Military Operations and the Notion of Control Under International Law: Liber Amicorum Terry D. Gill 9462653941, 9789462653948

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Military Operations and the Notion of Control Under International Law Liber Amicorum Terry D. Gill Rogier Bartels Jeroen C. van den Boogaard Paul A. L. Ducheine Eric Pouw Joop Voetelink Editors

Military Operations and the Notion of Control Under International Law

Rogier Bartels Jeroen C. van den Boogaard Paul A. L. Ducheine Eric Pouw Joop Voetelink •

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Editors

Military Operations and the Notion of Control Under International Law Liber Amicorum Terry D. Gill

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Editors Rogier Bartels Chambers (Trial Division) International Criminal Court The Hague, The Netherlands Faculty of Law University of Amsterdam Amsterdam, The Netherlands Paul A. L. Ducheine Netherlands Defence Academy Breda, The Netherlands

Jeroen C. van den Boogaard Netherlands Defence Academy Breda, The Netherlands Faculty of Law University of Amsterdam Amsterdam, The Netherlands Eric Pouw The Hague, The Netherlands

Faculty of Law University of Amsterdam Amsterdam, The Netherlands Joop Voetelink Netherlands Defence Academy Breda, The Netherlands

ISBN 978-94-6265-394-8 ISBN 978-94-6265-395-5 https://doi.org/10.1007/978-94-6265-395-5

(eBook)

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 2021 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. 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

Foreword

Professor Gill worked in both institutions we represent, namely the Netherlands Defence Academy (NLDA) and the University of Amsterdam, until his retirement and transition to emeritus professor, respectively. Terry Gill played an important role for our institutions as the dual-hatted professor for Military Law. On 1 September 2001, Terry took up his chair at the University of Amsterdam. As of 2005, he combined this with the newly set-up chair for Military Law at the Netherlands Defence Academy, gradually reducing his tenure at his alma mater, Utrecht University, until he divided his time equally between our institutions. In the meantime, academic teaching and research in the field of military law burgeoned as the world caught fire. The 9/11 terrorist attacks triggered the United States to wage the so-called ‘Global War on Terror’. Besides being the first invocation of the collective self-defence mechanism pursuant to Article 5 of the NATO Treaty, Operation Enduring Freedom (the military operation against the Taliban and Al-Qaeda in Afghanistan) initiated academic and political debate about many of the topics within Terry’s expertise, such as self-defence, the applicability of the Geneva Convention to (and the treatment of) unprivileged belligerents (in Guantanamo Bay), and the territorial scope of conflict (e.g. Pakistan and Somalia). The subsequent, highly controversial Operation Iraqi Freedom (the military operation against Iraq), generated both military and legal issues, ranging from jus ad bellum, jus in bello (e.g. the detainee abuse in Abu Ghraib) and the application of human rights law (e.g. the Al Jedda case before the European Court of Human Rights). As a professor at our institutions, Terry Gill has published important, and often-cited articles on all of the aforementioned issues. The above developments, also produced new – or a return of old – military strategies, such as counterinsurgency operations, which generate thorny legal questions to be answered by commanding officers supported by legal advisors.

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Terry’s research, and the Ph.D. research he supervised, gained much from the combination of the knowledge of military operations in practice and of the realistic legal frameworks applicable to them. The fact that many of his Ph.D. researchers, working in a variety of places, ranging from the military legal services to international criminal tribunals and academia, have now joined the effort to pay tribute to Terry, is just one example of the legal niche he developed: the International Law of Military Operations, or ILMO in short. During his farewell lecture in Breda in September 2019, Terry confessed that he did not ‘by any stretch of the imagination claim to be the inventor’ of this niche. Be that as it may, he rightfully recalled that ‘my colleagues in the NLDA (and elsewhere) and I can claim some credit for developing the concept of ILMO as a distinct sub-discipline within public international law and disseminating it, both within the armed forces, to policy makers and to a broader public.’ The combined effect it produced is to be found in—what may be seen as his lifework—the Handbook on the Law of International Military Operations, edited together with his long-time friend Dr. Dieter Fleck, and produced with the joint effort of his academic and personal friends from academia and armed forces around the world. Terry brought together his Ph.D. researchers with those who had already successfully defended their research, as well as practitioners and academics from other institutions, in his well-known research group; first called LACPO (Law of Armed Conflict and Peace Operations) when it was operating within the Netherlands, but finally as an international research network spanning more than twenty academic and military institutions around the world, labelled LACMO (Law of Armed Conflict and Military Operations). Apart from research, a final trait of Terry’s legacy deserves to be mentioned: his passionate and original style of teaching. Terry is a truly talented lecturer. After assuming his chair in 2001, he rapidly set off to supplement and complement the work of his predecessor, Professor Guido Coolen. As he took over a chair with a national law focus, Terry, himself a specialist in international law, not only became a specialist in Dutch military law matters, but also added new courses and new lecturers (and vice versa) to the chair of Military Law. Together, they set up a specialised program for military law. This program became an integrated part of the unique master in Military Law until 2018 and still serves as the core of the academic and practical training for all new military legal advisors of the Netherlands armed forces.

Foreword

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With the privilege of having been on the front row of these achievements, it is with great pride and honour that we open this book that serves to celebrate his career and achievements. We want to thank Terry Gill wholeheartedly for all his contributions. and wish him and his wife Annelies all the best. April 2020

Brigadier-General Paul A. L. Ducheine Professor at the University of Amsterdam and the Netherlands Defence Academy Breda, The Netherlands Professor André Nollkaemper Dean of the Law Faculty University of Amsterdam Amsterdam, The Netherlands Professor Patrick Oonincx Dean of the Faculty of Military Sciences Netherlands Defence Academy Breda, The Netherlands

Contents

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Introduction: Terry Gill and the Relevance of the Various Notions of Control in Military Operations Under Public International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rogier Bartels, Jeroen C. van den Boogaard, Paul A. L. Ducheine, Eric Pouw, and Joop Voetelink

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Ensuring Military Legal Expertise Within the Netherlands Armed Forces: A Brief History of the Chair for Military Law . . . . Gert Walgemoed

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ILMO: The ‘Flux Capacitor’ of Contemporary Military Operations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Terry D. Gill

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Legal Challenges in Extraterritorial Military Operations . . . . . . . . Dieter Fleck

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Decision-Making and Parliamentary Control for International Military (Cyber) Operations by the Netherlands Armed Forces . . . Paul A. L. Ducheine, Kraesten L. Arnold, and Peter B. M. J. Pijpers

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Control and the Right to Self-Defence Against Non-State Actors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Kinga Tibori-Szabó

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Relevance of Control in Status of Forces Agreements . . . . . . . . . . . 107 Joop Voetelink and Bas van Hoek

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Effective Command and Control in United Nations Peace Operations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133 Ben Klappe, Jan Peter Spijk, and Alfons Vanheusden

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In Control: Harnessing Aerial Destructive Force . . . . . . . . . . . . . . 161 Frans P. B. Osinga and Mark P. Roorda

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Contents

10 Some Thoughts on the Role of the Notion of ‘Control’ in ‘Choosing’ the Paradigm of Hostilities or Law Enforcement as the Governing Framework for the Use of Force in Military Operations: Is There Any? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195 Eric Pouw 11 Controlling Migrants at Sea During Armed Conflict . . . . . . . . . . . 219 Martin D. Fink and Wolff Heintschel von Heinegg 12 The Impact of Control Over Armed Forces on Conflict Classification in War Crimes Cases . . . . . . . . . . . . . . . . . . . . . . . . 235 Rogier Bartels 13 The Requirement of Effective Control in the Law of Occupation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263 Marten Zwanenburg 14 The Shaping of the Notion of ‘Control’ in the Law on International Responsibility by Certain International and Regional Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281 Gentian Zyberi 15 Responsibility of Organized Armed Groups Controlling Territory: Attributing Conduct to ISIS . . . . . . . . . . . . . . . . . . . . . . 307 Katharine Fortin and Jann Kleffner 16 The Control Requirement of Command Responsibility: New Insights and Lingering Questions Offered by the Bemba Appeals Chamber Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 329 Harmen van der Wilt and Maria Nybondas 17 The Importance of Arms Control Law . . . . . . . . . . . . . . . . . . . . . . 349 Eric Myjer 18 Control in Weapons Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 369 William Boothby 19 Control Through ROE in Military Operations: Autonomous Weapons and Cyber Operations as Reasons to Change the Classic ROE Concept? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 393 J. F. R. Boddens Hosang 20 ‘Autonomous’ Weapons and Human Control . . . . . . . . . . . . . . . . . 421 Jeroen C. van den Boogaard and Mark P. Roorda 21 State Control Over the Use of Autonomous Weapon Systems: Risk Management and State Responsibility . . . . . . . . . . . . . . . . . . 439 Robin Geiß Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 451

Editors and Contributors

About the Editors Rogier Bartels is a Legal Officer in Chambers (Trial Division) at the International Criminal Court, a post-doctoral research fellow at the Federmann Cyber Security Center of the Hebrew University of Jerusalem, and a part-time judge in the criminal law department of the District Court of Amsterdam. Terry Gill is one of the supervisors of his recently submitted Ph.D. thesis on the interplay between international humanitarian law and international criminal law, at the University of Amsterdam. Dr. Jeroen C. van den Boogaard is an assistant professor in military law at the Netherlands Defence Academy and a lecturer and researcher at the University of Amsterdam. In 2019, he defended his Ph.D. thesis entitled ‘Proportionality in International Humanitarian Law - Principle, Rule and Practice’, which was supervised by Prof. Terry Gill. Together with Terry Gill, he teaches the course on International Humanitarian Law at the University of Amsterdam. Brigadier-General Prof. Dr. Paul A. L. Ducheine, M.Sc., LL.M. is a Professor for Cyber Operations and Cyber Security at the Netherlands Defence Academy and a Professor of the Law of Military Cyber Operations at the University of Amsterdam. He obtained his Ph.D., supervised by Prof. Terry Gill, on the legal framework for military counter-terrorism operations in 2008, from the University of Amsterdam. Lieutenant-Colonel Dr. Eric Pouw, LL.M. is Legal Advisor in the Netherlands Army Legal Service. In 2013, he defended his Ph.D. thesis, supervised by Terry Gill, entitled ‘International Human Rights Law and the Law of Armed Conflict in the Context of Counterinsurgency—With a Particular Focus on Targeting and Operational Detention’, at the University of Amsterdam.

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Colonel (Ret.) Dr. Joop Voetelink is Associate Professor of Law at the Netherlands Defence Academy. He defended his Ph.D. thesis, entitled ‘Status of Forces: Criminal Jurisdiction over Military Personnel Abroad’, supervised by Prof. Terry Gill, at the University of Amsterdam in 2012.

Contributors Kraesten L. Arnold Netherlands Defence Academy, Breda, The Netherlands J. F. R. Boddens Hosang Netherlands Ministry of Defence, The Hague, The Netherlands William Boothby Australian National University, Canberra, Australia Martin D. Fink University of Amsterdam, Amsterdam, The Netherlands Dieter Fleck Cologne, Germany Katharine Fortin Netherlands Institute of Human Rights, Utrecht University, Utrecht, The Netherlands Robin Geiß University of Glasgow, Glasgow, UK; Geneva Academy of International Humanitarian Law and Human Rights, Geneva, Switzerland Terry D. Gill University of Amsterdam, Amsterdam, The Netherlands Wolff Heintschel von Heinegg Europa-Universität, Viadrina, Frankfurt (Oder), Germany Ben Klappe Brussels, Belgium Jann Kleffner Swedish Defence University, Stockholm, Sweden Eric Myjer University of Utrecht, Utrecht, The Netherlands Maria Nybondas Eurojust, The Hague, The Netherlands Frans P. B. Osinga Netherlands Defence Academy, Breda, The Netherlands Peter B. M. J. Pijpers Netherlands Defence Academy, Breda, The Netherlands Mark P. Roorda Netherlands Public Prosecution Service, Arnhem, The Netherlands Jan Peter Spijk Brussels, Belgium Kinga Tibori-Szabó University of Amsterdam, Amsterdam, The Netherlands

Editors and Contributors

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Bas van Hoek Ministry of Defence, The Hague, The Netherlands Harmen van der Wilt University of Amsterdam, Amsterdam, The Netherlands Alfons Vanheusden Brussels, Belgium Gert Walgemoed Zeist, The Netherlands Marten Zwanenburg Netherlands Defence Academy, Breda, The Netherlands; Ministry of Foreign Affairs, The Hague, The Netherlands Gentian Zyberi Norwegian Centre for Human Rights, University of Oslo, Oslo, Norway

Chapter 1

Introduction: Terry Gill and the Relevance of the Various Notions of Control in Military Operations Under Public International Law Rogier Bartels, Jeroen C. van den Boogaard, Paul A. L. Ducheine, Eric Pouw, and Joop Voetelink Contents 1.1 Introduction........................................................................................................................ 1.2 General Theme .................................................................................................................. 1.3 Terry Gill’s Life and Career ............................................................................................. 1.4 Structure............................................................................................................................. 1.5 Dedication.......................................................................................................................... References ..................................................................................................................................

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R. Bartels (&) International Criminal Court, The Hague, The Netherlands Faculty of Law, University of Amsterdam, Amsterdam, The Netherlands e-mail: [email protected] J. C. van den Boogaard Faculty of Law, University of Amsterdam, Amsterdam, The Netherlands e-mail: [email protected] P. A. L. Ducheine Faculty of Law, University of Amsterdam, Amsterdam, The Netherlands e-mail: [email protected] E. Pouw The Hague, The Netherlands J. Voetelink e-mail: [email protected] J. C. van den Boogaard
P. A. L. Ducheine
J. Voetelink Netherlands Defence Academy, Breda, The Netherlands e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2021 R. Bartels et al. (eds.), Military Operations and the Notion of Control Under International Law, https://doi.org/10.1007/978-94-6265-395-5_1

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Introduction

The present volume serves to commemorate the end of an era. With his retirement from the Chair of Military Law at the Law Faculty of the University of Amsterdam at the end of the 2019–2020 academic year, Professor Dr. Terry Gill, who used his chair to study, promote and disseminate military law in the Netherlands, as well as internationally, makes the transition to emeritus professor. This liber amicorum honours professor Gill’s career, and his contribution to international law, specifically to law on the use of force, international humanitarian law, and military law. Over the past years, professor Gill supervised dozens of Ph.D. candidates. The editors of this volume all had the privilege to conduct their Ph.D. research under his supervision. Although the subjects of these Ph.D. projects were different, all of them could be captured under the chapeau of the so-called international law of military operations. Indeed, as Terry Gill recently noted in his farewell lecture at the Netherlands Defence Academy (NLDA) ‘it is no exaggeration to say that international law plays a significant and often even a crucial role, alongside other considerations, in determining under which circumstances military forces may operate abroad and the modalities of applying force and exercising authority over persons or territory’.1 As set out Terry Gill and Dieter Fleck’s Handbook on the International Law of Military Operations, the developing field of international law of military operations (ILMO) comprises various existing branches of international law, which ‘interact with each other and influence and regulate and shape the way in which contemporary military operations are planned and conducted’.2 In the present volume, 29 of Terry’s friends and colleagues, amongst which 14 of his former and current Ph.D. candidates, in 19 chapters discuss various international legal issues related to military operations. Other than Chap. 2, in which the history of Chair of Military Law, and military law in the Netherlands generally, up to and including the time Terry was the chair holder, is discussed, and Chaps. 3 and 4, in which the international law of military operations is introduced, all the chapters in this volume address a notion of control under public international law relevant to military operations. In the present chapter, we first explain the general theme of the book, followed by a description of Terry Gill’s impressive career and contributions to the field of international law, both internationally and domestically.3 We then provide an overview of the book’s structure, by introducing the perspective of the authors on the notion of control and briefly summarising their findings.

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See Chap. 3, in which the text of Terry Gill’s farewell lecture is reprinted. See Gill and Fleck 2015, p. 5. See further Chap. 4, in which Dieter Fleck introduces this branch of international law. 3 A list of Terry’s published scholarship is included as the appendix at the end of this volume. 2

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General Theme

The idea for a liber amicorum was hatched during the editors’ so-called ‘Orloff’ and later ‘Rechtbank’ sessions, named after the Utrecht-based cafés where our research meetings would take place, coincidentally only a stone’s throw from Terry’s house. When first contemplating a book to honour Terry’s achievements and career, we agreed that it was important that this liber amicorum, besides bringing together Terry’s friends and colleagues, would also further the scholarship in the field that Terry is passionate about. We therefore opted for an overall theme for the book, and asked the contributors to write a chapter on an aspect of ILMO that related to a central theme. Some of the authors, at our request, teamed up for their contributions, to ensure a manageable book, both in terms of size and number of chapters. It is important to mention here that many other of Terry’s colleagues and friends expressed their interest in contributing to this book, but due to work commitments were unable to do so within the required timeframe that would allow the book to be available in hardcopy at the seminar organised to celebrate Terry’s transition to emeritus professor. When discussing various aspects of ILMO and considering possible central themes, we observed that forms of (effective) control play an important role in military operations. Examples include the requirement of effective control for the existence of occupation, the level of control that triggers command responsibility, internationalisation of an otherwise non-international armed conflict as a result of overall (or effective) control over armed groups, and the effective control test for State responsibility over the actions of armed forces. While the various forms of control may individually have been considered in academic writing, their interplay and relation to the law of military operations has remained mostly unexplored, or at least has not received attention in the comprehensive manner that was foreseen for the present volume. The idea was therefore that bringing together scholarship on the different forms of control in military operations would clarify what level of control over or by armed forces is required for a certain legal outcome. In addition to being an interesting theme, it is worth noting that the topic of Terry’s Ph.D. research and subsequent book was the Case concerning the Military and Paramilitary Activities in and against Nicaragua: The Republic of Nicaragua v The United States of America before the International Court of Justice (ICJ), also known as the Nicaragua case. Although Terry’s research focused on the litigation strategies of the parties, this case has become known amongst international lawyers for finding that the (mere) provision of arms does not constitute an armed attack under jus ad bellum, and even more so for introducing the effective control test4 in order to determine whether the United States exercised such a degree of control as to justify treating the contras as acting on the United States’ behalf. The Court had to consider ‘whether or not the relationship of the contras to the United States Government was so much one of dependence on the one side and control on the 4

ICJ, Nicaragua case, Judgment on the Merits of 27 June 1986 (Nicaragua Judgment), para 115.

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other side that it would be right to equate the contras, for legal purposes, with an organ of the United States Government, or as acting on behalf of that Government’.5 As Terry wrote in his book, this is ‘the crucial question’.6 To honour Terry’s contribution to the international law related to military operations, we therefore selected the ‘notion of control related to military operations’ as the theme of the book. In the next section, we first give an overview of Terry’s academic career and his scholarship, and afterwards, in Sect. 1.4, we set out the structure of this book by providing an outline of the various ways the contributors have discussed the book’s theme.

1.3

Terry Gill’s Life and Career

Terry D. Gill was born in El Paso, Texas, in 1952. Like his career, his schooling was international in nature. He attended the American Community School in Beirut, Lebanon from 1967 to 1971, and during his last year of high school he also studied history at the American University in Beirut. Afterwards, Terry returned to the United States and fulfilled his military service in the US Navy. He clearly felt at ease on the water, as he subsequently worked as a boat hand on a two-crew fishing boat in Alaska, to earn money for the voyage to South Africa, where he stayed for a while. From there, he moved to the Netherlands. After working in a factory, he took a course to learn Dutch, and was soon proficient enough to be employed by the City of Utrecht to work in the rental subsidy department. In 1974, shortly after the Carnation Revolution, Terry took a ‘sabbatical’ and went to Portugal to stay and work in an agricultural commune. Back in the Netherlands, he decided to really settle in the lowlands. He sat for his State Exam, to be allowed to study at a Dutch university. He briefly studied Politics at the University of Amsterdam, but soon found his calling: in September 1979 he started his law studies at Utrecht University. During his first year in law school, he met Annelies, who would become his wife. Following his graduation from Utrecht University in 1984, Terry became a lecturer at the same university. While teaching, he wrote a doctoral dissertation, supervised by Professor Leo Bouchez and Ambassador Shabtai Rosenne, on litigation strategy at the ICJ, with a special focus on the Nicaragua case. As a testament to Terry’s exceptional academic qualities, his Ph.D. thesis, defended in 1989, received the cum laude distinction. That same year, his dissertation was converted into a book (Litigation Strategy at the International Court: A Case Study of the Nicaragua v. United States Dispute), published by Martinus Nijhoff. As firstly assistant and later associate professor of public international law, Terry continued to teach at his alma mater until 2013. At the start of the 2001–2002

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Nicaragua Judgment, para 109. Gill 1989, p. 252, referring to the Nicaragua Judgment, para 109.

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academic year, mere days before an event that would set the scene for international law for the next several years, Terry became a professor of military law at the University of Amsterdam—the position he now retires from. From 2005 onwards, he combined this position with that of professor of military law at the NLDA, where he headed the Section of Military Law of the Faculty of Military Sciences. During his positions at Dutch universities, he was in the period of 1991–2004, inter alia, a Fulbright Visiting Scholar at Columbia University and a visiting fellow at Cambridge University, the International Institute of Humanitarian Law in San Remo, the University of Coimbra, and the University of Granada. This introduction is not the place for the complete overview of Terry’s written scholarship, but some of his key publications deserve to be highlighted, as they are —in our view—indicative for Terry’s contribution to academia and practice. In the early stage of his academic career, Terry focused on the ICJ, and published his monograph on litigation strategy before the ICJ and several articles dealing with this institution. Additionally, in 2003, although by that time he had moved away from general public international law, he updated Shabtai Rosenne’s famous handbook on the ICJ. From the late 1990s onwards, Terry started researching and publishing on jus ad bellum. The terrorist attacks of 11 September 2001, the subsequent attack on Afghanistan and related matters, such as Guantanamo Bay, and thereafter the Iraq War and the subsequent occupation, provided Terry ample opportunity to address contemporary examples in his publications on the topics he by then had become an expert in, namely the law on the use of force, international humanitarian law, and other legal aspects of military operations. As an expert in these branches of international law, Terry was regularly asked to take part in so-called expert processes to clarify aspects of these legal fields. Noteworthy is his participation in the International Committee of the Red Cross’s expert process on the concept of direct participation in hostilities,7 and in both the Tallinn Manuals on international law aspects of cyber operations, prepared by an international group of experts at the invitation of the NATO Cooperative Cyber Defence Centre of Excellence.8 As the chairman of the International Law Association’s Study Group on the Conduct of Hostilities in the twenty-first Century, he was the lead editor of the report The Conduct of Hostilities and International Humanitarian Law: Challenges of twentyfirst Century Warfare of 2016. More recently, at the invitation of International Society for Military Law and the Law of War, he chaired (together with three of the contributors to the present volume) an international expert process that led to the Leuven Manual on the International Law Applicable to Peace Operations, published by Cambridge University Press in 2017.

7 This resulted in the ICRC’s Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (2010), as well as a rich academic debate on the guidance. 8 Schmitt 2013, 2017.

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Notwithstanding his many important publications on other matters, the highlight of Terry’s scholarship must be his collaboration with Dieter Fleck that resulted in the first and thereafter significantly expanded second edition of the handbook by Gill and Fleck.9 In the Foreword to this volume, Terry’s contribution to the academic programmes of the University of Amsterdam and NLDA are already set out. In addition, it is worth recalling that at the University of Amsterdam, Terry is the director of the Research Program on the Law of Armed Conflict and Peace Operations at the Amsterdam Centre for International Law and of the Netherlands Research Forum on the Law of Armed Conflict and Peace Operations. An important characteristic of his research programmes is that most of the participants are practitioners who engage in academic research in addition to their positions as military lawyers, international criminal lawyers, or government legal advisers. Terry recently took his Dutch research programme to another level, by setting up “The Law of Armed Conflict & Military Operations (LACMO) International Research Network”. This consortium brings together more than 20 research centres and research groups within universities and military staff colleges and academies in Europe, North America, Asia and the Pacific. He is further Editor-in-Chief of the Yearbook of International Humanitarian Law and sits on the editorial board of the Journal of Conflict and Security Law and the Journal of International Peacekeeping. In 2019, Terry was awarded the royal decoration of ‘Officer of the Order of Orange Nassau’ in recognition of his contributions to legal science, the armed forces and Dutch society.

1.4

Structure

The introductory first part of this volume starts with a foreword by Paul Ducheine and the deans of the two academic institutions where Terry has worked in the last stage of his ‘active duty’—and still continues to teach at and be involved with— namely André Nollkaemper on behalf of the Law Faculty of the University of Amsterdam and Patrick Oonincx on behalf of the Faculty of Military Sciences of the NLDA. Following the present introduction, the substantive part of the book starts with a contribution by Gert Walgemoed about the Chair of Military Law at the University of Amsterdam. He sets out the history of this Chair, describing, inter alia, the ties between the armed forces and the academic world with respect to the development of legal knowledge within the Dutch armed forces before 1970, and how military legal expertise developed from 1970 onwards. Walgemoed provides an account of the manner in which various chair holders, up to and including Terry Gill, gave

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focus and flavour to their position, thereby affecting military legal expertise in the Netherlands throughout the years. In the next two chapters, the concept of ILMO is explained by the two scholars best suited to do so. Chapter 3 is a re-print of Terry Gill’s 2019 farewell lecture at the NLDA, entitled ‘International Law of Military Operations: The “Flux Capacitor” of Contemporary Military Operations’. Thereafter, Dieter Fleck, co-editor with Terry Gill of the Handbook on the International Law of Military Operations, introduces ILMO as a branch of public international law and provides an introductory overview of the legal challenges in extraterritorial military operations. Fleck further considers some typical principles and rules that have become part of ILMO, and highlights the need for tailor-made military solutions which often have to be pursued without possibilities for taking more systematic approaches. Following the introductory part of the book, the next 17 chapters offer a multitude of approaches to the central theme of this book, looking at different branches of international law relevant to military operations. Paul Ducheine, Kraesten Arnold and Peter Pijpers in Chap. 5 first focus on parliamentary decision-making and control in cases of deployments and engagements with military cyber capabilities. It begins with a reiteration of normal control mechanisms used by parliament. Subsequently these control mechanisms are analysed in light of international military cyber operations. Research into the legal framework—legal bases and legal regimes—applicable to cyber operations, led to the establishment of the chairs dedicated to cyber operations at the University of Amsterdam and the Defence Academy. Kinga Tibori-Szabó in Chap. 6, focusing on one of Terry’s core areas of expertise, namely law on the use of force or jus ad bellum, then analyses the notion of control as regards the right to self-defence against non-State actors. She examines the concept of control in the context of self-defence against armed attacks carried out by armed groups. She delineates the concept of attribution in the context of state responsibility, the relevance of control within that framework and the various ‘control tests’ formulated in this regard. In her contribution, she sets these notions against the reality in the international arena: the exercise of self-defence against armed attacks carried out by armed groups. She concludes that the concept of control is auxiliary, but extrinsic to the inherent essence of the right of self-defence. Self-defence is about an armed attack and the necessity of a proportionate defensive action. Nonetheless, the right of self-defence is not exercised in a vacuum and the notions attribution, control, complicity, unwillingness, inability and consent present themselves as auxiliaries in specific circumstances where other legal provisions have to be applied to the overall lawfulness of the action. Attribution and control belong to the legal framework of state responsibility and they will be applied in the context of self-defence whenever the armed attack is susceptible to be attributed to a state. Likewise, when determining the existence of feasible alternatives to self-defence, the territorial state’s consent to the intervention or willingness to assist will inform the parameters of the defensive action.

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The next two contributions address aspects of the law of military operations that concerns situations outside armed conflict. Joop Voetelink and Bas van Hoek in Chap. 7 discuss control over deployed armed forces as set out in Status of Forces Agreements. The authors key in on the criminal jurisdiction provisions in these agreements and their customary basis with a particular focus on the exercise of enforcement jurisdiction. They argue that the status of deployed military personnel is generally defined in terms of the exercise of jurisdiction because of the need of troop-sending States to keep strict control over the deployed forces. The sending States’ powers to exercise enforcement jurisdiction over their deployed forces, which includes conduct of criminal and other investigations, is limited and strictly defined in the relevant Status of Forces Agreement as an analysis of the NATO Status of Forces Agreement shows. In Chap. 8 Ben Klappe, Jan Peter Spijk and Alfons Vanheusden deal with effective command and control in United Nations (UN) peace operations. They do so from four distinct perspectives. First, the authors discuss incidents that occurred in Bukavu, Democratic Republic of Congo (2004) and Juba, South Sudan (2016). Second, Klappe, Spijk and Vanheusden analyse the recently revised UN policy on Authority, Command and Control in United Nations Peacekeeping Operations, and highlight that having such a clear policy framework in place is not enough if it is not accompanied by readiness and willingness of central and local UN leadership to act swiftly and decisively in case of crisis situations. Section 8.3 of Chap. 8 uses the 2019 Netherlands’ Supreme Court decision in the case of Mothers of Srebrenica Association et al. v The Netherlands (2019) as a case study to discuss international responsibility for wrongful acts committed by a UN peacekeeping unit. The authors explain that the Supreme Court found the Dutch State to have been partially responsible and thus liable; it followed the UN doctrine that a peacekeeping unit should in principle be considered an ‘organ’ of the UN. In the final section of their contribution, Sect. 8.6, Klappe, Spijk and Vanheusden discuss the function and tasks of the UN Office of the Director of Peacekeeping Strategic Partnerships (OPSP), and conclude that this office, since its establishment in 2013, has already contributed significantly to UN mission mandate implementation. The following three chapters then discuss aspects of military operations during armed conflicts, from the air, on land, and at sea, respectively. First, Frans Osinga and Mark Roorda in Chap. 9 explore the evolution of the targeting process that underlies the offensive employment of airpower and its unprecedented ability to control military force through the prism of the experiences of air warfare. The focus is on air warfare, as the current state of the art of targeting derives from a long evolutionary process that is intertwined with the history of air warfare. The authors therefore consider that awareness of this evolution shows the challenges and trends that will aid the understanding of current targeting practices, as well as its complexity and dilemmas. In their analysis of a large number of military operations in which air forces played an important role, such as Operation Allied Force and Operation Iraqi Freedom, Osinga and Roorda identify key factors that have shaped the thoughts on, and organisation of, targeting and have thereby shaped the manner in which control over the use of force is exerted.

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Eric Pouw in Chap. 10 sets out ‘some thoughts’ on the role of the notion of ‘control’ in making the choice to apply the paradigm of hostilities or paradigm of law enforcement as the governing framework for using force in military operations that take place during an ongoing armed conflict. Concluding that, in general, ‘control’ is an element characterising and distinguishing both paradigms, Pouw considers that, in addition to ‘effective control’ over territory or persons, looking at the (potential) level of control in the situation at hand (‘situational control’) would function as an essential ingredient for the application of a common-sense approach in determining the relationship between IHL and IHRL with respect to the use of force, as advocated by Terry. In Chap. 11, Martin Fink and Wolff Heintschel von Heinegg move the discussion to the high seas, as they address the legal challenges that overseas migrant flows may present for naval forces in terms of controlling a maritime operational area during armed conflict. They explain why armed conflict, refugees, migrants and displaced persons are to be viewed as separate issues when viewed from a legal perspective, even though they appear to be inherently interconnected subjects. The authors consider what legal obligations for naval forces exist to deal with or control migrants at sea during armed conflict and control other vessels aiming to assist migrant vessels. They reflect on this question from three perspectives. First, they analyse the obligations of a belligerent Party under the laws of armed conflict towards migrants in a situation of an international armed conflict and conclude that this legal framework does not include any rules offering special protection to migrants at sea, as they do not belong to any of the categories of protected persons, and the law does not oblige belligerents to transport them to safe places. The second perspective considers whether other international legal frameworks applicable to the sea during armed conflict offer any guidance, and conclude that they are only of limited relevance in this context. Then Fink and Heintschel von Heinegg discuss the obligations that may arise from a UN mandate. The latter is done in the context of the case of the 2011 UN authorised NATO operations related to Libya. The next two chapters address how various notions of control may impact on the material scope of application of international humanitarian law. First, in Chap. 12, Rogier Bartels analyses the two different notions of control over armed forces that have been developed in the international case law (i.e., ‘effective control’, as set out by the ICJ in the Nicaragua case, and the lower standard of ‘overall control’, as set out by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) in the Tadić case), and how these two standards of control impact on the classification of a conflict as either an international or a non-international armed conflict. He highlights the consequence of the Special Court for Sierra Leone’s practice of not assessing the Liberian level of control over armed groups fighting the Sierra Leonean government for the purpose of conflict classification. Bartels further discusses the practice of the International Criminal Court (ICC) as regards conflict classification, how the ICC has adopted the overall control standard without any explanation, as well as the consequential impact on the rights of the accused. Finally, he discusses how the ICTY has recognised that a State can occupy (part of) the territory of another State through an armed group

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over which it exercises overall control, and a recent development in the ICC’s case law, namely that effective control over (part of) a territory by an armed group may fulfil the intensity requirement for the existence of a non-international armed conflict, even in the absence of any fighting. In Chap. 13, Marten Zwanenburg focuses on the impact of control on another form of armed conflict, namely occupation, and the related classification questions. Zwanenburg deals with the role and the meaning of the notion of effective control in determining whether an occupation, as a species of international armed conflict, exists and whether, as a consequence, the law of occupation applies. He notes that the use of the word ‘effective’ in the expression ‘effective control’ can be somewhat misleading. Zwanenburg also addresses the notion of effective control in relation to the phenomenon of occupation by proxy, namely the occupation of territory by an entity that is not part of a State, usually an organised armed group, acting on behalf of a State. In this context, effective control is one of two different tests put forward in case law and literature for the purpose of determining whether the connection between the organized armed group and the State is close enough to conclude that the former is acting for the latter. If that is the case and the organized group exercises effective control over territory, it can be said that it is occupying the territory as a proxy of the State. Zwanenburg focuses particularly on the case law of international courts and tribunals, specifically of the ICTY and the ICJ, as they seem to apply different standards and the role that State practice could play in establishing what is to be considered as lex lata. The next three contributions address the consequences of exercising control over armed forces, territory, or persons with respect to responsibility. They, respectively, deal with state responsibility, responsibility of a non-State actor (i.e. an organised armed group), or an individual pursuant to individual criminal responsibility under international criminal law. Gentian Zyberi, in the first of these three chapters, Chap. 14, explains that the notion of control plays an important role within the context of the law on international responsibility, in terms of both ascertaining jurisdiction and attribution of responsibility for internationally wrongful acts, including for mass atrocity crimes committed in armed conflict situations. Discussing several landmark decisions issued by selected key international and regional courts (namely, the ICJ, the ICTY and the International Criminal Tribunal for Rwanda, the ICC, and the European Court of Human Rights), he considers how and to what extent the case law of the aforementioned courts and tribunals has shaped the notion of control in the law on international responsibility for States and individuals in the context of an armed conflict. His analysis helps to clarify the standards of conduct and related legal obligations incumbent upon those involved in an armed conflict, especially civilian and military leaders, non-State armed groups, and State organs involved in planning and executing military operations. In Chap. 15, Katharine Fortin and Jann Kleffner address the responsibility of organised armed groups who control territory. As they explain, in stark contrast to the situation for States and certain non-State actors, such as international organisations and individuals, there is no coherent international legal framework governing the responsibility of organised armed groups that are not affiliated to a State,

1 Introduction

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but are parties to armed conflicts. Fortin and Kleffner’s chapter explores the possibility of developing such a framework for international law. They do so by focusing first on formulating a set of rules on the attribution of conduct. Second, they use the case of the Islamic State to explore how some core rules of attribution could be applied to a specific type of organised armed group, namely those that exercise territorial control. The authors conclude that the development of these rules would be instrumental in building the legitimacy of accountability practices, and fill an important void that has arisen between a growing set of primary rules that are binding upon armed groups on the one hand, and the lack of rules determining how conduct in breach of such rules can be attributed on the other. Their case study of the Islamic State demonstrates that at least some of the rules on attribution from the articles on State responsibility may be transposed when an armed group functions as a quasi-state. Developing a legal framework of responsibility of organised armed groups, including the regulation of issues such as reparations, damages, claims, and countermeasures, is a pivotal step in building a system based on the rule of the law. Harmen van der Wilt and Maria Nybondas in Chap. 16 discuss the relationship between two elements of the doctrine of command responsibility, namely effective control and the material ability to punish or repress crimes by subordinates. They do so by focusing on the recent appeal judgment by the Appeals Chamber of the ICC in which Mr Bemba, who was the president and commander-in-chief of an armed group from the Democratic Republic of Congo, was acquitted after initially having been convicted on the basis of command responsibility for war crimes and crimes against humanity. Van der Wilt and Nybondas show that distinct perceptions of the nature of command responsibility inevitably produce different interpretations of the elements of the doctrine of command responsibility. Starting from the premise that command responsibility is predicated on endangerment liability, they analyse whether the mere fact that subordinates have engaged in war crimes serves as a rebuttable presumption that the commander has failed to exercise the necessary control. The authors conclude that the presumption can indeed be rebutted: first, by the finding that the commander has taken adequate measures to repress or punish the perpetrators; second, for the purposes of a conviction, it must be proven that the commander can be blamed for his dereliction of duty. The next series of chapters (Chaps. 17–21) all address means and methods of warfare, and especially the impact of modern and future technology, such as cyber operations and autonomous weapons. In Chap. 17 Eric Myjer explains the importance of arms control law. He describes the development of arms control law and how it can be defined. As a field of law, it shows common characteristics of arms control arrangements, such as security and the necessity of the supervision of compliance with commitments. As an example, Myjer examines supervision mechanisms in both the Chemical Weapons Convention (CWC) and the Intermediate-Range Nuclear Forces Treaty (INF Treaty) and explains how a number of crucial arms control agreements are currently threatened by political expediency. The use of chemical weapons in Syria, for example both by the Syrian state (a CWC State Party) as well as by non-state groups, in spite of the ban under the CWC, shows that Member States need to be constantly alert to prevent the

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re-emergence of chemical weapons in spite of the CWC being the most comprehensive arms control treaty to date. Myjer argues that despite breaches of arms control treaties (such as the Chemical Weapons Convention) even when there is a high degree of compliance control, or withdrawals from such treaties (as happened to the INF Treaty), the study of arms control law and its further development via academic research remains important to limit the risks inherent in the development and possession of weapons and weapons systems and rapidly advancing technological developments. In Chap. 18, William Boothby analyses the role that notions of control play in the field of weapons law and explains why the meaning of control in relation to weapons law must inevitably depend on the precise context. He does so by first exploring what arms control treaties actually are and where the notion of control features in the treaties. Next, he focusses on the loss of control of a weapon to determine where responsibility lies for actions that take place after the operator of a weapon has lost control of it, for example as a result of a hacking operation. Boothby notes that much will depend on the circumstances giving rise to that loss of control and on the degree to which it can properly be said that another person has taken over control. Lastly, he explores the notion of ‘meaningful human control’ as a possible requirement that weapon systems must be subject to. In this context, he addresses questions such as whether control in this context has the same meaning as control in the context of arms control treaties, or what form of control is required for it to be meaningful. Boothby concludes that the meaning to be given to control when that word is used in the field of weapons law must inevitably depend on the precise context. In the next chapter, Chap. 19, J. F. R. Boddens Hosang focusses on Rules of Engagement (ROE). He explains that ROE are the classic tool for controlling the use of force, as well as other elements of military operations, in order to exercise control over the operation as a whole. By analysing two examples of modern and future weapon technology, namely the use of cyber means in military operations and autonomous weapons, Boddens Hosang shows that many elements of the classic ROE concept and system are based on traditional methods and means of warfare and thus may not be readily applicable to such emerging technologies. He concludes that while the classic ROE concept can meet these challenges, it may become necessary to customise the ROE system, and move away from operator-oriented ROE to more weapon-specific rules. In Chap. 20, Jeroen van den Boogaard and Mark Roorda describe how the focus of the debate on so-called autonomous weapon systems has from the outset been too narrow and misguided. Framing the issue merely as one of ‘autonomy’ results in a weapon-centric focus on control, and ignores that the effects of the military use of weapons may be controlled in many more ways than by restricting certain weapons or technologies. The authors therefore analyse the existence of an international legal requirement of control over (the effects of) the use weapons, they find a basis in IHL to argue that the question of control should not focus merely on the weapon system itself, but rather on the ability to maintain control over the effects of their use. In addition, the authors summarise the current debate with regard to the

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concept of meaningful human control and discuss how it offers possibilities for applying the legal requirement. This results in an argument for a broader approach to control and a suggestion for possible elements thereof. The legal requirement to exercise control over the effects of the use of force may be complied with by virtue of a range of (human) decisions preceding, during and even after employment of a particular weapon. Indeed, it is particularly the extent to which a military commander is able to predict and influence the effects of the use of weapons that indicates the level of control and that the human decision to deploy a system offers the ultimate failsafe in that respect. In the final chapter, Chap. 21, Robin Geiß considers to what extent State control over the development and subsequent use of autonomous weapon systems is required. He analyses the subjects of risk management and State responsibility in this regard. He starts from the premise that meaningful human control always needs to be ensured when deploying autonomous weapons systems and that anti-personnel autonomous weapons systems should be banned altogether. As the deployment of autonomous weapons systems brings with it unpredictable risks, Geiß proposes to use a review procedure similar to the one set out in Article 36 of Additional Protocol I of 1977. Moreover, steps that should be taken in order to minimise the remaining risks, such as conservative programming of autonomous weapon systems, should correspond to the specific context in which the weapon is to be used. He subsequently draws conclusions with respect to State responsibility in relation to remaining risks should they materialise. As States profit from the strategic gains enabled by this new technology, they would be responsible. Where an act can be attributed to a State, and an internationally wrongful act has been committed, State responsibility can be established.

1.5

Dedication

The contributors, composed of a group of Terry Gill’s former students, Ph.D. candidates, colleagues and friends, have each generously given their time and effort to address noteworthy aspects of the notion of control in the different branches brought together under the heading international law of military operations. Whereas this book by no means aims to paint a complete picture, we hope that the many interesting contributions in this liber amicorum will provide a worthy addition to the development of the field of law that Terry Gill has sought to develop as a distinct sub-discipline within public international law; and that this book thereby contributes to the international law of military operations, as well as its dissemination, within the armed forces, to policy makers and to a broader (academic) public. It is also our hope that this volume will inspire others, perhaps including Terry Gill himself as emeritus professor, to further the analysis of the subject of control in the context of international law of military operations.

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References Gill TD (1989) Litigation strategy at the International Court: A case study of the Nicaragua v. United States Dispute. Martinus Nijhoff Publishers Gill TD, Fleck D (2015) Handbook on the International Law of Military Operations. Oxford University Press Schmitt MN (ed) (2013) Tallinn Manual on the International Law Applicable to Cyber Warfare. Cambridge University Press Schmitt MN (ed) (2017) Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations. Cambridge University Press

Rogier Bartels is a Legal Officer in Chambers (Trial Division) at the International Criminal Court, a post-doctoral research fellow at the Federmann Cyber Security Center of the Hebrew University of Jerusalem, and a part-time judge in the criminal law department of the District Court of Amsterdam. Terry Gill is one of the supervisors of his recently submitted Ph.D. thesis on the interplay between international humanitarian law and international criminal law, at the University of Amsterdam. Dr. Jeroen C. van den Boogaard is an assistant professor in military law at the Netherlands Defence Academy and a lecturer and researcher at the University of Amsterdam. In 2019, he defended his Ph.D. thesis entitled ‘Proportionality in International Humanitarian Law - Principle, Rule and Practice’, which was supervised by Prof. Terry Gill. Together with Terry Gill, he teaches the course on International Humanitarian Law at the University of Amsterdam. Brigadier-General Prof. Dr. Paul Ducheine, M.Sc., LL.M. is a Professor for Cyber Operations and Cyber Security at the Netherlands Defence Academy and a Professor of the Law of Military Cyber Operations at the University of Amsterdam. He obtained his Ph.D., supervised by Prof. Terry Gill, on the legal framework for military counter terrorism operations in 2008, from the University of Amsterdam. Lieutenant-Colonel Dr. Eric Pouw, LL.M. is Legal Advisor in the Netherlands Army Legal Service. In 2013, he defended his Ph.D. thesis, supervised by Terry Gill, entitled ‘International Human Rights Law and the Law of Armed Conflict in the Context of Counterinsurgency - With a Particular Focus on Targeting and Operational Detention’, at the University of Amsterdam. Colonel (Ret.) Dr. Joop Voetelink is Associate Professor of Law at the Netherlands Defence Academy. He defended his Ph.D. thesis, entitled ‘Status of Forces: Criminal Jurisdiction over Military Personnel Abroad’, supervised by Prof. Terry Gill, at the University of Amsterdam in 2012.

Chapter 2

Ensuring Military Legal Expertise Within the Netherlands Armed Forces: A Brief History of the Chair for Military Law Gert Walgemoed

Contents 2.1 Introduction........................................................................................................................ 2.2 Before 1916: Opening the Door to Academic Legal Education for Military Officers............................................................................................................................... 2.3 From 1916 Onwards.......................................................................................................... 2.4 1945–1970: From Lectureship to Chair for Military Law ............................................... 2.5 1970–2020: Military Law Matures: From De Graaff to Gill ........................................... 2.5.1 H. H. A. de Graaff (1970–1972)............................................................................ 2.5.2 Th. W. van den Bosch Esq. (1972–1984) ............................................................. 2.5.3 G. L. Coolen (1984–2001)..................................................................................... 2.5.4 T. D. Gill (2001–2020) .......................................................................................... 2.6 Conclusion: A Strong Link Between the Armed Forces and Legal Academia............... References ..................................................................................................................................

16 16 20 21 23 24 25 26 28 29 30

Abstract This contribution to the Liber Amicorum for Terry Gill oversees the history of the Chair for Military Law at the University of Amsterdam. It describes the ties between the armed forces and the academic world with respect to the development of legal knowledge within the armed forces before 1970, and how military legal expertise developed from 1970 onwards. It explains in what manner the various chair holders gave focus and flavour to their position, thereby impacting on military legal expertise in the Netherlands throughout the years.




Keywords Military law academic teaching University of Amsterdam


legal advisers
military lawyers


G. Walgemoed (&) Zeist, The Netherlands e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2021 R. Bartels et al. (eds.), Military Operations and the Notion of Control Under International Law, https://doi.org/10.1007/978-94-6265-395-5_2

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2.1

G. Walgemoed

Introduction

In September 2020, Terry Gill will bid farewell to the University of Amsterdam. By that time, he will have held the Chair for Military Law for almost twenty years. Terry’s departure coincides with the 50th anniversary of the Chair, which was established in 1970. Both milestones offer solid arguments for taking a look at the past. In 2006, Terry wrote about the Chair in the essays collated for the farewell of Dr. Seerp Ybema as Director of Legal Affairs of the Ministry of Defence.1 In this contribution to the Liber Amicorum for Terry, I delve into the history of the Chair. How did the ties between the armed forces and the academic world with respect to the development of legal knowledge within the armed forces come into being before 1970; and how did military legal expertise develop from 1970 onwards? In Sect. 2.2, the era before 1916 will be addressed, which sees a first, albeit modest, formal link between the Dutch armed forces and legal academia. In Sect. 2.3, the period between 1916 and 1945 is highlighted; a period characterized by Dr. L.M. Rollin Couquerque. Section 2.4 deals with the timeframe between 1945 and 1970, when significant steps were taken towards the establishment of the Chair for Military Law in 1970. The years since 1970 will be set out in Sect. 2.5, in which particular attention will be devoted to the four professors that held the Chair: H. H. A. de Graaff, Th. W. van den Bosch Esq., G. L. Coolen and T. D. Gill. The focus will be on their academic accomplishments, but an attempt will also be made to portray their personalities.

2.2

Before 1916: Opening the Door to Academic Legal Education for Military Officers

The history of the legal education for officers of the armed forces starts in 1905. That year, a curriculum is established, by Koninklijke Besluit [Royal Decree], for Army and Navy officers to study constitutional and administrative law, civil law, public international law and the laws of war, and criminal law.2 The course ends with a final exam, administered by a commission appointed by the Minister of War and the Minister of the Navy. This course formalized the previously established ‘exameneischen bijzondere rechtskennis’ [‘examination requirements for extraordinary legal knowledge’] aimed at officers of the administration.3 Doing so makes sense in view of the developments that took place in the final decades of the nineteenth century in the area of—what today is commonly known as—‘military

1

Gill 2006. KB of 10 May 1905, no. 49. See also MRT I 1905/1906, pp. 3–5. 3 See, for example, MRT I 1905/1906, pp. 378–388. 2

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law’. 1888 saw the publication of the drafts for a new Military Criminal Code and the Law on Military Discipline, drawn up by H. A. van der Hoeven. Fifteen years later, the parliamentary process is finalized and the code and the law are published in the Staatsblad [State Gazette], the official government journal announcing laws, regulations of a general nature and royal decrees.4 It is a busy period with respect to constitutional law and state emergency law. In 1887, the Grondwet [the Dutch Constitution] was renewed, resulting in significant consequences for the execution of the military service and state emergency law. In addition, the impact of the Vestingwet [Law on Garrisons] of 1874—concerning the manner in which the country is to be defended—is debated for many years. In 1899, following the new Constitution, the Wet op de staat van oorlog en de staat van beleg [Law on the State of War and Martial Law] is adopted.5 Since the French-German war of 1870– 1871, important developments in the area of the laws of war are taking place, among which the 1899 Hague Peace Conference.6 One could also point at developments concerning the legal status of military personnel in the armed forces.7 Finally, there is the rise of domestic associations and unions, which will significantly affect the armed forces. Returning to the Royal Decree of 1905: it was never actually applied! In 1906, the editorial board of the Militair Rechtelijk Tijdschrift [Military Law Review of the Netherlands Armed Forces], hereinafter: MRT, informs its readers that the decree will be revoked.8 During the parliamentary debates on the budget of the Ministry of War for 1907, the new minister (H. P. Staal) indicates that the academic course as set out in the Royal Decree of 1905 should be simplified.9 This change of opinion is undoubtedly related to the outcome of the parliamentary elections held in the summer of 1905, and the subsequent taking of office by a minority government (‘Kabinet De Meester’), in August of the same year.10 In 1907, the decree of 1905 is indeed revoked,11 leaving the Navy no other choice than to carry on in the same old way. Worth mentioning in this respect is that in November 1905 G. A. van Hamel joins the commission to examine the aforementioned ‘bijzondere rechtskennis’— the course for ‘extraordinary legal knowledge’ for Navy officers.12 Van Hamel succeeds H. A. van der Hoeven, who drafted the new Military Criminal Code and the Law on Military Discipline. Since 1880, he has been a professor of criminal law

4

See Stb. 1903, p. 11 and 1903, p. 112. Stb. 1899, p. 128. 6 See, for example, Den Beer Poortugael 2009. 7 Krabbe 1883; and Handelingen Nederlandse Juristen-Vereniging 1879. 8 MRT II 1906/1907, p. 141. 9 Parliamentary Papers II 1906/1907, 2 VIII (Begroting Ministerie van Oorlog 1907), nr. 15 (Memorie van Antwoord), p. 45. 10 Klinkert 1992, pp. 343–345. 11 MRT III 1907/1908, pp. 130–131. 12 MRT III 1907/1908, pp. 241–246. 5

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at the Municipal University of Amsterdam. This appointment signifies a first connection between the academic world and the armed forces, albeit on a personal title. Noteworthy is also that prior to academia, Van Hamel was legal counsel to the Ministry of War from 1878 to 1880.13 In the winter of 1907–1908, the idea to establish a Chair for Military Law became the subject of discussion for the first time. In December 1907, in response to the parliamentary debates on the budget of the Ministry of the Interior for 1908 (a Ministry of Education does not yet exist in those days), the Department of the Navy submits to the Minister of the Interior (Van Heemskerk) a proposal for the establishment of a Chair for Military Law at one of the state universities. Previously, on 3 December 1907, the Minister of the Interior had pointed out that the establishment of extraordinary chairs dedicated to courses for non-students was a matter to be dealt with by institutions, foundations or unions rather than the State.14 In the summer of 1908, after the Minister of War became involved in the matter as well, the Navy again requests the Minister of the Interior to establish a Chair for Military Law. However, this is again to no avail: the Minister of the Interior stays with his previous decision.15 Meanwhile, the Navy command nonetheless decides to take things a step further by allowing officers to study law at one of the universities in the country.16 This results in a course of eighteen to twenty-four months, consisting of common and military criminal law, the foundations of public international law, the foundations of Dutch constitutional law and some general legal knowledge concerning concepts of private law. Following the aforementioned Van Hamel, A. A. H. Struycken— Professor of constitutional law and public international law at the Municipal University of Amsterdam since 1906—is also appointed as member of the examination commission.17 While the Navy moves forward, the Army does not; a fact that did not go unnoticed by the editorial board of the MRT. In one of its editorials, it deplores the fact that, thus far, the Army failed to make progress similar to the Navy’s. An exceptional highlight is the achievement of First Lieutenant J. S. Barbas, an infantry officer, who obtained his doctorate in law from the University of Utrecht in October 1908.18 During the parliamentary debates on the budget of the Ministry of War for 1910, the legal education of officers of the Dutch armed forces is again discussed.

