Antonescu and His Regime, Romania 1940–1944. Palgrave Macmillan, New York. Hildering A (2007) International Criminal Responsibility for Abuse of Power? ISYP Journal on Science and World Affairs 3:15–28. Human Rights Watch (2022) “We Had No Choice”: “Filtration” and the Crime of Forcibly Transferring Ukrainian Civilians to Russia. https://www.hrw.org/report/2022/09/01/we-had-no-choice/ filtration-and-crime-forcibly-transferring-ukrainian-civilians. Accessed 22 March 2023. International Criminal Court (2010) OTP Weekly Briefing 16-22 November 2010, https://www.icccpi.int/sites/default/files/iccdocs/otp/OTP_Weekly_Briefing_64-ENG.pdf. Accessed 3 April 2023. Jackson M (2018) Geographical Remoteness in Bemba. https://www.ejiltalk.org/geographical-rem oteness-in-bemba/. Accessed 1 March 2023. Kotzamani P (2020) Corporate Criminality and Individual Criminal Responsibility in International Law: Removing the Hurdles from the International Criminal Court’s Approach to Perpetration through Control of a Collective Entity. International Criminal Law Review 20:1108–1137. Márquez Velásquez MM (2022) Indirect Co-Perpetration: A Useful Prosecutorial Tool or an Excessive Amplification of Individual Liability? Cambridge International Law Journal Blog. http://cilj.co.uk/2022/07/30/indirect-co-perpetration-a-useful-prosecutorial-toolor-an-excessive-amplification-of-individual-liability/. Accessed 22 March 2023. Mégret F (2023) Immunities of Foreign Officials for International Crimes: The Dilemmas of Strategic Litigation. Journal of Human Rights Practice 15(1): 1–18. Mettraux G (2009) The Law of Command Responsibility. Oxford University Press, Oxford. Robinson D (2017) A Justification of Command Responsibility. Criminal Law Forum (28):633–668. Roth K (2022) Building a War-Crimes Case Against Vladimir Putin. https://www.theglobeandmail. com/opinion/article-building-a-war-crimes-case-against-vladimir-putin/. Accessed 31 October 2022. Sabbagh D (2022) Putin Involved in War ‘At Level of Colonel or Brigadier’, Say Western Sources. https://www.theguardian.com/world/2022/may/16/putin-involved-russia-ukr aine-war-western-sources. Accessed 21 March 2023.

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Sadat LN (2018) Fiddling While Rome Burns? The Appeals Chamber’s Curious Decision in Prosecutor v. Jean-Pierre Bemba Gombo. https://www.ejiltalk.org/fiddling-while-rome-burns-the-app eals-chambers-curious-decision-in-prosecutor-v-jean-pierre-bemba-gombo/. Accessed 1 March 2023. Stahn C (2020) Justice as Message: Expressivist Foundations of International Criminal Justice. Oxford University Press, Oxford. The Guardian (2022) “They Hunt Us Like Stray Cats”: Pro-Russia Separatists Step Up Forced Conscription as Losses Mount. https://www.theguardian.com/world/2022/jul/20/pro-russianseparatists-step-up-forced-conscription-as-losses-mount. Accessed 27 September 2022. The ONI Review (1946) The Trial of Admiral Doenitz. The ONI Review 1(12):2635. https://www.history.navy.mil/research/library/online-reading-room/title-list-alphabetically/ t/the-trial-of-admiral-doenitz.html. Accessed 22 March 2023. Van Sliedregt E (2012) The Curious Case of International Criminal Liability. Journal of International Criminal Justice 10(5):1171–1188. Ventura MJ (2019) Ordering. In: De Hemptinne J, Roth R, Van Sliedregt E (eds) Modes of Liability in International Criminal Law. Cambridge University Press, Cambridge, pp 284–306. Yale School of Public Health, Humanitarian Research Lab (2023) Russia’s Systematic Program for the Re-Education and adoption of Ukraine’s children. https://hub.conflictobservatory.org/por tal/sharing/rest/content/items/97f919ccfe524d31a241b53ca44076b8/data. Accessed 22 March 2023.

Cases Chambres Africaines Extraordinaires D’Assises, Ministère Public c. Hissein Habré, Judgment, 30 May 2016. ICC, Prosecutor v. Bosco Ntaganda, Appeal Judgment, 30 March 2021, Case No. ICC-01/04-02/ 06 A A2. ICC, Prosecutor v. Germain Katanga, Decision on the Confirmation of Charges, 30 September 2008, Case no ICC-01/04-01/07. ICC, Prosecutor v. Germain Katanga, Trial Chamber Judgment, 7 March 2014, Case no ICC-01/ 04-01/07. ICC, Prosecutor v. Jean-Pierre Bemba Gombo. Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, Decision on the Confirmation of Charges, 15 June 2009, Case No. ICC-01/05-01/08. ICC, Prosecutor v. Jean-Pierre Bemba Gombo. Trial Chamber Judgment, 21 March 2016, Case No. ICC 01/05-01/08. ICC, Prosecutor v. Jean-Pierre Bemba Gombo. Appeal Judgment, 8 June 2018, Case No. ICC-01/ 05-01/08 A. ICC, Prosecutor v. Laurent Gbagbo and Charles Blé Goudé, Decision on the confirmation of charges, 12 June 2014, Case no ICC-02/11-01/11. ICC, Prosecutor v. Laurent Gbagbo and Charles Blé Goudé. Reasons of Judge Geoffrey Henderson, Appeal Judgment, 15 January 2019, Case No. ICC-02/11-01/15 A. ICC, Situation in Darfur, Sudan in the Case of the Prosecutor v. Omar Hassan Ahmad Al Bashir (‘Omar Al Bashir’). Warrant of Arrest for Omar Hassan Ahmad Al Bashir, Judgment, 4 March 2009, Case No. ICC-02/05-01/09. ICC, Situation in the Democratic Republic of the Congo in the case of The Prosecutor v. Sylvestre Mudacumura. Public redacted version Decision on the Prosecutor’s Application under Article 58, Pre-Trial Chamber Judgment, 13 July 2012, Case No. ICC-01/04-01/12. ICJ, Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgement, 26 February 2007, ICJ Rep 43.

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ICJ, Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgement, 27 June 1986, ICJ Rep 14. ICTY, Prosecutor v. Delali´c et al., Appeals Judgment, 20 February 2001, Case No. IT-96-21-A. ICTY, Prosecutor v. Delali´c et al., Judgement, 16 November 1998, Case No. IT-96-21-T. ICTY, Prosecutor v. Dragomir Milosevic, Appeal Judgement, 12 November 2009, Case No. IT/98/ 29/1-A. ICTY, Prosecutor v. Dusko Tadi´c, Appeal judgement, 19 July 1999, Case No. IT-94-1-A. ICTY, Prosecutor v. Milan Babi´c, Judgment, 29 June 2004, Case No. IT-03-72-S. ICTY, Prosecutor v. Milan Marti´c, Judgment, 12 June 2007, Case No. IT-95-11-T. ICTY, Prosecutor v. Pavle Strugar, Appeals Judgment, 17 July 2008, Case No. IT-01-42-A. ICTY, Prosecutor v. Stanislav Gali´c, Judgment, 5 December 2003, Case No. IT-98-29-T. International Military Tribunal for the Far East, Judgment, 4 November 1948 (Tokyo Judgment). Special Court for Sierra Leone, Prosecutor v. Charles Ghankay Taylor, Judgment, 18 May 2012, Case No. SCSL-03-01-T. US Military Tribunal Nuremberg, High Command Trial. The United States of America vs. Wilhelm von Leeb et al, Judgment, 27 October 1948. United States Supreme Court, In re Yamashita, Judgment, 4 February 1946, 327 US 1.

Treaties Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War of 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950). Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and Relative to the Protection of Victims of International Armed Conflicts, opened for signature 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1979). Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002).

Frédéric Mégret is a Professor at the Faculty of Law, McGill University and the co-Director of the Centre for Human Rights and Legal Pluralism, (1) 514 398 5962. Camille Marquis Bissonnette is doctor in law, and currently a professor at Université du Québec en Outaouais.

Part III

Year in Review

Chapter 8

Year in Review 2022 Catherine Gregoire, Noemi Zenk-Agyei and Niamh Frame

Contents 8.1

Armed Conflicts and Related Developments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1.1 Afghanistan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1.2 Burkina Faso . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1.3 Colombia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1.4 Ethiopia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1.5 Israel/Palestine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1.6 Nagorno-Karabakh (Artsakh) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1.7 Kyrgyzstan/Tajikistan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1.8 Myanmar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1.9 Niger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1.10 South Sudan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1.11 Ukraine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1.12 Yemen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1.13 Other Potential Conflicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2 Courts and Tribunals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2.1 International Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2.2 Hybrid and Regional Courts and Tribunals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2.3 Human Rights Courts and Bodies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2.4 National Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.3 Arms Control and Disarmament . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.3.1 Arms Trade . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.3.2 Conventional Weapons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.3.3 Non-conventional Weapons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.3.4 Other Developments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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C. Gregoire (B) International Crime Cooperation Central Authority, Attorney-General’s Department, 3-5 National Circuit, BARTON ACT 2600, Australia e-mail: [email protected] N. Zenk-Agyei The Hague, The Netherlands e-mail: [email protected] N. Frame Glasgow, Scotland e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2024 H. Krieger et al. (eds.), Yearbook of International Humanitarian Law, Volume 25 (2022), Yearbook of International Humanitarian Law 25, https://doi.org/10.1007/978-94-6265-619-2_8

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Abstract The aim of the Year in Review (YIR) is to present an overview of significant developments that occurred in 2022 with notable relevance to international humanitarian law (IHL)/the law of armed conflict (LOAC). Firstly, the YIR evaluates potential situations of armed conflict that took place in the year, assessing their legal classification as either international or non-international armed conflicts, belligerent occupation, or situations not meeting the relevant legal criteria for the application of IHL. Secondly, the YIR provides a summary of relevant proceedings and developments in the prosecution of serious violations of IHL, such as war crimes, before international, hybrid, and domestic courts and tribunals. Lastly, the YIR highlights developments in the fields of arms control and disarmament related to IHL. Keywords International Humanitarian Law · Law of Armed Conflict · Non-State Armed Groups · Belligerent Occupation · War Crimes · Investigations · Prosecutions · Universal Jurisdiction · Courts and Tribunals · Arms Control · Disarmament · Conventional Weapons · Unconventional Weapons · Outer Space · Cyberspace

8.1 Armed Conflicts and Related Developments The year 2022 saw the beginning and continuation of ongoing armed violence, belligerent occupation, peace talks, and other related developments.1 These developments give rise to the question of whether international humanitarian law (IHL) applies.2 The purpose of this first section is to review armed hostilities and situations of occupation that occurred in 2022. Specifically, it will organize each development under the relevant state(s) involved and assess whether those hostilities met the classifications as either an international armed conflict (IAC), non-international armed conflict (NIAC), or belligerent occupation under IHL. The classification of potential armed conflicts determines which provisions of IHL apply.3 The following classifications will be applied and, where necessary, elaborated further for each hostility in this YIR section. IACs exist when one or more states have recourse to armed force in situations of “declared war or of any other armed 1

For the Year in Review 2021, see Sexton et al. 2023. Consistent with the Year in Review 2021, the term ‘IHL’ will be used throughout this chapter over the term—‘law of armed conflict’ (‘LOAC’)—; the LOAC is considered synonymous to IHL. 3 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 75 UNTS 31 (adopted 12 August 1949, entered into force 21 October 1950) (‘GCI’); Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 75 UNTS 85 (ibid.) (‘GCII’); Geneva Convention relative to the Treatment of Prisoners of War, 75 UNTS 135 (ibid.) (‘GCIII’); Geneva Convention relative to the Protection of Civilian Persons in Time of War, 75 UNTS 287 (ibid.) (‘GCIV’), Article 2. 2

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conflict (…) even if the state of war is not recognized by one of them.”4 Thus, it is widely accepted that the threshold of violence to trigger an IAC is considerably low, involving any form of unilateral armed force against another state, “even if the latter does not or cannot respond by military means.”5 There is also the situation of when a state engages in armed force with a non-state armed group (NSAG) on the territory of another state whose consent has not been obtained. Consistent with previous issues, this YIR follows the International Committee of the Red Cross (ICRC) which provides that such constitutes a breach of the latter state’s sovereignty and qualifies as an IAC.6 Situations of belligerent occupation also trigger the application of IHL applicable to IACs including provisions unique to situations of occupation (the law of occupation). Here, one state effectively controls the territory of another without the latter’s consent.7 Article 42 of the Hague Regulations provides that a territory is occupied when a hostile army establishes itself and exercises authority over it.8 The law of occupation applies even when situations of occupation are met with no armed resistance, and only ceases when the occupying army are “driven out of or evacuate the territory”.9 NIACs can come in two different forms: either as a conflict between a state(s) and an NSAG(s), or, as a conflict between two or more NSAGs. NSAGs are not recognised as a state and are only party to a NIAC when its characteristics indicate it as being sufficiently ‘organised’.10 The ICRC acknowledges that NSAGs in current times have various goals, structures, doctrines, funding sources, and military capacity and thus provide a broad interpretation of these characteristics.11 In any case, a NSAG commonly obtains a discernible “command structure and disciplinary rules and mechanisms within the group”, has control of territory, as well as the ability to plan, coordinate and carry out military operations and engage in peace negotiations.12 In a nutshell, these characteristics should give an armed group the “capacity to cause violence that is of humanitarian concern”.13

4

Ibid. 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, (Tadi´c 1995) para 70; ICRC 2016b, para 223; See also Akande and Saul 2020, pp 34–35. 6 ICRC 2020, para 293. 7 See Hague Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land (adopted 18 October 1907, entered into force 26 January 1910) U.S.T.S. 539, 2 A.J.I.L. Supp. 90, Annex to the Convention, Article 42. See also GCI-IV, above n 4, Article 2. 8 Ibid. 9 GCI-IV above n 4, Article 2; ICRC 2002, p 3. 10 Tadi´ c 1995 above n 5, para 70; ICRC 2021. 11 Ibid. ICRC 2021. 12 ICTY, The Prosecutor v. Ramush Haradinaj and others, Trial Chamber, Judgement, 3 April 2008, Case No. IT-04-84-T, para 60. 13 ICRC 2021. 5

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Building on this, a NIAC requires the existence of ‘protracted armed violence’ meaning that hostilities should be sufficiently intense between the relevant groups.14 Various indicators can be used to assess this, such as the number of attacks and civilians that have fled the affected area, the types of weapons used, and the control of territories by conflict parties.15 The protections afforded under Additional Protocol II of the Four Geneva Conventions of 1949 (AP II) apply only when first, the state party engaged in armed conflict with a NSAG is a party to AP II, and second, the armed conflict exists within the state party’s territory “between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement” AP II.16 As such, a NIAC ceases to exist only when: (i) the required organisation levels of one of parties also ceases to exist, (ii) armed violence between the parties have ended for a good amount of time and are unlikely to resume.17 Each criterion will be approached independently as part of the upcoming NIAC assessments.18 It is important to acknowledge that the legal classification of armed conflicts can be subjected to debate and may evolve over time. This YIR will identify such changes and debates where applicable. Therefore, the conflict classifications presented in this section should not be regarded as absolute assertions, but rather as analyses based on the information currently accessible. This section examines new conflicts and those which saw significant developments in 2022. Following from previous YIRs, this section substantiates its assessments of the various conflicts using relevant news sources (both local and international), reports of international organisations and non-governmental organisations, and academic commentary where relevant. When possible, priority has been given to open access resources to ensure that the YIR can serve as a valuable tool for additional research.

8.1.1 Afghanistan The ongoing armed conflict in Afghanistan underwent significant changes in 2022.

14

Tadi´c 1995 above n 5, para 70. ICTY, The Prosecutor v. Ljube Boškoski and Johan Tarˇculovski, Trial Chamber, Judgement, 10 July 2008, Case No. IT-04-82-T, para 177; Hrnjaz 2021. 16 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, 1125 UNTS 609 (adopted 8 June 1977, entered into force 7 December 1978), Article 1(1). 17 Geneva Academy of International Humanitarian Law and Human Rights 2020. 18 Also known as the approach of compartmentalising conflicts; see Sexton et al. 2023, p 196. 15

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Taliban Offensive: Going Forward In August 2021, US troops withdrew from Afghanistan and the Afghan National Security Forces (ANSF)—the official military and internal security forces of Afghanistan—were defeated by the Taliban (the ‘2021 Taliban Offensive’)—a Sunni Islamist nationalist and pro-Pashtun movement operating and ruling in parts of Afghanistan since 1996.19 Building from the YIR of 2021, for classification purposes, this development poses the question of whether the Taliban effectively represents the state of Afghanistan in 2022.20 Since the 2021 Taliban Offensive, various international governing bodies, such as the United Nations Security Council (UNSC), have confirmed that the Taliban represents the effective government of Afghanistan.21 As the following subsections reveal, Afghanistan continued to potentially engage in certain NIACs in 2022. Common Article 3 to the Four Geneva Conventions of 1949 and Article 1 of Additional Protocol II do not elaborate on the meaning of a state for the purposes of establishing a NIAC. Rather, the ICRC has interpreted both legal sources to define NIAC as “hostilities […] between governmental armed forces and non-governmental armed groups or between such groups only.”22 As such, the armed forces of the Taliban, now as the effective government of Afghanistan, represent the state of Afghanistan for the purposes of assessing NIACs in this YIR. Moreover, as the new representatives of Afghanistan, the international legal community called for increased and sustained dialogue with the Taliban on their IHL obligations.23 In 2021, the Taliban was recognised as increasingly engaging with IHL rules and agencies, as well as prospects for the adoption of mechanisms for IHL implementation, such as a “Commission for Prevention of Civilian Casualties and Inquiry of Complaints (PCCIC)”.24 Between 1 January and 21 May 2022, conflict-related security incidents and civilian casualties decreased by 467 per cent compared to the same period in 2021.25 In any case, the following assessments are conducted with the view that IHL may remain applicable to the state of Afghanistan regardless of potentially oscillating intensities of violence.26 Islamic State-Khorasan (IS-K) In 2022, the Taliban continued to engage in hostilities with the IS-K.

19

Maizland 2023; US Office of the Director of National Intelligence 2023. Sexton et al. 2023, pp 196–200. 21 UN SC (2022) Letter dated 25 May 2022 from the Chair of the Security Council Committee established pursuant to resolution 1988 (2011) addressed to the President of the Security Council, UN Doc. S/2022/419; see also Van Dongen and Farrell-Molloy 2022. 22 ICRC 2008, p 3–4. 23 Jackson and Amiri 2022; UN OHCHR 2022b. 24 Jackson and Amiri 2022; UN OHCHR 2023. 25 UN GA (2022) The Situation in Afghanistan and its Implications for International Peace and Security, Report of the Secretary-General, UN Doc A/76/862-S/2022/485, para 16. 26 Lewis et al. 2017, p 100. 20

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Following the previous issue, this YIR maintains the view that the organizational structure of terrorist groups, such as the IS-K, make it generally difficult to accurately assess them for the purposes of classification.27 In 2022, novel findings of the IS-K’s “local-foreign structure duality” potentially obscures this assessment.28 According to Ahmadzai (2022), the IS-K comprises of two organizational levels; the first being a core of well-organized, low-kept group of foreign militants, and the second being an outer layer of local militants serving as a protection to the core and the representational face of IS-K.29 Both layers reveal a distinct division of conduct, with the local militants bearing the tasks of inflicting physical violence, as well as facilitating accommodation and other services for the foreign militants who are oftentimes on the move.30 As a result, the local militants are innately “unstable” and “constantly changing” in an attempt to absorb and remain flexible to incoming attacks and demands.31 In 2022, the local militants were recognized as the Taliban’s main target raging one of their most “brutal campaign[s]” against them yet, resulting in the outer layer being heavily “thinned out”.32 In any case, despite these differences, the dual structure of the IS-K arguably represents an, albeit unique, all-encompassing and well-planned command structure intentionally adapting its conducts depending on the particularities occurring at the core. Moreover, as of April 2022, the IS-K doubled in size, and their attacks throughout the whole year are recognized as concerted efforts to destabilize the Taliban’s control and challenge their legitimacy as a state actor.33 Between December 2021 and February 2022, no large-scale conflicts between IS-K and the Taliban were reported.34 Nonetheless, the IS-K continued its military operations throughout the whole year, with 82 attacks targeting civilians recorded for the period between 1 January and 21 May with sporadic incidences continuing thereon.35 Civilian attacks up until 15 June resulted in 2,106 civilian casualties with a rise in casualties among minority groups.36 As of April however, deadly attacks began again conducted by both the Taliban and IS-K against each other. In June, summary executions of at least 59 suspected ISK supporters were carried out by Taliban forces, whilst IS-K claimed the killing of a senior Taliban cleric in Kabul, among others.37 More notable attacks occurred 27

Sexton et al. 2023, p 199. Ahmadzai 2022, p 5. 29 Ibid., pp 5–8. 30 Ibid. 31 Ibid. 32 Ibid. 33 Jones 2022; Van Dongen and Farrell-Molloy 2022; Jadoon et al. 2022, p 36. 34 International Crisis Group 2023b. 35 UN GA (2022) The Situation in Afghanistan and its Implications for International Peace and Security, Report of the Secretary-General, UN Doc A/76/862-S/2022/485, para 18. 36 UNAMA (2022) UN Releases Report on Human Rights in Afghanistan (15 August 2021–15 June 2022), Press Release, p 1. 37 Ibid., p 3; ACAPS 2022a, p 10. 28

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towards the end of the year. In August, IS-K members killed senior Talibanaffiliated cleric Rahimullah Haqqani.38 In September, IS-K forces killed Taliban cleric Mawlawi Mujib ur Rahman Ansari, while between October and November, the Taliban raided IS-K province hideouts countrywide leading to the capture of IS-K’s foreign liaison head and torture and detainment of residents.39 Interestingly, despite the decline in numbers of civilian and military casualties in comparison to 2021, the IS-K concerted twice as many attacks per month (an average of fourteen), as well as a notable expansion in geographical scope.40 As such, these hostilities demonstrate a comparable level of sustained intensity carried out by IS-K to suggest a protracted NIAC with the Taliban in 2022.41 National Resistance Front (NRF) Before the Taliban’s rise to power, a small-scale NIAC existed between the Taliban as a NSAG and the National Resistance Front (NRF)—a group of militia fighters loyal to the previous Afghanistan administration and opposing the Taliban.42 As the Taliban represents the effective government since 2022, it is of international opinion that any armed violence between the two parties should constitute as a continuation of their previous conflict classification.43 As such, the only assessment to be made concerns whether the conditions for declassification have been met. In a nutshell, the assessment of declassification involves answering the question of whether “there is a lasting cessation of armed confrontations without real risk of resumption of when one of the parties ceases to exist.”44 This can occur, for instance, when a NSAG does not demonstrate a required level of organization to qualify as a party to the NIAC. In the case of the NRF, reports have provided mixed views since the Taliban takeover. According to Institute for the Study of War, the NRF are comparatively lacking in unity and coordination, as well as external support.45 This is despite the fact that, in January, the NRF are deemed to have been spotted with newer weapons, indicating its increase in capacity and potential external support from Russia.46 However, despite their theorized capabilities, the NRF have comparably been identified by other sources as indeed having at least a sufficiently organized command structure throughout the year. In particular, two leadership figures who prescribe specific functions going down from spokesmen, a head of foreign relations,

38

Gul 2022. International Crisis Group 2023b; International Crisis Group 2022a, pp 19–20. 40 See n. 35; Koneska 2022. 41 See n. 35, para 15. 42 European Union Agency for Asylum 2023, p 10. 43 Geneva Academy of International Humanitarian Law and Human Rights 2023b. 44 ICRC 2016a, para 491. 45 Farivar 2022; Australian Strategic Policy Institute 2022 describes the NRF in 2022 as having “mounted increasingly organised and coordinated operations (…)”; for more on NRF see European Union Agency for Asylum 2023, pp 48–49. 46 Mills 2022b, p 4. 39

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and then to military commanders, have been identified of the NRF.47 According to the United Nations Assistance Mission in Afghanistan (UNAMA), this structure enables the NRF “to speak with one voice”, which is reflected in their use of social media and capacity to enter into negotiations and conclude agreements.48 What is more, the NRF remained concentrated in the northern provinces of Afghanistan, particularly Panjshir, Kapisa, Baghlan and Parwan, and collaborated sporadically with other anti-Taliban groups emerged in these areas in August 2021, such as the Andarab Resistance Front and the Afghanistan Freedom Front (AFF).49 Nonetheless, the NRF is the largest of these groups and overall deemed best positioned to fight the Taliban, as demonstratable by the several attacks attributable the NRF in 2022, and recognized struggle by the Taliban to defeat them.50 As of September 2021, sources reporting on hostilities implied a lasting cessation between the NRF and the Taliban for 2022, often describing low levels of violence and the apparent defeat of the NRF by the Taliban.51 Yet, January proved the continued operation of the NRF with, albeit of low-intensity, “skirmishes” with the Taliban resulting in minor casualties.52 Between February and May, armed violence between the NRF and the Taliban intensified in all northern regions, with for instance, a 220 per cent increase in violence in Panjshir.53 Notable attacks throughout the year include airstrikes by the Taliban in February targeting NRF personnel,54 the shooting down a helicopter operated by Taliban and capturing of prisoners by the NRF in June, as well as further captures in July through to October by the NRF and multiple counter offensives throughout.55 It worth noting that, for hostilities in the Panjshir Valley, there are competing narratives and evidence concerning the number of casualties, often led by testimonies of residents in the area.56 Both parties claim that armed violence throughout led to no civilians being killed. However, residents in the region confirm of propaganda from both sides, seeing bodies of dead Taliban fighters being driven away after battle and back-to-back funerals.57 On the other hand, reported fatalities by the NRF, sometimes as high as over a hundred after some clashes, are found to be typically higher than counts reported by other sources.58 Furthermore, Taliban search operations in communities deemed in support of the NRF found cases of detainment, torture, and collective punishment.59 The UN 47

Geneva Academy of International Humanitarian Law and Human Rights 2023b. Ibid. 49 Institute for the Study of War 2022. 50 Ibid.; see n. 35, paras 17, 33 and 68. 51 See for example BBC 2021. 52 Mills 2022b, p 4; ACLED and APW 2022, p 8. 53 ACLED 2022d. 54 Ibid. 55 Mills 2022a, 2022c. 56 See for example George 2022. 57 Ibid. 58 ACLED and APW 2022, p 3. 59 Human Rights Watch 2022e. 48

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Special Rapporteur on the situation of human rights in Afghanistan confirmed that hostilities between the NRF and Taliban in 2022 “caused significant suffering and violations of international humanitarian law.”60 Despite these nuances in intensity, it has been recognised that, comparatively, “Nowhere are [the Taliban’s] atrocities more pronounced than against the NRF.”61 Hence, for the purposes of classification, the events of 2022 have confirmed the existence of a NIAC between the NRF and the Taliban.

8.1.2 Burkina Faso Similar to the previous year, instability in Burkina Faso in 2022 was largely attributed to the existence of multiple NSAGs operating in the country. Additionally, these NSAGs were often engaged in hostilities amongst each other.62 In 2022, at least 1 million persons in Burkina Faso were found to live in areas under blockade and facing daily threats of violence.63 It is however beyond the scope of this YIR to analyse each group’s organisational structure and the respective intensity of violence between the groups and the state. Given their continued prevalence in 2022, this YIR will focus on two NIACs, namely that between the state and the Jama’at Nasr al-Islam wal Muslimin (JNIM), and that between the state and the Islamic State Sahel Province (Sahel Province). Political Developments, VDPs, and Third State Intervention It is first worth noting that on 24 January and 30 September 2022, respectively, two coups d’état were launched, both resulting in the successful overthrow of the heads of state from the Patriotic Movement for Preservation and Restoration (MPSR).64 Since the last coup d’état, Captain Ibrahim Traoré—President of the MPSR—remained as the official interim President of Burkina Faso and Supreme Chief of armed forces in 2022, granted through the adoption of a transition charter.65 Furthermore, 2022 also saw the continued existence and operation of Volunteers for the Defence of the Homeland (VDPs)—state-sponsored self-defence militias

60

European Union Agency for Asylum 2022, p 7; UN HRC (2022) Report of the Special Rapporteur on the Situation of Human Rights in Afghanistan, UN Doc A/HRC/51/6, para 51. 61 Australian Strategic Policy Institute 2022. 62 See for example Dahiru 2022; Frowd 2022. 63 Global Centre for the Responsibility to Protect 2023. 64 European Parliament Resolution of 20 October 2022 on the Situation in Burkina Faso Following the Coup D’état, adopted 20 October 2022, 2022/2865(RSP), paras A–G. 65 Ibid., para F.

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established in 2020 under Burkina Faso’s President before Traoré, Roch Marc Christian Kaboré.66 In 2022, VDPs were acknowledged as reporting to, supplying intelligence, and fighting alongside national security forces.67 Moreover, NSAGs describe civilians who choose to join and fight as a VDP as performing an “act of choosing to side with the Burkinabé state.”68 In December 2022, Luc Hallade, French Ambassador to Burkina Faso, spoke of the launch of an “operation to recruit 50,000 [VDPs]” in support of hostilities with NSAGs.69 The state of France continued its Barkhane anti-insurgent operation until 9 November 2022 and engaged in hostilities against JNIM and ISGS throughout.70 In April 2022, the state of Nigeria also joined Burkinabé forces to fight against JNIM and ISGS.71 In the case of intervention and support by a third party—located on the territory where the fighting is present—against NIAGs, the law of NIAC still applies.72 To provide a more exact assessment of the intensity of violence for the purposes of classification, this YIR will refer to reports of attacks and incidents whereby the name of the NIAG is explicitly mentioned. Jama’at Nasr al-Islam wal Muslimin (JNIM) JNIM is a coalition of various small Al-Qaeda-linked groups, including Ansar Dine, Katibat Macina, al-Mourabitoun, and the Sahara brand of Al-Qaeda in the Islamic Maghreb, which function together in a structure similar to a “business association” throughout the Central Sahel region (i.e., Burkina Faso, Mali and Niger).73 While the groups within JNIM maintain some level of independence, the coalition retains overall leadership and had demonstrated the capacity to broker ceasefires with other groups, such as in May 2022 with Mali.74 As a result, JNIM may be considered an organized armed group under IHL during 2022 in Burkina Faso and possibly in other regions, such as Niger (see Niger, Sect. 8.1.9). Between January and March 2022, the intensity of attacks between JNIM and the Burkinabè state remained stable, averaging between three to five (counter)attacks and between 40 to 60 casualties per month, including Burkinabè forces, VDPs, JNIM forces and civilians.75 The attacks occurred in the Cascades region (south-west), Boucle du Mouhoun region (west) and many provinces in the North region, including Yatenga, Namentenga, and Inata, as well as Tapoa, 66

Haavik 2022. Human Rights Watch 2022g; Beevor 2022, p 5. 68 Haavik 2022, p 30. 69 Africa News 2022a. 70 Guiffard 2023. 71 ACLED 2022c. 72 Vité 2009, p 86; IRRC 2021. 73 Eizenga and Williams 2020. 74 Nasr 2022, p 22. 75 Authors’ calculations based of reports in International Crisis Group 2023c; Geneva Academy of International Humanitarian Law and Human Rights 2023c. 67

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Gourma, Gnagna and Koulpelogo in the East region. Forms of attacks include notably airstrikes, drone strikes, the burning of a school, and ambushes.76 In April 2022, there were mixed reports concerning the creation of “local committees for dialogue for the restoration of peace” between the Burkinabè government and JNIM.77 In any case, this did not result in a decrease in hostilities, with April and May experiencing the most intense forms of violence of the year and largest number of civilian casualties. For instance, between 14 and 25 May, in the East Region, after conducting an ambush of a civilian convoy (killing 14 civilians and three VDPs) and later taking control of the Madjoari military camp (killing 11 Burkinabè soldiers), JNIM launched an attack killing 50 people, all taken place around or in the village of Kompienga.78 As a result of additional attacks around the country, at least 83 Burkinabè forces, 13 VDPs and four civilians were killed in May.79 Just before in early April, JNIM forces killed 20 civilians in Namentenga province, as well as 12 Burkinabè forces and four VDPs in Sanmatenga province.80 At the same time, Burkinabè and Nigerien forces conducted airstrikes and ground offensives against JNIM in the North province, claiming around 100 persons killed. Local sources claim casualties were mainly civilians which the Burkinabè Ministry of Defense denied.81 In June, the intensity of violence decreased despite an expansion of JNIM across the North region, notably in Soum province, Bam province and Yatenga province. JNIM’s expansion and other activities led the group to the killing of eight civilians and around 32 Burkinabè troops. Notably, in response to JNIM attack on Karma gold mine, national security forces killed up to 27 JNIM forces in a single counteroffensive.82 However, in July, violence intensified as members of JNIM attempted an isolation from governmental forces, causing the latter to organise and conduct multiple counter-insurgency operations including the destruction of a JNIM military base in Yagha province.83 As a result, JNIM militants conducted an overnight attack between 3–4 July in Bourasso town killing 22 civilians, and attacked two villages of Koulpelogo province on 10 July killing 15 (unknown persons), as well as in Barsalogho town killing at least five people. These attacks facilitated government airstrikes in the area.84 For the rest of the year, the intensity of violence stabilised with around three to five identified attacks occurring predominately in Centre-North region, East region and Centre-East region, and resulting between 20 to 40 casualties per month from

76

Ibid. Ibid.; Douce 2022. 78 International Crisis Group 2023d. 79 Ibid. 80 Ibid. 81 Ibid.; Nsaibia and Weiss 2023, p 8. 82 International Crisis Group 2023d. 83 ACLED 2022b. 84 International Crisis Group 2023c. 77

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all sides from attacks. JNIM suffered the most casualties, with around 110 militants killed overall compared to around 34 VDPs and 10 Burkinabè forces.85 Hence, it is clear that despite the political instability of Burkina Faso in 2022, the JNIM did not weaken and maintained pressure on the population and control of certain areas.86 JNIM successfully expanded and controlled Burkina Faso’s Kompienga province through to Tapoa province which led to the subsequent full control of the Beninese border, as well as continued infiltration of the Centre-East region of Burkina Faso.87 JNIM progressed in Boucle du Mouhoun region (west), notably taking control of Solenzo town (Banwa province) and seizing Bouroum town.88 As such, the threshold for a NIAC between the state of Burkina Faso and JNIM was arguably met in 2022. Islamic State Sahel Province In March 2022, the previously known NSAG ‘Islamic State in Greater Sahara (ISGS)’89 was renamed ‘Islamic State Sahel Province’ (IS Sahel) after the Islamic State declared the area as an autonomous province.90 IS Sahel is an official subunit of Islamic State West Africa Province (ISWAP)—a militant and administrative group of the Islamic State primarily active in the states of Chad, Nigeria, Cameroon, and Niger (see Niger, Sect. 8.1.9 or organization classification). However, despite reports of IS Sahel operating autonomously in practice, there was little additional information on the exact command structure of the group provided in 2022.91 Moreover, the IS Sahel is known to operate in Burkina Faso through a more decentralized approach as compared to other states in which it is also active.92 In the beginning of the year, there were mixed reports on IS Sahel’s ability to maintain control over territory in Oudalan and Seno provinces especially, and its attempts to establish a pseudo-state from areas in Goa (northern Mali) into Dori (south Burkina Faso).93 In any case, reports have identified sporadic, yet arguably intense, instances of armed conflict in 2022. For example, IS Sahel was found to have killed more than 50 Burkinabè armed forces in a single attack in February 2022, with other instances leading sources to conclude that protracted armed conflict continued to exist in the year.94

85

Authors’ calculations based of reports in International Crisis Group 2023c; Geneva Academy of International Humanitarian Law and Human Rights 2023c. 86 ACAPS 2022b, p 4. 87 De Bruijne 2022, p 7. 88 Beevor 2022, p 12 89 Sexton et al. 2023, pp 200–203. 90 Chesnutt and Zimmerman 2022. 91 Beevor and Berger 2020; Thompson 2021. 92 Chesnutt and Zimmerman 2022. 93 ACLED 2023; Africa Defense Forum 2023. 94 The Soufan Center 2023.