13

See www.parlementcom/id/vg09ll1dklyg/g_a_van_hamel and https://nl.wikipedia.org/wiki/ Gerard_Anton_van_Hamel. 14 Parliamentary Papers II 1907–08, 2 V (Begroting Ministerie van Binnenlandse Zaken 1908), nr. 13 (Memorie van Antwoord), p. 42. 15 MRT VI 1910/1911, pp. 263–264. 16 MRT IV (1908/1909), pp. 1–4. 17 MRT IV 1908/1909, p. 4. 18 MRT IV 1908/1909, p. 268.

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Pressed by the House of Representatives,19 the Minister of War promises the Dutch Senate that a limited number of officers will be allowed to study law courses for a period of two years.20 Indeed, in September 1911, two Navy officers were given the opportunity to follow a two-year curriculum at the Municipal University of Amsterdam to obtain the certificate ‘meer uitgebreide rechtskennis’ [‘advanced legal expertise’]. The editorial board of the MRT also mentions that Captain J. Eysten, an artillery officer, obtained his doctorate in law from the State University of Utrecht on 26 January 1913.21 During the parliamentary debates on the budget of the Ministry of War for 1913, Van Hamel passionately promotes legal education in the Army. In his view, a university education is better than a special course supervised by the Ministry of War. To support his argument, Van Hamel refers to the positive experiences of the Navy in this regard. He calls for the appointment—with the support of, for example, the military departments—of a professorship or a private lecturer.22 The Minister of War, Colijn—also serving as the Minister of the Navy, seems sympathetic to the idea.23 The following year, during the parliamentary debates on the budgets of the ministries of War and Navy for the year 1914, legal education for officers in the armed forces is yet again on the agenda. Van Hamel is pleased to learn about the plans of both departments regarding such education. Again, he recommends pressing for the appointment of a professor for military criminal and disciplinary law, preferably at the Municipal University of Amsterdam.24 Following the outbreak of the First World War, this subject is understandably placed on the backburner. Nonetheless, in April 1916, the city council of Amsterdam decides to establish a professorship in military criminal and criminal procedural law at the Municipal University of Amsterdam, and appoints L. M. Rollin Couquerque (1869– 1960) as lector.25 At long last, a formal connection is established between academia and the armed forces with respect to a legal education for officers. The recognition of the ministries of the Navy and War that an academic education is to be preferred over a special course supervised by the Ministry of War or the Navy is also an important development.

19

Parliamentary Papers II 1909/1910, 2 VIII (Begroting Ministerie van Oorlog 1910), nr. 11 (Memorie van Antwoord), p. 45. See also MRT VI 1910/1911, pp. 128–129. 20 Parliamentary Papers I 1909/1910, 1 VIII (Begroting Ministerie van Oorlog 1910), nr. 2 (Memorie van Antwoord), p. 238. 21 MRT VII 1911/1912, p. 226. 22 Proceedings of the House of Representatives II 1912/1913, Hfdst. VIII (Begroting Ministerie van Oorlog 1913), 16 January 1913, pp. 1820–1822. See also MRT VIII (1912/1913), pp. 168–176. 23 Proceedings of the House of Representatives II 1912/1913, Hfdst. VIII (Begroting Ministerie van Oorlog 1913), 16 January 1913, p. 1825. See also MRT VIII (1912/1913), pp. 176–177. 24 Proceedings of the House of Representatives II 1913/1914, Hfdst. VI (Begroting Ministerie van Marine 1914), 28 January 1914, pp. 1429–1430. See also MRT IX 1913/1914, pp. 67–70. 25 MRT XI 1915/1916, p. 456.

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G. Walgemoed

From 1916 Onwards

The appointment of Rollin Couquerque as lector of military criminal and criminal procedural law is a significant step forward in the legal education of officers of the Dutch armed forces. In this section, I will describe the period from 1916 to 1945 and most notably the work of Louis Marie Rollin Couquerque, the central figure for military law in this era. Born in Delft in 1869, he studies law, first in Leiden, later in Utrecht, where he obtains his doctorate in law in 1893.26 Between 1895 and 1902, Rollin Couquerque works for the Ministry of War. After a two-year interlude as public prosecutor at the Military High Court, he takes up a position at the Ministry of Water Management in 1904. In 1908, he leaves for Suriname, at that time a Dutch colony, where he takes up several administrative positions. From 1913 until his retirement in 1935 he works as administrator at the Ministry of Colonies.27 From the very outset of the MRT in 1903 until 1955, Rollin Couquerque was greatly involved in the journal; he spent many years as member of the editorial board28 and published extensively. Following his passing in 1960, the Institute of Legal History of the University of Utrecht composed a list of 85 publications, 40 of which appeared in the MRT.29 Many of his publications deal with legal history, but his publications after the Second World War also address interesting contemporary topics, such as alliance cooperation and the legal status of military personnel abroad. In view of his appointment as lector in military criminal and criminal procedural law, Rollin Couquerque’s focus is limited. For example, in his public lecture held on 17 October 1916, Rollin Couquerque does not pay attention at all to military disciplinary law or any other part of military law. The first part of his public lecture deals with the place of military criminal law within legal science, while the second part addresses the history of advanced military legal education in the Navy and Army since 1905.30 As a side note, I observe that in 1919, the editorial board of the MRT, of which Rollin Couquerque was a member, mentions that the armed forces need military legal specialists, similar to, for example, artillery or engineer specialists, and proposes the establishing of a specific legal service within the Netherlands armed forces.31 In September 1920, two Navy and two Army officers were designated to attend lectures at the Municipal University of Amsterdam, in order to obtain the certificate for “advanced legal expertise”.32 Six months later, a formal legal basis for such 26

Rollin Couquerque 1893. Rollin Couquerque 1960, pp. 295–296; https://nl.wikipedia.org/wiki/Louis_Marie_Rollin_ Couquerque. 28 MRT XI 1915/1916, p. 447; MRT 48 1955, pp. 396–371. 29 Instituut voor Rechtsgeschiedenis der Rijksuniversiteit 1967. 30 Rollin Couquerque 1916; MRT XII 1916/1917, pp. 220–239. 31 Nord Thomson 1918/1919, pp. 333–337. Editorial postscript, pp. 337–339. 32 MRT XVI 1920/1921, pp. 201–202. 27

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designations is provided for with the Royal Decree of 20 May 1921 (no. 53), which enables officers of the armed forces to acquire advanced knowledge in scientific subjects. This results in ministerial regulations to further regulate the legal studies by Navy and Army officers, allowing them to study law for two years at the Municipal University of Amsterdam, while exempted from regular duties, and maintaining their pay.33 The curriculum consists of common and military criminal law and criminal procedural law, the foundations of public international law and Dutch constitutional law, as well as some general legal knowledge concerning concepts of private law. The commission to examine and evaluate this advanced legal expertise consists of, among others, two professors of the Law Faculty of the Municipal University of Amsterdam, as well as the lector for military criminal and criminal procedural law, Rollin Couquerque. The MRT’s editorial board correctly notes that finally, sixteen years after the Royal Decree of 10 May 1905, which seemed stillborn, there is a formal legal basis for officers of the Navy and Army to study law at the university, upon special appointment by the Minister. In the 1930s the MRT occasionally provides an overview of the officers that obtained the certificate for advanced legal expertise, as well as of the officers that obtained a full law degree. The approximately 50 officers who make up the latter category may actually have obtained their degrees in a private capacity, rather than as part of the program of the Ministry of War. The officers appointed in positions in the area of military criminal law aside, these officers did not hold official legal positions within the armed forces.34 After 1938, the course in advanced legal expertise at the Municipal University of Amsterdam is no longer offered.35 In 1939, Rollin Couquerque retires as lector of criminal and criminal procedural law at the Municipal University in Amsterdam.36 As the Dutch armed forces are practically dismantled during the Second World War, the development of legal knowledge among its officers comes to a halt.

2.4

1945–1970: From Lectureship to Chair for Military Law

So, how to move on after the end of the war? In May 1947, the Army command bids farewell to the course in advanced legal expertise. Instead, as part of the implementation of the aforementioned Royal Decree of 20 May 1921, no. 53, the ‘Regulation concerning the legal studies for officers of the Royal Netherlands

33

MRT XVII 1921/1922, pp. 210–213. MRT XXVIII 1932/1933, pp. 430–432; MRT XXX 1934/1935, pp. 470–471; MRT XXXII 1936/1937, pp. 453–456; MRT XXXIV 1938/39, pp. 257–259. 35 De Graaff 1947, p. 461. 36 De Graaff 1957a, p. 27. 34

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Army’ is published by ministerial decree.37 This opens the door for Army officers to obtain a first degree in Dutch law at one of the Dutch universities, and be exempted from regular duties for a maximum of three years. H. H. A. de Graaff, who then heads the Section of Legal Affairs at the headquarters of the General Staff, was without a doubt involved in developing this regulation. At the time, he simultaneously acted as Director of the Army Legal Service and was also appointed as the first professor to hold the Chair for Military Law. De Graaff explained the change from the course for advanced legal expertise to a first degree in law as follows: “This way, the Army will gradually have at its disposal qualified professional legal officers, which is of particular significance for the filling of legal positions at the higher staffs and for teaching positions at the higher [military] education.”38 In February 1949, during the annual meeting of the Military Law Association, De Graaff again addresses the legal education of officers. He emphasizes the importance of offering a full law curriculum to a limited number of professional officers.39 Shortly thereafter, namely in April 1949, the Army Legal Service was founded. In 1950, Th.W. van den Bosch Esq., who then works at the Office of the Public Prosecutor in the north of the Netherlands, is appointed as lecturer in military criminal and disciplinary law.40 At the request of B. V. A. Röling, professor of criminal law at the State University of Groningen, he is invited by to take care of the course in military criminal and disciplinary law.41 In view of his contribution to the Chair for Military Law after 1970, I will return to Van den Bosch in more detail below. In the spring of 1951, De Graaff is admitted as private lecturer in military criminal and disciplinary law at the State University of Leiden.42 In his word of gratitude at the closure of his public lecture, De Graaff mentions that it was the wish of J. M. van Bemmelen, professor in criminal law at the State University of Leiden, to offer education in military criminal and disciplinary law in Leiden.43

37 MRT 40 (1947), pp. 434–436: ‘Voorschrift betreffende de rechtskundige studie van officieren der Koninklijke landmacht’. 38 De Graaff 1947, p. 462. “Op deze wijze zal het leger weder geleidelijk de beschikking krijgen over gestudeerde beroepsofficieren jurist, hetgeen in het bijzonder voor de bezetting van de juridische bureaus bij de hoogere staven en van de leeraarsplaatsen bij hoogere onderwijsinrichtingen van belang is.” Presumably, the Chief of the General Staff, lieutenant-general mr. H. J. Kruls, also played a role. Both Kruls and De Graaff studied law in Leiden in the 1930s. 39 De Graaff 1949, pp. 258–269. 40 Van den Bosch 1950. 41 B. V. A. Röling (1906–1985), known for his membership of the International Military Tribunal in Tokyo between 1946–1948, knew Van den Bosch from his college years in Utrecht. See Van den Bosch 1989, pp. 59–60. 42 De Graaff 1951. 43 J. M. van Bemmelen (1898–1982) was deputy president of the military court in The Hague in 1940 and he was legal advisor at the headquarters of the Binnenlandse Strijdkrachten, the formal association of Dutch resistance movements, founded on 5 September 1944. Thereafter, he works for the Militair Gezag, the formal military authority established in the Netherlands between 14 September 1944 and 4 March 1946 as the formal administration on behalf of the Dutch government in exile.

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Several universities appear to be competing with each other, but some years later the city council of Amsterdam established a lectureship in military criminal and disciplinary law in Amsterdam. De Graaff is appointed as lector.44 At the end of his public lecture, held in 1957, De Graaff has a special word of thanks for Derkje Hazewinkel-Suringa, professor of criminal law in Amsterdam. He thanks her for her support in establishing the lectureship, referring to the “many years” she demonstrated a “special interest in military law”.45 In 1956, Van den Bosch Esq. leaves Groningen in order to take up a position at the Office of the Public Prosecutor in Suriname. From then on, academic education in the field of military criminal and disciplinary law is limited to Amsterdam or Leiden. In fact, the lectureships in military criminal and disciplinary law in Amsterdam and Leiden are held by one and the same person, namely De Graaff. The Ministry of Defence decides to merge the two courses in 1969: special cases excepted, all officers studying law on ‘Her Majesty’s’ costs from then onwards study law at the University of Amsterdam. This decision was driven, on the one hand, by the fact that military criminal and disciplinary law were embedded in the Seminarium ‘van Hamel’ for criminal law and criminal proceedings (named after the aforementioned criminal law scholar G. A. van Hamel), and on the other hand by the decision of the Curators of the University of Amsterdam to enable the ‘Koninklijke Vereniging ter Beoefening van de Krijgswetenschap’ [Royal Society for the Study of Military Science] to establish a special Chair for Military Law. The Chair was indeed established in 1970, a milestone in the history of Dutch military law.46

2.5

1970–2020: Military Law Matures: From De Graaff to Gill

To date, the Chair for Military Law has been held by four people: Professor H. H. A. de Graaff, Professor Th. W. van den Bosch Esq., Professor G. L. Coolen and Professor T. D. Gill. In this section, I will address each, in chronological order, and I will highlight their contributions to the development of military law in the Netherlands, as well as who they were or are as people.

44

De Graaff 1957a. De Graaff 1957a, p. 27: “U (…) die reeds zovele jaren blijk hebt gegeven van Uw bijzondere belangstelling voor het militair recht.” D. Hazewinkel-Suringa (1889–1970) was the first female professor at a law faculty in the Netherlands. During the Second World War she was fired by the occupying powers. She was well known for her book ‘Inleiding tot de studie van het Nederlands strafrecht’ [Introduction into the Studies of Dutch Criminal Law], which was first printed in 1952. As of 1933, she was a member of the examination committee of the course for advanced legal expertise for officers in Amsterdam. 46 De Graaff 1970, pp. 456–460. 45

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2.5.1

G. Walgemoed

H. H. A. de Graaff (1970–1972)

H. H. A. de Graaff was the first professor to hold the Chair for Military Law. Hein de Graaff was born in Amsterdam, in 1903. After finishing high school, he studied mathematics at the Municipal University of Amsterdam, but decided to change direction after one year: as cadet of the artillery, he commenced officer training at the Royal Military Academy. In 1923, he was promoted to second lieutenant. After having finished a complementary state exam to be admitted to law school, he combined his law studies with his work as an officer in Leiden. In 1932, he obtained a first degree in law. Four years later, he was promoted to captain. During the Second World War, in April 1942, he graduated as scientific archive officer second class. In May, 1942, he was made prisoner of war and deported to the prisoner of war camp in Stanislau and later to the prisoner of war camp in Neu-Brandenburg, where he was liberated by Soviet troops in April 1945.47 After the war, he was promoted to major. As noted above, he headed the Section of Legal Affairs at the headquarters of the General Staff, while simultaneously acting as Director of the Army Legal Service. In 1949, at his own request, he was dismissed as professional officer and appointed as president of the field court martial East in Arnhem. In 1957, he obtained a doctorate in law (cum laude) from the University of Amsterdam, with a dissertation on the military organization between 1795 and 1955.48 In his inaugural address in October 1971, De Graaff rightly points out that he was appointed as professor in military law: a concept—as De Graaff considers— that encompasses more than just military criminal and disciplinary law.49 Nonetheless, as a specialist pur sang in military criminal and disciplinary law, De Graaff’s work will not expand beyond those topics. Unfortunately, De Graaff was able to hold the Chair for only a brief period; he dies unexpectedly during a holiday trip in Germany, on 5 July 1972. His dissertation and many other publications demonstrate his skills as a legal historian. Nonetheless, he also had an eye for the present, as well as the future. In the aftermath of the Second World War, he put his stamp on military law in the Netherlands. On various occasions, he demonstrated his views on military legal education, as described above; he contributed to connecting the study of military law by military officers and academic education and research.50 Shortly after De Graaff’s passing, Th. W. van den Bosch Esq. is asked to provide a course in military criminal and disciplinary law to a group of fourteen

47

See In memoriam H. H. A. de Graaff, MRT 65 1972, pp. 445–446 and https://www. genalogieonline.nl/genealogie-de-graaff/1626.php. I would like to mention particularly that, because of his competence to examine elements of the exam for scientific archive officer, De Graaff examined colleagues durinpg his time in captivity as a prisoner of war. After the war, these exams were officially certified. 48 De Graaff 1957b. 49 De Graaff 1971, p. 3. 50 MRT 1972a, pp. 445–446.

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students. In January 1974, Van den Bosch is appointed as lector and, by special appointment by the Royal Society for the Study of Military Science, as professor to hold the Chair for Military Law.51

2.5.2

Th. W. van den Bosch Esq. (1972–1984)

Theo van den Bosch Esq., born in 1913 in The Hague as the son of a naval officer (who, as vice admiral, would become the navy member in the Military High Court of Justice), studied law in Utrecht. In 1938, he chose to make his career at the Office of the Public Prosecutor. After the outbreak of the Second World War, Van den Bosch served as a reserve officer; he was made prisoner of war and was held captive for about one month in a camp close to Weinsberg (Baden-Württemberg). After the war he was called to active duty and appointed as deputy military prosecutor. He obtained his doctorate from the State University of Utrecht in 1949, on a proposal for a new code of military criminal law, after which he held various positions in the Office of the Public Prosecutor, also in Suriname.52 He subsequently worked for the Internal Security Service, before returning to the Office of the Public Prosecutor, first in The Hague, later as public prosecutor in Zutphen. It is in this period that he is asked to teach at the University of Amsterdam and becomes Professor of Military Law.53 Van den Bosch’s inaugural speech—held in 1976—deals with the concept of the military order.54 He transforms his lecture notes into legible, convenient study pockets.55 Three military lawyers complete a dissertation with Van Den Bosch.56 In 1977, Van den Bosch is appointed as President of the Military High Court of Justice. As extraordinary professor he can continue his activities in Amsterdam; as lector he is relieved of his duties. After his retirement from the Military High Court of Justice in 1983, he resigns as professor in Amsterdam in 1984. He remains active nonetheless, including by publishing a loose-leafed manual for military criminal and disciplinary law. It becomes a reference book of great significance to every lawyer engaged in military criminal and disciplinary law.

51 Van den Bosch 1989, pp. 92–93. A. Heijder (1934–2005) was professor of criminal law from 1970 until 1982. Afterwards he became Attorney General of the Public Prosecutor’s office. 52 Van den Bosch 1949. 53 Van den Bosch 1989, p. 52. See also MRT 1995, pp. 245–248. 54 Van den Bosch 1976. 55 Van den Bosch 1981, 1983. 56 F. F. Langemeijer, in 1977, on “De aard en functie van het militair tuchtrecht” [Nature and Function of Military Disciplinary Law]; Th. J. Clarenbeek, in 1978, on “De oorlogswet voor Nederland” [“The War Code for the Netherlands”]; and J.E. Blankhart, in 1979, on “Beklagmeerdere bedankt!?” [“Thank you, military (disciplinary) complaints authority”].

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Van den Bosch was a remarkable and highly valued member of the academic community in Amsterdam. As described by Coolen, his successor: “a conservative, but also adversarial and progressive. He is steadfast in his opinions. Often provocative, but also amiable.”57 At his farewell as professor in 1984, Frits Rüter, Professor in Criminal Law at the University of Amsterdam, portrayed him wonderfully with the words “gewoon en bijzonder” [“ordinary and special”].58 Nonetheless, it must be noted that the activities of Van den Bosch were mostly limited to military criminal and disciplinary law.

2.5.3

G. L. Coolen (1984–2001)

After Van den Bosch’s retirement, G. L. Coolen is appointed extraordinary professor in military law at the University of Amsterdam in 1984. Who was Guido Coolen? He was born in 1932, in Hilversum, as the son of Antoon Coolen, a famous novelist in the twentieth century. After finishing his studies at the Royal Institute for the Navy, he became an officer of military administration. In that capacity, he experienced the conflict in New Guinea in 1961–1962. After his return to the Netherlands, he obtained his first degree in law at the Erasmus University in Rotterdam. During his career in the Navy, he predominantly took up positions with the Directorate of Personnel of the Navy. In 1981, he was appointed as member of the Military High Court of Justice and promoted to rear-admiral.59 In his inaugural speech, held in 1986, Coolen explains his understanding of the concept of military law, defining it as “those parts of the law concerning warfare, the organization of the armed forces and the legal position—in a wide sense—of the soldier.”60 In his years as professor, Coolen teaches military criminal and disciplinary law, as well as military administrative law. As of 1990, he publishes study pockets on military criminal and disciplinary law and military administrative law. In later editions, these pockets are titled ‘Hoofdzaken van het militaire ambtenarenrecht’, ‘Militair straf- en strafprocesrecht’ en ‘Militair tuchtrecht’ [‘Essentials of military administrative law’, ‘Military criminal law and the law of criminal procedure’ and ‘Military disciplinary law’].61 He also authors a study pocket on international humanitarian law, although he will never teach this subject in Amsterdam.62 As a result of his many publications in predominantly the MRT and

57 MRT 1995, pp. 245–248: “Behoudend, maar ook tegendraads en vooruitstrevend. Standvastig in zijn opvattingen. Provocerend vaak, maar tevens beminnelijk in de omgang.”. 58 Rüter 1984, pp. 161–166. 59 In memoriam G.L. Coolen, MRT 2017 110(4). 60 Coolen 1986a, p. 3: “die delen van het recht die betrekking hebben op de oorlogvoering, op de inrichting van de krijgsmacht en op de rechtspositie – in ruime zin – van de militair”. 61 Coolen 2005; Coolen 2008a, b. 62 Coolen 1986b. IHL was only offered as a supplementary module next to military criminal law.

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the Tijdschrift voor Ambtenarenrecht [Journal of Administrative Law], Coolen greatly impacted on the development of military criminal and disciplinary law and military administrative law. After Van den Bosch’s death in 1996, Coolen put a lot of effort into updating the loose-leafed manuals of Van den Bosch, by adding paragraphs on military criminal and disciplinary law, as well as on international criminal law in wartime. Coolen was extremely persistent in his views, as was demonstrated by several issues he addressed in his farewell lecture, such as his pleas for the reintroduction of administrative appeal and the abolition of the strict separation between criminal and military disciplinary law. The third part of his lecture dealt with the term ‘in time of war’, which in his view was outdated.63 Looking at the years 1984–2000, it is clear that both legal education and research did not quite keep up with developments in the armed forces. It appears as though the deployment of Netherlands armed forces in peace operations as of 1990 seems to have been missed. One can see as much when browsing through the volumes of the MRT from that period. The need to look beyond the traditional subjects of military law, most notably military criminal and disciplinary law, was already acknowledged by the Army command, when it introduced its ‘Militair Juridisch Brevet’ in 1948, a diploma issued to Army legal advisors. In the decades to follow, the curriculum contained subjects such as State emergency law, international humanitarian law and the law of international military cooperation.64 In 1993 and 1994, the so-called Inspector-General of the Army Legal Service organises seminars for his officers to develop their knowledge of the legal framework concerning peace operations.65 In the years thereafter, more and more army legal advisors take part in seminars, courses and training abroad.66 It slowly becomes apparent that ‘Amsterdam’ also needs to change its course of direction. This is eloquently explained by Terry Gill, who succeeds Coolen in 2001: The changes in the role of the armed forces necessitate an adaptation of the Chair. More than ever, the armed forces are focussed on ‘expeditionary operations’ and regularly take part in missions abroad with various mandates and legal bases, including the possibility of operations in the upper part of the spectrum of force, which was uncommon for many decades. In addition, the role of the armed forces in the maintenance of internal security is a factor of growing importance. These developments demand a broader oriented legal knowledge and support than was the case in the past. Besides attention to traditional subjects of military criminal and disciplinary law and military administrative law, there is a growing need to pay attention to and build expertise in other focal areas of military law,

Coolen 2000, pp. 265–280: ‘Pleidooi voor de herinvoering van het administratief beroep’; ’Een streep door de scherpe scheiding’; ‘Tijd van oorlog, een verouderd begrip’. 64 Ministeriële beschikking van 25 mei 1948, Brevet van bekwaamheid voor militair juridische functies, MRT 41 1948, pp. 474–475. See also van Lierop 1974, pp. 458–463. 65 Voetelink and Walgemoed 2009, pp. 205 ff. 66 Amongst others in Belgium (Koninklijk Hoger Instituut voor Defensie, Brussel), Germany (Zentrum Innere Führung, Koblenz), Italy (International Institute of Humanitarian Law, San Remo), United States (The Judge Advocate General’s School, Charlottesville, Virginia), United Kingdom (University of Liverpool). 63

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G. Walgemoed such as public international law, with special attention to the international legal bases for military operations and the use of force, international humanitarian law, the law of military operations, among which maritime operations, and international criminal law.67

In 2001, Gill succeeds Coolen and is appointed as professor of military law at the University of Amsterdam. At the same time, the support of the Chair is transferred from the Royal Society for the Study of Military Science to the Military Law Association.68

2.5.4

T. D. Gill (2001–2020)

Who is Terry Gill? Born in El Paso (Texas, 1952), he receives his secondary education at the American Community School in Beirut (Lebanon). Later, he studies at the University of Amsterdam and the University of Utrecht. After graduating law school in Utrecht in 1984 he joins the law faculty as a staff member. In 1989, he obtains his doctorate in law cum laude with his dissertation on ‘Litigation Strategy at the International Court of Justice: a case study of the Nicaragua v. United States dispute’.69 Gill continues to work as a lecturer at the law faculty of the University of Utrecht. In these years he becomes involved with the International Law Association en de International Society for Military Law and the Law of War. He also contributes to the Yearbook of International Humanitarian Law.70 Following Terry Gill’s appointment as professor of military law in Amsterdam in 2001, a new era begins for the Chair for Military Law. It turns out that the Chair holder focuses on military law in a broad sense, on national military law, as well as the international law of military operations. The Chair organises four courses at Masters level: ‘military criminal and disciplinary law’; ‘military administrative law’; ‘the international law of military operations’; and ‘the armed forces and constitutional law’. As of 2006, these courses are required as part of the education and training of

Gill 2006, p. 139: “De veranderingen in de rol van de krijgsmacht maakten een aanpassing in de leerstoel noodzakelijk. De krijgsmacht is nu meer dan ooit georiënteerd op ‘expeditionair optreden’ en neemt regelmatig deel aan missies met uiteenlopende mandaten en rechtsgrondslagen in het buitenland, met daarbij de mogelijkheid van optreden in een hoger deel van het geweldsspectrum dan in vele decennia gebruikelijk is geweest. Daarnaast is de rol van Defensie bij de handhaving van de interne veiligheid ook een factor van groeiende betekenis. Deze ontwikkelingen vereisen een breder georiënteerde juridische kennis en ondersteuning dan in het verleden. Naast aandacht voor de traditionele deelgebieden van militair straf- en tuchtrecht en militair ambtenarenrecht is nu ook de behoefte binnen Defensie gegroeid om aandacht te besteden aan en expertise op te bouwen in andere aandachtsgebieden binnen het militair recht, zoals het volkenrecht, met als speciale aandachtsgebieden de internationale rechtsgrondslagen voor militair optreden en geweldgebruik, het humanitair oorlogsrecht, het recht van militaire operaties, waaronder maritieme operaties en het internationaal strafrecht.”. 68 Gill 2006, p. 136. 69 Gill 1989. 70 See www.uva.nl/profiel/g/i/t.d.gill.html. 67

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military legal officers of the Military Legal Service of the Royal Netherlands Armed Forces, established in 2006.71 Academic research of the Chair is embedded in the Amsterdam Centre for International Law (ACIL). In ACIL, Gill heads the research group entitled ‘Role of Law in Armed Conflict and Peace Operations’. His inaugural lecture in 2002 is titled ‘The 11th of September and International Law of Military Operations’.72 In the subsequent years, Gill supervises the research of many doctoral candidates. Around ten of the dissertations written under his supervision have a clear link with the military; an admirable result. In 2005, Gill is also appointed as Professor of Military Law at the Netherlands Defence Academy (NLDA). This marks the beginning of an era of even closer cooperation between the armed forces and the Chair in Amsterdam. Two other aspects are worth mentioning: Gill’s efforts in creating the ‘Handbook of the International Law of Military Operations’,73 together with Dr. Dieter Fleck, and his contribution to the so-called Tallinn Manual on Cyber Warfare.74 Notwithstanding the achievements of his predecessors, it is fair to say that Gill took the Chair for Military Law to a higher level. Not only did he manage to expand the curriculum of academic courses so as to include the entire spectrum of subjects of military law, he also succeeded in taking the academic level of military law to a higher level. There is no doubt that as a result of Gill’s efforts the link between the Netherlands armed forces and the legal academic world is stronger than ever. He therefore has contributed significantly to increasing the expertise of military legal advisors in the armed forces.

2.6

Conclusion: A Strong Link Between the Armed Forces and Legal Academia

For a long time, the relationship between the legal education of professional officers and the academic environment was difficult. The responsibility for the initially strained relationship appeared to lie with the departments of the Navy and War and less so with the community of universities. Van Hamel’s efforts can be regarded as a breakthrough. Rollin Couquerque’s appointment as lector in military criminal and disciplinary law at the Municipal University of Amsterdam in 1916 as well as the Royal Decree of 20 May 1921 mark a significant change. Only after the Second World War are further steps made, when the need for legally trained officers within the armed forces is acknowledged. The initiatives and perseverance of De Graaff, in addition to the

71

Since 2001, multiple (military) lawyers have been active as lecturer for the Chair, in part-time positions or as guest lecturer. 72 Gill 2002. 73 Gill and Fleck 2010. 74 Schmitt 2013.

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commitment of the Law Faculty of Amsterdam, proved to be of importance. Eventually this led to the establishment of the Chair for Military Law. Despite its wide potential, the focus of De Graaff, Van den Bosch and Coolen was limited to military criminal, disciplinary and administrative law, leaving a wide array of relevant subjects untouched, particularly in view of the armed forces’ involvement in peace operations since the 1990s. Not until this century, guided by Terry Gill, did education and research of military law expand to what it is today. As senior lecturer charged with education and research in the fields of military administrative law and military criminal and disciplinary law between 2001 and 2015, I was in a position to closely witness Terry’s tireless efforts to expand and enhance the Chair’s field of influence. I would like to finish my contribution with a note on the concept of academic freedom. Academic freedom is the pedestal of academic thinking. However, friction with this concept is likely to arise when one allows military officers to study law. After all, these officers remain members of the hierarchical organization of the armed forces and need to remain sensitive to the fact that, in the end, the Minister of Defence will be held politically accountable for their actions, including their academic endeavours. However, during my research into the history of the Chair for Military Law, I did not come across issues with the concept of academic freedom. There seems to have been no obstacle for military officers to carry out research, or to teach in the area of military law. Neither did I find any sign of a possible conflict between academic freedom and the interests of the armed forces. Many military legal advisers have fond memories of the period in which they were exempted from regular duties and able to fully commit themselves to study law. For most, if not all, it was an enriching period, viewed by some as a sabbatical. That, too, is a solid argument to continue to allow the legal education and training of military lawyers to take place outside the armed forces: it is a time of reflection the armed forces will eventually benefit from.

References Coolen GL (1986a) De rechtsbescherming van de militair tegen onjuist bestuur, Inaugurele rede Universiteit van Amsterdam. Koninklijke Vereniging ter Beoefening van de Krijgswetenschap, The Hague Coolen GL (1986b) Humanitair oorlogsrecht. Tjeenk Willink, Deventer Coolen GL (2000) Afscheidscollege UvA, 23 juni 2000. Militair Rechtelijk Tijdschrift 93:265– 280 Coolen GL (2005) Hoofdzaken van het militaire ambtenarenrecht. Wolters Kluwer, Deventer Coolen GL (2008) Militair straf- en strafprocesrecht. Wolters Kluwer, Deventer Coolen GL (2008) Hoofdzaken van het militaire ambtenarenrecht. Wolters Kluwer, Deventer De Graaff HHA (1947) Eenige opmerkingen over de opleiding en de voorlichting op het gebied van het militaire recht, in het bijzonder bij de Koninklijke Landmacht’, Militair Rechtelijk Tijdschrift 40:461 De Graaff HHA (1949) De Militair-Juridische Organisatie. lezing gehouden op 19 februari 1949 bij de jaarvergadering van de Militair Rechtelijke Vereniging. Militair Rechtelijk Tijdschrift 42:258–269

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De Graaff HHA (1951) De militaire rechter en zijn onafhankelijkheid’. Openbare les gegeven bij de aanvang van zijn colleges in het militair straf- en tuchtrecht aan de Rijksuniversiteit te Leiden op 29 mei 1951. Eduard IJdo, Leiden De Graaff HHA (1957a) Een reïntroductie’. Openbare les gegeven bij de aanvaarding van het lectoraat in het militair straf- en tuchtrecht aan de Universiteit van Amsterdam op 5 november 1957. Eduard IJdo, Leiden De Graaff HHA (1957b) De militair-rechtelijke organisatie 1795–1955’, Dissertatie Rijksuniversiteit van Leiden. Staatsdrukkerij en Uitgeversbedrijf, The Hague De Graaff HHA (1970) De beoefening van het militair recht op universitair niveau. Mars in Cathedra 8:456–460 De Graaff HHA (1971) Een grensverkenning. Inaugurele rede Universiteit van Amsterdam. Koninklijke Vereniging ter Beoefening van de Krijgswetenschap, The Hague Den Beer Poortugael DJHN (2009) De bijdrage van Nederland aan de codificatie van het moderne humanitaire recht 1800–1914, Thieme MediaCenter, Nijmegen Gill TD (1984) Litigation Strategy at the International Court of Justice: A Case Study of the Nicaragua v. United States Dispute, Dissertation, University of Utrecht. Martinus Nijhoff, Dordrecht Gill TD (2002) The 11th of September and the International Law of Military Operations, Inaugurele rede, Universiteit van Amsterdam. Vossiuspers UvA, Amsterdam Gill TD (2006) De Leerstoel Militair Recht aan de Universiteit van Amsterdam. In: Grondig Recht. Opstellen voor Dr. Seerp B. Ybema bij zijn afscheid als Directeur Juridische Zaken van het Ministerie van Defensie. T.M.C. Asser Press, The Hague, pp. 135–142 Gill TD, Fleck D (eds) (2010) The Handbook of the International Law of Military Operations. Oxford University Press, Oxford Instituut voor Rechtsgeschiedenis der Rijksuniversiteit te Utrecht (1967) Lijst van publicaties van L.M. Rollin Couquerque, Samengesteld door het Instituut voor Rechtsgeschiedenis der Rijksuniversiteit te Utrecht. Stichting Pressa Trajectina, Utrecht Krabbe H (1883) De burgerlijke staatsdienst in Nederland, Dissertatie, Rijksuniversiteit van Leiden. S.C. van Doesburgh, Leiden Klinkert W (1992) Het Vaderland verdedigd. Plannen en opvattingen over de verdediging van Nederland 1874–1914. Dissertatie Universiteit van Leiden. Sectie militaire geschiedenis Landmachtstaf, The Hague Militair Rechtelijk Tijdschrift (1972) In memoriam H.H.A. de Graaff. Militair Rechtelijk Tijdschrift 65:445–446 Militair Rechtelijk Tijdschrift (1995) In memoriam Th.W. van den Bosch, Militair Rechtelijk Tijdschrift 88:245–248 Nederlandse Juristen-Vereniging (1897) Handelingen Nederlandse Juristen-Vereniging, 28e jaargang. F.J. Belinfante, The Hague Nord Thomson GHE (1918/1919) De Officier-Commissaris. Militair Rechtelijk Tijdschrift XIV:333–337 Rollin Couquerque LM (1893) Tweeërlei dogma. Dissertatie Rijksuniversiteit Utrecht. Mouton & Co., The Hague Rollin Couquerque LM (1916/1917) Over de studie van het Nederlandsch Militair Strafrecht, Openbare les Amsterdam, 17 October 1916. Militair Rechtelijke Tijdschrift XII:220–239 Rüter CF (1984) Gewoon en bijzonder, Prof. Jhr. mr. Th.W. van den Bosch. Militair Rechtelijk Tijdschrift 77:161–166 Schmitt M (ed) (2013) Tallinn Manual on the International Law Applicable to Cyber Warfare. Cambridge University Press, New York Van den Bosch ThW (1949) Proeve van een ontwerp voor een wetboek van militaire strafvordering. De Vroede, Utrecht Van den Bosch ThW (1950) De bestraffing van principiële dienstweigeraars. J.B. Wolters, Groningen Van den Bosch ThW (1976) Beschouwingen over het militaire dienstbevel, Inaugurele rede, Universiteit van Amsterdam. De Walburg Pers, Zutphen

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Van den Bosch ThW (1981) Huidig en toekomstig militair straf- en tuchtrecht. Tjeenk Willink, Zwolle Van den Bosch ThW (1983) Huidig en toekomstig militair strafprocesrecht. Tjeenk Willink, Zwolle Van den Bosch ThW (1989) Posteris (aan hen die na ons komen). Belevenissen van een rechterlijk ambtenaar, die tevens hoogleraar en reserve-officier was. Gouda Quint, Arnhem Van Lierop PG (1974) 25 jaar Militair Juridische Dienst. Militair Rechtelijke Tijdschrift 67:458– 463 Voetelink JED, Walgemoed GF (2009) De totstandkoming van het hedendaags Militair operationeel recht. Militair Rechtelijk Tijdschrift 102: pp. 195–212

Further Reading Genealogieonline.nl https://www.genealogieonline.nl/genealogie-de-graaff/1626.php Handelingen II 1912/1913, Hfdst. VIII (Begroting Ministerie van Oorlog 1913), 16 januari 1913 Handelingen II 1913/1914, Hfdst. VI (Begroting Ministerie van Marine 1914), 28 januari 1914 Kamerstukken II 1906/1907, 2 VIII (Begroting Ministerie van Oorlog 1907), nr. 15 (Memorie van antwoord), p. 45 Kamerstukken II 1909/1910, 2 VIII (Begroting Ministerie van Oorlog 1910), nr. 11 (Memorie van antwoord), p. 45. See also Militair Rechtelijk Tijdschrift VI (1910/1911), p. 128–129 Kamerstukken I 1909/1910, 1 VIII (Begroting Ministerie van Oorlog 1910), nr. 2 (Memorie van antwoord), p. 238 Koninklijk Besluit van 10 mei 1905, nr. 49 Militair Rechtelijk Tijdschrift I 1905/1906, pp. 378–388 Militair Rechtelijk Tijdschrift II 1906/1907, p. 141 Militair Rechtelijk Tijdschrift III (1907/1908), pp. 130–131 Militair Rechtelijk Tijdschrift IV (1908/1909), p. 1–4 Militair Rechtelijk Tijdschrift (1910/1911), p. 263–264 Militair Rechtelijk Tijdschrift (1911/1912), p. 226 Militair Rechtelijk Tijdschrift IX (1913/1914) Militair Rechtelijk Tijdschrift XI (1915/1916) Militair Rechtelijk Tijdschrift XII (1916/1917), pp. 220–239 Militair Rechtelijk Tijdschrift XVI (1920/1921) Militair Rechtelijk Tijdschrift XVII (1921/1922) Militair Rechtelijk Tijdschrift XXVIII (1932/1933) Militair Rechtelijk Tijdschrift XXX (1934/1935) Militair Rechtelijk Tijdschrift XXXII (1936/1937) Militair Rechtelijk Tijdschrift XXXIV (1938/39) Militair Rechtelijk Tijdschrift 41 (1948), pp. 474–475 Militair Rechtelijk Tijdschrift 48 (1955) Militair Rechtelijk Tijdschrift 53 (1960), pp. 295–296 Militair Rechtelijk Tijdschrift 65 (1972) Militair Rechtelijk Tijdschrift 110 (2017), afl. 4 Wikipedia https://nl.wikipedia.org/wiki/Gerard_Anton_van_Hamel Wikipedia https://nl.wikipedia.org/wiki/Louis_Marie_Rollin_Couquerque

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Colonel (Ret.) Gert Walgemoed LL.M. for several years served as an artillery officer after his training at the Royal Military Academy. After completing Law School at Leiden University, he joined the Netherlands Army Legal Service, where he held several (NATO) positions as Legal Advisor. From 2001 until 2015 he lectured in military criminal and administrative law at the University of Amsterdam, where he (co-)authored several monographs in these fields. From 1991 until 2015 he held different positions in the Dutch judiciary as deputy judge.

Chapter 3

ILMO: The ‘Flux Capacitor’ of Contemporary Military Operations Terry D. Gill

Contents 3.1 3.2 3.3 3.4

Introduction........................................................................................................................ Legitimacy, the Law, and Their Place in Foreign Policy ................................................ The Dual Function of ILMO ............................................................................................ Some Emerging Challenges to the Role of International Law in the International System................................................................................................................................ 3.5 Research in the Field of International Law Relevant to Military Operations at the NLDA...................................................................................................................... References ..................................................................................................................................

36 36 39 41 43 44

Abstract This lecture discusses the significant and often crucial role international law plays for military operations, and illustrates through various examples the influence compliance with the law and legitimacy have on the foreign policy of States. Subsequently, the dual function the international law of military operations has in the planning and conduct of military operations is explained. The “horizontal function” is to harmonize obligations that arise from the different legal regimes that govern the use of force by armed forces. As part of the “vertical function”, the law is operationalized for the members of the armed forces engaged in military operations. Then, some emerging challenges to the role of international law in the international system are highlighted, followed by an overview of recent and

This is the text of Terry Gill’s Farewell Lecture at Netherlands Defence Academy, Breda, 19 September 2019. The lecture was also published in the Netherlands Military Law Review 2019, at http://puc.overheid.nl/doc/PUC_293787_11 and is reprinted with permission of the Editorial Board. T. D. Gill (&) University of Amsterdam, Amsterdam, The Netherlands e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2021 R. Bartels et al. (eds.), Military Operations and the Notion of Control Under International Law, https://doi.org/10.1007/978-94-6265-395-5_3

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ongoing research at the Netherlands Defence Academy in the field of international law relevant to military operations. Keywords Legitimacy Engagement SOFA




3.1


Legality
Legal Bases
Legal Regimes
Rules of

Introduction

Good afternoon, ladies and gentlemen, friends and colleagues. The clip you just saw was from the classic cult movie “Back to the Future” released in 1985 by Universal Pictures, directed by Robert Zemeckis and starring i.a. Michael J. Fox and Christopher Lloyd, about the hilarious adventures of a teenager named Marty Mc Fly from the 1980’s who goes back in time to the 1950’s in a time machine built by his friend, the eccentric inventor “Doc” Emmet Brown. The flux capacitor is what made time travel possible in the movie and is portrayed as Doc Brown’s greatest invention as you just saw. I would like to talk to you about the International Law of Military Operations (or ILMO for short) as the proverbial flux capacitor in contemporary military operations: to wit in the work of the persons who teach it, conduct research in it and apply it on a daily basis, not least in the actual conduct of military operations of all types. I do not by any stretch of the imagination claim to be the inventor of this law, but my colleagues in the NLDA (and elsewhere) and I can claim some credit for developing the concept of ILMO as a distinct sub-discipline within public international law and disseminating it, both within the armed forces, to policy makers and to a broader public. In the coming thirty-five minutes or so I will try and give an impression of what the role and function of ILMO is, some current and emerging challenges it faces and the contribution that has been and is being made here at the NLDA to its further development.

3.2

Legitimacy, the Law, and Their Place in Foreign Policy

The statement that international law of military operations is the ‘flux capacitor’ of contemporary military operations may seem a tad overblown and is in truth not meant to be taken literally. Military operations which are conducted outside national borders or which involve international actors, both friendly or hostile, as partners or adversaries are always instruments of national and in some cases of international policy and hence are essentially politically driven. They are, in short, part of a State’s foreign and security policy and are subject to the political decision making process in force in a given State. A military operation is as the term implies, an activity carried out by one or more State’s armed forces for a military purpose, at

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the behest and under the direction of the political leadership of a given State, or under the direction of a group of States working together, often through an international organization to achieve (a set of) policy objectives. The military goals will be subsumed within these overarching policy objectives and the application of the military instrument is a means chosen to further those objectives. So there is no question of the law being the driving force behind the decision to conduct a particular military operation, be it against an adversary State, or increasingly against a hostile armed group operating across international borders, or to contribute to an international effort to protect community values, such as maintaining the peace, protecting fundamental human rights or the suppression of international crimes, such as piracy. Nevertheless, it is no exaggeration to say that international law plays a significant and often even a crucial role, alongside other considerations, in determining under which circumstances military forces may operate abroad and the modalities of applying force and exercising authority over persons or territory. While ignoring the law may sometimes appear to be an option, it is not often one which is the most sensible and doing so generally comes at a significant cost in terms of legitimacy and support for the operation, both internationally and domestically. For a democratic State founded on the rule of law, it will be in some cases a political as well as a legal imperative to comply with the law or come up with overriding reasons for not doing so in order to maintain the necessary political support to conduct the operation. It is almost a truism to state that legitimacy is an essential component of an effective (foreign) policy. Legitimacy here is defined as done by Mark Suchman in his influential publication on the forms and functions of legitimacy published in 1995 as “a generalized perception or assumption that the actions of an entity are desirable, proper, or appropriate within some socially constructed system of norms, values, beliefs, and definitions”.1 Law is, of course, one component or manifestation of legitimacy as a “socially constructed system of norms and values”. To the extent a policy is seen as conforming to such norms and values it will, generally speaking, have a higher degree of acceptance and potentially will even garner active support and will inevitably engender less friction, opposition and obstruction than a policy which is seen to lack such legitimacy. While law and legitimacy do not always necessarily exactly coincide (legitimacy is a broader notion than legality or conformity with the law), they do so more often than not and a policy which is clearly perceived as being in clear and serious violation of the law will not easily be seen as legitimate, except perhaps in certain very exceptional situations.2

1

Suchman 1995, p 574. Such exceptional situations might include existential threats to a State’s security (e.g. the Cuban missile crisis) or large scale egregious violations of fundamental human rights where military action has a reasonable chance of halting the violations and would not endanger international peace, but because of political factors a mandate from the UN Security Council is not feasible, On the former, see Allison 1971. For a legal perspective, see Chayes 1974. On the legitimacy of

2

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A few admittedly somewhat anecdotal examples will have to suffice to illustrate the place of compliance with the law and legitimacy as an influential factor in the foreign policy of States. I will, I assure you, keep these brief in the interest of time and not wishing to unduly tax the audience’s patience. My first example is the difference in perception of the two operations usually referred to as the “Gulf Wars”. The contrast between the broad support for the operation named Operation Desert Shield/Storm in 1990–91 which had a clear legal basis in both Security Council resolutions and the right of collective self-defence and the much more controversial and contentious invasion of Iraq in 2003, which lacked any clear basis in international law and was opposed by a large segment of the international community, including some of the U.S.’s closest allies is one example.3 Another is the significant damage that was done to US prestige and its public image by the widely condemned violations of clear norms on detention in the context of an armed conflict, resulting in the demonstrably inhumane treatment of detainees in the Guantanamo and Abu Ghraib facilities.4 More recently, the widespread violations and even wholesale rejection of fundamental norms, along with its nihilistic war against virtually everyone by the so-called ISIS, was a major factor leading to the formation of an international coalition which ended its territorial ambitions in the Levant and Iraq.5 And finally, the perception of Russian aggressive behaviour since the invasion and annexation of the Crimea has had a major impact on East-West relations and has led to significant diplomatic and economic costs for the Russian government (albeit not serious enough to induce it to change its behaviour until now) and triggered a rise in military tensions to a level not seen since the end of the Cold War.6 What this means is not that international law is never violated; it is and sometimes very deliberately and seriously. This is not unique to international law; virtually every rule of law ever promulgated has been violated at some time or another. Nor does it mean that violations of the law are always adequately addressed or even given the importance they deserve. But it does show that violations of international law leading to a lack or loss of legitimacy can have significant repercussions and

humanitarian intervention in the absence of a mandate from the UN Security Council, see i.a. Franck 2002, pp 135–191. 3 For discussion of these two operations see de Wet 2018, p 456 ff. For the invasion of Iraq in 2003, see Weller 2018, p 639ff. 4 On the controversies relating to treatment of detained persons in the context of the Afghanistan and Iraq conflicts, see e.g. Duffy 2005, pp 266–273, and Gill and van Sliedregt 2005. 5 ISIS was confronted by a large international coalition after its advance from eastern Syria deep into Iraq in the summer of 2014 and its widespread violations of international human rights and humanitarian norms which included genocidal violence against the Yazidi community in northern Iraq, see i.a. UN Report of the International Commission of Inquiry on the Syrian Arab Republic 2014. For an overview of the international coalition ranged against ISIS see www.inherentresolve. mil. 6 Grant 2015, pp 68–95.

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often makes it that much harder to achieve the longer term policy objectives one was seeking in the first place. As such it makes utilitarian sense to observe the law as a matter of self-interest in addition to it being usually the morally correct thing to do.

3.3

The Dual Function of ILMO

Observance of the law in the context of a military operation, is the raison d’être of the international law of military operations. ILMO has a dual function in the planning and conduct of military operations. It identifies and demarcates the legal basis for any given operation which broadly corresponds to the jus ad bellum contained in the UN Charter and customary law. This body of law determines under which conditions a State may resort to the use of force at the international level and under which conditions a State may deploy armed forces on the territory of another State.7 Alongside the legal basis, the relevant legal regimes will regulate how force must be applied and how authority over persons or territory must be exercised. These legal regimes consist of two separate bodies of law, the law of armed conflict also known as international humanitarian law and international human rights law.8 These two legal regimes complement each other and to the extent a particular rule from one body overlaps or clashes with one from another, the precedence of rules and indeed the general interpretation of obligations will be determined by applying well established principles of legal methodology (that’s right, we lawyers also have a methodology contrary to popular belief among some non-lawyers, some of which date all the way back to Roman law).9 Alongside these two core regimes, several other ones also play an important role in setting out the rules of the road at sea, in the air, in relation to the exercise of jurisdiction and immunities (SOFAs), etc.10 So ILMO’s first function is to set out the applicable law and harmonize obligations which arise from the different regimes. This is what I refer to as its horizontal function. But the identification and interpretation of the applicable law is only part of the picture. Any military operation will have an underlying concept of operations (CONOPS) and operational plan (OPLAN) in which the mandate, mission objectives and available resources have been factored in. This serves as the basis, alongside policy considerations and in accordance with the applicable law, for drawing up the operational directives for a given operation in the form of rules of

7

Gill and Fleck 2015, Chapters 5–14. Gill and Fleck 2015, Chapters 3–4. 9 On legal methodology in international law in general, see e.g. Bos 1984, Domincé et al 1997. For authoritative treatment of it in the context of norm reconciliation and harmonization, see Koskenniemi 2006. 10 Gill and Fleck 2015, paras 5.2, 6.2 and Chapters 19–21. 8

40 Fig. 3.1 ILMO and its functions depicted through a ‘Flux Capacitor’ (Source Universal Pictures and with thanks to Dr. Emmett Brown)

T. D. Gill

Legal Basis

Legal Regimes

Operational Directives (ROE, soldier’s card, etc.) engagement (ROE) and derivative instruments such as targeting instructions, commander’s guidance, soldier’s cards etc. These instruments translate the rather abstract legal obligations contained in treaties and customary international law into concrete rules which govern the use of force and other forms of coercive action in the context of an operation. Law is, as stated, one component of these rules alongside operational and policy considerations and in the final analysis forms the bottom line, in that while ROE are not legal rules themselves, they reflect the law and ROE must conform to the law, even if significant additional restraints are sometimes put in place for a given operation for policy reasons beyond what is strictly required by the law.11 Hence this function of operational law brings the law into the headquarters of an operation (where the LEGAD usually sits next to the commander while an engagement is underway), onto the bridge of a warship, into the cockpit of a military aircraft, or even to the platoon leader in the field. This is what I refer to as the vertical function of ILMO. I have attempted to illustrate both of these functions in the image of our ‘flux capacitor’ now up on the screen (see Fig. 3.1). In contemporary military operations, ILMO has become part of the targeting cycle in targeting decisions, as well as playing a substantial role in a wide range of other activities and the role of the legal advisor as interpreter and advisor to commanders and operators in the field has grown exponentially in the past thirty years, alongside the increasing complexity and awareness of the law by those who have to apply it in practice. General Anthony Zinni, former commander of CENTCOM, recognized this as long ago as 1996, when he predicted that “operational and international law are the future”.12 At the present, that prediction is fully

11

For an in-depth analysis of the role of Rules of Engagement in the context of ILMO, see Boddens Hosang 2017. 12 Arsenault 2017, quoting Anthony Zinni at 94.

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borne out in the way legal support and guidance to operations has become integrated into military doctrine and is now part of standard operational procedure for most armed forces.13

3.4

Some Emerging Challenges to the Role of International Law in the International System

While the role that international law plays in international affairs, including military operations, is significant and in many respects is arguably more important now than ever before, this is no reason for complacency. There are a number of challenges to its continued influence in shaping and regulating State conduct which arise from a number of factors. These include in particular, the shifting balance of power and challenges arising from that to the “rule based international system”, increasing pressure on the system due to factors such as climate change and mass migration, emerging technologies and methods of social interaction, including methods of warfare and other threats and challenges. There is no time to delve in depth into all or even any of these, but a few observations on some of them are called for. The manner in which China is asserting its territorial claims, interests and military potential in the South China Sea, the resurgence of Russia as a military power and interested player in areas which formerly were part of the sphere of influence of the Soviet Union and the weakening of trans-Atlantic ties are all indications of a shifting balance of power. Both China and Russia, as well as a number of other emerging powers, do not have the same perception of international law on a number of crucial issues, as its traditional Western sponsors and supporters do and it is also probably true to say that the attitude of some Western States towards international law in recent years has had a negative impact on its legitimacy. In a recent study done at Chatham House, three major challenges were identified as being of crucial importance to the continued relevance of the “rule based international system”. These were in the view of the participating experts: the importance of legitimacy, of equity and perceived fairness of the system and the danger of overconfidence and of complacency.14 The first factor, the threat to legitimacy, was seen primarily in terms of lack of consistency; namely some of the issues pointed to earlier, such as the invasion of Iraq and violations of human rights in mistreating and torturing detainees as undermining the legitimacy of the system. The challenge to the equity or fairness of the system was defined in the study as the

13

See e.g. US Joint Chiefs Publication Legal Support to Military Operations 1-04. This publication is US doctrine, but this is mirrored in the armed forces of most other States to at least some extent, in particular those States members of the NATO alliance. It is also standard practice in operations conducted by the UN Department of Peace Operations (formerly DPKO). 14 Royal Institute of International Affairs 2015.

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necessity of the rule based system being perceived as being to the advantage of the majority of its members and not just some of them and many financial and trade frictions, to take one example, are partially due to a perception on the part of some States of being disadvantaged by the system. Complacency and overconfidence resulted in the view of the experts, from an assumption by some actors within the system that the rules had always worked and needed little attention or adaptation to new situations.15 While one might quibble about some of these assumptions and definitions, I for one am in broad agreement with the diagnosis. If one violates the rules of the system regularly and seriously as was the case in the examples given earlier, this is bound to have an impact on the legitimacy of some of its rules, if not necessarily of the system as a whole. At the same time, a rule system which is not perceived to be fair and in the interest of most of its members is hardly likely to maintain such legitimacy, and finally it is clear that the law must remain responsive, hence technological developments and fundamental challenges to the stability of the system, such as climate change, mass migration and equitable use and distribution of wealth and resources need to be adequately addressed for the ‘rules based system’ to remain relevant and resilient. These and other factors mean that certain international norms and rules may come under increasing pressure, but at the same time, most if not all of these challenges are only capable of being adequately addressed through international cooperation that is worked out in rules, which will to a considerable extent be based on those which are currently in place and are perceived by all to be useful, even crucial to the security and prosperity of all of its members. This makes it at least more likely that rather than the system as a whole being abandoned or falling into irrelevance, it will be modified and adapted to changing circumstances as has consistently been the case in the past. International law has always mirrored the prevailing realities within the international system at any given period in history: its power distribution, rules to manage conflict and provide for some degree of cooperation between its members and even its aspirations are reflected in the rules in force at a particular period (the international law of today is not that of 1900 or that of the early modern era, so there is no reason to suppose the present system is immutable). Hence the rules, while maintaining a large degree of continuity, are likely to be adapted on particular issues to reflect the changing international realities and to at least attempt to address the major challenges which face society in the twenty-first century. Whether they will succeed in doing so satisfactorily and in a timely fashion is another matter, but for the purposes of this discussion that is less relevant than the question of whether a ‘rules based international order’ is likely to continue. The answer is yes, although it may not be the same rule based order that we have had over the past 70 odd years since World War II.16

15

Royal Institute of International Affairs 2015. For an authoritative study of how international law functioned in a previous era, see Koskenniemi 2001.

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In the realm of our topic, the international law relating to the use of force and conduct of military operations, there have been some positive developments alongside many well publicized and sometime egregious violations of the law. The law relating to the use of force has not been repudiated by any major power as was the case in the 1930s and the widespread accession of States from all regions to the conventions regulating warfare and the treatment of its victims shows that the system as a whole still wields considerable legitimacy. The law of armed conflict is adapting itself to the fact that most armed conflicts involve one or more non-State actors, and new technologies and means of warfare such as cyber warfare, unmanned and autonomous systems and other non- traditional forms of warfare or interference with other international actors are all the subject of adaptation of rules to address them as a response to these rapid technological developments. The challenge is and will remain to make these adaptations in such a way that they are seen to be effective as well as legitimate. Some of the research engaged in here at the NLDA and its partners attempts to do just that.

3.5

Research in the Field of International Law Relevant to Military Operations at the NLDA

Here at the NLDA, a significant amount of research has been and is being devoted to analysing how international law is applied to military operations and how it needs to be adapted to changes and challenges in order to remain relevant. This includes completed and ongoing Ph.D. research, books, articles and other contributions and other types of measurable research output, such as conference papers and policy recommendations. Starting as far back as 2007–8, dissertations by successive Ph.D. researchers in international law relating to military operations have appeared on a wide range of topics from narcotics interdiction at sea, to the role of the armed forces in combatting terrorism, to the law of jurisdiction and immunities of members of the armed forces deployed abroad, to the interplay of human rights and humanitarian law in counterinsurgency operations, to maritime interception operations, and to proportionality as a fundamental principle of the law of armed conflict. New technologies are being addressed in completed and ongoing studies on cyber warfare above and below the threshold of traditional armed conflict, in remotely controlled and unmanned weapons systems and other new technologies, such as artificial intelligence and autonomous weapons and bio- enhancement. The important topic of oversight and accountability in military operations conducted by the Netherlands armed forces is receiving attention in another new ongoing Ph.D. project. Major publications like the Tallinn Manuals on Cyber Warfare, the Leuven Manual on Peace Operations and the Handbook of the International Law of Military Operations have been in some cases initiated and contributed to by researchers here. These publications are not only scientifically relevant, but are of real use to the

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armed forces and its legal service and have had an influence on policy formulation, such as in the realm of how the Netherlands positions itself in debates on applying international law to cyber operations and warfare. They also play an invaluable role in carrying out our other primary task; teaching the law to the cadets and midshipmen at both locations in Breda and Den Helder and to graduate students in the master program on military strategic studies, all of which the members of the military law section participate in and make a substantial contribution to. The researchers engaged in these projects cooperate closely with other researchers in the FMW, particularly within the Department of War Studies, with other universities, in particular with the Amsterdam Centre for International Law at the University of Amsterdam and its research project Law of Armed Conflict and Military Operations (LACMO) which they form part of, and with a whole network of international partners of which the Department of War Studies is one of the founding members.17 Acknowledgements These are solid achievements which I am proud to have contributed to, alongside a team of first class researchers who have made a mark nationally and internationally in this important field and whom it has been an unmitigated pleasure and privilege to work with. I have no doubt that this good work will be continued by them and by my successor, Marten Zwanenburg, whom I wish every bit as much pleasure as I have had in working here and all success in coordinating this team. I would like to thank all here at the NLDA who have been so welcoming and supportive over the years; in particular the successive deans of the faculty who have consistently been behind our work, Frans Osinga who has provided inspirational leadership to the Department, Paul Ducheine who is an invaluable partner here and at the ACIL in Amsterdam, Joop Voetelink who has been a really outstanding ‘first officer’ and a real pleasure to work with and all the members of the Military Law Section over the years whom I have so enjoyed working with and will continue to work with in the future. Last, but never least, my endless thanks and boundless affection go out to my other half, Annelies, without whom it would scarcely have been possible and not nearly as much fun. Ik heb gezegd.

References Allison CT (1971) Essence of Decision: Explaining the Cuban Missile Crisis. Little Brown, Boston Arsenault EG (2017) How the Gloves Came Off: Lawyers, Policy Makers and Norms on the Debate on Torture. Columbia University Press, New York Boddens Hosang JFR (2017) Rules of Engagement: Rules on the Use of Force as Linchpin for the International Law of Military Operations, doctoral dissertation, University of Amsterdam, at https://dare.uva.nl/search?identifier=691ccb62-371e-4e09-94d3-3793f4b3a54d Bos M (1984) A Methodology of International Law. TMC Asser Press, The Hague

17

For a complete overview of completed and ongoing research see the research reports by the FMW and the ACIL over the years 2007–18. For the international research network which the Department of War Studies is one of the founding members see www.lacmonet.org/.

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Chayes A (1974) The Cuban Missile Crisis: International Crises and the Role of Law. Oxford University Press, Oxford de Wet E (2018) The Gulf War 1990–91. In: Ruys T, Corten O, Hofer A (eds) The Use of Force in International Law: A Case Based Approach. Oxford University Press, Oxford, pp 456–468 Domincé C, Belhumeur J, Condorelli L (eds) (1997) L’ordre juridique international entre tradition et innovation. Graduate Institute Publications, Geneva. Open Publication edition (2014) available online at https://books.openedition.org/iheid/1320. Duffy H (2005) The War on Terror and the Framework of International Law. Cambridge University Press Franck TM (2002) Recourse to Force: State Action against Threats and Armed Attacks. Cambridge University Press, Cambridge Gill TD, Fleck D (eds) (2015) The Handbook of the International Law of Military Operations, 2nd edn. Oxford University Press, Oxford Gill TD, van Sliedregt E (2005) Guantanamo Bay: A Reflection on the Legal Status and Rights of ‘Unlawful Enemy Combatants’. Utrecht Law Review 1(1):28–54, available online at www. utrechtlawreview.org/articles/abstract/10.18352/ulr.2/ Grant TD (2015) Annexation of Crimea. American Journal of International Law 109(1):68–95 Koskenniemi M (2001) The Gentile Civilizer of Nations: The Rise and Fall of International Law 1870–1960. Cambridge University Press, Cambridge Koskenniemi M (2006) Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law. Report to the International Law Commission UN Doc. A/CN.4/L682, 13 April 2006 Royal Institute of International Affairs (2015) Challenges to the Rule Based International Order, at www.chathamhouse.org/london-conference-2015/background-papers/challenges-to-rulesbased-international-order Suchman MC (1995) Managing Legitimacy: Strategic and Institutional Approaches. Academy of Management Review 20(3):571–610 UN Report of the International Commission of Inquiry on the Syrian Arab Republic 2014 (2014, November 14) Rule of Terror, Living under ISIS in Syria, at www.ohchr.org/Documents/ HRBodies/HRCouncil/CoISyria/HRC_CRP_ISIS_14Nov2014.doc US Joint Chiefs Publication (2016) Legal Support to Military Operations Joint Publication 1–04 2016, at www.jcs.mil/Portals/36/Documents/Doctrine/pubs/jp1_04.pdf Weller M (2018) The Iraq War 2003. In: Ruys T, Corten O, Hofer A (eds) The Use of Force in International Law: A Case Based Approach. Oxford University Press, Oxford, pp 639–661

Professor Terry D. Gill is professor emeritus of Military Law, University of Amsterdam and the Netherlands Defence Academy.

Chapter 4

Legal Challenges in Extraterritorial Military Operations Dieter Fleck

Contents 4.1 Introduction........................................................................................................................ 4.2 The Roots of the International Law of Military Operations ............................................ 4.3 Some Typical Principles and Rules of the International Law of Military Operations.......................................................................................................................... 4.3.1 The Law of the Sending State ............................................................................... 4.3.2 Human Rights......................................................................................................... 4.3.3 International Humanitarian Law............................................................................. 4.3.4 Respect for the Law of the Host State .................................................................. 4.4 The Need to Overcome Fragmentation............................................................................. 4.5 Conclusions........................................................................................................................ References ..................................................................................................................................

48 49 51 52 53 54 55 55 56 57

Abstract This chapter evaluates the International Law of Military Operations (ILMO) as a new branch of international law that has various different sources, many of them being derived from ‘non-military’ areas of international law and cooperation, but requiring the commander’s attention no less than genuine military rules and regulations in the traditional sense. The author takes a look at the roots of ILMO and its influence on today’s developments in military and legal practice. He considers some typical principles and rules that have become part of ILMO, and highlights the requirement for tailor-made military solutions which often have to be pursued without possibilities for taking more systematic approaches. He emphasises the need to overcome fragmentation of international law also in this respect and draws some conclusions.

D. Fleck (&) Richard-Wagner-Str. 30, 50999 Cologne, Germany e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2021 R. Bartels et al. (eds.), Military Operations and the Notion of Control Under International Law, https://doi.org/10.1007/978-94-6265-395-5_4

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Keywords Fragmentation Human Rights Law International Humanitarian Law International Law of Military Operations (ILMO) Law of the Receiving State Law of the Sending State Rules of Engagement (ROE) Status-of-Forces Agreements (SOFAs)





4.1










Introduction

Professor Terry D. Gill has devoted his impressive professional career, as academic teacher of civilian and military students, promoter and supervisor of research projects, and participant in multiple activities of international military cooperation, to identifying, reaffirming and further developing legal principles and rules for military operations. Contemplating and acting in a world of ever-changing challenges, he convincingly explained and effectively informed military operations according to the rules. Terry has thus very significantly contributed to better understanding and strengthening the rule of law as an important enabler of effective military performance. His achievement is multi-faceted, as it is devoted to education and training in the maintenance and restoration of peace and security; the assistance of people in need; and the conduct of civil-military cooperation. It affects all levels of command, includes national and international regulation, and extends not only to interpreting and further developing principles and rules of binding international law, but also to best-practices by States and non-State actors. Resulting from these multi-faceted activities is the International Law of Military Operations (ILMO), a new branch of international law that derives from various different sources. The variety of these sources cannot be overestimated. By far not all principles and rules to be applied here are inherent parts of genuine military law; in many (if not most) situations they emanate from ‘non-military’ areas of law and cooperation, requiring the commander’s attention no less than military rules and regulations in the traditional sense. Hence it may be helpful in this chapter to first take a look at the roots of ILMO and their prevailing influence on today’s legal developments (Sect. 4.2); discuss some typical principles and rules that have become part of ILMO today (Sect. 4.3); consider the need for tailor-made military solutions that often must be pursued without possibilities for taking more systematic approaches, but challenge operators to stick to general principles nevertheless (Sect. 4.4); and, finally, try to draw some conclusions (Sect. 4.5).

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49

The Roots of the International Law of Military Operations

Military operations have never been free from legal constraints. Armed forces are subject to control and must comply with the law of their State, including its rights and obligations under international law. International law may be weak in terms of effective enforcement measures, yet it exists and it does influence the conduct of military operations, not only by sanctioning breaches, but even more so as an enabler of effective operations. This is as important for the conduct of hostilities in armed conflicts as for the various military operations that are performed in a foreign country during peacetime. For the conduct of hostilities, principles and rules have been developed and confirmed, both by internationally accepted custom and by international treaties. Thus specific obligations have become part of international humanitarian law, a branch of international law that is, indeed, so widely known today, that military commanders and their legal advisors alike are often tempted to apply its principles and rules even in situations below the threshold of an armed conflict, situations for which international humanitarian law is not designed. This is due to the fact that a great many military operations are conducted in situations ‘other than war’ in which specific international rules are either not available or more difficult to identify. Such extensive recourse to international humanitarian law appears to be all the more natural, as in non-international armed conflicts rules on the conduct of hostilities have become practically speaking congruent with the rules applicable to international armed conflicts.1 Fundamental norms of international humanitarian law require soldiers to make a distinction between civilian objects and military objectives, avoid attacks that would cause unnecessary suffering or superfluous injury, and observe principles of humanity. For military operations below the threshold of an armed conflict these principles are also meaningful, yet they need to be adapted. In turn, rules of ‘peacetime’ international law are of increasing importance for contemporary military operations. Military operations are not confined to the conduct of armed hostilities. They definitely go beyond, including, e.g., logistics, intelligence gathering, detention operations and many other different tasks. To be executed in a professional manner, the relevant law applicable for each operation must be identified and complied with by the armed forces. In many States this task was discerned at an early stage and military advisors, acting in the service of the ruler, or assisting commanders on the interpretation and application of existing rules, have also been engaged in law creation. In later centuries, law-making became more regularised and legal principles and rules related to military operations have become part of formal decision-making processes designed to ensure lawfulness and appropriateness of military operations. In international military cooperation this is reflected by rules of

1

See Fleck 2013, Section 1216; Sivakumaran 2012, at 337–429.

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engagement, ensuring the exercise of command and control while not limiting the right of self-defence.2 More recent developments have led to the use of military legal advisors to explain existing obligations and facilitate their implementation,3 a task that was first shaped in conventional international humanitarian law,4 confirmed as customary law for international and non-international armed conflicts,5 and is challenging military lawyers not only in armed conflicts, but likewise in military operations ‘other than war’, including national law enforcement activities and other military tasks such as peace operations, training and exercises, i.e. during all activities of the armed forces. Specific challenges for military legal advisors may derive from the particular nature of the mission to be performed: Is it part of a UN peace operation following the general regulations applicable in such cases?6 Or is it a deployment of NATO or regional organizations with different rules to be applied?7 Which additional requirements may derive from multinational military operations?8 And once these more general legal issues are solved: what are the mission-specific challenges of the particular operation? It is Terry’s unique achievement to have explained the International Law of Military Operations (ILMO) as comprising various existing branches of international law, which ‘interact with each other and influence and regulate and shape the way in which contemporary military operations are planned and conducted’.9 Many different issues of conventional and customary international law have been addressed in this endeavour, but deliberately no enumerative list has been established, as the dynamics of military operations in practice are (and must remain) open to change. Thus the contents of ILMO is open-ended; it comprises any rules that may become relevant for the particular military operation; and it is certainly true that it also reveals a number of gaps in legal regulation. While international law has originally been developed as a legal order binding States, there is an important impact for individual people as bearers of rights and obligations in this context. As far as human rights are concerned, these are designed to protect the individual against the State, and the full application of these rights depends on a functioning legal order of the State, i.e. its exercise of jurisdiction. The latter generally depends on territorial control, a condition that becomes particularly relevant in exceptional situations, such as detentions of persons either for

2

Boddens Hosang 2017, at 476. See for the United States Lietzau and Rutigliano 2015, at 25–32, and more generally Rogers and Stewart 2015, at 581–609. 4 Article 82 of the 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (AP I), 1125 UNTS 3. 5 Rule 141 CIHL 2005. 6 Leuven Manual 2017. 7 Fleck and Klappe 2018a, at 728–32, and 736–7. 8 Fleck et al. 2018b, at 48. 9 Gill and Fleck 2015, at 5. 3

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security reasons or criminal prosecution. But in peace operations there are two further aspects that underline the significance of extraterritorial application of human rights obligations: the Security Council and/or a regional organization may (and should) request peacekeepers to respect and protect human rights; and even where this is not the case, peacekeepers are to respect the law of the Host State including its obligations under international law of which human rights are an important part. In non-international armed conflicts insurgents or armed opposition groups are likewise bound to human rights obligations under international law, as much as they may claim rights under international humanitarian law. This is of practical importance both for government forces and for foreign peacekeepers acting in the country. As many military operations are conducted in transitional phases between war and peace, not infrequently even in grey zones, it is important to understand ILMO as an open system that may be adapted to new developments, rather than an enumerative list of rules applicable to more or less fixed situations, and to enable commanders to find convincing solutions in cases of doubt and controversy.10 The debate on international legal principles of self-defence against non-State actors shows very well that obligations designed for classic armed conflicts between States have to be adapted to new situations, in which armed forces are involved. Yet there is, indeed, no convincing reason to distinguish between armed attacks conducted by autonomous non-State armed groups from attacks conducted by States or State-controlled armed groups.11 Legal constraints are thus firmly rooted in military operations today, and it is fair to say that full compliance with the law is an essential condition of operational effectiveness.

4.3

Some Typical Principles and Rules of the International Law of Military Operations

Military operations are by no means confined to ‘classical’ tasks in the conduct of hostilities; the role of the military in law enforcement, be it at the national level in support of the police, or at the international level in peace operations, is considerably expanding, requiring similar, yet often also quite different legal limitations.12 Special operations such as information operations13 and cyber operations14 must be conducted in areas of limited open access and slowly developing regulation. 10

Fleck and Gill 2015, at 615–8. Gill and Tibori-Szabó 2019, at 505. 12 Melzer and Gaggioli Gasteyger 2015, at 75–92. 13 Cathcart 2015, at 444–55. 14 Ducheine 2015, at 456–75. 11

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It is true that many principles and rules of ILMO are informed by an individual-centred (as distinct from and supplementing a strictly State-centred) understanding of international law today. Whilst international humanitarian law on the one hand still today largely rests on the traditional, State-centred view that denies individuals a possibility of directly claiming rights against an adversary and rather expects their home State to protect them, human rights law is much more progressive in providing individual citizens with direct claims against their own government and any other government. This shows the diversity of areas of regulation and the importance of State responsibility not only towards other States but also towards individuals in this context. Some caution is in place here: It is still uncertain whether such an individual-centred view will hold on a global scale. International law may no longer be seen as being dominated by Western States who have been at the forefront of developing human rights law so far. The rise of ‘BRICS States’ (Brazil, Russia, India, China, and South Africa) and a concomitant decline of the West (U.S. and Europe) make future developments rather unpredictable.15 A convincing answer remains difficult for the time being: it may well be influenced by the professional behaviour of armed forces cooperating on an international scale. Military best practice is an important asset for legal development. Not only States, but also international organizations, such as the UN, AU, EU, OAS, and NATO, do have a distinct influence in strengthening responsibility and accountability in the planning and conduct of military operations. Some typical principles and rules of ILMO shall be exemplified here. Deriving from quite different sources of international law, i.e. the law of Sending States flowing from status-of-forces agreements and general principles of international law (Sect. 4.3.1), human rights obligations binding States in military and non-military activities alike (Sect. 4.3.2), international humanitarian law as the traditional and best regulated body of rules governing military operations (Sect. 4.3.3), and respect for the law of the Host State as an important principle of international law (Sect. 4.3.4), ILMO may be portrayed as an overarching legal regulation of military operations that although being ‘special’, needs to be applied in the context of general international law.

4.3.1

The Law of the Sending State

In the practice of military operations the law of the Sending State is a prominent starting point for any search for, interpretation of and commitment to ILMO rules. This is so due to the historical development of legal constraints for military operations addressed above (Sect. 4.2), the impact of national experience and traditions

15

Peters 2016, at 3.

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for any military unit, and the fact that implementation of legal obligations in any national armed force is finally a matter of State responsibility. Even in international peace operations, which are conducted under international command and control, troop-contributing States retain certain powers and responsibilities. They may see an importance in exercising higher standards than those generally applicable in the pertinent international organization, and make this explicit in caveats binding their national contingents within the operation.16

4.3.2

Human Rights

There may be a certain reluctance in military circles to accept obligations under human rights law during extraterritorial military operations. This is because human rights law is generally considered to apply only to the extent that individuals—the claimants of human rights – are subject to the jurisdiction of the State or international organization that conducts the operation.17 Jurisdiction is generally to be exercised by the territorial State, not by foreign armed forces, but in many situations including robust peace operations, a foreign armed force is mandated to exercise effective control over individual civilians staying within its premises or even in the wider area of operations, so that the foreign Sending State and/or the international organization conducting the operation may be responsible under human rights law,18 and this responsibility may be invoked by the Host State or even by individuals. It may appear a paradox that the implementation of human rights, the branch of international law that prominently figures for individual rights of citizens and a progressive extension of protective duties of governments towards individuals, lies foremost in the hands of States and that the omnipresent State seems to be an ideal of human rights treaty law, almost ‘as a secular saviour’.19 The role of foreign Sending States and international organizations exercising control of extraterritorial military operations may help to bring this situation into greater balance. Foreign armed forces have a potential of, if not the mandate for, supporting the rule of law in the Receiving State. In any event, non-observance of human rights in military operations will be counterproductive for the success of the operation.

16

Leuven Manual 2017, at 135–8. Gill and Fleck 2015, at 35. 18 Kleffner 2015, at 54–7; Leuven Manual 2017, at 76–90. 19 Tomuschat 2014, at 8, observing that little thought has been given in the legal doctrine of human rights to this issue so far. 17

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International Humanitarian Law

As emphasised above (Sect. 4.2), international humanitarian law applies to military operations as soon as the threshold of an (international or non-international) armed conflict has been reached. While this fully depends on the factual situation (on the ground) (and may be judged differently in different areas of a military operation), declarations by the parties to the conflict (or by international organizations such as the UN Security Council or the ICRC) may have some indicative value in this context. Yet the question of the exact technical applicability of international humanitarian law may be overruled by the fact that principles and rules underlying this legal branch may also protect those affected by military operations outside an armed conflict. Avoidance of unnecessary suffering, a distinction between military objectives and civilian objects and humanity should, indeed, direct military operations in peace and war alike. The same applies to more specific rules of international humanitarian law governing the protection of victims, the lawful treatment of detainees, due regard for the natural environment, or cooperation in the prosecution of breaches. A reassurance of these legal principles and rules will help meet current challenges in all military operations. A very similar phenomenon can be seen in the law of peace operations. Here the Security Council generally confirms the importance of consent of the parties, impartiality, and non-use of force except for self-defence and defence of the mandate as principles governing peace support and peace enforcement alike. The Council has deviated from these bedrock principles in the Democratic Republic of the Congo, without achieving more than a short-term advantage in its efforts to establish peace and security: acting ‘on an exceptional basis and without creating a precedent or any prejudice to the agreed principles of peacekeeping’ the Council established a new ‘Intervention Brigade’ under the direct command of the MONUSCO Force Commander to forcefully respond to illegal attacks against civilians.20 This was an extreme fall back, but the United Nations were fully aware of the fact that ‘MONUSCO may end up becoming a party to armed hostilities in the DRC, thus triggering the application of international humanitarian law’.21 It remains important to ensure that all members of a peace operation who are not taking part in hostilities will not be made the object of attacks, but are protected as civilians and respected in the performance of their mission.

20

SC Res 2098 (2013), para 9. Ms. Patricia O’Brien, Under-Secretary-General for Legal Affairs, The Legal Counsel, in her statement before the International Law Commission in Geneva on 23 May 2013, http://legal.un. org/ola/media/info_from_lc/ILC%20Legal%20Counsel%20statementrev3may20.pdf. 21

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4.3.4

55

Respect for the Law of the Host State

As organs of their sovereign Sending States, visiting forces are not to ‘apply’ the law of the Host State, but to ‘respect’ it. This is the obligation confirmed in paras 6 and 7 of the UN Model SOFA,22 in many SOFAs between States including Article II of the NATO SOFA,23 and for diplomatic and consular personnel in the Vienna Diplomatic and Consular Conventions.24 It must be evaluated with respect to the obligations of the Receiving State vis-à-vis the Visiting Force and interpreted in the context of international law.25 The Law of the Host State progressively includes obligations of ‘peacetime international law’ that continues to apply during armed conflict.26 Visiting Forces must respect such obligations irrespective of whether their Sending State has adopted them. This may become relevant in practice, for example for local standards of environmental protection. Respect for the law of the Host State may not be reduced to mere lip service. It is a core legal principle, as it flows from the sovereignty of the Host State, and it may become decisive for the success of any extraterritorial military operation ‘to keep the power balance fluid’27 even in periods of transition and strengthen the Host State and local communities in the execution of good governance.

4.4

The Need to Overcome Fragmentation

ILMO, as a new branch of international law, well integrates principles, rules and provisions which have been developed in various other branches of international law. It thus stands for a development that may help to overcome the complexity of legal fragmentation which has been a matter of particular concern in recent years, characterized as ‘a rise of specialized rules and rule systems that have no clear relationship to each other’.28

22

Model Status-of-Forces Agreement for Peacekeeping Operations (UN Model SOFA), UN-Doc A/45/494 (9 October 1990), reprinted with a short commentary in Oswald 2018. 23 Agreement between the Parties to the North Atlantic Treaty Regarding the Status of Their Forces —NATO SOFA—(19 June 1951, 199 UNTS 67). 24 Article 41 (1) of the Vienna Convention on Diplomatic Relations (18 April 1961, 500 UNTS 147) and Article 55 (1) of the Vienna Convention on Consular Relations (24 April 1963, 596 UNTS 261). 25 Muños-Mosquera 2018, at 105. 26 See International Law Commission, Draft Articles on Effects of Armed Conflicts on Treaties, UN-Doc A/66/473, UNGA Res 66/98 (13 January 2012). 27 Barma 2017, at 206. 28 Pauwelyn 2006, para 1.

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The fragmentation of current international law in its various branches and special regimes has been thoroughly discussed in full observance of principles of legal methodology.29 State practice and the practice of international organizations have an important contribution to make in informing and influencing this debate. It should not be surprising to find the military in the forefront of such activities. Professional armed forces are bound to comply with a variety of obligations arising from various activities of States and international organizations. They are, much more than many other State organs, operating in different environments and for different purposes, often facing different challenges at the same time. It is also worth noting in this context that they are acting under a particularly strict control system. Military practice shows that the notion of special regime cannot solve all problems of law application arising in practice. Hence in many instances attempts to overcome fragmentation have to be made. Sound solutions may be found in the complementarity of existing rules and a convincing development of best practice. De-fragmentation as ‘a set of good practices, essentially based on self-discipline’30 is a task which should not be left to courts and tribunals. It should be taken up by those who have to apply the law in first instance. Armed forces are called to meet this challenge.

4.5

Conclusions

The law of military operations is multi-faceted. Its different areas of regulation are characterised by a distinct openness towards new operational developments. It is in this sense that ILMO ‘serves a purpose as not only being a specialized area of international law, but also as an instrument to promote compliance with the law in a special context, that of military operation’.31 Armed forces are often tasked to operate in situations that are not clearly regulated by specific legal rules. They are then challenged to identify guiding principles and rules by analogy. A readiness to improvise is key for most military operations, but there is rarely a total freedom of action. Military commanders may find this regrettable in some situations. Yet observing legal constraints may add to the effectiveness of military performance. There is much work still to do to fully put ILMO into practice. Terry’s support in this important activity will also be required in the future.

29

International Law Commission—ILC—Fragmentation of International Law, Report of the ILC Study Group, finalized by Martti Koskenniemi, UN-Doc A/CN.4/L.682 (2006). 30 Pasquet 2018, para 72. 31 Gill and Fleck 2015, at 13.

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References Barma NH (2017) The Peacebuilding Puzzle—Political Order in Post-Conflict States. Cambridge University Press, Cambridge Boddens Hosang JFR (2017) Rules of Engagement: Rules on the Use of Force as Linchpin for the International Law of Military Operations, doctoral dissertation, University of Amsterdam, at https://dare.uva.nl/search?identifier=691ccb62-371e-4e09-94d3-3793f4b3a54d Cathcart B (2015) Legal Dimensions of Special Operations and Information Operations, Chapter 22. In: Gill TD, Fleck D (eds) The Handbook of the International Law of Military Operations, 2nd edn. Oxford University Press, Oxford, pp 444–55 CIHL (2005) International Committee of the Red Cross, Customary International Humanitarian Law (Henckaerts J-M, Doswald-Beck L (eds), 2 vols). Cambridge University Press, Cambridge, with update at Customary IHL Database, http://www.icrc.org/customary-ihl/eng/ docs/home Ducheine P (2015) Military Cyber Operations, Chapter 23. In: Gill TD, Fleck D (eds) The Handbook of the International Law of Military Operations, 2nd edn. Oxford University Press, Oxford, pp 456–75 Fleck D (2013) The Law of Non-International Armed Conflict, Chapter 12 in Fleck D (ed) The Handbook of International Humanitarian Law, 3rd edn. Oxford University Press, Oxford, pp 581–610 Fleck D, Gill T D (2015) International Law for Military Operations. Conclusion and Perspectives, Chapter 32. In: Gill TD, Fleck D (eds) The Handbook of the International Law of Military Operations, 2nd edn. Oxford University Press, Oxford, pp 610–618 Fleck D, Klappe BF (2018a) Visiting Forces in an Operational Context, Chapter 47. In: Fleck D (ed) The Handbook of the Law of Visiting Forces, 2nd edn. Oxford University Press, Oxford, pp 727–739 Fleck D, Newton MA, Grenfell K (2018b) Multinational Military Operations, Chapter 3. In: Fleck D (ed) The Handbook of International Humanitarian Law, 3rd edn. Oxford University Press, Oxford, pp 33–49 Gill TD, Fleck D (eds) (2015) The Handbook of the International Law of Military Operations, 2nd edn. Oxford University Press, Oxford Gill TD, Tibori-Szabó K (2019) Twelve Key Questions on Self-Defense against Non-State Actors. International Law Studies 95:467–505 Kleffner JK (2015) Human Rights and International Humanitarian Law, Chapter 3. In: Gill TD, Fleck D (eds) The Handbook of the International Law of Military Operations, 2nd edn. Oxford University Press, Oxford, pp 35–62 Leuven Manual [Leuven Manual on the International Law Applicable to Peace Operations Prepared by an International Group of Experts at the Invitation of the International Society for Military Law and the Law of War] (2017). Cambridge University Press, Cambridge Lietzau WK, Rutigliano Jr JA (2015) History and Development of the International Law of Military Operations, Chapter 2. In: Gill TD, Fleck D (eds) The Handbook of the International Law of Military Operations, 2nd edn. Oxford University Press, Oxford, pp 14–34 Melzer N, Gaggioli Gasteyger G (2015) Conceptual Distinction and Overlaps Between Law Enforcement and the Conduct of Hostilities, Chapter 4. In: Gill TD, Fleck D (eds) The Handbook of the International Law of Military Operations, 2nd edn. Oxford University Press, Oxford, pp 63–92 Muños-Mosquera A (2018) Respect for the Law of the Receiving State. In: Fleck D (ed) The Handbook of the Law of Visiting Forces, 2nd edn. Oxford University Press, Oxford, pp 94– 105 Oswald B (2018) Documents on the Law of UN Peace Operations, 2nd edn. Oxford University Press, Oxford Pasquet L (2018) De-Fragmentation Techniques. Max Planck Encyclopedia of International Procedural Law. Oxford Public International Law

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Pauwelyn J (2006) Fragmentation of International Law. Max Planck Encyclopedia of International Procedural Law. Oxford Public International Law Peters A (2016) Beyond Human Rights—The Legal Status of the Individual in International Law. Cambridge University Press, Cambridge Rogers APV, Stewart D (2015) The Role of the Military Legal Advisor, Chapter 31. In: Gill TD, Fleck D (eds) The Handbook of the International Law of Military Operations, 2nd edn. Oxford University Press, Oxford, pp 581–609 Sivakumaran S (2012), The International Law of Non-International Armed Conflict. Oxford University Press, Oxford Tomuschat Chr (2014) Human Rights Between Idealism and Realism, 3rd edn. Oxford University Press, Oxford

Dr. Dieter Fleck is the former Director International Agreements and Policy at the German Federal Ministry of Defence. He chaired the Committee on Arms Control and Disarmament Law of the International Law Association, and is the Rapporteur of the Association’s new Committee on Nuclear Weapons, Non-proliferation and Contemporary International Law. Together with Terry Gill, he is the co-editor on the Handbook of the Law of International Military Operations.

Chapter 5

Decision-Making and Parliamentary Control for International Military (Cyber) Operations by the Netherlands Armed Forces Paul A. L. Ducheine, Kraesten L. Arnold, and Peter B. M. J. Pijpers

Contents 5.1

5.2 5.3 5.4 5.5

5.6

5.7

Introduction...................................................................................................................... 5.1.1 Aim ..................................................................................................................... 5.1.2 Structure.............................................................................................................. Constitutional Purpose..................................................................................................... Core Tasks....................................................................................................................... Key Actors: Government and Parliament ....................................................................... Second Purpose/Core Task: Article 100 Procedure ....................................................... 5.5.1 Scenario: UN Security Council Mandate........................................................... 5.5.2 Substance ............................................................................................................ 5.5.3 Right of Consent?............................................................................................... First Purpose/Core Task: Defence .................................................................................. 5.6.1 Scenario: Armed Cyber Attack .......................................................................... 5.6.2 Procedure ............................................................................................................ Third Purpose/Core Task: Protecting Vital Interests ...................................................... 5.7.1 Scenario: Cyber Hijacking .................................................................................

61 63 63 64 65 66 68 68 68 69 72 72 73 75 75

This chapter is an updated and supplemented version of the article written in Dutch by P. A. L. Ducheine and K. L. Arnold, ‘Besluitvorming bij cyberoperaties’ and published in the Militaire Spectator [Military Spectator], Vol 184, 2015-2, pp. 56–70. www.militairespectator.nl/ thema/recht-cyberoperations/artikel/besluitvorming-bij-cyberoperaties. The authors wish to thank Colonel (Ret.) Dr. Joop Voetelink once again for his suggestions. P. A. L. Ducheine (&)
K. L. Arnold
P. B. M. J. Pijpers Netherlands Defence Academy, Breda, The Netherlands e-mail: [email protected] P. A. L. Ducheine Faculty of Law, University of Amsterdam, Amsterdam, The Netherlands K. L. Arnold e-mail: [email protected] P. B. M. J. Pijpers e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2021 R. Bartels et al. (eds.), Military Operations and the Notion of Control Under International Law, https://doi.org/10.1007/978-94-6265-395-5_5

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5.7.2 Objective............................................................................................................. 5.7.3 Procedure ............................................................................................................ 5.8 Overlapping Objectives ................................................................................................... 5.9 Special Operations........................................................................................................... 5.9.1 Scenarios: MH-17, Ransom Payments, and the MIVD .................................... 5.9.2 Objective............................................................................................................. 5.9.3 Procedure ............................................................................................................ 5.10 Conclusion ....................................................................................................................... References ..................................................................................................................................

75 75 76 76 77 77 77 79 80

Abstract This chapter focuses on the highly pertinent issues of political decision-making, the provision of information to parliament and parliamentary control related to the international ‘deployment’ of military cyber capabilities by the Netherlands armed forces. These military cyber operations will be based on the threefold purpose taken from the Constitution: defending the Kingdom, including collective defence; maintaining and promoting the international legal order; and protecting other (vital) interests of the Kingdom. The chapter’s main conclusions are, first, that in all cases, the deployment of cyber capabilities is a political decision that rests with the government. Therein, the government always takes note of the Chief of Defence’s (CHOD) military advice and the Military Intelligence and Security Service’s (MIVD) assessment. Second, in all cases a proper international legal basis and mandate for the cross-border deployment of cyber capabilities is required. Notwithstanding government’s supreme authority over the armed forces, in all cases the deployment of cyber capabilities by the government is also subject to parliamentary control and oversight, although the way in which it does so differs according to the purpose or core task concerned. The chapter concludes that the decision-making, information procedure and parliamentary control usually adheres to the standard model, based on Article 100 of the Constitution for ‘maintaining and promoting the international legal order’ as the basic modus operandi warranting a normal political control and accountability process. The procedure for deployments related to self-defence formally differs from the so-called Article 100 procedure, but in terms of substance shares many similarities with it. The same applies to the expeditionary protection of other vital interests of the Kingdom. The procedure is different for specific operations in cyberspace that are classified as ‘special operations’ owing to their ‘substantial political and military risks and the need for strict secrecy’. The decision to deploy is made by the Ministerial Core Group on Special Operations (MKSO), which determines when and to what extent to involve or inform the rest of the government. It also decides how and when parliament should be informed. This evidently impacts on the features of parliamentary control. In short, although the government ultimately decides whether or not to commit military cyber capabilities to cross border military operations, its decision is subject to regular parliamentary control and oversight.

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Keywords Parliamentary control armed forces cyber operations self-defence consent UN mandate national security vital interests




5.1










Introduction

The establishment of the Defence Cyber Command marks an important step in the Netherlands’ military development in cyberspace.1 Since the end of 2015, the government could rely on digital capability as part of fighting power comprising capacities as well as conceptual and moral components. After all, no capability without capacities, whilst capacities are useless without the political will to deploy them or if the appropriate decision-making procedures have not been identified. However, the core question is whether the ubiquitous attributes of cyberspace and cyber operations induce alterations in the existing procedures? In this chapter, we analyse and describe the various procedures for political decision-making on the deployment of these cyber capabilities and for informing parliament. With the establishment of the Defence Cyber Command (DCC) on 25 September 2014, the then Minister of Defence, Jeanine Hennis-Plasschaert, gave a further impulse to the Defence Cyber Strategy launched by her predecessor at the Netherlands Defence Academy in June 2012.2 Among the strategy’s six focal points, the following three have attracted the most attention: strengthening the digital resilience of the Defence organisation (defensive element); developing the military capability to conduct cyber operations (offensive element); and strengthening intelligence capabilities in the digital domain (intelligence element).3 While defensive measures and efforts to strengthen the digital intelligence capabilities of the Defence Intelligence and Security Service (MIVD) were already underway,4 the DCC’s planned ‘military capabilities’ had to wait for their official launch, gaining the status of being fully operational capable. In those days, and maybe still today, several issues need to be addressed and resolved. These issues were first discussed at a meeting on cyber warfare between the Minister of Defence and the Permanent Parliamentary Committees on Defence, Foreign Affairs, the Interior, and Security and Justice, on 26 March 2014.5

1

See: Ducheine et al. 2017, pp. 159–161. Parliamentary Papers II 2011-2012, 33 321, no. 1, Defence Cyber Strategy (hereinafter, DCS), p. 1. 3 DCS, p. 3. This was reiterated in the ‘Update of the Defence Cyber Strategy’ of 23 February 2015. Parliamentary Papers II 2014-2015, 33 321, no. 5; and the Defence Cyber Strategy 2018, Parliamentary Papers II 2018-2019, 33 321 no. 9. 4 Including the expansion of the Defence Computer Emergency Response Team (DefCERT) through a joint initiative with the General Intelligence and Security Service (AIVD) and the Joint Sigint Cyber Unit (JSCU). 5 Parliamentary Papers II 2013-2014, 33 321, no. 4, Report of a meeting on the Defence Cyber Strategy on 26 March 2014 (hereinafter, DCS meeting report). 2

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Many of the questions raised at this meeting concerned the legitimacy and legality of cyber operations.6 This was not surprising, given that the meeting was prompted by the joint advisory report on cyber warfare of the Advisory Council on International Affairs (AIV) and the Advisory Committee on Issues of Public International Law (CAVV) of 20117 and the government’s responses to this report.8 The AIV/CAVV report focused on two key issues: the legal bases for initiating military (and non-military) cyber operations, and the applicability of international humanitarian law as a legal regime when conducting military cyber operations.9 In its initial response, the government broadly accepted the report’s findings and recommendations.10 More recently, the Netherlands government explicitly acknowledged that a cyber attack could trigger the right to self-defence.11 These aspects of legitimacy, that is legality—the legal bases (e.g. self-defence) and legal regimes (e.g. international humanitarian law) for cyber operations—have already been examined in earlier publications.12 Issues that have so far received little attention, but which were discussed at length during the above-mentioned ‘cyber warfare’ parliamentary meeting, are— political—decision-making, the provision of information to parliament and hence the features of parliamentary control and oversight.13 In other words, who qualifies that the Netherlands faces a cyber attack crossing the threshold of an armed attack, triggering the right to self-defence?14 Who informs whom?15 And, of course, who monitors whom?16 These pertinent questions have not been discussed in much detail.17

6

Legitimacy comprises legality (legal basis and legal regimes) and public support. See: Ducheine and Pouw 2012, p. 33. 7 AIV/CAVV, Cyber Warfare, advisory report no. 77/22 (December 2011), available at: http:// www.aiv-advice.nl and Parliamentary Papers II 2011-2012, 33 000 X, no. 68 (hereinafter, AIV/ CAVV report). 8 Parliamentary Papers II 2011-2012, 33 000 X, no. 79 and follow-up letters Parliamentary Papers II 2011-2012, 33 000 X, no. 99 and Parliamentary Papers II 2013-2014, 33 321, no. 3. 9 For the full text of the request for advice, see AIV/CAVV report, Annex 1. 10 Parliamentary Papers II 2011-2012, 33 000 X, no. 79. 11 Parliamentary Papers II 2018-2019, 33 694, no. 47 (International law in cyberspace), p. 4: “at this time it cannot be ruled out that a cyber operation with a very serious financial or economic impact may qualify as the use of force” and pp. 8–9: “There is therefore no reason not to qualify a cyberattack against a computer or information system as an armed attack if the consequences are comparable to those of an attack with conventional or non-conventional weapons”. 12 Ducheine et al. 2012, pp. 101–128; Ducheine 2015, pp. 456–475; and Ducheine 2016. 13 DCS meeting report, p. 13. 14 M. P. Angelien Eijsink: ‘What is really interesting is who determines whether a cyber-attack should be regarded as an armed attack.’ DCS meeting report, p. 13. 15 DCS meeting report, p. 19. 16 Parliamentary Papers II 2013-2014, 33 321, no. 4, pp. 3, 10. 17 For a short description, see DCS meeting report, pp. 12–13.

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Aim

In this chapter, we therefore analyse and describe the procedures for political decision-making on and informing parliament about the commitment or deployment of military cyber capabilities in cross border military operations. Our analysis is based on the assumption that—by now—the government actually has such capabilities at its disposal, in addition to regular military units and special forces.18 We will focus on expeditionary military operations that fall under the responsibility of the Chief of Defence, covering the entire breadth of the armed forces’ three core tasks. Hence, military police operations and military assistance to the civil authorities in the domestic arena, as well as operations conducted by the Defence Intelligence and Security Service (MIVD) are beyond the scope of this chapter.19 In her letter to parliament on offensive cyber capabilities, the Minister of Defence starts from the premise that ‘Cyber capabilities [will] form an integral part of the overall military capability of the Netherlands armed forces. […] In terms of planning and implementation, cyber operations are broadly similar to traditional military operations.’20 Our own premise is that cyber capabilities are a relatively new addition to the spectrum of military capabilities but that their introduction is highly compatible with accepted procedures, doctrines and concepts regarding command and control.21

5.1.2

Structure

For armed forces to fulfil their mission in the digital domain,22 it is vital to define the military objectives as clearly as possible. With this in mind, we start with a description of the constitutional purpose of the Netherlands’ armed forces, which is supposed to guide all military efforts. We then briefly consider the core tasks of the armed forces. After this, we describe the key actors in the decision-making process on military deployment—government and parliament—and analyse their individual roles. The reason for this approach is that the constitutional purpose of the armed 18

Special forces units: Korps Commandotroepen (KCT) and parts of the Marine Corps. These units can carry out both special and regular operations. In the case of special operations, a specific decision-making procedure applies (see Sect. 5.9). 19 These operations are based on domestic legislation such as the 2012 Police Act and the 2017 Intelligence and Security Services Act. Moreover, these operations are not conducted as military operations under the responsibility of the CHoD. 20 Parliamentary Papers II 2013-2014, 33 321, no. 3, p. 3. Reiterated in Defence Cyber Strategy 2018, Parliamentary Papers II 2018-2019, 33 321 no. 9, p. 13. 21 As can be seen in the Netherlands Armed Forces Doctrine for Military Cyberspace Operations 2019. 22 Taken from the title of a speech by the Minister of Defence, Hans Hillen, in Breda on 27 June 2012 to mark the launch of the DCS.

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forces also guides the decision-making procedures for and control/oversights mechanisms over military operations.23 Next, we analyse the decision-making procedures themselves. We introduce each procedure with a fictitious scenario concerning an expeditionary military cyber operation. First, we examine the procedure under Article 100 of the Constitution for missions ‘to maintain or promote the international legal order’ (hereinafter: the Article 100 procedure), followed by the procedure for national or collective defence. Next, we briefly consider the expeditionary protection of vital ‘interests of the Kingdom’ and missions with overlapping constitutional purposes. Finally, we examine the specific procedure for expeditionary ‘special operations’.