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Hence, is difficult to determine with certainty the fulfilment of the organizational requirement for the existence of an NIAC between IS Sahel and Burkina Faso in 2022.

8.1.3 Colombia During 2022, the Colombian government experienced major developments in peace talks and continued armed conflict with NSAGs throughout several areas of the country. The groups most active in Colombia in 2022 included: the Ejército de Liberación National (National Liberation Army) (ELN) and the Fuerzas Armadas Revolucionarias de Colombia—(Revolutionary Armed Forces of Colombia—People’s Army) (FARC-EP)—dissident group—Bloque Comandante Jorge Briceno (Bloque Oriental (Eastern bloc)). Concerning the other smaller FARC-EP dissident factions, a recorded number of 25 groups in 2020, that were involved in clashes with the Colombian military in 2022, there is still little information about their level of organisation and the respective intensity of these confrontations.95 As such, it cannot be accurately concluded whether a NIAC (or multiple, overlapping NIACs) existed between these groups and Colombia during 2022. Furthermore, these groups fought amongst each other as well as other groups.96 It is however beyond the scope of this YIR however to analyse each group’s organisational structures and the respective intensity of violence between them and other groups and/or Colombia. It is worth noting that human rights reports and figures reporting on NIACs in Colombia do not always distinguish which groups are involved—sometimes describing explicitly as simply “unknown assailants” especially when describing “massacres” (six in total in 2022), of which figures will not be included in this review when assessing NIACs.97 Overall, armed strikes had a broader reach in 2022, extending to 12 departments in comparison to five in 2021. Notably, over 12,000 people were displaced or confined, and an increase in the number of different types of forced displaced increased (e.g., individual, massive, and intra-municipal) resulting from armed conflict dynamics.98 In addition, 2022 saw an increase of sexual and gender based violence (SGBV) and femicide against women accused of belonging to or maintaining relationships with rival armed groups, perpetrated by armed groups as part of a competition for territorial control.99 95

Pappier 2020. See for example Rise to Peace 2022a. 97 Wadhwa 2022. 98 Human Rights Watch 2022h; ACAPS 2023c, p 3. 99 ACAPS 2023b, pp 1–2; UN OHCHR (2022) Report of the United Nations High Commissioner for Human Rights on the Situation of Human Rights in Colombia, UN Doc A/HRC/52/25, paras 8, 96

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Peace Talks In July 2022, the newly elected President of Colombia—Gustavo Petro—began dialogue with Cuban Ambassador in Colombia—Javier Caamano—to organise peace negotiations with the ELN exiled in Cuba.100 On 11 August, Petro effectively sent a delegation to Havana where the negotiations began.101 Notable developments took place, including the recognition of ELN representatives in Cuba and the suspension of extradition warrants issued against ELN negotiators.102 On 27 October, the Colombian parliament passed a bill authorising Petro to engage in negotiations on the dismantling of illegal armed groups in Colombia, in support of an ambitious ‘Paz Total’ (‘Total Peace’) policy.103 Peace talks resumed in November 2022, and both parties agreed to ensure the safe return of indigenous people who had been displaced by the conflict to their lands on 4 December.104 It is important to note these developments do not imply that IHL ceases to be applicable, and an assessment of whether a lasting cessation of armed confrontations between the Colombian government and the ELN and FARC-EP dissident groups, respectively, needs to be conducted. Ejército de Liberación National (National Liberation Army) (ELN) The ELN is long-recognised as a NSAG, operating in Colombia since the 1960s, and having a highly-organised hierarchical (albeit decentralised) structure with, as notably demonstrated in 2022, the capacity to enter into peace negotiations with the Colombian government.105 The ELN is led by a Central Command (Comando Central—COCE) composed of five commanders responsible for different areas and exercising autonomous decision-making abilities in their respective regions. Most importantly, leadership consensus is required for making important strategic decisions.106 In 2022, it was reported that the ELN continued to recruit indigenous children, especially in the Cacua department (west Colombia) who are often used by the group to threaten and kill indigenous persons who oppose them.107 Additionally, ELN were found to have expanded in the south of Venezuela (Apure province) bordering Colombia and collaborating with members of the Venezuelan security forces, as

44–45; UN SC (2022) Public Statement by the Chair of the Working Group on Children and Armed Conflict, UN Doc SC/14977. 100 Garcia 2022. 101 Rodríguez and Rueda 2022. 102 Oxford Analytica 2022. 103 Alsema 2022; Instituto Español de Estudios Estratégicos 2022. 104 BBC 2022; see also ACAPS 2023d. 105 Alsema 2019. 106 Stanford Center for International Security and Cooperation 2023; International Crisis Group 2017, pp 6–8. 107 Human Rights Watch 2022h; UN SC (2022) Public Statement by the Chair of the Working Group on Children and Armed Conflict, UN Doc SC/14977.

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well as exerting territorial control in Catatumbo region which resulted in significant violence.108 Leading up to the Colombian peace bill passed in October, there were at least 30 armed clashed between the ELN and Colombia. This included an armed strike carried out by the ELN against the Colombian government between 23 and 26 February, resulting in several incidents, such as an explosion on a road between the municipalities of Socorro and San Gil in Santander province (north-east Colombia) that injured eight individuals.109 During this whole period, there were at least two civilian deaths, three military deaths, 30 injured persons, and the release of 15 captives including six military personnel.110 Additionally, UN property was destroyed.111 It is important to note that, although the ELN declared a unilateral ceasefire from 10 to 15 March, clashes resumed in the following month, primarily in Cesar, Notre de Santander, Valle del Cauca, and Antioquia departments.112 Therefore, due to the frequency of armed attacks and confrontations between the Colombian forces and the ELN, as well as the number of people forced to flee ongoing hostilities, the necessary level of intensity for continued NIAC remained. Eastern Bloc The signing of the Peace Agreement between Colombia and the FARC-EP in November 2016, formally ending fifty years of armed conflict between the two parties, led to the proliferation of multiple dissident armed groups.113 These groups effectively rejected the terms of the Agreement, and continued to bear arms and engage in violence.114 In 2020, 25 distinct FARC dissident groups were found to be operating and engaging in fighting with government forces throughout the country.115 In previous years, the Colombian government denied the existence of a NIAC with the Eastern bloc (as well as with all dissident groups) as it classified them as merely criminal gangs and treating them all as one group.116 Interestingly, in 2022, Colombian public perceptions of FARC dissident groups largely agreed that “there is no difference in the operations of the dissident groups compared to the former FARCEP” and that they sometimes are even more violent.117 Between March and July 2022, local sources revealed that the group contains around 650 personnel and is coordinated by Alexander Díaz Mendoza (alias Calarcá)—who has been classified as a “high value target” to the Colombian authorities for his responsibility in instigating 108

Ibid.; ACAPS 2023c. Rise to Peace 2022b; Acosta 2022. 110 Authors’ calculations based on reports in International Crisis Group 2023f. 111 Ibid. 112 Geneva Academy of International Humanitarian Law and Human Rights 2023d. 113 Final Agreement to End the Armed Conflict and Build a Stable and Lasting Peace, signed 24 November 2016; ICRC 2023; Triana and Ríos 2022. 114 Human Rights Watch 2022h. 115 Pappier 2020. 116 Acosta Navas 2018; El Tiempo 2019. 117 Cárdenas et al. 2022. 109

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multiple attacks throughout the year, including one again the Governor of Caquetá— Arnulfo Gasca Trujillo—in January 2022 leaving two policemen dead.118 However, explicit reports on hostilities between the Eastern bloc and the Colombian government were severely lacking, despite reputable sources continuing the claim of the existence of a NIAC in 2022.119 These sources, albeit reporting on multiple notable instances of armed conflict in 2022, simply refer to them as ‘FARC members’.120 Hence, it cannot be concluded with certainty that the level of armed violence during 2022 sufficed to meet the threshold of ‘protracted’ for the purpose of qualifying the situation as NIAC.

8.1.4 Ethiopia Throughout 2022, the ongoing ‘Tigray Conflict’ persisted in Ethiopia alongside peace talk developments. Since November 2020, the Ethiopian government and the Tigray People’s Liberation Front (TPLF) have engaged in extensive hostilities stemming from elections held that year by the TPLF.121 The conflict has taken on ethnic dimensions and had involved the state of Eritrea bordering the Tigray region, although, both states have denied this.122 In terms of the organization threshold, the TPLF is regarded as a well-structured NSAG considering its large number of around 250,000 available fighters in 2020,123 its ability to plan, coordinate, and carry out military operations, and more notably in 2022, its ability to negotiate and conclude agreements.124 Regarding the final criterion, the Ethiopian government underwent major peace talk developments with the TPLF. In June 2022, Tigray President Debretsion Gebremichael announced that his government was prepared to engage in talks, and on 28 June 2022, a committee was established and chaired by Deputy Prime Minister Demeke Mekonnen to officially hold them.125 The first meeting was held in early July 2022 and by the end of October 2022, further peace talks were mediated by the African Union in Pretoria, South Africa.126 On 2 November 2022, governmental representatives of Ethiopia

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Notimérica 2022; El Tiempo 2022; Vanguardia 2022. For example, from Geneva Academy of International Humanitarian Law and Human Rights 2023d and International Crisis Group 2023e. 120 Ibid. 121 European Parliament 2022a. 122 Ibid. 123 Pellet 2021, p 13. 124 Gebresenbet and Tariku 2023. 125 Davidson 2022. 126 Gebresenbet and Tariku 2023. 119

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and the TPLF signed a Cessation of Hostilities Agreement (CoHA) after 10 days of negotiations under the auspices of an African Union-led process.127 However, hostilities in Northern Ethiopia persisted throughout the year. Conflict was particularly concentrated in Afar Region—in the north-east of Ethiopia— whereby reports of killings, shelling and looting by Tigrayan forces intensified early in the year.128 Notably, airstrikes allegedly carried out by Ethiopian forces killed on 8 January and 14 January, respectively, killed at least 150 civilians and injured 75.129 Ethiopian forces continued with further airstrikes and offensives in the Tigray region, including airstrikes reported for 27 September, 4 October and 14 October, all killing at least 15 people, injuring 13, displacing over 50 people, and resulting in major property destruction.130 These airstrikes have been described as potentially amounting to war crimes.131 One month after the signing of the CoHA, the TPLF reported to had “accomplished 65 [percent] disengagement” of their armed forces from the frontlines.132 Yet, December saw reports of violence, looting, arrests, and relocations allegedly perpetuated by forces of the Ethiopian region of Amhara as well as Eritrean forces against civilians in Tigray.133 Both sets of forces fought alongside Ethiopia’s military as part of the Tigray Conflict and, although not parties, were obliged under the CoHA to have withdrawn from Tigray.134 As such, considering the magnitude and extent of sustained military confrontation by both sides, it is safe to assume that the intensity threshold was also met in 2022 and, at least up to November, a NIAC existed between the TPLF and Ethiopia.

8.1.5 Israel/Palestine 2022 saw an increased amount of violence in Israel and Palestine, amounting to the one of the “deadliest year[s]” for both countries in recent history and since the United Nations started systemically documenting fatalities in 2005.135 127

Ibid. Human Rights Watch 2022i. 129 International Crisis Group 2023g. 130 Human Rights Watch 2022i. 131 Human Rights Watch 2022c; UN OHCHR (2022) Ethiopia: UN Human Rights Chief Volker Türk Warns of Devastating Impact of Continued Hostilities on Civilians. https://www.ohchr.org/en/pressreleases/2022/10/ethiopia-un-human-rights-chief-volker-turk-warns-devastating-impact. Accessed 12 April 2023. 132 Reuters 2022a. 133 Reuters 2022b. 134 Ibid. 135 UN SC (2023) With 2022 Deadliest Year in Israel-Palestine Conflict, Reversing Violent Trends Must be International Priority, Middle East Coordinator Tells Security Council. UN Doc. SC/ 155179; UN OHCHR (2022) Israel: UN Experts Condemn Record Year of Israeli Violence in the Occupied West Bank. https://www.ohchr.org/en/press-releases/2022/12/israel-un-experts-con demn-record-year-israeli-violence-occupied-west-bank-0. Accessed 12 April 2023. 128

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Belligerent Occupation In 2022, Israel maintained its de facto control over Palestinian territory.136 In November 1988, Palestine declared its independence as a state in the areas of Jerusalem, the West Bank, and the Gaza Strip.137 By 2022, 138 of the UN 193 members had recognised Palestine as an independent state.138 On 29 November 2012, the UN General Assembly endowed Palestine the status of a “non-member observer state”.139 Therefore, following from the previous YIR, Palestine is considered as a state for this YIR for the purposes of international law. As a reminder, the existence of belligerent occupation is a factual inquiry, meaning that even without the presence of armed forces on the territory in concern, a state can still be considered to exercise effective control over it. Moreover, belligerent occupations are intended to be a temporary situation, meaning that the occupying power cannot implement measures—either de jure or de facto—that would result in the occupation becoming permanent.140 In Gaza, the Hamas—an Islamist armed group operating in the Gaza Strip, exercised de facto authority in 2022 predominately through security and military control, whilst Israel continued its naval and air blockade, as well as land blockage of two of the three border crossing points in the area.141 Regarding the West Bank, the 1995 Oslo II Accord envisages Palestine full administrative control over Area A and joint administrative control over Area B of the Bank (areas delineated in the Accord).142 However, in 2022, Palestinian authorities were found to have maintained only operational control in “some parts” of the Bank, including through civil and community policing, internal criminal intelligence, and over medical matters.143 The extent of authority exercised varied due to the ongoing presence of the Israel Defense Forces.144 In fact, Israel Security Forces (ISF) were found to have conducted frequent security operations in Area A throughout the year, and the state of Israel continued to transfer its civilian population in the area with the effect of establishing settlements.145 Instances of demolitions and property seizures (approximately 953 building structures with more than 80 percent in Area C) were reported, resulting in the highest number recorded since 2016.146 Area C 136

See Sexton et al. 2023, pp 210–211. Just Vision 2023. 138 World Population Review 2023. 139 UN GA (2012) General Assembly Votes Overwhelmingly to Accord Palestine ‘Non-Member Observer State’ Status in United Nations. UN Doc. GA/11317. 140 Todeschini 2023. 141 United States Department of State 2022c; The New York Times 2022; Al Jazeera 2022b. 142 Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip (Oslo II). https:// peacemaker.un.org/israelopt-osloII95. Accessed 13 April 2023. 143 United States Department of State 2022c. 144 Ibid. 145 Ibid.; UN SC (2022) Settlement Expansion Fuelling Violence in Occupied Palestinian Territory, Middle East Peace Process Special Coordinator Warns Security Council. UN Doc. SC/14836. 146 EU Office of the European Union Representative (West Bank and Gaza Strip, UNRWA) 2023. 137

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concerns 60 percent of the occupied West Bank whereby, contrary to governance agreements under the Oslo II Accord, maintained full security and administrative control throughout 2022.147 According to OHCHR, these demolitions are a form of collective punishment, prohibited under international law through Article 33 of the Fourth Geneva Convention.148 Israeli authorities were found denying Palestinians building permits, as well as sealing off common (natural) drinking water sources in Area B.149 Additionally, Palestinian authorities continued to exercise no control over Palestinian residents of East Jerusalem due to Israel’s imposition of Israeli law and authority over the region in 1967 which prohibits any activity by Palestinian authorities.150 Thus, it is highly likely that Israel was the occupying power of all three areas in 2022. Furthermore, two notable UN reports were published during the year addressing the legality of Israel’s occupation. First, in March 2022, the UN Special Rapporteur on the situation of human rights in the Occupied Palestinian Territory (OPT), and second both in June and September 2022, the UN Human Rights Council-mandated Commission of Inquiry (CoI) on the OTP reported that these numerous developments, including Israel’s entrenched political and legislative rule in the OPT, “satisfies the prevailing evidentiary standard for the existence of the crime of apartheid (…) [and] are the key causes of recurrent instability and protraction of conflict in the region.”151 As a result, both reports conclude that Israel’s occupation has long exceeded the temporariness principle under IHL, and are thus, unlawful. August 2022 Bombardment Alongside its occupation of Palestinian territory, the IDF launched a wave of air strike attacks in Gaza between 5 to 7 August targeted at the Palestinian Islamic Jihad (PIJ)—a Gaza-based paramilitary group focused on the establishment of a sovereign Islamic Palestinian state.152 The trigger of these attacks is claimed to stem from the IDF’s arrest of Bassem al-Saadi—one of PIJ’s senior leaders—on 1 August, led by a series of threats declared by PIJ that they are planning to attack Israeli communities in the coming days.153 However, other sources claim that Israel’s first strike was 147

United States Department of State 2022b. Ibid. 149 Ibid. 150 United States Department of State 2022b. 151 UN ESCWA (2022) Palestine Under Occupation III: Mapping Israel’s Policies and Practices and their Economic Repercussions in the Occupied Palestinian Territory. https://reliefweb.int/rep ort/occupied-palestinian-territory/palestine-under-occupation-iii-mapping-israels-policies-and-pra ctices-and-their-economic-repercussions-occupied-palestinian-territory. Accessed 13 April 2023, p 75; UN GA (2022) Report of the Independent International Commission of Inquiry on the Occupied Territory, including East Jerusalem, and Israel. UN Doc. A/HRC/50/21; UN GA (2022) Situation of Human Rights in the Palestinian territories occupied since 1967. UN Doc. A/77/356; see also Todeschini 2023; Conflict Centre for the Responsibility to Protect 2023; Al Jazeera 2022e. 152 Al Jazeera 2022d. 153 Crisis24 2022. 148

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without clear provocation.154 According to IDF sources, the airstrikes on 5 August alone killed at least 15 PIJ militants, including the PIJ leader and commander of one its armed wings, Al-Quds Brigades.155 In response, PIJ launched over 1,000 rockets indiscriminately into Israeli territory, some of which misfired and landed inside Gaza.156 In the next days, Israeli forces arrested 40 members of PIJ and fired 170 explosives into densely populated Gaza with “wide area effects”.157 According to the UN Office for the Coordination of Humanitarian Affairs (OCHA), the three days of hostilities killed at least 49 Palestinians, including 17 children, and injured 360 Palestinians and 70 Israelis.158 Moreover, over 2,000 Palestinian housing units were damaged.159 The conflict lasted three days after an Egyptian-mediated truce came into effect on 7 August where Israel and PIJ agreed to a ceasefire.160

8.1.6 Nagorno-Karabakh (Artsakh) Following the ceasefire agreement signed between Azerbaijan, Armenia and Russia on 9 November 2020 to end all hostilities in the region of Nagorno-Karabakh (‘Nagorno-Karabakh agreement’), 2022 saw changes in control of certain districts in the region, as well as instances of armed violence occurring between Azerbaijan and Armenia.161 Belligerent Occupation In 2022, Nagorno-Karabakh maintained international recognition as forming part of Azerbaijan with Armenia sustaining control of certain areas, which is relevant for the purposes of belligerent occupation.162 The test for occupation, in the context of Nagorno-Karabakh, requires particular attention to the established and complex use of proxy forces by Armenia. For Armenia to be considered as the occupying power over certain areas of Nagorno-Karabakh in 2022, it must be determined whether Armenia exercised overall control over de facto

154

Human Rights Watch 2022j. Crisis24 2022. 156 Human Rights Watch 2022j. 157 Ibid. 158 UN OCHA 2022. 159 Ibid. 160 UN SC (2022) Ceasefire Between Israel, Palestinian Militants ‘Fragile,’ Middle East Coordinator Tells Security Council, Urging All Parties to Uphold Truce, Safeguard Past Gains. UN Doc. SC/ 14994. 161 See Statement by the Foreign Ministers of the Russian Federation, the Republic of Azerbaijan and the Republic of Armenia, 10 October 2022, No. 1692-10-10-2020. 162 Mustafayev 2022; International Crisis Group 2022b. 155

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local groups that are recognized to exert effective control over these areas.163 As such, two aspects need to be considered. First, the withdrawal of Armenian troops, and second, the link between Armenia and the ‘pro-Armenia’ separatist armed groups. Regarding the former, there are conflicting interpretations of the NagornoKarabakh agreement on whether it requires Armenian troops to withdraw from the whole region or just the surrounding areas which were already returned to Azerbaijan.164 Nevertheless, given that the determination of the existence of belligerent occupation is a factual exercise, it is more important to look at the factual circumstances. On 19 July 2022, the Secretary of the Armenian Security Council announced that “all troops of the Armenian Armed Forces would withdraw from Nagorno-Karabakh by September” but the local Armenian separatist forces “will remain there”.165 It is unclear whether this happened in practice but confirmed hostilities from early August until the end of the year specifically by Armenian separatist forces, which will be elaborated on below, demonstrate this possibility. Hence, for the purposes of this YIR, only up until July did the Armenian Armed Forces occupy the whole of Nagorno-Karabakh. This brings us to the next analysis on the link, and thus overall control, between the remaining separatist forces and Armenia. First, as recognized by the Geneva Academy of International Humanitarian Law and Human Rights, the factual situation is developing and makes it difficult to assess this conclusively, especially given the need for more information “regarding the functioning of armed groups of NagornoKarabakh”.166 In 2022, this difficulty was no different. For instance, there is little concrete information about the structure and functioning of the separatist armed forces, apart from being “local” to the area of Nagorno-Karabakh and, albeit without more explanation, “Armenia-backed”.167 In addition, there are conflicting reports on the existence and operations of the Artsakh Defense Army in 2022, which raises uncertainty as to their connection to the separatist forces, and overall control by Armenia. The Artsakh Defense Army proclaims itself as being the official self-defence force of the internationally unrecognized ‘Republic of Artsakh’ (the Russian region of Nagorno-Karabakh) protecting their ethnic Armenian population from Soviet and Azerbaijani attacks.168 Reports imply that they are the separatist forces, for instance, in stating that the remaining forces after the Armenian withdrawal of their national Armed Forces. Furthermore, on 8 November 2022, president of Azerbaijan—Ilham Aliyev—gave a speech stating that Armenia has not withdrawn all its troops, including the Artsakh Defense Army.169 The Artsakh Defense Army has been found to be, in practice, 163

Ferraro 2012. Krivosheev and Khalatyan 2020. 165 KarabakhSpace.eu 2022; Euractiv 2022. 166 Geneva Academy of International Humanitarian Law and Human Rights 2023a. 167 Ibid. 168 Office of the Nagorno Karabakh Republic in the USA 2023; Asbarez 2022. 169 The Armenian Weekly 2022a; The Armenian Weekly 2022b; Nova News 2022. 164

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one force with a single Command-and-Control (C2) system with Armenia’s Armed Forces.170 Either way, this review will consider that the separatist forces, being cited as “Armenia-backed” and the de facto army of Armenia, will be considered as indeed being in overall control by Armenia, and thus still occupying certain areas of Nagorno-Karabakh for which they are claimed to still be present. Under the provisions of the Nagorno-Karabakh agreement, Armenia returned to Azerbaijan the districts of Aghdam, Kelbajar, and Lachin, as well as parts of the district of Gazakh.171 Although Armenia maintained control over most of the region in 2022, two notable instances of change in control occurred. First, in March, Armenia gave up its positions in the village of Farrukh located in the district of Khojaly which also led to the local Armenian residents abandoning it as well. Second, in August, although the control of the district of Lachin, as decided in the agreement, was fully regained by Azerbaijan in practice, with Armenian residents fleeing.172 The villages of Krasnyi Bazar (Karmir Shuka in Armenian or Girmizi Bazar in Azerbaijani) and Tagavard, both located in Khojavend district, regained by Azerbaijan during the war, were still “not fully controlled” by Azerbaijan.173 September Hostilities In addition to sporadic instances in March and August resulting in Azerbaijan’s control of Farrukh and Lachin, a two-day armed conflict occurred between 13 and 14 September, although fighting was reported to have continued until 16 September.174 The conflict resulted in a disputed number of casualties, ranging from between one hundred to three hundred overall, with around 105 Armenian soldiers and around 50 Azerbaijani soldiers and two civilians injured.175 2,700 civilians were reported to have been forcibly evacuated with around 7,600 calculated as temporarily displaced as a result of the overall conflict.176 Overall, this conflict was seen as the most intense clash since the ceasefire agreement, a “large-scale provocation” and deploring a “high number of reported casualties” to meet the low threshold of an IAC between Armenia and Azerbaijan.177

170

Schumacher 2016; Abrahamyan 2018; Lynch 2001, p 10; Mamadaliev 2021. ACAPS 2023a. 172 Zolyan 2022; International Crisis Group 2022b; International Crisis Group 2023a. 173 International Crisis Group 2022b. 174 Geneva Academy of International Humanitarian Law and Human Rights 2023a; see also International Crisis Group 2022c. 175 Global Conflict Tracker 2023; Deutsche Welle 2022; Holmes 2022. 176 Global Conflict Tracker 2023; ACAPS 2023a; Human Rights Watch 2022f. 177 European Parliament 2022b; Holmes 2022. 171

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8.1.7 Kyrgyzstan/Tajikistan Between 14 to 18 September 2022, unprecedented levels of violence erupted between the states of Kyrgyzstan and Tajikistan. Since 28 April 2021, both states have engaged in a number of separate and isolated exchanges of violence at the border, beginning with an exchange of fire resulting in at least 55 casualties and more than 40,000 civilians displaced.178 Hostilities deescalated when both states signed a ceasefire agreement in May, and both states stopped fighting completely in July.179 However, in 2022, fighting struck once again at the border between the two states’ armed forces, killing one Tajik soldier on 14 June and killing one border guard and injuring two on 14 September.180 According to Tajik sources, the fighting began as a result of “unprovoked gun and mortar fire” by Kyrgyz border guards.181 The armed conflict sustained for four days along the stretch of border (roughly 110-kilometers) in and around the Fergana valley known for being a point of contention between the two countries since 1991.182 According to HRW, it can be estimated that at least 50 civilians were killed and 120 persons injured from both sides due to the conflict, as well as the displacement of an estimated 130,000 persons in Kyrgyzstan alone.183 Attacks were largely indiscriminate and have been described as “likely to amount to war crimes” with Tajik forces shooting at cars carrying civilians, looting and burning private properties, and causing significant damage to homes, schools, medical facilities, and shops.184 This event raises the question of whether an isolated strike between two states simultaneously triggers the application of IHL. To debate this question, scholarship has to explore first (a) whether there is a pre-existing IAC between the two states, and (b), whether the strike can be described as a military or covert assassination.185 Regarding the first aspect, as clarified above, the hostilities in 2021 demonstrate violence which arguably amounted to an IAC considering that, as a reminder, it is widely accepted that the threshold of violence required for the triggering of an IAC is considerably low (involving any resort to armed force between states).186 On the second aspect, considering that the target of the strike was a member of the Tajik armed forces, and the strike was performed by armed forces, the operation was arguably closer to a forcible military act than a covert operation. This debate however can include more theoretical aspects, for instance, on when IHL should be triggered, which requires additional debates on the purpose and functioning of IHL, such as 178

Geneva Academy of International Humanitarian Law and Human Rights 2023g. US Mission to the OSCE 2022. 180 Human Rights Watch 2023. 181 Al Jazeera 2022a. 182 Human Rights Watch 2023. 183 Ibid. 184 Ibid. 185 Lieblich 2020. 186 Tadi´ c 1995, above n 5, para 70. 179

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whether IHL should have a constraining or facilitative function (i.e., be probative or permissive).187 However, to go into this debate goes beyond the scope of this YIR.188 In any case, in order to substantiate that IHL is applicable in this case, this YIR regards that IHL should apply to allow for the forces carrying out the attack to be (a) protected by combatant immunity and (b) be considered POWs if captured. Moreover, IHL rules are directed to regulating these instances, including the planning of an attack i.e., the principle of precaution.189 As a reminder, an IAC under Article 2(1) exists when there is an armed interference in a state’s sphere of sovereignty, to which the first strike and subsequent fighting between Kyrgyzstan and Tajikistan arguably demonstrated. Furthermore, fighting in September 2022 is recognized as particularly intense. For example, on 16 September, Kyrgyz forces delivered a laser-guided bomb using a Bayraktar TB-2 drone near Tajik forces in a densely populated central square in Ovchi Kal’acha leaving 10 civilians killed, and another 13 injured.190 Both forces continued to attack cars with civilians, and ambulances clearly marked as such.191 Similar to the hostilities in April, these attacks have been described as largely indiscriminate and disproportionate under IHL, with human rights organizations urging investigations for international crimes to be conducted.192

8.1.8 Myanmar In 2022, similar to previous years, fighting continued between government forces— the Tatmadaw—and regional ethnic armed groups (EAGs) in Myanmar.193 In particular, between January and March, there was at least 230 “clashes” between EAGs and governmental forces.194 For the purposes of the scope of this YIR, and considering their notable prevalence in 2022, this section will focus on the hostilities between the state and two EAGs, namely the Kachin Independence Army (KIA) and the Ta’ang National Liberation Army (TNLA). The KIA is an EAG founded in 1961 and is the official military wing of the Kachin Independence Organization (KIO)—a political group of ethnic Kachins in Northern Myanmar.195 It carries out government-like functions from its headquarters in Laiza, Kachin state near the Chinese border, with discernible structure, the ability

187

Lieblich 2020. Ibid. 189 Gurmendi 2020. 190 Human Rights Watch 2023. 191 Ibid. 192 Ibid. 193 Sexton et al. 2023, pp 220–222. 194 Burma News International 2023, p 59. 195 Myanmar Peace Monitor 2013. 188

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to negotiate peace agreements,196 well-equipped armed forces—notably over 15,000 servicemen (10 brigades) in 2022.197 As such, the most pertinent question is whether the violence between the KIA and the Tatmadaw reached (or continued to reach) the requisite intensity threshold during 2022. In February 2022, the KIA attacked governmental forces, leading to state force airstrikes in March and the KIA capturing key state buildings in April. Eight soldiers were detained, 13 casualties, and over 1,000 civilians were displaced as a result.198 Moreover, on 24 October 2022, governmental armed forces bombed a KIA-organized concert, killing around 50 and injuring 70.199 As such, given the KIA’s high-level of organization and the immense number of confrontations with the Tatmadaw during 2022, this likely constituted a NIAC. Moving to the TNLA—the successor to the Palaung National Force in protection of the Ta’ang people’s group and, in 2022, in alliance with KIA—only engaged in notable hostilities with the Tatmadaw between 7 to 11 December, whereby ground and air forces launched a “surprise attack” on the TNLA forces in Shan State (east of Myanmar) resulting in reinforcements from the TNLA killing at least 20 Tatmadaw troops.200 The Tatmadaw struck using bombs and gun fires.201 TNLA spokesmen denied the attack, whilst residents reported of around 100 civilians being “trapped” in villages of Kone Thar, Humen, and Pein Lone.202 Other instances of violence instigated by the TNLA against the Tatmadaw were reported as “misunderstanding[s]” on the TNLA’s part.203 According to local sources, the TNLA confused the Tatmadaw’s armed activities against other EAGs as targeting them. Both parties stopped fighting after the Tatmadaw clarified the situation.204 Hence, it is unclear whether Myanmar saw a continued NIAC between governmental forces and the TNLA in 2022.

8.1.9 Niger Parallel NIACs between the Nigerien government and JNIM, Boko Haram, and ISWAP persisted in Niger in 2022. Moreover, the Multinational Joint Task Force (MNJTF)—a coalition of units from countries in the Lake Chad Basin authorized by the African Union Peace and

196

Finnigan 2019. Myanmar Peace Monitor 2013. 198 International Crisis Group 2023h. 199 Ibid. 200 Lee 2022. 201 Ibid. 202 Ibid. 203 Myanmar 2021 Infosheet—DSITD 2022. 204 Ibid. 197

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Security Council mandate supported by the UNSC against Boko Haram—was especially active in Niger in 2022.205 For instance, between August and September, the MNJTF arrested and killed several suspected Boko Haram and jihadists in the Diffa department (east Niger).206 In addition, around 1,000 French forces remained in Niger as part of its Barkhane anti-insurgent, whereby in August it completed the relocation of troops from Mali and Burkina Faso (see Burkina Faso, Sect. 8.1.2) into the country.207 This is despite active protests on 18 September in the capital of Niger—Niamey—and the southwestern city of Dosso vocalizing against French military presence and chanting anti-France slogans.208 On 11 November, the European Union (EU) announced the launch of a “military partnership mission” to help bolster anti-jihadist efforts in the country.209 Overall, in 2022, armed conflict in Niger resulted in around 43,400 persons forcibly displaced (as of September in Diffa) as well as the closure or non-operation of 878 schools affecting around 78,000 students, including 38,000 girls.210 Jama’at Nasr al-Islam wal Muslimin (JNIM) As established above (see Burkina Faso, Sect. 8.1.2) JNIM can be considered as an organised NSAG for the purposes of IHL. As such, even though JNIM also operate in Niger, this organisational requirement still applies in Niger. Therefore, the determinative factor is whether the intensity of hostilities can be considered ‘protracted’ between Niger and JNIM during 2022. Similar to 2021, violence between JNIM and Niger can be considered as intense and consistent to suggest that Niger was involved in a NIAC with JNIM during 2022.211 In a nutshell, in the first half of the year, there were at least 12 individual attacks instigated by JNIM reported, notably against Nigerien gendarmeries and militants.212 Government and French forces in June launched major airstrikes killing 40 JNIM.213 Throughout the rest of the year, JNIM attacks gradually escalated, with wins and losses on both sides, including a three-day offensive launched by JNIM in October attacking security forces in Gotheye and Say departments of Tillaberi (northwest Niger).214 In response, Nigerien forces launched air and ground operation in suspected JNIM military base in mining area of Tamou village whereby at least seven

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Multinational Joint Task Force 2023. International Crisis Group 2023i. 207 Guiffard 2023. 208 Arslan 2022. 209 The Defense Post 2022a. 210 European Commission 2023; UN HCR (2022) Niger: Operational Update August 2022. https:// reliefweb.int/report/niger/niger-operational-update-august-2022. Accessed 3 May 2023. 211 Sexton et al. 2023, pp 222–223. 212 Authors’ calculations based of reports in International Crisis Group 2023i. 213 Ibid. 214 ACLED 2022b. 206

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civilians were killed, despite the army denying this.215 As such, the necessary level of intensity for continued NIAC between JNIM and Niger remained in 2022. Boko Haram In comparison to 2021, Niger’s efforts against Boko Haram (referring to itself as ‘Jama’atu Ahl as-Sunnah li-Da’awati wal-Jihad’ (JASDJ))—an armed group operating particularly in Nigeria pledging allegiance to the Islamic State group and links with other Islamic groups—were notably strengthened. Concerning the organizational requirement, 2022 provided no additional reliable clarification as to its structure and functioning, particularly concerning its separate factions, thus raising challenges to whether it can be concluded as a single armed group for the purposes of this YIR. Indeed, Boko Haram in 2022 was explicitly described as operating a “decentralized patrimonial model, which combines clientelism, sectarianism and predatory violence against civilians.”216 Although there is lack of nexus between each faction’s hostilities against Niger, 2022 provided notable reports of violence explicitly providing the names of the factions, and even reports of infighting between factions.217 What is more, reports are unable to sometimes identify whether it is the Boko Haram faction or ISWAP.218 However, it would be beyond the scope of this YIR to analyse each groups’ organisational structure and the respective intensity of violence between the groups and the state. In any case, since there is a lack of nexus, hostilities between Boko Haram as a single group and the Nigerien government is still considered a NIAC. Notable hostilities include on 25 May 2022 when 40 members of Boko Haram died as a result of clashes with Nigerien soldiers.219 On 5 July 2022, Boko Haram fighters attacked soldiers at the Garin Dogo outpost (east Niger), resulting in the death of one Nigerien solider, one missing, and four injured.220 The Nigerien armed forces successfully dismantled Boko Haram’s supply system in Toumour village (south Niger) between 1 to 2 October 2022.221 Thus, although armed confrontations decreased between October to December 2022, IHL remained applicable regardless of this fluctuating intensity of violence, and a NIAC can be assumed to continue in 2022. The Islamic State in West Africa Province (ISWAP) ISWAP is an armed splinter group of Boko Haram (see above) since a number of senior leaders left in 2016 and obtained recognition from Islamic State and has recognised organised subunits—such as ISAG (see Burkina Faso, Sect. 8.1.2).222 215

Ibid. Amadou and Foucher 2022, p 2. 217 International Crisis Group 2023i. 218 Ibid. 219 VOA 2022. 220 International Crisis Group 2023i; The Defense Post 2022b. 221 Geneva Academy of International Humanitarian Law and Human Rights 2023e. 222 Husted 2022; Human Rights Watch 2022k. 216

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In 2022, ISWAP was claimed as one of the most active jihadist movements in the world due to its link and support by Islamic State, and claimed, at least in Nigeria where it is most active, to have “adopt[ed] a more streamlined, bureaucratic governance” despite international ambiguity on its strength and number of fighters.223 Notably, studies on the governance model of ISWAP concluded a fundamental distinguishment from Boko Haram—namely that ISWAP operates based on a “rationalised, bureaucratic centralised model, which attempts to govern and regulate the behaviour of fighters more precisely and intensively, maintain proper relations with Muslim civilians and run an organised tax system.”224 As such, this model has gained them the status of a NSAG with control of the most territory and fighters in the Lake Chad Basin, i.e., including Niger, in 2022.225 However, similar in the case of Boko Haram, reports on hostilities are still sometimes unable to distinguish between whether attacks involved ISWAP or other groups, especially Boko Haram factions.226 Hence, for the purposes of this YIR, only reports explicitly confirming the involvement of ISWAP will be used. Violence in 2022 between ISWAP and Nigerien armed forces was consistent throughout the year, notably with “violent clashes taking place every month.”227 From January to July in particular, reports indicate at least notable attacks instigated by ISWAP, killing at least 15 Nigerien armed forces and equal number of civilians.228 In addition, the Multinational Joint Taskforce killed over 800 ISWAP (and Boko Haram) militants in June.229 Similar to Boko Haram, despite hostilities quietening at the end of the year, IHL still remained applicable for the year as the requisite criterion of protracted armed violence was arguably met.

8.1.10 South Sudan Following 2021, armed conflict between South Sudan and the Sudan’s People’s Liberation Movement/Army-in-Opposition (SPLM/A-IO) continued. In September 2018, the Revitalised Agreement on the Resolution of the Conflict in The Republic of South Sudan (R-ARCSS) was finalised between, notably the Transitional Government of National Unity of the Republic of South Sudan (TGoNU) and the SPLM/A-IO, amongst others in attempt to quell violent conflict in the country

223

Amadou and Foucher 2022. Ibid. 225 Ibid. 226 International Crisis Group 2023i. 227 Geneva Academy of International Humanitarian Law and Human Rights 2023e. 228 Authors’ calculations based on ibid, and International Crisis Group 2023i. 229 Ibid. 224

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through a transition period leading up to elections in 2024.230 In 2022, the parties to the Agreement agreed to extend the transition period by 24 months from February 2023 when it should have concluded, with thus the UN claiming 2023 to be a year of “make or break” to its continuance and success.231 In particular, armed conflict in 2022 was seen as the main cause of South Sudan experiencing its worst humanitarian crisis since independence in 2011, with the United Nations Office for Coordination of Humanitarian Affairs (UN OCHA) finding over 2.2 million persons internally displaced in 2022 as a result.232 Violence by armed groups, especially in the Upper Nile, southern Central Equatoria and southern Unit states resulted in serious abuses, especially conflict-related sexual violence, which have been described as potentially qualifying as international crimes.233 As such, it can be concluded that the threshold of intensity was met for 2022. In particular, in the beginning of the year, several weeks of intensive armed confrontations causing more than a dozen deaths, South Sudan declared that they were “officially at war” with SPLM/A-IO.234 In addition, despite an agreement between the President of South Sudan—Salva Kiir Mayardit—and SPLM/A-IO leader—Riek Machar—in April 2022 implementing key provisions of the Agreement, violence persisted in the month afterwards with clashes lasting several days resulting in the death of at least 35 persons and the displacement of 14,000.235 Moreover, a report by the United Nations Mission in South Sudan (UNMISS) published on 6 September on fighting from 11 February to 31 May 2022 found it resulted in around 173 civilians killed.236 SPLM/A-IO is a widely recognised organised NIAG loyal to former Vice President Riek Machar, owing to the fact that it is one of two armed factions (in addition to the Sudan People’s Liberation Army loyal to President Kiir) of the Sudan’s People’s Liberation Army which split up in December 2013.237 Thus, SPLM/A-IO is acknowledged as being well-equipped with a respectable size and the capacity to enter into and commit to peace agreements as demonstrated in 2022.238

230

Revitalised Agreement on the Resolution of the Conflict in the Republic of South Sudan, 12 September 2018; Stamnes and De Coning 2022. 231 Human Rights Watch 2022l; UN SC (2023) South Sudan Recommits to Revitalized Peace Agreement with 24-Month Extension, Security Council Emphasizes, Urging Country to Avoid Further Delays. UN Doc. SC/15219. 232 Human Rights Watch 2022l. 233 Ibid. 234 John 2022; Sudan Tribune 2022. 235 Unango 2022; Africa News 2022b. 236 UNMISS (2022) Report on Attacks on Civilians in Southern Unity State, South Sudan. https:// unmiss.unmissions.org/sites/default/files/infographic_on_southern_unity_report_south_sudan_ 06sep_final_final.pdf. Accessed 6 May 2023. 237 Young 2015. 238 Geneva Academy of International Humanitarian Law and Human Rights 2023f.

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8.1.11 Ukraine Ukraine experienced significant developments to its IAC with Russia in 2022 in addition to parallel NIACs with separatist groups. On 24 February 2022, Russia invaded Ukraine whereby the President of Russia— Vladimir Vladimirovich Putin—announced the launch of a “special military operation in Ukraine” with reference to Article 51 of the UN Charter.239 In turn, the invasion led to a new phase of the IAC, whereby NIACs with the abovementioned separatist groups were tuned into IACs since Russia started exercising overall control over them. Moreover, developments on state assistance to both Russia and Ukraine raise questions on the broader applicability of IHL. Since February 2022 Hostilities between Ukraine and Russia reached unprecedented levels, with accounts of violence disproportionately impacting civilians since the Russian invasion. As a reminder, the existence of an IAC between two states is confirmed when the resort to armed violence, regardless of intensity or duration, can be determined by facts, rather than the subjective intent of belligerents. Attacks throughout 2022 occurred consistently each month with high numbers of casualties and damage to infrastructure.240 Attacks by Russian forces were conducted across all major cities of Ukraine, including the capital of Kyiv, as well as Berdyansk, Chernihiv, Kharkiv, Odesa, and Sumy.241 Attacks were described as indiscriminate and disproportionate, including bombing and shelling of civilian areas and damage to healthcare facilities (more than 700 attacks reported), including the killing of at least 98 civilians and wounding at least 123 others in eight separate attacks by Russian forces in early March in Chernihiv (north east Ukraine).242 Healthcare facilities were notably targeted, with on average two attacks per day between 24 February and 31 December 2022, including the bombing of hospitals, the torture of medics, and ambulances being shot at.243 As such, it is fair to say that these attacks were not directed at any specific military object, thus classifying them as indiscriminate under Article 51(4)(a) of Protocol I. By the end of 2022, the United Nations Human Rights Monitoring Mission in Ukraine (HRMMU) verified at least 6,919 civilian deaths and more than 11,000 wounded, and over 14 million civilians displaced by the war.244 The month with the highest death toll accounting for more than half of this total was March 2022 with 3,900 recorded deaths.245 239

The Print 2022; see also Kerr 2022. See, for instance, International Crisis Group 2023j. 241 Statista 2023b. 242 Mahase 2023; Human Rights Watch 2022m. 243 Mahase 2023. 244 Human Rights Watch 2022m. 245 Statista 2023a. 240

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Hence, these developments undeniably continued the IAC for 2022. NIAC to IAC 2022 poses the question of whether Russia exercises overall control over two separatist armed groups, previously in NIACs with Ukraine, for the purposes of establishing whether they now constitute an IAC between Russian and Ukraine: the Donetsk People’s Republic (DPR) and the Luhansk People’s Republic (LPR) groups. In the previous YIR, although reputable sources have made allegations of this, it was concluded that there is “simply not enough concrete evidence to determine whether this would reach the threshold of overall control and therefore transform the NIACs into an IAC between Ukraine and Russia during 2021.”246 As a reminder, the test for overall control in this case requires proving that Russia not only equips and finances the groups, but also coordinates or helps them in “the general planning of [their] military activity”.247 Russia has consistently denied their funding and equipping of forces in both Republics, despite some sources finding that both sets of forces were at least economically dependent on Russia shown by, for example, consistently permitting the delivery of artillery fire and the payment of salaries between 2016 and 2017.248 In the context of the DPR forces, the Dutch District Court in December 2022 found that in 2014, the DPR indeed both received supplies, weapons, financing etc. and was even coordinated and given instructions by Russia.249 During the end of September 2022, referendums took place in Donetsk and Luhansk, whereby leading the President of Russia to unlawfully annex them on 30 September, and officially install its Kremlin government system.250 Hence, given these developments, it is possible that in 2022 the NIAC between these groups and Ukraine has been transformed into an IAC.

8.1.12 Yemen Fighting and peace settlements between various groups and the Yemeni government continued in 2022.251 In particular, the Houthis—a highly organized armed group promoting Zaidi Islam—engaged in hostilities with the Yemeni government—commonly referred 246

Sexton et al. 2023, p 226. ICTY, The Prosecutor v Duško Tadic, Appeals Chamber, Judgement, IT-94-1-A, 25 July 1999, para 131. 248 Bild 2016; Lenta 2020; Jensen 2017. 249 De Rechtspraak 2022; see also De Hoon 2022. 250 UN GA (2022) With 143 Votes in Favour, 5 Against, General Assembly Adopts Resolution Condemning Russian Federation’s Annexation of Four Eastern Ukraine Regions. UN Doc. GA/ 12458. 251 These also include, on a lower scale, al-Qaeda in the Arabian Peninsula (AQAP) and the Southern Transitional Council. 247

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to as the ‘Hadi’ government, owing to the name of its leader, Abdrabbuh Mansar Hadi, in 2022.252 Since 2015, the United Arab Emirates (UAE) and Saudi Arabia have led a military coalition of states against the Houthis in Yemen upon invitation of Yemen’s President Hadi.253 Since the involvement of the military coalition takes place with the consent of Yemen, it does not affect the classification of an NIAC and is often referred to as a proxy war.254 On 1 April 2022, the parties to the conflict agreed to a UN-mediated truce to “halt all offensive military air, ground and maritime operations inside Yemen and across its borders (…) for fuel ships to enter into Hodeidah ports and commercial flights to operate in and out of Sanaa airport to predetermined destinations in the region.”255 The truce has been reported to result in the longest period of peace since the war began in 2014.256 However, on 2 October 2022, the truce expired without the parties reaching agreement to extend it.257 Also in April 2022, the Houthis signed an Action Plan with the United Nations “to end and prevent the recruitment and use of children in armed conflict, the killing and maiming of children, and attacks on schools and hospitals, as well as other grave violations.”258 The impact of these peace developments can be demonstrated in the following examination. For instance, Yemen experienced the most intense hostilities in January 2022. The Houthis in particular became more active, carrying out for the first-time direct attacks the military coalition on 17 January, which retaliated by carrying out three attacks ultimately killing at least 80 civilians.259 One of the attacks included an airstrike, killing 91 detainees and injuring 236 as it hit a Houthi-run detention facility.260 January 2022 also saw major indiscriminate infrastructure damage caused by armed conflict, including critical infrastructure, such as a telecommunication building in Hodeidah destroying it and causing near-total internet blackouts throughout the country.261 Mixed reports have been produced on coalition-led airstrikes allegedly conducted in

252

Council on Foreign Relations 2022. Ibid. 254 Ibid. 255 Al Jazeera 2022i. 256 United States Department of State 2022a. 257 Ibid. 258 UN Office of the Special Representative of the Secretary-General for Children and Armed Conflict (2022) New Action Plan to Strengthen to the Protection of Children Affected by Armed Conflict in Yemen Signed with the Houthis. https://childrenandarmedconflict.un.org/2022/04/ new-action-plan-to-strengthen-the-protection-of-children-affected-by-armed-conflict-in-yemensigned-with-the-houthis/. Accessed 11 May 2023. 259 Human Rights Watch 2022n; UN OSESGY (2022a) Press Statement on the Attack in Taiz. https://osesgy.unmissions.org/press-statement-attack-taiz. Accessed 11 May 2023. 260 UN (2022) Sharp Escalation in Fighting Across Yemen Risks Spiralling Out of Control. https:// news.un.org/en/story/2022/02/1112042. Accessed 11 May 2023. 261 Human Rights Watch 2022n. 253

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the next days, one of which targeted a Houthi-controlled miliary facility in Saada governorate.262 Between April and July, despite the peace truce and Action Plan, casualties as a result of landmines and unexploded ordinance rose significantly, with children as the largest group of victims (42 killed and injured in total).263 The UN Special Envoy for Yemen concluded that the rise in casualties was due to an increased amount of civilian travel through areas previously inaccessible due to the fighting before the truce.264 Moreover, in the last week of July, the highest number of child casualties since 2020 was reached, with 38 killed or injured by parties engaging in conflict.265 This included, for example, the shelling of a residential neighbourhood in Taiz (south west Yemen) by Houthis forces killing one child and injuring 11 others, most under the age of 10.266 For the rest of the year, violence intensified, especially after the expiration of the truce agreement. For instance, in November 2022, Houthi forces conducted drone strikes on Qana port in Shabwah governorate (south east Yemen) and on Yemen’s Red Sea coast, injuring five workers and guards in total.267 Moreover, new Yemeni-force brigades were deployed to the city of Aden, alongside the launch of Operation ‘Arrows of the West’ claiming to target “terrorist cells and Houthi elements” in Lahij governorate (south Yemen) causing a 222 percent increase in average weekly violent clashes in the area compared to October 2022.268 Hence, hostilities arguably maintained the level of intensity for protracted armed violence between the Yemeni government and the Houthis in 2022.

8.1.13 Other Potential Conflicts As indicated, the situations in the preceding subsections were chosen and examined for qualifying either as a new conflict (or conflict arising) or concerning significant developments occurring in 2022. Similar to the previous YIR, it is worth highlighting that there were several other potential situations of armed conflict and belligerent

262

Ibid. Save the Children 2022a. 264 UN OSESGY (2022b) UN Special Envoy’s Remarks to the Press Following the Security Council Session on Yemen. https://osesgy.unmissions.org/un-special-envoy’s-remarks-press-following-sec urity-council-session-yemen. Accessed 11 May 2023. 265 Save the Children 2022b. 266 UN OSESGY 2022a, n. 259. 267 ACLED 2022a. 268 Ibid. 263

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occupation occurring throughout 2022. Additional possible situations not examined in this section include within Central African Republic,269 Haiti,270 Mali,271 Mozambique,272 Sudan,273 and Syria,274 among others.

8.2 Courts and Tribunals The Courts and Tribunals sections outline IHL-related developments in 2022, within and in relation to judicial bodies with the competence to interpret and apply IHL. The developments outlined here include, among others, ongoing investigations, and the adjudication of substantive IHL infringements such as war crimes, defined here as serious violations of IHL that give rise to individual criminal responsibility under international law.275 This section is divided into three subsections. The first section highlights the developments that took place in International Courts, with a special focus on the International Criminal Court (ICC) and the International Residual Mechanism for Criminal Tribunals (IRMCT). The second subsection focuses on the IHL-related developments at hybrid criminal tribunals and regional human rights courts. It particularly outlines the developments at the Kosovo Specialist Chambers (KSC), the Special Tribunal for Lebanon, and the Extraordinary Chambers in the Courts of Cambodia (ECCC). The second subsection also includes developments at the European Court of Human Rights (ECtHR) and Human Rights Council (HRC). The third section focuses on national courts and outlines a selection of notable war crime cases, several of which were brought under the principle of universal jurisdiction. The ‘Courts and Tribunals’ section is not intended to provide an exhaustive overview of the IHL-related judicial developments in 2022. It illustrates outstanding developments and includes resources for deeper research.

269

UN OHCHR (2022c) Central African Republic: UN Expert Calls for End to Impunity, Urges Armed Groups to Lay Down Arms. https://www.ohchr.org/en/press-releases/2022/08/central-afr ican-republic-un-expert-calls-end-impunity-urges-armed-groups-lay. Accessed 12 May 2023. 270 UN OHCHR (2022f) Haiti: International Community Must Act Now to Avert Tragedy – Türk. https://www.ohchr.org/en/press-releases/2022/11/haiti-international-communitymust-act-now-avert-tragedy-turk. Accessed 12 May 2023. 271 Cascais 2022. 272 Anyadike and Cebola 2022. 273 Ochab 2022. 274 US Naval Institute 2022. 275 Tadi´ c 1995, above n 5, para 94.

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8.2.1 International Courts The following section focuses on the IHL-related developments at international courts, namely the International Criminal Court and the Residual Mechanism for Criminal Tribunals. Although, it will focus on the significant developments in 2022, background information and the timeline of the cases are also outlined.

8.2.1.1

International Criminal Court (ICC)

Overview The ICC’s Rome Statute outlines the court’s jurisdiction over a wide range of war crimes. The ICC interprets and applies IHL regularly. ICC Prosecutor Mr Karim Asad Ahmad Khan KC, whose mandate started in 2021, shifted the priorities of the Office of the Prosecutor (OTP) to a more field-centric model of investigative work. This model allows the OTP to deepen its knowledge and expertise concerning the situations in the countries, accelerate the access to evidence, improve the outreach to witnesses and local communities, enhance the effective implementation of complementarity with domestic accountability efforts, and contribute to reduced costs long-term.276 With the start of his mandate, the Prosecutor also set new priorities and increased focus on dynamic complementarity, sexual and gender-based crimes, crimes against children, bringing justice closer to affected communities, utilising advanced technology, deepening the engagement with civil society, and transforming the office culture.277 The following section outlines the IHL-related developments at the ICC in the preliminary examination, investigation, and cases at the trial and appeal stages. Preliminary Examinations and Investigations The Situation in Afghanistan In November 2017, former ICC Prosecutor Fatou Bensouda requested judicial authorisation from Pre-Trial Judges to commence an investigation into alleged war crimes and crimes against humanity in relation to the armed conflict in the Islamic Republic of Afghanistan since 1 May 2003, together with an investigation into similar crimes related to the situation in Afghanistan allegedly committed in the territory of other States Parties to the Rome Statute since 1 July 2002.278 In March 2020 the Government of Afghanistan issued a deferral request pursuant to Article 18(2) of the Rome Statute.279 Following the September 2021 request by Prosecutor Karim A. A. Khan QC,280 the Pre-Trial Chamber II authorised the Prosecution to resume investigation 276

The Office of the Prosecutor 2022, p 18. Ibid., p 13. 278 ICC 2017. 279 Embassy of the Islamic Republic of Afghanistan in The Netherlands 2020. 280 ICC 2021e. 277

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into the Afghanistan Situation in October 2022. The judges highlighted that a deferral of the Court’s investigations was unjustified as Afghanistan was not carrying out genuine investigations and that Afghanistan authorities were not showing an interest to pursue the request. Further developments are expected in 2023.281 The Situation in Georgia In January 2016 Pre-Trial Chamber I decided to authorise the opening of proprio motu investigations into the situation in Georgia, requested by Prosecutor Fatou Bensouda.282 The investigations focus on alleged crimes against humanity and war crimes in the context of an international armed conflict (IAC) between 1 July and 10 October 2008 in and around the South Ossetia region in Georgia. In March 2022, ICC Prosecutor Karim Khan QC filed an application for arrest warrants in relation to three individuals for war crimes committed in the region between 8 and 27 August 2008. The arrest warrants were based on the evidence examined since the investigation commenced in 2016.283 In July 2022, Pre-Trial Chamber 1 issued the arrest warrants for Mr Mikhail Mayramovich Mindzaev, Mr Gamlet Guchmazov and Mr David Georgiyevich Sanakoev, for allegedly committing war crimes.284 The Situation in Ukraine In response to the Russian Aggression in Ukraine, the ICC Prosecutor first announced the seeking for authorisation to open an investigation into the Situation in Ukraine on 28 February 2022.285 Although Ukraine is not a State Party to the Rome Statute, the state had previously accepted the court’s jurisdiction, pursuant to Article 12(3), over alleged crimes occurring on its territory. The Ukrainian Government issued two declarations. The first one dealt with alleged crimes committed on Ukrainian territory from 21 November 2013 to 22 February 2014.286 The second declaration broadened the timeframe to an open end to cover ongoing alleged comes committed throughout the Ukrainian territory from 20 February 2014.287 On 1 March the ICC received a State Party referral from the Republic of Lithuania. Between March and April 2022, 42 other Member States referred the situation to the OTP. On 2 March 2022, the Prosecutor announced he had opened an investigation into the Situation in Ukraine based on the referrals received. The scope of the situation includes any past and present allegations of war crimes, crimes against humanity or genocide committed on any part of the territory of Ukraine by any person from 21 November 2013 onwards.288 281

ICC 2022a. ICC, Situation in Georgia, Decision on the Prosecutor’s request for authorization of an investigation decision, 27 January 2016, ICC-01/15-12 27-01-2016 1/26 EO PT. 283 ICC 2022b. 284 ICC 2022f. 285 ICC 2022h. 286 Embassy of Ukraine to the Kingdom of the Netherlands 2014. 287 Minister of Foreign Affairs of Ukraine 2015. 288 ICC 2022i. 282

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In July 2022, during a conference at the ICC, in The Hague, 45 states signed a political promise to provide funds to assist the ICC, the prosecutor general’s office in Ukraine, and the efforts of the United Nations to investigate war crimes in Ukraine.289 Cases before the Court Cases Arising from the Situation in the Central African Republic On 30 May 2014, the Office of the Prosecutor received a referral from the authorities of the Central African Republic (CAR) regarding crimes allegedly committed in their territory since 1 August 2012.290 In September 2014 the Prosecutor initiated an investigation into the situation in CAR regarding crimes against humanity and war crimes committed by both the Séléka and anti-balaka groups.291 On 10 December 2018, an arrest warrant for war crimes and crimes against humanity was issued under seal against Maxime Jeoffroy Eli Mokom Gawaka. He allegedly functioned as National Coordinator of Operations of the Anti-Balaka group in CAR. In this position he allegedly committed crimes against humanity and war crimes throughout CAR, including Bangui, Bossangoa, the Lobaye Prefecture, Yaloké, Gaga, Bossemptélé, Boda, Carnot and Berberati, between at least 5 December 2013 and at least December 2014. After being surrendered to the ICC by the authorities of Chad on 14 March 2022,292 Mr. Mokom made his first appearance before Pre-Trial Chamber II on 22 March 2022. The Pre-Trial Chamber II of the ICC has scheduled the confirmation of charges hearing for 22 August 2023.293 The arrest warrant against Mahamat Said Abdel Kani (Said) was issued under seal on 7 January 2019 for war crimes (torture and cruel treatment) and crimes against humanity (imprisonment or other severe deprivation of liberty; torture; persecution; enforced disappearance and other inhumane acts) allegedly committed in Bangui, CAR in 2013. After being surrendered to the ICC by CAR authorities in January 2021,294 Said appeared before Judge Rosario Salvatore Aitala of Pre-Trial Chamber II at the end of January 2021. The confirmation of charges hearing took place in October 2021 and in December 2021, Pre-Trial Chamber II partially confirmed the charges against Said. The Chamber concluded that there was sufficient evidence present to establish substantial grounds that Mr Said was a senior in the Séléka coalition and that he bears criminal responsibility for crimes against humanity and war crimes (including torture, cruel treatment, and outrages upon personal dignity) under Articles 25(3)(a) and 25(3)(b) of the Rome Statute. These crimes were committed against detainees believed to be supporters of former President Bozizé between 12 April and

289

Al Jazeera 2022h. ICC 2014a, 2014b. 291 Ibid. 292 Mudge 2022. 293 ICC 2022c. 294 ICC 2021d. 290

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30 August 2013.295 On 26 September 2022 the trial in the case of The Prosecutor v. Mahamat Said Abdel Kani opened before Trial Chamber VI of the International Criminal Court (ICC).296 Cases Arising from the Situation in the Democratic Republic of Congo The situation in the DRC was referred to the ICC by the DRC’s Government in 2004 and the Prosecutor chose to open an investigation.297 The investigation focusses on alleged war crimes and crimes against humanity committed in the context of armed conflict in the DRC since 1 July 2002. In July 2019, Trial Chamber VI of the ICC found Bosco Ntaganda guilty, beyond reasonable doubt of 18 counts of war crimes and crimes against humanity committed in Ituri, DRC in 2002–2003.298 Among other offences, the defendant was convicted of the war crimes of, murder, intentional attacks against civilians, rape, displacement of civilians, and the recruitment of children under the age of 15 to participate in hostilities. These crimes were committed against civilians as part of the Forces Patriotiques pour la Libération du Congo (FPLC)’s policy, and Mr. Ntaganda was found to hold an important military position within the group. On November 7, 2019, Mr. Ntaganda was sentenced to 30 years in prison.299 Following the sentencing, the defence and prosecution appealed the judgement, and the defence also submitted an appeal against the sentence.300 The Appeals Chamber, in its decision on 30 March 2021, upheld the verdict of Trial Chamber VI that found Ntaganda guilty of 18 counts of war crimes and crimes against humanity. Additionally, the Appeals Chamber confirmed the sentence that was handed down on 7 November 2019.301 In September 2022, the Appeals Chamber of the ICC directed the Trial Chamber to issue a new reparations order, citing several errors in the Trial Chamber’s decision.302 Specifically, the Appels Chamber found that the Trial Chamber did not adequately determine the number of potential or actual victims and did not sufficiently explain its calculation or reasoning for the imposed monetary penalty of 30 million USD against Mr. Ntaganda. The decision was also made without considering and ruling on reparations applications from victims. Additionally, the concept of transgenerational harm and

295

ICC, The Prosecutor v. Mahamat Said Abdel Kani, Decision on the confirmation of charges against Mahamat Said Abdel Kani, 9 December 2021, ICC-01/14-01/21. 296 ICC 2022e. 297 ICC 2004. 298 ICC, The Prosecutor v. Bosco Ntaganda, Judgement, 8 July 2019, ICC-01/04-02/06. 299 ICC, The Prosecutor v. Bosco Ntaganda, Sentencing judgement, 7 November 2019, ICC-01/ 04-02/06. 300 ICC 2021c. 301 ICC, The Prosecutor v. Bosco Ntaganda, Public redacted version of Judgement on the appeals of Mr Bosco Ntaganda and the Prosecutor against the decision of Trial Chamber VI of 8 July 2019 entitled ‘Judgement’, 30 March 2021, ICC-01/04-02/06 A A2. 302 ICC, The Prosecutor v. Bosco Ntaganda, Judgment on the appeals against the decision of Trial Chamber VI of 8 March 2021 entitled “Reparations Order”, 12 September 2022, ICC-01/04-02/06 A4-A5.