5.2

Constitutional Purpose

According to Article 97 of the Constitution, the Netherlands armed forces are an instrument of—and in support of—the Netherlands’ status as a democracy governed by the rule of law. This is apparent from their threefold purpose (first paragraph) and their subordination to the civil authorities (second paragraph): 1. There shall be armed forces for the defence and protection of the interests of the Kingdom, and in order to maintain and promote the international legal order. 2. The Government shall have supreme authority over the armed forces. The constitutional purpose of the armed forces is threefold. In view of how that purpose is linked to their core tasks, we have classified its three elements in the following order:24 • defending the Kingdom, including collective defence;25 • maintaining and promoting the international legal order; • protecting other interests of the Kingdom.26 These elements can overlap.27 Actually, the first two—defending the Kingdom and promoting the international legal order—coincide with several vital interests of the Kingdom.28 This interpretation is in keeping with the definition of the term

23

Ducheine 2012, pp. 15–32. Bovend’eert et al. 2004, p. 145, where one of the authors (J.W.A. Fleuren) uses the phrase: ‘this is a threefold task [sic]’. He relies on the list used by the government in its Explanatory Memorandum, see Parliamentary Papers II 1996-1997, 25 367, (R 1593), no. 3, p. 3. 25 Inter alia based on Article V NATO-Treaty or Article 42.7 EU Treaty. 26 Parliamentary Papers II 1996-1997, 25 367, (R 1593), no. 3 (Explanatory Memorandum), p. 3. 27 See AIV 2004. Also: Parliamentary Papers II 2013-2014, 29 521, no. 226. 28 Soetendaal 1997, p. 288. Also: Ducheine 2012, p. 20. 24

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‘national security’ in the 2007 Strategy National Security,29 the 2013 International Security Strategy30 and the 2019 National Security Strategy.31 Although their purposes are broadly defined, the armed forces cannot be deployed to protect all the interests of the Kingdom.32 In fact, they will only be deployed if one of the state’s vital interests is threatened or actually harmed.33 These six vital interests—physical security, economic security, ecological security, territorial integrity, the international legal order, and social and political stability— are part of the Netherlands’ national and international security strategies.34

5.3

Core Tasks

In consecutive Defence White Papers (2000, 2018), the Ministry of Defence converted and affirms the three constitutional purposes of the armed forces into the following three core tasks:35 • protecting the integrity of national and allied territory, including the Caribbean parts of the Kingdom; • promoting the international legal order and international stability; and • supporting civil authorities in the fields of law enforcement, disaster relief and humanitarian aid, both nationally and internationally. The differences between the constitutional purposes and the core tasks laid down in the Defence White Papers reveal that the third core task is formulated more restrictively than the third constitutional purpose: ‘protecting other interests of the Kingdom’.36 Since the White Paper is a policy document, it should be clear that the constitutional definition would prevail if the scope of the third core task were to 29

Parliamentary Papers II 2006-2007, 30 821, no. 1, Strategy National Security. Parliamentary Papers II 2012-2013, 33 694, no. 1, International Security Strategy: A Secure Netherlands in a Secure World. 31 Parliamentary Papers II 2018-2019, 30 821, no. 81, National Security Strategy 2019. 32 Ducheine 2008, p. 55 and Proceedings of the Senate 1997-1998, 22, 3 March 1998, pp. 1064– 1080; Parliamentary Papers I 1999-2000, 26 243 (R 1622), no. 165a (Memorandum of Reply), pp. 4–5. 33 Ducheine 2008, p. 20. Also: Soetendaal 1997, p. 288. See also Strategy National Security and International Security Strategy, supra fn. 29 and 30. 34 Interestingly, the 2019 National Security Strategy (p. 12) asserts that “cybersecurity is interwoven into all interests as well. In addition, the integrity of cyberspace has been added as an aspect of territorial security, which includes the availability, confidentiality and integrity of essential information services.” 35 Parliamentary Papers II 1999-2000, 26 800 X, no. 46, p. 41; Parliamentary Papers II 20172018, 34 919 no 1, p. 9. 36 On this, see Parliamentary Papers II 1996-1997, 25 367, (R 1593), no. 3 (Explanatory Memorandum), p. 3: ‘Protection of the other interests of the Kingdom includes, for example, military support (pursuant to [Article 58, 2012 Police Act 2012], military assistance to civilians in 30

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become the subject of debate. Such a debate would be conducted mainly in parliament, and its outcome would ultimately be determined by the views of the bodies responsible for the substance of the Constitution, namely the government and parliament. Decision-making procedures for the deployment of the armed forces, with or without cyber capabilities, are regulated by constitutional law. The government and parliament are the main actors in this respect. Although the Prime Minister and the Ministers of Defence and Foreign Affairs are key players when it comes to agenda-setting and decision-making, the Constitution does not recognise their authority in this area. The same applies to the Minister of Defence’s chief military adviser, the Chief of Defence (CHOD), who is also responsible for executing most missions.37 In light of the unity of government policy and the constitutional framework, we regard the government as a collective entity. We also examine its relations with the supervisory branch, as represented by parliament, from this perspective.

5.4

Key Actors: Government and Parliament

Relations between government and parliament are governed by written and unwritten constitutional law. Under normal political circumstances, the government ‘governs’ and parliament ‘scrutinises’. This axiom has two aspects. First, it is the government, not parliament, which governs. In its capacity as the executive branch, moreover, the government has various operational services at its disposal, including the armed forces. Second, the government accepts the oversight role of parliament, which, as a last resort, can invoke the most important constitutional rule of all: the rule of parliamentary confidence. In principle, if a minister or government loses the confidence of parliament, in particular the House of Representatives, the incumbent must resign. Article 97, para 2 of the Constitution contains a provision regarding control over the armed forces: ‘The Government shall have supreme authority over the armed forces.’ The government, or in practice the cabinet,38 thus has the prerogative to deploy the armed forces (or make them available).39

emergency situations, support for disaster relief efforts, for example in the event of floods or forest fires, and other forms of assistance.’ 37 See fn. 19 for operations and missions that fall outside his responsibility. 38 Officially, the government consists of the King and the ministers. Because of ministerial responsibility for sovereign immunity, decisions concerning the armed forces are made by the cabinet or a delegation thereof. 39 In accordance with the text of Article 100 of the Constitution, a distinction is made between deploying the armed forces and making them available.

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In the constitutional framework, parliament provides a fitting counterweight to this prerogative. The Netherlands parliament has several means at its disposal to directly and indirectly scrutinise the government and the armed forces. First, it shares responsibility for the substance of the Constitution with the government, which means that they jointly formulate the constitutional provisions on defence.40 Second, parliament is a co-legislator in the realm of statutory law. Examples relevant to the armed forces are the 2012 Police Act, which lays down the duties of the Royal Military and Border Police (Marechaussee) and regulates military assistance to the police, or the 2017 Act on Intelligence and Security Services. Third, parliament is responsible for approving the government’s budget acts. By withholding approval, it can influence government policy. Fourth, under Article 68 of the Constitution, the government is obliged under normal circumstances to respond to requests for information from parliament.41 Fifth, under Article 70 of the Constitution, parliament has a right of inquiry. Finally, parliament can influence the government by adopting motions. By means of a motion of non-confidence, for example, it can force the resignation of the government or individual ministers. On the other hand, the freedom of political parties in parliament to execute these powers is sometimes limited by coalition agreements. Written and unwritten42 constitutional law also contains instructions on informing parliament and adopting government decisions to deploy the armed forces (or make them available). In practice, this means that the government informs and formally or informally consults parliament about military deployments —either voluntarily or mandatory. The notion that the expeditionary deployment of the armed forces requires the support of parliament and society plays an important role in this regard as it provides one of the elements of legitimacy.43 However, the procedure for informing parliament about expeditionary operations differs for each constitutional purpose and core task. Given its prominence and the level of detail involved, we start with an explanation of the Article 100 procedure for missions falling under the second purpose/core task. After that, we discuss the other deployment options. In each case, we introduce our analysis of the decision-making and information procedures with a fictitious scenario that gives rise to the deployment in question and the decision whether or not to deploy military cyber capabilities.

40

See, e.g. Articles 97 and 100 of the Constitution. Article 68 of the Constitution states: ‘[…] provided that the provision of such information does not conflict with the interests of the State.’ 42 Unwritten constitutional law consists of non-codified rules, such as the principle of parliamentary confidence. 43 Kristic 2012. 41

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Second Purpose/Core Task: Article 100 Procedure Scenario: UN Security Council Mandate

We will illustrate the reasons for using the Article 100 decision-making procedure with two short fictitious scenarios concerning cyber activities against international terrorist group ‘Z@’. The UN Security Council has previously concluded in a resolution that this group, Z@, poses a threat to international peace and security within the meaning of Article 39 of the UN Charter. This serves as a prelude to a follow-up resolution in which the Security Council authorises the use of ‘all necessary means’ to combat Z@ within a defined area or for a certain cause. This resolution provides the legal basis for military deployment. A coalition of states asks the Netherlands to contribute a cyber task force in 2020, in light of its new ‘niche capability’ in this area. The task force possesses several cyber instruments generating tactical effects and the knowledge to develop and deploy a high-quality cyber instrument producing strategic effects.

5.5.2

Substance

Since 2000, Article 100 of the Constitution provides that the government—after having decided on the issue—shall inform parliament of its decision to deploy the armed forces (or make them available) for the purpose of certain expeditionary operations (e.g. international crisis management operations) in a timely manner, i.e. before deployment.44 The following criteria play a role in this regard: • military units are deployed (or made available) to maintain or promote the international legal order or to provide humanitarian aid in the event of armed conflict; • the military personnel are deployed as a unit; • the performance of the military task also involves using or risking exposure to armed force.45 In certain situations, the government is—temporarily—relieved of its duty to inform parliament, for example in the case of special operations (see Sect. 5.9). When cyber capabilities are deployed as part of a Task Force characterised by the above criteria, Article 100 applies to the whole of that Task Force. This appears

Article 100, para 1 of the Constitution states: ‘The Government shall inform the States General in advance if the armed forces are to be deployed or made available to maintain or promote the international legal order. This shall include the provision of humanitarian aid in the event of armed conflict.’ 45 Parliamentary Papers II 2013-2014, 29 521, no. 226, p. 1. 44

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to be the most likely deployment setting.46 In some cases, however, where the element of “using or risking exposure to armed force” is less evident, or where the cyber capabilities are operating from within the Netherlands’ territory, it is less clear whether Article 100 formally applies. In those circumstances, one would have to fall back on the analogous procedure described in Sect. 5.6. In addition to the government’s specific duty to inform parliament of its decisions prior to deployment, parliament has a general right to information under Article 68 of the Constitution.47 This means that members of parliament can request additional information from the government at any time, even prior to or during military missions about which they have already been informed pursuant to Article 100 of the Constitution or otherwise. Article 68 thus has a broader scope than Article 100, but requires parliament to take the initiative.

5.5.3

Right of Consent?

Opinions on the meaning of Article 100 of the Constitution are divided. According to one view, parliament has a substantive right of consent. This appears to be the case because, after informing parliament of its decision to deploy the armed forces, the government tries to secure support for this decision bearing in mind that the government is mandated by a coalition of political parties. As a result, parliament has a certain amount of leeway to influence government decisions. The government increases this leeway by sounding out the opinions of coalition and opposition parties in advance and responding accordingly, for example by changing the force composition, ruling out high-risk areas or tasks, and so forth. Motions (e.g. requesting changes in the conditions of the deployment) are part of the same picture. On this issue, the government notes: This means that both houses of parliament receive information concerning the decision in question in a timely manner, which can result in a debate in which motions are adopted. The government will give serious consideration to such motions and will not dismiss them lightly. In these circumstances, it cannot be ruled out that the government will reconsider its decision and the implementation of that decision in whole or in part.48

Another view emphasises the fact that parliament has no formal or substantive right of consent, since it only has a formal right of information.49 Bovend’eert

46

See infra fn. 59. Article 68 of the Constitution states: ‘Ministers and State Secretaries shall provide, orally or in writing, the Houses either separately or in joint session with any information requested by one or more members, provided that the provision of such information does not conflict with the interests of the State.’ 48 Parliamentary Papers I 1999-2000, 26 243 (R 1622), no. 165a (Memorandum of Reply), p. 6. 49 Parliamentary Papers II 2005-2006, 30 162, no. 3 (Report of the committee chaired by MP Hans van Baalen), p. 18. 47

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points out, for example, that the government can and should decide on its own, that it is not obliged to implement parliamentary motions and that even a motion of no-confidence cannot curtail its authority to deploy the armed forces.50

5.5.3.1

Procedure

Regardless of whether or not parliament has a right of consent, there is consensus on the various steps of the information and decision-making procedure, which unfolds in the following way: • Letter of notification: The government informs parliament that, in response to a request from an international organisation or on its own initiative, the civil service is examining the ‘desirability and feasibility’ of contributing to a crisis management operation. • Government decision: The civil service’s examination, which includes the CHOD’s military advice and the MIVD’s assessment, considers all potential military capabilities, including cyber capabilities, and results in a government decision. In the case of a negative decision, parliament is notified. In the case of a positive decision, the government informs parliament in accordance with Article 100 of the Constitution. • Article 100 letter: Prior to deploying the armed forces (or making them available), the government explains its decision with reference to the criteria of the Assessment Framework.51 In the case of an extension or premature conclusion of a deployment, a change in the relevant mandate or tasks or a change in the area of responsibility (AOR) that has implications for the mandate or tasks, the government issues a new Article 100 letter. • Parliamentary debate: As a rule, the House of Representatives places the Article 100 letter on its agenda, after which a debate takes place. In principle, all options are available during this debate. In response to motions, questions or a lack of sufficient backing, the government can reconsider, amend or nevertheless persist in its decision. The government usually secures parliament’s backing by the end of the debate. According to popular opinion, parliament is then said to have ‘consented’ [sic] to the mission. • After the parliamentary debate, the government informs the organisation or coalition that is directing the operation of its decision. It then informs parliament of the response to its offer. • Progress reports: While the deployment is being prepared and the operation is being carried out, the government regularly informs parliament about progress and developments by meeting with the relevant parliamentary committees or otherwise.

50

Bovend’eert 1998, p. 1596. Except for special operations, see below.

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• Interim evaluation: Every year, on the third Wednesday in May, parliament receives an interim evaluation from the Ministers of Defence and Foreign Affairs concerning all current operations in which Dutch military units are participating. • Final evaluation: After the Netherlands’ deployment has ended, the government presents parliament with a final evaluation of the operation, which touches on its military and political aspects. This evaluation is discussed in parliament. • Post-mission assessment: In addition, in certain cases,52 the government has recently started issuing post-mission assessments that evaluate the impact of the Netherlands’ participation in Article 100 missions five years after the end of the mission. This assessment focuses on developments in the mission area after the conclusion of the Dutch deployment and on the effects of the deployment that are still discernible.53

5.5.3.2

Assessment Framework

The preparation of the government’s decision by the civil service, the Article 100 letter and, where relevant, the ensuing parliamentary debate follow the criteria of the Frame of Reference for Decision-Making for the Deployment of Military Units Abroad (also known as the Assessment Framework).54 This Assessment Framework, which has been enshrined in policy, serves two aims: to guarantee the quality of the decision-making process and to facilitate oversight and the assessment of government decisions by parliament: It is specifically intended for decision-making by the government and its consultations with parliament concerning the deployment of military units that, in the performance of their tasks, may be required to use or risk exposure to armed force.55

The Assessment Framework contains a list of criteria that are used to reach a well-reasoned military and political decision on Dutch participation in crisis management operations on a case-by-case basis.56 Depending on the nature of the mission, the criteria on the list carry different weight. Moreover, they are not absolute values: their weight is relative and they are often measured in qualitative

The final evaluations of Dutch contributions to Article 100 missions indicate whether a post-mission assessment will be carried out. 53 See Parliamentary Papers II 2011-2012, 29 251, no. 191 and Parliamentary Papers II 20122013, 29 251, no. 195. 54 Parliamentary Papers II 1994-1995, 23 591, no. 5, with updates in 2001, 2005, 2009 and 2014. 55 Parliamentary Papers II 2000-2001, 26 454, no. 7–8 (Final report of the Temporary Committee on Decision-Making on Deployment (TCBU)), p. 3. 56 Parliamentary Papers II 2000-2001, 23 591 and 26 454, no. 7, p. 3. 52

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terms. The Assessment Framework is thus not a list of binding conditions that need to be met one after the other before a decision can be made.57 Key criteria include, for example, the grounds for the mission, including its legal basis and mandate, feasibility and effectiveness, influence and risks. Feasibility relates to the required military capability, including the ‘size and composition of the military units and the equipment and weapons issued to them’.58 It appears that composition, equipment and weapons also cover potential cyber capabilities: This means that cyber capabilities supplement existing military capabilities and that the two should be deployed in an integrated manner. It also means that issues relating to the digital domain should be included in the planning and preparation of operations. In cases where Article 100 applies to a military deployment, the same applies to the relevant cyber units.59

The Assessment Framework also covers the Concept of Operations for and the Rules of Engagement of the military operation.60 Although it officially only applies to Article 100 missions, the Assessment Framework and the criteria it introduces can also play a role in decision-making, oversight and assessment regarding other missions (see below).61

5.6 5.6.1

First Purpose/Core Task: Defence Scenario: Armed Cyber Attack

A NATO ally suffers a cyber attack on its already vulnerable power grid. Despite preventive government measures and campaigns, public life comes to a standstill following an unexpected cascading failure.62 Trains, public lighting, traffic controls, households and utilities are all without power for a prolonged period. Although opening hours and transport options are limited, a run on stores and banks quickly develops, and the lack of money and food leads to mass riots in which looting and destruction are commonplace. The emergency services and public order agencies are hindered in their work. As a result, public order and physical safety are no longer guaranteed. Political and social unrest takes on unacceptable forms.

57

Parliamentary Papers II 2005-2006, 30 162, no. 3 (Report of the Van Baalen Committee), p. 28. Parliamentary Papers I 2013-2014, 29 521, D, p. 17. 59 Parliamentary Papers I 2013-2014, 29 521, D, pp. 5–6. 60 Parliamentary Papers I 2013-2014, 29 521, D, p. 17: ‘The description of the concept of operations specifies the military objectives, the end situation to be achieved, and the tasks and modus operandi of the military unit.’ 61 Parliamentary Papers II 2005-2006, 30 162, no. 3 (Report of the Van Baalen Committee), p. 28. See also the government’s position in Parliamentary Papers I 2013-2014, 29 521, D, p. 3. 62 Shakarian et al. 2014. 58

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With the conclusions of the NATO summits in Wales and Brussels in mind,63 the North Atlantic Council states that if it can be demonstrated that the attack was directed from abroad, it should be qualified as an ‘armed attack’ within the meaning of Article V of the NATO Treaty and Article 51 of the UN Charter, in light of its scale and effects. In line with its response to the AIV/CAVV’s advisory report on cyber warfare, which examined this issue, the government instructs the Kingdom of the Netherlands’ Permanent Representative to NATO as follows: A serious, organised cyber attack on essential functions of the state could conceivably be qualified as an ‘armed attack’ within the meaning of Article 51 of the UN Charter if it could or did lead to serious disruption of the functioning of the state or serious and long-lasting consequences for the stability of the state. In such cases, there must be a disruption of the state and/or society, or a sustained attempt thereto, and not merely an impediment to or delay in the normal performance of tasks for it to be qualified as an armed attack.64

When it becomes clear from digital forensic analysis and other intelligence sources that the cyber attack was launched from the Middle East by the state-affiliated armed group ‘EXIT’ operating transnationally, the North Atlantic Council reconvenes and determines that it was indeed an ‘armed attack’ within the meaning of Article V of the NATO Treaty. Knowing that the Netherlands also has troops stationed in the Middle East, the ally subsequently requests military assistance for a response in self-defence.

5.6.2

Procedure

Operations conducted in the framework of alliance obligations, such as NATO and EU operations, fall outside the scope of the Article 100 procedure (see above). The same applies to several other deployment options that do not fall under Article 100 of the Constitution.65 In other words, the government is not under a formal

NATO Wales Summit Declaration (2014): ‘Cyber attacks can reach a threshold that threatens national and Euro-Atlantic prosperity, security, and stability. Their impact could be as harmful to modern societies as a conventional attack. We affirm therefore that cyber defence is part of NATO’s core task of collective defence. A decision as to when a cyber attack would lead to the invocation of Article 5 would be taken by the North Atlantic Council on a case-by-case basis.’ See www.nato.int/cps/en/natohq/official_texts_112964.htm. In Brussels, NATO (2018) stated that the cyber threats to the security of the Alliance are becoming more frequent, complex, destructive, and coercive.’ See www.nato.int/cps/en/natophqofficial_texts_156624.htm. 64 AIV/CAVV report, p. 20. 65 However, the parliamentary right of information enshrined in Article 68 of the Constitution applies without restriction to these kinds of operations, including individual deployments, civil missions, humanitarian aid missions, etc. 63

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constitutional obligation to inform parliament in such cases. Nevertheless, it does so voluntarily by analogy with the Article 100 procedure:66 [T]he government [strives] to keep the House fully informed, where possible in advance and where necessary in retrospect. […] The main objective is to inform the House in a manner that is as similar as possible to the Article 100 procedure.67

The government is thus honouring its undertaking to also ‘seek to inform parliament as swiftly and comprehensively as possible’ in cases falling outside the scope of Article 100.68 The procedure in such cases is as follows: • letter of notification (outlining the ‘desirability and feasibility’ of participation);69 • government decision following the civil service’s examination (including the CHOD’s military advice and the MIVD’s assessment); • letter of information to parliament;70 • parliamentary debate; • provision of information to the alliance or international coalition that is directing the operation; • progress reports during the preparation and implementation of the operation; • interim evaluation of current operations (the third Wednesday in May); • final evaluation.71 In practice, missions carried out under the first core task will follow a decision-making and information procedure analogous to that of Article 100 operations. The difference is in the formal aspects, namely the voluntary nature of the provision of information, the lack of specific references to Article 100 of the Constitution and the fact that the criteria of the Assessment Framework are not a compulsory part of the decision-making process.72

66 Parliamentary Papers II 2005-2006, 30 162, no. 3 (Report of the Van Baalen Committee/NRF report), p. 26. 67 Proceedings of the House of Representatives 2001-2002, 24, p. 1767. 68 Parliamentary Papers II 2000-2001, 23 591, no. 8, p. 5. Also: Proceedings of the House of Representatives 2004-2005, 56, p. 3661. 69 See, e.g., Parliamentary Papers II 2004-2005, 27 925, no. 170. 70 See, e.g., Parliamentary Papers II 2001-2002, 27 925, no. 24 and Parliamentary Papers II 2004-2005, 27 925, no. 159. This is different in the case of a special operation (see below). 71 See, e.g., Parliamentary Papers II 2006-2007, 29 521, no. 33, annex. For the time being, it appears that post-mission evaluations are not being used in this category of missions. 72 Parliamentary Papers I 2013-2014, 29 521, D, p. 3.

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Third Purpose/Core Task: Protecting Vital Interests Scenario: Cyber Hijacking

For some time now, the Netherlands has been providing protection for vulnerable Dutch merchant ships passing the Horn of Africa, off the Somali coast. The UN Security Council has not issued a mandate for this activity. In addition to combating piracy, the government sees the purpose of this military operation as protecting the Kingdom’s economic interests.73 It now appears that large and vulnerable special transport ships and dredgers from the Dutch company Dockwise are being ‘digitally hijacked’ by ransomware in Asia. The chair of the Royal Association of Netherlands Shipowners (KVNR) urges the government to investigate—and if necessary help counter—this new threat. Because of a lack of capacity in the civil domain, the government asks the Ministry of Defence whether the DCC can step in.

5.7.2

Objective

Besides the Defence organisation’s primary responsibility for protecting territorial security and the international legal order, the armed forces are also on hand to protect other vital interests, including social and political stability and economic, ecological and physical security. The civil authorities are generally responsible for protecting these interests. It is clear from the Defence Cyber Strategy and the Defence organisation’s ambitions that cyber capabilities should also be made available for the third purpose/core task. In other words, at the request of the civil authorities, cyber capabilities can also be deployed abroad to protect the Netherlands’ vital interests. The deployment of Vessel Protection Detachments (VPDs) to combat piracy and protect merchant shipping has served as a model for our analysis.

5.7.3

Procedure

In our view, the procedure operates as follows: • Request: The National Cyber Security Centre (NCSC) receives or formulates a request for assistance involving military cyber capabilities. • Government decision: After receiving the CHOD’s military advice and the MIVD’s assessment, the government can deploy the armed forces abroad to

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Parliamentary Papers II 2010-2011, 30 706, no. 1, in which the government classifies protecting the interests of the Kingdom as falling under the first core task.

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protect other vital interests of the Kingdom. The nature of the deployment will differ from case to case and may encompass regular, special-forces or cyber units. • Information: In the case of regular operations, including those with cyber capabilities, the government will inform parliament of its decision and the relevant considerations. In the case of long-term deployments, moreover, it will provide regular updates.74

5.8

Overlapping Objectives

If the armed forces are deployed (or made available) in pursuit of overlapping objectives, that is, for self-defence (first purpose) or the protection of vital interests (third purpose) as well as to maintain and promote the international legal order (second purpose), the government will follow the Article 100 procedure.75 This might apply, for example, in the case of action taken in self-defence following an armed attack, eliminating the attacker’s offensive military cyber or non-cyber capabilities, as this promotes the international legal order by reducing this threat to international peace and security.

5.9

Special Operations

Besides regular operations, including those with cyber capabilities, the government can also decide to commission special military operations characterised by ‘substantial political and military risks and the need for strict secrecy’.76 Such operations are usually carried out by special forces that have been ‘designated, trained and equipped to carry out missions under exceptional circumstances (secrecy, substantial security threats and extreme physical exertion)’.77 Examples of such operations include special intelligence gathering, special arrests, assaults on selected targets (direct action), military assistance for allies, evacuation of Dutch nationals from life-threatening situations and operations to combat international terrorism.78

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Cf. Parliamentary Papers II 2010-2011, 32 706, nos. 1 and 9. Parliamentary Papers II 2013-2014, 29 521, no. 226. 76 Parliamentary Papers II 1999-2000, 26 800 X, no. 46, p. 1. 77 Parliamentary Papers II 1999-2000, 26 800 X, no. 46, p. 1. 78 Parliamentary Papers II 2000-2001, 27 400 X, no. 29, p. 2. 75

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Scenarios: MH-17, Ransom Payments, and the MIVD

Scenario 1: Cyber protection of the MH-17 investigation. The investigation into (and on-site collection of evidence concerning) the crash/downing of flight MH-17 is being seriously hampered by a foreign party using cyber capabilities. To ensure that the investigation can continue unimpeded, the Netherlands decides to deploy additional security measures, including the DCC’s cyber capabilities. To increase the chances of success and in light of political sensitivities, the government decides to keep this decision secret. Scenario 2: Digital recovery of ransom payments in Somalia. In resolution 2020, the UN Security Council extended its authorisation of the use of ‘all necessary means’ to combat piracy in Somalia’s territorial waters and on Somali territory. After a ship-owner has paid a ransom to secure the release of one of its ships and its international crew, the international military force in the region asks the Netherlands if it is willing to use its cyber capabilities to track the ransom payment and, if the money in question is located within Somalia’s jurisdiction, to secure and recover the funds by digital means. Scenario 3: The CHOD is asked to deploy military cyber capabilities in support of an MIVD operation in a foreign country. The first and third scenarios can be classified under the third purpose/core task, which is to protect the vital interests of the Kingdom. The second scenario is also related to efforts to promote the international legal order and combat piracy.

5.9.2

Objective

Special operations can be carried out for several reasons, including defence, maintaining and promoting the international legal order or protecting other vital interests of the Kingdom. In other words, special operations can be commissioned under the first, second and third purpose/core task.

5.9.3

Procedure

The government has stated that, ‘in accordance with Article 100, paras 1 and 2 of the Constitution, it will inform parliament about special military operations in a manner that respects the States General’s involvement in deployment of the armed forces in exceptional circumstances, the existing constitutional framework and the need for secrecy that surrounds such operations.’79 In the case of the second purpose/core task, Article 100 provides the government with the option of 79

Parliamentary Papers II 2000-2001, 27 400 X, no. 29, p. 3.

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informing parliament only later or to a limited extent. This exception is enshrined in the second paragraph.80 It applies to: emergencies and other situations in which military personnel must be deployed at very short notice, or military interventions which can only be meaningful if they take place unannounced and in the strictest secrecy, for instance if there is imminent danger in life-threatening situations and action must be taken promptly or in strict secrecy. In such acute emergencies, it may be impossible to supply information in advance.81

If it decides to invoke this exception, or if there are other reasons to favour a special operation, the government follows a procedure that has been described and explained in other letters to parliament.82 This procedure operates as follows: • Establishment of a Ministerial Core Group on Special Operations (MKSO): At its first (constitutive) meeting following a change of government, the cabinet establishes an MKSO, which includes at least one minister from each coalition party in order to guarantee sufficient support. In 2020, the MKSO consisted of the Prime Minister, the (three) Deputy Prime Ministers and the Ministers of Defence and Foreign Affairs. • In each case, after receiving a recommendation from the civil service (including the CHOD’s military advice and the MIVD’s assessment), the MKSO decides whether or not to commission a special operation. • The MKSO also decides whether and, if so, when to include other members of the cabinet in the decision-making process. • Finally, the MKSO decides how and when to inform parliament (in accordance with Article 100 of the Constitution or otherwise). Options include submitting a concise report to the leaders of the parliamentary parties in advance or issuing a brief description of the operation afterwards.83 Since the entry into force of Article 100 of the Constitution in 2000, the government has not made use of the ‘exceptional circumstances’ clause enshrined in the article’s second paragraph.84 Before that, the Minister of Defence presented a brief description of a special operation to parliament on at least one occasion.85 When committing capabilities under the first and third core purpose/task only, the government will apply the procedure set out above as well. The only exception Article 100, para 2 of the Constitution states: ‘The provisions of paragraph 1 shall not apply if compelling reasons exist to prevent the provision of information in advance. In this event, information shall be supplied as soon as possible.’ 81 Parliamentary Papers I 2013-2014, 29 521, D, pp. 2–3, which states that Article 100, para 2 of the Constitution has yet to be invoked. 82 Parliamentary Papers II 1999-2000, 26,800 X, no. 46, Parliamentary Papers II 2000-2001, 27,400 X, no. 29, Parliamentary Papers II 2017-2018, 34 775 X, no. 88 (Special Operations & Secret Operations). 83 Parliamentary Papers II 1999-2000, 26 800 X, no. 46, p. 2. 84 Parliamentary Papers I 2013-2014, 29 521, D, p. 3. 85 This was in the case of Operation Amber Star, in which the Netherlands helped arrest war crimes suspects in the former Yugoslavia. See Parliamentary Papers II 1997-1998, 22 181, no. 193. 80

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concerns the formal reference to Article 100 and the fact that Article 100 and its second paragraph itself are not applicable. Given their characteristics, we suspect that a certain proportion of cyber capabilities will be deployed under the heading of ‘substantial political and military risks and the need for strict secrecy’. In other words, the decision to deploy these capabilities will often be made by the MKSO and will be followed by the provision of limited information.

5.10

Conclusion

This chapter focuses on the highly pertinent issues of political decision-making and the provision of information to parliament in the context of the deployment of military cyber capabilities. In all cases, the decision to deploy cyber capabilities (or make them available) rests with the government. The government always takes note of the CHOD’s military advice and the MIVD’s assessment. It also informs parliament, although the way in which it does so differs according to the purpose/core task concerned. Under the constitutional framework, parliament can actually influence the government’s decision. We conclude that the decision-making and information procedure, also for operations in cyberspace, usually adheres to the standard model when overt deployments are at stake, which in turn facilitates a normal accountability process. Decisions regarding deployments of cyber capabilities that have been classified as special operations are in the hands of a small part of the government, namely the Ministerial Core Group on Special Operations (MKSO). The information procedure is different in such cases, which must not be attributed to the cyber domain environment but to the sensitive circumstances of the mission. After examining the constitutional purpose of the armed forces, we have identified the Article 100 procedure for ‘maintaining and promoting the international legal order’ as the basic modus operandi. The civil service’s examination of the aim and necessity of deploying the armed forces, which is preceded by a letter of notification from the government to parliament, results in a positive or negative government decision. In the case of a positive decision, the government sends parliament an Article 100 letter. The criteria of the Assessment Framework serve as a guideline for the civil service’s examination, the government’s decision and the Article 100 letter. Parliament is responsible for placing the debate with the government concerning the decision on its agenda. Before, during and after each deployment, the government, acting in response to a request or on its own initiative, provides information through interim evaluations, final evaluations and/or post-mission assessments. The procedure for defence-related deployments formally differs from the Article 100 procedure but in terms of substance shares many similarities with it. The same applies to the expeditionary protection of other vital interests of the Kingdom.

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The procedure is different for specific cyber operations that are classified as special operations owing to their ‘substantial political and military risks and the need for strict secrecy’. The decision to deploy is made by the MKSO, which determines when and to what extent to involve or inform the rest of the government. It also decides how and when parliament should be informed. In all cases, parliament can make use of the normal oversight mechanisms that it has at its disposal, including questions, debates, motions and, if necessary, motions of no-confidence and its right of inquiry. In short, although the government ultimately decides whether or not to deploy cyber capabilities abroad, its decision is subject to regular parliamentary oversight. This is how it should be in a democracy governed by the rule of law, where the armed forces must carry out their military tasks to the fullest extent of their constitutional purpose, including in the digital domain.

References AIV Advisory Council on International Affairs (2004) The Netherlands and Crisis Management: Three Issues of Current Interest. Advisory Report no. 34. Bovend’eert PPT (1998) De inzet van strijdkrachten zonder toestemming van de Staten-Generaal [Deployment of the armed forces without the consent of the States General]. Nederlands Juristenblad, 2 October 1998, 35:1594–2024. Bovend’eert PTT et al. (2004) Grondwet voor het Koninkrijk der Nederland, Tekst & Commentaar [Constitution of the Kingdom of the Netherlands: text and commentary]. Kluwer. Deventer. Ducheine PAL (2008) Krijgsmacht, geweldgebruik & terreurbestrijding: een onderzoek naar juridische aspecten van de rol van strijdkrachten (Ph.D. University of Amsterdam). Wolf Legal Publishers, Nijmegen. Ducheine PAL (2012) Parliamentary Involvement in the Netherlands’ Military Operations Abroad. In: Hardt S, Verhey L, van der Woude W (eds) Parliaments and Military Missions. Europa Law Publishing Groningen, pp. 15–32. Ducheine PAL (2015) Military Cyber Operations. In: Gill TD, Fleck D (eds) The Handbook of International Law of Military Operations, 2nd edn. OUP, Oxford, pp. 456–475. Ducheine PAL (2016) ‘Je hoeft geen zwaard en schild te dragen om ridder te zijn’ - Mythen over digitale oorlogsvoering en recht (Oratie UvA). AUP, Amsterdam www.oratiereeks.nl/upload/ pdf/PDF-6825weboratie_Ducheine_-_DEF.pdf. Also published in: Militaire Spectator, 185(2): 123–135, via www.militairespectator.nl/thema/recht-cyberoperations/artikel/%E2%80%98jehoeft-geen-zwaard-en-schild-te-dragen-om-ridder-te-zijn%E2%80%99. Ducheine PAL, Pouw EH (2012) Legitimizing the use of force: Legal bases for Operations Enduring Freedom and ISAF. In: Beeres R et al. (eds) Mission Uruzgan – Collaborating in Multiple Coalitions for Afghanistan. Pallas Publications/Amsterdam University Press, Amsterdam, pp. 33–46, 67–80. Ducheine PAL, van Haaster J, van Harskamp R (2017) Manoeuvring and Generating Effects in the Information Environment. In: Ducheine P, Osinga F (eds) NLARMS Netherlands Annual Review of Military Studies 2017 - Winning without Killing - The Strategic and Operational Utility of Non-Kinetic Capabilities in Crises. TMC Asser Press, The Hague, pp. 155–180. Via SSRN: papers.ssrn.com/sol3/papers.cfm?abstract_id=2979287. Ducheine P, Voetelink J, Stinissen J, Gill TD (2012) Towards a Legal Framework for Military Cyber Operations. In: Ducheine P, Osinga F, Soeters J (eds) NL ARMS 2012 – Cyber Warfare: Critical Perspectives. TMC Asser Press, The Hague, pp. 101–128.

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Kristic A (2012) De Staten-Generaal en de inzet van de Nederlandse Krijgsmacht [The States General and the deployment of the Dutch Armed Forces] (Ph.D., Tilburg University). Kluwer, Deventer. Netherlands Armed Forces Doctrine for Military Cyberspace Operations (2019) The Hague, June 2019 (on file with the authors). Shakarian P, Lei H, Lindelauf R (2014) Power Grid Defense Against Malicious Cascading Failure. 13th International Conference of Autonomous Agents and Multiagent Systems (AAMAS-14), May 2014, available at: www.usma.edu/nsc/SiteAssets/SitePages/Publications/POWER_ GRID_DEF.pdf. Soetendaal E (1997) Boeiend en geboeid, enige beschouwingen over de wijziging van de defensiebepalingen in de Grondwet [Captivating and captive: some observations on the amendment of the defence provisions in the Constitution]. In: Militair Rechtelijk Tijdschrift 90 (9):285–297.

Brigadier-General Prof. Dr. Paul A. L. Ducheine M.Sc. LL.M. is a Professor for Cyber Operations and Cyber Security at the Netherlands Defence Academy and a Professor of the Law of Military Cyber Operations at the University of Amsterdam. He obtained his Ph.D., supervised by Prof. Terry Gill, on the legal framework for military counter terrorism operations in 2008, from the University of Amsterdam. Lieutenant-Colonel Kraesten L. Arnold EMSD M.Sc. is an Assistant Professor for Cyber Warfare at the War Studies Department of the Netherlands Defence Academy. As an Air Defence Officer, he is a graduate from the Netherlands General Command & Staff Course and the Cyber Security Academy at Leiden-Delft University. He served as the Deputy Commander of the Netherlands’ Task Force Cyber, and he is the editor of the Netherlands’ Defence Doctrine for Military Cyber Operations. Colonel (GS) Peter B. M. J. Pijpers M.Sc. LL.M. is the Associate Professor for Cyber Warfare at the War Studies Department at the Netherlands Defence Academy. His Ph.D. research on international digital interference and intervention in political processes, is supervised by Prof. Paul Ducheine and Prof. Terry Gill at the Amsterdam Center for International Law at the University of Amsterdam.

Chapter 6

Control and the Right to Self-Defence Against Non-State Actors Kinga Tibori-Szabó

Contents 6.1 Introduction........................................................................................................................ 6.2 Attribution and Control ..................................................................................................... 6.2.1 Attribution of the Conduct of Private Persons to a State...................................... 6.2.2 Control Tests .......................................................................................................... 6.3 The Reality on the Ground ............................................................................................... 6.3.1 Sending Was a Thing of the 1950s ....................................................................... 6.3.2 Less Control but More Harbouring........................................................................ 6.3.3 The Age of the Unwilling and Unable .................................................................. 6.4 Bridging the Gap ............................................................................................................... 6.4.1 Aiders and Abettors Beware .................................................................................. 6.4.2 It’s (Not) All About Consent ................................................................................. 6.4.3 Aren’t We Forgetting Something? ......................................................................... 6.4.4 Self-Defence, Territory and Control ...................................................................... 6.5 Conclusion ......................................................................................................................... References ..................................................................................................................................

84 86 87 88 91 91 93 95 98 99 99 100 102 103 104

Abstract This contribution examines the concept of control in the context of self-defence against armed attacks carried out by armed groups. After a brief introduction of the relevant questions, the second section delineates briefly the concept of attribution in the context of state responsibility, the relevance of control within that framework and the various ‘control tests’ formulated in this regard. The third section sets these notions against the reality in the international arena when it

The views expressed herein are entirely the author’s alone and do not necessarily represent or reflect the views of the author’s current or former employers. K. Tibori-Szabó (&) University of Amsterdam, Amsterdam, The Netherlands e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2021 R. Bartels et al. (eds.), Military Operations and the Notion of Control Under International Law, https://doi.org/10.1007/978-94-6265-395-5_6

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comes to the exercise of self-defence against armed attacks carried out by armed groups. The fourth section discusses the relevance of control, attribution and international responsibility in the context of self-defence against armed groups. The contribution’s conclusion is that the concept of control is auxiliary, but extrinsic to the inherent essence of the right of self-defence. Keywords self-defence actors armed groups





attribution
control
state responsibility
non-state

Frank Wheatley: Hey Karl, what are you carryin’ around them books for? Karl Childers: I ain’t got no place to set ‘em down. (Sling Blade, 1996)

It is a privilege to contribute to this volume in honour of Terry and I write this chapter with gratitude for the mentoring, legal discussions and other ingenious conversations I benefited from over the last eighteen years. Despite belonging to different generations and originating from different corners of the world, our common interests cover a vast range of topics, from jus ad bellum and anticipatory self-defence, through naval history and classical music, all the way to the battle scene in Stanley Kubrick’s Barry Lyndon or Billy Bob Thornton’s lines in Sling Blade. It is my hope that our remarkable friendship will continue over many years to come.

6.1

Introduction

At least since the adoption of the UN Charter, the right of self-defence has been one of the most debated topics of public international law. Whether invoked in Security Council sessions or discussed in law school classrooms, self-defence has always mustered differing points of view. This may seem odd at first sight: what could be so controversial about a right allowing states to defend themselves against an armed attack? After all, the right of self-defence has an acknowledged customary international law basis and is enshrined in Article 51 of the UN Charter.1 It allows the use of force by a state against an armed attack so long as such use of force is necessary and proportionate.2 Such a simple description conceals, however, many controversies. Just to name a few: does self-defence allow use of force before an armed attack occurs? If so, how long before the armed attack can a state defend 1

International Court of Justice (ICJ), Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA), Judgment, 27 June 1986 (Nicaragua case), para 176. 2 Gill 2007, pp. 123–125; Gill 2015a, pp. 221–223.

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itself? When does the exercise of self-defence end? Can it last for years or decades? How is the proportionality of the use of force assessed? Can an armed attack be authored by an actor other than a state? If so, who is responsible for an armed attack carried out by a non-state actor, such as an armed group? How is that responsibility determined? It is not the aim of this contribution to address all of these undoubtedly intriguing issues. Instead, a particular aspect involving the last three questions will be addressed. For much of the twentieth century, the mainstream view on self-defence was that a state was permitted to use force against another state in response to an armed attack carried out by the latter’s organs, or by private individuals sent, directed or controlled by that state. This was in consonance with the international status quo after the adoption of the UN Charter. Until the late 1990s, only states were seen as capable of mounting large-scale or substantial uses of armed force, individually or through intergovernmental organisations such as the UN and NATO. Armed groups were considered largely dependent on state control and support and hence incapable of carrying out sizeable attacks on their own. For that reason, whenever a state suffered an armed attack at the hands of an armed group from outside its territory, the invocation of self-defence necessarily involved the attribution of the armed group’s conduct to another state. Admittedly, the measure of attribution was controversial, ranging from a strict precondition of states sending such groups to carry out attacks to a broader requirement of supporting or harbouring such groups. At the core of the debate on attribution stood the elusive concept of control – in other words, the nature and extent of the power a state exercised over an armed group and its conduct. Starting with the late 1990s, financially independent armed groups such as al-Qa’ida began acquiring importance. In the last two decades, such groups have morphed into global networks and affiliates largely outside the control of states, culminating into non-state entities such as ISIS. The new counterterrorism strategy published by the United States in October 2018, the first released since 2011, ably captures these developments by describing an increasingly complex and fluid terrorist landscape, ‘populated by a diverse array of actors employing new technologies and tactics to advance their agendas’.3 The terrorist threat, the strategy document states, is growing more dynamic and diffuse with an increasing number of groups, networks, and individuals exploiting global trends, including the emergence of more secure modes of communication, the expansion of social and mass media, and persistent instability across several regions.4 After acknowledging the continuing threat posed by ISIS and al-Qa’ida to carry out attacks against the United States and its interests, the strategy document underlines the global reach of ISIS, ‘with eight official branches and more than two dozen networks regularly

3

US National Strategy for Counterterrorism 2018, p. 7. US National Strategy for Counterterrorism 2018, p. 7.

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conducting terrorist and insurgent operations across Africa, Asia, Europe, and the Middle East’.5 The new landscape has had a significant impact on international affairs and the role of the state therein. It has also led to an increasing reliance of states on the right of self-defence in response to attacks by armed groups without attributing such attacks to a particular state. This has in turn raised questions on the relationship between the armed group that carried out the attack and the state on the territory of which such a group operates, i.e. the territorial state: what kind of link between the two qualifies as control by the latter of the former; what kind of responsibility can be incurred for what kind of control; and what happens when there is a visible lack of control by the territorial state of the armed group? This contribution endeavours to answer these questions and examine the concept of control in the context of self-defence against armed attacks carried out by armed groups. Accordingly, Sect. 6.2 briefly delineates the concept of attribution in the context of state responsibility, the relevance of control within that framework and the various ‘control tests’ formulated in this regard. Section 6.3 sets these notions against the reality in the international arena when it comes to the exercise of self-defence against armed attacks carried out by armed groups. Section 6.4 discusses the relevance of control, attribution and international responsibility in the context of self-defence against armed groups.

6.2

Attribution and Control

The concept of attribution belongs to the legal framework of state responsibility. Control is the measure through which the relationship between a government and individuals is assessed for the purpose of attribution. The rules governing state responsibility were the subject of several decades of codifying work of the International Law Commission (ILC),6 culminating in the adoption of the Draft Articles on State Responsibility (DASR) in December 2001.7 In the context of the use of force, questions regarding state responsibility, attribution 5

US National Strategy for Counterterrorism 2018, p. 8. The topic of state responsibility was selected by the International Law Commission (ILC) as suitable for codification in 1949. Four years later, in 1953, the UN General Assembly adopted a resolution requesting the ILC to codify the principles of international law governing state responsibility (Resolution 799 (VIII) of 7 December 1953) and two years later, in 1955, the Commission began the study of state responsibility by appointing its first Special Rapporteur on the topic. For a summary of the ensuing work and the final adoption of the Articles, see ILC, Summaries of the Work of the International Law Commission. http://legal.un.org/ilc/summaries/9_ 6.shtml. Accessed 17 November 2018. 7 The Draft Articles on Responsibility of States for Internationally Wrongful Acts (hereafter: DASR), as adopted by the International Law Commission in December 2001, were attached to the UNGA Resolution UN Doc. A/RES/56/83, Responsibility of States for internationally wrongful acts, 12 December 2001. 6

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and control were addressed by the International Court of Justice (ICJ, Court) and the International Criminal Tribunal for the Former Yugoslavia (ICTY). This codifying and judicial work has led to a relative crystallisation of the legal framework governing attribution and control in the context of state responsibility, albeit—as shown in Sects. 6.3 and 6.4—many controversies remain as to the practicality of these rules when set against the realities of the use of force in self-defence. Be that as it may, it is useful to set out these rules in relation to the attribution of private conduct to a state and the various ‘control tests’ through which such attribution can be made. This brief review will then assist in identifying the gaps between the legal framework and state practice in the context of self-defence.

6.2.1

Attribution of the Conduct of Private Persons to a State

Attribution is defined by the DASR as an element of a state’s internationally wrongful act. In accordance with Article 2 of the DASR, for a state to be held responsible for an internationally wrongful act, it is not enough that the conduct in question constitutes a breach of an international legal obligation, but the conduct itself must be attributable to that state under international law.8 The ILC Commentary for Article 2 provides that since the state cannot act of itself, an act of the state must involve some action or omission by a human being or a group. The question thus is which persons can be considered as acting on behalf of the state.9 Generally, at the international level, only the conduct of the state’s organs of government, or of others who have acted under the direction, instigation or control of those organs can be attributed to the state.10 Consequently, the conduct of private persons is not as such attributable to the state.11 However, under certain circumstances, the conduct of private persons may be attributable to a state if there exists a specific factual relationship between the person or entity engaging in the conduct and the state.12 According to the strict criteria set out by Article 8 of the DASR, such situations may only arise when the private persons are acting either on the instructions of the state or under its direction or control.13 The nature and extent of the specific factual relationship that must exist between a state and private persons in order for the former to incur responsibility for the conduct of the latter has been addressed by the ICJ and by the ICTY. This has led to the formulation of competing ‘control tests’, used in various fields of international 8

(Commentary for Article 2) DASR, p. 34. (Commentary for Article 2) DASR, p. 35. 10 (Commentary for Article 2) DASR, p. 38. 11 (Commentary for Article 2) DASR, p. 38. 12 (Commentary for Article 8) DASR, p. 47. 13 (Commentary for Article 8) DASR, p. 47. 9

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law, where state responsibility must be ascertained through the attribution of certain acts of private persons to a particular government.14 Their relevance for the exercise of self-defence is discussed below.

6.2.2

Control Tests

While attribution involves the assessment of the relationship between a state and private persons, the judgments of the ICJ and ICTY addressed attribution in the context of the link between a state and army factions or armed groups that were engaged in the use of force.