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the evidentiary standards to establish such harm were not adequately explained in the decision.303 Cases Arising from the Situation in the Sudan In 2005, the ICC initiated the investigation into alleged genocide, war crimes and crimes against humanity committed in Darfur, Sudan, since 1 July 2002. The investigation was launched after the UN Security Council referred the matter in March 2005, recognizing that the situation in Sudan posed a threat to international peace and security.304 In 2022 developments from the previous year in the case of Mr Ali Muhammad Ali Abd-Al-Rahman continued. In 2007 and 2018 arrest warrants against Mr Abd-Al-Rahman, suspected of being a senior leader of the Militia/Janjaweed in the Wadi Salih and Mukjar Localities in Darfur, Sudan were issued.305 Mr Abd-Al-Rahman is suspected of 31 counts of war crimes and crimes against humanity allegedly committed between August 2003 and 2004, including the war crimes of pillaging, destruction of the property of an adversary, other inhumane acts, outrages upon personal dignity, rape, torture, cruel treatment and attempted murder.306 He was transferred to the ICC’s custody on 9 June 2020, after surrendering himself voluntarily in the CAR.307 The confirmation of charges hearing took place in May 2021.308 On 9 July 2021, Pre-Trial Chamber II confirmed all the charges of war crimes and crimes against humanity brought against Mr Abd-Al-Rahman by the Prosecutor.309 On 5 April 2022, the trial in the case of The Prosecutor v. Ali Muhammad Ali Abd-Al-Rahman opened in Trial Chamber I of the ICC. It thereby became the ICC’s first trial regarding the Situation in Darfur.310 The trial remained ongoing in 2022. In May 2023, the common legal representatives of the victims are scheduled to deliver their opening statements and call their witnesses. On August 28, 2023, the Defence is scheduled to present its opening statements and commence with its case.311 During a visit to Sudan, the ICC chief Prosecutor Karim Khan QC addressed the UN Security Council in August 2022. He called upon the Council to take action

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ICC 2022d. ICC 2005. 305 ICC, The Prosecutor v. Ahmad Muhammad Harun and Ali Muhammad Ali Abd-Al-Rahman, Public redacted version of Second warrant of arrest for Ali Muhammad Ali Abd-Al-Rahman (“Ali Kushayb”), 16 January 2018, ICC-02/05/05-01/07-7-Secret-Exp, 11 June 2020, ICC-02/05-01/07. 306 ICC, The Prosecutor v. Ali Muhammad Ali Abd-Al-Rahman (“Ali Kushayb”), Prosecution’s submission of the Document Containing the Charges, 29 March 2021, ICC-02/05-01/20. 307 ICC 2020. 308 ICC 2021b. 309 ICC, The Prosecutor v. Ali Muhamad Ali Abd-Al-Rahman (‘Ali Kushayb’), corrected version of “Decision on the confirmation of charges against Ali Muhammad Ali Abd-Al-Rahman (‘Ali Kushayb’), 9 July 2021, ICC-02/05-01/20-433’, 23 November 2021, ICC-02/05-01/20. 310 Human Rights Watch 2022d. 311 ICC 2023a. 304

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with regard to the lack of accountability for crimes committed during the conflict in Darfur.312 Cases Arising from the Situation in the Uganda The ICC opened an investigation into the situation in Uganda on July 29, 2004, following a referral by the Ugandan government.313 The investigation focused on crimes committed during the conflict between the Government of Uganda and the Lord’s Resistance Army (LRA) from July 1, 2002.314 Two significant developments took place in 2022. In November, the chief prosecutor Karim Khan QC filed a request before Pre-Trial Chamber II seeking authorisation to hold a hearing on the confirmation of charges against Joseph Kony in his absence.315 Joseph Kony is the founder and leader of the LRA in Uganda. An arrest warrant against him was issued in 2005 for 33 counts of war crimes and crimes against humanity, including murder, cruel treatment, enslavement, rape, and attacks against the civilian population.316 Although the ICC has combined efforts of the OTP and the Registry, State parties, international organizations, and civil society actors to locate the accused, the arrest warrant remained unexecuted. The chief prosecutor highlighted with his request, that he believes a trial in absentia to be necessary, appropriate, and compatible with the Rome Statute.317 An arrest warrant was issued against Dominic Ongwen on 18 May 2005 following an investigation into the situation in northern Uganda.318 Mr Ongwen was accused of being a commander of the Lord’s Resistance Army (LRA) where he is alleged to have committed crimes against humanity and war crimes against civilians in Uganda. Mr Ongwen surrendered himself to the ICC on 21 January 2015.319 On March 2016, PreTrial Chamber II confirmed the charges against Mr Ongwen.320 The Court confirmed 70 charges against Mr Ongwen, finding substantial grounds to believe that he was responsible for war crimes (including attacks against the civilian population; murder; rape; torture; pillaging; the conscription and use of children under the age of 15 to participate actively in hostilities) and crimes against humanity.321 312

ICC 2022g. UN (2004) President of Uganda Refers Situation Concerning Lord’s Resistance Army (LRA) to International Criminal Court. https://press.un.org/en/2004/afr821.doc.htm Accessed 31 May 2023. 314 Ibid. 315 ICC 2022j. 316 ICC, Situation in Uganda, Public redacted version – Warrant of Arrest Joseph Kony on 8 July as amended on 27 September 2005. 27 September 2005, ICC-02/04-01/05. 317 ICC 2022j. 318 ICC, Situation in Uganda, Public redacted version – Warrant of Arrest for Dominic Ongwen, 8 July 2005, ICC-02/04. 319 ICC 2015. 320 ICC, The Prosecutor v. Dominic Ongwen, Public redacted with public annex: List of participating victims, Decision on the confirmation of charges against Dominic Ongwen, 23 March 2016, ICC-02/ 04-01/15. 321 Ibid. 313

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On 6 December 2016, the trial against Mr Dominic Ongwen opened before Trial Chamber IX.322 On 4 February 2021, Mr Ongwen was found guilty for 61 charges of crimes against humanity and war crimes committed in Northern Uganda between 1 July 2002 and 31 December 2005.323 The court found him guilty of crimes, including, attacks against civilians, murder, attempted murder, torture, enslavement, pillaging, destruction of property, persecution, as well as several sexual and gender-based crimes. Additionally, he also committed the crimes of conscripting children under the age of 15 into armed forces and using them to participate actively in hostilities.324 On May 6, 2021, Ongwen was sentenced to 25 years in prison. His punishment was mitigated by the fact that he himself was abducted and used as a child soldier by the LRA.325 Nevertheless, his criminal responsibility was a subject of debate and controversy,326 with some arguing that he should have been granted amnesty or a much lower sentence due to his experience as a former child soldier. Others argued that the sentence was necessary to deter other former child soldiers from committing similar crimes with the expectation of receiving amnesty.327 On 21 May 2021, Ongwen submitted a Notification of Appeal against the Trial Judgement.328 The Defence respectively submitted its appeals briefs against the conviction and the sentence on 21 July and 26 August 2021. In December 2022, the Appeal Chamber of the ICC announced the date for delivery of judgement on the verdict and sentencing of Mr Ongwen. On 15 December 2022, the Appeals Chamber confirmed the conviction and sentencing of Ongwen, for crimes against humanity and war crimes committed in Uganda between 2002 and 2005.329 Cases Arising from the Situation in Libya The situation in Libya was referred to the ICC by the United Nations Security Council in 2011 following the Libyan civil war. The ICC opened an investigation into the situation in February 2011. The investigation focused on alleged crimes against humanity and war crimes committed throughout Libya, including murder, imprisonment, torture, and persecution.330 The ICC had issued arrest warrants following the opening of investigations. In 2022, two important developments took place. 322

ICC 2016. ICC, The Prosecutor v. Dominic Ongwen, Public Redacted: Trial Judgement, 4 February 2021, No. ICC-02/04-01/15. 324 Ibid. 325 ICC 2021a. 326 Africa News 2021. 327 Kersten 2016. 328 ICC, The Prosecutor v. Dominic Ongwen, Defence Notification of its Intent to Appeal the Trial Judgement, 21 May 2021, No. ICC-02/04-01/15. 329 ICC, The Prosecutor v. Dominic Ongwen, Judgment on the appeal of Mr Ongwen against the decision of Trial Chamber IX of 4 February 2021 entitled “Trial Judgement”, 15 December 2022, ICC-02/04-01/15 A. 330 ICC 2023d. 323

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On 15 June 2022, Pre-Trial Chamber I decided to terminate the proceedings against Mahmoud Mustafa Busayf Al-Werfalli following the Prosecution’s notification of his death and request to withdraw the warrants of arrest.331 Mr Al-Werfalli allegedly directly committed and ordered the commission of murder as a war crime in the context of seven incidents, involving 33 persons, which took place from 3 June 2016 until on or about 17 July 2017 in Benghazi or surrounding areas, in Libya. Furthermore, he allegedly committed murder as a war crime in the context of an eighth incident which took place on 24 January 2018, when Mr Al-Werfalli allegedly shot dead 10 persons in front of the Bi’at al-Radwan Mosque in Benghazi, Libya.332 In September 2022, Pre-Trial Chamber I decided to terminate the proceedings against the alleged Libyan army Lieutenant General and former head of the Libyan Internal Security Agency (ISA), Al-Tuhamy Mohamed Khaled, following the Prosecution’s notification of his death and request to withdraw the arrest warrant.333 Khaled allegedly committed crimes against humanity (imprisonment, torture, persecution, and other inhumane acts) and war crimes (torture, cruel treatment and outrages upon personal dignity) in Libya between February and August 2011.334

8.2.1.2

Mechanisms for International Criminal Tribunals (IRMCT)

Overview The UN Security Council established the Mechanism for International Criminal Tribunals in 2010 to carry out essential residual functions of the International Criminal Tribunal for Rwanda (ICTR) which closed in 2015 and for the former International Criminal Tribunal for the former Yugoslavia (ICTY) which closed in 2017.335 The Mechanism’s branch in Arusha, United Republic of Tanzania, began operations in July 2012, assuming functions derived from the International Criminal Tribunal for Rwanda,336 while its branch in The Hague, Netherlands, commenced operations on 1 July 2013, assuming functions derived from the International Tribunal for the Former Yugoslavia.337 Two developments related to IHL took place at the IRMCT.

331

ICC, The Prosecutor v. Mahmoud Mustafa Busayf Al-Werfalli, Decision terminating proceedings against Mr Mahmoud Mustafa Busayf Al-Werfalli, 15 June 2022, ICC-01/11-01/17. 332 ICC 2023b. 333 ICC, The Prosecutor v. Al-Tuhamy Mohamed Khaled, Decision terminating the proceedings against Mr Al-Tuhamy Mohamed Khaled, 7 September 2023, ICC-01/11-01/13. 334 ICC 2023c. 335 UN SC, Resolution 1966 Adopted by the Security Council at its 6463rd meeting, on 22 December 2010, S/RES/1966 (2010). 336 UN IRMCT (2022) Legacy website of the International Criminal Tribunal for Rwanda. https:// unictr.irmct.org. Accessed 25 May 2023. 337 UN IRMCT (2017) International Criminal Tribunal for the former Yugoslavia. https://www.ict y.org Accessed 25 April 2023.

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Cases in the Appeal Stage The ICTY originally held the trial against Mr Jovica Staniši´c and Mr Franko Simatovi´c between 9 June 2009 and 31 January 2013.338 They were accused of participating in a joint criminal enterprise (JCE) with the objective to forcibly and permanently remove the majority of Croats, Bosnian Muslims and Bosnian Croats from Serb-claimed areas of Bosnia and Herzegovina and Croatia. As part of the JCE, both defendants were accused of committing the crimes against humanity of persecution, murder, deportation and inhumane acts (forcible transfer) and the war crime of murder.339 On 30 May 2013, a majority of the ICTY Trial Chamber acquitted both defendants of all charges.340 The Trial Chamber cited as reason that based on the evidence presented, it was unable to conclude that both defendants had shared intent to further the common criminal purpose of the JCE. The Chamber was also not able to conclude that the two planned or ordered the crimes or that they aided or abetted them.341 In December 2015, the ICTY Appeals Chamber granted, in part, the appeal by the prosecution and quashed the acquittals on all counts.342 The Appeals Chamber held that the Trial Chamber committed a legal error by failing to adjudicate and provide reasoned opinion on essential elements of JCE liability.343 Additionally, the majority of the Appeals Chamber found that the Trial Chamber had violated the law by insisting that the aider and abettor’s actions be specifically intended to aid in the commission of a crime.344 In December 2015, Mr Staniši´c and Mr Simatovi´c were brought before the IRMCT where they both pleaded not guilty.345 This is the first retrial held before the IRMCT. The trial commenced on 13 June 2017 and closed on 14 April 2021.346 On 30 June 2021, the Trial Chamber issued its judgement in the case against Staniši´c and Simatovi´c. Mr Staniši´c and Mr Simatovi´c, formerly senior officials in the State Security Service of Serbia, were convicted for aiding and abetting crimes against humanity and war crimes committed in ethnic cleansing campaigns by Bosnian Serb forces

338

ICTY 2013b. Ibid. 340 ICTY 2013a. 341 Ibid. 342 ICTY 2015. 343 ICTY, The Prosecutor v. Jovica Staniši´ c and Franko Simatovi´c, Judgement, 9 December 2015, IT-03-69-A. 344 Ibid. 345 UN IRMCT (2015) Initial appearance of Staniši´ c and Simatovi´c before the Mechanism. https://www.irmct.org/en/news/initial-appearance-stani%C5%A1i%C4%87-and-simatovi% C4%87-mechanism Accessed 25 April 2023. 346 UN IRMCT (2021) Conclusion of closing arguments in Prosecutor v. Jovica Staniši´ c and Franko Simatovi´c. https://www.irmct.org/en/news/21-04-23-conclusion-closing-arguments-prosec utor-v-jovica-stanisic-and-franko-simatovic. Accessed 25 April 2023. 339

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in 1992. Both were sentenced to 12 years of imprisonment.347 In September 2021, the Prosecution filed its notice of appeal, based on two grounds against the Trial Chamber’s judgement. The defence teams filed 12 grounds of appeal in total.348 The first status conferences in the appeal were held in December 2021, April and June 2022. Presiding Judge Gatti Santana, stated that the Appeals Chamber anticipates the in-person appeals hearing to be held during the week of 23 January 2023. The appeals proceedings are set to be completed in June 2023.349

8.2.2 Hybrid and Regional Courts and Tribunals Overview For the purpose of this review, hybrid tribunals are defined as criminal tribunals that contain both national and international features.350 Numerous developments relating to IHL occurred at hybrid criminal tribunals during 2022. This section focuses on the following three tribunals due to the most relevant developments: the Kosovo Specialist Chambers (KSC), the Special Tribunal for Lebanon (STL) and the Extraordinary Chambers in the Courts of Cambodia (ECCC).

8.2.2.1

Kosovo Specialist Chambers and Specialist Prosecutor’s Office

The Kosovo Specialist Chambers and Specialist Prosecutor’s Office were established with a specific, temporary mandate and jurisdiction, pursuant to an international agreement ratified by the Kosovo Assembly, a Constitutional Amendment and the Law on Kosovo Specialist Chambers and Specialist Prosecutor’s Office. The Haguebased Tribunal has jurisdiction over crimes against humanity, war crimes and other crimes under Kosovo law, which were commenced or committed in Kosovo between 1 January 1998 and 31 December 2000 by or against citizens of Kosovo or the Federal Republic of Yugoslavia.351 Three key developments took place at the KSC in 2022. Firstly, in January 2022 the KSC extended detention for former President Hashim Thaci who allegedly committed war crimes and crimes against humanity during the conflict in Kosovo. Pre-trial Judge Guillou highlighted that the KSC made this decision considering that the “risk of flight; risks of obstruction and committing further crimes” could not be ignored, and that “no other conditions that might be 347

UN GA SC (2022) International Residual Mechanism for Criminal Tribunals, UN Doc. A/77/ 242-S/2022/583. 348 Ibid., p 12, para 54. 349 UN SC (2022) Letter dated 16 November 2022 from the President of the International Residual Mechanism for Criminal Tribunals addressed to the President of the Security Council, UN Doc. S/ 2022/866. 350 Asser Institute Nexus on Conflict and Crime 2022. 351 KSC 2022.

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implemented could sufficiently address the risks posed by Mr Thaçi.”352 On 21 September 2022, the Pre-Trial Judge transmitted the case file of Pjetër Shala to Trial Panel I. The trial preparation conference was held in October 2022. The accused was allegedly a member of the Kosovo Liberation Army (KLA) stationed in Kuk s, Albania. He is charged with allegedly having committed war crimes between May 1999 and 5 June 1999 against persons detained at the Kuk s Metal Factory in Albania, allegedly used by the KLA. The trial is set to commence on 21 February 2023.353 Secondly, the initial indictment against the four accused in the Hashim Thaçi et al. case was made public in November 2020. The case involves four alleged former senior officials of the KLA: Hashim Thaçi, Kadri Veseli, Rexhep Selimi and Jakup Krasniqi. The indictment was appealed against and amended throughout 2021 and 2022. On 10 May 2022, during their further appearances in court, all four accused pleaded not guilty to the new charges in the amended indictment. On 29 September a further amended indictment was published, which removed certain charges from the previous version. On 15 December 2022, the Pre-Trial Judge transmitted the case file to Trial Panel II. The war crimes (illegal or arbitrary arrest and detention, cruel treatment, torture, and murder) and crimes against humanity (persecution, imprisonment, other inhumane acts, torture, murder, and enforced disappearance of persons) charged were allegedly committed from at least March 1998 through September 1999 and took place in several locations across Kosovo as well as in Kukës and Cahan, in Northern Albania.354 The trial is set to commence in April 2023. Thirdly, the trial against Salih Mustafa opened in 2021.355 In 2022 the Trial Panel of the KSC found Mustafa guilty of four counts of war crimes.356 The indictment against him was made public in September 2020. It alleged him of being the Commander of the ‘BIA’ guerrilla unit, which operated within the Llap Operational Zone of the KLA. On the basis of individual criminal responsibility and superior criminal responsibility, it charged him with war crimes committed by certain KLA members against persons detained at a detention compound, located in the Gollak region in Kosovo. The evidentiary proceedings in this case were closed on 20 June 2022 and the closing statements took place in September 2022. The trial judgement was pronounced on 16 December 2022: The Trial Panel found the accused guilty of the war crimes of arbitrary detention, torture and murder and sentenced him to a prison sentence of 26 years.357

352

Bami 2022. KSC 2023b. 354 KSC 2023a. 355 KSC 2023c. 356 Ibid. 357 Ibid. 353

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Special Tribunal for Lebanon

In 2022, the Special Tribunal for Lebanon (STL) saw few developments related to IHL. The Tribunal was established in 2009 to investigate and prosecute those responsible for the assassination of Prime Minister Rafik Hariri in 2005, the deaths of 21 others, and other connected attacks.358 It is a Tribunal of international character, applying notably the provisions of the Lebanese Criminal Code relating to the prosecution and punishment of acts of terrorism.359 Following the view from the previous issue, this YIR considers the Tribunal relevant insofar as, in general, those responsible for terrorism may also be responsible for war crimes.360 In line with the STL’s Revised 2021 Expenditure Plan, the Tribunal maintained its commitment to the completion of the Prosecutor v. Merhi and Oneissi appellate proceedings by the end of July 2022.361 The case originally formed part of the Ayyash et al. case, relating to three attacks committed between 2004 and 2005 found to be related to the 14 February 2005 attack that killed the Lebanese Prime Minister Rafik Hariri. The trial was conducted in absentia, whereby, on 18 August 2020, the Trial Chamber found Mr Ayyash guilty as a co-perpetrator of conspiracy aimed at committing a terrorist act and intentional homicide in five counts.362 The verdict also pronounced the other defendants—including Mr Hassan Habib Merhi and Mr Hussein Oneissi—not guilty and acquitted of all counts charged in the amended consolidated indictment.363 On the same day, the Prosecution appealed against the acquittals, alleging errors of law and fact on the part of the Trial Chamber.364 On 10 March 2022, the Appeals Chamber reversed the acquittals, unanimously finding that, in light of the totality of the facts and circumstances of the case, the crimes of which both Mr. Mehri and Mr. Oneissi were originally convicted “were extremely grave and that certain aggravating circumstances pleaded by the Prosecution had been established beyond reasonable doubt.”365 Both were sentenced to life imprisonment; the heaviest sentence under the STL Statute and Rules.366 Furthermore, on 1 July 2022, following the Expenditure Plan, the Tribunal entered a residual phase to preserve its records and archives, as well as follow its commitments to victims and witnesses, and requests for information from national authorities.367 358

UN SC (2007) Resolution 1757 on the Statute of the Special Tribunal of Lebanon (2007) UN Doc. S/RES/1757. 359 Ibid. 360 See Sexton et al. 2023, p 243. 361 STL 2022a. 362 STL, The Prosecutor v. Salim Jamil Ayyash, Hassan Habib Merhi, Hussein Hassan Oneissi and Assad Hassan Sabra, Judgement, 18 August 2020, STL-11-01/T/TC. 363 Ibid. 364 STL, The Prosecutor v. Hassan Habib Merhi and Hussein Hassan Oneissi, Appeal Judgement, 10 March 2022, STL-11-01/A-2/AC. 365 STL 2022b. 366 See n. 362. 367 STL 2022b.

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The operation of the STL was planned to wind down from July 2022 onwards,368 with the Tribunal receiving an extension of its mandate until the end of 2023 for the sole purpose of completing “non-judicial residual functions”.369

8.2.2.3

Extraordinary Chambers in the Courts of Cambodia

The Extraordinary Chambers in the Courts of Cambodia (ECCC) underwent a number of key developments in 2022. The Chambers were established in 2001 by the Cambodian government, followed by an agreement with the UN in 2003 (UNRoyal Government of Cambodia (UN-RGC) Agreement) to ensure their partnership in its functioning.370 It applies Cambodian domestic law, including those provisions pertaining to violations of ICL and IHL, against individuals including “senior leaders” of the former Communist Party of Kampuchea (CPK) (better known as the ‘Khmer Rouge’) regime whose alleged unlawful acts occurred between 17 April 1975 and 6 January 1979 when Cambodia was ruled by the Khmer Rouge.371 Firstly, on 12 January 2022, the Addendum to the UN-Royal Government of Cambodia (UN-RGC) Agreement on the ECCC entered into force.372 The Addendum confers the ECCC with a residual mandate to commence upon the completion of judicial proceedings for an initial period of three years.373 These residual functions include, inter alia, the supervision of the enforcement of sentences, ensuring victim and witness protection, preservation of archives, and the monitoring of the enforcement of reparations.374 Secondly, on 22 September 2022, the ECCC Supreme Court Chamber delivered its final judgement in Case 002/02 against Mr. Khieu Samphân, considered one of the most senior leaders of the Khmer Rouge.375 The judgement follows the Trial Chamber judgement rendered on 16 November 2018 finding Mr. Samphân guilty of, inter alia, grave breaches of the Geneva Conventions, namely “wilful killing, torture, inhuman treatment, wilfully causing great suffering or serious injury to both body or health, wilfully depriving prisoners of war or civilians the rights of fair and regular trials, and the unlawful confinement of civilians.”376 On appeal, Mr. Samphân’s Co-Prosecutors 368

STL 2023. UN (2023) Commending Work of Special Tribunal for Lebanon, Secretary-General Extends Mandate until December 2023 to Complete Non-Judicial Tasks, Ensure Orderly Closure. https:// press.un.org/en/2023/sgsm21654.doc.htm. Accessed 1 June 2023. 370 Corell 2020. 371 Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea (2004), Article 2. 372 ECCC 2022a. 373 Ibid. 374 Ibid. 375 ECCC 2022b; ECCC Case 002/02, Summary of Appeal Judgement, 22 September 2022, 002/ 19-09-2007-ECCC/SC; UN News 2022. 376 ECCC Case 002/02, Summary of Appeal Judgement, 22 September 2022, 002/19-09-2007ECCC/SC. 369

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alleged that the Trial Chamber committed a number of errors relating the fairness of the proceedings and on some substantive criminal law interpretations.377 Although the appeal did not challenge any of the Trial Chamber’s findings regarding the charge of grave breaches of the Geneva Conventions, the Supreme Court Chamber decided to still consider them when judging specifically on the errors relating to the fairness of proceedings.378 In its final judgement, the Supreme Court Chamber upheld all convictions against Mr. Samphân and sentence of life imprisonment. The judgement was described by the Co-Prosecutors as “forever stand[ing] as a bulwark against revisionism” and “a measure of justice for the millions who suffered and died at the hands of the Khmer Rouge.”379

8.2.3 Human Rights Courts and Bodies This section outlines developments of particular relevance to IHL that occurred during 2022 at human rights courts and bodies, namely the European Court of Human Rights (ECtHR) and the UN Human Rights Council.

8.2.3.1

European Court of Human Rights

The ECtHR saw a number of organisational and judicial developments related to IHL in 2022. Firstly, the Council of Europe (CoE) initiated and enforced some key decisions involving the ECtHR in the wake of Russia’s war in Ukraine. In a speech delivered on 24 June 2022, Robert Spano—President of the ECtHR—described that these events have led to a “transformative moment” in the history of European peace and security, and the ECtHR’s role in contributing to its stability has remained strong.380 In doing do, the ECtHR first granted a series of urgent interim measures against Russia. The first was granted on 1 March in response to a request from the Ukrainian Government on 28 February 2022 in relation to the “massive human rights violations being committed by the Russian troops in the courts of the military aggression against the sovereign territory of Ukraine.”381 According to the Court, Russia’s military action in Ukraine gave rise to real and continuing risk of serious violations of several rights of the European Convention of Human Rights (ECHR) of the Ukrainian civilian

377

Ibid. Ibid. 379 Ibid.; ECCC 2022b. 380 CoE 2023, p 15. 381 ECtHR 2022c. 378

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population.382 The ECtHR urged the Russian government to abstain from engaging in any military assaults on innocent civilians and their properties, including homes and vital civilian structures. Additionally, the Russian Government was requested to guarantee the protection of medical facilities, staff, and emergency vehicles in areas affected or surrounded by Russian troops.383 The second measure was granted on 4 March in response to a number of requests from individuals on Ukrainian territory against the Russian Government.384 In this measure, the ECtHR decided that any request brought by civilians proving that they “face serious and imminent risk of irreparable harm to their physical integrity and/ or right to life” were also covered by the previous measures granted on 1 March.385 Building on this, the ECtHR indicated to the Russian Government, its obligation to ensure that civilians have unimpeded access to, among others, safe evacuation routes, healthcare, and food, as well as for humanitarian workers and aid to have unconstrained passage.386 The third measure was granted on 8 March in response to applications from two Russian media companies—ANO RID Novaya Gazeta and OOO Telekanal Dozhd—and two Russian nationals—Dmitry Andreyevich Muratov and Natalya Vladimirovna Sindeyeva.387 Submitted on 3 March, the application requested from the ECtHR to grand interim measures against the Russian Government to refrain from interfering in Novaya Gazeta’s coverage of the armed conflict on the territory of Ukraine.388 The ECtHR described the armed conflict as an “exceptional context” in which the application was submitted, and urged the Russian Government to refrain from actions and decisions blocking Novaya Gazeta’s activities and depriving the company of the enjoyment of rights guaranteed under Article 10 (freedom of speech).389 Furthermore, following a series of decisions made by the CoE Committee of Ministers and Parliamentary Assembly in light of Russia’s aggression against Ukraine, the Plenary Court—the assembly of the ECtHR’s judges—expelled Russia as a High Contracting Party to the ECHR, and thus from the CoE, as of 16 September.390 In its Resolution of March 2022, it was decided that the ECtHR will 382

Ibid. These rights include those under Article 2 (right to life), Article 3 (prohibition of torture and inhuman or degrading treatment or punishment) and Article 8 (right to respect for private and family life) of the ECHR. 383 Ibid. 384 ECtHR 2022a. 385 Ibid. These persons include “those taking refuge in shelters, houses and other buildings, fearing for their lives due to ongoing shelling and shooting, without or with limited access to food, healthcare, water, sanitation, electricity and other interconnected services essential for survival, in need of humanitarian assistance and safe evacuation”. 386 Ibid. The rights are the same as those under the measures imposed on 1 March (see above n 382). 387 ECtHR 2022b. 388 Ibid. 389 Ibid.; for more discourse, see Van Baelen 2022. 390 CoE 2022.

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continue to have jurisdiction over applications directed against Russia concerning alleged violations of the ECHR, provided they occurred before 16 September.391 President Spano announced that up until June, the ECtHR’s docket contained approximately 17,000 cases against Russia, with more anticipated to be lodged as a result of the war in Ukraine, resulting in an unprecedented level of work for the Court.392 Secondly, the ECtHR saw two notable judicial developments. In the case of Savickis and Others v. Latvia, the Grand Chamber handed down its Judgement on 9 June 2022 on the question of whether Latvian pension law, which excludes employment periods accrued in the former republics of the USSR from the calculation of retirement pensions of ‘non-citizens of Latvia’ (nepilsoni), constitutes a violation of Article 14 (non-discrimination) in conjunction with Article 1 of Protocol 1 of the ECHR.393 According to the applicants, the law discriminates unlawfully on the grounds of their nationality “because their work outside of the borders of what used to be the Latvian SSR is not taken into account for the calculation of the pension as opposed to Latvian citizens.”394 For context, ‘non-citizens’ of Latvia are persons predominately of Russian, Ukrainian and Belarusian descendent, who were not Latvian citizens up to 17 June 1940—the day of which the USSR began its invasion and unlawful occupation of Latvia. Accordingly, Latvian citizenship can only be acquired by way of naturalisation.395 The case concerns IHL insofar as the Chamber notably used justifications relating to the specific context of Latvia’s occupation and annexation, and Latvia’s legislative choices thereof after its restoration of independence, to widen the margin of appreciation required for questions concerning a direct difference in treatment on the sole ground of nationality. For instance, the Chamber considered that the choices by the Latvian legislature concerning the design of its pension law were directly linked to its efforts to “addressing the consequences of a situation which had arisen from an occupation and subsequent annexation in breach of international law”, more specifically, aiming to protect its constitutional identity.396 Moreover, the Chamber reinforced the Court’s official position on the historical context of the occupation of Latvia, recognising that since 1940, Latvia suffered aggression, unlawful occupation, and annexation by the former Soviet Union and thus Latvia cannot be considered a successor state to the USSR.397 Based on its assessment, the Chamber concluded 391

Ibid. CoE 2023, p 15. 393 ECtHR, Savickis and Others v. Latvia, Grand Chamber Judgement, 9 June 2022, Application no. 49270/11. 394 Ganty and Kochenov 2022. 395 See n. 393, para 172. 396 Ibid., paras 207–208. The Latvian Constitutional Court previously reasoned that “the historical context in which the social security system had been created […] [follows that] once Latvia’s independence had been restored, the State had to resolve the issue of how to calculate the retirement pensions for those persons who made no contributions to the Latvian State budget, either because they had retired prior to the restoration of independence or because their insurance periods had been entirely or partly accrued during the Soviet regime” (para 49). 397 Ibid., para 104. 392

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that Latvia’s difference in treatment was consistent with its legitimate aims, and its justifications amounted to “very weighty reasons” for there to be no violation of the relevant ECHR provisions.398 In effect, the Judgement displays the ECtHR’s view and attitude towards situations of unlawful occupation, how it shapes its test for assessing the legality of discriminatory treatment against certain citizenship statuses, and thus the scope of European human rights law for relevant persons in the future.399 Furthermore, the Grand Chamber issued its Judgement in the case of H.F. and Others v. France on 14 September 2022. The case concerned two applicants alleging that France’s refusal to repatriate their daughters and grandchildren held in the camps of al-Hol and Roj in north-eastern Syria—controlled by the Syrian Democratic Forces (SDF)—exposed them to inhumane and degrading treatment prohibited under Article 3 of the ECHR, as well as a breach of their right to enter the territory of France of which they were nationals as guaranteed by Article 3(2) of Protocol No. 4 (prohibition of expulsion of nationals).400 Additionally, the applicants alleged that they had no effective domestic remedy by which to challenge not to carry out the requested repatriations guaranteed under Article 13 of the ECHR (right to effective remedy) together with Article 3(2) of Protocol No. 4.401 As part of its assessment, the Chamber first consulted numerous provisions of IHL. In particular, the Chamber referred to Article 3 common to the four Geneva Conventions, recognising that the legal questions of the case arise within the context of a non-international armed conflict (NIAC), meaning that the provision is binding on the SDF, which thus holds the obligation to provide “humane treatment for all persons who are not directly participating in the hostilities or who have been disarmed.”402 The Chamber also reminded of the State obligation to ensure compliance with IHL and the negative obligation to prevent and bring such violations to an end in accordance with common Article 1 of the Geneva Conventions, Rule 144 of the study on Customary International Humanitarian Law by the International Committee of the Red Cross (ICRC), and the International Court of Justice’s (ICJ) elaboration in its advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory.403 Furthermore, the Chamber also consulted Resolution (2321 (2020)) from the CoE Parliamentary Assembly and Committee of Ministers, whereby actively repatriating children detained in camps in Syria is considered “a humanitarian duty” and for States to take all necessary measures to do so, provided that the children’s parents

398

Ibid., paras 219–221. Ibid. 400 ECtHR, H.F. and Others v. France, Grand Chamber Judgement, 14 September 2022, Application nos. 24384/19 and 44234/20, para 3. 401 Ibid. 402 Ibid., para 122 as well as the prohibition against violence to life and outrages upon personal dignity, including humiliating and degrading treatment. 403 Ibid., paras 123–124. 399

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who are believed to be affiliated with Daesh, were citizens of the State.404 Having considered the relevant IHL rules, the Chamber acknowledged the overwhelming use of diplomatic protest and collective measures, such as political pressure, coercive measures, among others, as ways that States can exert their influence in attempts to prevent and stop violations of IHL.405 On the other hand, the ECtHR consulted the practice of domestic courts dealing with this issue, which have “taken the view that […] international humanitarian law […] do[es] not create an obligation for States to repatriate their nationals” and that a right to return of persons in situations of extreme distress must be assessed in light of a wide margin of appreciation for States.406 As a result, for its interpretation of Article 3(2) of Protocol No. 4 in particular, the Chamber reasoned that its assessment would consider France’s compliance with IHL vis-à-vis the inherent challenges of repatriation to ensuring national security, defence, and other obligations concerning consular protection.407 First, regarding the complaints under Article 3 of the ECHR, the Chamber found them inadmissible since it found no “special features”—stemming from the applicant’s nationality or France’s diplomatic obligation to protect them from ill-treatment in the camps—to trigger France’s jurisdiction ratione loci to examine the applications. Specifically, the Chamber found that a decision of the French authorities not to repatriate the applicant’s family members does not have the effect of bringing them within the scope of its jurisdiction as regards the ill-treatment to which they are subjected in the camps under SDF’s control.408 Secondly, for Article 3(2) of Protocol No. 4, the Chamber found that the question of jurisdiction over the applicants was to be examined as part of the merits. A key aspect of its interpretation included the assessment of whether France’s decisionmaking process on the applicant’s application for repatriation was “surrounded by appropriate safeguards against arbitrariness”—in particular, adversarial proceedings before an independent body competent to review the reasons for the decision and relevant evidence.409 The Chamber reminded that “[s]ituations involving the imperatives of protecting international peace and security are not exempt from that requirement.”410 In particular, for reviews of repatriation decisions made on behalf of minors, the review should ensure that the competent authorities took due account of the child’s best interests, their vulnerability, and specific needs in reference to France’s humanitarian duties cited in the CoE Resolution (2321 (2020)).411 As a result of its assessment, the Chamber found that the safeguards afforded to the applicants were not appropriate due to the national authorities’ lack of reasoning 404

Ibid., para 131. Ibid., para 124. 406 Ibid., paras 138–139. 407 Ibid., para 210. 408 Ibid., paras 197–203. 409 Ibid., paras 272–284. 410 Ibid., para 275. 411 Ibid., para 276. 405

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of (a) their lack of response to the applicant’s request, (b) their decision in respect of their request, and (c) their lack of information which might have contributed to the transparency of the decision-making process.412 Above all, it was found that the applicants had no access in the first place to a form of independent review of the decision to refuse their repatriation, ultimately finding a violation of Article 3(2) of Protocol No. 4.413 The Judgement was followed by a Jointly Partly Dissenting Opinion of Judges Yudkivska, Wojtyczek and Roosma discussing the Chamber’s application of IHL.414 In particular, the Judges expressed their view that the IHL provisions are more pertinent to the complaints under Article 3 ECHR as compared to Protocol No. 4, implying that the Chamber did not consider them enough in the former assessment. Furthermore, the Judges critiqued the Chamber’s insistence on finding any “special features” to trigger France’s obligations over the applicants when considering common Article 1 of the four Geneva Conventions stating: If France or any other State has the capacity to “put an end” to humanitarian disaster, common Article 1 of the four Geneva conventions obliges it to so regardless of the nationality of victims. (…) The applicants’ daughters and grandchildren have a right to life and physical integrity because they are human beings and not because they were born French; and if humanitarian considerations prompt any State to intervene, the universal nature of human rights precludes such an intervention from being limited only to the nationals of that State.415

8.2.3.2

United Nations Human Rights Council

The Human Rights Council (HRC) adopted multiple resolutions relating to IHL in 2022. Important resolutions and other developments are highlighted in this section. In relation to the conflict in Ukraine, Resolution 49/1 on the situation of human rights in Ukraine stemming from the Russian aggression was adopted on 4 March 2022.416 Pursuant to this Resolution, the President of the HRC appointed three independent members for the Commission of Inquiry on Ukraine on 30 March 2022. The Commission has the mandate to investigate all alleged violations of human rights and international humanitarian law in the context of the aggression by the Russian Federation against Ukraine.417 Furthermore, in May 2022 the Council passed a resolution

412

Ibid., paras 277–280. Ibid., paras 281–284. 414 ECtHR, H.F. and Others v. France, Joint Partly Dissenting Opinion of Judges Yudkivska, Wojtyczek and Roosma, 14 September 2022, Application nos. 24384/19 and 44234/20 (H.F. and Others), paras 10–12. 415 Ibid., para 12. 416 UN GA (2022) Resolution adopted by the Human Rights Council, UN Doc. A/HRC/RES/49/1. 417 UN HCR (2022) Niger: Operational Update August 2022. https://reliefweb.int/report/niger/ niger-operational-update-august-2022. Accessed 3 May 2023. 413

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to initiate an investigation by a Commission of Inquiry into possible war crimes by the Russian forces in the regions surrounding Kyiv as well as other areas in Ukraine.418 Regarding the conflict in Tigray, Ethiopia (see Sect. 8.1.4), the European Parliament called for the adoption of a Resolution from the HRC to address IHL in Ethiopia, particularly the protection of children’s rights and safety in this context.419 In July 2022, Resolution 50/23 was adopted, which extends the UN Independent Fact-Finding Mission on Libya’s mandate.420 The Mission was initially established in 2020 by HRC Resolution 43/49 in the context of an ongoing civil war. The HRC extended the mandate of the Commission of Inquiry into the conflict in Syria through Resolution 19/22 in April 2022.421 Additionally, the HRC published a conference room paper on conflict-related sexual violence against women and girls in South Sudan, seeking to draw attention to this frequently under-prioritised phenomenon.422

8.2.4 National Courts Overview This section provides a brief overview of significant developments in IHL with regards to investigating and prosecuting war crimes in specific domestic courts and tribunals throughout 2022. Along with discussing judicial progressions, this section also covers other significant transformations in domestic justice systems. Several of the cases highlighted below were prosecuted using the principle of universal jurisdiction, which grants national courts the authority to try international crimes regardless of the location where they were committed and the nationality of either the victim(s) or the perpetrator(s).423

418

UN GA (2022) S/34 - The deteriorating human rights situation in Ukraine stemming from the Russian aggression, UN Doc. A/HRC/S-34/L.1; UN OHCHR (2022g) Human Rights Council Adopts Resolution on the Deteriorating Human Rights Situation in Ukraine and Closes Special Session. https://www.ohchr.org/en/press-releases/2022/05/human-rights-counciladopts-resolution-deteriorating-human-rights-situation. Accessed 1 June 2023. 419 European Parliament 2022c. 420 UN HRC (2022) Technical assistance and capacity-building to improve human rights in Libya, A/HRC/RES/50/23, p 1. 421 UN HRC (2022) Situation of human rights in the Syrian Arab Republic, A/HRC/RES/19/22. 422 UN HRC (2022) Conference room paper of the Commission on Human Rights in South Sudan, A/HRC/49/CRP.4. 423 Amnesty International 2001.

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Bosnia Herzegovina

Bosnian authorities continued to investigate war crimes committed by individuals in the 1992–1995 conflict in the country. A significant development in April 2022 was the charging of ten political and military leaders with war crimes in relation to an attack that took place in Sarajevo, at the beginning of the conflict in 1992.424 Additionally, following the Serb Republika Sprska’s attempt to limit a 2021 genocide law on its territory,425 the Constitutional Court of Bosnia and Herzegovina rendered genocide denial unconstitutional in July 2022.426

8.2.4.2

Central African Republic

The first trial of the Special Criminal Court (SCC) in the Central African Republic opened in April 2022.427 The SCC was established by the CAR in 2015 to try serious international crimes committed during conflicts in the state since 2003.428 The case concerned three members of a powerful militia called the 3R, Issa Sallet Adoum, Ousman Yaouba and Tahir Mahamat, who were accused of the massacre of 46 villagers in northwest CAR in May 2019.429 In October 2022 the SCC found all three accused guilty of war crimes and crimes against humanity for their involvement in the massacre, which took place in Lemouna and Koundjili, the north of CAR. They were sentenced to prison terms ranging from 20 years to life imprisonment.430

8.2.4.3

Colombia

The Special Peace Tribunal (JEP) was established seven years ago to investigate, prosecute and punish individuals responsible for the most serious human rights violations, including war crimes committed during the armed conflict between Colombia and the FARC-EP.431 In July 2022, the JEP charged 19 soldiers with war crimes and crimes against humanity for the murder of 303 people, predominantly civilians, between 2005 and 2008.432 424

Euronews 2023. RFE/RL’s Balkan Service 2022. 426 Human Rights Watch 2022b. 427 JusticeInfo.net 2022b. 428 MINUSCA (2021) CAR Special Criminal Court (SCC) Now Fully Operational https://minusca. unmissions.org/en/car-special-criminal-court-scc-now-fully-operational. Accessed 20 January 2023. 429 UN OHCHR (2022d) Central African Republic: UN Human Rights Chief welcomes convictions over 2019 massacre. https://www.ohchr.org/en/press-releases/2022/11/central-african-republic-unhuman-rights-chief-welcomes-convictions-over. Accessed 20 January 2023. 430 Ibid. 431 International Commission of Jurists 2019. 432 JusticeInfo.net 2022a. 425

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Finland

In 2022, the trial against Mr Gibril Massaquoi developed significantly. The trial against the former spokesman and Lieutenant-Colonel of the Revolutionary United Front (RUF) in Sierra Leone and Liberia commenced in February 2021 and was conducted until January 2022 by the District Court of Tampere, Finland. The trial involved hearings in Liberia, Sierra Leone, and Finland. In April 2022, the District Court acquitted Massaquoi of all charges, citing reasonable doubt about his involvement in the alleged offenses. Despite the decision, the Prosecution lodged an appeal against the verdict. The appeal proceedings are set to commence in the beginning of 2023, at the Turku Court of Appeal in Finland and are expected to last until June 2023. The Court will relocate to Liberia to hear witness testimonies.433

8.2.4.5

France

The courts of France saw multiple IHL-related developments in 2022. In July, French counter-terror prosecutors opened an investigation against the French corporation Groupe Castel concerning allegations of potential complicity in war crimes in the Central African Republic, in the form of illegal payments to local militia.434 The Paris Criminal Court held a trial against Kunti Kamara from 10 October till 2 November 2022.435 Kamara holds the Liberian-Dutch nationality and was the former United Liberation Movement of Liberia for Democracy (ULIMO) Commander during Liberia’s first civil war which lasted from 1989 till 1996. The court found him guilty as accomplice of the crime against humanity of torture between 1993 and 1994, for the rape and sexual slavery committed by his subordinates on particularly vulnerable people.436 Further, he was found guilty as the perpetrator of acts of torture and barbarism for subjecting a man to severe suffering and participating in the public consumption of his heart, executing a sick woman, subjecting two men to forced labour under inhumane conditions, and torturing a civilian.437 Kamara appealed the sentencing to life imprisonment in November.438 The date for the appeal judgement has yet to be decided. As the first ever conviction for crimes against humanity connected to the conflicts in Liberia from 1989 to 2003, this trial marks Liberian judicial history.439

433

Civitas Maxima 2023b. Morland and Hummel 2022. 435 Civitas Maxima 2022. 436 Ibid. 437 Trial International 2023b. 438 Front Page Africa 2022. 439 Civitas Maxima 2022. 434

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Germany

In 2022, German courts continued the prosecution of crimes arising from the conflict in Syria, by utilising universal jurisdiction. Additionally, German investigators started collecting evidence for war crimes committed in Ukraine. In January the Higher Regional Court in Koblenz convicted Anwar Raslan, a former senior intelligence officer of the Assad regime in Syria, on charges of crimes against humanity involving torture, murder and rape. The landmark case marked the first criminal case brought over state-led torture during Syria’s civil war.440 In the same month, the Frankfurt Higher Regional court began the trial of Alaa M, a former Syrian doctor accused of crimes against humanity. The accused allegedly committed several acts of torture in military prisons in Homs and Damascus.441 The alleged victims were civilians, two of which died subsequent to the torture. The trial continued throughout 2022. The accused, witnesses and civil parties were heard by the court, throughout the year.442 In February, the federal prosecutor general in Karlsruhe charged Jalda A, a German national, with war crimes concerning the torture of a Yazidi woman in Syria. The accused had spent several years in Islamic State occupied territories in Syria and was married to three different IS members before detention in October 2021 upon returning to Germany.443 In July 2022, the Higher Regional Court of Hamburg sentenced the accused to five years and six months imprisonment for aiding and abetting genocide as well as committing crimes against humanity and war crimes for the enslavement and abuse of the Yazidi woman.444 In September, a German court sentenced another member of the Islamic State (IS) to 10 years in prison for war crimes and murder committed in Syria. The convicted had travelled to Syria from Germany in 2014. He committed the crimes in his position as a prison guard. Concerning the situation in Ukraine, the German Federal Prosecution Office in Karlsruhe opened a structural investigation in March 2022. The goal of the investigation is the collection of evidence of alleged war crimes that have been committed during the war in Ukraine.445

8.2.4.7

The Netherlands

The Court of Appeals in The Hague, The Netherlands contributed significantly to the application of universal jurisdiction to adjudicate violations of IHL in 2022.

440

CIJA 2022. Von Hein 2022. 442 Trial International 2023a. 443 Dockery 2022. 444 DSC 2022. 445 Al Jazeera 2022c. 441

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In April, the Appeals Court sentenced an Afghan man to twelve years in prison for war crimes committed in Afghanistan between 1983 and 1987. The man worked in the Pul-e-Charkhi prison where at the time of the civil war in Afghanistan opponents of the regime in Kabul were locked up as political prisoners under appalling conditions. In 2001, the man arrived in the Netherlands as a refugee and obtained Dutch nationality under a different name.446 In June, The Hague Court of Appeals upheld the conviction and life sentence of Ethiopian-Dutch, Eshetu Alemu, who was found guilty of war crimes. The crimes were committed in 1977–1978 under the Derg regime of former Ethiopian dictator Mengistu Haile Mariam, also known as the Red Terror. They took place in the former Gojjam province of Ethiopia.447 Additionally, in February a Dutch court decided to continue the pre-trial detention of a Dutch/Surinamese ex-army member suspected of war crimes committed during the Surinamese ‘Interior War’ of 1986–1992.448 In October 2021, the accused was arrested on suspicion of the war crime of killing a civilian or someone hors de combat during the ‘Interior War’.449

8.2.4.8

Sweden

In 2022, Sweden saw judicial developments in IHL in relation to the conflict in Syria. In March, the Stockholm District Court convicted Lina Ishaq on charges of war crimes for failing to prevent her 12-year-old son from becoming a child soldier in ISIS-held territory in Syria, where he was killed in the civil war. The court upheld that recruiting and using children under the age of 15 as soldiers are prohibited under both international humanitarian law and international criminal law.450 The trial against Hamid Nouri, an Iranian citizen suspected of committing war crimes and murder in Iran during the 1981–1988 international armed conflict between Iraq and Iran, began in August 2021.451 In July, the Stockholm District Court found Nouri guilty of committing grave war crimes and murder, and sentenced him to life imprisonment.452 An appeal can be expected in 2023.453

446

Rechtbank Den Haag [District Court The Hague] 2022. ICD 2023. 448 Lampropoulos 2022. 449 Netherlands Public Prosecution Service 2021. 450 Al Jazeera 2022f. 451 Swedish Prosecution Authority 2021. 452 Al Jazeera 2022g. 453 Ibid. 447

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Switzerland

Former commander of the United Liberation Movement of Liberia for Democracy (ULIMO), Alieu Kosiah was sentenced to 20 years imprisonment by the Swiss Federal Criminal Court (FCC) in June 2021. It was the first war crimes trial before the FCC. In September 2022 Kosiah lodged an appeal which will commence in January 2023. The amended indictment includes charges of crimes against humanity.454

8.2.4.10

Ukraine

In response to the full-scale Russian invasion of Ukraine in February 2022, national authorities dealt with IHL infringements that were carried out in Ukraine. In May, the first war crimes trial since the invasion, found Russian solider Vadim Shishimarin guilty of war crimes and premeditated murder in relation to the killing of an unarmed civilian. The Kyiv court sentenced Shishimarin to life imprisonment.455 In the same month, two Russian soldiers were sentenced to eleven and a half years imprisonment for shelling a town in eastern Ukraine, this constituted the second war crimes verdict since the beginning of the Russian invasion of Ukraine.456 In June, the first trial concerning rape started in Ukraine against a Russian soldier.457 Mikhail Romanov is accused of murdering a civilian in the Kyiv capital region on March 9 and repeatedly raping the man’s wife. As Romanov was not in Ukrainian custody, the trial commenced in absentia.458

8.3 Arms Control and Disarmament This section briefly notes key developments in conventions and treaties governing states’ obligations vis-à-vis arms control and disarmament. The conflict in Ukraine has raised questions about the potential use of nuclear weapons, as well as about the transfer of arms to the aggressor state, the Russian Federation.

8.3.1 Arms Trade The Eighth Conference of States Parties (CSP8) to the Arms Trade Treaty (ATT) took place between the 22nd and 26th August 2022 in Geneva, Switzerland. The CSP 454

Civitas Maxima 2023a. JusticeInfo.net 2022c. 456 Polityuk 2022. 457 Reuters 2022d. 458 Ibid. 455

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occurred in-person for the first time since the start of the Covid-19 pandemic. The German Presidency chose CSP8’s thematic discussion: post-shipment controls. This topic involves ensuring that diversion does not take place, i.e., verifying that transferred arms do not arrive in the hands of ‘unauthorised end users’.459 It was concluded that states ought to be more transparent about their approaches to the ‘implementation of post-shipment controls/post-delivery coordination measures within the scope of the ATT’, although this is strictly voluntary.460 The lack of submissions of obligatory annual reports under the ATT was mentioned,461 with concern being expressed in the Final Report.462 Non-fulfilment of reporting obligations was also an issue in previous years.463 The United Kingdom argued that under the ATT, States Parties are obliged not to export arms to the Russian Federation following its invasion of Ukraine,464 although this was not considered in the Final Report. 2022 saw the accession of three new States Parties: Andorra, Gabon, and the Philippines.465 In other fora, the need for action to prevent diversion was expressed.466 The Security Council heard from Izumi Nakamitsu, High Representative for Disarmament Affairs, that while there are transparent transfers of arms to Ukraine, more needs to be done to prevent their diversion after their delivery.467

8.3.2 Conventional Weapons The year 2022 saw multiple events related to the 1980 Convention on Certain Conventional Weapons (CCW), namely the 16th Annual Conference of Protocol V (on the explosive remnants of war) on 14 November 2022,468 the 2022 Meeting of the High Contracting Parties between 16 and 18 November,469 and the CCW Group of Governmental Experts on lethal autonomous weapon systems from 7 to 11 March and 25 to

459

Arms Trade Treaty Secretariat 2022. Ibid., p 5. 461 Belgium 2022. 462 Arms Trade Treaty Secretariat 2022, pp 6–7. 463 See Sexton et al. 2023; Klonowska and Dubey 2022. 464 United Kingdom 2022. 465 Arms Trade Treaty 2022. 466 UN SC (2022) Effective Arms-Control Measures Needed to Block Diversion of Ukraine Weapons, Senior United Nations Disarmament Official Tells Security Council [Meetings Coverage Press Report]. https://press.un.org/en/2022/sc15136.doc.htm. Accessed 8 February 2023. 467 Ibid. 468 CCW (2022) Consideration of the final report, CCW/P.V/CONF/2022/WP.2. 469 UNODA (2022b) Convention on Certain Conventional Weapons - Meeting of the High Contracting Parties. https://meetings.unoda.org/ccw-mhcp/convention-certain-conventional-wea pons-meeting-high-contracting-parties-2022. Accessed 7 June 2023. 460

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29 July 2022.470 At the 2nd Meeting of the High Contracting Parties of the CCW, on 16 November 2022 in Geneva, States Parties drew attention to attacks against both civilians and civilian infrastructure, as well as consistent non-adherence to the CCW through the use of cluster munitions and mines in Ukraine by the Russian Federation.471 The main issue at hand throughout CCW meetings in 2022 was autonomous weapons systems (AWS). AWS will be discussed in-depth in Sect. 8.3.3.4. Malawi acceded to the Convention in September 2022 to become the 126th State Party.472 At the end of 2022, the Convention still had 4 signatories.473

8.3.2.1

Cluster Munitions

It is worth noting that neither Ukraine nor the Russian Federation are signatories to the Convention on Cluster Munitions.474 As of August 2022, the only country on whose territory cluster munitions are being used is Ukraine, with both Ukrainian and Russian forces employing these weapons.475 Data up to mid-July 2022476 suggests that at least 215 civilians have been killed and 474 injured due to the use of cluster munitions in the conflict.477 While no fatalities were recorded in 2021 due to cluster munitions attacks, but rather their remnants, the invasion of Ukraine by the Russian Federation in February 2022 marked a drastic upsurge in fatalities due to cluster munitions attacks.478 The Tenth Meeting of States Parties of the Convention on Cluster Munitions took place from 30 August to 2 September 2022, having been delayed from 2019.479 This was the first formal Meeting since the Lausanne Action Plan was adopted.480 The Plan is ongoing, from 2021–2026,481 and provides actions which States Parties can take

470

UNODA (2022c) Convention on Certain Conventional Weapons – Group of Government Experts on Lethal Autonomous Weapons Systems: Overview. https://meetings.unoda.org/ccw/conventioncertain-conventional-weapons-group-governmental-experts-2022. Accessed 7 June 2023. 471 Pytlak and Varella 2022, p 3. 472 UNODA (2022e) High Contracting Parties and Signatories CCW. https://disarmament.unoda. org/the-convention-on-certain-conventional-weapons/high-contracting-parties-and-signatoriesccw/. Accessed 5 June 2023. 473 Ibid. 474 Mine Action Review 2022, p 3. 475 Cluster Munition Coalition 2022a, p 1. 476 The last five months of 2022 could include additional numbers; however, no data was available at the time of writing. 477 Cluster Munition Coalition 2022a, p 47. 478 Ibid., pp 1–2. 479 UNODA (2022d) Convention on Cluster Munitions - Tenth Meeting of States Parties: Overview. https://meetings.unoda.org/ccm-msp/convention-cluster-munitions-tenth-mee ting-states-parties-2022. Accessed 13 December 2023. 480 Convention on Cluster Munitions 2022c. 481 Convention on Cluster Munitions 2022a.

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as well as indicators for them to monitor their implementation of the Convention.482 Progress towards the destruction of cluster munitions was discussed, with the civil society organization Cluster Munition Coalition stating that 99 per cent of States Parties’ stockpiled munitions have been destroyed.483 In 2022, four States Parties requested to extend the deadlines. Bulgaria applied under Article 3 of the Convention regarding the destruction of cluster munition stockpiles (to 2023, granted). Four extension applications were made under Article 4, on the clearance of cluster munitions from contaminated areas: Bosnia and Herzegovina (to 2023, granted), Bulgaria (to 2023, granted), Chad (to 2024, granted), and Chile (to 2026, granted). Requests were considered and granted at the Tenth Meeting of States Parties. The Government of the Netherlands added that the Convention will also apply to Curaçao.484 As of the end of 2022, there are 111 States Parties to the Convention, with 12 signatories.485

8.3.2.2

Landmines

From mid-2021 to October 2022, the use of antipersonnel landmines by Myanmar and Russia was confirmed.486 They were the only states to use landmines,487 and neither state is party to the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction488 (Anti-Personnel Mine Ban Convention).489 Furthermore, NSAGs in the CAR, Colombia, the DRC, India and Myanmar used antipersonnel mines in the same period.490 While all the aforementioned actors are not States Parties/parties to the Convention, they are nevertheless subject to international humanitarian law, which they violate by using indiscriminate weapons,491 such as anti-personnel landmines. Total casualties in Myanmar alone from January to October 2022 totalled 333.492 Both Ukraine and Greece are in violation of their obligations under the Convention for failing to complete destruction of their stockpiles; they retain a combined total of approximately 3.6 million antipersonnel mines yet to be destroyed.493

482

Ibid. Cluster Munition Coalition 2022b. 484 Convention on Cluster Munitions 2022b. 485 Cluster Munition Coalition 2022a, pp 1 and 10. 486 International Campaign to Ban Landmines 2022, p 2; Human Rights Watch 2022a. 487 See Ridgwell 2022, citing ibid.; Anti-Personnel Mine Ban Convention 2022a. 488 Adopted 18 September 1997, entered into force 1 March 1999. 489 Ibid. 490 Ibid. 491 See, e.g., ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996 (Nuclear Weapons case) ICJ Reports 226, p 226, para 78, where the ICJ concluded that the prohibition on indiscriminate weapons was one of IHL’s cardinal principles. 492 UNICEF 2022. 493 International Campaign to Ban Landmines 2022, p 2. 483

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The Anti-Personnel Mine Ban Convention was adopted on 18 September 1997, making the year 2022 the 25th anniversary of its adoption.494 The annual Meeting of States Parties was held in Geneva from 21 to 25 November 2022.495 It was presided over by Colombia. Multiple States Parties requested extensions to the deadline under Article 5(1) of the Convention, requiring States Parties to destroy anti-personnel mines in mined areas,496 including Afghanistan, Argentina, Ecuador, Guinea Bissau, Serbia, Sudan, Thailand, and Yemen.497 All extension requests were granted.498 A decision was reached on Eritrea, who had been in violation of its obligation under the Treaty to request an extension for their destruction deadline under Article 5(1) since December 2020.499 At the 19th MSP, Eritrea was strongly encouraged to once more enter into cooperative discussion on its Convention obligations. At the 20th MSP in 2022, since no further cooperation had been forthcoming, States Parties’ willingness to engage with Eritrea was reiterated.500 The number of States Parties to the Anti-Personnel Mine Ban Convention remains 164 at the end of 2022.501

8.3.3 Non-conventional Weapons 8.3.3.1

Biological Weapons

In June 2022, NATO Allies adopted the Chemical, Biological, Radiological and Nuclear (CBRN) Defence Policy.502 NATO acknowledged the disruption caused by the Covid-19 pandemic, drawing attention to the link between such threats and the development of weapons of mass destruction.503 The Russian Federation has accused Ukraine and associated forces of deploying biological weapons in 2022504 ; they called for a UN investigation into the claims with no success.505 In winter 2022, the Ninth Review Conference of the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction 1974 (Biological Weapons Convention)

494

Ibid., p 7. Humanity & Inclusion 2022. 496 See n. 488, Article 5. 497 Anti-Personnel Mine Ban Convention 2022c. 498 Anti-Personnel Mine Ban Convention 2022d. 499 See Sexton et al. 2023, p 260. 500 Anti-Personnel Mine Ban Convention 2022b, para 101. 501 International Campaign to Ban Landmines 2022, p 20. 502 NATO 2022, paras 1–2. 503 Ibid., para 19. 504 Lederer 2022. 505 Ibid. 495

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took place from 28 November to 16 December in Geneva, Switzerland.506 One of the key outcomes from the Conference was the establishment of a Working Group aimed at strengthening the implementation of the Convention, considering technological and biological advancements.507 Furthermore, its work will also include introducing measures (potentially legally-binding) on compliance and verification,508 which in the absence of a Convention implementation agency, such as the OPCW for the CWC,509 is useful. Namibia became the 184th State Party to the Convention in February 2022;510 there are 4 signatories to the Convention as of the end of 2022.511

8.3.3.2

Chemical Weapons

April 2022 marked the 25th anniversary of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (Chemical Weapons Convention).512 During the 100th Meeting of the Organisation for the Prohibition of Chemical Weapons (OPCW) Executive Council from 5 to 7 July 2022, the Russian Federation alleged that Ukrainian forces had utilized chemical weapons, which was disputed in the forum.513 The year 2022 also saw the 27th Conference of the States Parties (CSP) to the Chemical Weapons Convention, taking place from 28 November to 2 December 2022 in the Hague.514 In relation to the war in Ukraine, during his Opening Statement to the proceedings, the Director-General of the OPCW, Ambassador Fernando Arias, mentioned that the Organisation provided assistance against potential chemical threats in the form of training and equipment to actors involved in the war effort in Ukraine.515 At the 26th CSP in April 2021, some of Syria’s rights and privileges under the Convention were suspended due to the reasonable belief that they had used chemical weapons in Ltamenah in March 2017.516 The Director-General had agreed in 2021 that the suspension of these rights and privileges would be lifted when he could report that Syria had fulfilled the measures as requested in the Executive Council decision of 506

Biological Weapons Convention (2022) Final Document of the Ninth Review Conference, BWC/ CONF.IX/9. 507 Ibid., pp 9–10. 508 Ibid., p 10. 509 The absence of such an equivalent Organisation was noted and the comparison made in Sexton et al. 2023, p 262. 510 UNODA (2022f) Namibia: Accession to Biological Weapons Convention. https://treaties.unoda. org/a/bwc/namibia/ACC/london. Accessed 2 May 2023. 511 UNODA (2023a) Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction: Status of the Treaty. https://treaties.unoda.org/t/bwc. Accessed 5 June 2023. 512 Council of the European Union 2022b. 513 CWC Coalition 2022. 514 OPCW Calendar 2022. 515 OPCW 2022, paras 35 and 36. 516 See Sexton et al. 2023, p 260 referring to OPCW.

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July 2020 (EC-94/DEC.2, 9 July 2020).517 Unfortunately, he could not report that any of these measures had been adopted by Syria by 22 November 2022.518 Unfortunately, Syria’s non-cooperation has continued, despite its obligation to comply under UN SC resolution 2118 (2013).519 In fact, two further fact-finding missions performed by the OPCW published reports on 26 January 2022520 and 1 February 2022521 respectively, establishing that there was a reasonable basis to conclude that chemical weapons were used in 2015 and 2016 in two separate attacks in Syria. In 2022, there were no new ratifications, accessions, or signatures. Thus, at the end of 2022, there were still 193 States Parties to the Convention522 and one signatory.523 The Council of the EU enacted ‘additional restrictive measures’524 on 14 November 2022 in the form of sanctions to address the “continued threat posed by the proliferation and use of chemical weapons”.525 The sanctions apply to individuals and entities based in the Russian Federation and Syria.526

8.3.3.3

Nuclear Weapons

The 2021 Year in Review reported that approximately 13,000 nuclear warheads were in the possession of nine states, namely the US, the Russian Federation, France, the UK, China, Israel, Pakistan, India and North Korea.527 By the end of 2022, the number was approximately 12,500.528 Research has suggested that despite the number of nuclear weapons appearing to be decreasing, this can be attributed to the disassembling of retired weapons by states such as the Russian Federation and the US.529 Numbers of newly developed and manufactured weapons may increase again.530 The Tenth Review Conference of the Parties to the 1968 Treaty on the NonProliferation of Nuclear Weapons (TNP) was held in New York City, US, between

517

OPCW Executive Council 2020, para 33. Ibid. 519 Ibid., para 25. See also Sexton et al. 2023, pp 260–261. 520 OPCW Technical Secretariat 2022a. 521 OPCW Technical Secretariat 2022b. 522 UNODA (2023b) Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction: Status of the Treaty. https://treaties.unoda. org/t/cwc. Accessed 1 June 2023. 523 Ibid. 524 Council of the European Union 2022a. 525 Ibid. 526 Ibid. 527 Sexton et al. 2023, pp 262–263. 528 Kristensen et al. 2023. 529 Stockholm International Peace Research Institute 2022, p 341. 530 Ibid. 518

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1 and 26 August 2022.531 There were no new ratifications, accessions, or signatures in the year 2022. The First Meeting of States Parties to the 2017 Treaty on the Prohibition of Nuclear Weapons (TPNW) took place between 21 and 23 June 2022 in Vienna, Austria.532 One key decision taken was the adoption of the Vienna Action Plan, which will facilitate the implementation of the Treaty by including steps States Parties should take, as well as confirming roles and responsibilities.533 The Declaration of the First MSP also pledged to support efforts to bring the Comprehensive Nuclear-Test-Ban Treaty into force534 as drafted in 1997.535 Such efforts were included in Action 37 of the Vienna Action Plan.536 In 2022, 9 states ratified the TPNW, including Cabo Verde, Congo, Côte d’Ivoire, DRC, the Dominican Republic, Grenada, Guatemala, Malawi, and Timor-Leste.537 In addition, 5 states signed the Treaty, including Barbados, Burkina Faso, Equatorial Guinea, Haiti, and Sierra Leone.538 As of the end of 2022, the TPNW has 68 States Parties and 27 signatories.539

8.3.3.4

Lethal Autonomous Weapons Systems

In relation to the CCW, Lethal Autonomous Weapons Systems (LAWS) have been a key topic of discussion in recent years.540 The Sixth Review Conference in 2021 agreed that the Group of Governmental Experts (GGE) ought to continue to strengthen the CCW.541 The year 2022 saw two meetings of the GGE on LAWS in Geneva: between 7 and 11 March and 25 and 29 July.542 During these meetings,

531

UNODA (2022h) Treaty on the Prohibition of Nuclear Weapons - Tenth Review Conference: Overview. https://meetings.unoda.org/npt-revcon/treaty-non-proliferation-nuclear-weapons-tenthreview-conference-2022#:~:text=Expand. Accessed 2 June 2023. 532 UNODA (2022g) Treaty on the Prohibition of Nuclear Weapons - First Meeting of States Parties. https://meetings.unoda.org/meeting/57998. Accessed 5 May 2023. 533 Treaty on the Prohibition of Nuclear Weapons 2022, p 11. 534 Ibid., p 9. 535 See UN GA (1996) Comprehensive Nuclear-Test-Ban Treaty. UN Doc. A/RES/50/245; UN GA (1996) Letter dated 22 August 1996 from the Permanent Representative of Australia to the United Nations addressed to the Secretary-General. UN Doc. A/50/1027. 536 Treaty on the Prohibition of Nuclear Weapons 2022, p 16. 537 UNODA (2023c) Treaty on the Prohibition of Nuclear Weapons: Status of the Treaty. https:// treaties.unoda.org/t/tpnw. Accessed 4 May 2023. 538 Ibid. 539 Ibid. 540 See Sexton et al. 2023, p 263. 541 UNODA (2022a) Convention on Certain Conventional Weapons - Group of Governmental Experts on Lethal Autonomous Weapons Systems: Overview. https://meetings.unoda.org/ccw/con vention-certain-conventional-weapons-group-governmental-experts-2022. Accessed 9 May 2023. 542 Ibid.

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many states submitted working papers, with the main recommendations and priorities therein being: the development of a new Protocol on AWS,543 “[e]lements for a legally binding instrument to address the challenges posed by autonomy in weapon systems”544 and examining the application of existing international law to LAWS.545 The GGE’s Report546 noted that the Group’s work should be fulfilled with consideration of the application of the UN Charter and IHL, which would apply to the use of LAWS.547 Of note was the acknowledgement that state use of LAWS which is in violation of states’ obligations under international law as well as IHL may incur state responsibility.548 The main area of disagreement regarding the regulation of LAWS during the GGE was on what steps to take (if any) in international law to regulate LAWS.549 Delegations of states had proposed different solutions, including adopting: “legally binding instruments under the framework of the CCW; a non-legally binding instrument; clarity on the implementation of existing obligations under international law, in particular IHL; an option that prohibits and regulates on the basis of IHL; and the option that no further legal measures are needed.”550 However, the meeting did not reach a consensus on which of these solutions to employ, simply restating them551 and concluding by acknowledging the need for the Group to consider proposals and expand on measures which could be taken to implement the GGE’s work, which is fundamentally to reinforce the CCW.552 Thus, 2022 marks another year where no concrete steps were taken towards specific legal regulation. Numerous High Contracting Parties had already submitted working papers in which they expressed frustration at the lack of progress made by the previous year’s GGE on LAWS towards making “consensus recommendations on the normative and operational framework with respect to LAWS” as per the Group’s mandate.553 High Contracting Parties who were not in favour of the adoption of a legally-binding instrument included multiple States with a high military expenditure, such as the UK, the US and the Russian Federation.554 The International Committee of the Red Cross (ICRC) expressed frustration with the conclusions of the GGE on LAWS, stating that the Group’s conclusions are not representative of the gravity of the use of LAWS, nor of the urgency for a 543

Delegations of Argentina, Costa Rica et al. 2022. Delegations of Chile and Mexico 2022. 545 Delegation of the United Kingdom 2022; Delegation of the Russian Federation 2022. 546 Group of Governmental Experts on Emerging Technologies in the Area of Lethal Autonomous Weapons System 2022. 547 Ibid., p 1. 548 Ibid., p 4. 549 Ibid., p 3. 550 Ibid. 551 Ibid., p 4. 552 Ibid. 553 Delegations of Argentina, Austria et al. 2022. 554 Valadares Fernandes Barbosa and Macedo 2022. 544

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response from the international community.555 Furthermore, a Joint Statement on LAWS was delivered at the 77th UN General Assembly Thematic Debate on Conventional Weapons on 21 October 2022.556 It was delivered on behalf of 70 states, and reiterated the need to achieve more tangible results in LAWS regulation through discussion.557

8.3.4 Other Developments 8.3.4.1

Cyberspace

The law of armed conflict is applicable to attacks carried out through the cyber domain, as established through jurisprudence of the ICJ. The Court concluded in the Nuclear Weapons case that the use of new and emerging technologies is curtailed by the rules and principles of IHL.558 The applicability of IHL can also be deduced through the UN General Assembly’s unanimous endorsement of a consensus report of the UN GGE on Advancing Responsible State Behaviour in Cyberspace in the Context of International Security in 2021.559 In 2022, more specificity was afforded to the topic during the UN GA 77th Session, Plenary Meeting of the coordination of humanitarian and disaster relief assistance of the United Nations, when Laëtitia Courtois (permanent Observer and head of delegation to the UN) delivered a statement from the ICRC.560 The statement highlighted the threat posed by cyber warfare, in particular the potential impact on civilian welfare should critical civilian infrastructure (water systems and electricity grids for example) be targeted.561 It has been widely recognised by the international community that the Russian Federation has employed cyber attacks against Ukraine since it launched a full-scale invasion in February 2022. Research by Google identifies key targets of Russian attacks as being not just governmental or military, but also civilian-related infrastructure. Cyber attacks in the context of an ongoing international armed conflict targeting “critical infrastructure, utilities and public services”562 could be argued to be contrary to international humanitarian law. If such cyber attacks fail to allow for the fulfilment of the duty to distinguish between combatants and civilians and are not proportionate, they stand in violation of IHL.