6.2.2.1

Complete Control

In its judgments in the Military and Paramilitary Activities in and against Nicaragua case (Nicaragua) and the Application of the Convention on the Prevention and Punishment of the Crime of Genocide case (Bosnian Genocide), the ICJ set out the most stringent level of control that a state can exercise over private persons or a group of such persons: when they are in a relationship of such complete dependence on the state that they cannot be considered otherwise than as its organs, and all their actions performed in such capacity are attributable to the state for purposes of international responsibility.15 This exceptional situation goes beyond the criteria of Article 8 of the DASR and requires not only acting upon instructions of the state, but also a ‘complete dependence’ that renders the private persons or the group the de facto organs of the state. Such a high degree of control would require ample proof with particular reference to the following factors: whether the group was created by the state; the degree of state support; whether complete control was in fact exercised; and whether the state selected, installed or financed the leaders of the group.16 Given the very high burden of proof, the ICJ itself could not find, in Nicaragua, that the contras exhibited this level of dependence on the United States, albeit the Court found that, at least during one period, the group could not conduct its crucial or most significant military or paramilitary activities without US support.17 Nonetheless, in the absence of adequate direct proof that ‘all or the great majority of contra activities’ received such support, the ICJ could not find that the contras acted as de facto organs of the

14

Boon 2014, pp. 2, 4–5. ICJ, Nicaragua case, para 115; ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, 26 February 2007 (Bosnian Genocide case), para 397. 16 ICJ, Nicaragua case, paras 107–112; Crawford 2013, p. 125. 17 ICJ, Nicaragua case, para 111. 15

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United States.18 Likewise, in Bosnian Genocide, the ICJ could not find that the paramilitary group ‘Scorpions’ was completely dependent on the Federal Yugoslav Republic and acted as its de facto organs.19

6.2.2.2

Effective Control

Alongside the ‘complete control test’, the ICJ also formulated another, lower degree test based on which acts of private persons or a group of such persons could still be attributed to a state. According to this test, the conduct of a group acting in accordance with a state’s instructions or under its ‘effective control’ in respect of each operation in which the alleged violations occurred could be attributed to that state. Importantly, it was not enough that the state exercised general control in respect of the overall actions taken by the group committing the violations.20 Article 8 of the DASR echoes the ‘effective control test’. According to the ILC commentary, acting upon instructions of the state entails the situation where the state supplements its official forces by recruiting private persons or groups who act as ‘auxiliaries’ or ‘volunteers’ while remaining outside the official state structure and who are then instructed to carry out specific acts abroad.21 As regards conduct under the direction or control of a state, the Commentary reiterates the requirement formulated by the ICJ, that the conduct in question is attributable to the state only if it directed or controlled the specific operation and the conduct was an integral part of that operation.22 In Nicaragua, the ICJ applied the ‘effective control test’ in the context of self-defence and acknowledged that an armed attack must be understood as including “‘the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to’ (inter alia) an actual armed attack conducted by regular forces, ‘or its substantial involvement therein’”.23 The Court was quoting from Article 3(g) of Definition of Aggression annexed to UN General Assembly Resolution 3314,24 which it regarded as reflecting customary international law.25 According to the ‘effective control test’, as applied by the ICJ and as explained in the ILC Commentary, an armed attack carried out by an armed group was to be attributed to a state if that state sent or instructed the group to carry out the attack or if the specific attack was carried out by the group under the direction or control of

18

ICJ, Nicaragua case, para 111. ICJ, Bosnian Genocide case, paras 389, 393, 395. 20 ICJ, Bosnian Genocide case, para 400. 21 (Commentary for Article 8) DASR, p. 47. 22 (Commentary for Article 8) DASR, p. 47. 23 ICJ, Nicaragua case, para 195. 24 UNGA Resolution 3314 UN Doc. A/RES/3314(XXIX) (14 December 1974) Article 3(g). See also Tibori-Szabó 2011, pp. 210, 249–251. 25 ICJ, Nicaragua case, para 195. 19

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the state. Based on this logic, the Court rejected the view that the provision of weapons or logistical or other forms of support to an armed group would also amount to an armed attack, although it acknowledged that such support may amount to a threat or use of force, or intervention in the internal or external affairs of other states.26 In the same vein, the Court considered that organising or encouraging the organisation of irregular forces or armed bands, for incursion into the territory of another state, prohibited by the Friendly Relations Declaration annexed to UNGA Resolution 2625, amounted to a less grave form of the use of force and did not, in itself, constitute an armed attack.27

6.2.2.3

Overall Control

The strict tests formulated by the ICJ were criticised for not fully corresponding to the reality in the international arena, where relationships between states and armed groups were increasingly complex, with various forms of substantial or less significant support taking the place of instructions or specific direction.28 The gap between the ‘effective control test’ and actual practice was also underlined by ICJ Judges dissenting to the Nicaragua judgment. Judge Jennings asserted that the provision of arms coupled with logistical or other support could amount to an armed attack on behalf of the host state.29 Likewise, Judge Schwebel emphasised that when a state’s support of armed groups was ‘so substantial as to embrace not only the provision of weapons and logistical support, but also participation in the re-organization of the rebellion (…)’, it should be construed as tantamount to an armed attack.30 The Appeals Chamber of the ICTY also found the ‘effective control test’ too restrictive. For the purpose of characterising the nature of the armed conflict at issue, the Appeals Chamber differentiated between private persons performing specific acts on behalf of a state on the territory of another and that of individuals forming a structured and organised group to carry out acts. In the first case, the ICTY required that such individuals would act on the specific instructions of the state, just as the ‘effective control test’ demanded. In the second case, the Tribunal found that a test of ‘overall control’, where a state had a role in organising, coordinating or planning the military action, in addition to financing, training, equipping or providing operational support for the group, was better placed than the ‘effective control’ test.31 26

ICJ, Nicaragua case, para 195. ICJ, Nicaragua case, para 191 referring to UNGA Resolution 2625 UN Doc. A/RES/2625 (XXV) (24 October 1970) Part I. 28 For a brief overview of such opinions, see Tibori-Szabó 2011, pp. 261–262. 29 ICJ, Nicaragua case, Dissenting Opinion of Judge Jennings, p. 543. 30 ICJ, Nicaragua case, Dissenting Opinion of Judge Schwebel, para 171. 31 International Criminal Tribunal for the Former Yugoslavia (ICTY), Prosecutor v. Duško Tadic, Appeals Chamber, Appeals Judgment, Case No. IT-94-1-A, 15 July 1999, paras 118–120, 137, 145. 27

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Nonetheless, the ICJ confirmed its approach in cases subsequent to the ICTY Appeals Chamber judgment.32 In Bosnian Genocide, the ICJ distanced itself from the ‘overall control test’, describing it as broadening the scope of state responsibility ‘well beyond the fundamental principle governing the law of international responsibility’.33 It held that a state was responsible only for its own conduct, which could only be the conduct of persons acting, on whatever basis, on its behalf.34 The three ‘control tests’ briefly described above have been widely discussed and debated by legal experts in various fields of international law.35 Before setting them against the realities of use of force and self-defence, it is useful to note that none of these tests and, for that matter, the concept of attribution itself, contemplate the international responsibility of an entity other than a state. The legal discussion and the rules set forth by the resolutions of the UNGA, the DASR and the judgments of the ICJ and ICTY address the responsibility of states and not that of any other entities. As shown in Sect. 6.4, in the context of use of force in self-defence, the exclusive focus on states as entities susceptible to international responsibility is creating an ever-widening gap between conduct and authorship on one hand, and responsibility for such conduct, on the other.

6.3

The Reality on the Ground

When it comes to state practice on self-defence, questions regarding the attribution of armed attacks to states have persisted since the first decade after the adoption of the UN Charter. As shown below, the evolution of state practice in this regard does not mirror the legislative and judicial developments referred to in the previous sections. Rather, it follows the dynamics of international affairs, the evolving nature and strength of non-state actors and the changing role of the state.

6.3.1

Sending Was a Thing of the 1950s

In the 1950s and 1960s, states invoked the right of self-defence against armed groups they perceived as being sent by other states. For instance, on the occasion of the 1956 Sinai campaign, Israel justified its actions as self-defence not only against 32

See for instance: Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, para 139; ICJ, Armed Activities on the Territory of Congo (DRC v Uganda), Judgement, 19 December 2005, para 160. 33 ICJ, Bosnian Genocide case, para 406. For a critical view of the Court’s judgment, see Cassese 2007. 34 ICJ, Bosnian Genocide case, para 406. For a critical view of the Court’s judgment, see Cassese 2007. 35 For an overview, see Becker 2006, pp. 66–82.

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the blocking of the Suez Canal, but also against the raids of the fedayeen, whom Israel claimed were sent by Egypt.36 In 1958, Lebanon and Jordan requested the help of the US and the UK in the face of subversive elements allegedly trained and sent by the United Arab Republic to infiltrate in the two countries’ domestic affairs.37 While such claims did not completely disappear in later decades, starting with the 1960s, self-defence arguments were invoked against states who were more generally directing or controlling or simply offering some form of support to armed groups. For instance, in 1968, Israel justified its intervention on Jordanian territory to disable alleged bases of Palestinian organisations and armed units by claiming that there was full operational coordination between the Jordanian army and the armed groups.38 Israel also justified its intervention in Lebanon on the basis that its government agreed with Palestinian organisations to allow them to operate from its territory, provided supplies and put up aid posts.39 Between 1969 and 1971, Portugal invoked the right of self-defence to justify its military actions against Guinea, Senegal and Zambia, claiming that repeated attacks were being carried out against its adjacent territories by armed groups based in these countries.40 Portugal claimed that these countries opened their territory to the armed groups and authorised their training and supply.41 At least on one occasion, Portugal also claimed that state troops had participated in such attacks.42 South Africa used similar arguments to justify its repeated interventions into neighbouring countries between the late 1970s and early 1980s. It claimed that these attacks were organised by the African National Congress and supported by the neighbouring states,43 which were harbouring ‘terrorist elements’ and sometimes providing facilities and weapons.44 By the late 1970s and early 1980s, claim of self-defence against attacks carried out by armed groups involved a rich basket of attribution theories, ranging from

36 GAOR, 1st Emergency Special Session, UN Doc. A/PV.562 (1956), paras 138–145. See also Tibori-Szabó 2011, pp. 204–205; Ruys 2010, pp. 394–396. 37 SCOR, 827th meeting, UN Doc. S/PV.827 (15 July 1958) para 71. See also Ruys 2010, pp. 396– 398. 38 UN Yearbook (1968), p. 211. 39 UN Yearbook (1970), pp. 227–228, 239; UN Yearbook (1972), pp. 157–159. 40 SCOR, 1486th meeting, UN Doc. S/PV.1486 (18 July 1969), paras 69–70; 1516th meeting, S/PV.1516 (4 December 1969) para 103; 1524th meeting, S/PV.1524 (18 December 1969), paras 73–74. See also Tibori-Szabó 2011, p. 208. 41 SCOR, 1486th meeting, UN Doc. S/PV.1486 (18 July 1969), para 68. 42 SCOR, 1516th meeting, UN Doc. S/PV.1516 (4 December 1969), paras 113-115; UN Yearbook (1969), p. 138. 43 SCOR, 2684th meeting, UN Doc. S/PV.2684 (22 May 1986), p. 22. See also Tibori-Szabó 2011, pp. 208–209. 44 UN Yearbook (1984), p. 181; SCOR, 2684th meeting, UN Doc. S/PV.2684 (22 May 1986), paras 22–23.

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state troops participating in raids or fully coordinating with the armed group to states organising, cooperating, offering supplies or openly harbouring armed groups. This medley of attribution theories was generally criticised or rejected in UN Security Council sessions, often for political rather than legal reasons.45 Members of the Security Council frequently challenged the veracity of the claims that the targeted states supported or harboured the armed groups, without delving into the limits of attribution.46 In any case, such reactions did not temper the invocation of self-defence against attacks carried out by armed groups, on the contrary, the attribution arguments became even broader.

6.3.2

Less Control but More Harbouring

For a long time until the 1990s, the principal proponent of the deliberate harbouring theory—i.e. that self-defence could be exercised against a state that harboured armed groups carrying out cross-border attacks against the defending state—was Israel. Between December 1968 and March 1969, Israel carried out several attacks against alleged ‘terror bases’ on Jordanian territory claiming that such units were ‘free to roam the country […] and enjoy full protection on the part of the regular Jordanian army.’47 In the next few years, Israel carried out similar attacks against alleged ‘bases of terrorist organizations’ in Lebanon.48 Although such arguments were categorically rejected by the Security Council on more than one occasion,49 Israel was soon to gain the support of an important ally, the United States. Justifying its abstention from voting for a Security Council resolution condemning the 1985 Israeli raid against the PLO headquarters in Tunis, the US representative stated: [W]e recognize and strongly support the principle that a State subjected to continuing terrorist attacks may respond with appropriate use of force to defend itself against further attacks. […] It is the collective responsibility of sovereign states to see that terrorism enjoys no sanctuary, no safe haven, and that those who practice it have no immunity from the responses their acts warrant. Moreover, it is the responsibility of each state to take appropriate steps to prevent persons or groups within its sovereign territory from perpetrating such acts.50

45

See e.g. regarding Portugal: UNSC Res 273 (1969); 294 (1971). Regarding South Africa: UNSC Res 387 (1976); 447 (1979); 466 (1980); 527 (1982); 545 (1983); 546 (1984). Regarding Israel: UNSC Res 265 (1969); 279 (1970); 313 (1972); 332 (1973); 450 (1979); 467 (1980). 46 Gill and Tibori-Szabó 2019, p. 478. 47 SCOR, 1466th meeting, UN Doc. S/PV.1466 (27 March 1969) paras 30, 62, 69; UN Doc S/9387 (12 August 1969); See also Tibori-Szabó 2011, pp. 205–207. 48 Tibori-Szabó 2011, p. 206; Ruys 2010, pp. 400–401; Tibori-Szabó 2015, p. 77. 49 UNSC Res 270 (1969); SC Res 279, 285 (1970); SC Res 313, 316 (1972). 50 SCOR, 2615th meeting, UN Doc. S/PV.2615 (4 October 1985) para 252. See also an earlier similar statement by the US: SCOR, 1860th meeting, UN Doc. S/PV.1860 (5 December 1975)

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At that time—one year before the Nicaragua judgment was issued—this line of reasoning did not gather much support. All other members of the Security Council condemned the Israeli raid and none seemed to adopt the US position.51 Nonetheless, by the late 1990s the attitude shifted. Reaction was mixed to Iran occasionally crossing the border into Iraq in the 1990s and early 2000s to use force against, inter alia, Kurdish strongholds, arguing that the Iraqi government in some form supported or harboured these groups.52 In 1998, the US justified the bombing of al-Qa’ida targets in Afghanistan and Sudan as last-resort measures after ‘repeated efforts to convince the Governments of the Sudan and the Taliban regime in Afghanistan to shut these terrorist activities down and to cease their cooperation with the Bin Laden organization.’53 Reaction to the bombing was no longer unanimous criticism or rejection. Most US allies, including Israel expressed their support, France and Italy showed moderate acquiescence, while Russia, China, Pakistan, Libya and Iraq condemned the action.54 The shift in attitude came at a time when it was becoming more and more apparent that at least some armed groups were not dependent on state support and could operate across national borders without being sent, instructed or controlled to any notable degree by a government. It is interesting to note that one year after the 1998 US bombings, the ICTY Appeals Chamber set out the ‘overall control test’. As practical as it looked at the time, at least in comparison with the ICJ’s ‘effective control test’, the ‘overall control test’ itself was already lagging behind the realities on the ground. The gap became brazenly apparent with the events of 9/11 and the international response thereto. The Security Council adopted Resolutions 1368 and 1373, referring to the inherent right of self-defence and stressing that any form of assistance to the perpetrators of the 9/11 attacks would be held fully to account.55 The US accused the Taliban of supporting al-Qa’ida by ‘the decision of the Taliban regime to allow the parts of Afghanistan that it controls to be used by this

paras 3-5 (the US vetoing a SC resolution condemning Israel on the basis that progress could not be achieved with one-sided resolutions that left Israel believing that it was the victim of discrimination and bias on the part of the United Nations). 51 SCOR, 2610-2611th, 2613th and 2615th meetings, S/PV.2610-2611, S/PV.2613, S/PV.2615 (2-4 October 1985). See also Tams 2009, pp. 367–368; Tibori-Szabó 2015, p. 78. 52 See for instance: UN Doc. S/25843 (25 May 1993); UN Doc. S/1994/1273 (9 November 1994); UN Doc. S/1999/420 (13 April 1999); UN Doc. S/1999/781 (12 July 1999); UN Doc. S/2000/216 (13 March 2000); UN Doc. S/2001/271 (22 March 2001); UN Doc. S/2001/381 (18 April 2001). On at least one occasion, Iran argued that it was forced to take defensive measures due to Iraq’s inability to exercise control over its territory. See UN Doc. S/1996/602. See also Tams 2009, p. 380. 53 UN Doc. S/1998/780 (1998). See also Tibori-Szabó 2011, p. 219. 54 Tibori-Szabó 2015, p. 79; Ruys 2010, pp. 426–427. 55 UNSC Res 1368 (12 September 2001); UNSC Res 1373 (28 September 2011). See also Gill and Tibori-Szabó 2019, p. 480.

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organization as a base of operation’.56 Against this background, the US justified its and other states’ action as self-defence in response to the Taliban regime’s refusal to change its policy and its continued permission for al-Qa’ida to train and support members on Afghan territory.57 The use of force by the US-led coalition received almost unanimous support from states around the world.58 The newfound realisation at the time that transnational armed groups were capable of mounting large-scale armed attacks against powerful states and the visible shift in Security Council Resolutions 1368 and 1373 as regards the applicability of self-defence against terrorist attacks, has further blurred the notion of attribution for purposes of state responsibility. While everyone agreed that states harbouring armed groups should be held responsible, there was much less clarity on the level of such responsibility: were harbouring states responsible for the armed attacks mounted by such groups to the extent that a defending state could direct its response against the territorial state or was such responsibility more limited? Some commentators argued for a lower attribution threshold, based on complicity or aiding and abetting, to impute the acts of terrorists to the harbouring state for purposes of self-defence.59 Others argued along the lines of the Nicaragua judgment, that harbouring such groups amounted to a less grave form of use of force and did not render the territorial state responsible for the armed attack itself.60

6.3.3

The Age of the Unwilling and Unable

Alongside the ever-broadening attribution theories, from the 1970s onwards, another argument began to be put forward, first by Israel and later by other states. According to this argument, even if a state did not actively support or deliberately harbour armed groups on its territory, if those groups carried out attacks against another state, the latter could act in self-defence when the territorial state was either unwilling or unable to prevent the group from carrying out further cross-border attacks. Accordingly, as early as 1972, Israel maintained that ‘as long as Lebanon was unwilling or unable to prevent armed attacks from its territory against Israel, it could not complain against actions taken in self-defence’.61 This line of reasoning

56

UN Doc. S/2001/946 (7 October 2001). UN Doc. S/2001/946 (7 October 2001). 58 Gill 2003, pp. 30–32; Ruys 2010, pp. 436–437. 59 Ruys and Verhoeven 2005, pp. 315–316; Tams 2009, pp. 385–386. 60 Trapp 2009, pp. 1054–1055. 61 UN Yearbook (1972), p. 158; SCOR, 2071st meeting, UN Doc. S/PV.2071 (17 March 1978), para 53; UN Yearbook (1979), p. 332. 57

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continued into the 1980s,62 even though it was met with staunch opposition from most Security Council members.63 Throughout the 1980s and 1990s, Turkey regularly crossed the border into Iraq to attack PKK camps.64 On a few occasions, Turkey expressly justified its actions before the Security Council as ‘legitimate measures’ in the face of Iraqi inability to exercise control over the northern part of its territory.65 In particular, in a 1995 letter addressed to the President of the UNSC, the Turkish chargé d’affaires argued that [n]o country would be expected to stand idle when its own territorial integrity is incessantly threatened by blatant cross-border attacks of a terrorist organisations based and operating from a neighbouring country, if that country is unable to put an end to such attacks.66

The events of 9/11 had a proliferating effect on claims of self-defence involving so-called unwilling or unable territorial states. One year after the 9/11 events, Russia invoked self-defence to justify its continuing incursions into Georgian territory to fight Chechen rebels who had allegedly carried out attacks on Russian territory.67 Russia emphasised that it had long-standing friendly relations with the Georgian people, but argued that the Georgian leadership was unwilling and to a certain extent unable to take measures to prevent further attacks being carried out by Chechen rebels.68 Israel continued to rely on the arguments developed decades earlier. In July 2006, it justified its military intervention on Lebanese territory on the basis of ‘[t]he ineptitude and inaction of the Government of Lebanon [that] has led to a situation in which it has not exercised jurisdiction over its own territory for many years’.69 While maintaining that responsibility lied with Lebanon ‘from whose territory these acts have been launched into Israel’,70 and that Iran and Syria were also responsible

62

SCOR, 2292nd meeting, UN Doc. S/PV.2292 (17 July 1981) para 54. See also Ruys 2010, pp. 401–402. 63 See for instance: UNSC Res 280 (1970); SC Res 316 (1972); SC Res 332 (1973); SC Res 450 (1979); SC Res 467 (1980). 64 At first, such incursions were condoned by Iraq, but after Turkey sided with the allied forces in the First Gulf War, Iraq began condemning Turkish incursions on its territory. See Antonopoulos 1996, p. 49; Ruys 2010, p. 430. 65 See for instance the following letters from the Chargé d’affaires of the Permanent Mission of Turkey to the Secretary-General: UN Doc S/1995/605 (24 July 1995); UN Doc. S/1996/479 (27 June 1996); UN Doc. S/1996/836 (7 October 1996); UN Doc S/1997/7 (3 January 1997). These actions were criticised by the Arab League and the Non-Aligned Movement. UN Doc. S/1996/796 (24 September 1996); UN Doc. S/1997/416 (30 May 1997); UN Doc. S/1997/429 (2 June 1997), p. 3; UN Doc. S/2000/580 (16 June 2000) para 137. 66 UN Doc S/1995/605 (24 July 1995), p. 1. 67 UN Doc. S/2002/1012 (11 September 2002). 68 UN Doc. S/2002/1012 (11 September 2002). See also Deeks 2012, p. 486; Tibori-Szabó 2015, p. 83. 69 UN Doc. S/2006/515 (12 July 2006). 70 UN Doc. S/2006/515 (12 July 2006).

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because they ‘support and embrace those who carried out this attack’,71 Israel averred that it was concentrating its response ‘mainly on Hezbollah strongholds, positions and infrastructure’.72 The response to Israel’s argument was very different from earlier reactions: most members of the Security Council acknowledged Israel’s right of self-defence and so did the UN Secretary-General as well as the representative of the European Union before the Security Council.73 The League of Arab States, China, Iran, Cuba and Venezuela condemned the Israeli action.74 One year after the Israeli intervention in Lebanon, notwithstanding the visible shift in attitude and the wide gap between state practice and its judgments, the ICJ, in Bosnian Genocide, reiterated its ‘effective control test’ and rejected the ‘overall control test’ for being excessively broad. The ICJ’s strict reading of attribution was implicitly reflected in the reaction of the Organisation of American States to Colombia’s 2008 incursion into Ecuadorian territory. Accordingly, in March 2008, Colombia resorted to force against the Revolutionary Armed Forces of Colombia (FARC) on Ecuadorian territory on the basis that FARC members regularly sought refuge in neighbouring countries after carrying out attacks on Colombian territory. The Colombian government claimed that it was forced to act in self-defence without, however, intending to violate the sovereignty of Ecuador.75 While the US expressed its support, Ecuador and the Organization of American States condemned the Colombian action.76 The list of defensive actions involving implicit or explicit claims of unwilling or unable territorial states continued into the second decade of the 21st century. It is important to note, however, that many of such claims were coupled with requests for assistance by the territorial states or other states that suffered attacks. In October 2011, Kenya, with the agreement of the Transitional Government of Somalia, undertook ‘remedial and pre-emptive action’ in southern Somalia against the al-Shabaab group, claiming that it had suffered ‘dozens of incursions’ into its territory by the armed group and it was facing ‘serious challenges’ because of the collapse of the Somalian state over the past two decades.77

71

UN Doc. S/2006/515 (12 July 2006). SCOR, 5489th meeting, UN Doc. S/PV.5489 (14 July 2006), p. 6. 73 SCOR, 5489th meeting, UN Doc. S/PV.5489 (14 July 2006), pp. 12, 14, 15, 17; 5492nd meeting, S/PV.5492 (20 July 2006), p. 3; 5493rd meeting, S/PV.5493 (21 July 2006), pp. 16–17, 19 and S/PV.5493 (Resumption1) (21 July 2006), pp. 9, 19, 27, 28, 39, 41. 74 SCOR, 5489th meeting, UN Doc. S/PV.5489 (14 July 2006), pp. 10–11; 549th meeting, S/PV.5493 (Resumption1) (21 July 2006), pp. 26, 30, 36, 37. 75 Comunicado No. 081 del Ministeria de Relaciones Exteriores de Colombia, Bogota (2 March 2008). http://historico.presidencia.gov.co/comunicados/2008/marzo/81.html. Accessed 30 December 2018. See also Ruys 2010, pp. 462–464; Deeks 2012, pp. 537–539. 76 UN Doc. S.2008/177 (14 March 2008); Organization of the American States, Convocation of the meeting of consultation of ministers of foreign affairs and appointment of a commission, 5 March 2008, Doc. OEA/Ser.G, CP.RES.930 (1632/08). See also ‘Colombia raid ‘must be condemned’’, BBC News, 6 March 2008. 77 UN Doc. S/2011/646 (18 October 2011). See also Olsen 2018, 39, 43–44. 72

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In September 2014, justifying the US-led use of force against ISIS in Syria, the US maintained that States must be able to defend themselves, in accordance with the inherent right of individual and collective self-defense, as reflected in Article 51 of the UN Charter, when, as is the case [with Syria], the government of the State where the threat is located is unwilling or unable to prevent the use of its territory for such attacks. The Syrian regime has shown that it cannot and will not confront these safe-havens effectively itself. Accordingly, the United States has initiated necessary and proportionate military actions in Syria in order to eliminate the ongoing ISIL threat to Iraq […].78

The US argument was based on the request of assistance made by Iraq in June and September of that year to tackle ISIS safe havens ‘outside Iraq’s borders’.79 In 2015 and 2017, Egypt justified airstrikes against ISIS bases in Libya in response of attacks against Egyptian nationals in Libya and Egypt. In February 2015, Egypt justified its incursions as a response to Libya’s request for assistance to tackle terrorist organisations operating in areas outside the control of legitimate authorities.80 In May 2017, Egypt characterised its action as necessary and proportionate air strikes against terrorist organisations in Libya on the basis of its legitimate right to self-defence. While it maintained that it was acting in coordination with the national army of Libya, it also noted that the Libyan government lost control of certain areas of its territory and this gave an opportunity to terrorist organisations to attack Egypt from those areas.81 Claims of self-defence involving unwilling or unable territorial states have moved away from the attribution of the acts of armed groups to a particular state. Nonetheless, the fact remains that the exercise of self-defence against such armed groups necessarily happens on the territory of a state and the legal basis for such intervention has remained controversial. What is becoming increasingly apparent, however, is that the relationship between territorial states and armed groups is nowadays less about the extent of control and more about the lack thereof.

6.4

Bridging the Gap

As said in the introduction of this contribution, for much of the twentieth century, the mainstream view on self-defence was that a state could use force against another state in response to an armed attack carried out by the latter’s organs or private individuals sent, directed or controlled by that state. In other words, self-defence was viewed as an inter-state right, involving the acts of non-state actors only to the

78

UN Doc. S/2014/695 (23 September 2014). UN Doc. S/2014/440 (25 June 2014); UN Doc. S/2014/691 (20 September 2014). See also Gill and Tibori-Szabó 2019, p. 486. 80 SCOR, 7387th meeting, UN Doc. S/PV.7387 (18 February 2015), p. 7. 81 UN Doc. S/2017/456 (27 May 2017). 79

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extent they could be attributed to a state. In order to attribute such acts, ‘control tests’ were developed—from the very strict ‘complete control’ to ‘effective’ and later to ‘overall control’—and applied to claims of self-defence, resulting in a visible décalage (gap) between law and practice. The inescapable problem with the notion that self-defence was an inter-state right was the reality of increasing numbers of armed attacks mounted by armed groups not controlled by states. While this reality was largely ignored in the 1960s– 1980s and states invoking self-defence against armed groups were criticised by the international community, the state of affairs could no longer be ignored after the 9/11 attacks. While UN Security Council Resolutions 1368 and 1373 recognised the applicability of self-defence against terrorist acts, the full consequences of such an acknowledgement have not been easy to grasp.

6.4.1

Aiders and Abettors Beware

The first reaction was to suggest the broadening of the limits of attribution and add a fourth ‘control test’, based on the complicity of or aiding and abetting by the territorial state in relation to the armed group carrying out cross-border attacks from its territory. Under such a test, the long-criticised Israeli claims of Lebanon, Jordan and other of its neighbours harbouring and supporting terrorist organisations would have been finally vindicated, opening the door to a multitude of defensive actions against states that allegedly supported or harboured, to whatever extent, an armed group, without having any notable degree of control over them. One cannot ignore the unfairness of such an argument. The ICJ was right when it held, in Bosnian Genocide, that a state was responsible only for its own conduct, which could only be the conduct of persons acting, on whatever basis, on its behalf.82 Admittedly, the ‘control tests’ the ICJ set out to determine when persons acted on behalf of a state were excessively restrictive and the ICTY may have gotten the measure right. Nonetheless, imputing an armed attack to a state that did not control, to any notable degree, the armed group on its territory, would reach far beyond any definable notion of state responsibility.

6.4.2

It’s (Not) All About Consent

A more moderate suggestion is for the victim state to use force against the armed group after it secured or at least requested the consent of the territorial state to the intervention. This proposal is based on the belief that any use of force on the

82

ICJ, Bosnian Genocide case, para 406.

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territory of a state without its consent would be a use of force against that state.83 This approach can lead to several problematic outcomes. First, if the victim state secures the consent of the territorial state, the argument goes, self-defence is moot as permission has been secured to tackle the armed group. This, however, deprives the victim state from a sound legal basis for its use of force (self-defence within the limits of necessity and proportionality) and may subject its actions to various conditions the territorial state may impose, including the perpetration of serious violations of international law.84 Second, if the victim state does not secure the consent of the territorial state, but the necessity of self-defence persists, two scenarios can be envisaged. In the first, the victim state ignores the refusal of the territorial state and proceeds to act in self-defence against the armed group. This option certainly begs the following questions: what was the legal purpose of requesting consent if the will of the territorial state is eventually ignored? Is requesting consent a mere policy measure, to expose the territorial state’s unwillingness to assist? Is the exercise of self-defence conditional on requesting consent, but not on securing it? In the second alternative, the victim state considers its right of self-defence secondary to the territorial state’s will and refrains from using force, leaving the armed attack unanswered. In this scenario, the victim state possibly exposes itself to further armed attacks from the armed group. These scenarios show that conditioning the exercise of self-defence on securing (or requesting) the consent of the territorial state does not offer effective solutions. Moreover, subordinating the right of self-defence to the territorial state’s consent is to deny the very essence of that right. Nonetheless, as detailed below, seeking an effective response from the territorial state before the defensive action begins is crucial for ascertaining the necessity of self-defence.

6.4.3

Aren’t We Forgetting Something?

What the proposals described above are missing is a focus on the author of the armed attack. It is a fact today that armed groups can carry out armed attacks on their own, without the direction, control or notable support of a state. This understanding has yet to permeate the legal realms. International law presently contemplates only two frameworks of responsibility: state responsibility and individual criminal responsibility. Armed groups lack international legal personality and legal capacity to be accountable for their actions in any way other than through individual criminal responsibility. Transposing the state responsibility regime to non-state actors would be a very difficult exercise for

83

O’Connell 2013, pp. 380, 383; Tladi 2013, p. 572. Gill and Tibori-Szabó 2019, p. 499.

84

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reasons that are not the focus of this contribution.85 However, a change of paradigm and the creation of some mechanisms of international accountability (beyond individual criminal responsibility) for non-state actors may become necessary in the following decades.86 Meanwhile, in the context of self-defence, such a paradigm shift is not necessarily needed. All one needs to do is look at the evolution of the right and its pre-Charter version. Accordingly, in the late 19th and early 20th centuries, when the concept of prohibiting war began to emerge,87 self-defence was viewed as a ‘primary right of Nations’,88 ‘inherent in every sovereign state and […] implicit in every treaty’89 to be exercised in a situation of ‘clear and absolute necessity’.90 It was the presence of such a state of necessity that triggered, while at the same time limited self-defence. State practice and opinio juris at the time did not limit self-defence to inter-state use of force.91 Nor did legal literature advocate such a limitation. In fact, the example the German jurist Oppenheim offered when delimiting self-defence from other forms of self-preservation is telling: if a state was informed that on a neighbouring territory a body of armed men was being organised for the purpose of a raid into its own territory and the danger could be removed through an appeal to the authorities of that country, there was no need to act in self-defence. However, if such an appeal proved to be fruitless or impossible, or if there was even more danger in delaying defence, the threatened state was justified to resort to self-defence.92 Oppenheim did not offer this scenario as an illustration of a controversial issue. On the contrary, he considered it a self-explanatory example of legitimate self-defence. Certainly, the driving force for the creation of the UN and the adoption of the Charter was a determination to prevent the repetition of Second World War horrors and state conduct causing such horrors. Indeed, in the aftermath of the deadliest global war in modern history fought between sovereign states, the concern was to control state behavior rather than delve into the dangers posed by armed groups.

85

See d’Aspremont et al. 2015; Trapp 2015. d’Aspremont et al. 2015, p. 66. 87 For a succinct description of the emergence of the prohibition to wage war in the late 19th and early 20th century and the adoption of several relevant instruments, such as the League of Nations Covenant, the Locarno treaties and the Kellogg-Briand Pact, see Tibori-Szabó 2011, pp. 82–91. 88 Twiss 1860, p. 11. 89 Miller 1928, pp. 213–214. 90 Webster 1841, pp. 1132–1133. US Secretary of State Daniel Webster writing to the British Minister at Washington Henry Fox in the aftermath of the Caroline incident. 91 For instance, the Caroline incident involved the exercise of self-defence against insurgents, but the ensuing correspondence did not dwell on the significance of this aspect. The controversial issue was instead the alleged excessiveness of the response of the British forces. 92 Oppenheim 1905, pp. 178–179. 86

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Nonetheless, the state of international play is different today and it may be useful to view the right of self-defence through its customary nature and acknowledge that it can be exercised against armed groups with or without their conduct being attributed to a state.

6.4.4

Self-Defence, Territory and Control

As Gill explains, self-defence is triggered by the existence of an ongoing or manifestly imminent armed attack and the lack of feasible alternatives that would preclude the necessity of defensive action.93 As said above, historically, self-defence was not conditioned by the author of the armed attack. What was of the essence of the right was the (imminent) occurrence of an armed attack and the lack of feasible alternatives. If one accepts that the author of an armed attack can be not only a state, but also an armed group, the following options are available. If the armed attack carried out by an armed group can be attributed to a state based on the ‘complete’, ‘effective’ or ‘overall control tests’, then both the state and the armed group can be held responsible for the armed attack and the defensive action can be directed against both, within the limits of necessity and proportionality. If the armed attack cannot be attributed to a state based on the three tests mentioned above, the armed group should be treated as the sole author of the armed attack and the exercise of self-defence should be directed exclusively against the armed group. Despite its lack of any notable degree of control over the armed group, the position of the territorial state is important. As said above, it is crucial to seek an effective response from the territorial state before the defensive action begins because the response may determine the existence or lack of feasible alternatives precluding the necessity of self-defence. If the territorial state is able and willing to take effective measures against the armed group, then the necessity element of self-defence is not present and the right does not materialise. If, however, the territorial state is unable or unwilling to take measures against the armed group, self-defence may be necessary, if no other alternatives are available. If the territorial state supports or harbours the armed group to any degree that falls short of the ‘overall control test’, the state may be in breach of one or more of its obligations. Namely, the territorial state may be violating its duty to refrain from organising or encouraging the organisation of armed groups for incursion into the territory of another state. It may also be breaching its obligation to refrain from organising, instigating, assisting or participating in terrorist acts in another state or acquiescing to organised activities within its territory directed towards the

93

Gill 2003, pp. 32–33; Gill 2015b, pp. 738, 743.

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commission of acts involving a threat or use of force.94 The territorial state may also be violating its more general duty to exercise vigilance over its territory and safeguard the interests of other states to the best of its ability.95 It may also be in breach of several UNSC resolutions setting out counterterrorist measures and, if a party, of anti-terrorist conventions. It has been said that the breach of (some of) these duties provides the legal basis for the victim state to intervene in the territorial state against the armed group but not against the territorial state.96 Such an argument would allow the use of force against an armed group on the territory of a harbouring state solely on the basis that the armed group presents a threat (falling short of an imminent armed attack) and the territorial state is in breach of its duty to prevent the group from operating on its territory. Moreover, this argument ignores the situation where a state has lost control of its territory and is unable to tackle the armed group operating from it. In such a scenario, the territorial state has not necessarily breached any of its duties, it is simply unable to take effective measures. Surely, where the above-mentioned obligations are indeed breached, other forms of international responsibility of the territorial state should be applicable. However, the principal legal basis that precludes the wrongfulness of intervention in a territorial state to use force against an armed group is self-defence against that group and any additional legal ground is dependent on the former.

6.5

Conclusion

Self-defence has never really been about control. Attribution is about control. Self-defence is about an armed attack and the necessity of a proportionate defensive action. Confining self-defence into the narrow space of an inter-state right has obscured its essential elements and has confused them with notions—attribution, control, complicity, unwillingness, inability, consent—that never belonged to the essence of this right. Surely, the right of self-defence is not exercised in a vacuum and these notions present themselves as auxiliaries in specific circumstances where other legal provisions have to be applied to the overall lawfulness of the action. Attribution and control belong to the legal framework of state responsibility and they will be applied in the context of self-defence whenever the armed attack is susceptible to be attributed to a state. Likewise, when determining the existence of feasible alternatives to self-defence, the territorial state’s consent to the intervention or willingness 94

UNGA Res 2625 UN Doc. A/RES/2625(XXV) (24 October 1970) Part I. Island of Palmas (Netherlands, United States) 1928, p. 839. http://legal.un.org/riaa/cases/vol_II/ 829-871.pdf. Accessed 18 October 2018; ICJ, Corfu Channel (UK v Albania) 1949, pp. 22–23. https://www.icj-cij.org/files/case-related/1/001-19490409-JUD-01-00-EN.pdf. Accessed 18 October 2018. See also Gill and Tibori-Szabó 2019, p. 494. 96 Trapp 2009, p. 1053. 95

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to assist will inform the parameters of the defensive action. But the right of self-defence is independent of these auxiliaries and should not be subordinated to them. The purpose of this contribution was therefore to examine the concept of control in the context of self-defence and, ultimately, to recognise and delimitate it as a notion auxiliary, but extrinsic to the inherent essence of the right.

References Antonopoulos A (1996) The Turkish military operation in Northern Iraq of March-April 1995 and the international law on the use of force. Journal of Armed Conflict Law 1:33–58. Becker T (2006) Terrorism and the state: rethinking the rules of state responsibility. Hart Publishing, Oxford. Boon KE (2014) Are control tests fit for the future? The slippage problem in attribution doctrines. Melbourne Journal of International Law 15:1–48. Cassese A (2007) The Nicaragua and Tadić tests revisited in light of the ICJ judgment on genocide in Bosnia. European Journal of International Law 18(4):649–668. Crawford J (2013) State responsibility: The general part. Cambridge University Press, Cambridge. d’Aspremont J, Nollkaemper A, Plakokefalos I, Ryngaert CMJ (2015) Sharing responsibility between non-state actors and states in international law. Netherlands International Law Review 62(1):49–67. Draft Articles on Responsibility of States for Internationally Wrongful Acts (DASR), as adopted by the International Law Commission in December 2001, attached to the UNGA Resolution UN Doc. A/RES/56/83, Responsibility of States for internationally wrongful acts, 12 December 2001. Via www.un.org/ga/search/view_doc.asp?symbol=A/RES/56/83. Accessed 17 November 2018. Deeks A (2012) ‘Unwilling or Unable’: Toward a Normative Framework for Extraterritorial Self-Defense. Vanderbilt Journal of International Law 52:483–550. Gill TD (2003) The eleventh of September and the right of self-defence. In: Heere WP (ed) Terrorism and the military: International legal implications. TMC Asser Press, The Hague, pp 23–37. Gill TD (2007) The temporal dimension of self-defense: anticipation, pre-emption, prevention and immediacy. In: Schmitt MN, Pejic J (eds) International law and armed conflict: exploring the faultlines. Martinus Nijhoff Publishers, Leiden, pp 113–155. Gill TD (2015a) Legal basis of the right of self-defence under the UN Charter and under customary international law. In: Gill TD, Fleck D (eds) The Handbook of the international law of military operations. Oxford University Press, New York, pp 213–224. Gill TD (2015b) When does self-defence end? In: Weller M (ed) The Oxford handbook of the use of force in international law. Oxford University Press, Oxford, pp 737–751. Gill TD, Tibori-Szabó K (2019) Twelve key questions on self-defense against non-state actors. International Legal Studies 95:467–505. Miller DH (1928) The Peace Pact of Paris: A study of the Briand-Kellogg Treaty. GP Putnam’s Sons, New York. O’Connell ME (2013) Dangerous departures. American Journal of International Law 107:380– 386. Olsen GR (2018) The October 2011 Kenyan invasion of Somalia: Fighting al-Shabaab or defending institutional interests? Journal of Contemporary African Studies 36(1):39–53. Oppenheim L (1905) International law: A treatise. Vol. 1. Longman, Green and Co., New York.

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Ruys T (2010) Armed attack and Article 51 of the UN Charter. Evolutions in customary law and practice. Cambridge University Press, Cambridge. Ruys T, Verhoeven S (2005) Attacks by private actors and the right of self-defence. Journal of Conflict and Security Law 10:289–320. Tams CJ (2009) The use of force against terrorists. European Journal of International Law 20:359– 397. Tibori-Szabó K (2011) Anticipatory Action in Self-Defence: Essence and Limits under International Law. TMC Asser Press, The Hague. Tibori-Szabó K (2015) The ‘unwilling or unable’ test and the law of self-defence. In: Paulussen C, Takács T, Lazić V, Van Rompuy B (eds) Fundamental rights in international and European law. TMC Asser Press, The Hague, pp 73–97. Tladi D (2013) The nonconsenting innocent state: the problem with Bethlehem’s principle. American Journal of International Law 107:570–576. Trapp KN (2009) The use of force against terrorists: a reply to Christian J Tams. European Journal of International Law 20(4):1049–1055. Trapp KN (2015) Shared responsibility and non-state terrorist actors. Netherlands International Law Review 63:141–160. Twiss T (1860) Law of nations considered as independent political communities. Vol. 1, Oxford University Press, Oxford. US National Strategy for Counterterrorism (2018) The White House, October 2018, at www.dni. gov/files/NCTC/documents/news_documents/NSCT.pdf. Accessed 3 December 2018. Webster D (1841) Letter from Daniel Webster, US Secretary of State, to Henry Fox, British Minister in Washington, 24 April 1841. In: British and Foreign State Papers, 1840–1841 (1857). James Ridgway and Sons, London, 29:1129–1139.

Dr. Kinga Tibori-Szabó is a post-doctoral researcher at the Amsterdam Center for International Law. She wrote her Ph.D. thesis on the right of anticipatory self-defence under the supervision of Terry Gill. The monograph won the 2012 Francis Lieber Prize of the American Society of International Law. She also has experience in international criminal law gained as legal assistant for defence, legal officer for the victims’ representatives and legal officer for chambers (judges) at international criminal tribunals. Dr. Tibori-Szabó currently works at the Kosovo Specialist Chambers as a legal officer.

Chapter 7

Relevance of Control in Status of Forces Agreements Joop Voetelink and Bas van Hoek

Contents 7.1 7.2 7.3 7.4

Personal Notes Joop Voetelink ......................................................................................... Introduction........................................................................................................................ Status of Forces in Relation to Oplaw.............................................................................. Status of State Officials in Relation to Military Personnel .............................................. 7.4.1 Immunity of State Officials .................................................................................... 7.4.2 Status of Forces ...................................................................................................... 7.5 Jurisdiction Over Deployed Military Personnel ............................................................... 7.5.1 Jurisdiction Versus Immunity................................................................................. 7.5.2 Control and Investigation ....................................................................................... 7.5.3 Enforcement Jurisdiction ........................................................................................ 7.6 Concluding Remarks by Bas van Hoek............................................................................ References ..................................................................................................................................

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Abstract One of the cornerstones of the international law on military operations is the issue of the legal position of armed forces personnel serving on the territory of another sovereign State with the consent of the State hosting the foreign forces. Generally, the issue is defined in international agreements concluded between the Host State and the State sending its forces abroad or an international entity on behalf of the Sending States involved. These so-called Status of Forces Agreements The authors have written this chapter in a personal capacity and its content does not necessarily reflect the views of the Netherlands Ministry of Defence. J. Voetelink Netherlands Defence Academy, Breda, The Netherlands e-mail: [email protected] B. van Hoek (&) Ministry of Defence, The Hague, The Netherlands e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2021 R. Bartels et al. (eds.), Military Operations and the Notion of Control Under International Law, https://doi.org/10.1007/978-94-6265-395-5_7

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(SOFAs) deal with a host of subjects, most importantly the criminal jurisdiction over the deployed troops. As it is a particular sensitive subject affecting the sovereign rights of the States involved as well as the effectiveness of the deployed forces, the jurisdictional provisions included in SOFAs have a different scope than can be expected based on general international law regarding the immunity of States and State officials.
















Keywords Investigation Sovereignty Jurisdiction Immunity State official Status of Forces Agreement Military justice Extraterritorial operations Military operational law Visiting forces




7.1










Personal Notes Joop Voetelink

In the Cold War period, the Netherlands, like most other West-European States, had stationed a considerable number of its forces in other NATO member States, in particular West Germany, in defence of NATO territory against the perceived Soviet threat. The legal status of these forces present on the territory of another NATO member State was covered by the NATO SOFA1 and a number of additional agreements, such as the Supplementary Agreement for Germany.2 Thus, most professional soldiers who, like me, joined the Netherlands Army or Air Force in the Cold War period, have had some level of involvement with the NATO SOFA in their career. When I was based with the Netherlands’ 12th Guided Missile Group in Schöppingen, Germany, after graduating from the Military Academy, I marvelled at the tax free benefits I apparently was entitled to and wondered about a Dutch court martial that was held on our base in Germany. It had something to do with the NATO Zusatzabkommen,3 I quickly learned, but I must admit that at that time I did not have a clue what a SOFA exactly was about. To me NATO SOFA and Zusatzabkommen were like magic words that allowed a starting lieutenant to live a bit more comfortably than colleagues based back home. When I had switched from the Operational Branch to the Personnel Branch I got involved with practical questions emanating from the application of the NATO SOFA and Supplementary Agreement and started to realize how SOFAs could affect our deployed forces as well as Host State Germany.

1

Agreement between the parties to the North Atlantic Treaty regarding the status of their forces; London, 19 June 1951 (Vol. 199 UNTS 1954, No. 2678). 2 Agreement to Supplement the Agreement between the Parties to the North Atlantic Treaty regarding the Status of their Forces with respect to Foreign Forces stationed in the Federal Republic of Germany and Protocol of Signature; Bonn, 3 August 1959. (Vol. 481 UNTS 1963, No. 6986); as amended; see Fleck 2018c, p. 581 ff. 3 The Supplementary Agreement to the NATO SOFA.

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Much later in my career, after having joined the Air Force Legal Service, I had the opportunity to take a much closer look at SOFAs having to give advice on a variety of cases that were mostly related to the application of the NATO SOFA. After 9/11, the SOFA landscape started to change as the Netherlands Armed Forces became increasingly involved in international military operations in support of international peace and security. New SOFAs became applicable to our forces with a completely different scope than the NATO SOFA. I came to appreciate the true value of a well-balanced SOFA and its possible operational impact. Admittedly, this realization took me some years and the patient guidance of Terry Gill, who became my supervisor when I was appointed to teach military law at the Academy where I had started my career two decades before. As the Academy’s Faculty of Military Science, of which our Law Section was part, was in the transition to become an academic level institute, research would become a fundamental part of our work. Terry introduced us military legal advisors to the challenging and inspiring academic world, bringing together military practice and academic thinking. Above all, he gave me the opportunity to start research on Status of Forces, the subject that seemed to follow me throughout my career and had continued to intrigue me. Building on our shared interest in military operational law, Terry carefully focused my research efforts on the criminal jurisdiction over visiting forces, as principal element of status of forces, which is, on the one hand, deeply rooted in general international law and, on the other hand, further shaped by operational conditions. Throughout this lengthy process, Terry was always prepared to discuss any detail that needed further elaboration, broadening my views on my research subject and international law in general. He never failed to inspire, encourage and support me and continued to do so after I had finished my Ph.D. Thank you, Terry, for being such an awesome mentor, and above all for being a dear friend.

7.2

Introduction

The presence of armed forces on the territory of another State with the latter State’s consent4 has become quite common today as States closely work together on matters of defence and security, especially now threats to international peace and security are still on the rise. The deployment of military personnel of one State on the territory of another State impacts the sovereign rights of Sending States, as well as Host States. Therefore, the legal framework with respect to visiting forces is mostly set out in formal international agreements,5 such as basing agreements and 4

Clearly, when armed forces are on another State’s territory without its consent, no SOFA will apply and the status of the troops will then be part of another legal framework, e.g. the laws of armed conflict. These types of situations will not be discussed in the present chapter. 5 On occasion Host States have enacted domestic legislation (Visiting Forces Acts) that defines the status of visiting forces; International Security Advisory Board 2015, p. 31.

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Status of Forces Agreements (SOFAs).6 The former agreements formalize Host State consent and allow the foreign forces to be present on Host State territory and define the functions the forces are allowed to perform during their stay abroad (the jus ad praesentiam). The latter agreements define the legal status of the visiting forces and set out the rights and obligations between Sending State and Host State while present on Host State territory (the jus in praesentia).7 Together these agreements are referred to as visiting forces agreements. The content of SOFAs depends, inter alia, on the exact purpose of the forces’ mission in the Host State. Consequently, SOFAs can be comprehensive agreements, and even a series of related agreements, covering a wide array of subjects or rather concise arrangements setting out some basic rules. What the agreements have in common are arrangements on the exercise of criminal jurisdiction over the visiting forces.8 These jurisdictional arrangements have developed over some 200 years and are deeply rooted in international law. Notwithstanding this long tradition and legal basis no universal arrangement has yet emerged. This can be explained by the military operational context of the agreements that shapes the unique character of SOFAs in general and their jurisdictional provisions in particular. Control is the central theme of this liber amicorum honouring Terry’s academic work and career. Status of forces deserves its place in this publication as control is a defining factor for understanding SOFAs. The need of Sending State authorities to exercise strict control over deployed armed forces also affects the scope of SOFAs, in particular the provisions on jurisdiction. This chapter analyses, therefore, the broader concept of status of forces with a particular focus on criminal jurisdiction. First, status of forces will be discussed in relation to the international law on military operations. Next, the status of State officials abroad in general will be analysed against the backdrop of general international law and compared with the status of military personnel as laid down in SOFAs, concluded in the past century. The results of this comparison will then be further explored taking the law of military operations as starting point. As the first part of this chapter is focused on adjudicative jurisdiction, the second part will set the central theme against the exercise of enforcement jurisdiction. This chapter will be closed with a concluding remark and a second personal note.

6

In a few cases, SOFAs are recorded in a non-legally binding Memorandum of Understanding, a Security Council Resolution or another unilateral document (e.g., Coalition Provisional Authority Order Number 17 (revised): Status of the Coalition Provisional Authority, MNF-Iraq, Certain missions and Personnel in Iraq, 27 June 2004. Available at: www.iilj.org/wp-content/uploads/ 2016/08/Order-17-Section-4.pdf. 7 E.g. Spies 2008. 8 Cf. Article 4 of the Convention on the Safety of United Nations and Associated Personnel Convention on the Safety of United Nations and Associated Personnel, New York, December 1994 (Vol. 2051 UNTS 2001, No. 35457).

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111

Status of Forces in Relation to Oplaw

Status of forces is a subject that today receives wide attention in the literature. It has been the central theme of a doctoral thesis supervised by Terry Gill,9 and features prominently in a number of dedicated chapters and paragraphs of the latest edition of The Handbook of International Law of Military Operations and in the Leuven Manual.10 Recently Liivoja has discussed the extension of national criminal law to armed forces’ personnel in his book Criminal Jurisdiction over Armed Forces Abroad11 and Fleck has finished the second edition of the Handbook of the Law of Visiting Forces.12 These publications notwithstanding, status of forces receives much less attention in international law in general. Often, authors emphasize the conventional character of the subject and refer to the various SOFAs without further exploring and commenting on the origin and background of the agreements. This is, to some extent, understandable as the scope and nature of SOFAs are rather complex and jurisdictional arrangements seem to differ from the rules with respect to other State officials. Nevertheless, status of forces is an important subject and crucial to States deploying their armed forces abroad and to the international organization in charge of an international force. The United Nations Security Council (UNSC) routinely instructs the Secretary-General to conclude a SOFA with the State hosting a UN-mission.13 In practice, the process to come to an agreement may take some time; in the case of the United Nations Interim Force in Lebanon (UNIFIL) some twenty years.14 Therefore, since 1998 the UNSC has included in the Resolutions establishing new UN missions the note that pending conclusion of the SOFA “… the model status-of-forces agreement of 9 October 1990 (A/45/594) shall apply provisionally”.15 The US Department of Defense has laid down in its orders that US forces will, in principle, not be sent abroad without satisfactory status protections.16 The Dutch government also considers status of forces one of the key aspects of the

9

Voetelink 2015. Gill and Fleck (eds.) 2015, Chapter 8 and paras 5.2 and 6.2 and Leuven Manual 2017. 11 Liivoja 2017. 12 Fleck 2018a. 13 Also see Article 4 of the Convention on the Safety of United Nations and Associated Personnel Convention on the Safety of United Nations and Associated Personnel; New York, December 1994 (Vol. 2051 UNTS 2001, No. 35457). 14 Murphy 2007, p. 110. 15 E.g., UN Doc S/RES/2100, par. 33, with respect to the UN Multidimensional Integrated Stabilization Mission in Mali. 16 International Security Advisory Board 2015, p. 13. 10

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legal framework of missions abroad and has repeatedly informed Parliament about the need of adequate SOFAs.17 Failure to conclude a SOFA in time may delay an operation or hinder its execution. In 1999, the initial phase of the Kosovo Force (KFOR) was seriously hampered because of delays in concluding the SOFA.18 Even a military response to a natural disaster may be affected by these problems as was the experience of elements of the NATO Response Force that were sent to Pakistan to assist in the relief effort after the earthquake that had hit the country October 2005. It was reported that troops and supplies were held up in Karachi because not all arrangements were in place in time.19 Also, major ongoing operations may come to an end ahead of time when a SOFA has to be renegotiated but the States involved cannot come to an agreement on the new terms. This is what actually happened in Iraq in 2011. When the Iraq-US SOFA20 could not be renewed because Iraq was not prepared to meet US demands with respect to the exercise of jurisdiction over its forces, the US withdrew its forces from the country just before the SOFA expired on 31 December 2011.21 Consequently, NATO had to discontinue its Training Mission in Iraq as well. As the new SOFA for this Training Mission was supposed to build on the new Iraq-US SOFA, it was too late to start new negotiations regarding a SOFA between Iraq and NATO on the status of Training Mission-personnel. Nevertheless, it is not always feasible or necessary to conclude a SOFA. So, when an activity abroad is deemed essential, the number of troops involved is limited and the foreseeable risks are acceptable, forces can be deployed without a SOFA.22 In the Netherlands, the Minister of Defence can take a decision to that effect on advice of the Commander in Chief. If necessary, additional instructions can be issued to limit possible consequences, e.g. by directing the deployed service members to stay on military premises while abroad or prohibiting them from driving vehicles without operational necessity. The general rule is, however, that a deployment abroad is covered by a SOFA. Because of its significance, status of forces is one of the cornerstones of the international law of military operations, which is a relatively new and still-developing sub-discipline of law that covers “…the various bodies of national

17

See Note on legal aspects of deployment of military personnel, 28 April 2004, Parliamentary Papers I 2003/04, 29 200 X, C, pp. 3–4 and follow-up note legal aspects of peace operations, 25 November 2005, Parliamentary Papers I 2005/06, 30 300 X, A, p. 5. 18 Fleck 2018b, p. 40. 19 Planetary Security, p. 25. In a SIPRI report it was suggested to prepare generic status-of-forces agreements to facilitate the timely deployment of foreign military assets in disaster relief, Wiharta et al. 2008, p. 51. 20 Agreement between the United States of America and the Republic of Iraq on the withdrawal of US forces from Iraq and the organization of their activities during their temporary presence in Iraq (17 November 2008), KAV 8551, www.state.gov/documents/organization/122074.pdf. 21 Voetelink 2015, p. 199. 22 International Security Advisory Board 2015, p. 15.

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and international law which are applicable to and regulate the planning and conduct of military operations”.23 It encompasses the rules establishing the legal basis for a military operation as well as the rules that are applicable in the course of that operation, ensuring the legitimacy of all military action. Some of the applicable rules are not completely rigid, though, and offer a certain level of flexibility, enabling a military commander to achieve his operational objectives.24 In this respect, SOFAs are a fine example. They define the legal position of the visiting forces while present on the territory of the Host State by setting forth their rights and obligations. The agreements build on the jus ad praesentiam and consequently, a SOFA is impacted by the nature and scope of the visiting forces’ presence on foreign territory25 as is reflected in the operational objective of the visiting forces. A mission specific SOFA must be tailored to the mission,26 inter alia, taking into account that objective, thus enabling the military commander of the visiting forces to accomplish the Sending State mission abroad. SOFAs that have no due regard to mission requirements and circumstances may impede the visiting forces’ operations. Therefore, an adequate SOFA supports visiting forces expediting their entry into Host State territory and facilitating their daily operations during their foreign presence.27 Consequently, contemporary SOFAs can be comprehensive documents that deal with a wide field of subjects depending on the nature and purpose of the foreign forces’ presence in the Host State. Generally, SOFAs have a number of subjects in common, although the details may be worked out differently depending on the purpose of the visiting forces’ presence in the Host State. These subjects include,28 respect for Host State law, definition of the categories of personnel covered by the SOFA,29 claims, entry and exit, right to operate equipment, exemptions from Host State duties, fees, tariffs and taxes,30 acceptance of permits and licenses, use of infrastructure, carrying of arms, wearing of national uniforms and, of course, criminal jurisdiction. However, it must be noted that SOFAs are not just for the sole benefit of the Sending State. The foreign forces’ presence impacts Host State sovereignty. Therefore, the Host State will aim to limit that impact through the provisions of the visiting forces agreements. The Sending State must be aware of these provisions

23

Fleck and Gill 2015, p. 3. Voetelink 2017, p. 239. 25 Cf. Spies 2008, p. 240. 26 International Security Advisory Board 2015, p. 49; Brakel 2016, p. 264. 27 Voetelink 2015, Chapter 10; International Security Advisory Board 2015, p. 20. 28 The most important subjects are discussed in separate chapters of Fleck’s Handbook of the Law of Visiting Forces. 29 E.g. civilian component of the armed forces, family members, and civilian contractors. 30 These should be distinguished from charges for services rendered, which will in general be paid. 24

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and be prepared to make compromises and accommodate Host State needs. Such a balanced approach will have a positive long term effect as it helps to build rapport with Host State authorities and local population.31

7.4

Status of State Officials in Relation to Military Personnel

The most important topic of SOFAs concerns the exercise of criminal jurisdiction over the visiting forces.32 This is an issue that has its roots in the law on State immunity and immunities of State officials. Whereas the jus in preasentia is largely conventional in nature, as evidenced by the numerous SOFAs, State immunity and immunity of State officials is in principal based on customary international law and is partly codified in international treaties. Given this difference, this section first analyses the immunity of State officials abroad under general international law and then compares the results with the status of military personnel as laid down in SOFAs concluded in the past century.

7.4.1

Immunity of State Officials

Under general international law, immunity is a restriction on the right of a State to enforce its laws,33 or to put persons (or other States) to trial,34 thus granting foreign States, persons, or their goods, protection against the exercise of its sovereign rights. Immunity does not, however, affect that State’s legislative powers35 and its laws continue to apply to those enjoying immunity. Immunity of States is a well-established principle of customary international law allowing a State to effectively discharge its functions. Initially, States enjoyed full immunity from the exercise of adjudicative and enforcement jurisdiction by a foreign State under the doctrine of absolute State immunity. In the nineteenth century States got increasingly involved in commercial and financial transactions. Their privileged position 31

In general, see Heefner 2017. Voetelink 2015, p. 17. 33 Enforcement jurisdiction; the authority: “to induce or compel compliance or to punish noncompliance with its laws or regulations, whether through the courts or by use of executive, administrative, police, or other non-judicial action”, Voetelink 2015, p. 17. 34 The authority to: “subject persons or things to the process of its courts or administrative tribunal, whether in civil or criminal proceedings, whether or not the State is a party to the proceedings”, Restatement of the Law, p. 232. 35 Legislative, or prescriptive, jurisdiction is the power of a State to apply its laws to “the activities, relations or status of persons, or interests of persons in things, whether by legislation, by executive act, or by determination of a court”, Restatement of the Law, p. 232. 32

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led to injustice as businesses and other private entities could not bring a case before a local court against the will of the foreign State with which they had been doing business. Consequently, it did not take long before courts took a more lenient approach,36 leading to the restrictive doctrine of State immunity, which is the prevailing view today. Under this doctrine, States are only entitled to immunity with respect to State activities of a public or sovereign nature (governmental activities or acta jure imperii). Commercial activities (acta jure gestionis), on the other hand, do not render a State immune from the adjudicative and enforcement jurisdiction of another State. This principle was the basis for a number of treaties,37 including the UN Convention on State Immunity adopted by the UN General Assembly in 2004.38 Although it has not entered into force yet, its principles can be considered as reflecting customary law. A State is, however, a legal abstraction, that can only act through its organs and officials, such as its Head of State, Head of Government, Ministers and envoys.39 The official activities of these officials are, therefore, to be attributed to the State.40 As the State enjoys immunity, these State officials enjoy immunity as well shielding them from prosecution by foreign courts. The scope of immunities generally depends on the official’s rank and function and the nature of the activities. High-ranking officials in principle enjoy personal immunity (immunity ratione personae) exempting them from the enforcement and adjudicative jurisdiction of the host State with respect to both official acts and private act. Consequently, they are effectively shielded from the exercise of jurisdiction by a foreign State during their tenure. All State officials, irrespective of their position, enjoy functional immunity (immunity ratione materiae), limiting their immunities to activities they are engaged in in an official capacity.41 Neither immunity ratione personae nor immunity ratione materiae authorizes the State officials’ home States to exercise

36

Inter alia, Courts in Belgium, Egypt, France, Greece and Switzerland; van Alebeek 2008, p. 14. Article 1, Convention for the Unification of Certain Rules concerning the Immunity of State-owned ships; Brussels, 10 April 1926 and Additional Protocol; Brussels, 24 May 1934 (Vol. 176 LNTS 1937, Nr. 4062) and Articles 5–14, European Convention on State Immunity; Basel, 16 May 1972 (Vol. 1495 UNTS 1988, No. 25699). 38 Articles 10–17, United Nations Convention on jurisdictional immunities of States and their property; New York, 17 January 2005 (UN Doc A/RES/59/38 (2004). 39 Voetelink 2015, p. 131; Liivoja 2017, p. 87. 40 See UN Doc A/CN.4/631 (2010), ILC Second report on immunity of State officials from foreign criminal jurisdiction, 10 June 2010, par. 26 and ICTY Appeals Chamber 29 October 1997, Prosecutor v. Blaskić, IT-95-14-AR108bis, Judgement on the request of the Republic of Croatia for review of the decision of the trial chamber II of 18 July 1997, par. 38 and 41. Available at: www.icty.org/x/cases/blaskic/acdec/en/71029JT3.html. 41 E.g., Ronzitti 2015, pp. 60–62; Liivoja 2017, p. 89. Further, see the work of UN International Law Commission on ‘Immunity of State officials from foreign criminal jurisdiction’; legal.un.org/ ilc/guide/4_2.shtml, in particular draft articles 5 (“State officials acting as such enjoy immunity ratione materiae from the exercise of foreign criminal jurisdiction” and 6(1) (“State officials enjoy immunity ratione materiae only with respect to acts performed in an official capacity”). 37

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their enforcement and adjudicative jurisdiction over them while being abroad. As a result, only on the officials’ return home these States can exercise their sovereign rights vis-à-vis them.

7.4.2

Status of Forces

Armed forces are without a doubt State organs and consequently, members of the armed forces are State officials. When operating abroad with Host State consent and acting in an official capacity (in military terms: are ‘on duty’), they are entitled to immunity ratione materiae, like any other State official.42 Thus, even without a SOFA members of the armed forces are entitled to functional immunity under customary international law. The perception that without a SOFA service members are like tourists and are not entitled to any form of immunity cannot be correct.43 Thus, functional immunity is the minimal protection the law offers armed forces stationed abroad, ensuring unimpeded exercise of their official functions.44 It protects the military from legal action such as, for instance, the complaint a group of Turkish lawyers filed on August 2018, applying to the Turkish Public Prosecutor’s Office for the arrest of a number of US service members for their alleged cooperation with the Gülen movement.45 The persons mentioned in the complaint included a number of US officials at İncirlik Airbase in Turkey, as well as the commander of the US Central Command. It is clear that without legal protection frivolous lawsuits like this could seriously impact operations. States can always deviate from the functional immunity rule and agree on a different level of legal protection for forces stationed abroad, as is the general approach in SOFAs. It must be stressed, however, that with only few exceptions46 the functional immunity rule is respected in SOFAs. This consistent practice is evidence of the broad acceptance of that immunity, confirming the customary nature of the rule. SOFAs hardly ever mention functional immunity explicitly, though, as it is an almost century long practice to focus on the exercise of jurisdiction over visiting forces. The first agreements that today would qualify as

42

Ronzitti 2012, p. 21; Voetelink 2015, pp. 158–162; Liivoja 2017, p. 163; Fleck 2017, pp. 111– 112; Fleck 2018a, p. 881 ff.; Conderman and Sari 2018, p. 217. 43 Brakel 2016, p. 213; Fleck 2018b, p. 86. 44 Fleck 2017, p. 111. 45 Stockholm Center for Freedom 2018. 46 An example is Article 12(2) of the Netherlands-Qatar SOFA that allows courts of Qatar to exercise jurisdiction over offences committed by Dutch personnel, whereas the Netherlands are entitled to exercise jurisdiction over members of the Netherlands’ military in cases of certain offences committed by its own personnel against their property, safety, fellow personnel or equipment; Status of forces agreement for military personnel and equipment for the forces between the State of Qatar and the Kingdom of the Netherlands; Doha, 16 December 2014 (Netherlands’ Treaty Series 2015, No. 12).

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SOFAs were a series of bilateral agreements between Allied States concluded in World War I,47 granting a Sending State exclusive jurisdiction over its service members operating on the territory of the other Allied State.48 These agreements built on ideas developed in the nineteenth century, starting with the The Schooner Exchange v. McFaddon case,49 in which Chief Justice Marshall concluded that in general jurisdiction of a State is exclusive and absolute and that exceptions thereof must be traced to that State’s consent; one of the exceptions being the transit of armed forces. He argued that when a State allows foreign forces to pass through its territory, it “… waives his jurisdiction over the army to which the right of passage has been granted without any express declaration to that effect”. Most nineteenth and early twentieth century authors did not consider the Host State’s waiver to be absolute, however, arguing that visiting forces were “in a greater or less degree” exempted from the jurisdiction of the Host State courts.50 In general, it seemed to be understood that a military commander could exert jurisdiction over members of the visiting forces under his command and control abroad, including in situations where a crime had been committed on base, or off base while on duty.51 However, SOFAs concluded in the first half of the twentieth century generally allowed Sending States to exercise exclusive jurisdiction over their deployed forces. Examples are the World War I SOFAs, two agreements the UK concluded with Iraq52 and Egypt53 and League of Nations decisions regarding international forces, such as the force set up to maintain public security during the plebiscite in the Saar-region in 1935.54 Most SOFAs agreed upon in World War II also granted the Sending State authorities the exclusive right to exercise jurisdiction over their deployed forces. Yet, not all Allied States fully waived their jurisdiction over the foreign forces, limiting the exercise of jurisdiction by Sending States.55

47

For an overview of these agreements, see Voetelink 2015, p. 37. The terms of the agreement between France and the UK formed the basis for all subsequent World War I agreements; Declaration between France and Great Britain respecting military penal jurisdiction; London, 15 December 1915 (The Consolidated Treaty Series, edited and annotated by Clive Parry, Vol. 221, 1915–1916, p. 227. 49 U.S. Supreme Court 24 February 1812, The Schooner Exchange v. McFaddon 11 U.S. 116 (1812). supreme.justia.com/us/11/116/case.html. Accessed April1, 2020. 50 E.g., Lawrence 1885, p. 47. 51 Cf. Moore 1906, p. 560, Hall 1895, p. 206; Oppenheim 1905, p. 483. 52 Military Agreement made under Article VII of the Anglo-Iraq Treaty Baghdad, 25 March 1924 (Vol. 35 LNTS 1925, No. 892). 53 Convention between his Majesty's government in the United Kingdom and the Egyptian government concerning the immunities and privileges to be enjoyed by the British forces in Egypt; London, 26 August 1936 (Vol. 173 LNTS 1936-1937, No. 4032). 54 Voetelink 2015, p. 57. 55 E.g. the Soviet Union, France, and the UK. 48

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Authors like King56 fully supported the exclusive rights of the Sending States over their deployed forces arguing that it was a general accepted principle.57 After the war, a number of authors, among which Barton,58 expressed a different view insisting that in principle visiting forces were subject to the criminal jurisdiction of the Host State’s courts and exceptions were only admissible in case of “express privilege or concession”.59 These divergent views were brought together in the NATO SOFA concluded in 1951. This agreement took a balanced approach to the issue of criminal jurisdiction, taking into account the territorial rights of the Host State as well as the rights of the Sending State to be in control of its national armed forces abroad. Taking shared (or: concurrent) jurisdiction over the members of these forces as starting point,60 Article VII NATO SOFA either grants the Sending State or the Host State the right to primary jurisdiction over a specific offence, depending on the nature of the offence and the circumstances of the case. The State that has secondary jurisdiction can request the State having primary jurisdiction to waive this right. Although many SOFAs are modelled after this jurisdiction provision,61 it has not become the general standard. Especially the jurisdiction provisions of SOFAs covering the status of the forces participating in crisis management operations resemble pre-war SOFAs. When the United Nations (UN) set up its first peacekeeping operation in 195662 it concluded a SOFA with Host Egypt. The UN felt that because of the exclusive international nature of the mission the international forces had to operate independently of the Host State.63 Therefore, the members of the international force had to be subjected to the exclusive criminal jurisdiction of the Sending States. The UN used similar provisions in subsequent mission specific SOFAs and also included it in the Model UN-SOFA, the template for all UN SOFAs.64 Other international organisations, such as the African Union (AU), the European Union (EU) and NATO,65 and coalition of States, in charge of crisis management operations, have followed suit and routine lay down the exclusive

56

King 1942 and 1946. King 1942, p. 567. See also Bathurst 1946. 58 Barton 1949 and 1950. 59 Barton 1950, p. 234. 60 Of course, if an offence is only punishable under the laws of the Sending State or the Host State that particular State has exclusive jurisdiction (Article VII (2)(a)–(c) NATO-SOFA). 61 E.g. over half of the numerous SOFAs the US has concluded use the NATO SOFA model; International Security Advisory Board 2015, p. 18. 62 UN Emergency Force (UNEF) established in response to the Suez crisis. 63 UN Doc A/3943, Summary study of the experiences derived from the establishment and operation of the Force, report of the Secretary-General, 9 October 1958, para 14. 64 Model Status of Forces Agreement for Peace-Keeping Operations, Report of the Secretary-General, UN Doc A/45/594, 9 October 1990. Based on this model mission specific SOFAs are adopted. 65 The EU is the only other organization that has a Model SOFA like the UN has: Revised Draft Model Agreement on the Status of the European Union Led Forces between the European Union 57

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jurisdiction of States contributing forces to the mission in the SOFAs with States hosting a mission.66 Although in the literature it has not been settled yet whether the exclusive jurisdiction of Sending States over their forces participating in crisis management has become customary international law,67 it is clear that it has become a well-established practice.

7.5

Jurisdiction Over Deployed Military Personnel

The previous section makes clear that although members of the armed forces are State officials, their legal status when serving abroad is slightly different from that of other State officials. Whereas the status of the latter is referred to in terms of immunity, SOFAs generally prefer to define the status of the former in terms of exercise of jurisdiction. This practice can be explained by the need of Sending State authorities to exercise strict control over deployed armed forces. This section first addresses the exercise of jurisdiction in a military operational context and then focuses on the obligation to conduct an effective investigation.

7.5.1

Jurisdiction Versus Immunity

Article VII of the NATO SOFA confers on Sending States the primary right to exercise jurisdiction over a member of their armed forces present in another NATO State who has committed an offence on duty. As the Host State only has a secondary right to exercise its adjudicative powers over that soldier, the Sending States’ right resembles functional immunity. In crisis management operations Sending States have exclusive rights over their service members, which means that Host States cannot exercise adjudicative or enforcement jurisdiction over the visiting forces. This, in fact, has the same effect as full immunity of the visiting forces. Still, SOFAs hardly ever express the visiting forces’ status in terms of immunity.68 Some SOFAs refer to agreements such as the Vienna Convention on

and a Host State, EU Doc. 12616/07, 6 September 2007 in conjunction with EU Doc. 11894/07, 20 July 2007 and EU Doc. 11894/07 COR1, 5 September 2007. 66 For an overview: see Voetelink 2015, Chap. 4. 67 For the various views on this topic see: Voetelink 2015, p. 186; Leuven Manual 2017, pp. 120– 121; Liivoja 2017, p. 152; Fleck 2018a, p. 11. 68 E.g. Exchange of letters between the government of New Zealand and the government of the Solomon Islands constituting an agreement on the deployment of New Zealand personnel to the Solomon Islands as members of the International Peace Monitoring Team; Honiara, 9–10 November 2000 (2000 Pacific Islands Treaty Series 7).

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Diplomatic Relations,69 granting visiting forces immunities equivalent to those received by the administrative and technical staff of a diplomatic mission,70 but the majority of SOFAs focus on jurisdiction. This practice can partly be explained by taking the military operational law perspective into account. As discussed in Sect. 7.3 above, this field of law, of which SOFAs are part, are instrumental to a commander to reach his operational objective. In order to play that role, SOFAs have to be tailored to the mission at hand. Viewed from a military operational law perspective the concept of immunities may be too passive to meet the Sending States’ needs. Immunity implies that a Host State waives a part of its sovereign rights and cannot use its adjudicative and enforcement jurisdiction vis-à-vis a person enjoying immunity.71 It does not entitle the Sending State to any extraterritorial rights. In other words: in principle the Sending State authorities cannot arrest the soldier who has committed a criminal offence, launch a full criminal investigation and put the soldier on trial abroad. Such a concept may not, from an operational point of view, meet the operational requirements. Deployed forces continue to be national assets under Full Command of their national commander.72 Therefore, it is crucial for Sending States to remain in control over their troops. For mission accomplishment it is essential that Sending States’ authorities maintain good order and discipline in their units. To that end, they must be able to act promptly upon any form of misconduct by their service members demonstrating the troops the resolve to deal with any breach of rules. It also shows the Host State that a SOFA, granting the visiting forces extensive rights, will not lead to impunity. Also, one of the essential conditions for success in military operations is unity of effort which requires, inter alia, single command.73 This concept implies that a commander must lead his forces without interference from outside the national military chain of command and independent from the Host State authorities, maintaining operational impartiality.74 Especially during operations under (potentially) hostile conditions, such as a crisis management operation, a commander must maintain direct control over its personnel without outside interference.75 Immunity from prosecution in Host State courts indeed guarantees the independence of the visiting forces but does not give Sending State authorities full legal 69

Vienna Conventions on Diplomatic Relations, Vienna, 18 April 1961 (Vol. 500 UNTS 1964, No. 7310). 70 E.g., Article 6(1), Agreement between the Kingdom of the Netherlands and Ukraine on the International Mission for Protection of Investigation, Kiev, 28 July 2014 (Netherlands’ Treaty Series 2014, No. 135) and Agreement between the Russian Federation and the Syrian Arab Republic on the Stationing of an Air Force Unit of the Armed Forces of the Russian Federation on the Territory of the Syrian Arab Republic, Damascus, 26 August 2015 (on file with author). 71 Van Hoek et al. 2012, p. 242. 72 AAP-6 2017. 73 Netherlands’ Defence Doctrine 2017, p. 101. 74 Leuven Manual 2017, p. 124. 75 E.g. International Security Advisory Board 2015, p. 17.

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control over their forces. Therefore, SOFAs grant Sending States the right to exercise jurisdiction vis-à-vis their service members. Exclusive jurisdiction is a far-reaching means to guarantee the Sending State control over its forces. Not all situations warrant such a level of legal protection. Under peacetime conditions in befriended Host States, a lower level of control may be sufficient as is reflected in the jurisdiction provisions of the NATO SOFA that, basically, grants visiting forces jurisdiction over their forces while on duty and with respect to inter se offences.76 Since the establishment of the NATO SOFA, a trend of civilianizing military justice77 has set in as a result of which some States have abolished the court martial system. Nowadays, in Belgium, Germany and the Netherlands, the civilian prosecution service and civilian criminal courts deal with offences committed by military personnel. SOFAs, however, usually refer to military authorities, e.g. Article VII NATO SOFA which allocates the right to exercise jurisdiction to the military authorities of the Sending State or the SOFA concerning NATO operations in Bosnia-Herzegovina and Afghanistan which refer to the exclusive jurisdiction of national elements, being the military forces participating in the NATO coalition.78 This raises the question whether the trend of civilianization has a diminishing effect on the control exercised by the Sending State. The present authors tend to answer this question in the negative. The term “military authorities” or “national elements” is a generic term and includes civilian judicial authorities.79 Moreover, the civilianization of military justice only impacts domestically—it may affect the control over troops exercised by the commander80—but, it does not increase the control by Host State authorities over the visiting forces.

7.5.2

Control and Investigation

In the previous paragraphs the focus was on the exercise of adjudicative jurisdiction by Sending State authorities. Exercising adjudicative jurisdiction is, however, only one means for a Sending State to exercise control over its troops abroad. Another means of control is to exercise enforcement jurisdiction. This type of jurisdiction is inextricably linked to adjudicative jurisdiction and includes the power of Sending State authorities to take investigative measures towards military personnel suspected of having committed an offence and to maintain order and discipline on the territory of the Host State. The distinction between both types of jurisdiction is

76

Article XV(2), NATO SOFA stipulates that in the event of hostilities parties to the NATO-SOFA will immediately review Article VII. Parties to the SOFA realized that under wartime conditions Sending States may want to exercise closer legal control over their forces. 77 Duxbury and Groves 2016, p. 4; Hansen 2016, p. 106. 78 SOFA SFOR 1995, Article 5; MTA ISAF 2002, Section I/3. 79 Lazareff 1971, p. 135. 80 Hansen 2016, p. 117.

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sometimes overlooked and people assume that a State which, based on Article VII NATO SOFA, exercises primary (adjudicative) jurisdiction could also exercise all its enforcement powers (enforcement jurisdiction) vested within domestic law. Furthermore, exclusive adjudicative jurisdiction during deployment is at times assumed to encompass exclusive enforcement jurisdiction. Both assumptions are, to a certain extent, erroneous. The NATO SOFA as well as SOFAs concerning crisis management operations distinguish between both types of jurisdiction, however, the difference is most often not clearly expressed in the latter. Although the principle of State sovereignty restricts the control exercised by the Sending State by means of exercising both adjudicative jurisdiction and enforcement jurisdiction, this principle may affect the latter more. With regards to enforcement jurisdiction and its impact on the control exercised by the Sending State on its military personnel, two provisions in the NATO SOFA are of particular importance. First Article VII, para 6(a) NATO SOFA will be discussed. Next Article VII, para 10(a) and (b) NATO SOFA will be analysed and subsequently enforcement jurisdiction will be studied in view of crisis management operations.

7.5.3

Enforcement Jurisdiction

In general, the absence of adjudicative jurisdiction precludes enforcement jurisdiction. Furthermore, having the right to exercise adjudicative jurisdiction does not necessarily imply the prerogative for Sending State authorities to exercise enforcement jurisdiction on the territory of the Host State. A first reading of Article VII, para 1 NATO SOFA may suggest otherwise. This provision allows the sending State to exercise, within the Host State, all criminal and disciplinary jurisdiction over its military personnel conferred on them by its own law. This provision, however, only serves the purpose of stating a general rule and does not allocate the right of exercising enforcement jurisdiction on Host State’s territory.81 Article VII NATO SOFA distinguishes three situations in which Sending State authorities have the right to exercise control by means of adjudicative jurisdiction. The first situation is that a Sending State may exercise exclusive jurisdiction. The second situation to be distinguished is that both the Sending and Host State have jurisdiction, but the former State is allowed to exercise the primary right. The third situation is where the Host State has the primary right, but decides not to exercise jurisdiction or is willing to waive its primary right at the request of the Sending State allowing it to exercise jurisdiction on the territory of the Host State. Article VII paras 1–3 NATO SOFA does not distinguish between adjudicative and enforcement jurisdiction and must be understood to cover both.82 Yet, the two types

81

Lazareff 1971, p. 133. See, for a different opinion, Sari 2009, p. 369. Voetelink 2018, p. 266.

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of jurisdiction are not interchangeable as the scope of application of enforcement jurisdiction is further restricted by the regime of Article VII para 6(a) and 10 NATO SOFA.

7.5.3.1

Investigation

Article VII para 6(a) NATO SOFA was prompted by the increasing military cooperation between NATO countries, meaning also that these countries had to expect foreign military personnel being present on their territory more frequent83 and would have to deal more often with offences committed by the visiting forces. This also required flexibility in mutual cooperation in criminal matters, taking into account the interests of both the Sending State and the Host State. Article VII para 6 (a) reflects the balance between the State sovereignty of the Host State and the protection of the legal interests of the Sending States.84 Since Article II NATO SOFA affirms the principle of territorial sovereignty and the domination of the laws of the Host State,85 however, we understand para 6(a) NATO SOFA as prohibiting the Sending State to exercise investigative powers when this could, in view of Article II NATO SOFA, be considered an infringement of the sovereignty of the Host State. Taking into account the principle of State sovereignty of the Host State, Article VII para 6(a) NATO SOFA restricts the right of the Sending State to exercise enforcement jurisdiction conferred on its authorities by its own law and as recognized in Article VII para 1(a) NATO SOFA. Yet, para 6(a) NATO SOFA also implements the legal interest of the sending State to exercise control over its military personnel by compelling Host State authorities to assist the Sending State in carrying out all necessary investigations on its territory and collect and produce evidence required by the latter for effectively exercising its enforcement jurisdiction. In other words, although a Sending State may, based on Article VII para 3, exercise adjudicative jurisdiction he must depend on Host State authorities with regard to investigative measures.86 However, Article VII para 6(a) obliges Host 83

Parliamentary Proceedings, p. 3. Parliamentary Proceedings, p. 3. Lazareff remarks that “The reciprocal cooperation and assistance contemplated by these paragraphs reflect the true spirit of SOFA. He then refers to a letter sent by the French Ministry of Justice to a US public prosecutor. This letter reveals a similar viewpoint. In the letter, he states that: “[the sending and receiving State] are equally interested in the repression of offences which are, at the same time, detrimental to the military discipline and reputation of the Services and to the local public order. It is therefore requested that you and your assistants forward to the appropriate authorities of the sending States all documents and information that could be useful in the prosecution of persons by the courts of the sending State.” (See Lazareff 1971, p. 234). 85 Lazareff 1971, p. 101. 86 Article 2 Netherlands Implementation Act on NATO SOFA (7 August 1953); Netherlands Instruction on investigating and prosecuting foreign military personnel in the Netherlands, 2017 (on file with the authors). Irrespective of the outcome of the application of Article VII, para 3 NATO SOFA, this instruction states that the Dutch authorities have primary responsibility with 84

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State authorities to accommodate any investigative measure required by the Sending State.87 To conclude, Article VII para 6(a) NATO SOFA is based on the assumption that the Sending State authorities must refrain from exercising enforcement jurisdiction on the Host State territory without consent by the latter.88 The NATO SOFA strives for the greatest possible speed and flexibility in the mutual working relationship.89

7.5.3.2

Maintaining Order and Discipline

Article VII, para 10(a) and (b) NATO SOFA also reflects the balance between the territorial sovereignty of the Host State and the protection of the legal interests of the sending States.90 The mere fact that the military police of the Sending State is present on the territory of the Host State with the latter’s approval does not mean that the military police has the right to exercise its powers conferred to them by their domestic law. In other words, the military police of the Sending State require approval by the Host State before exercising their ‘domestic’ powers. The parties to the NATO SOFA have agreed beforehand that the military police has the right to police any camps, establishment or other premises which the sending State occupies as the result of an agreement. On these premises the military police may take all appropriate measures to ensure the maintenance of order and security.91 Outside these premises, however, the military police must refrain from any action unless arrangements with the authorities of the receiving State allow them to act and in liaison with those authorities.92 But in any event, the right to maintain order and discipline (and security) allocated to the military police of the Sending State is restricted to the members of the force. But what does ‘maintaining order and discipline’ actually mean? Does it also cover investigative measures? The

regard to criminal investigations concerning foreign military personnel, also when the incident is not considered a criminal offence under Dutch law. The Instruction advocates the involvement of Sending State investigative authorities to ensure that the rules of evidence of the Sending State are observed. The authors understand that the Instruction allows for leeway to conduct investigative measures without the involvement of Host State authorities, if only with the latter’s approval. Without consent, the investigative measure may be considered an infringement of the principle of State sovereignty. 87 Article 2 Netherlands Implementation Act on NATO SOFA (7 August 1953); Parliamentary Proceedings, p. 4. 88 The exercise of enforcement jurisdiction could cause a diplomatic quarrel. See Montgomery 2018. 89 Parliamentary Proceedings, p. 3. For an example, see Remfer 2018. 90 Lazareff 1971, p. 254; Fleck 2009, p. 91. 91 Article VII, para 10(a) NATO SOFA. 92 Article VII, para 10(b) NATO SOFA. See for example Article 28 Agreement to Supplement the Agreement between the Parties to the North Atlantic Treaty regarding the Status of their Forces with respect to Foreign Forces stationed in the Federal Republic of Germany, 3 August 1959, Bonn.

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Netherlands’ Supreme Court had to answer this question in a case concerning a Dutch soldier who was fined by Dutch military police. The soldier was halted by the military police as they wanted to check the NATO registration of the license plate. Then they noticed the tires of the motorcycle and determined—by checking the notch—that the tires did not meet the standard required by German regulations. The Supreme Court concluded that ‘discipline and order’ includes the right to monitor compliance by military personnel of Host State law and taking investigative measures thereto.93 It must be added, however, that this case dealt with the application of Article 28 of the Additional Agreement to the NATO SOFA which allocates the military police the right to patrol on public roads. As the regime of Article II and Article VII para 6(a) NATO SOFA confines the right to take investigative measures, the right to maintain order and discipline as referred to in Article VII, para 10(a) and (b) NATO SOFA only allows investigative measures to expand the right to maintain order and discipline. The powers of the military police are, unless otherwise agreed, limited.94

7.5.3.3

Investigation in Military Operations

Adjudicative and enforcement jurisdiction must also be distinguished in military operations, but most SOFAs concerning military operations do not clearly distinguish between both types of jurisdiction. The provision that the Sending State may exercise exclusive jurisdiction are often complemented with the reciprocal or unilateral obligation to assist in the execution of the jurisdiction. We understand “execution of jurisdiction” to refer to enforcement jurisdiction. As a Sending State must remain in control of its troops to ensure mission accomplishment, exclusive adjudicative jurisdiction is often considered a prerequisite and so is an extended power to exercise enforcement jurisdiction. Without extended enforcement jurisdiction in military operation, exclusive adjudicative jurisdiction would be an empty shell and this could be detrimental to the military operation.95 A military operation, therefore, tips the balance between the ‘principle of territorial sovereignty’ and the ‘law of the flag’ to the latter, yet it does not completely overrule the principle of territorial sovereignty. In military operations, the Sending State retains more control over its troops, but the principle of territorial sovereignty again comes into play when the investigative measures encroach upon the rights of local citizens. Host State authorities must in some way or the other be involved in the investigations, but most often SOFAs leave the Host State no other choice than to assist the Sending State authorities in any way they can.96 Question is what, in this respect,

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Supreme Court 26 November 1991, MRT 1992, p. 145. Lazareff 1971, p. 417. 95 Van Hoek et al. 2012, p. 354. For this reason, Article XV provides that the provisions of Article VII must be reviewed by the State parties in the event of hostilities. See Lazareff 1971, p. 417. 96 Van Hoek et al. 2012, p. 355. 94

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assistance means. Does it, for example, suffice when the Sending State ask Host State authorities permission to have local citizens interviewed by Sending State investigators? Or, must local citizens be interviewed by Host State authorities? A Sending State must have more leeway in a military operation to take investigative measures themselves instead of depending on investigative measures taken by the Host State. The classical form of mutual legal assistance where the requested State acts on behalf of the requesting State may not be realistic in a military operation and could stand in the way of an effective investigation since military operations are often executed in countries with a weak or missing state structure and poorly functioning police and justice apparatus.97 The Model Memoranda of Understanding (MOU) to the UN Model SOFA commits the Sending State to obtain prior authorization from the receiving State when it requires access to local victims and witnesses or needs to collect and secure evidence not under its ownership and control.98 We understand this provision permits Sending State investigators to contact local victims, but not without knowledge of the Host State. Admittedly, the Host State could decide not to approve any interaction with local victims, but this decision should not excavate the Host State’s obligation to provide assistance to the Sending State authorities in carrying out investigation which the latter considers necessary.99

7.5.3.4

Duty to Investigate

The scope of the right to exercise exclusive enforcement jurisdiction in military operations is easily overlooked and could conflict with the duty, as recognized in international human rights law, to investigate any infringement on the right to life. In the Jaloud case, the European Court opined that the European Convention on Human Rights applied during the military operation in Iraq as a result of which the Netherlands had a duty to investigate the death of Mr. Jaloud, who was killed in a shooting incident involving Dutch military personnel.100 This obligation to investigate requires State authorities to take the reasonable measures available to them to secure evidence concerning the incident at issue.101 This is not an obligation of results but of means.102 In the Jaloud case, the Dutch authorities had no capabilities to conduct an autopsy and, therefore, had handed over Mr. Jaloud’s body to the Iraqi authorities. The European Court considered the investigation into the death of Mr. 97

Van Hoek 2015, p. 275. The UN Model SOFA has distinct provisions for adjudicative jurisdiction (para 47b) and enforcement jurisdiction (para 44). The latter is further framed in Article 7 quarter, para 7.17 Model Memorandum of Understanding between the United Nations and [participating State] contributing Resources to [the United Nations Peacekeeping Operation], UN Doc. A/C.5/63/18. 99 UN Model SOFA, § 44. 100 Jaloud case, § 213. 101 Tunc case, § 173. 102 Jaloud case, § 186. 98

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Jaloud inadequate as the Iraqi pathologist had carried out the autopsy in absence of any qualified Dutch official.103 In response to this ruling, some judges, rightfully in our opinion, questioned whether the Dutch authorities could have claimed full legal control over the body of the Mr. Jaloud and the circumstances of the autopsy were highly questionable.104 In a reflection on this case, Sari remarks “that contributing States and their armed forces are subject to a duty to respect the law of the host State and cannot intervene in its internal affairs in the name of complying with their Convention obligations.”105 So, if a Sending State gives effect to the obligation to investigate, it has to take into account the principle of territorial sovereignty. In regards to exercising control over troops by wielding enforcement jurisdiction another aspect comes to mind which may limit the level of control that can be achieved. In the Jaloud case, the European Court remarked that the Dutch authorities appeared not to have considered any alternative for the autopsy executed by the Iraqi pathologist.106 The European Court then States that “it does not appear unlikely that either or both of the Occupying Powers, or perhaps another Coalition power, had facilities and qualified personnel available.” This consideration reveals a point that has been underexposed to date. So far, SOFAs concluded between States to facilitate the cooperation in a military operation do not include provisions on mutual legal assistance, although the UN Model MOU provides for an obligation of the United Nations to assist the authorities of the Government that are conducting an investigation in securing assistance from other Governments.107 In view of the increasing cooperation in military operations nowadays, mutual assistance in investigations is becoming more important and the Jaloud case shows that this is of particular importance to signatories to the European Convention on Human Rights. A request for mutual legal assistance could perhaps be based on a multilateral or bilateral treaty on legal assistance, but most treaties on mutual legal assistance only apply to criminal offences. The duty to investigate, however, applies to any infringement on the right to life, irrespective whether the infringement constitutes a law violation.108 Mutual legal assistance in military operations does not necessarily require a treaty or agreement. Legal assistance could be requested at the time of an incident requires to do so. Yet, an agreement on this topic before an incident occurs has preference as it contributes to the promptness of the investigation and, therefore, to the legitimacy of the military operation. Jaloud case, § 216. Jaloud, separate opinion, p. 84. This argument was also put forward by the Netherlands’ government representative at the hearing of the Grand Chamber on 19 February 2014. 105 Sari 2014, p. 15. 106 Jaloud case, § 215. 107 See Article 7 quarter, para 7.17 Model Memorandum of Understanding between the United Nations and [participating State] contributing Resources to [the United Nations Peacekeeping Operation], UN Doc. A/C.5/63/18. Also see, Article 7 sexiens, para 4 Revised draft model memorandum of understanding between the United Nations and [participating State] contributing resources to [the United Nations Peacekeeping Operation], UN Doc. A/61/494. 108 Jaloud case, § 186. 103 104

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Concluding Remarks by Bas van Hoek

Terry inspired many Dutch military legal advisors to bring together military practice and academic thinking. This, in view of the theme of this liber amicorum, reminds me of Lazareff’s statement with respect to the NATO SOFA that “personal relations often count for more than actual text in the practical day to day operations” and the emphasis he puts on the vital role played by liaison officers.109 More than once I have had to operationalize SOFAs as incidents occurred in the field, in and outside military operations. As a brigade military legal advisor, I learned the importance of always ascertaining beforehand that local authorities in the Host State that have to execute the SOFA provisions are familiar with the existence and scope of these provisions, and to build rapport with the local police and public prosecution service. I also learned that, despite all this, SOFAs have to be executed by people and some people simply decide for themselves what is best in a specific situation and do not care about what the SOFA requires them to do. No matter the existence of an agreement on adjudicative and enforcement jurisdiction, reality (exercising jurisdiction) can be obstinate. As a practitioner, I have, over the years, acquired a better understanding of SOFAs and how they impact on the day to day business of military units abroad and how commanders must prepare their troops on their behaviour while they are abroad. Terry taught me the importance of bringing together military practice and academic thinking. I will build on this vision while doing my Ph.D. research and when educating future military officers and military legal advisors. Terry, thank you for being you, an inspiring, trustful, supportive and humorous colleague, mentor and friend.

References AAP-6 (2017) NATO Glossary of terms and definitions. Annex 1A of the General Framework Agreement for Peace (GFAP) in Bosnia and Herzegovina. Paris, 14 December 1995, 35 I.L.M. 75. Annex A to the Military Technical Agreement between the International Security Assistance Force (ISAF) and the Interim Administration of Afghanistan, 4 January 2002. Barton GP (1949) Foreign armed forces: immunity from supervisory jurisdiction. In: British Yearbook of International Law 1949, pp. 380–413. Barton GP (1950), Foreign armed forces: immunity from criminal jurisdiction. In: British Yearbook of International Law 1950, pp. 186–235. Bathurst ME (1946) Jurisdiction over Friendly Foreign Armed Forces: The American Law. Br Yearb Int Law 23:338–341. Brakel YS (2016) Developing better U.S. Status of Forces protections in Africa. The African Law Review 76:207–265.

109

Lazareff 1971, p. 261.

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Conderman PJ, Sari A (2018) Chapter 20. Jurisdiction. In: Fleck D (ed) The Handbook of the Law of Visiting Forces. Oxford University Press, Oxford. Duxbury A, Groves M (2016) Chapter 1 - The reform of military justice. In: Duxbury A, Groves M (eds) Military Justice in the Modern Age. Cambridge University Press, Cambridge. ECtHR (Grand Chamber) 20 November 2014, Jaloud v. The Netherlands, Appl. No. 47708/18. ECtHR (Grand Chamber) 14 April 2015, Mustafa Tunc and Fecire Tunc v. Turkey, Appl. 24014/ 05. Fleck D (2009) The Handbook of the Law of Visiting Forces, 1st edn. Oxford University Press, Oxford. Fleck D (2017) Status of Forces in Enforcement and Peace Enforcement Operations. In: Gill TD, Fleck D (eds) The Handbook of the International Law of Military Operations, Oxford University Press, Oxford, pp. 110–127. Fleck D (2018a) The Handbook of the Law of Visiting Forces, 2nd edn. Oxford University Press, Oxford. Fleck D (2018b) Chapter 5. The Immunity of Visiting Forces and Their Headquarters. In: Fleck D (ed) The Handbook of the Law of Visiting Forces, 2nd edn. Oxford University Press, Oxford. Fleck D (2018c) Chapter 41. The Law of Stationing Forces in Germany. Six Decades of Multilateral Cooperation. In: Fleck D (ed) The Handbook of the Law of Visiting Forces, 2nd edn. Oxford University Press, Oxford. Fleck D, Gill T D (2015) International Law for Military Operations. Conclusion and Perspectives, Chapter 32. In: Gill TD, Fleck D (eds) The Handbook of the International Law of Military Operations, 2nd edn. Oxford University Press, Oxford, pp 610–618. Gill TD, Fleck D (eds) (2015) The Handbook of the International Law of Military Operations, 2nd edn. Oxford University Press, Oxford. Gill TD, Fleck D (2015) Concept and Sources of the International Law of Military Operation. In: Gill TD, Fleck D (eds) The Handbook of the International Law of Military Operations, 2nd edn. Oxford University Press, Oxford, pp. 3–13. Hall WE (1895) A Treatise on International Law. Stevens & Sons, Oxford. Hansen V (2016) Chapter 6 - The impact of military justice reforms on the law of armed conflict: how to avoid unintended consequences. In: Duxbury A, Groves M (eds) Military Justice in the Modern Age. Cambridge University Press, Cambridge. Heefner G (2017) “A slice of their sovereignty”: Negotiating the U.S. empire of bases, Wheelus Field, Libya, 1950–1954. 41 Diplomatic History, 1:50–77. International Security Advisory Board (2015) Report on Status of Forces Agreements, Washington. www.state.gov/t/avc/isab/236234.htm. King A (1942) Jurisdiction over Friendly Foreign Armed Forces. AJIL 36(4):539–567. King A (1946) Further Developments Concerning Jurisdiction over Friendly Foreign Armed Forces. AJIL 40(2):257–279. Lawrence TJ (1885) A Handbook of Public International Law. Deighton, Bell and Co., Cambridge. Lazareff S (1971) Status of Forces under Current International Law. A.W. Sijthoff, Leiden. Leuven Manual on the International Law Applicable to Peace Operations (2017) Cambridge University Press, Cambridge. Liivoja R (2017) Criminal Jurisdiction over Armed Forces Abroad. Cambridge University Press, Cambridge. Military Technical Agreement between the International Security Assistance Force (ISAF) and the Interim Administration of Afghanistan (‘Interim Administration’), 4 January 2002. Moore JB (1906) A digest of international law as embodied in diplomatic discussions, treaties and other international agreements, international awards, the decision of municipal courts, and the writings of jurists, Vol II. Washington.

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Montgomery N (2018) Army stops autopsy, takes body of dead paratrooper from Italian hospital. Stars and Stripes. Murphy R (2007) UN peacekeeping in Lebanon, Somalia and Kosovo. Operational and legal issues in practice. Cambridge University Press, Cambridge. Netherlands Defence Doctrine (2017) Ministry of Defence, The Hague. Oppenheim L (1905) International law, a treatise, Vol I, Peace. Longmans, Green and Co, London Parliamentary Proceedings, Second Chamber, session 1952–1953, 2881, no 3. Planetary Security: Peace and cooperation in times of climate change and global environmental challenges. Conference report, 2 and 3 November 2015. Peace Palace, The Hague. At: climateandsecurity.files.wordpress.com/2012/04/planetary-security-2015.pdf. Remfer K (2018) US soldiers under investigation for allegedly beating up three Polish men. Army Times. Restatement of the Law, Third, Foreign Relations Law of the United States (1986) American Law Institute Publishers, Washington. Ronzitti N (2012) The Enrica Lexie incident: Law of the sea and immunity of State officials issues. Italian Yearbook of International Law, Vol. XXII. Ronzitti N (2015) The immunity of State organs – A reply to Pisillo Mazzeschi. Questions of International Law, Zoom out. Sari A (2009) The European Union Status of Forces Agreement (EU SOFA). Journal of Conflict & Law, Oxford University Press, pp. 353–391. Sari A (2014) Untangling Extra-territorial Jurisdiction from International Responsibility in Jaloud v. Netherlands: Old Problem, New Solutions? Military Law and the Law of War Review 53, pp. 287–318. Spies SC (2008) On the legal status of foreign armed forces, with a focus on the interrelation of ius ad praesentiam and ius in praesentia. Military Law and the Law of War Review 47/1–2, 235– 251. Status of Force Agreement for the NATO (IFOR/SFOR) forces operating in Bosnia-Herzegovina (Appendix B to Annex 1A of the General Framework Agreement for Peace in Bosnia and Herzegovina, Paris, 14 December 1995, 35 I.L.M. 75). Stockholm Center for Freedom (2018) Erdoğanist Turkish lawyers seek arrest of US officers at Turkey’s İncirlik Airbase. At: stockholmcf.org/turkish-lawyers-seek-arrest-of-us-officers-atturkeys-incirlik-airbase/. Supreme Court 26 November 1991, Military Law Review 1992, p. 145. UN Doc A/C.5/63/18, Model Memorandum of Understanding between the United Nations and [participating State] contributing Resources to [the United Nations Peacekeeping Operation]. UN Doc A/61/494, Draft Model Memorandum of Understanding between the United Nations and [participating State] contributing Resources to [the United Nations Peacekeeping Operation]. UN Doc A/3943, Summary study of the experiences derived from the establishment and operation of the Force, report of the Secretary-General, 9 October 1958. van Alebeek R (2008) The immunity of states and their officials in international criminal law and international human rights law. Oxford University Press, Oxford. van Hoek B (2015) The Duty to Investigate: Legal Assistance in Military Operations. 20 Recueils de la Société Internationale de Droit Pénal Militaire et de Droit de la Guerre, pp. 267–277. van Hoek B, Nijhof J, Voetelink J (2012) The scope of jurisdiction provisions in status of forces agreements related to crisis management operations. Military Law and the Law of War Review 51/2:335–359. Voetelink JED (2015) Status of Forces: Criminal Jurisdiction over Military Personnel Abroad. T.M.C. Asser Press, The Hague. Voetelink JED (2017) Chapter 13 - Reframing Lawfare. In: Ducheine PAL, Osinga F (eds) Netherlands Annual Review of Military Studies 2017—Winning Without Killing: The Strategic and Operational Utility of Non-Kinetic Capabilities in Crises. T.M.C. Asser Press, The Hague, pp. 237–254.

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Voetelink JED (2018) Chapter 21 - Military Law enforcement. In: Fleck D (ed) The Handbook of the Law of Visiting Forces. Oxford University Press, Oxford, pp 261–274. Wiharta S, Ahmad H, Haine JY, Löfgren J, Randall T (2008) The effectiveness of foreign military assets in natural disaster response. Report Stockholm International Peace Research Institute.