555

ICRC 2022c. Austria 2022. 557 Ibid. 558 See n. 490, para 86. 559 Cyber Peace Institute 2022; Schmitt 2021. 560 ICRC 2022a. 561 Ibid. 562 Huntley 2023. 556

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Outer Space

It is understood that outer space represents for certain states an opportunity to develop new means and methods of warfare.563 Despite outer space military operations being subject to the legal regime under the UN Charter and international humanitarian law,564 there are no regulations which specifically apply to this domain. Effort to regulate outer space in the UN General Assembly First Committee on Disarmament and International Security in 2022 made slight progress—six draft resolutions were approved.565 In both the 76th and 77th meetings in 2021 and 2022 respectively, the ‘Prevention of an arms race in outer space’ (2021 Draft resolution I and 2022 Draft resolution I), ‘No first placement of weapons in outer space’ (2021 Draft resolution II and 2022 Draft resolution III) and ‘Further practical measures for the prevention of an arms race in outer space’ (2021 Draft resolution III and 2022 Draft resolution IV) were covered. However, in 2022 a specific draft resolution was agreed targeting ‘Destructive direct-ascent anti-satellite missile testing’ (Draft resolution II).566 This was led by the US, who had self-imposed a ban on testing in April 2022.567 While 154 States were in favour of the ban, 8 were opposed, including Iran, China, and the Russian Federation.568 This is of note considering allegations that some of these states are reportedly actively developing various anti-satellite weapons.569 Russian governmental officials have argued that striking a satellite providing military intelligence to Ukrainian forces is tenable under international humanitarian law.570

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CWC Coalition (2022) 100th Executive Council Session. https://www.cwccoalition.org/ec100-sum mary-report/. Accessed 3 May 2023 Cyber Peace Institute (2022) How does the legal and normative ecosystem relate to cyberattacks and operations deployed during an armed conflict? https://cyberconflicts.cyberpeaceinstitute. org/law-and-policy. Accessed 17 May 2023 Dahiru A (2022) JNIM Calls for More Offensive Against ISGS As Battle for Supremacy Continues in the Sahel. https://humanglemedia.com/jnim-calls-for-more-offensive-against-isgs-as-battlefor-supremacy-continues-in-the-sahel/. Accessed 29 January 2023 Davidson W (2022) At Long Last, Ethiopia Prepares for Peace Talks. https://www.crisisgroup.org/ africa/horn-africa/ethiopia/long-last-ethiopia-prepares-peace-talks. Accessed 12 April 2023 De Bruijne K (2022) Conflict in the Penta-Border Area: Benin’s Northern Jihad from the Perspective of its Neighbours. https://www.clingendael.org/sites/default/files/2022-12/conflict-in-thepenta-border-area-1.pdf. Accessed 1 April 2023 De Hoon M (2022) Dutch Court, in Life Sentences: Russia Had “Overall Control” of Forces in Eastern Ukraine Downing of Flight MH17. https://www.justsecurity.org/84456/dutch-courtin-life-sentences-russia-had-overall-control-of-forces-in-eastern-ukraine-downing-of-flightmh17/#:~:text=According%20to%20the%20court%2C%20the,gave%20instructions%20to% 20the%20DPR. Accessed 10 May 2023 De Rechtspraak (2022) Uitspraakdocument Strafzaak MH17. https://www.courtmh17.com/actueel/ nieuws/2022/uitspraakdocument-strafzaak-mh17/. Accessed 10 May 2023 Delegation of the Russian Federation to the Group of Lethal Autonomous Weapons Systems (2022) Application of International Law to Lethal Autonomous Weapons Systems (LAWS). https://doc uments.unoda.org/wp-content/uploads/2022/07/WP-Russian-Federation_EN.pdf. Accessed 9 May 2023 Delegation of the United Kingdom to the Group of Lethal Autonomous Weapons Systems (2022) United Kingdom Proposal for a GGE Document on the Application of International Humanitarian Law to Emerging Technologies in the Area of Lethal Autonomous Weapons Systems (LAWS). https://view.officeapps.live.com/op/view.aspx?src=https://documents.unoda.org/ wp-content/uploads/2022/05/03032022-UK-Proposal-for-Mar-2022-LAWS-GGE.docx&wdO rigin=BROWSELINK. Accessed 9 May 2023 Delegations of Argentina, Austria, Belgium, Chile, Costa Rica, Ecuador, Guatemala, Ireland, Kazakhstan, Liechtenstein, Luxembourg, Malta, Mexico, New Zealand, Nigeria, Panama, Peru, the Philippines, Sierra Leone, Sri Lanka, State of Palestine, Switzerland, and Uruguay to the Group of Lethal Autonomous Weapons Systems (2022) Working Paper on emerging technologies in the area of lethal autonomous weapons systems (LAWS). https://documents.unoda.org/wp-con tent/uploads/2022/05/2022-GGE-LAWS-joint-submission-working-paper-G-23.pdf. Accessed 17 May 2023 Delegations of Argentina, Costa Rica, Guatemala, Kazakhstan, Nigeria, Panama, Philippines, Sierra Leone, State of Palestine and Uruguay to the Group of Governmental Experts on Lethal Autonomous Weapons Systems (2022) Draft Proposal: Roadmap Towards New Protocol on Autonomous Weapons Systems. https://view.officeapps.live.com/op/view.aspx?src=https://doc uments.unoda.org/wp-content/uploads/2022/05/20220311-G10-proposal-legally-binding-ins trument.docx&wdOrigin=BROWSELINK. Accessed 9 May 2023 Delegations of Chile and Mexico to the Group of Governmental Experts on Lethal Autonomous Weapons Systems (2022) Elements for a Legally Binding Instrument to Address the Challenges Posed by Autonomy in Weapons Systems. https://documents.unoda.org/wp-content/uploads/ 2022/08/WP-Chile-and-Mexico-.pdf. Accessed 9 May 2023 Deutsche Welle (2022) Armenia: Azerbaijan Established Control over Territories. https://www. dw.com/en/armenias-pm-azerbaijan-established-control-over-some-territories/a-63118664. Accessed 26 April 2023 Dockery W (2022) Germany: Suspected ’IS’ wife charged with war crimes. https://www.dw.com/en/ germany-suspected-is-wife-charged-with-war-crimes/a-60719175. Accessed 20 January 2023

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Douce S (2022) Burkina Faso Attempts Difficult Talks with Jihadist Groups. https://www.lem onde.fr/en/le-monde-africa/article/2022/05/06/burkina-faso-launches-difficult-talks-with-jih adist-groups_5982555_124.html. Accessed 30 March 2023 DSC (2022) German court hands down second genocide conviction against ISIS member following enslavement and abuse of Yazidi woman in Syria. https://www.doughtystreet.co.uk/news/ german-court-hands-down-second-genocide-conviction-against-isis-member-following-enslav ement. Accessed 20 January 2023 ECCC (2022a) Addendum to the UN-RGC Agreement Enters into Force. https://www.eccc.gov. kh/sites/default/files/media/Press%20release%20on%20Addendum_EN.pdf. Accessed 12 May 2023 ECCC (2022b) Press Release on Behalf of the Co-Prosecutors. https://www.eccc.gov.kh/en/articles/ press-release-behalf-co-prosecutors. Accessed 15 May 2023 ECtHR (2022a) Decision of the Court on Requests for Interim Measures in Individual Applications Concerning Russian Military Operations on Ukrainian Territory. https://hudoc.echr.coe.int/engpress#{%22itemid%22:[%22003-7277548-9913621%22]}. Accessed 27 May 2023 ECtHR (2022b) European Court Applies Urgent Interim Measure in the Case of the Russian Daily Newspaper Novaya Gazeta. https://hudoc.echr.coe.int/eng-press#{%22itemid%22:[%220037282927-9922567%22]}. Accessed 27 May 2023 ECtHR (2022c) The European Court Grants Urgent Interim Measures in Application Concerning Russian Military Operations on Ukrainian Territory. https://hudoc.echr.coe.int/eng-press#{% 22itemid%22:[%22003-7272764-9905947%22]}. Accessed 27 May 2023 Eizenga D, Williams W (2020) The Puzzle of JNIM and Militant Islamist Groups in the Sahel. Africa Security Brief 38:1–7 El Tiempo (2019) Bombardeos, Arma Que Alista el Estado Contra Disidencia de ‘Márquez’. https://www.eltiempo.com/justicia/conflicto-y-narcotrafico/ivan-marquez-y-sus-disidenciasseran-bombardeadas-406838. Accessed 4 April 2023 El Tiempo (2022) ‘Iván Mordisco’: Lo Que Se Sabe del Bombardeo a Campamento. https://www.eltiempo.com/justicia/investigacion/ivan-mordisco-boina-y-otros-elemen tos-hallados-en-zona-bombardeada-687533. Accessed 10 May 2023 Embassy of the Islamic Republic of Afghanistan in The Netherlands (2020) The Situation in the Islamic Republic of Afghanistan Deferral Request made by the Government of the Islamic Republic of Afghanistan pursuant to Article 18(2) of the Rome Statute https://www.icc-cpi.int/ sites/default/files/RelatedRecords/CR2020_01538.PDF Accessed 1 May 2023 Embassy of Ukraine to the Kingdom of the Netherlands (2014) Declaration. https://www.icc-cpi. int/sites/default/files/itemsDocuments/997/declarationRecognitionJuristiction09-04-2014.pdf Accessed 15 May 2023 EU Office of the European Union Representative (West Bank and Gaza Strip, UNRWA) (2023) One Year Report on Demolitions and Seizures in the West Bank, including East Jerusalem Reporting Period: 1 January – 31 December 2022. https://www.eeas.europa.eu/sites/default/files/doc uments/2023/One%20Year%20Report%20on%20Demolitions%20and%20Seizures%20in% 20the%20West%20Bank%20including%20East%20Jerusalem%20-%201%20January%20% E2%80%93%2031%20December%202022.pdf. Accessed 13 April 2023 Euractiv (2022) Armenia says it will Withdraw its Troops from Karabakh by September. https:// www.euractiv.com/section/azerbaijan/news/armenia-says-will-withdraw-its-troops-from-kar abakh-by-september/. Accessed 20 January 2023 Euronews (2023) Former Bosniak officials charged with war crimes over 1992 attack. https:// www.euronews.com/2022/04/27/former-bosniak-officials-charged-with-war-crimes-over1992-attack. Accessed 20 January 2023 European Commission (2023) Niger: Factsheet. https://civil-protection-humanitarian-aid.ec.eur opa.eu/where/africa/niger_en. Accessed 3 May 2023 European Parliament (2022a) Ethiopia: War in Tigray Background and State of Play. https:// www.europarl.europa.eu/RegData/etudes/BRIE/2022/739244/EPRS_BRI(2022)739244_EN. pdf. Accessed 2 April 2023

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European Parliament (2022b) MEPs Call Armenia and Azerbaijan to Respect the Ceasefire Agreement and Re-Start Negotiations. https://www.europarl.europa.eu/news/en/press-room/202209 13IPR40314/meps-call-armenia-and-azerbaijan-to-respect-the-ceasefire-agreement. Accessed 1 May 2023 European Parliament (2022c) Motion for a resolution – B9-0444/2022. https://www.europarl.eur opa.eu/doceo/document/B-9-2022-0444_EN.html. Accessed 3 June 2023 European Union Agency for Asylum (2022) COI Query: Afghanistan. https://euaa.europa.eu/coipublications. Accessed 18 July 2023 European Union Agency for Asylum (2023) Country Guidance: Afghanistan, Guidance Note. https://euaa.europa.eu/country-guidance-afghanistan-2023. Accessed 24 July 2023 Farivar M (2022) Afghan ‘Fighting Season’ Ushers in New Anti-Taliban Groups’. https://www. voanews.com/a/afghan-fighting-season-ushers-in-new-anti-taliban-groups/6542148.html. Accessed 26 January 2023 Ferraro T (2012) Determining the Beginning and End of an Occupation under International Humanitarian Law. International Review of the Red Cross 96(885):133–163 Finnigan C (2019) No Time to Lose: Burma 2020, the NLD and the Kachin Peace Process. https://blogs.lse.ac.uk/southasia/2019/05/13/no-time-to-lose-burma-2020-thenld-and-the-kachin-peace-process/. Accessed 2 May 2023 Front Page Africa (2022) Convicted Liberian War Criminal Appeals Paris Guilty Verdict. https://frontpageafricaonline.com/news/2016news/liberian-war-criminal-appeals-lifesentence-but-victims-lawyer-not-bothered/. Accessed 20 January 2023 Frowd P (2022) The Politics of Non-State Security Provision in Burkina Faso: Koglweogo SelfDefence Groups’ Ambiguous Pursuit of Recognition. African Affairs 121(482):109–130 Ganty S, Kochenov D (2022) ‘It’s Their Own Fault’: The New Non-Discrimination Standard in Savickis v. Latvia is about Blaming Minorities for their State-Mandated Statelessness. https://strasbourgobservers.com/2022/08/05/its-their-own-fault-the-new-non-discriminationstandard-in-savickis-v-latvia-is-about-blaming-minorities-for-their-state-mandated-stateless ness/. Accessed 27 May 2023 Garcia J (2022) Gustavo Petro Would Resume Dialogue with ELN in Havana. https://www. plenglish.com/news/2022/07/30/gustavo-petro-would-resume-dialogue-with-eln-in-havana/. Accessed 25 June 2023 Gebresenbet F, Tariku Y (2023) The Pretoria Agreement: Mere Cessation of Hostilities or Heralding a New Era in Ethiopia. Review of African Political Economy Geneva Academy of International Humanitarian Law and Human Rights (2020) Does the Recent Peace Agreement Put an End to the Non-International Armed Conflicts in Sudan? https://www.rulac.org/news/does-the-recent-peace-agreement-put-an-end-to-the-noninternational-armed-c. Accessed 10 May 2023 Geneva Academy of International Humanitarian Law and Human Rights (2023a) Military Occupation of Azerbaijan by Armenia. https://www.rulac.org/browse/conflicts/military-occupationof-azerbaijan-by-armenia#collapse2accord. Accessed 20 January 2023 Geneva Academy of International Humanitarian Law and Human Rights (2023b) Non-International Armed Conflicts in Afghanistan. https://www.rulac.org/browse/conflicts/non-internationalarmed-conflicts-in-afghanistan#collapse2accord. Accessed 26 January 2023 Geneva Academy of International Humanitarian Law and Human Rights (2023c) Non-International Armed Conflicts in Burkina Faso. https://www.rulac.org/browse/conflicts/non-internationalarmed-conflicts-in-burkina-faso#collapse2accord. Accessed 30 March 2023 Geneva Academy of International Humanitarian Law and Human Rights (2023d) NonInternational Armed Conflicts in Colombia. https://www.rulac.org/browse/conflicts/non-intern ational-armed-conflicts-in-colombia#collapse3accord. Accessed 3 April 2023 Geneva Academy of International Humanitarian Law and Human Rights (2023e) Non-International Armed Conflicts in Niger. https://www.rulac.org/browse/conflicts/non-international-armed-con flicts-in-niger#collapse1accord. Accessed 4 May 2023

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Geneva Academy of International Humanitarian Law and Human Rights (2023f) Non-International Armed Conflicts in South Sudan. https://www.rulac.org/browse/conflicts/non-internationalarmed-conflict-in-south-sudan#collapse2accord. Accessed 6 May 2023 Geneva Academy of International Humanitarian Law and Human Rights (2023g) Past Conflicts: International Armed Conflicts between Kyrgyzstan and Tajikistan. https://www.rulac.org/ browse/conflicts/international-armed-conflicts-between-kyrgyzstan-and-tajikistan#collapse1 accord. Accessed 1 May 2023 George S (2022) Inside the Taliban’s Secret War in the Panjshir Valley. https://www.washin gtonpost.com/world/2022/06/08/afghanistan-panjshir-valley-taliban-resistance/. Accessed 26 January 2023 Gertz B (2022) China rapidly building space arms to ‘blind and deafen’ U.S. military, Pentagon says. The Washington Times. https://www.washingtontimes.com/news/2022/dec/1/china-rapidly-bui lding-space-arms-blind-and-deafen/. Accessed 10 May 2023 Glaese O (2022) China’s Directed Energy Weapons and Counterspace Applications. The Diplomat. https://thediplomat.com/2022/06/chinas-directed-energy-weapons-and-counte rspace-applications/. Accessed 10 May 2023 Global Centre for the Responsibility to Protect (2023) Central Sahel (Burkina Faso, Mali and Niger). https://www.globalr2p.org/countries/mali/. Accessed 26 January 2023 Global Conflict Tracker (2023) Nagorno-Karabakh Conflict. https://www.cfr.org/global-conflicttracker/conflict/nagorno-karabakh-conflict. Accessed 26 April 2023 Group of Governmental Experts on Emerging Technologies in the Area of Lethal Autonomous Weapons System (2022), Report of the 2022 session of the Group of Governmental Experts on Emerging Technologies in the Area of Lethal Autonomous Weapons Systems, CCW/GGE.1/ 2022/2 Guiffard J (2023) Operation Barkhane: Success? Failure? Mixed Bag? https://www.institutmont aigne.org/en/expressions/operation-barkhane-success-failure-mixed-bag. Accessed 3 May 2023 Gul A (2022) Islamic State Bomber Kills Top Taliban Cleric in Kabul. https://www.voanews.com/ a/suicide-blast-in-afghan-capital-kills-top-taliban-cleric/6697574.html. Accessed 26 January 2023 Gurmendi A (2020) Raising Questions on Targeted Killings as First Strikes in IACs. http://opi niojuris.org/2020/01/09/raising-questions-on-targeted-killings-as-first-strikes-in-iacs/?utm_ source=feedburner&utm_medium=email&utm_campaign=Feed%3A+opiniojurisfeed+%28O pinio+Juris%29&utm_source=ALMA+Mailing+List&utm_campaign=8b3bb6d1ac-EMAIL_ CAMPAIGN_2017_09_17_COPY_01&utm_medium=email&utm_term=0_be4632406c-8b3 bb6d1ac-105377169. Accessed 1 May 2023 Haavik V (2022) Self-Defense Militias and State Sponsorship in Burkina Faso. Conflict Trends (4):24–31 Holmes O (2022) About 100 Troops Killed in Clashes between Armenia and Azerbaijan. https://www.theguardian.com/world/2022/sep/13/deadly-clashes-erupt-in-disputed-ter ritory-between-azerbaijan-and-armenia. Accessed 26 April 2023 Hrnjaz M (2021) Protracted Armed Violence as a Criterion for the Existence of Non-International Armed Conflict: IHL, ICL and Beyond. https://www.armedgroups-internationallaw.org/2021/ 04/29/protracted-armed-violence-as-a-criterion-for-the-existence-of-non-international-armedconflict-ihl-icl-and-beyond/. Accessed 10 May 2023 Human Rights Watch (2022a) Background Briefing on Landmine Use in Ukraine. https://www.hrw. org/news/2022/06/15/background-briefing-landmine-use-ukraine. Accessed 17 April 2023 Human Rights Watch (2022b) Bosnia and Herzegovina - Events of 2022 https://www.hrw.org/ world-report/2023/country-chapters/bosnia-and-herzegovina. Accessed 20 April 2023 Human Rights Watch (2022c) Ethiopia: Airstrike on Camp for Displaced Likely War Crime. https:// www.hrw.org/news/2022/03/24/ethiopia-airstrike-camp-displaced-likely-war-crime. Accessed 12 April 2023.

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Human Rights Watch (2022d) First ICC Trial on Darfur Crimes: Ali Mohammed Ali, Known as Ali Kosheib or Kushayb, Janjaweed Leader. https://www.hrw.org/news/2022/03/29/first-icc-trialdarfur-crimes-ali-mohammed-ali-known-ali-kosheib-or-kushayb. Accessed 25 April 2023 Human Rights Watch (2022e) World Report 2023: Afghanistan (Events of 2022). https://www.hrw. org/world-report/2023/country-chapters/afghanistan. Accessed 28 January 2023 Human Rights Watch (2022f) World Report 2023: Armenia (Events of 2022). https://www.hrw.org/ world-report/2023/country-chapters/armenia. Accessed 26 April 2023 Human Rights Watch (2022g) World Report 2023: Burkina Faso (Events of 2022). https://www. hrw.org/world-report/2022/country-chapters/burkina-faso. Accessed 3 February 2023 Human Rights Watch (2022h) World Report 2023: Colombia (Events of 2022). https://www.hrw. org/world-report/2023/country-chapters/colombia. Accessed 1 April 2023 Human Rights Watch (2022i) World Report 2023: Ethiopia (Events of 2022). https://www.hrw.org/ world-report/2023/country-chapters/ethiopia. Accessed 12 April 2023 Human Rights Watch (2022j) World Report 2023: Israel and Palestine (Events of 2022). https:// www.hrw.org/world-report/2023/country-chapters/israel-and-palestine. Accessed 26 April 2023 Human Rights Watch (2022k) World Report 2023: Nigeria (Events of 2022). https://www.hrw.org/ world-report/2023/country-chapters/nigeria. Accessed 4 May 2023 Human Rights Watch (2022l) World Report 2023: South Sudan (Events of 2022). https://www.hrw. org/world-report/2023/country-chapters/south-sudan. Accessed 5 May 2023 Human Rights Watch (2022m) World Report 2023: Ukraine (Events of 2022). https://www.hrw. org/world-report/2023/country-chapters/ukraine. Accessed 6 May 2023 Human Rights Watch (2022n) World Report 2023: Yemen (Events of 2022). https://www.hrw.org/ world-report/2023/country-chapters/yemen. Accessed 11 May 2023 Human Rights Watch (2023) “When We Moved, They Shot” Laws of War Violations in the September 2022 Kyrgyzstan-Tajikistan Border Conflict. https://www.hrw.org/report/2023/05/ 02/kyrgyzstan-tajikistan-border-conflict. Accessed 1 May 2023 Humanity & Inclusion (2022) Humanity & Inclusion at the 20th Meeting of the States Parties to the Antipersonnel Mine Ban Convention. https://www.hi.org/en/news/humanity---inclusionat-the-20th-meeting-of-the-states-parties-to-the-antipersonnel-mine-ban-convention. Accessed 18 April 2023 Huntley S (2023) Fog of war: how the Ukraine conflict transformed the cyber threat landscape. Google Threat Analysis Group. https://blog.google/threat-analysis-group/fog-of-war-how-theukraine-conflict-transformed-the-cyber-threat-landscape/. Accessed 10 May 2023 Husted T F (2022) Boko Haram and the Islamic State West Africa Province. https://sgp.fas.org/crs/ row/IF10173.pdf. Accessed 4 May 2023 ICC (2004) The Office of the Prosecutor of the International Criminal Court opens its first investigation. https://www.icc-cpi.int/Pages/item.aspx?name=the%20office%20of%20the%20pros ecutor%20of%20the%20international%20criminal%20court%20opens%20its%20first%20i nvestigation. Accessed 30 March 2023 ICC (2005) Security Council refers situation in Darfur to ICC Prosecutor. https://www.icc-cpi.int/ Pages/item.aspx?name=security%20council%20refers%20situation%20in%20darfur%20to% 20icc%20prosecutor. Accessed 22 March 2023 ICC (2014a) Central African Republic II. https://www.icc-cpi.int/carII#:~:text=On%209%20D ecember%202021%2C%20Pre,scheduled%20in%20the%20coming%20months. Accessed 15 May 2023. ICC (2014b) 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 25 April 2023 ICC (2015) Dominic Ongwen transferred to The Hague. https://www.icc-cpi.int/Pages/item.aspx? name=pr1084. Accessed 25 April 2023 ICC (2016) Ongwen trial opens at International Criminal Court. https://www.icc-cpi.int/Pages/item. aspx?name=pr1262. Accessed 25 April 2023

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ICC (2017) The Prosecutor of the International Criminal Court, Fatou Bensouda, requests judicial authorisation to commence an investigation into the Situation in the Islamic Republic of Afghanistan. https://www.icc-cpi.int/news/prosecutor-international-criminal-courtfatou-bensouda-requests-judicial-authorisation#_blank Accessed 1 May 2023 ICC (2020) Situation in Darfur (Sudan): Ali Kushayb is in ICC custody. https://www.icc-cpi.int/ Pages/item.aspx?name=PR1525 Accessed 25 April 2023 ICC (2021a) Dominic Ongwen sentenced to 25 years of imprisonment. https://www.icc-cpi.int/ Pages/item.aspx?name=pr1590. Accessed 25 April 2023 ICC (2021b) ICC concludes confirmation of charges hearing in Abd-Al-Rahman case. https://www. icc-cpi.int/Pages/item.aspx?name=pr1593 Accessed 25 April 2023 ICC (2021c) Ntaganda Case: ICC Appeals Chamber to deliver appeals judgement on 30 March 2022 - Practical information. https://www.icc-cpi.int/Pages/item.aspx?name=MA263. Accessed 25 April 2023 ICC (2021d) Situation in Central African Republic II: Mahamat Said Abdel Kani surrendered to the ICC for crimes against humanity and war crimes. https://www.icc-cpi.int/Pages/item.aspx? name=pr1559. Accessed 19 March 2022 ICC (2021e) Statement of the Prosecutor of the International Criminal Court, Karim A. A. Khan QC, following the application for an expedited order under article 18(2) seeking authorisation to resume investigations in the Situation in Afghanistan Image https://www.icc-cpi.int/news/statem ent-prosecutor-international-criminal-court-karim-khan-qc-following-application Accessed 1 May 2023 ICC (2022a) ICC judges authorise Prosecution to resume investigation in Afghanistan. https://www. icc-cpi.int/news/icc-judges-authorise-prosecution-resume-investigation-afghanistan. Accessed 1 May 2023 ICC (2022b) ICC Prosecutor, Karim A.A. Khan QC, announces application for arrest warrants in the Situation in Georgia https://www.icc-cpi.int/news/icc-prosecutor-karim-aa-khan-qc-announ ces-application-arrest-warrants-situation-georgia Accessed 2 May 2023. ICC (2022c) Mokom Case. https://www.icc-cpi.int/carII/mokom. Accessed 25 April 2023 ICC (2022d) Ntaganda Case: Appeals Chamber directs the Trial Chamber to issue a new reparations order https://www.icc-cpi.int/news/ntaganda-case-appeals-chamber-directs-trialchamber-issue-new-reparations-order Accessed 25 April 2023 ICC (2022e) Opening of the Said trial, 26 September 2022. https://www/icc-cpi.int/news/openingsaid-trial-26-september-2022-practical-information. Accessed 25 April 2023 ICC (2022f) Situation in Georgia: ICC Pre-Trial Chamber delivers three arrest warrants. https:// www.icc-cpi.int/news/situation-georgia-icc-pre-trial-chamber-delivers-three-arrest-warrants. Accessed 2 May 2023. ICC (2022g) Statement of ICC Prosecutor, Karim A.A. Khan QC upon conclusion of his visit to Khartoum and Darfur https://www.icc-cpi.int/news/statement-icc-prosecutor-karim-aa-khanqc-upon-conclusion-his-visit-khartoum-and-darfur Accessed 25 April 2023 ICC (2022h) Statement of ICC Prosecutor, Karim A.A. Khan QC, on the Situation in Ukraine. https://www.icc-cpi.int/news/statement-icc-prosecutor-karim-aa-khan-qc-situationukraine-i-have-decided-proceed-opening Accessed 1 May 2023 ICC (2022i) Statement of ICC Prosecutor, Karim A.A. Khan QC, on the Situation in Ukraine: Receipt of Referrals from 39 States Parties and the Opening of an Investigation. https://www.icc-cpi.int/news/statement-icc-prosecutor-karim-aa-khan-qc-situation-ukr aine-receipt-referrals-39-states Accessed 1 May 2023 ICC (2022j) Statement of the Prosecutor of the International Criminal Court, Karim A.A. Khan KC: Request to hold hearing on confirmation of charges against Joseph Kony in his absence. https://www.icc-cpi.int/news/statement-prosecutor-international-criminal-courtkarim-aa-khan-kc-request-hold-hearing. Accessed 25 April 2023 ICC (2023a) Abd-Al-Rahman Case. https://www.icc-cpi.int/darfur/abd-al-rahman Accessed 25 April 2023 ICC (2023b) Al-Werfalli Case. https://www.icc-cpi.int/libya/al-werfalli. Accessed 25 April 2023

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Doc. S/2022/866. https://www.irmct.org/sites/default/files/documents/221117-progress-reports-2022-866-en.pdf. Accessed 25 April 2023 UN SC (2022) Letter dated 25 May 2022 from the Chair of the Security Council Committee established pursuant to resolution 1988 (2011) addressed to the President of the Security Council, UN Doc. S/2022/419 UN SC (2022) Public Statement by the Chair of the Working Group on Children and Armed Conflict, UN Doc. SC/14977 UN SC (2022) Settlement Expansion Fuelling Violence in Occupied Palestinian Territory, Middle East Peace Process Special Coordinator Warns Security Council. UN Doc. SC/14836. UN SC (2023) South Sudan Recommits to Revitalized Peace Agreement with 24-Month Extension, Security Council Emphasizes, Urging Country to Avoid Further Delays. UN Doc. SC/15219 UN SC (2023) With 2022 Deadliest Year in Israel-Palestine Conflict, Reversing Violent Trends Must be International Priority, Middle East Coordinator Tells Security Council. UN Doc. SC/ 155179 UNAMA (2022) UN Releases Report on Human Rights in Afghanistan (15 August 2021 – 15 June 2022), Press Release UNICEF (2022) Myanmar Landmine/ERW Incidents Information Factsheet (January-October 2022). https://www.unicef.org/myanmar/media/8296/file/Myanmar%20Landmine-ERW%20I ncidents%20Information%20(January-October%202022).pdf. https://www.unicef.org/mya nmar/media/8296/file/Myanmar%20Landmine-ERW%20Incidents%20Information%20(Jan uary-October%202022).pdf. Accessed 18 April 2023 UNMISS (2022) Report on Attacks on Civilians in Southern Unity State, South Sudan. https://unm iss.unmissions.org/sites/default/files/infographic_on_southern_unity_report_south_sudan_ 06sep_final_final.pdf. Accessed 6 May 2023 UNODA (2022a) Convention on Certain Conventional Weapons - Group of Governmental Experts on Lethal Autonomous Weapons Systems: Overview. https://meetings.unoda.org/ccw/conven tion-certain-conventional-weapons-group-governmental-experts-2022. Accessed 9 May 2023 UNODA (2022b) Convention on Certain Conventional Weapons - Meeting of the High Contracting Parties. https://meetings.unoda.org/ccw-mhcp/convention-certain-conventional-weapons-mee ting-high-contracting-parties-2022. Accessed 7 June 2023 UNODA (2022c) Convention on Certain Conventional Weapons – Group of Government Experts on Lethal Autonomous Weapons Systems: Overview. https://meetings.unoda.org/ccw/conven tion-certain-conventional-weapons-group-governmental-experts-2022. Accessed 7 June 2023 UNODA (2022d) Convention on Cluster Munitions - Tenth Meeting of States Parties: Overview. https://meetings.unoda.org/ccm-msp/convention-cluster-munitions-tenth-meetingstates-parties-2022. Accessed 13 December 2023 UNODA (2022e) High Contracting Parties and Signatories CCW. https://disarmament.unoda.org/ the-convention-on-certain-conventional-weapons/high-contracting-parties-and-signatoriesccw/. Accessed 5 June 2023 UNODA (2022f) Namibia: Accession to Biological Weapons Convention. https://treaties.unoda. org/a/bwc/namibia/ACC/london. Accessed 2 May 2023 UNODA (2022g) Treaty on the Prohibition of Nuclear Weapons - First Meeting of States Parties. https://meetings.unoda.org/meeting/57998. Accessed 5 May 2023 UNODA (2022h) Treaty on the Prohibition of Nuclear Weapons - Tenth Review Conference: Overview. https://meetings.unoda.org/npt-revcon/treaty-non-proliferation-nuclear-wea pons-tenth-review-conference-2022#:~:text=Expand. Accessed 2 June 2023 UNODA (2023a) Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction: Status of the Treaty. https://treaties.unoda.org/t/bwc. Accessed 5 June 2023 UNODA (2023b) Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction: Status of the Treaty. https://treaties.unoda. org/t/cwc. Accessed 1 June 2023