Colonel (Ret.) Dr. Joop Voetelink is Associate Professor of Law at the Netherlands Defence Academy. He defended his Ph.D. thesis, entitled ‘Status of Forces: Criminal Jurisdiction over Military Personnel Abroad’, supervised by Prof. Terry Gill, at the University of Amsterdam in 2012. Lieutenant-Colonel Bas van Hoek LL.M. is a Legal Advisor in the Royal Netherlands Airforce. Currently, he is the liaison officer with the Public Prosecutors Service. He is a lecturer in military criminal law at the University of Amsterdam, where he is conducting Ph.D. research on Dutch legal oversight procedures on the use of force in military operations supervised by Terry Gill and Dr. Joop Voetelink.

Chapter 8

Effective Command and Control in United Nations Peace Operations Ben Klappe, Jan Peter Spijk, and Alfons Vanheusden

Contents 8.1 General Introduction.......................................................................................................... 8.2 UN Command and Control in Crisis Situations............................................................... 8.2.1 The Incidents in Bukavu in 2004 .......................................................................... 8.2.2 The Incidents in Juba in 2016 ............................................................................... 8.3 The Need for a Crystal-Clear UN Authority, Command and Control Framework, Combined with a Will to Act ........................................................................................... 8.4 International Responsibility—The Case of the Mothers of Srebrenica v the Netherlands.................................................................................................................. 8.4.1 Introduction............................................................................................................. 8.4.2 International Responsibility in UN Peace Operations ........................................... 8.4.3 The Mothers of Srebrenica (2019) Case ............................................................... 8.5 Monitoring the UN Command and Control Framework Through Periodic Inspections ......................................................................................................................... 8.5.1 The Need to Monitor Given the Changing Environment of Peace Operations............................................................................................................... 8.5.2 The Establishment and Role of the Office of Peacekeeping Strategic Partnership (OPSP) .................................................................................................................... 8.6 Concluding Remarks ......................................................................................................... References ..................................................................................................................................

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Abstract This chapter discusses effective command and control in United Nations peace operations from four distinct perspectives. In the first section, the incidents in Bukavu, Democratic Republic of Congo (2004) and Juba, South Sudan (2016) are The authors wish to thank Mr. Jens Andersen, International Consultant and former member of the UN’s Office of Peacekeeping Strategic Partnership, as well as Dr. William H. Boothby, Honorary Professor of the Australian National University, for their constructive contributions. B. Klappe
J. P. Spijk
A. Vanheusden (&) Brussels, Belgium e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2021 R. Bartels et al. (eds.), Military Operations and the Notion of Control Under International Law, https://doi.org/10.1007/978-94-6265-395-5_8

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discussed. The recently revised “UN Policy on Authority, Command and Control in United Nations Peacekeeping Operations” is analysed in the subsequent section, concluding that a crystal-clear policy framework should go hand in hand with both readiness and willingness of central and local UN leadership to act swiftly and decisively in crisis situations. The third section discusses international responsibility for wrongful acts committed by a UN peacekeeping unit, using the Netherlands Supreme Court decision in the case of the Mothers of Srebrenica Association et al. v The Netherlands (2019) as a case study. It concludes that the Netherlands Supreme Court in this case has indeed followed the UN doctrine that a peacekeeping unit that contributed to a UN operation or mission by a State, should in principle be considered an “organ” of the UN, while finding in casu that the Dutch State was (partly) responsible and liable for the tragic events, since the unit had acted wrongfully under the direction or control of the State. The final section discusses the function and tasks of the UN Office of the Director of Peacekeeping Strategic Partnerships (OPSP), established in 2013 with the aim of creating a new and independent evaluation function of deployed UN uniformed personnel. It concludes by noting that the OPSP in its brief existence has already contributed significantly to UN mission mandate implementation.




Keywords Command and Control international responsibility tions Srebrenica United Nations




8.1





peace opera-

General Introduction

The international community is engaged world-wide in United Nations peace operations in which military contingents and formed police units are deployed to establish, maintain and secure peace. United Nations missions are tasked with complex and robust mandates to support national authorities to rebuild a nation after often lengthy periods of conflict. New today are the circumstances on the ground and the technology available to both regular armies and armed groups. New is also the accessibility of communication technology and social media that will instantly enlarge relatively small-scale incidents, while influencing the international community and international support for United Nations operations. Of vital importance is the role of United Nations mission leadership, being able to anticipate difficulties before they arise and prevent inappropriate actions before they happen. Senior leaders both at headquarters and in the field have to act decisively when civilians are under threat of physical violence, exercising their command and control responsibilities effectively. Hereafter effective command and control in United Nations peace operations will be discussed from four distinct perspectives. In the first section, Sect. 8.2, the incidents in Bukavu, Democratic Republic of Congo (2004) and Juba, South Sudan (2016) are discussed. The recently revised “UN Policy on Authority, Command and Control in United Nations Peacekeeping Operations” is analysed in the subsequent section, Sect. 8.3, concluding that a crystal-clear policy framework should go hand in hand with both readiness and

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willingness of central and local UN leadership to act swiftly and decisively in crisis situations. The third section, Sect. 8.4, discusses international responsibility for wrongful acts committed by a UN peacekeeping unit, using the Netherlands Supreme Court decision in the case of the Mothers of Srebrenica Association et al. v The Netherlands (2019) as a case study. The final section, Sect. 8.5, discusses the function and tasks of the UN Office of the Director of Peacekeeping Strategic Partnerships (OPSP), established in 2013 with the aim of creating a new and independent evaluation function of deployed UN uniformed personnel.

8.2

UN Command and Control in Crisis Situations

Many lessons were learned by the United Nations, the Secretariat, the Security Council and Troop Contributing Countries after genocides in Srebrenica and Rwanda occurred a quarter of a century ago. The cardinal lesson of Srebrenica was that a deliberate and systematic attempt to terrorize, expel or murder an entire people must be met decisively with all necessary means and with the political will to carry the policy through to its logical conclusion.1 Lessons from Rwanda included the need for: a political will to act in accordance with one and the same standard, the preparedness of Troop Contributing Countries to prevent acts of genocide or gross violations of human rights wherever they may take place and that there should never be doubt as to which Rules of Engagement (ROE) apply during the conduct of a peacekeeping mission.2 Both of the relevant UN reports also mention the lack of clarity surrounding the mandates, miscommunication between political and military leadership and cumbersome command and control arrangements both at UN Headquarters and in the field.3 Decades later (in 2004 and 2016) new tragic events—on a much smaller scale—took place both in the Democratic Republic of Congo and South Sudan. Both events will be discussed hereafter while key recommendations from the report on South Sudan that focus on remedial action, prevention and accountability will be summarized.

8.2.1

The Incidents in Bukavu in 2004

A clear and tragic example of a serious failure to command and control a UN peace operation effectively occurred at the end of May 2004 in the South Kivu capital of

1 UN General Assembly (1999) Report of the Secretary-General pursuant to GA Res 53/35, the Fall of Srebrenica, UN Doc. A/54/549, para 502. 2 UN Security Council (1999) Report of the Independent Inquiry into the action of the United Nations during the 1994 genocide in Rwanda, UN Doc. S/1999/1256, pp. 54–58. 3 See n 1 and 2.

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Bukavu in Democratic Republic of Congo.4 Although MONUC5 was authorized to take necessary measures to protect civilians and humanitarian workers under imminent threat of physical violence and to use all necessary means to fulfil its mandate,6 a deployed UN taskforce of about 1000 Blue Helmets, ready to engage and led by the Deputy Force Commander MONUC, did not intervene when a rebel force headed by Nkunda entered Bukavu and started committing atrocities for over a week, while various UN command levels failed to agree on the interpretation of the mandate and the use of force. In May 2004, Laurent Nkunda, a dissident ex-RCD-Goma7 refusing to adhere to a ceasefire agreement, marched from North Kivu with ex-ANC soldiers to join the rebels of Jules Mutebutsi8 north of Bukavu, a city of 600,000 inhabitants. He was reinforced along the route and his force grew to about 2000 men. MONUC’s Deputy Force Commander was on-scene and planning to disarm Mutebutsi’s units, using attack helicopters to channel Nkunda’s troops along Lake Kivu so as to prevent the seizure of Bukavu.9 The tactics were to warn Nkunda orally, if necessary thereafter to fire warning shots, and finally, if Nkunda still did not turn back, to attack his advance units. Through emergency redeployments, MONUC’s all-rank military strength on the ground numbered 1004.10 HQ MONUC Kinshasa then decided that in the given situation, deadly force was prohibited.11 Nkunda passed Bukavu airport and headed for Bukavu on 1 June 2004. MONUC troops blocked the road and delayed the attack for 18 hours. On 2 June 2004, Nkunda’s troops along with Mutebutsi’s units, reached Bukavu and spread out in the city. Private houses and shops were looted and citizens were robbed. As many as 1400 traders were affected by the burning of the Kadutu market by Nkunda elements. MONUC investigations also determined that Nkunda’s and Mutebutsi’s troops had been responsible for dozens of cases of rape and had

4 See for the background of the crisis: International Crisis Group, Africa Briefing, 7 July 2004, https://d2071andvip0wj.cloudfront.net/pulling-back-from-the-brink-in-the-congo.pdf. Accessed 12 February 2020. 5 United Nations Mission in the Democratic Republic of Congo. 6 UN Security Council (2003) Resolution 1493 (2003), UN Doc S/RES/1493 and UN Security Council (2004a, b) Resolution 1565 (2004), UN Doc. S/RES/1565. 7 Rassemblement Congolais pour la Démocratie-Goma. 8 Former regional commander of the Army of the Federal Republic of Congo (FARDC). 9 See Jan Isberg, Former Deputy Force Commander and Brigade Commander, MONUC in ‘Experiences from UN Military Peace, Enforcement Operations in the DRC April 2003—January 2005’, hard copy on file with author Klappe. 10 Through an emergency redeployment, MONUC military strength was augmented by 350 troops, bringing its strength in Bukavu to 800 on 29 May. In view of the extremely volatile situation, a further reinforcement was made through the redeployment of 204 troops on 1 June, see UN Security Council (2004a, b) Third Special Report of the Secretary-General on MONUC, UN Doc. S/2004/650, para 36. 11 See Jan Isberg, n 9.

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deliberately killed at least nine civilians while in Bukavu, which was under their control between 2 and 5 June.12 Although overstretched, MONUC was able to protect some 4000 internally displaced persons at its premises in Bukavu and to extract individual citizens at risk to places of safety.13 UN Headquarters had expected MONUC to use force and did not share the views of HQ MONUC Kinshasa about taking a neutral posture in Bukavu.14 The Bukavu crisis influenced the peace process seriously, delaying it politically and militarily for more than five months. When Nkunda arrived in Bukavu, demonstrations started in all major cities in the DRC. The UN was blamed for not stopping Mutebutsi and Nkunda. MONUC HQ, pressed by severe attacks on UN establishments in Kinshasa, prepared for evacuation, which definitely brought a halt to the peace process.15 UN property was destroyed. One of the main causes of the failure to protect the population of Bukavu is a too narrow interpretation of the mandate by HQ MONUC during the crisis and the consequent restrictions put on the proposed military course of action by the commander on-scene to protect the civilians of Bukavu. To prevent such dramatic failures in the future, it is important that all UN leadership levels agree on what may actually constitute an ‘imminent threat of physical violence’. Secondly, the precise authorities and responsibilities of on-scene commanders in case of unanticipated threats against the civilian population must be determined and articulated clearly in advance. This becomes more relevant in the future when mission leadership deploys camera drones and directs operations from a distance. This subsequently may inspire superior command interference with tactical level decisions, where the commander on-scene in fact has a better overall situational awareness. In the particular situation of the Bukavu crisis, the commander on the ground was overruled by the political leadership of the mission,16 with the dramatic consequences described above the alternative scenario would have been a commander taking action as originally planned while seeking no concurrence at the political level. It should be noted that to date, no UN commander has ever been prosecuted for having used force to protect civilians under imminent threat of physical violence, while quite a few have most probably suffered trauma for not taking action and subsequently having to observe the slaughter of civilians.

12

UN Security Council (2004a, b) Third Special Report of the Secretary-General on MONUC, UN Doc. S/2004/650, para 43. 13 UN Security Council (2004a, b) Third Special Report of the Secretary-General on MONUC, UN Doc. S/2004/650, para 37. 14 See Jan Isberg, n 9. 15 See UN Security Council (2004a, b) Third Special Report of the Secretary-General on MONUC, UN Doc. S/2004/650, para 43. 16 See Jan Isberg, n 9.

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The Incidents in Juba in 2016

Another equally tragic example of a failing UN command and control structure occurred twelve years later in the United Nations Mission in South Sudan (UNMISS) when a crisis took place from 8-25 July 2016 in Juba. There appeared to be a disconnect between the civilian UNMISS leadership and the UNMISS Force, caused by a lack of knowledge and affinity with military matters to deploy the UNMISS Force effectively and a differing view on mandate implementation. In addition, UNMISS Force had already regularly betrayed the confidence of the civilian leadership by not intervening in battles between the SPLA and residents of the Protection of Civilians site in Malakal.17 The Juba crisis saw three days of intense fighting that resulted in the death of many civilians and two UN peacekeepers and the collapse of the fragile peace agreement.18 The crisis brought unrestrained violence to the capital of the world’s youngest nation and the participating fighters left a trail of destruction and suffering in their wake. These circumstances gave rise to an independent special investigation into the violence and into the response of the United Nations.19 The return of former First-Vice President Riek Machar to Juba with more than 1200 armed fighters was pursued as an essential starting point for the implementation of the peace agreement. Despite the security risks, and notwithstanding the strong objections of the Special Representative of the Secretary-General, of international security advisers and of generals in the government army, these opposition soldiers were placed less than a kilometre from UN House.20 Internally displaced persons, located nearby and United Nations personnel would likely be in the crossfire should fighting break out. International mediators working with the government and the opposition at the time agreed that this was a necessary compromise in order to secure the peace agreement.21 In the weeks prior to the violence, UNMISS and the humanitarian community saw timely and accurate warning signs of the resumption of hostilities in Juba between the Sudan People’s Liberation Army (SPLA) and the Sudan People’s Liberation Army in Opposition (SPLA-IO). Notwithstanding the early warning that fighting would take place near UN House, the Mission did not properly prepare for three critical and foreseeable scenarios:22 First, that fighting along the northern

17

See te Lintelo et al. 2018, para 4.1. Between the President of South Sudan, Salva Kiir, and his former First-Vice President, Riek Machar. 19 UN Secretary-General (2016) Letter to the President of the Security Council, UN Doc. S/2016/ 924; the Annex to the Letter is the Executive summary of the independent special investigation into the violence in Juba in 2016 and the response by the United Nations Mission in South Sudan. 20 Base of UNMISS Headquarters. 21 See UN Secretary-General (2016) Letter to the President of the Security Council, UN Doc. S/2016/924, Annex, para 4. 22 UN Doc. S/2016/924, para 5. 18

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perimeter of UN House would prompt internally displaced persons protected in site 1 to enter the UN House compound to seek greater protection; second, that the Mission would face significant movement restrictions from the government, envisaged in many scenarios but never clearly planned for in integrated military and security contingency plans; and third, that UN House would likely be caught in crossfire. Watchtowers and defensive positions along the perimeter were poorly prepared and equipped to stop even small arms fire, severely limiting the ability of the Mission to respond when fighting with heavy weapons started. Caught on the frontlines of active conflict, the Mission faced an extremely challenging set of circumstances during the crisis. Artillery, tanks and helicopter gunships were all used, sometimes within meters of UN House. In three days of fighting, two Chinese peacekeepers were killed and several injured, 182 buildings on the UN House compound were struck by bullets, mortars and rocket-propelled grenades and thousands of internally displaced persons fled into UN House from the protection of civilian sites seeking protection.23 The special investigation found that a lack of leadership on the part of key senior Mission personnel had culminated in a chaotic and ineffective response to the violence.24 On the civilian side, despite strong efforts from the UNMISS Joint Operations Centre, Mission-wide and integrated coordination was poor before and during the crisis. The Mission’s established culture of reporting and acting in silos inhibited effective action during a period in which swift, joint action was essential. The Joint Operations Centre and the Security Information Operations Centre were not co-located, as required by United Nations policy, contributing to a fragmented security response.25 On the uniformed side, the Force did not operate under a unified command, resulting in multiple and sometimes conflicting orders to the four troop contingents, ultimately underusing the more than 1800 infantry troops at UN House. The Force Commander appointed a Battalion Commander as the Incident Commander, commanding all the forces at UN House in addition to his own battalion. Furthermore, the Force Commander ordered the Incident Commander to retain an explicit and ultimately confusing command link to Sector South Headquarters in Tomping, which was physically cut off from UN House for the duration of the fighting. This confused arrangement, in combination with the lack of leadership on the ground, contributed to incidents of poor performance among the military and police contingents at UN House. This included at least two instances on 10 and 11 July 2016 in which one battalion abandoned some of its defensive positions that should have protected civilian site 1. The performance of a formed police unit in stopping looting by some internally displaced persons inside UN House and controlling the crowd was inadequate.26

23

UN UN 25 UN 26 UN 24

Doc. Doc. Doc. Doc.

S/2016/924, S/2016/924, S/2016/924, S/2016/924,

para para para para

6. 7. 8. 9.

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The weeks after the fighting also saw an increase in sexual violence against civilians in and around the protection of civilian sites in and around Juba. The special investigation reviewed several reports from the media and non-governmental organizations of cases of sexual violence around the civilian sites, alleging that peacekeepers failed to respond to incidents of sexual violence occurring directly in front of them on 17 and 18 July 2016.27 After the crisis, the Force and police components continued to display a risk averse posture unsuited to protecting civilians from sexual violence and other opportunistic attacks. More than two months after the crisis, the Mission still did not conduct regular dismounted (on foot) patrols, standing patrols or patrols outside its perimeter at night.28 The end of the fighting brought widespread looting to areas around UN House. The World Food Program had requested UNMISS force protection for its compound and main warehouse prior to the crisis. The Mission did not provide this protection and $29 million worth of food, equipment and supplies was looted over more than three weeks. Similarly, the warehouse of the Food and Agriculture Organization of the UN, which contained seeds and agricultural equipment, was looted.29 Following the Juba crisis in 2014, the findings and conclusions of the special investigation30 partially focus on remedial action, prevention and accountability. Action items were developed for the UN Secretariat31 to reinforce UNMISS mission performance. Most findings are universally applicable to most UN missions, as today the overwhelming majority of UN peacekeeping operations have a mandate to protect civilians32 and these findings should be considered ‘customary policy’. Relevant from an operational perspective are • Provide clear guidance and direction to new incoming Force Commanders on the vision and expectations of UN Headquarters with respect to the implementation of the mandate, the ROE and the use of force. It should also consider reintroducing a written Force Commander directive with instructions and guidance on key elements of the work of a Force Commander at the start of a Force Commander’s tenure; • Ensure that all battalion commanders, key battalion staff officers and military staff officers have a working command of English; • Establish and deploy a mobile training support team of experienced peacekeepers and officers from Troop Contributing Countries, to train battalion officers on the mandate, the ROE, the use of force and challenges in peacekeeping

27

UN Doc. S/2016/924, para 14. UN Doc. S/2016/924, para 15. 29 UN Doc. S/2016/924, para 16. 30 UN Doc. S/2016/924, para 19. 31 UN Doc. S/2016/924, separate actions and recommendations were also aimed at the Mission, the government of South Sudan and Troop and Police Contributing Countries. 32 UN General Assembly and Security Council (2015) Report of the High-Level Independent Panel on Peace Operations, UN Doc. A/70/95 and S/2015/446, para 90. 28

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• • •

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these teams should use a scenario training concept, including training on the taking of appropriate action to prevent sexual violence; Revisit the current mentoring programmes for Force Commanders and Deputy Force Commanders to provide scenario training on protection of civilians, including from conflict-related sexual violence, and make it more mission oriented and less Headquarters-focused; Discussions with Troop and Police Contributing Countries will be critical to establishing clear expectations on all sides; Ensure that missions have rigorous contingency plans in place that are regularly rehearsed through table-top exercises. These plans should be revisited following any significant change in the environment and/or in the mandate; Inaction by peacekeepers when civilians are attacked rises above the level of simple underperformance, and attacks on civilians within one kilometre of a peacekeeping base should be promptly investigated and peacekeepers, commanders and relevant Troop Contributing Countries should be held accountable for failures to protect.

8.3

The Need for a Crystal-Clear UN Authority, Command and Control Framework, Combined with a Will to Act

The DPO-DOS Policy on Authority, Command and Control in United Nations Peacekeeping Operations of 2019, which replaces the DPKO-DFS Policy on Authority, Command and Control in United Nations Peacekeeping Operations of 2008, is currently meant to offer the necessary crystal-clear command and control framework at three distinct but overlapping levels: strategic, operational and tactical.33 It explains the concepts of ‘UN operational authority’ and ‘UN operational command and control’.34 The Under-Secretary-General for Operational Support signs the Memorandum of Understanding with the Troop Contributing Countries in accordance with the Contingent Owned Equipment (COE) Manual (2017) or its successor.35 Under no circumstances shall UN uniformed personnel be placed under the tactical command or control of host-State military or law enforcement agencies.36 The new DPO-DOS Policy confirms that each mission has a Mission Leadership Team (MLT) that supports the Head of Mission (HOM) in the execution of his or her 33

UN DPO-DOS (2019) Policy on Authority, Command and Control in United Nations Peacekeeping Operations, para 9. 34 Discussed briefly infra, in Sect. 8.4.2.2. For a detailed general description of authority, command and control in UN peace operations, see Cammaert and Klappe 2015, pp. 181–184; and Gill et al. 2017, pp. 41–43, 46–47 and 49–51. 35 UN DPO-DOS (2019), para 13. 36 UN DPO-DOS (2019), para 97.

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functions and in ensuring coordination and consultative decision-making on strategic and operational issues.37 One of the members of the MLT is the Chief of Staff (COS), who is responsible to the HOM for ensuring coherence across all organizational units of the mission in executing the directives of the HOM. The COS’s core focus is on mission management and specific functions and structures that allow the MLT and senior leadership to understand the situation, develop and consult on options, make their intent known, execute decisions and adapt operations to circumstances.38 The responsibilities that are given to COS of a multidimensional peacekeeping operations suggest that such an individual should be an experienced planner with specific experience in integrated operational planning and a good communicator. The MLT typically also includes a Senior Legal Advisor. This person reports to the HOM (either directly or through the COS but preferably directly) and may seek guidance from the Office of Legal Affairs at the UN Headquarters. The Senior Legal Advisor advises the HOM on all legal aspects of the mission’s operations, the mission’s mandate (including on the use of force), the mission’s Status of Forces Agreement (SOFA), privileges and immunities, the UN legal framework, national and international laws, claims, liabilities etc.39 In large missions, the Force Commander will typically also have a Legal Advisor. In light of the importance of protection of civilians in peace operations, it is also interesting to note that the MLT also typically includes the Head of the Human Rights Component, the Senior Gender Advisor and the Senior Protection of Civilians Advisor.40 The role of the Joint Mission Analysis Centre (JMAC) is also acknowledged in the new Policy: “The JMAC is responsible for collecting and analysing multi-source information, including peacekeeping-intelligence related material to produce integrated analysis and predictive assessments in support of MLT decision-making, contingency planning and crisis management”.41 Obviously, the arrangements put in place should be judged by how effectively they prevent the kinds of attacks on civilians discussed earlier.

International Responsibility—The Case of the Mothers of Srebrenica v the Netherlands

8.4 8.4.1

Introduction

In 1991, the Republics of Slovenia and Croatia declared themselves independent from the Socialist Federal Republic of Yugoslavia. Subsequently, fighting erupted 37

UN UN 39 UN 40 UN 41 UN 38

DPO-DOS DPO-DOS DPO-DOS DPO-DOS DPO-DOS

(2019), (2019), (2019), (2019), (2019),

para para para para para

17. 28. 17, footnote 12. 17. 83.

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in both republics. The warring factions in Croatia reached an armistice agreement on 2 January 1992 and accepted a peace plan, which provided for the deployment of a peacekeeping force under the command of the UN. The United Nations Security Council, by Resolution 743 of 21 February 1992, formed the United Nations Protection Force (hereinafter: UNPROFOR). In June 1992 Resolution 758 of the Security Council expanded the theatre of operations of UNPROFOR, with its headquarters in Sarajevo, to the territory of Bosnia-Herzegovina.42 The responsibility over the area of the city of Srebrenica and its surroundings, situated in eastern Bosnia-Herzegovina, was initially allocated to a Canadian regiment, for the purposes of bringing stability. Since that regiment had to be replaced, the Dutch Government offered to the UN Secretary-General a battalion of the Airmobile Brigade (hereinafter: Dutchbat) for the implementation of Resolution 836 in the safe areas referred to therein. The UN Secretary-General accepted the offer on 21 October 1993 and subsequently, in March 1994, Dutchbat relieved the Canadian regiment present in the Srebrenica enclave. In July 1994, Dutchbat I was relieved by Dutchbat II, which was in its turn relieved by Dutchbat III in January 1995. After the fall of Srebrenica in November 1995, which will be discussed in more detail below, genocide was committed against Bosnian Muslims. As has been established later, the Bosnian Serbs killed approximately 7500 male Bosnian Muslims in mass executions, which started on 13 July 1995 and continued until 17 July 1995.43 UN Secretary-General Kofi Annan concluded in his 1999 report on the fall of Srebrenica The international community as a whole must accept its share of responsibility for allowing this tragic course of events by its prolonged refusal to use force in the early stages of the war. This responsibility is shared by the Security Council, the Contact Group and other Governments which contributed to the delay in the use of force, as well as by the United Nations Secretariat and the mission in the field.44

Understandably, this conclusion was rather general in its attribution of responsibility. In this specific case relatives of the murdered men sought legal redress and compensation, initially from the United Nations and subsequently from the Kingdom of the Netherlands. This section intends to explore the legal regime which applies to the attribution of wrongful acts committed during peace operations executed under the United Nations flag. Specific attention will be devoted to the 2019 judgment of the Netherlands Supreme Court in the case of the Mothers of Srebrenica Association et al. v. The Netherlands (2019) dealing with the responsibility of the Dutch State for the Srebrenica-genocide.45

42

As from 1 April 1995 UNPROFOR was renamed United Nations Peace Forces (UNPROFOR or UNPF). 43 Factual description derived from: Supreme Court of the Netherlands, Mothers of Srebrenica Association et al. v The Netherlands, Judgment, 19 July 2019, ECLI:NL:HR:2019:1284 (Mothers of Srebrenica 2019). 44 UN General Assembly (1999) Report of the Sec-Gen pursuant to GA Res 53/35, the Fall of Srebrenica, UN Doc. A/54/549, para 501. 45 Mothers of Srebrenica 2019, above n 43, consideration 46.

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8.4.2

International Responsibility in UN Peace Operations

8.4.2.1

General Observations

As noted in the Handbook of International Law of Military Operations, international responsibility is part of the broader notion of (international) accountability. The responsibility of States and international organizations may be characterized as akin to tortious liability.46 With the aim of preparing rules for the determination of international responsibility for internationally wrongful acts the International Law Commission (ILC) has developed two relevant sets of ‘Articles’, which have since been broadly applied by national and international courts. The first are the ‘Draft articles on responsibility of States for internationally wrongful acts’ (2001, DARS),47 the second the ‘Draft articles on the responsibility of international organizations’ (2011, DARIO).48 Under both DARS and DARIO two ‘elements of an international wrongful act’ need to be fulfilled for international responsibility to arise: (a) an action or omission which is attributable to that organization under international law; which (b) constitutes a breach of an international obligation of that organization.49 Article 4(1) DARS determines: The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions.

The armed forces may be considered as the “example par excellence” of a State organ.50 Article 8 DARS covers the situation when the conduct of a person or group of persons should be attributed to the State: The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.

For the determination of the degree of control which must be exercised by the State in order for the conduct to be attributable to it, the ILC referred to the ‘test’ as applied by the International Court of Justice (ICJ) in the Military and Paramilitary Activities in and against Nicaragua case, where the ICJ had held:

46

Kondoch and Zwanenburg 2015, p. 559. UN General Assembly (2001) Report ILC, 53rd Session, UN Doc. A/56/10, p. 31 ff. (DARS). 48 UN General Assembly (2011) Report ILC, 63rd Session, UN Doc. A/66/10. (DARIO). 49 Articles 2 DARS and 4 DARIO, respectively. 50 Kondoch and Zwanenburg 2015, p. 561. 47

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For this conduct to give rise to legal responsibility of the United States, it would in principle have to be proved that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed.51

This ‘effective control test’ will be discussed below in more detail, in the context of the Mothers of Srebrenica case. In the context of International Organizations the parallel article to Article 4 DARS is Article 6 DARIO, which reads: The conduct of an organ or agent of an international organization in the performance of functions of that organ or agent shall be considered an act of that organization under international law, whatever position the organ or agent holds in respect of the organization.

In case a State places an organ of that State at the full disposal of an international organization, i.e. when the organ is ‘fully seconded’, Article 6 applies. However, for situations in which the seconded organ still acts to a certain extent as organ of the seconding State or as organ or agent of the seconding organization, Article 7 DARIO applies, which reads: “The conduct of an organ of a State or an organ or agent of an international organization that is placed at the disposal of another international organization shall be considered under international law an act of the latter organization if the organization exercises effective control over that conduct.”

As the Commentary to Article 7 DARIO explains in detail, the ILC intended this article specifically for the situation in which a State places military contingents at the disposal of the United Nations for a peacekeeping operation, since the State retains disciplinary powers and criminal jurisdiction over the members of the national contingent. The criterion for attribution of conduct to either the contributing State or the receiving International organization is based on the ‘factual control that is exercised over the specific conduct taken by the organ (…) placed at the receiving organization’s disposal.”52 The UN, however, holds the view that “[a] United Nations peacekeeping force established by the Security Council or the General Assembly is a subsidiary organ of the United Nations.” This is also reflected in the UN Model SOFA, which states: “The United Nations peacekeeping-operation, as a subsidiary organ of the United Nations, enjoys the status, privileges and immunities of the United Nations”;53 with regard to attribution, it states: “As a subsidiary organ of the United Nations, an act of a peacekeeping force is, in principle, imputable to the Organization, and if committed in violation of an international obligation entails the international

51

ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, 27 June 1986, I.C.J. Reports 1986, p. 14. See the Commentary, p. 47. 52 UN General Assembly (2011) Report ILC, 63rd Session, UN Doc. A/66/10, p. 87. 53 UN General Assembly (1990) Comprehensive Review of the Whole Question of Peacekeeping Operations in All Their Aspects, Model SOFA for Peace-keeping Operations, UN Doc. A/45/594, para 15.

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responsibility of the Organization and its liability in compensation. The fact that any such act may have been performed by members of a national military contingent forming part of the peacekeeping operation does not affect the international responsibility of the United Nations vis-à-vis third States or individuals.”54 With regard to the scope of UN liability for activities of UN Forces, the UN has recognized the principle “…that liability for damage caused by members of UN forces is attributable to the Organization.”55 The UN’s position that a national military contingent seconded to the UN for a peace operation is to be considered an ‘organ of the UN’, with the consequence that the conduct is attributable to the UN, is in principle also reflected in both jurisprudence and practice.56 If a State exercises its own ‘command and control’ while a military contingent of that State is seconded to the UN, the acts of the contingent can and should be attributed to that State when appropriate, using the ‘effective control test’, with reference to Article 8 DARS. As will be shown later, the Netherlands’ Supreme Court also made use of the ‘effective control test’ in the Mothers of Srebrenica case. Several authors are currently of the opinion that it is doubtful that Article 7 DARIO, with its single test applicable to all types of Peace Operations, reflects the law as it currently stands.57

8.4.2.2

The Responsibility for the Conduct of a Military Force Led by the United Nations—The UN Perspective on ‘Command and Control’

The recent Policy, dated 25 October 2019, issued by the Under-Secretaries-General for Peace Operations and Operational Support, describes the UN perspective on the way the responsibilities within Peace Operations are structured.58 The document very much reflects the notion that the UN considers a contribution of a Member State, seconded to the UN in order to be employed in a Peace Operation, as an ‘organ’ of the UN, as discussed above. Since the ‘command and control’ arrangements mentioned in this paper are in essence comparable to the situation in 1995, they will be summarized below.

54

UN General Assembly (2006) Responsibility of international organizations, Comments and observations received from international organizations. UN Doc. A/CN.4/545, p. 17. 55 UN General Assembly (1996) Financing of the United Nations Protection Force, the United Nations Confidence Restoration Operation in Croatia, the United Nations Preventive Deployment Force and the United Nations Peace Forces headquarters, UN Doc. A/51/189, para 8. See para 16 of this document for the scope of liability for combat-related activities. 56 Gill et al. 2017, p. 283. 57 See for an extensive discussion of this topic, including references to recent jurisprudence: Gill et al. 2017, p. 274 ff. 58 UN DPO-DOS (2019) Policy on Authority, Command and Control in United Nations Peacekeeping Operations.

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The Secretary General of the UN is responsible for performing the functions entrusted to him by the Security Council and the General Assembly. This includes —inter alia—conferring responsibility and delegating authority for the management of UN missions and peace operations. Thus, the responsibility for mandate implementation and authority to manage resources is vested by the Secretary-General in the Head of Mission (HOM).59 In case a mission has a military component, consisting of military contingents made available by Member States, the HOM exercises ‘UN operational authority’, which includes the authority transferred by Member States to use the operational capabilities of the respective national contingents.60 Subsequently, the Head of a Military Component (HOMC), subordinate to the HOM, exercises ‘UN operational Command and Control’ over all UN military personnel and units in the mission, including individual deployed experts, and establishes the military operational chain of command. ‘UN Operational Command and Control’ includes the authority to assign tasks, designate objectives and give direction to individual uniformed personnel, units and sub-units necessary to accomplish the mission. This authority is exercised “in consultation with the National Contingent Commander (NCC), as appropriate”. The UN Policy is clear about the fact that the Troop Contributing Country does not—from a UN perspective—exercise any form of ‘operational authority’. The tasks of the NCC are limited to “matters such as personnel management, supply services and other non-operational tasks on behalf of uniformed contingent personnel and units.”61

8.4.3

The Mothers of Srebrenica (2019) Case

8.4.3.1

The Background

The case concerns the events as stipulated below that took place on 13 July 1995 during the fall of the city of Srebrenica. The Mothers of Srebrenica Foundation initiated the proceedings. This Foundation represents the interests of approximately 6000 surviving relatives of the victims of the genocide, described in the introduction of this section. The Netherlands’ Supreme Court (hereinafter: the Supreme Court) had already held in 2012, in a proceeding that also had been initiated by the Foundation and others against the UN, that the UN enjoys immunity from jurisdiction.62 The European Court of Human Rights (ECtHR) subsequently held that 59

UN DPO-DOS (2019), paras D and E. UN Operational Authority is vested in the Secretary-General and through him in the head of a specific mission, under the authority of the Security Council. UN DPO-DOS (2019), para 100. 61 UN DPO-DOS (2019), paras 45 and 52. As for the Police Operational Chain of Command in UN peace operations see para D.4. 62 Supreme Court of the Netherlands, Mothers of Srebrenica Association et al. v The Netherlands, Judgment, 11 June 2013, ECLI:NL:HR:2012:BW1999, (Mothers of Srebrenica 2012). 60

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this immunity does not result in a violation of Article 6 of the European Convention on Human Rights (ECHR).63 In the present case, the Foundation held the State liable for the acts and omissions of Dutchbat in the period preceding and following the fall of the city of Srebrenica. The Foundation claimed that Dutchbat did too little to stop the advance of the Bosnian Serbs and to protect the population of Bosnian Muslims. Dutchbat also acted wrongfully, in the Foundation’s opinion, by cooperating with the evacuation of the refugees who had fled to the so-called mini safe area of Dutchbat. During that evacuation the male refugees were separated from the other refugees by the Bosnian Serbs and were deported, after which they were murdered.

8.4.3.2

The Judgments in the Lower Courts

The District Court of The Hague held that by virtue of a wrongful act the State was liable for the damage the persons represented by the Foundation have suffered as a result of Dutchbat’s cooperation in the deportation of male refugees who were deported and then killed by the Bosnian Serbs in the afternoon of 13 July 1995. The District Court denied all other claims of the Foundation.64 The Hague Court of Appeal (hereinafter: the Court of Appeal) held on appeal that the State acted wrongfully in two respects: (i) by facilitating the separation of the male refugees by the Bosnian Serbs on 13 July 1995, by allowing the refugees to go to the buses in groups and through a sluice, and (ii) by not giving the male refugees who were inside the compound on 13 July 1995 the choice of staying in the compound and thus denying them the 30% chance of not being exposed to the inhumane treatment and executions by the Bosnian Serbs. The Court of Appeal ordered the State to compensate the damage as a result of the acts mentioned at (ii) to the extent of 30%.65

8.4.3.3

The Command and Control Arrangements

Dutchbat was placed under the command of the UN and functioned as an UNPROFOR contingent. The State had handed over command and control to the UN to carry out the mandate in §5 and §9 of Resolution 836, which entailed in essence:

63

ECtHR, Stichting Mothers of Srebrenica And Others v the Netherlands, Grand Chamber Judgment, 11 June 2013, Application no. 65542/12 (Mothers of Srebrenica ECtHR). 64 The Hague District Court, Mothers of Srebrenica Association et al. v The Netherlands, Judgment, 16 July 2014, ECLI:NL:RBDHA:2014:8748, (Mothers of Srebrenica 2014). 65 The Hague Court of Appeal, Mothers of Srebrenica Association et al. v The Netherlands, Judgment, 27 June 2017, ECLI:NL:GHDHA:2017:3376, Mothers of Srebrenica 2017.

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(5) the mission to deter attacks against the safe areas, to monitor the cease-fire, to promote the withdrawal of paramilitary units to participate in the delivery of humanitarian relief to the population; […] (9) the authority to act in self-defence and to take the necessary measures, including the use of force, in reply to bombardments against or armed incursions into the safe areas or obstruction to the freedom of movement of UNPROFOR or of protected humanitarian convoys.

The command and control handed over to the UN by the State is described in the operation order of 14 December 1994 at the relief of Dutchbat II by Dutchbat III, which reads, inter alia: “Upon arrival in YU [Yugoslavia] Dutchbat is uoc [NATO: under operational control (OPCON)] of UNPROFOR”.66 The command and control handed over to the UN by the State included control over the operational implementation of the mandate by Dutchbat. In this respect, Dutchbat was controlled via the UN chain of command of UNPROFOR, which issued operational orders and instructions to the Dutchbat Commander. The State retained the authority to call back troops, discontinue participation in the operation, and to discipline soldiers, and retained control over the preparation of the Dutch troops, personnel matters and material logistics. Dutchbat was bound by the codes of conduct and instructions established by the UN chain of command: the ROE, the Standing Operating Procedures, and the Policy Directives drafted by the Force Commander. The Netherlands Ministry of Defence laid down these codes of conduct and instructions, plus a number of existing rules and rules especially drafted for this mission, in (Dutch) Standing Order 1 (NL) UN Infbat.

8.4.3.4

The Analysis by the Supreme Court Concerning Attribution

With reference to the transfer of command and control to the UN, as described in the previous subsection, the Supreme Court takes as a point of departure: “…in principle the UN had effective control over Dutchbat. The argument as to whether an exception occurred in one or more specific instances, entailing that not only the UN but also the State had effective control, must be put forward by the Foundation et al. with sufficient substantiation and, if disputed, proven.”67 In order to answer the question whether the conduct of Dutchbat had to be attributed to the State, the Supreme Court bases its decision essentially solely on Article 8 DARS, which deals with ‘Conduct directed or controlled by a State’. With

Note 1 to operational control in this document reads: “OPCON. The authority delegated to a commander to direct forces assigned so that the commander may accomplish specific missions or tasks which are usually limited by function, time or location; to deploy units concerned, and to retain or assign tactical control of those units. It does not include authority to assign separate employment of components of the units concerned. Neither does it, of itself, include administrative or logistic control.”. 67 Mothers of Srebrenica 2019, consideration 3.1.2. 66

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reference to the judgment of the Court of Appeal, the Supreme Court notes that parties agreed on Dutchbat being an “organ” of the UN. “It must be assumed, therefore, that Dutchbat was not an organ of the State within the meaning of Article (4)1 DARS”, but in fact was “acting on the instructions, or under the direction or control of the State”.68 The Supreme Court notes explicitly that the question whether making Dutchbat available to the UN implies that Dutchbat’s conduct can exclusively be attributed to the UN and not to the State, or that dual attribution (attribution to both the UN and the State) is possible, is not at issue in this case, with the consequence that the provisions in DARIO concerning the attribution of conduct to an international organization “are not directly relevant in these proceedings”.69 This latter observation is indeed correct in the sense that the UN was not a party to this proceedings, but on the other hand—as we will see below—the Supreme Court follows the conclusion of the Court of Appeals that the decision to evacuate Dutchbat and the refugees had come about ‘by mutual consultation’ between the UN and the Dutch State. This could be seen as to imply a responsibility on the side of the UN also, but —as we have seen—with no practical effect, since it already had been decided by the ECtHR that the UN has legal immunity, and again bearing in mind that the UN was not a party in these proceedings.70 The commentary to Article 3 DARIO as well as Article 48(1) DARIO explicitly recognize the existence of ‘parallel responsibility’ for an internationally wrongful act.71 For the interpretation of the requirement “under the direction or control”, as specified in Article 8 DARS,72 the Supreme Court explicitly refers to the ‘effective control test’ as mentioned in Commentary to Article 8 DARS, derived from the ICJ judgment in Nicaragua v. United States of America73 and further developed in the ICJ judgment in Bosnia and Herzegovina v. Serbia and Montenegro.74 The Supreme Court concludes that “… conduct by Dutchbat can only be attributed to the State if the State exercised effective control of certain acts” and in the event of “actual participation of and directions given by [the] State.” The Court continues:

68

Mothers of Srebrenica 2019, considerations 3.3.3. and 3.3.2. Mothers of Srebrenica 2019, consideration 3.3.5. 70 The Supreme Court implies the DARIO provisions were applicable in two earlier cases of Supreme Court of the Netherlands, Mustafić v. The Netherlands and Nuhanović v. The Netherlands, Judgments, 6 September 2013, ECLI:NL:HR:2013:BZ9228 and ECLI:NL:HR:2013: BZ9225. (Mustafić and Nuhanović.) Ryngaert and Spijkers 2019, paras 2–4, dispute the applicability. 71 UN General Assembly (2001) Report ILC, 53rd Session, UN Doc. A/56/10, pp. 81 and 144. See also: Gill et al. 2017, p. 278 f. 72 UN General Assembly (2001) Report ILC, 53rd Session, UN Doc. A/56/10, p. 47. See also para (3) ff. of the Commentary. 73 Military and Paramilitary Activities in and against Nicaragua, above n 51, p. 14. 74 ICJ 26 February 2007, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 43. 69

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“What matters is factual control of the specific conduct, in which all factual circumstances and the special context of the case must be considered.”75 The fact that the Supreme Court considers Dutchbat an organ of the UN is confirmed by its discussion of the ultra vires acts, where it considers both Article 8 DARIO and Article 8 DARS applicable: ultra vires conduct by an organ of an international organization is in principle to be attributed to that international organization, even if the conduct exceeds the authority of that organ or contravenes instructions, unless the organ has committed those acts “under the direction or control of [a] State”, in which case the conduct shall be considered an act of that State.76 Applying this standard, the Supreme Court concludes that the acts of Dutchbat until 23:00 h. on 11 July 1995 were performed under the command and control of the UN, without the State exercising effective control in that regard. Those acts could therefore not be attributed to the State for that reason and the State could not be held liable for the fact that Dutchbat had been unable to prevent Srebrenica from being captured by the Bosnian Serbs.77 On the other hand, in the period starting from 23:00 h. on 11 July 1995, after Srebrenica had been conquered and after it was decided to evacuate the Bosnian Muslims who had fled to the mini safe area, the State did have effective control of Dutchbat’s conduct. That conduct can be attributed to the State for that reason.78 For this latter conclusion, the Supreme Court followed the analysis of the Court of Appeal, which was not disputed in cassation. The Court of Appeal had found that the decision to evacuate Dutchbat and the refugees had come about by mutual consultation between General Janvier on behalf of the UN on the one side, and the Dutch Generals Van den Breemen and Van Baal on behalf of the State on the other. Given the Dutch Government’s participation in the decision-making process ‘at the highest level’, the State was in a position of ‘effective control’ as of that moment over granting humanitarian aid to and (preparing) the evacuation of the refugees in the mini safe area.79

8.4.3.5

The Finding of Liability

The evacuation—which, in hindsight, turned into deportation of the male refugees by the Bosnian Serbs—commenced in the afternoon of Wednesday, 12 July 1995, with Dutchbat’s cooperation. From the evening of 12 July 1995 Dutchbat became

75

Mothers of Srebrenica 2019, above n 43, considerations 3.5.2.–3.5.4. The Supreme Court refers to the text of the Commentary (at 3 and 4) to Article 8 DARS. Emphasis by the Supreme Court. 76 Mothers of Srebrenica 2019, consideration 3.6.1. 77 Mothers of Srebrenica 2019, consideration 5.1. 78 Mothers of Srebrenica 2019. 79 Mothers of Srebrenica 2017, considerations 23.8–25. See also Nuhanovic, consideration 3.12.2, in the same spirit.

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aware that the male refugees, after being separated from the other refugees by the Bosnian Serbs, ran a real risk of violation of their rights to physical integrity and life by the Bosnian Serbs. According to the Supreme Court, the continued cooperation in the evacuation of refugees on Thursday, 13 July 1995, was not wrongful, however. The Supreme Court holds—contrary to the Court of Appeals—that although Dutchbat knew of the aforementioned realistic danger to the male refugees, Dutchbat discontinuing its cooperation could not have changed this, as the Bosnian Serbs would continue the evacuation. By continuing to cooperate in the evacuation, in any event Dutchbat could prevent women, children and the elderly from being trampled. The Supreme Court therefore considers it not wrongful for Dutchbat to have continued its cooperation in the evacuation. The appreciation is different, however, in respect of the evacuation at the end of the afternoon of 13 July 1995 of the refugees who were inside the compound. Dutchbat failed to offer the male refugees in the compound the choice of staying behind there, even though that was possible. As a result, Dutchbat withheld from these male refugees the chance of escaping from the Bosnian Serbs. That was wrongful, since it did not meet the required standard of care, as described in the next section. The Supreme Court considered the chance that the male refugees, had they been offered this choice, would have escaped the Bosnian Serbs small, but not negligible. The Supreme Court estimated that chance at 10% and subsequently limited the liability of the State to 10% of the damage suffered by the surviving relatives of these male refugees.80 It is important to note that this 10%-determination is not a general rule for the State’s liability because of wrongful acts in peace operations in general, but very much the result of the case-specific analysis.81

8.4.3.6

The Applicable ‘Standard of Care’ and the ‘Margin of Appreciation’

The Supreme Court concluded that in the assessment of Dutchbat’s conduct in the mini safe area—both inside and outside of the compound—it is decisive whether Dutchbat acted in violation of the standards derived from Articles 2 and 3 ECHR that protect the rights to life and to physical integrity. The Supreme Court considers these standards inherent in the duty of care from Article 6:162 of the Dutch Civil Code—the general tort-provision, on which this case was based. It therefore had to be determined whether Dutchbat’s command knew or reasonably ought to have known at the time of that conduct that there was a real risk of the rights of the Bosnian refugees protected by Articles 2 and 3 ECHR being violated and if so, whether Dutchbat failed to take the measures that it reasonably could have been

80

Mothers of Srebrenica 2019, consideration 5.1. Ryngaert and Spijkers 2019, para 3.4.

81

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expected to take in order to avoid that risk, given all of the circumstances of the case.82 The Supreme Court holds that “Dutchbat’s command knew or reasonably ought to have known at the time of the evacuations on 13 July 1995 that there was a real risk that the Bosnian Serbs would violate the right to life and to physical integrity of the male refugees.”83 In the assessment whether Dutchbat had acted wrongfully by not taking the measures it could reasonably be expected to take to avoid that risk, the Supreme Court holds that “account must be taken of the fact that Dutchbat was acting in a war situation, that operational choices had to be made on the basis of priorities and the available resources, and that human conduct is unpredictable”.84 The Supreme Court relied for this ‘margin’ on the European Court for Human Rights judgment in Finegenov et al. v Russia, where the European Court had found that the positive obligations of the State under Article 2 ECHR (the right to life) must be interpreted “in a way which does not impose an impossible or disproportionate burden on the authorities, bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources”.85 With other commentators we may conclude that given the specific circumstances of this situation, where the State’s responsibility could be clearly identified, with strong temporal and factual limitations, both the bar for a liability finding for a State and the probability that acts or omissions of UN peacekeeping units will in the future be attributed only to the UN may be considered high.86

8.5 8.5.1

Monitoring the UN Command and Control Framework Through Periodic Inspections The Need to Monitor Given the Changing Environment of Peace Operations

One of the new elements in the DPO-DOS Policy on Authority, Command and Control in United Nations Peacekeeping Operations of 2019 is that it asks the Director of Peacekeeping Strategic Partnerships to “monitor and report on compliance with the policy on authority, command and control through periodic

82

Mothers of Srebrenica 2019, consideration 4.4.2; see also: Ryngaert and Spijkers 2019, para 3. Mothers of Srebrenica 2019, consideration 4.4.1. 84 Mothers of Srebrenica 2019, consideration 4.4.2. 85 ECtHR, Finogenov et al./Russia, Judgment, 20 December 2011, Application No. 18299/03, para 209. 86 Ryngaert and Spijkers 2019, para 3.1. and the reference in that publication to Dannenbaum T (2019), A disappointing end of the road for the Mothers of Srebrenica litigation in the Netherlands, n 80. 83

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inspections”.87 The use of the word inspections is interesting as it seems to imply an evolution in the way the Department of Peace Operations and the Department of Operational Support officially or openly task the Director of Peacekeeping Strategic Partnerships, a position created in 2013. Indeed, in 2013, in light of changing circumstances the UN Secretary-General had identified a need for a new independent evaluation function of deployed UN uniformed personnel.88 As explained by the UN Secretary-General, the context of UN peace operations has changed as the “range and diversity of mandated tasks assigned to uniformed personnel in peacekeeping operations have expanded considerably as United Nations peacekeepers work increasingly with numerous entities, including regional organizations, requiring greater planning coordination and standardization, as well as interoperability between peacekeeping missions. Moreover, troop and police contributors have become more diverse as new and/or emerging police and troop contributing countries work side by side with more established ones. Peacekeeping operations are also evolving, requiring more mobile and responsive forces, as well as more tailored and dynamic approaches to operational requirements”.89 The newer Police and Troop Contributing Countries have different cultural backgrounds, understandings of actions required in robust peacekeeping, material and financial resources, levels of training, expertise and operational experience compared to the more established ones. However, among the experienced Troop and Police Contributing Countries there are also at times different approaches to what robust peacekeeping entails, making it a challenge for the Head of Mission and/or the Head of the uniformed components to implement a mandate consistently and evenly throughout a mission’s area of responsibility. At some point in recent years, UN peace operations had increased dramatically with an eightfold growth in the personnel deployed,90 which made the managerial challenge only bigger. Peace operations are still based on three bedrock principles: consent of the parties, impartiality and limited use of force. However, as explained in the Leuven Manual on the International Law Applicable to Peace Operations these three principles have evolved along with the evolution of complex multi-dimensional mandates and increasingly volatile and challenging operating environments.91 For instance in some missions the principle of consent only applies to the operational level and at times we have armed groups directly opposing the peace accord. Greater coordination of planning, standardization and interoperability are a must. This reality requires strategic and operational engagement at all levels across DPO/ 87

UN DPO-DOS (2019) Policy on Authority, Command and Control in United Nations Peacekeeping Operations, para 107. 88 UN General Assembly (2013a, b) Budget for the support account for peacekeeping operations for the period from 1 July 2013 to 30 June 2014 and financing for the period from 1 July 2012 to 30 June 2013, UN Doc. A/67/756, paras 84–91. 89 UN Doc. A/67/756, para 84. 90 Gill et al. 2017, p. 13, para 11. 91 Gill et al. 2017, p. 5, para 7.