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Other Documents Biological Weapons Convention (2022) Final Document of the Ninth Review Conference, BWC/ CONF.IX/9 CCW (2022) Consideration of the final report, CCW/P.V/CONF/2022/WP.2 European Parliament Resolution of 20 October 2022 on the Situation in Burkina Faso Following the Coup D’état, adopted 20 October 2022, 2022/2865(RSP) Final Agreement to End the Armed Conflict and Build a Stable and Lasting Peace, signed 24 November 2016 Revitalised Agreement on the Resolution of the Conflict in the Republic of South Sudan, 12 September 2018Statement by the Foreign Ministers of the Russian Federation, the Republic of Azerbaijan and the Republic of Armenia, 10 October 2022, No. 1692-10-10-2020

Cases and Decisions ECCC Case 002/02, Summary of Appeal Judgement, 22 September 2022, 002/19-09-2007-ECCC/ SC ECtHR, H.F. and Others v. France, Grand Chamber Judgement, 14 September 2022, Application nos. 24384/19 and 44234/20 ECtHR, H.F. and Others v. France, Joint Partly Dissenting Opinion of Judges Yudkivska, Wojtyczek and Roosma, 14 September 2022, Application nos. 24384/19 and 44234/20 ECtHR, Savickis and Others v. Latvia, Grand Chamber Judgement, 9 June 2022, Application no. 49270/11 ICC, Situation in Georgia, Decision on the Prosecutor’s request for authorization of an investigation decision, 27 January 2016, ICC-01/15-12 27-01-2016 1/26 EO PT ICC, Situation in Uganda, Public redacted version – Warrant of Arrest for Dominic Ongwen, 8 July 2005, ICC-02/04 ICC, Situation in Uganda, Public redacted version – Warrant of Arrest Joseph Kony on 8 July as amended on 27 September XX05. 27 September XX05, ICC-02/04-01/05 ICC, The Prosecutor v. Ahmad Muhammad Harun and Ali Muhammad Ali Abd-Al-Rahman, Public redacted version of Second warrant of arrest for Ali Muhammad Ali Abd-Al-Rahman (“Ali Kushayb”), 16 January 2018, ICC-02/05/05-01/07-7-Secret-Exp, 11 June 2020, ICC-02/05-01/ ICC, The Prosecutor v. Al-Tuhamy Mohamed Khaled, Decision terminating the proceedings against Mr Al-Tuhamy Mohamed Khaled, 7 September 2023, ICC-01/11-01/13 ICC, The Prosecutor v. Ali Muhamad Ali Abd-Al-Rahman (‘Ali Kushayb’), Corrected version of “Decision on the confirmation of charges against Ali Muhammad Ali Abd-Al-Rahman (‘Ali Kushayb’), 9 July 2021, ICC-02/05-01/20-433’, 23 November 2021, ICC-02/05-01/20 ICC, The Prosecutor v. Ali Muhammad Ali Abd-Al-Rahman (“Ali Kushayb”), Prosecution’s submission of the Document Containing the Charges, 29 March 2021, ICC-02/05-01/20 ICC, The Prosecutor v. Bosco Ntaganda, Judgement, 8 July 2019, ICC-01/04-02/06 ICC, The Prosecutor v. Bosco Ntaganda, Judgment on the appeals against the decision of Trial Chamber VI of 8 March 2021 entitled “Reparations Order”, 12 September 2022, ICC-01/04-02/ 06 A4-A5

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ICC, The Prosecutor v. Bosco Ntaganda, Public redacted version of Judgement on the appeals of Mr Bosco Ntaganda and the Prosecutor against the decision of Trial Chamber VI of 8 July 2019 entitled ‘Judgement’, 30 March 2021, ICC-01/04-02/06 A A2 ICC, The Prosecutor v. Bosco Ntaganda, Sentencing judgement, 7 November 2019, ICC-01/04-02/ 06 ICC, The Prosecutor v. Dominic Ongwen, Public redacted with public annex: List of participating victims, Decision on the confirmation of charges against Dominic Ongwen, 23 March 2016, ICC-02/04-01/15 ICC, The Prosecutor v. Dominic Ongwen, Defence Notification of its Intent to Appeal the Trial Judgement, 21 May 2021, No. ICC-02/04-01/15-1826 ICC, The Prosecutor v. Dominic Ongwen, Judgment on the appeal of Mr Ongwen against the decision of Trial Chamber IX of 4 February 2021 entitled “Trial Judgement”, 15 December 2022, ICC-02/04-01/15 A ICC, The Prosecutor v. Dominic Ongwen, Public Redacted: Trial Judgement, 4 February 2021, No. ICC-02/04-01/15 ICC, The Prosecutor v. Mahamat Said Abdel Kani, Decision on the confirmation of charges against Mahamat Said Abdel Kani, 9 December 2021, ICC-01/14-01/21 ICC, The Prosecutor v. Mahmoud Mustafa Busayf Al-Werfalli, Decision terminating proceedings against Mr Mahmoud Mustafa Busayf Al-Werfalli, 15 June 2022, ICC-01/11-01/17 ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996 (Nuclear Weapons case) ICJ Reports 1996 ICTY, The Prosecutor v. Duško 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. Duško Tadi´c, Appeals Chamber, Judgement, IT-94-1-A, 25 July 1999 ICTY, The Prosecutor v. Jovica Staniši´c and Franko Simatovi´c, Judgement, 9 December 2015, IT-03-69-ASTL, The Prosecutor v. Hassan Habib Merhi and Hussein Hassan Oneissi, Appeal Judgment, 10 March 2022, STL-11-01/A-2/AC ICTY, The Prosecutor v. Ljube Boškoski and Johan Tarˇculovski, Trial Chamber, Judgement, 10 July 2008, Case No. IT-04-82-T ICTY, The Prosecutor v. Ramush Haradinaj and others, Trial Chamber, Judgement, 3 April 2008, Case No. IT-04-84-T STL, The Prosecutor v. Hassan Habib Merhi and Hussein Hassan Oneissi, Appeal Judgement, 10 March 2022, STL-11-01/A-2/AC STL, The Prosecutor v. Salim Jamil Ayyash, Hassan Habib Merhi, Hussein Hassan Oneissi and Assad Hassan Sabra, Judgement, 18 August 2020, STL-11-01/T/TC

Treaties Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 75 UNTS 31 (adopted 12 August 1949, entered into force 21 October 1950) Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 75 UNTS 85 Geneva Convention relative to the Protection of Civilian Persons in Time of War, 75 UNTS 287 Geneva Convention relative to the Treatment of Prisoners of War, 75 UNTS 135 Hague Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land (adopted 18 October 1907, entered into force 26 January 1910) U.S.T.S. 539, 2 A.J.I.L. Supp. 90, Annex to the Convention Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, 1125 UNTS 609 (adopted 8 June 1977, entered into force 7 December 1978)

Table of Cases*

Hybrid Courts and Tribunals Special Courts Chambres Africaines Extraordinaires D’ Assises (CAE) Ministère public v. Hissein Habré, 181n20, 182, 188 Eritrea-Ethiopia Claims Commission (EECC) Aerial Bombardment and Related Claims, 19 December 2005, 74n12 Prisoners of War, 1 July 2003, 74n12, 90 Extraordinary Chambers in the Courts of Cambodia (ECCC) Case 002/02, Summary of Appeal Judgment, 22 September 2022, 002/19-092007-ECCC/SC, 249–250 Special Court for Sierra Leone (SCSL) Prosecutor v. Charles Ghankay Taylor, Judgment, 18 May 2012, SCSL-03-01-T, 178, 188, 192 Special Tribunal for Lebanon (STL) Prosecutor v. Salim Jamil Ayyash, Hassan Habib Merhi, Hussein Hassan Oneissi and Assad Hassan Sabra, Appeal Judgment, 10 March, 2022, STL-11-01/A-2/AC, 248 Prosecutor v. Salim Jamil Ayyash, Hassan Habib Merhi, Hussein Hassan Oneissi and Assad Hassan Sabra, Judgment, 18 August 2020, STL-11-01/T/TC, 248 Tribunals International Criminal Tribunal for the Former Yugoslavia (ICTY) Prosecutor v. Delali´c, Appeal Judgment, 20 February 2001, IT-96-21-A, 191, 192 * The Table of Cases was compiled by Ms. M. Nanninga, Exter Indexing, Haarlem, The Netherlands, e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2024 H. Krieger et al. (eds.), Yearbook of International Humanitarian Law, Volume 25 (2022), Yearbook of International Humanitarian Law 25, https://doi.org/10.1007/978-94-6265-619-2

297

298

Table of Cases

Prosecutor v. Dragomir Miloševi´c. Appeal Judgment, 12 November 2009, IT/98/ 29/1-A, 183–184 Prosecutor v. Dusko Tadi´c aka ‘Dule’, Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, IT-94-1-AR72, 205, 225, 236 Prosecutor v. Dusko Tadi´c aka ‘Dule’, Judgment of the Appeals Chamber, 15 July 1999, IT-94-1-A, 143, 186n40, 233 Prosecutor v. Dusko Tadi´c aka ‘Dule’, Jurisdiction, 2 October 1995, ICTY-94-1, 43, 130n95 Prosecutor v. Hadžihasanovi´c & Kubura, Trial Judgment, 15 March 2006, IT-0147, 130n95 Prosecutor v. Halilovi´c, Trial Judgment, 16 November 2005, IT-01-48, 130n95 Prosecutor v. Jovica Staniši´c and Franko Simatovi´c, Judgment, 9 December 2015, IT-03-69-A, 245 Prosecutor v. Limaj, Trial Judgment, 30 November 2005, IT-03-66, 130n95 Prosecutor v. Ljube Boskoski and Johan Tarculovski, Trial Chamber, Judgment, 10 July 2008, IT-04-82-T, 206 Prosecutor v. Milan Babi´c, Trial Chamber Judgment, 29 June 2004, IT-03-72-S, 177–178 Prosecutor v. Milan Marti´c, Judgment, 12 June 2007, IT-95-11-T, 130n95, 182 Prosecutor v. Mrkši´c, Trial Judgment, 27 September 2007, IT-95-13/1, 130n95 Prosecutor v. Muci´c, Trial Judgment, 16 November 1998, IT-66-2, 130n95 Prosecutor v. Pavle Strugar, Appeal Judgment, 17 July 2008, IT-01-42-A, 192 Prosecutor v. Ramush Haradinaj and others, Trial Chamber, Judgment, 3 April 2008, IT-04-84-T, 130n95, 205–206 Prosecutor v. Slobodan Miloševi´c, Rule 98 bis Decision, 5 February 2004, IT-0254, 130n95 Prosecutor v. Stanislav. Gali´c, Judgment, 5 December 2003, IT-98/29-T, 182, 183 International Military Tribunal for the Far East (IMTFE) Judgment, 4 November 1948 (Tokyo Judgment), 177, 188 International Residual Mechanism for Criminal Tribunals (IRMCT) Prosecutor v. Jovica Staniši´c and Franko Simatovi´c, 245–246 Trail Smelter Arbitral Tribunal United States v. Canada (1938 and 1941), 18 United States Military Tribunal at Nuremberg High Command Trial. The United States of America v. Wilhelm von Leeb, Judgment, 27 October 1948, 182n22 Trial of Wilhelm List (Hostages Trial), Judgment, 19 February 1948, 44

Table of Cases

299

International Humanitarian Law European Court of Human Rights (ECtHR) Hassan v. UK, Grand Chamber Judgment, 16 September 2014, Application No. 29750/09, 9, 59n117 H.F. and Others v. France, Grand Chamber Judgment, 14 September 2022, Application Nos. 24384/19 and 44234/20, 253–255 H.F. and Others v. France, Joint Partly Dissenting Opinion of Judges Yudkivska, Wojtyczek and Roosma, 14 September 2022, Application Nos. 24384/19 and 44234/ 20, 255 Savickis and Others v. Latvia, Grand Chamber Judgment, 9 June 2022, Application No. 49270/11, 252–253 International Court of Justice (ICJ) Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Iran v. USA), Judgment, 3 February 2021, 55n91 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), 26 February 2007, 143n12, 186 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment (Merits), 3 February 2015, 57 Armed Activities on the Territory of the Congo (DRC v. Uganda), Judgment, 19 December 2005, 74n12 Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, 20 April 2010, Pulp Mills), 19, 20, 26 Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Judgment, 16 December 2015, (Certain Activities), 19, 20, 21 Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, 4 June 2008, 55n92 Corfu Channel Case (UK v. Albania), Judgment on the Merits, 9 April 1949, 18 Elettronica Sicula SpA (USA v. Italy), Judgment, 20 July 1989, 52 Gabˆcíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment, 25 September 1997, 9, 18, 22, 92 Guinea-Bissau v. Senegal, Arbitral Award of 31 July 1989, Judgment of 12 November 1991, 7 Legal Consequences for States of Continued Presence of South African in Namibia (South-West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 21 June 1971, 9 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, 253 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, 11, 12, 19, 22, 24, 56n96, 59, 84, 86–87, 264n491, 270 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA), Judgment, 27 June 1986, 55n91, 74n12, 186n39

300

Table of Cases

Oil Platforms (Islamic Republic of Iran v. USA), Merits, Judgment, 6 November 2003, 7, 84 International Criminal Court (ICC) Cengiz ˙In¸saat Sanayi ve Ticaret A.S. v. Libya, Final Award, 7 November 2018, 21537/ZF/AYZ (Cengiz v. Libya), 42n3, 50n50 Gujarat State Petroleum Corp. Ltd. v. Yemen and the Yemeni Ministry of Oil and Minerals, Final Award, 10 July 2015, 19299/MCP, 42n3 Güris v. Syria, Award, 5 April 2016, 21845/ZF/AYZ, 42n3, 48–49, 50n50, 97n149 Öztas Construction, Construction Materials Trading Inc. v. Libya, Final Award, 14 June 2018, 21603/ZF/AYZ, 50n50 Prosecutor v. Ali Muhammad Ali Abd-Al-Rahman (“Ali Kushayb”), corrected version of “Decision on the confirmation of charges against Ali Muhammad Ali Abd-Al-Rahman (‘Ali Kushayb’), 9 July 2021, ICC-02/05-01/20-433,” 23 November 2021, ICC-02/05-01/20, 241 Prosecutor v. Ali Muhammad Ali Abd-Al-Rahman (“Ali Kushayb”), Prosecution’s submission of the Document Containing the Charges, 29 March 2021, ICC-02/ 05-01/20, 241 Prosecutor v. Al-Tuhamy Mohamed Khaled, Decision terminating the proceedings against Mr Al-Thumany Mohamed Khaled, 7 September 2023, ICC-01/11-01/ 13, 244 Prosecutor v. Bosco Ntaganda, Judgement, 8 July 2019, ICC-01/04-02/06, 240 Prosecutor v. Bosco Ntaganda, Judgment on the appeals against the decision of Trial Chamber VI of 8 March 2021 entitled “Reparations Order,” 12 September 2022, ICC-01/04-02/06, 240 Prosecutor v. Bosco Ntaganda, Public redacted version of Judgment on the appeals of Mr Bosco Ntaganda and the Prosecutor against the decision of Trial Chamber VI of 8 July 2019 entitled ‘Judgment,’ 30 March 2021, ICC-01/04-02/06, 240 Prosecutor v. Bosco Ntaganda, Sentencing judgment, 7 November 2019, ICC-01/ 04-02/06, 240 Prosecutor v. Dominic Ongwen, Defence Notification of its Intent to Appeal the Trial Judgment, 21 May 2021, No. ICC-02/04-01/15, 243 Prosecutor v. Dominic Ongwen, Judgment on the appeal of Mr Ongwen against the decision of Trial Chamber IX of 4 February entitled “Trial Judgment,” 15 December 2022, ICC-02/04-01/15, 243 Prosecutor v. Dominic Ongwen, Public Redacted: Trial Judgment, 4 February 2021, No. ICC-02/04-01/15, 243 Prosecutor v. Dominic Ongwen, Public redacted with public annex: List of participating victims, Decision on the confirmation of charges against Dominic Ongwen, 23 March 2016, ICC-02/04-01/15, 242 Prosecutor v. Germain Katanga, 30 September 2008, ICC-01/04-01/07, 179, 180 Prosecutor v. Jean-Pierre Bemba Gombo, Appeal Judgment, 8 June 2018, ICC-01/ 05-01/08 A, 194 Prosecutor v. Jean-Pierre Bemba Gombo. Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre

Table of Cases

301

Bemba Gombo, Pre-Trial Chamber II Decision on the Confirmation of Charges, 15 June 2009, ICC-01/05-01/08, 185, 188, 190, 193–195 Prosecutor v. Jean-Pierre Bemba Gombo, Judgment, 21 March 2016, ICC 01/ 05-01/08-3343, 191, 194, 195 Prosecutor v. Laurent Gbagbo and Charles Blé Goudé, 12 June 2014, ICC-02/ 11-01/11, 179, 182 Prosecutor v. Laurent Gbagbo and Charles Blé Goudé. Reasons of Judge Geoffrey Henderson, Appeal Judgment, 15 January 2019, ICC-02/11-01/15-1263-AnxB-Red, 182, 183n29 Prosecutor v. Mahamat Said Abdel Kani, Decision on the confirmation of charges against Mahamat Said Abdel Kani, 9 December 2021, ICC-01/14-01/21, 239–240 Prosecutor v. Mahmoud Busayf Al-Werfalli, Decision terminating proceedings against Mr Mahmoud Mustafa Busay Al-Werfalli, 15 June 2022, ICC-01/11-01/17, 244 Prosecutor v. Thomas Lubanga Dyilo, 7 February 2007, ICC-01/04-01/06-803tEN, 179 Situation in Darfur, Sudan in the Case of the Prosecutor v. Omar Hassan Ahmad Al Bashir (‘Omar Al Bashir’). Warrant of Arrest for Omar Hassan Ahmad Al Bashir, Judgment, 4 March 2009, ICC-02/05-01/09, 196 Situation in Georgia, Decision on the Prosecutor’s request for authorization of an investigation decision, 27 January 2016, ICC-01/15-12, 238 Situation in the Democratic Republic of the Congo in the case of The Prosecutor v. Sylvestre Mudacumura. Public redacted version Decision on the Prosecutor’s Application under Article 58, Pre-Trial Chamber Judgment, 13 July 2012, ICC-01/04-01/ 12, 181 Situation in Uganda, Public redacted version—Warrant of Arrest for Dominic Ongwen, 8 July 2005, ICC-02/04, 242 Situation in Uganda, Public redacted version—Warrant of Arrest Joseph Kony on 8 July as amended on 27 September 2005, ICC-02/04-01/05, 242 Way2B ACE v. Libya, Award, 24 March 2018, 20971/MCP/DDA, 50n50 Inter-American Court of Human Rights (IACtHR) Santo Domingo Massacre v. Colombia, Judgment, 30 November 2012, 59n117 Trade Law International Centre for Settlement of Investment Disputes (ICSID) Ampal-American Israel Corp. v. Egypt, ARB/12/11, 52–53, 52n65, 53 Asian Agricultural Products Ltd. v. Sri Linka, Award, 27 June 1990, ARB/87/3 (AAPL v. Sri Lanka), 42, 53n72, 60–61 Autopista Concesionada de Venezuela, C.A. v. Bolivarian Republic of Venezuela, ARB/00/5, 23 September 2003, 97n142 CMS Gas Transmission Company v. Argentina, ARB/01/8, 12 May 2005, 53n75 Continental Casualty Company v. Argentina, ARB/03/9, 5 September 2018, 53n75, 55

302

Table of Cases

Gold Reserve Inc. v. Bolivarian Republic of Venezuela, ARB(AF)/09/1, 22 September 2014, 53n72 Mamidoil Jetoil Greek Petroleum Products Societe S.A. v. Republic of Albania, ARB/11/24, 30 March 2015, 52n68 Noble Ventures, Inc. v. Romania, Award, ARB/01/11, 12 October 2005, 52n65 Pantechniki S.A. Contractors & Engineers (Greece) v. Republic of Albania, ARB/ 07/21, 30 July 2009, 52n68 Rumeli Telekom A.S. and Telsim Mobil Telekomunikasyon Hizmetleri A.S. v. Republic of Kazakhstan, ARB/05/16, 29 July 2008, 52n66 Sempra Energy International v. Argentina, ARB/02/16, 29 June 2010, 55n84 Strabag v. Libya, Award, 29 June 2020, ARB(AF)15/1, 51, 60 Permanent Court of Arbitration (PCA) CC/Devas (Mauritius) Ltd., Devas Employees Mauritius Private Limited and Telecom Devas Mauritius Limited v. India, Award, , 25 July 2016, PCA 2013-09, 54n79, 55n84 Deutsche Telekom v. India, Interim Award, 13 December 2017, PCA 2014-10, 54, 55n84, 55n86 Everest Estate LLC v. Russia, Jurisdiction, 20 March 2017, PCA 2015-36, 42n4 North Atlantic Coast Fisheries (Great Britain v. USA), Award, 7 September 1910, 11 RIAA 167, 48n35 Privat Bank and Finilon v. Russia, PCA 2015-21, 24 February 2017, 59n119 Stabil LLC v. Russia, Award, 12 April 2019, PCA 2015-35, 42n4, 59n119 United Nations Commission on International Trade Law (UNCITRAL) CME Czech Republic B.V. v. Czech Republic, Partial Award, 13 September 2001, 52n65 Saluka Investments B.V. v. Czech Republic, 17 March 2006, 17 March 2006, 52n66 World Trade Organization (WTO) Brazil—Measures Affecting Imports of Retreaded Tyres, Report, 12 March 2007, WT/DS332/AB/R, 55n85 Russia—Measures Concerning Traffic in Transit, Report, 29 April 2019, WT/ DS512/R, 54n78, 55–56 Saudi Arabia—Measures Concerning the Protection of Intellectual Property Rights, Report, 16 June 2020, WT/DS567/R, 56n93 USA—Certain Measures on Steel and Aluminium Products (EU), Communication from the USA, 11 June 2018, WT/DS548/13, 55n89 USA—Trade Measures Affecting Nicaragua, Report, 13 October 1986, L/6053, 55n90

Table of Cases

303

National Bamako Appeal Court of Bamako Ministère public v. Boukari Housseini, 17 November 2020, 119–120, 125 Ministère public v. Fawaz Ould Ahmed, 1 September 2020, 120–121 Ministère public v. Fawaz Ould Ahmed, Abdrahamane Maïga, Moussa Maïga and Adama Maïga, 26 May 2020, 120 Ministère public v. Hadadoum Ag Idar, 8 October 2021, 125 Ministère public v. Ibrahim Djibo, 6 October 2021, 121 Ministère public v. Ousmane Dicko and Ahma Mahamadou, 121–122 Ministère public v. Taher Amni, 7 October 2021, 119 France Court of Cassation Russia v. JSC Oschadbank, N 21-15.390, Judgment, 7 December 2022, 59n119 The Netherlands Gerechtshof Den Haag Russia v. Everest Estate and others, Judgment, 19 July 2022, ECLI:NL:GHDHA:2-22:1297, 59n119 Russia v. NJSC Naftogaz of Ukraine and others, Judgment, 19 July 2022, ECLI:NL:GHDHA:2022:1295, 59–60n119 Switzerland Federal Tribunal Russia v. PJSC Ukrnafta, 4A 396/2017, Judgment, 16 October 2018, 59n119 Russia v. Stabil LLC and others, 4A 398/2017, Judgment, 16 October 2018, 59n119 United States (US) Supreme Court Yamashita, In re, Judgment, 4 February 1946, 185–186

Index*

Page numbers in italic indicate figures. Court cases can be found in the separate table of cases. A A., Jalda, 259 Abd-Al-Rahman, Ali Muhammad Ali, 241 actus reus, 118 Adoum, Issa Sallet, 257 advantages, military, 15–16, 45–46, 168 aei Mali (ngo), 126 Afghanistan, 206–211, 237–238, 260 African Union, 218–219, 227–228 Agent Orange, 4 aggression, crime of, 159, 169, 170, 176, 177, 184–185 Ahmadzai, A., 208 Aid Worker kika database, 127n86 aiding and abetting, 178n10, 196, 245 airstrikes Afghanistan, 210 Burkina Faso, 213 Ethiopia, 219 Myanmar, 227 Niger, 228 Palestine, 221–222 Yemen, 234–235 Aitala, Rosario Salvatore, 239 Al Qaida in the Islamic Maghreb (aqim), 119n46, 212 See also Groupe Salafiste pour la Prédication et le Combat (gspc)

Albania, 247 Alemu, Eshetu, 260 Algeria, 166 Algiers Peace Accords (2015), 116 Aliyev, Ilham, 223 Ansar Allah (Houthis), 233–235 Ansar Dine, 212 Ansari, Mawlawi Mujib ur Rahman, 209 anti-balaka groups, 239 Anti-Personnel Mine Ban Convention, 264–265 anti-satellite weapons, 271 Antonescu, Ion, 177 Antonio Cassese Initiative, 112, 129 apartheid, 221 Appeal Court of Bamako, 118–120, 120–121, 121–122, 125 arbitral tribunals, 42, 47–49, 50, 59–62 Arias, Fernando, 266 armed conflicts armed conflict clauses, 49–51, 53, 60–61, 87n83 classification, 204 Environmental Guidebook for Military Operations, 31, 32 vs. formal states of war, 84 ilc on perac, 12

*

The Index was compiled by Ms. M. Nanninga, Exter Indexing, Haarlem, The Netherlands, e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2024 H. Krieger et al. (eds.), Yearbook of International Humanitarian Law, Volume 25 (2022), Yearbook of International Humanitarian Law 25, https://doi.org/10.1007/978-94-6265-619-2

305

306 and investment treaties, 47–48, 49–53, 61–62 property protection, 43 and terrorism, 111–112 See also international armed conflicts (iacs); international humanitarian law (ihl); non-international armed conflicts (niacs); precautionary principle; war Armenia, 222–224 arms control and disarmament conventional weapons, 262–265 cyberspace, 270 non-conventional weapons, 265–270 outer space, 271 trade, arms, 261–262 See also weapons Arms Trade Treaty (att), 261–262 Arnold-Foster, W., 161 Articles on Responsibility of States (ars) circumstances precluding wrongfulness (Article 27), 73, 78–79, 81, 99–100 compliance with, 100 consent (Article 20), 77–80, 82 countermeasures (Article 22), 88–89 countermeasures (Article 52), 90 customary law, 73 distress (Article 24), 95–96 exclusions (Article 50), 89 force majeure, 96–100 ihl applicability, 98–99, 100–101 and impossibility, 96–97 and lex specialis, 74, 76, 90–91, 97, 99 measures taken by other States (Article 54), 93n122 necessity (Article 25), 92–94, 96, 97 self-defence (Article 21), 83–87 Artsakh Defense Army, 223–224 assassinations, 225 assistance, 142, 145, 146, 151, 232 ATT (Arms Trade Treaty), 261–262 autonomous weapons systems (aws), 263 Ayyash, Salim Jamil, 248 Azerbaijan, 222–223, 224 Azovstal facility (Mariupol, Ukraine), 45

B Babi´c, Milan, 177–178 Bangladesh, 162 barbarism, 258 Al Bashir, Omar, 178, 196 belligerent occupation. See occupation

Index Bemba, Jean-Pierre, 178, 185, 188 Bensouda, Fatou, 237, 238 Biafra, 162 Biological Weapons Convention (bwc), 265–266 Black Sea Grain Initiative, 158n6 Blinken, James, 158 blockades Burkina Faso, 211 discrimination, principle of, 161 Gaza, 161n18, 163, 168n60, 220 ihl on, 158–159, 159–164 impacts, 164–165 omissive structure, 164–166 proportionality principle, 160–161 protection inside vs. outside encirclement, 157–158, 162, 166 See also under Ukraine war Bloque Comandante Jorge Briceno (Bloque Oriental, Eastern bloc), 215, 217–218 Blum, G., 130 Boko Haram, 228, 229, 230 See also Islamic State West Africa Province (iswap) Borrell, Josep, 158 Bosnia and Herzegovina, 245, 257, 264 Bothe, M., 4–5 Bucha (Ukraine), 191, 195 Bulgaria, 264 Burkina Faso, 114–115, 116, 117, 124, 125–126, 211–215

C Caamano, Javier, 216 Calarcá (alias of Alexander Díaz Mendoza), 217–218 Cambodia, 249–250 care, duty to take, 25 Central African Republic (car), 239–240, 257, 258, 264 cessation, 88–89 Chad, 116, 264 Chambres Africaines Extraordinaires D’Assises (cae), 182 Chemical, Biological, Radiological and Nuclear (cbrn) Defence Policy, 265 chemical weapons, 266–267 children Democratic Republic of Congo (drc), 240 Syria, 253–254, 260

Index Uganda, 242 Ukraine, 176, 179, 184 Yemen, 234, 235 Chile, 264 Chui, Ngudjolo, 180 circumstances precluding wrongfulness, 73, 78–79, 81, 99–100 citizenship, 252–253 civil war. See non-international armed conflicts (niacs) civilians Afghanistan, 208–209, 210–211 and blockades, 160–161 Burkina Faso, 213 collateral harm to, 153 and cyber warfare, 270 distinction, principle of, 45, 60–61 and the humanitarian view, 153, 154 icrc protection, 26 and international environmental law (iel), 15–17, 25, 28 and international investment law, 42, 62 Myanmar, 227 Niger, 228–229 property, 43, 44, 45–47 and reprisals, 90 and self-defence, 85–86 South Sudan, 231 and starvation, 160n16, 162–163 Syria, 259 Ukraine naval blockade, 168–169 Ukraine war, 176, 183, 184, 232, 250–251, 270 Yemen, 234–235 See also humanitarian aid; precautionary principle; proportionality principle Clapham, A., 161 cluster munitions, 263–264 co-belligerency and assistance, 142–144 collectivist thresholds, 143–144, 147 and disobedience, 149–151 and the humanitarian view, 147–153 ihl’s threshold for, 147–149, 151–153 and revisionism, 145 coercion, 79–80, 82n56, 83, 101 collateral damage, 46, 153 collateral environmental harm, 4, 16, 23, 27 collective punishment, 210, 220–221 Colombia, 215–218, 257, 264 combatants, 144–145, 153

307 commanders, military, 187–188, 189, 191–192, 193–194 See also heads of state command/superior responsibility in general, 178–179, 184–185 effective control, 185–186 failure to exercise control properly, 193 failure to take measures within one’s power, 193–195 knowledge of war crimes, 189–193 and perpetration, 178, 179–181 superior, 187–189 common goods, 18–19 Communist Party of Kampuchea (cpk), 249–250 compensation, 49–51, 60, 62 Comprehensive Nuclear-Test-Ban Treaty, 268 conduct of hostilities and heads of state, 178, 181 and international environmental law (iel), 5 and property protection, 44 treaty interpretation of, 6 Conference of States Parties (csp), 261–262, 266 confession, 122 conflict resolution, 112 conscription, 182 consent and coercion, 79, 101 ex post consent, 77n27 German law, 78n37 inter-State consent, 78, 79–81 non-state actor consent, 82–83 control theory, 180 Convention on Certain Conventional Weapons (ccw, 1980), 262–263, 268–269 cooperate, duty to, 20, 25, 26, 28, 29 co-perpetration, 179, 180, 196 Council of Europe (coe), 250, 251, 253–254 countermeasures, 73, 88–91, 101 counterterrorism law in general, 110–111 Burkina Faso, 114–115 downsides of, 122–123 and international humanitarian law (ihl), 111–113, 116–118, 123, 128–133 prosecution humanitarian actors, 124–127, 131

308 ihl-derived norms, 111–112, 113, 118, 123, 124–131 Mali, 115, 116–117, 118–122, 123, 125 vs. pre-emptive criminal policies, 110–111, 115–116, 122, 123 Sahel, 114–117 See also non-state armed groups (nsags); terrorism and terrorist groups coups d’état, 211 Courtois, Laëtitia, 270 courts and tribunals, 236 CPK (Communist Party of Kampuchea), 249–250 Crawford, James, 86–87 crimes against humanity Albania, 247 Bosnia and Herzegovina, 245 Central African Republic (car), 239, 257 Colombia, 257 Croatia, 245 Democratic Republic of Congo (drc), 240 by heads of state, 177, 178, 182, 196 Kosovo, 247 Liberia, 258, 261 Libya, 243–244 Sudan, 241 Syria, 259 Uganda, 242 See also war crimes criminal law actions vs. omissions, 164–165 dematerialization of, 118, 119–121 habitus, 128 individualization of sentences, 118, 121–122 international criminal law, 169, 176 criminal liability, 179, 182, 186 Curaçao, 264 customary international law and force majeure, 96 and fps standard, 52 general targeting rules of ihl, 5–6 Geneva Conventions, Additional Protocol i (api), 81n48 medical personnel, protection of, 127 and prevention principle, 19, 22–23 cyberspace, 270 D Dannenbaum, T., 162

Index Darfur, 241–242 De Waal, A., 164 death penalty, 120 defences in general, 72–73 consent, 77–83 countermeasures, 73, 88–91, 101 distress, 95–96 exclusions, 89–90 forces majeures, 80, 96–100, 101 and international humanitarian law (ihl), 74 and jus cogens, 75–76 and lex specialis, 74, 76, 90–91, 97, 99 limits, 73 necessity (see necessity) and negative-rule elements, 78 self-defence, 83–87, 101 term use, 73n4 See also Articles on Responsibility of States (ars) Democratic Republic of Congo (drc), 240–241, 264 deportation, 177, 182, 184, 245 developing countries, 166–167 Dienelt, A., 10 Dijk, B. van, 164 discrimination, principle of, 161 distinction, principle of, 45, 60–61 Donetsk People’s Republic (dpr), 233 Dönitz, Karl, 177, 188 double prevention, 165, 170 DRC (Democratic Republic of Congo), 240–241, 264 Drew, Philip, 163, 164, 165–166 due diligence, 19–20, 21, 27, 52, 93, 98 E EAC (Extraordinary African Chambers), 178 EAGs (ethnic armed groups), 226–227 Eastern bloc (Bloque Comandante Jorge Briceno), 215, 217–218 ECCC (Extraordinary Chambers in the Courts of Cambodia), 249–250 ECHR (European Convention of Human Rights), 250–251, 251–255 Economic Community of West African States (ECOWAS), 114n27 ECtHR (European Court of Human Rights), 8n36, 250–255 EECC (Eritrea-Ethiopia Claims Commission), 74n10, 90

Index effective control, 222–223 Egypt, 52–53, 166 Ejército de Liberación National (National Liberation Army, ELN), 215–217 Energy Charter Treaty, 51 Environmental Guidebook for Military Operations, 31, 32 environmental harm during armed conflicts, 4, 14–17, 24, 25–27, 34 and Environmental Guidebook for Military Operations, 31, 32 minimisation, 26–29 relevance of prevention principle, 21 transboundary aspect, 18–20 See also international environmental law (IEL) environmental impact assessments (EIAs), 20, 25, 26, 27–28, 29, 31, 33 equality of belligerents, principle of, 5 Eritrea, 218, 219, 265 Eritrea-Ethiopia Claims Commission (EECC), 74n10, 90 ethics of war, 142, 147 See also the humanitarian view; revisionism Ethiopia, 218–219, 256, 260 ethnic armed groups (EAGs), 226–227 European Convention of Human Rights (ECHR), 250–251, 251–255 European Court of Human Rights (ECtHR), 8n36, 250–255 European Union (EU), 228 evidence, 122–123, 132, 183–184 Extraordinary African Chambers (EAC), 178 Extraordinary Chambers in the Courts of Cambodia (ECCC), 249–250 F fair and equitable treatment (FET), 47 Falklands/Malvinas conflict (1982), 98 FAMA (Malian Armed Forces), 132 famine, 166–168, 170 See also starvation FAO (Food and Agriculture Organization), 167 FARC-EP, 215, 216, 217–218, 257 Federal Criminal Court (FCC), 261 femicide, 215 Finland, 258 Food and Agriculture Organization (FAO), 167

309 food supply availability, 167 famine, 166–168, 170 price increase, 159, 166–167, 168–169, 170 starvation, 158–159, 159–160, 161–163, 167–168, 170 waste, food, 167, 170 forces majeures, 80, 96–100, 101 Forces Patriotiques pour la Libération du Congo (FPLC), 240 foreign investment, 42, 47–48 See also investment treaties France, 212, 228, 253–255, 258 Frowe, H., 144, 146, 151 Fuerzas Armadas Revolucionarias de Colombia (FARC-EP), 215, 216, 217–218, 257 Fujimori, Alberto, 196 full protection and security (FPS), 47, 51–53, 60–61

G G5 Sahel Joint Force, 132 Ganda Izo (self-defence group), 119, 120n49, 121–122 Gasca Trujillo, Arnulfo, 218 Gaza airstrikes, 221–222 blockades, 161n18, 163, 168n60, 220 Gbagbo, Laurent, 179, 182 Gebremichael, Debretsion, 218 General Agreement on Tariffs and Trade (GATT), 54, 55 Geneva Academy of International Humanitarian Law and Human Rights, 223 Geneva Conventions closure rule, 99 and coercion, 79n39, 82n56 on collective punishment, 221 and consent, 79, 81, 82–83 ECCC on breaches of, 249–250 and heads of state, 195 on NIACs, 43–44, 207, 253, 255 non-renunciation of rights, 82–83 on ordering of grave breaches, 181 on prisoners of war, 98n151 on starvation, 162, 163 on unforeseeability, 98–99 —Additional Protocol I (API) advance warning, 28

310

Index

on blockades, 166 care, duty to take, 25 and consent, 79, 81n48, 81n52, 82n55, 83 goal, 152n62 on indiscriminate attacks, 232 and international environmental law (IEL), 14, 15, 16–17, 28 on medical personnel, protection of, 127 precautionary principle, 23, 25, 46 prevention principle, 22, 30 on property protection, 45 on starvation, 162–163, 163–164, 166 —Additional Protocol II (APII) on non-international armed conflicts (NIACs), 82n53, 129, 206, 207 non-renunciation of rights, 82n55 on non-state armed groups (NSAGs), 44 on starvation, 163n31, 163n33 genocide, 177, 238, 241, 257, 259 Georgia, 238 Germany, 259 government-house utilitarianism, 149 Greece, 264 Grotius, Hugo, 159 Group for the Support of Islam and Muslims (JNIM), 212–214, 228–229 Groupe Castel, 258 Groupe Salafiste pour la Prédication et le Combat (GSPC), 119 See also Al Qaida in the Islamic Maghreb (AQIM) Guchmazov, Gamlet, 238 Guillou, Nicolas, 246–247 Gulf War oil spill, 31, 33–34

criminal liability, 179 culpability, in general, 196–197 international obligations, 195 knowledge of war crimes, 189–193 as military commanders, 187–188 modes of liability in general, 176 ordering, 178–179, 180, 181–184 and perpetration, 178, 179–181 war crimes by, 176–178, 181–184, 188–193, 193–195, 196–197 See also command/superior responsibility; Putin, Vladimir healthcare facilities, 232 Heathcote, Sarah, 93 Heintschel von Heinegg, W., 163–164 Hill-Cawthorne, Lawrence, 93 Housseini, Boukary, 119–120, 125 Houthis, 233–235 Hulme, K., 5, 25–26 human rights law, 57, 59, 61, 74n13 Human Rights Watch (HRW), 195, 225 humanitarian aid actors, humanitarian, 118, 124–127, 131 criminalization, 124–127 relief, 163 the humanitarian view, 147–154 See also revisionism hybrid tribunals in general, 246 Extraordinary Chambers in the Courts of Cambodia (ECCC), 249–250 Kosovo Specialist Chambers (KSC), 246–247 Special Tribunal for Lebanon (STL), 248–249

H habitus, 128–129 Habré, Hissein, 178, 182, 188, 196 Hadi, Abdrabbuh Mansar, 234 the Hague Conventions (1899, 1907), 147n35, 152n62 the Hague Regulations, 44, 159–160, 205 Hallade, Luc, 212 Hamas, 220 Haqqani, Rahimullah, 209 Hariri, Rafik, 248 heads of state crimes against humanity by, 177, 178, 182, 196

I IACs. See international armed conflicts (IACs) “Ibrahim 10”, 120 ICC. See International Criminal Court (ICC) ICCPR (International Covenant on Civil and Political Rights), 59 ICJ. See International Court of Justice (ICJ) ICL (international criminal law), 169, 176 ICRC. See International Committee of the Red Cross (ICRC) ICTR (International Criminal Tribunal for Rwanda), 130, 244

Index See also International Residual Mechanism for Criminal Tribunals (IRMCT) ICTY. See International Criminal Tribunal for the Former Yugoslavia (ICTY) Idlib (Syria), 195 IEL. See international environmental law (IEL) IHL. See international humanitarian law (IHL) ILC. See International Law Commission (ILC) immunity, 177 imputation, 176, 178, 181 IMTFE (International Military Tribunal for the Far East), 177, 188 incongruence, 56, 57 India, 264 indigenous people, 216 indirect perpetration, 179–180, 196 individualization of sentences, 118, 121–122 Institute for the Study of War, 209 internal armed conflicts. See non-international armed conflicts (NIACs) international armed conflicts (IACs) between Armenia and Azerbaijan, 224 and co-belligerency, 142–144 and consent, 78–81, 83 definition, 43, 204–205 Georgia, 238 and international environmental law (IEL), 14, 22 and investment arbitration, 48 between Kyrgyzstan and Tajikistan, 225–226 low threshold of violence, 205, 225 medical personnel, protection of, 127 revisionists on, 146 Ukraine war as, 232–233 See also non-international armed conflicts (NIACs); specific IACs, e.g. Ukraine war International Blockade Committee, 164 International Centre for Settlement of Investment Disputes (ICSID), 42, 51, 52–53, 55, 60–61 International Committee of the Red Cross (ICRC) on ARS regime, 91 civilian protection, 26 on co-belligerency, 143

311 commentaries on Geneva Conventions, 30, 82n56 Customary International Humanitarian Law study, 89–90n98, 168, 253 on cyber warfare, 270 on international environmental law (IEL), 11–12, 23–24 on international humanitarian law (IHL), 112 on lethal autonomous weapons systems (LAWS), 269–270 on medical personnel, protection of, 127 on military objectives, 168 on non-international armed conflicts (NIACs), 207 on non-state armed groups (NSAGs), 205 on precautionary principle, 17, 28 on reprisals, 89–90n98 on starvation, 160, 162 International Court of Justice (ICJ) on due diligence, 19–20 on effective control, 186 on FPS standard, 52 on IEL, 23 and IHL breaches, 74n10 on ‘overall control’ test, 143n12 on prevention principle, 21 on treaty interpretation, 9 International Covenant on Civil and Political Rights (ICCPR), 59 international crimes, 116–117, 128, 226, 231 See also crimes against humanity; war crimes International Criminal Court (ICC) Burkina Faso, 117 control theory, 180 developments, 237–244 Mali, 116, 128 Office of the Prosecutor (OTP), 237, 238 preliminary examinations and investigations, 237–239 Putin indictment, 176 war crimes jurisdiction, 176, 177 See also Rome Statute international criminal law (ICL), 169, 176 International Criminal Tribunal for Rwanda (ICTR), 130, 244 See also International Residual Mechanism for Criminal Tribunals (IRMCT)

312 International Criminal Tribunal for the Former Yugoslavia (ICTY) heads of state tried by, 177–178 and International Residual Mechanism for Criminal Tribunals (IRMCT), 244 on organisational level of NSAGs, 130 ‘overall control’ test, 143 See also International Residual Mechanism for Criminal Tribunals (IRMCT) international environmental law (IEL) and international humanitarian law (IHL), 4–5, 10–13, 20–21, 23–24, 27, 28–30, 34–35 prevention principle, 5, 17–20, 21–24, 25, 26–29, 30, 34 and soft law instruments, 10 See also environmental harm international humanitarian law (IHL) Afghanistan applicability, 207 applicability, 58 on blockades, 158–159, 159–164 breaches, 74, 82 compliance, 90, 97, 99–100, 253–254 contradictions, 72 and counterterrorism law, 111–113, 116–118, 123, 128–133 declassification, 209 force majeure, applicability of, 98–99, 101 general targeting rules, 14–16, 21 goal, 147–148, 151–154 and human rights law, 61 and international environmental law (IEL), 4–5, 10–13, 20–21, 23–24, 27, 28–30, 34–35 and international investment law, 42–43, 47, 56–59, 62 investment treaties, impact on, 59–61 Kyrgyzstan/Tajikistan applicability, 225–226 normative conflicts with other areas of law, 56–59 obligations, 89–90, 98–100 on property protection, 43, 44, 45 prosecution based on IHL-derived norms, 111–112, 113, 118, 123, 124–131 reprisals, 73, 89–91, 101 and state responsibility, 72–74, 76–77, 89–90, 186, 269 value judgments, 62 violations, 61–62, 84–85

Index See also Articles on Responsibility of States (ARS); co-belligerency; command/superior responsibility; defences; necessity; precautionary principle international investment law arbitral tribunals, 42, 47–49, 50, 59–62 and international humanitarian law (IHL), 42–43, 47, 56–59, 62 property, 43, 44, 45–47 protection during uncertain times, 49 See also investment treaties international law fragmentation, 5, 6–8, 9–10 harmonisation, 5, 7, 9–10, 12, 13, 20, 25, 29–30 horizontal nature, 6 and self-defence, 85 and Ukraine naval blockade, 159 See also specific areas of international law, e.g. international humanitarian law (IHL) International Law Commission (ILC) Draft Articles on the Effects of Armed Conflicts on Treaties, 24, 48 Draft Principles on PERAC, 5, 12–13, 22, 26, 29, 34 on fragmentation of international law, 7–8 on jus cogens, 75 on lex specialis, 76 on prevention principle, 21, 23 See also Articles on Responsibility of States (ARS) International Military Tribunal for the Far East (IMTFE), 177, 188 international organisations, 31 See also specific international organisations International Residual Mechanism for Criminal Tribunals (IRMCT), 244–246 investment treaties armed conflict clauses, 49–51, 53, 60–61, 87n83 and armed conflicts, 47–48, 49–53, 61–62 bilateral investment treaties Austria-Libya BIT, 50–51 Canada-Mali BIT, 54 Israel-Japan BIT, 50 USA-Argentina BIT, 53, 54

Index full protection and security (FPS), 47, 51–53, 60–61 IHL, impact of, 59–61 interpretation, 57–59, 61, 62 non-precluded measures clauses, 53, 54, 94n128 security exceptions, 53–56, 61 self-judging exception clauses, 55–56, 61 territorial scope, 59 Iran, 260 Iraq, 163 IRMCT (International Residual Mechanism for Criminal Tribunals), 244–246 Ishaq, Lina, 260 Islamic State Sahel Province (IS Sahel, previously Islamic State in the Greater Sahara (ISGS)), 212, 214–215 Islamic State West Africa Province (ISWAP), 214, 229–230 Islamic State-Khorasan (IS-K), 207–209 Israel, 13, 219–222

J Jama’at Nasr al-Islam wal Muslimin (JNIM), 212–214, 228–229 Jama’atu Ahl as-Sunnah li-Da’awati wal-Jihad (JASDJ, Boko Haram), 228, 229, 230 See also Islamic State West Africa Province (ISWAP) Japan, 13 JEP (Special Peace Tribunal), 257 Jerusalem, 221 joint criminal enterprises (JCEs), 245 jus ad bellum and co-belligerency, 142–143, 144 and coercion, 79 goal, 152 and investment treaties, 60 and revisionism, 146 Ukraine invasion, 169 jus cogens, 75–76, 89, 91 jus in bello and co-belligerency, 142–143, 144 goal, 152 and investment treaties, 60 permissive dimensions of, 153 and revisionism, 146 and self-defence, 85 Ukraine invasion, 169

313 just war, 144, 145, 146, 151 K Kaboré, Roch Marc Christian, 212 Kachin Independence Army (KIA), 226–227 Kachin Independence Organization (KIO), 226 Kamara, Kunti, 258 Katabat Macina, 212 Katanga, Germain, 180 Kerch Strait, 158 Khaled, Al-Tuhamy Mohamed, 244 Khan, Karim Asad Ahmad, 237, 238, 241–242 Kharkiv (Ukraine), 182, 191 Khmer Rouge, 249–250 KIA (Kachin Independence Army), 226–227 KIO (Kachin Independence Organization), 226 Koné, Mah Mamadou, 118 Kony, Joseph, 242 Kosiah, Alieu, 261 Kosovo Specialist Chambers (KSC), 246–247 Krasniqi, Jakup, 247 Kuwait, 163 Kyrgyzstan, 225–226 L Lake Chad Basin, 230 See also Niger landmines, 264–265 Latvia, 252–253 Lausanne Action Plan, 263–264 law enforcement personnel, 132 law of armed conflict (LOAC). See international humanitarian law (IHL) laws of war, 150 Lebanon, 167, 248–249 Leibler, A., 22 Leningrad, siege of (1941–1944), 161 lethal autonomous weapons systems (LAWS), 268–270 Lewis, D.A., 130 lex specialis and ARS defences, 74, 76, 90–91, 97, 99 and forces majeures, 99 IHL as, 12–13, 56

314 and protection of humanitarian actors, 124 liability, 145–146 See also heads of state: modes of liability Liberia, 258, 261 Libya civil war, 50, 51, 243 ICC on, 243–244 UNHRC on, 256 Lieber Code, 159 London Declaration Concerning the Law of Naval War (1909), 160n9 Lord’s Resistance Army (LRA), 242 Luhanks People’s Republic (LPR), 233 Lvova-Belova, Maria, 179

M M., Alaa, 259 Machar, Riek, 231 Mahamat, Tahir, 257 Maïga, Abdrahamane, 120n52 Maïga, Moussa, 120n52 Mali humanitarian actors, 124–126 prosecution in, 115, 116–117, 118–122, 123, 125 Malian Armed Forces (FAMA), 132 Mariupol (Ukraine), 45, 182, 191 Marti´c, Milan, 178, 182, 196 Massaquoi, Gibril, 258 Mauritania, 115, 116 Mayardit, Salva Kiir, 231 McMahan, J., 144–145, 146, 148 medical assistance, 125 medical personnel, 127 Mekonnen, Demeke, 218 Mendoza, Alexander Díaz (alias Calarcá), 217–218 Mengistu Haile Mariam, 260 mens rea, 118, 121, 123, 187, 189, 190–191, 192 Merhi, Hassan Habib, 248 Meron, Theodore, 79n39 Mettraux, Guenael, 187 military advantages, 15–16, 45–46, 168 military commanders, 187–188, 189, 191–192, 193–194 See also heads of state military courts, 117 military necessity, 15, 44, 60, 93–94 military objectives

Index and co-belligerency, 144, 145, 152 economic targets, 168 and international environmental law (IEL), 15–17, 25–26, 28–29 and investment treaties, 61 and property protection, 45–46 military personnel, 132 military tribunals, 44, 177, 180 Militia/Janjaweed, 241 Miloševi´c, Dragomir, 183–184 Miloševi´c, Slobodan, 178, 196 Mindzaev, Mikhail Mayramovich, 238 Modirzadeh, N.K., 130 Mokom, Maxime Jeoffroy Eli Gawaka, 239 Moore, Michael, 165 MPSR (Patriotic Movement for Preservation and Restoration), 211 Mulder, N., 164 Multinational Joint Task Force (MNJTF), 227–228, 230 Al Murabitoune, 120, 212 Muratov, Dmitry Andreyevich, 251 Murphy, L., 150 Mustafa, Salih, 247 Myanmar, 226–227, 264

N Nagorno-Karabakh, 222–224 Nakamitsu, Izumi, 262 Namibia, 266 national courts, 256–261 National Resistance Front (NRF, Afghanistan), 209–211 national security, 29 nationality, 166, 252, 254, 255 NATO (North Atlantic Treaty Organization), 265 naval blockades. See blockades; Ukraine war: naval blockade naval warfare, 160, 163–164, 168 See also blockades; Ukraine war: naval blockade Nazi Germany, 161, 180 necessity Articles on Responsibility of States (ARS), 92–94, 96, 97 and distress, 75n14, 96 IHL applicability, 101 and investment treaties, 54–55, 61 military necessity, 15, 44, 60, 93–94 negligence, criminal, 189 the Netherlands, 259–260

Index neutrality, 142 Ní Aoláin, Fionnuala, 111 NIACs. See non-international armed conflicts (NIACs) Niger, 115, 116, 227–230 no-harm rule, 18, 19 See also prevention principle non-governmental organisations (NGOs), 31 non-international armed conflicts (NIACs) in general, 6 and co-belligerency, 143 and consent, 78n38, 82–83 definition, 43, 205–206, 207 Geneva Conventions and APII, 43–44, 82n53, 129, 206, 207, 253, 255 intensity threshold, 114, 209, 227, 229, 231 and investment treaties, 54 medical personnel, protection of, 127 and protracted armed violence, 206, 228, 230 Sahel, 113–114 status Afghanistan, 209–211 Burkina Faso, 214, 215 Colombia, 215, 217, 218 Ethiopia, 219 Myanmar, 227 Niger, 227, 228–229, 230 South Sudan, 231 Syria, 253 Ukraine, 232, 233 Yemen, 235 temporal scope, 129–130 termination of, 129–130, 206 See also international armed conflicts (IACs) non-state armed groups (NSAGs) in general, 205 Burkina Faso, 211–215 Colombia, 215–217 and consent, 81–83 and effective control, 186 ELN, 215–217 Ethiopia, 218–219 ethnic armed groups (EAGs), 226–227 and international environmental law (IEL), 5 Islamic State West Africa Province (ISWAP), 214, 229–230 Jama’at Nasr al-Islam wal Muslim (JNIM), 212–214, 228–229

315 landmines, use of, 264 Al Murabitoune, 120, 212 Nagorno-Karabakh, 223–224 Niger, 228–230 prosecution of, 118 Sahel, 113–114, 130 South Sudan, 230–231 Tigray People’s Liberation Front (TPLF), 218–219 See also ethnic armed groups (EAGs); terrorism and terrorist groups North Atlantic Treaty Organization (NATO), 265 Nouri, Hamid, 260 Novaya Gazeta (newspaper), 251 NRF (National Resistance Front, Afghanistan), 209–211 NSAGs. See non-state armed groups (NSAGs) Nsaibia, Héni, 113 Ntaganda, Bosco, 240 Ntaganda Appeal Judgment, 180 nuclear weapons, 22, 267–268 Nuremberg trials, 177, 180 O objectives, military. See military objectives occupation in general, 205 and international investment law, 44, 59 Israel, 220–221 Latvia, 252–253 law of, 205 Nagorno-Karabakh, 222–224 oil spills, 31, 33–34 Ollino, Alice, 98 Oneissi, Hussein, 248 Ongwen, Dominic, 242–243 ordering, 178–179, 180, 181–184 Organisation for the Prohibition of Chemical Weapons (OPCW), 266–267 Oslo II Accord (1995), 220–221 outer space, 271 overall control, 143, 186, 222–223, 233 P Palestine developments, 219–222 Gaza, 161n18, 163, 168n60, 220, 221–222 West Bank, 220–221

316 Palestinian Islamic Jihad (PIJ), 221–222 Patriotic Movement for Preservation and Restoration (MPSR), 211 peacetime, 17, 28–29 Pellet, Alain, 86n81 pension law, 252 peremptory rules of international law ( jus cogens), 75–76, 89, 91 Permanent Court of Arbitration (PCA), 54 perpetration, 178, 179–181 Petro, Gustavo, 216 pollution, 15 Portugal, 13 POWs (prisoners of war), 90, 98, 100, 226 precautionary principle Geneva Conventions API, 23, 25, 46 and international environmental law (IEL), 5, 11–12, 16–17, 21, 25–28, 34 and international investment law, 46–47, 61 Kyrgyzstan/Tajikistan, 226 and necessity, 93 and prevention principle, 19 See also prevention principle pre-emptive criminal policies, 110–111, 115–116, 122, 123 prevention principle, 5, 17–20, 21–24, 25, 26–29, 30, 34 Prigozhin, Yevgeny, 186 prison populations, 116 prisoners of war (POWs), 90, 98, 100, 226 property, 43, 44, 45–47 proportionality principle and blockades, 160–161 and counterterrorism law, 121 and international environmental law (IEL), 16, 27, 31 and international investment law, 46, 61 and necessity, 93–94 and Ukraine naval blockade, 159, 168–169 protected environmental zones, 29 proxy wars, 234 Putin, Vladimir command/superior responsibility, 186, 187, 188, 189, 190–193 culpability, in general, 196 failure to exercise control properly, 193 failure to take measures within his power, 194–195 ICC indictment, 176 knowledge of war crimes, 191–193 liability, modes of, 178–179

Index ordering of war crimes, 181, 184 perpetration, 179 Ukraine naval blockade, 159 R Raslan, Anwar, 259 relief, 163 reparation, 62, 88–89 See also compensation repatriation, 253–255 reprisals, 73, 89–91, 101 requisition, 51, 60 See also compensation revisionism, 144–147, 148, 152, 153, 250 See also the humanitarian view Revolutionary Armed Forces of Colombia (FARC- EP), 215, 216, 217–218, 257 Rio Declaration (1992), 24 Romanov, Mikhail, 261 Rome Statute Afghanistan deferral request, 237 international crimes, 116 on military commanders, 185–186, 187, 188, 189, 192, 193 Niger, 117 on perpetration, 178, 179–180, 239 on starvation, 163 on trials in absentia, 242 Ukraine jurisdiction, 238 Roosma, Peeter, 255 Roth, Kenneth, 191 rule consequentialism, 148 rules, 8, 57–58 Russia 64th Separate Guards Motor Rifle Brigade, 195 chemical weapons, use of, 267 ECtHR measures against, 250–252 Hero of Russia award, 195 landmines, use of, 264 nuclear weapons, use of, 267 presidency, 181, 187, 194 and Ukraine NIAC, 233 Wagner Group, 132, 179, 186 See also Putin, Vladimir; Ukraine war, naval blockade S al-Saadi, Bassem, 221 Sahel humanitarian actors, 124

Index non-international armed conflicts (NIACs), 113–114 non-state armed groups (NSAGs), 113–114, 130 See also specific countries, e.g. Mali Said, Mahamat Abdel Kani, 239–240 Samphân, Khieu, 249–250 San Remo Manual, 160, 168 Sanakoev, David Georgiyevich, 238 Santana, Gatti, 246 Sassòli, Marco, 93, 96 Saudi Arabia, 234 Saul, B., 112 SCC (Special Criminal Court), 257 Schaffer, J., 165 SCSL (Special Court for Sierra Leone), 178, 188 Sea of Azov, 158 Second World War, 161, 177 Séléka coalition, 239 self-defence, 83–87, 101 Selimi, Rexhep, 247 sentencing, 111, 118, 121–122 sexual and gender-based violence (SGBV), 132, 215, 231, 256, 258, 261 Shala, Pjetër, 247 Shishimarin, Vadim, 261 Sierra Leone, 258 Simatovi´c, Franko, 245–246 Simma, Bruno, 86n81 Sindeyeva, Natalya Vladimirovna, 251 Sjöstedt, B., 5, 9–10 soft law instruments, 8, 10 Somalia, 167 sommation, 89, 90, 101 South Sudan, 230–231, 256 Spain, 13 Spano, Robert, 250, 252 Special Court for Sierra Leone (SCSL), 178, 188 Special Criminal Court (SCC), 257 Special Peace Tribunal (JEP), 257 Special Tribunal for Lebanon (STL), 248–249 SPLM/A- IO (Sudan’s People’s Liberation Movement/Army-in-Opposition), 230–231 St. Petersburg Declaration, 147n35 Staniši´c, Jovica, 245–246 starvation, 158–159, 159–160, 161–163, 167–168, 170 See also famine States

317 assistance, 142, 145, 146, 151, 232 consent, 77–81 countermeasures, 88–91 responsibility, 72–74, 76, 89–90, 186, 269 self-defence, 83–87 See also Articles on Responsibility of States (ARS) STL (Special Tribunal for Lebanon), 248–249 Stockholm Declaration (1972), 18 Sudan, 241–242 See also South Sudan Sudan’s People’s Liberation Movement/ Army-in-Opposition (SPLM/A- IO), 230–231 superiors, civilian, 187, 188–189, 190 See also command/superior responsibility Surinam, 260 Sweden, 260 Switzerland, 13, 261 Syria chemical weapons, use of, 266–267 children, 253–254, 260 civil war, 48 crimes against humanity, 259 investment arbitration, 48–49 repatriation of French nationals, 253–255 Stockholm District Court on, 260 unhrc on, 256 war crimes, 259 systemic integration, 8, 9–11, 13, 30, 87 Szálasi, Ferenc, 177

T Ta’ang National Liberation Army (TNLA), 226, 227 Tadros, V., 144 Tajikistan, 225–226 Taliban, 207–209, 210–211 Tatmadaw, 226–227 Taylor, Charles, 178, 188, 196 terrorism and terrorist groups cultural indications of membership, 119–120 financing, 110, 115, 120, 125 Groupe Salafiste pour la Prédication et le Combat (GSPC), 119 Islamic State-Khorasan (IS- K), 207–209

318 symbols, 116 travelling to terrorist groups, 110–111, 259 See also counterterrorism law; non-state armed groups (NSAGs) Thaçi, Hashim, 246–247 Tigray Conflict, 218–219, 256 Tigray People’s Liberation Front (TPLF), 218–219 Tiso, Jozef, 177 TNLA (Ta’ang National Liberation Army), 226, 227 TNP (Treaty on the Non-Proliferation of Nuclear Weapons), 267–268 Tojo, Hideki, 177, 188 Tokyo Trial, 177, 188 torture, 122, 258, 259 total restraint, 84, 86–87 total war, 145, 151 TPLF (Tigray People’s Liberation Front), 218–219 TPNW (Treaty on the Prohibition of Nuclear Weapons), 268 Trail Smelter Arbitral Tribunal, 18 Traoré, Ibrahim, 211 treaty interpretation, 6, 7–10, 22–23, 57–59, 61 See also Vienna Convention on the Law of Treaties (VCLT) treaty obligations, 24 Treaty on the Non-Proliferation of Nuclear Weapons (TNP), 267–268 Treaty on the Prohibition of Nuclear Weapons (TPNW), 268 Turkey, 48–49

U UAE (United Arab Emirates), 234 Uganda, 242–243 Ukraine exports, 158, 166–167, 168 landmine stockpiles, 264 Ukraine war and anti-satellite weapons, 271 arms transfers and exports, 262 assistance, state, 142 attacks, 232 Azovstal facility (Mariupol, Ukraine), 45 biological weapons, use of, 265 ccw non-adherence, 263 chemical weapons, use of, 266

Index cyber warfare, 270 deportation of children, 176, 179, 184 and ECtHR, 250–252 healthcare facilities targeted, 232 icc investigation, 238–239 international armed conflict (IAC), 232–233 and international investment law, 42 landmines, use of, 264 naval blockade in general, 158–159, 170 aggression, act of, 169 civilian damage, 168–169 food supply, impact on, 158, 166–168 legitimacy, under San Remo Manual, 160, 168 proportionality, 159, 168–169 protection inside vs. outside encirclement, 166 Ukrainian courts, 261 unhrc on, 255–256 war crimes, 176, 179, 182–183, 184, 191–192, 196, 238–239, 259, 261 See also Putin, Vladimir unforeseeability, 98–99 United Arab Emirates (UAE), 234 United Nations (UN) Black Sea Grain Initiative, 158n6 Charter, 54, 79–80, 83, 85, 86–87, 143, 169, 232 Food and Agriculture Organization (FAO), 167 General Assembly (UNGA), 220, 270, 271 Human Rights Monitoring Mission in Ukraine (HRMU), 232 Independent Commission on Ukraine, 184 International Commission of Inquiry for Mali, 116 Office of the High Commissioner for Human Rights (OHCHR), 221 Secretary General (UNSG), 124 Security Council (UNSC), 54, 110, 124, 207, 227–228, 241–242 un-Royal Government of Cambodia (UN- RGC) Agreement, 249 and Yemen, 234, 235 See also International Court of Justice (ICJ) United Nations Assistance Mission in Afghanistan (UNAMA), 210

Index United Nations Conference on Trade and Development (UNCTAD), 50 United Nations Environment Programme (UNEP), 12, 167 United Nations Human Rights Council (UNHRC), 221, 255–256 United Nations Mission in South Sudan (UNMISS), 231 United Nations Office for the Coordination of Humanitarian Affairs (UNOCHA), 222, 231 United States (US) and anti-satellite weapons, 271 Gulf War oil spill, reaction, 31, 33–34 nuclear weapon use, 267 United States (US) Supreme Court, 185–186 V Van Steenberghe, R., 10, 23 Vattel, Emmerich de, 159 VDPs (Volunteers for the Defence of the Homeland), 211–212, 213, 214 Venezuela, 216 Veseli, Kadri, 247 Vienna Action Plan, 268 Vienna Convention on the Law of Treaties (VCLT) and consent, 79–80 on continuity during armed conflict, 48 and customary international law, 6 on peremptory rules of international law, 75 and prevention principle, 20–21 rules, 8, 57–58 systemic integration, 8, 9–11, 13, 30 treaty interpretation, 7–10 Vietnam War, 4 violence, sexual and gender-based (SGBV), 132, 215, 231, 256, 258, 261 vitiation, 77, 79–80, 83 Volunteers for the Defence of the Homeland (VDPS), 211–212, 213, 214 W WAEMU (West African Economic and Monetary Union), 114n27, 115 Wagner Group, 132, 179, 186 Waldron, J., 150 war ethics of war, 142, 147 formal state, 84

319 individual moral responsibilities, 145–146, 148, 152–153 just war, 144, 145, 146, 151 laws of war, 150 proxy wars, 234 total war, 145, 151 See also co-belligerency; conduct of hostilities; the humanitarian view; international armed conflicts (IACs); international humanitarian law (IHL); non-international armed conflicts (NIACs); prisoners of war (POWs); revisionism war booty, 81n52 war crimes Afghanistan, 260 Albania, 247 Bosnia and Herzegovina, 245 Burkina Faso Penal Code, 117 Central African Republic (CAR), 239, 257, 258 Colombia, 257 Croatia, 245 Democratic Republic of Congo (DRC), 240 Ethiopia, 219, 260 Georgia, 238 by heads of states, 176–178, 181–184, 188–193, 193–195, 196–197 and icc, 177 Iran, 260 knowledge of, superior’s, 189–193 Kosovo, 246, 247 Kyrgyzstan, 225 Libya, 243–244 Mali, 120–121 and mens rea requirement, 123 and niacs, 129 Sahel, 132 starvation, 163, 164 Sudan, 241 Surinam, 260 Syria, 259 Uganda, 242 Ukraine naval blockade framed as, 158 Ukraine war, 176, 179, 182–183, 184, 191–192, 196, 238–239, 259, 261 unlawful transfer and deportation of population, 176 See also crimes against humanity weapons anti-satellite weapons, 271 and assistance, 142, 149, 152

320 biological weapons, 265–266 chemical weapons, 266–267 cluster munitions, 263–264 landmines, 264–265 lethal autonomous weapons systems (LAWS), 268–270 NRF, owned by, 209 nuclear weapons, 267–268 and terrorist activity, 121, 122 See also arms control and disarmament Weiss, Caleb, 113 Al-Werfalli, Mahmoud Mustafa Busayf, 244 West African Economic and Monetary Union (WAEMU), 114n27, 115 West Bank, 220–221 widespread, long-term and severe damage, 15–16

Index Williams, Bernard, 149 Wojtyczek, Krzysztof, 255 World Trade Organization (WTO), 55–56 World War II (WW2), 161, 177

Y Yamashita, Tomoyuki, 185–186 Yaouba, Ousman, 257 Yemen, 163, 233–235 Yudkivska, Ganna, 255

Z Zelensky, Volodymyr, 158, 169 zones of military interest (ZMIs), 125–126