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DOS Headquarters and field missions, including in the field of Mission Concept, Concepts of Operation, the Status of Units Requirements (SUR) compliance, Support Plan, ROE, Directives on the Use of Force, the applicable standards, the proper pre-deployment training of personnel etc.92 As reported by the UN Secretary-General, the previous practice “relied only on recommendations or findings of end-of-assignment reports, field visits and technical and needs assessments that are collated in a matrix monitored by the Office of Military Affairs and the Office of Rule of Law and Security Institutions, complementing thematic evaluation mechanisms”. There was no independent comprehensive review or assessment of or reporting on uniformed military and police personnel deployed in the field.93 There had been previous attempts at evaluation and review in the Department of Peacekeeping Operations, but they had reportedly largely been using external consultants and had at times been managed within the Policy, Evaluation and Training Division, the Police Division of the Office of Rule of Law and Security Institutions, or the Office of Military Affairs. In addition, while other evaluation functions in the Secretariat have some military capacity, they do not focus primarily on the operational preparedness and utilization of uniformed capabilities and are unable to provide the necessary strategic and operational advice directly to the Under-Secretary-General for Peacekeeping Operations to allow for an effective review of policies and their implementation.94 The trends described above motivated the UN Secretary-General to propose an internal independent evaluation function of uniformed personnel to assist the Under-Secretary-General for Peace Operations through the provision of objective and independent reviews, analysis, advice and recommendations on the effectiveness and efficiency of uniformed personnel in the field as well as on compliance issues.

8.5.2

The Establishment and Role of the Office of Peacekeeping Strategic Partnership (OPSP)

Following the Secretary-General’s recommendation to establish this new independent evaluation function, the UN General Assembly adopted a resolution on 28 June 2013 that included the decision to establish the (non-executive) UN Office for the Peacekeeping Strategic Partnership (OPSP).95 By the end of 2013 the OPSP

92

See also Cruz undated, pp. 7–8. UN General Assembly (2013a, b) Budget for the support account for peacekeeping operations for the period from 1 July 2013 to 30 June 2014 and financing for the period from 1 July 2012 to 30 June 2013, UN Doc. A/67/756, para 84. 94 UN Doc. A/67/756, para 86. 95 UN General Assembly (2013a, b) Resolution 67/287, UN Doc. A/Res/67/287, paras 25–33. 93

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was operational with a small senior UN staff, highly experienced in UN peace operations. This entity initially reported directly to the Under-Secretaries-General of the Department of Peacekeeping Operations and of the Department of Field Support.96 Recently, the reporting line has been limited to the Under-Secretary-General of the Department of Peace Operations. This specific reporting line to the Under-Secretary-General for Peace Operations is an element that demarcates the OPSP from the so-called ‘special investigations’ (mentioned supra) and from the United Nations Office of Internal Oversight Services (OIOS). The requested resources for the OPSP were approved but the initially suggested name was changed and the functions were included in the UN General Assembly resolution as some Police and Troop Contributing Countries wanted to avoid similarities between the functions of the proposed Director and those of an Inspector-General including the terminology used by the OIOS.97 At the national level, an Inspector-General is typically a senior military officer responsible for the inspection of military or police units to determine if uniformed personnel meet the applicable standards, including in the field of efficiency, effectiveness and safety. According to Nilsson and Zetterlund, an ‘Inspector-General for UN peace operations’ (which ultimately did not get approved) “would explore the long-term strategic needs and requirements of the missions”.98 When proposing the creation of the office, the UN Secretary-General inter alia had in mind a capacity that would enable more effective and efficient planning and support to senior leadership in developing, in consultation with Police and Troop Contributing Countries, a more targeted and effective management of the use of uniformed personnel. Furthermore, he envisaged an effective monitoring and evaluation mechanism to ensure that military and police elements are able to meet shared objectives as stipulated in United Nations documents, as well as political/ strategic level direction in peacekeeping missions and to contribute to continuous improvement of peace operations and strategic and operational planning and direction, both mission-specific and overall.99 The General Assembly resolution that established the office did not reflect that specific intent, however. Nevertheless, the OPSP is expected to strengthen the peacekeeping partnership by assisting in identifying gaps that have an impact on the delivery of mandates by UN peace operations by making recommendations on systemic issues relating to

96

See para 24 of the resolution. On 1 January 2019 the name of the Department of Peacekeeping Operations was changed to Department of Peace Operations and the name of the Department of Field Support was changed to Department of Operational Support, endorsed with the adoption of UN General Assembly (2018a, b) Resolution 72/262 C, UN Doc. A/Res/72/262 C. 97 See also https://casquebleu.org/index.php?title=Office_for_the_Peacekeeping_Strategic_Partnership, accessed 11 February 2020. 98 Nilsson and Zetterlund 2014, p. 29. 99 UN General Assembly (2013a, b) Budget for the support account for peacekeeping operations for the period from 1 July 2013 to 30 June 2014 and financing for the period from 1 July 2012 to 30 June 2013, UN Doc. A/67/756, para 87.

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UN peace operations. It should also make recommendations to ensure the safety, security and welfare of uniformed field personnel, as well as to ensure the UN’s provision of adequate support services to such personnel. Furthermore, the OPSP is expected to deliver recommendations to incorporate lessons learned and best practices from peacekeeping missions into peace operations.100 When the vacancy notice for the post of Director of the OPSP was published in 2017, the notice did explicitly mention the independent character of the functions of the OPSP and it even stated that the selected candidate may not apply to or be appointed to any other position with the UN.101 Interestingly, the General Assembly decided explicitly that the OPSP shall not have an impact on existing command and control arrangements for uniformed personnel, specifically on the responsibilities of force commanders and police commissioners in the field. However, while all senior leaders within UN peace operations are to ensure implementation of the new DPO-DOS Policy on Authority, Command and Control, the Under-Secretaries-General have now made it clear that the OPSP shall have a role of monitoring and reporting on C2 compliance in this field. In 2015, the UN High-Level Independent Panel on Peace Operations indicated that the establishment of the OPSP has improved performance dialogue with military and police contributors on a limited set of issues and pointed out that the OPSP should be further empowered to cover assessment of performance, and that systematic follow-up on corrective measures must be improved.102 OPSP review reports have identified five areas which affect the mission: awareness & understanding, integration, leadership, compliance, and support.103 As most of the systemic issues identified in field missions can be tailored to these areas they should be given priority. In 2018, the UN Secretary-General explained that improving the comprehensive and holistic safety and security of United Nations peacekeepers is a key priority for the OPSP, which has been designated as the departmental lead in implementing the action plan developed in response to the report Improving Security of United Nations Peacekeepers: We need to change the way we are doing business. According to the Secretary-General the OPSP “has been instrumental in rendering technical advice to relevant stakeholders at [UN] Headquarters and in the field, in addition to monitoring the implementation of the recommendations to improve the safety and security of peacekeepers. It has issued recommendations on systemic and functional issues relating to the safety and security of uniformed components in

100

See para 28 of the Resolution. These functions have been reviewed during the 69th session of the General Assembly, but no changes were made to it. 101 See https://careers.un.org/lbw/jobdetail.aspx?id=82602. Accessed 11 February 2020. 102 UN General Assembly and Security Council (2015) Report of the High-Level Independent Panel on Peace Operations, UN Doc. A/70/95 and S/2015/446. 103 For more details, see Cruz undated, pp. 12–18.

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field missions”.104 The OPSP assists in identifying best practices. As part of a dialogue with the Troop and Police Contributing Countries it also responds to various inquiries and back briefs countries collectively and on an individual basis. Since its roll-out OPSP has issued hundreds of recommendations to enhance mandate implementation in the field missions and it may be expected that these recommendations have already had significant impact.

8.6

Concluding Remarks

Today, the vast majority of UN peace operations will have a mandate under Chapter 7 of the UN Charter authorizing the mission to use all means necessary to protect civilians under imminent threat of physical violence. The after-action reports of the crises in Bukavu and Juba as discussed above, illustrate once more that many lessons were learned by the UN, the Secretariat, the Security Council and Troop Contributing Countries. What remains troublesome is the fact that lessons already said to have been learned in the past actually remain to be learned over and over again, in particular lessons on how to effectively command and control UN peace operations when faced with violence against civilians. The initiatives discussed above, and in particular the new and more detailed DPO-DOS Policy of 2019, as well as the establishment of the Office of Peacekeeping Strategic Partnerships in 2013, surely add up to a suitable answer to the identified challenge of the protection of civilians in UN peace operations. While in theory UN command and control structures may now seem clear, during a crisis, effective control much depends on: how senior leaders of missions recognize the scope of their responsibilities prior to a crisis, and on their ability to exercise their authority during the crisis. In addition to an adequately resourced Force, a crystal-clear UN authority and an effective command and control framework should be in place and must be implemented adequately at all levels. There must also be a clear readiness and willingness of both civilian and military leaders at UN Headquarters and in the field to act swiftly and decisively in case a new crisis erupts. This may include the conditional delegation of authorities to commanders on-scene when situations deteriorate quickly, leaving ample time for consulting higher headquarters. Practicing such command and control procedures during table top- and field exercises, using contingency plans is an absolute must to prevent tragic events in the future.

104 UN General Assembly (2018a, b) Report of the Secretary-General: Implementation of the recommendations of the Special Committee on Peacekeeping Operations, UN Doc. A/73/480/ Add.1, para 51.

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References Articles, Books and Other Documents Cammaert PC, Klappe B (2015) Authority, Command and Control in United Nations-led Peace Operations. In: Gill T D, Fleck D (eds) The International Law of Military Operations, 2nd edn. Oxford University Press, Oxford, pp 181–184 Cruz PLG (undated) CCOPAB and peace operations. http://www.ebrevistas.eb.mil.br/index.php/ CCOPAB/article/view/1070/1074. Accessed 11 February 2020 Gill TD, Fleck D, Boothby WH, Vanheusden A (eds) (2017) Leuven Manual on the International Law Applicable to Peace Operations. Cambridge University Press, Cambridge International Crisis Group (2004) Africa Briefing. https://d2071andvip0wj.cloudfront.net/pullingback-from-the-brink-in-the-congo.pdf. Accessed 12 February 2020. Kondoch B, Zwanenburg M (2015) International Responsibility and Military Operations. In: Gill T D, Fleck D (eds) The International Law of Military Operations, 2nd edn. Oxford University Press, Oxford, pp 559–557 Nilsson C, Zetterlund K (2014) Ready or not? Revamping UN Peacekeeping for the twenty first century, FOI. https://www.foi.se/rest-api/report/FOI-R–3833–SE. Accessed 11 February 2020 Ryngaert C, Spijkers O (2019) The end of the road: state liability for acts of UN peacekeeping contingents after the Dutch Supreme Court’s judgment in Mothers of Srebrenica. Neth Int Law Rev 66, 537–553 (2019). https://doi.org/10.1007/s40802-019-00149-z. Accessed 15 February 2020 te Lintelo A, Pouw E, Niekamp S (2018) UNMISS(ION) Impossible? Experiences of UNMISS Force Chief Legal Advisors (Dutch language). Netherlands Military Law Review, September 2018, https://puc.overheid.nl/mrt/doc/PUC_246682_11. Accessed 1 April 2020 UN General Assembly (1990) Comprehensive Review of the Whole Question of Peacekeeping Operations in All Their Aspects, Model SOFA for peace-keeping operations. UN Doc. A/45/594 UN General Assembly (1996) Financing of the United Nations Protection Force, the United Nations Confidence Restoration Operation in Croatia, the United Nations Preventive Deployment Force and the United Nations Peace Forces Headquarters. UN Doc. A/51/189 UN General Assembly (1999) Report of the Secretary-General pursuant to GA Res 53/35, the Fall of Srebrenica. UN Doc. A/54/549 UN General Assembly (2001) Report International Law Commission, 53rd Session. UN Doc. A/56/10 UN General Assembly (2006) Responsibility of international organizations, Comments and observations received from international organizations. UN Doc. A/CN.4/545 UN General Assembly (2011) Report International Law Commission, 63rd Session. UN Doc. A/66/10 UN General Assembly (2013) Resolution 67/287. UN Doc. A/Res/67/287 UN General Assembly (2013) Budget for the support account for peacekeeping operations for the period from 1 July 2013 to 30 June 2014 and financing for the period from 1 July 2012 to 30 June 2013. UN Doc. A/67/756 UN General Assembly and Security Council (2015) Report of the High-Level Independent Panel on Peace Operations. UN Doc A/70/95 and S/2015/446 UN General Assembly (2018) Report of the Secretary-General: Implementation of the recommendations of the Special Committee on Peacekeeping Operations. UN Doc. A/73/480/Add.1 UN General Assembly (2018) Resolution 72/262 C. UN Doc. A/Res/72/262 C UN Secretary-General (2016) Letter to the President of the Security Council. UN Doc. S/2016/924 UN Security Council (1999) Report of the Independent Inquiry into the action of the United Nations during the 1994 genocide in Rwanda. UN Doc. S/1999/1256

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UN Security Council (2003) Resolution 1493 (2003). UN Doc S/RES/1493 UN Security Council (2004) Resolution 1565 (2004). UN Doc. S/RES/1565 UN Security Council (2004) Third Special Report of the Secretary-General on MONUC. UN Doc. S/2004/650 UN USG DPO-DOS (2019) Policy on authority, command and control in UN peacekeeping missions

Cases European Court of Human Rights, Finogenov et al./Russia, Judgment, 20 December 2011, Application No. 18299/03 European Court of Human Rights, STICHTING MOTHERS OF SREBRENICA AND OTHERS v the Netherlands, Grand Chamber Judgment, 11 June 2013, Application no. 65542/12 ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, 27 June 1986, I.C.J. Reports 1986 Supreme Court of the Netherlands, Mothers of Srebrenica Association et al. v The Netherlands, Judgment, 13 April 2012, ECLI:NL:HR:2012:BW1999 Supreme Court of the Netherlands, Mustafić v. The Netherlands and Nuhanović v. The Netherlands, Judgments, 6 September 2013, ECLI:NL:HR:2013:BZ9228 and ECLI:NL: HR:2013:BZ9225 Supreme Court of the Netherlands, Mothers of Srebrenica Association et al. v The Netherlands, Judgment, 19 July 2019, ECLI:NL:HR:2019:1284 The Hague District Court, Mothers of Srebrenica Association et al. v The Netherlands, Judgment, 16 July 2014, ECLI:NL:RBDHA:2014:8748 The Hague Court of Appeal, Mothers of Srebrenica Association et al. v The Netherlands, Judgment, 27 June 2017, ECLI:NL:GHDHA:2017:3376

Colonel (Ret.) Ben Klappe LL.M. is a senior legal adviser Export Control and Compliance at HQ Netherlands Army and a visiting Criminal Court Judge in The Hague and Arnhem. After various command and staff positions, he joined the Army Legal Service and served as a legal adviser at both division and corps level. Deployments abroad included Bosnia, Germany, Italy, Afghanistan and the USA (UNHQ). Brigadier-General (Ret.) Jan Peter Spijk MA retired as the Head of the Military Legal Services (TJAG) of the Netherlands Armed Forces, Deputy Director of the Directorate of Legal Affairs (MoD) and senior Military Judge in the Military Chamber of the Court of Appeals in 2013. From 2012 until 2018, he was President of the International Society for Military Law and the Law of War. Currently, he chairs advisory boards for the Minister of Defence and the Minister of the Interior of the Kingdom of the Netherlands, and is President of the Netherlands Military Law Review editorial board. Alfons Vanheusden LL.M. is a Policy and Legal Advisor at the Cabinet of the Belgian Minister of Security, the Interior and Foreign Trade. He also serves as the Assistant Secretary-General of the International Society for Military Law and the Law of War. Together with Terry Gill, he is one of the co-editors of the Leuven Manual on the International Law Applicable to Peace Operations (CUP).

Chapter 9

In Control: Harnessing Aerial Destructive Force Frans P. B. Osinga and Mark P. Roorda

Contents 9.1 Introduction: Air Warfare and Targeting .......................................................................... 9.2 Targeting Until 1945—The Emergence of Targeting ...................................................... 9.2.1 Strategic Bombing Theory ..................................................................................... 9.2.2 Security Concerns Before Morality........................................................................ 9.3 World War II ..................................................................................................................... 9.3.1 Targeting Morale or Key Industries....................................................................... 9.3.2 Norms ..................................................................................................................... 9.4 The First Post-Cold War Decade ...................................................................................... 9.4.1 Operation Desert Storm.......................................................................................... 9.4.2 NATO Over the Balkans, Post-modern Warfare Emerges.................................... 9.5 Into the Twenty-first Century............................................................................................ 9.5.1 Operation Enduring Freedom: Targeting Non-State Actors.................................. 9.5.2 Operation Iraqi Freedom ........................................................................................ 9.5.3 Fighting Non-State Actors and Public Opinion..................................................... 9.5.4 The Israeli Experience............................................................................................ 9.5.5 Drones and Autonomous Weapon Systems........................................................... 9.6 Conclusion: Control and the Paradox of Western Warfare.............................................. References ..................................................................................................................................

162 163 163 164 165 165 166 167 167 170 176 177 179 181 184 185 187 189

This is a heavily revised and updated version of the chapter by Frans Osinga and Mark Roorda, From Douhet to Drones, Air Warfare and the Evolution of Targeting, in Paul Ducheine, Mike Schmitt and Frans Osinga, Targeting, The Challenges of Modern Warfare, T.M.C. Asser Press, The Hague, 2015. F. P. B. Osinga (&)
M. P. Roorda Netherlands Defence Academy, Breda, The Netherlands e-mail: [email protected] M. P. Roorda Netherlands Public Prosecution Service, Arnhem, The Netherlands e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2021 R. Bartels et al. (eds.), Military Operations and the Notion of Control Under International Law, https://doi.org/10.1007/978-94-6265-395-5_9

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Abstract The targeting process involves a complex series of decisions concerning the use of destructive force against specific objects or people. This process underlies the offensive employment of airpower and the unprecedented ability to control military force. The current state of art of targeting derives from a long evolutionary process that is intertwined with the history of air warfare. Awareness of this evolution will indicate challenges and trends that will aid understanding current targeting practices, as well as its complexity and dilemmas. Through the prism of the experiences of air warfare key factors are identified that have shaped the thoughts on, and organization of targeting and have—therefore—shaped the manner in which control over the use of force is exerted.




Keywords air power air warfare leadership targeting lawfare




9.1


strategic bombing
targeting
drones


Introduction: Air Warfare and Targeting

Western militaries harness a historically unprecedented ability to control the potentially destructive force of air power. To wit, on 2 January 2020 a U.S. air strike successfully targeted two driving cars near Baghdad Airport, killing Iranian general Suleimani and striking Iran a strategic blow.1 The political ramification may challenge the strategic soundness of that strike, but from a military perspective it was an impressive performance; accurately striking an individually selected target without harming civilians. While such a feat may appear to be customary, it is not—as demonstrated by Russian military air strikes against civilian objects in Syria and Saudi Air Force attacks on hospitals in the civil war in Yemen. This chapter lays out the historical development within western militaries towards progressive levels of control over the massive destructive force air power can wield. While technology is an obvious aspect to examine, a more encompassing and informative avenue is to explore the evolution of the process that underlies the offensive employment of airpower and this unprecedented ability to control military force: targeting. Targeting is, remarkably, an understudied topic. It involves a complex, dynamic and interrelated series of decisions concerning the use of potentially lethal destructive force against specific objects, facilities, groups of people and even individuals. It includes the selection of attacks methods, appropriate weapon systems and munitions, desired effects and measures of success.2 Key in military operational planning, targeting ideally directly translates political and military 1

https://www.washingtonpost.com/world/national-security/defense-secretary-says-iran-and-itsproxies-may-be-planning-fresh-attacks-on-us-personnel-in-iraq/2020/01/02/53b63f00-2d89-11eabcb3-ac6482c4a92f_story.html. 2 NATO defines joint targeting as ‘the process of determining the effects necessary to achieve the commander’s objectives, identifying the actions necessary to create the desired effects based on means available, selecting and prioritizing targets, and the synchronization of fires with other

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objectives into tactical actions. Cynically put, targeting concerns the organization of killing. Second, targeting is prone to failure and tragedy. It is a decision-making process that occurs in an organization which involves hundreds of people from a variety of organizations (for instance from intelligence agencies, different military services, and other governmental departments) each with its own responsibility, mandate, capabilities, modes of operations and interests. Despite being facilitated by automated processes, targeting remains a command process subject to human frailties and mistakes, perceptual biases, cognitive blind spots, intelligence failures, communication problems, political and cultural differences (in particular in coalition operations) and organizational politics. Apart from causing tragic human suffering, any targeting mistake may have military tactical and strategic repercussions and faulty target selection can have instant media impact with negative political fall-out. The targeting process is where control “resides”, or not. The current state of art of targeting in western militaries derives from a long evolutionary process that is intertwined with the history of air warfare. Awareness of this evolution will indicate persistent challenges and dominant trends that will aid understanding current targeting practices, as well as its complexity and dilemmas. Through the prism of the experiences of air warfare this chapter aims to identify key factors that have shaped the thoughts on, and organization of targeting and have—therefore—shaped the manner in which control over the use of force is exerted. The chapter is chronologically structured in three periods: the period till the end of World War II; the period following the end of the Cold War; and the post-9/11 period. In each section a number of key campaigns will be discussed that have displayed important developments in targeting practices.3 The chapter concludes that contemporary targeting challenges emanate from a paradox: the ability to control military destructive force has reached an unprecedented level, yet despite it—or perhaps because of it—so have the societal demands for (civilian) risk-mitigation restraining its application.

9.2 9.2.1

Targeting Until 1945—The Emergence of Targeting Strategic Bombing Theory

Arguably targeting (in the contemporary meaning of the concept), did not evolve until World War I and proper theorizing commenced after it. The novel strategic bombing capability, or the embryonic development thereof, fuelled by a desire to

military capabilities and then assessing their cumulative effectiveness and taking remedial action if necessary’. See Allied Joint Doctrine for Joint Targeting 2008, pp. 1–1. 3 As targeting doctrine in the west is heavily shaped by U.S. experiences and capabilities, and as these are thoroughly documented, this chapter leans predominantly on U.S. case studies.

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avoid terrible attrition style warfare that marked the Great War, inspired the air-power theorists of the interbellum such as Julio Douhet, Billy Mitchell and Hugh Trenchard. All argued that it offered a way beyond the traditional ground-centric warfare paradigm; in the era of total wars, it would be necessary to attack the capacity and will to continue war, such attributes residing in the government, industry and population at large. Douhet argued that strategic bombing would have to be applied against vital centres such as industry, transport infrastructure, communication centres, the government, and the will of the people, while Mitchell included high-value military targets, such as battleships, among such vital centres. The father of the Royal Air Force (RAF), Trenchard, argued for targeting railways, airfields, communication and transportation networks and industrial centres.4 All of these theorists nurtured the belief that strategic attacks would either change the behaviour of the enemy’s government through the threat of civil uprising, or through social collapse, fear, or economic paralysis, or that they would bring about military defeat by causing the enemy’s operational paralysis. However, before 1939 the technology and economic resources to develop and produce large, complex bomber aircraft simply were not available, even for industrially developed powers such as the U.S. and Germany. In countries such as the USSR, Germany and France, land-warfare oriented strategies and doctrines precluded the development of strategic aerial bombing capabilities. Only in the U.S. and UK did a receptive political climate emerge towards a strategic preference for long-range bombing. UK leaders, for instance, overcame the moral objections by valuing strategic bombers as a new kind of deterrent. And in an era where air defence was still woefully ineffective, bombers could bring the war to the enemy, avoiding another war of attrition.5

9.2.2

Security Concerns Before Morality

Norms did not have a significant influence on strategic bombing theory. Already in 1899 European powers had agreed to prohibit the discharge of explosives from balloons. But when several countries had managed to harness dirigibles to some military effect, strategic considerations trumped humanitarian concerns.6 Customary law and the Hague Conventions of 1899 and 1907 were the only existing legal frameworks for instruction on targeting at the beginning of WW I in 1914, and while bombing strategy was tied to the basic custom that only military objectives were legitimate targets and indiscriminate attacks were prohibited, at the

4 For discussions of air power theory development during the interbellum, see: McIsaac 1986, pp. 624–647; Meilinger 1997; Overy 2013; Faber 2015. 5 Overy 1998, pp. 11–17, 72–73. 6 See for an overview of the development of norms in air warfare until 1945 for instance Biddle 1994, pp. 140–159.

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time those included more than just military forces or objects. After WW I the creation of a more encompassing normative consensus against the bombing of non-combatants was almost impossible. The embryonic bombing raids had suggested the great political effect to which they could be put, and promised a quick end to war. So even though there was consensus that terror bombing of civilians was considered immoral and unlawful, this was outweighed by the deterrent role that countries such as the UK envisioned for their bomber forces. The evident rise of German power after 1933 only tipped the balance further and precluded a ban on strategic bombing. Consequently, prior to the outbreak of WW II the norm against bombing civilians, while present, was weak and not internalized by the organizations responsible for the planning and prosecution of the air war.7 The concept of total war included the targeting of virtually anything supporting the war effort, including infrastructure, industry, labour and the will of a state’s population. The immunity of civilians was perceived to be strategically untenable. Targeting civilians was an acceptable strategy insofar as it affected the morale of the enemy population as a military objective.8 Douhet even contemplated particular sequential uses of several types of ammunition—explosive charges destroying targets, incendiaries igniting damaged structures, and poison gas hampering rescue services —in order to render the greatest destructive effect on the will of the people.

9.3 9.3.1

World War II Targeting Morale or Key Industries

Morale, rather than specific industries, became the prime target of night-time strategic bombing by RAF’s Bomber Command, after the initial costly failures in daylight. For UK Prime Minister Winston Churchill, until 1942, it served the political purpose of striking at the heart of Germany absent other options, as well as temporarily satisfying Stalin’s demands for opening a second front in the West. In contrast, after having become involved in the war, the U.S. developed Air War Plans Directive-42, which prioritized a set of seven target categories: (1) the German air force, (2) submarine buildings, (3) communications, (4) electric power, (5) oil, (6) aluminium production, and (7) synthetic rubber. This involved 177 targets and would, the plan suggested, require 132,090 tons of bombs and 66,045 sorties, betraying a rather deterministic mindset. During the second half of the war, the UK and U.S. forces coordinated their strategic bombing activities in the Combined Bomber Offensive (CBO), its objective laid down in the Casablanca Directive: “the progressive destruction and dislocation of the German military, industrial and economic system, and the undermining of the morale of the German

7

Thomas 2001, p. s125. Reynolds 2006, p. 10.

8

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people to a point where their capacity for armed resistance is fatally weakened.” This directive put strategic bombing in the context of the wider strategy of the liberation of Europe.9 Yet, it did not solve the differences in targeting priorities, despite the direct involvement of Winston Churchill and Franklin D. Roosevelt, and instead simply tolerated both national preferences. While in practice the two approaches were indistinguishable in their devastative impact, by allowing two related but separate strategic campaigns, the compromise also resulted in the establishment of two separate bombing organizations without a unified commander with sufficient command authority to establish targeting priorities for both forces.10

9.3.2

Norms

While allowing for the imperatives of total war, the massive destruction of German and Japanese cities has been rightfully criticized.11 WW II demonstrated the weakness of the norm against bombing civilians; it restrained bombing in the first year of the war, but it subsequently broke down rapidly, once German bombers struck UK cities and similar retaliatory attacks against Warsaw and Rotterdam were conducted. Once the norm crumbled, incentives for restraint in bombing disappeared. U.S. commanders did object to morale bombing, considering it to be barbaric and contrary to national values. However, political imperatives to strike back at Nazi Germany, operational and strategic considerations and technical limitations, combined to dominate over any ethical objections. This remained so even once those limitations in bombing tactics and methods had been resolved, when victory looked quite assured and when intelligence had demonstrated the cruel futility of morale bombing.12 In the Pacific, with the dropping of two atomic bombs, moral considerations were even less relevant and despite objections by the very same scientists who developed the atomic bombs, four decades followed in which the threat of mass destruction with nuclear missiles formed the strategic foundation of security policies of the USSR and the West. A genocidal mentality, as Robert Jay Lifton stated.13

9

For the development of the CBO, see Overy 2013, in particular Chapter 6. Overy 2013, pp. 305–308. 11 Grayling 2006; Overy 2013; Friedrich 2008. 12 See Thomas 2001, pp. 136–146. 13 Lifton 1990. 10

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167

The First Post-Cold War Decade Operation Desert Storm

Desert Storm stands as a pivotal campaign in the evolution of targeting and the use of air power. It displayed novel command arrangements and, importantly, novel surveillance and offensive technologies and targeting philosophies. Moreover, in this first post-Cold War campaign, the influence of modern 24/7 media and subsequent sensitivity to images of slaughter and collateral damage made itself felt, manifesting a new sensibility among Western politicians and publics, developments which would increasingly affect military interventions and the required levels of restraint in the following two decades. The thirty-nine days of massive, yet precise, air strikes, including conventional strategic attacks against targets in downtown Baghdad, that preceded the four-day ground campaign, was a break with the common and expected pattern of operations. The U.S. had developed a non-traditional four-phased offensive plan, to make the most of its technological superiority. Phase I would consist of primarily a strategic air campaign; in phase II the geographical focus of efforts would shift in the Kuwait air campaign; phase III would see air operations focusing on the attrition of Iraqi ground power and isolation of the Kuwait battlefield. Only phase IV was recognizable as following AirLand Battle doctrine, in that it was during this final phase that the actual ground invasion would start. In addition to cruise missiles, an abundance of modern offensive aircraft, superior C2 infrastructure, and an array of EW assets, two technologies were pivotal for enabling this new approach.14 Technology: Precision-Guided Munitions and Stealth The advance achieved in the precision of detection, identification and attack capabilities was the first major technological factor. Instead of delivering a typical load of four unguided bombs on one target, Precision-Guided Munitions (PGM)equipped fighter bombers could now attack multiple targets in one sortie, dramatically increasing air power effectiveness, especially against armed forces relying on massed mechanized ground units. In February 1991 almost two entire Iraqi divisions were destroyed from the air during their advance to Al Kafji, after being detected by a Joint Surveillance Target Attack Radar System (JSTARS) air-ground surveillance aircraft. Iraqi brigades lost more in half an hour of air attacks than during eight years of war against Iran.15 In the Kuwaiti theatre, coalition air attacks managed to destroy sometimes in excess of 50% of Iraqi armour and artillery equipment and Iraqi ground troops surrendered in their thousands after being pounded by B-52 strikes or after leaflet drops threatening such attacks. It appeared that ‘everything that moves can be seen and everything that can be seen can in 14

The following overview draws from Keaney and Cohen 1993; and Hallion 1992, see Gordon and Trainor 1995. 15 Titus 1996, p. 19.

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principle be hit’.16 Stealth was the second icon. U.S. Air Force F-117 s could operate deep into enemy territory from the first moment of the war, sometimes attacking two targets per mission in the Baghdad area, which sported the highest density of air defence systems in the world. Combined with cruise missiles, decoys and electronic warfare tactics, these novel stealth aircraft achieved theatre-wide air superiority within days, enabling intense air strikes from day one. To illustrate, during 1943 Allied bombers attacked 123 target complexes in Germany. In contrast, during the first twenty-four hours of Desert Storm, 148 target complexes were attacked. The result was a drastic shortening of the time required and the risk involved for ground units to complete the coalition victory. It rendered archaic the traditional notion of massing a large ground force to confront an opponent, particularly on a ‘field of battle’.17 In addition, relentless PGM attacks on trucks and bridges could be used to effectively halt the flow of supplies to the Iraqi frontline and the movement of units within the Kuwaiti theatre. Thus Iraqi resistance was effectively neutralized before it could even get in contact with Western troops and substantial movement by Iraqi forces was made virtually impossible, either through physical destruction or through the demoralizing effect of attacks.18 Desert Storm also suggested that military operations need not necessarily entail massive civilian casualties and that collateral damage to civilian infrastructure seemed to be controllable. The age of mass warfare that had existed since WW I was drawing to an end. Targeting for Effects, not Destruction Inspired by the potential of stealth, EW and precision weapons, a new targeting philosophy was introduced, which was incorporated in the overall joint campaign plan. Instead of adhering to the AirLand Battle doctrine, which saw air power mainly in a direct support role to the land campaign, Colonel John A. Warden III devised the targeting concept of parallel warfare. His five-ring model distinguished five subsystems that made up the ‘enemy system’: military units, population, organic essentials (energy, water, food supply, etc.), critical infrastructure and, centrally, leadership. Even if targets were in the vicinity of civilian objects, it was now possible to attack these near simultaneously in order to rapidly degrade the functioning of the entire enemy system.19 The new air power capabilities offered the potential to strike at the heart of a country (the regime) from the first moment of a campaign and cripple the strategic command capabilities before attacking fielded forces, paralyzing the entire system.20 With each bomb likely to strike within yards of a target, targeteers could now think in terms of specific first- and second-order

16

Cohen 1996, p. 44. Hallion 1992, pp. 121–123. 18 See for a discussion of this distinction: Hosmer 1996, Chapter 10. 19 See for instance Warden 1995, pp. 40–55. For a discussion of Warden’s ideas, see: Olson 2007. 20 See for an account of the strategic air offensive against Iraq: Davis 1998. 17

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effects that needed to be achieved instead of merely hoping targets would be destroyed. Effects Based Operations (EBO) as a targeting philosophy emerged. The Targets The U.S. Central Command (CENTCOM) Operations Order 91-001 listed six key campaign objectives to achieve the political aims: (1) destroy Iraqi political-military leadership and C2; (2) gain and maintain air superiority; (3) sever Iraqi supply lines: (4) destroy nuclear, biological, and chemical (NBC) capabilities; (5) destroy Republican Guard forces, and (6) liberate Kuwait City with Arab forces.21 The joint air campaign plan rested on four principles: target the Hussein regime, not the Iraqi people; minimize civilian casualties and collateral damage; minimize U.S. and allied losses; and, finally, pit U.S. strengths against Iraqi weaknesses. Warden and his planning team recognized seven core strategic target sets. The first, national leadership, and second, military and civil C2, should be attacked in order to put physical and psychological pressure on the regime, demonstrate its vulnerability to the Iraqi people, and reduce its capacity to command Iraqi forces, i.e., to isolate, incapacitate and paralyze it. In traditional fashion, electric power generation, oil refineries, distribution and storage were also, as well as transport infrastructure to isolate the Kuwaiti battle area (railroads and bridges). The final three target sets pertained to military capabilities: NBC weapons and its associated research, development and production facilities; military support capabilities; and Scud ballistic missiles. The destruction of Iraqi air defences was added to the list as a prerequisite for any offensive air operation. The liberation of Kuwait and ensuring the security and stability of Saudi Arabia and the Persian Gulf also required direct attacks on Iraqi ground troops, in particular the backbone of the Iraqi regime’s offensive power and domestic power base, the Republican Guard Divisions.22 The U.S. Central Command (CENTCOM) Operations Order (OPORD) 91-001 listed six key military objectives to achieve those political aims: (1) attack Iraqi political-military leadership and C2; (2) gain and maintain air superiority; (3) sever Iraqi supply lines: (4) destroy known NBC production, storage and delivery capabilities; (5) destroy known NBC capabilities; (6) destroy Republican Guard forces in the Kuwait Theater of Operations (KTO) and (6) liberate Kuwait City with Arab forces. Command Arrangement The organization of the targeting process also saw a marked improvement compared to the Korean and Vietnam wars.23 For the first time a single commander for air operations– a Joint Force Air Component Commander (JFACC)—controlled all

21

Keaney and Cohen 1993, pp. 78–79. See Hallion 1992, pp. 150–155; Davis 1998, pp. 540–554. 23 See for a discussion of the command arrangements in particular Winnefeld and Johnson 1993, Chapter 8. 22

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of the theatre aircraft—including naval aircraft. After developing the joint air campaign plan, his instrument for directing and controlling air operations was the Air Tasking Order (ATO), which was much more directive and encompassing than ‘coordination control’ or ‘mission direction’ as exercised in the Korean War and Vietnam War respectively.24 The strategic part of targeting was developed in detail by the Special Planning Group, while the tactical strikes against Iraqi ground troops in and around Kuwait were planned by the so-called Kuwait Theater of Operations (KTO) Cell. Another important doctrinal innovation was the Joint Targeting Coordination Board which Schwarzkopf installed just prior to the ground war, so as to ensure all services saw their interests appropriately cared for in the air sortie apportionment. Hunting fleeting targets, however, still proved to be a challenge. Around 2500 sorties were tasked with Scud hunting, with 1500 strikes against Scud-related sites or production facilities. Yet, as a result of the long sensor-to-shooter time, there was not one confirmed Scud destroyed by coalition aircraft. The time between target detection and that information resulting in a pilot overhead the target was still up to fourteen hours. Norms: A New Standard Despite massive air strikes on so called dual-use facilities, government and military complexes in urban areas, the actual level of collateral damage and number of civilian casualties was, while still substantial, unprecedentedly low.25 Many analysts agree that Desert Storm amounted to a ‘revolution in warfare’, or at least inspired developments that, combined, have produced a markedly different mode of warfare and which have had long term consequences for targeting doctrine, in no small part because Desert Storm raised political and public expectations.26

9.4.2

NATO Over the Balkans, Post-modern Warfare Emerges

Coercing While Peacekeeping In the new and not entirely well-understood dynamics of peace-keeping and peace-enforcement missions of the early 1990s in the Balkans, with ground forces tied to strict non-aggressive ROE, NATO army commanders and politicians alike turned to the promise of the new air power targeting options whenever a punch was required to deter or coerce political and military leaders of the various ethnic factions.27 With the strategic attacks on Baghdad fresh in mind, this inspired a

24

Winnefeld and Johnson 1993, p. 107. Thomas 2001, p. 159. 26 See Hallion 1992, p. 252; and Cohen and Keaney 1995. 27 Cohen 1994, pp. 109–24. 25

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debate among Western academics and military planners on the best strategy to coerce an opponent28 In academic circles and military colleges Cold War deterrence theories were dusted off resulting in a lively debate on various ‘coercive mechanisms’ such as: Decapitation and Incapacitation (paralyzing the country or its military apparatus by eliminating command nodes or disrupting command processes); Punishment and Risk (increasing the cost of achieving a strategic aim); or Denial (eliminating the means to carry out the strategy thus decreasing the chances of success). By the mid-nineties, these targeting rationales, combined with the new ability to strike accurately, were conceptually tied into the overarching concept of EBO.29 Tailored to the type of conflict and the specific political objectives, an EBO-based strategy aims to produce distinctive and desired effects—rather than merely massive destruction—through the application of appropriate movement, supply, attack, defence and manoeuvres. EBO focusses on functional, systemic and psychological effects well beyond the immediate physical results of a tactical or operational undertaking. This requires detailed and up-to-date knowledge of the behaviour of various subsystems of the opponent.30 However, few of these emerging insights informed strategic thinking in headquarters, nor targeting in operations centres throughout the peace-keeping and peace-enforcement operations in the Balkans during the 1990s. Deny Flight Targeting during the NATO air operation Deny Flight in the Balkans highlighted the conditional nature of the advantage high technology may offer when not tied to a proper strategy and suitable context. Avoidance of risk for peace-keepers on the ground and for politicians in their capitals trumped concerns for military necessity and strategic impact. Any targeting error, no matter the precautions taken, could result in civilian casualties in a humanitarian mission, which would produce dramatic media footage and could easily, so it was feared, undermine the credibility and legitimacy of the mission. This sensitivity was not lost on the warring factions. Skilful manipulation of the media, hiding military assets among civilians and civilian infrastructure, as well as hostage-taking of UN observers by various ethnic factions, served as effective counter-coercion tactics.31 Lacking a well-established and proven peacekeeping doctrine, Western forces operated under a limited UN mandate, strict ROE and in a politically constrained environment, where pin-pick air strikes on targets with limited strategic value were unsurprisingly ineffective. Only after the Srebrenica massacre, in summer 1995, were steps taken by NATO to

28

See for instance Mueller 1998, pp. 182–228. See Deptula 1996. For a historical overview of EBO, see Meilinger 1997. 30 For a summary of the debate that has been ongoing since 1991, see Pape 1997/98, pp. 93–114; Watts 1997/98, pp. 115–71; Mueller 1997/98, pp. 182–228. For a description of the emergence of EBO as a doctrinal concept, see Mann et al. 2002. 31 See Byman and Waxman 2002, pp. 70–109. 29

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create proper conditions for the effective use of force. When operation Deliberate Force started on 30 August 1995, Serb leadership stood powerless against an air offensive that destroyed the military capabilities it needed for its defence against the Croats. As a result of this relatively low-risk endeavour, all military and political objectives were attained: safe areas were no longer under attack or threatened, heavy weapons had been removed from designated areas, and Sarajevo’s airport could once again be opened, as could roads to the city.32 Allied Force In 1999, after a year of fruitless diplomatic efforts, NATO, led by the U.S., strategy once again was lacking. During that period, NATO, led by the U.S., after a year of fruitless diplomatic efforts, conducted a limited air campaign to halt the continuing human-rights abuses that were being committed against the citizens of the Kosovo province by the Serbian President Slobodan Milosevic. The stunningly limited level of intensity of the first air strikes (only forty-eight sorties a day, versus 1300 daily during Desert Storm) in no way conveyed power, nor a sense of urgency or commitment, thus violating any guidance that deterrence and coercive diplomacy theory offered. Force escalation only became an accepted option when NATO credibility came to be at stake. When that occurred, however, the campaign produced success, to the surprise of many. In the end NATO achieved its goals at low losses and costs, especially considering estimates of the number of ground forces that would have been required for a forced entry into Kosovo (in excess of one hundred thousand). But this success masks the immense problems those responsible for the execution of the campaign experienced. It was a success despite deficiencies in strategy, planning, operational concept and day-to-day command of the operation.33 The operation began under the guidance that it would last only two to three days and involve only fifty targets. Attuned to internal NATO sensitivities, the Supreme Allied Commander Europe (SACEUR) had five goals: (1) minimizing loss of friendly aircraft; (2) impacting Serb military and security forces in Kosovo; (3) minimizing collateral damage; (4) achieving the first three in order to hold NATO together; and (5) protecting allied ground forces in neighbouring Bosnia, especially, from Serb raids.34 The selected contingency plan rested on a gradual approach, assuming Milosevic would be sufficiently impressed following the strategic impact of Deliberate Force just a few years prior. The U.S. JFACC had preferred to use Desert Storm-style overwhelming parallel strikes against centres of gravity including targets in Belgrade. There was no effects-based target analysis, just attacks on targets that happened to be approved by

See Owen 2010. A total of 293 aircraft flew 3515 sorties in two weeks to deter Serb aggression. Compared to Desert Storm, the percentage of PGMs used was much greater, totalling 98% of U.S. and 28% of non-U.S. ordnance delivered. 33 For a detailed assessment, see Lambeth 2001, Chapter 7. See also Kometer 2007, pp. 96–99. 34 See Clark 2002, pp. 183–84, 346, and Byman and Waxman 2000, pp. 15–16, 85. 32

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key NATO governments, and those could change at short notice. Political consensus rather than military and strategic value often prevailed. France, Germany, Italy, and Greece had major misgivings about the war and disunity within NATO was a major concern for SACEUR. Responsibility for managing the war, and approving targets and target categories was therefore delegated to five states—the U.S., UK, France, Germany, and Italy. The air war subsequently started slowly in terms of numbers of missions flown and targets struck. Serb military capabilities were the default target category. However, while these targets were obviously legitimate and politically non-controversial, their destruction was of little political value from the perspective of a coercive strategy. Moreover, with the requirement for visual identification of targets by pilots, these fleeting small targets in mountainous terrain were hard to detect, track and engage from high altitude. Low altitude operations, however, were prohibited due to the risk posed by the equally mobile Serb air defences.35 Gradually, other target categories were approved with the implicit aim of affecting the morale of the civilian population so as to isolate Milosevic and compel public pressure to end the war. The targets attacked included eleven railroad bridges, thirty-four highway bridges, 29% of all Serbian ammunition storage facilities, 57% of the petroleum reserves, all Serb oil refineries, fourteen command posts, over one hundred aircraft and ten military airfields. Targets also included electrical and broadcast services, news media and two of Milosevic’s homes reportedly used as C2 facilities.36 The air campaign37 that lasted seventy-eight days, involved thirty-eight thousand combat sorties of 829 strike aircraft. With PGMs accounting for 40% of the ordnance delivered, the trend of increasing use of precision weapons was continued. By flying at high altitudes and by launching weapons from stand-off ranges, NATO casualties were avoided and only two aircraft were downed.38 Command: Allied Force Problems in the Targeting Organization The sustained nature of Allied Force highlighted the deficiencies of the NATO C2 capabilities more than the low intensity air strikes of Deny Flight and Deliberate Force. The Combined Air Operations Centre (CAOC) in Vicenza was not staffed nor trained for a sustained campaign, neither was it provided with state of the art air C2 software tools to plan and communicate complex offensive ATOs. It lacked targeting specialists. In addition, the command relationships were a muddle. U.S. national command lines were mixed with NATO command lines. Instead of adhering to established arrangements in which the JFACC reported to his direct chief, Commander Allied Air Forces, Southern Europe (COMAIRSOUTH),

35

Lambeth 2001, pp. 133–134. U.S. Department of Defense 2000, Intro.-1. 37 See for an analysis of the Kosovo Operation Posen 2000, pp. 39–84; Byman and Waxman 2002; Daalder and O’Hanlon 2000; Lambeth 2001. 38 McInnes 2002, p. 92. Two decades earlier in 1972, the U.S. lost sixteen B-52 bombers in just eleven days during the Linebacker II campaign against North Vietnam. 36

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SACEUR decided to command the air operation, using ad hoc informal communication formats such as emails and using video teleconferences in light of the geographical spread of the key players, which did nothing to foster trust among them nor a proper planning process with formal guidance. (Battle Damage Assessment too, once again, proved slow, requiring two independent sources to confirm a target kill, and sometimes it took days to receive confirmation of air strike success from intelligence sources that could be located in the U.S. or UK. Classification of sources prevented free flow of data among NATO nations, negatively affecting the intelligence process.39 It took thirty-seven days to develop a smooth-running target development process and only on day forty-seven was the first Joint Integrated Prioritized Target List (JIPTL) published.40 Finally, there were problems due to political debates within NATO as to the legitimacy of escalating the war and the targeting of Serb infrastructure and economic and government facilities. Shortening the Sensor-to-Shooter Time Deny Flight and Deliberate Force had already demonstrated that Serb troops were adaptive opponents who quickly learned to exploit caves, underground facilities, the dispersal of equipment and troops, the use of decoys, and, if necessary, the perverse use of convoys of refugees, negating the asymmetric edge that air power confers upon Western forces. Neither NATO nor U.S. air operations centres had fully incorporated lessons learned from this experience when Allied Force commenced, which resulted in problems when the Serbs moved their outdated SA-3 systems every few hours. They were able to fire 815 SAMs, a threat preventing NATO from employing potent but vulnerable AC-130 gunships and Apache attack helicopters.41 While there was no process or team in the CAOC to deal with targets that emerged during the execution of an ATO, an important step in improving control and responsiveness was taken: an ad hoc “flex-targeting” team was assembled in the CAOC prior to the end of the first month of the campaign. This team had the responsibility for coordinating coalition efforts to detect, identify, and engage emerging Serbian targets that could not wait for inclusion into a subsequent ATO. It developed three different approaches to deal with the problem of engaging emerging targets. The first was to apportion ATO sorties to “alert flex” against emerging targets identified during the current ATO execution. The second approach used was to re-role missions either on the ground or airborne that had been previously tasked in the ATO to hit a preplanned target. This approach tended to have a negative effect as it diverted resources away from previously identified and prioritized military objectives. The third approach was to dedicate aircraft to orbit locations in and around the Kosovo Engagement Zone. These missions typically

39

Kometer 2007, pp. 160–164. Lambeth 2001, p. 212. 41 Lambeth 2001, p. 206. 40

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employed fighters as forward air controllers to search defined areas in order to attempt identification, assess collateral damage, and engage or report potential targets to other fighters and C2 agencies. Sensor-to-shooter timeliness did improve. Improvised processes were developed to disseminate information from sensors to shooters. Instrumental in this were two E-8 JSTARS aircraft that directed airborne controllers and strike aircraft against potential targets of opportunity. It also included processing data received from live Predator Unmanned Aerial Vehicle (UAV) images, developing targets and passing them to orbiting strikers for prosecution, and U-2s transmitting possible SA-6 locations to F-15Es for engagement. Still, the results were disappointing. Over thirty thousand total combat sorties were flown, but destruction of Serb military equipment was marginal at best. The absence of TST capabilities resulted in the requirement for centralized control. The lack of doctrine and process at the operational level, inherent in the novel character of TST, translated into inadequate (almost non-existent) high-level guidance on what was a legitimate flex-target and how it should be prioritized against the rest of the targets prosecuted in the ATO. Finally, casualty avoidance and collateral damage weighed heavily in these TST decisions and furthermore contributed to the requirement for centralized control of flex-targeting engagements. These concerns and restrictions increased after the widely publicized mistaken bombing of the Chinese embassy, and the unintended destruction of a civilian passenger train crossing a legitimate bridge target.42 Norms The Balkan air operations demonstrated clearly that concern for collateral damage, civilian casualties and the safety of own troops dominated NATO political decision-making. Such sensitivity was not lost on Milosevic’s regime, which made deliberate attempts to exploit Western political and societal sensitivities. He increased civilian casualties, for instance, by commingling military personnel with civilian refugees and the creation of enormous refugee flows to create a humanitarian crisis, including in neighbouring countries. In addition, Serb troops and equipment were dispersed, then hidden, throughout the countryside in civilian homes, barns, schools, factories, and monasteries. They also dispersed themselves among civilian traffic during movement and used human shields to protect military equipment.43 Indeed, Milosevic made collateral damage the centrepiece of his wartime political campaign. Allied Force demonstrated that the bar for western militaries had been raised even higher than during Desert Storm.44 What was a watershed during Desert Storm —low casualties, low collateral damage—had redefined what is taken for granted. The image of a clean war had, by 1999, become the public and political expectation

42

For an enlightening study of accidents in recent wars, see Larson and Savych 2006. See Posen 2000, pp. 39–84. 44 See Larson and Savych 2006, pp. 43–57 for the Al Firdos incident during Desert Storm. 43

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and the norm against bombing civilians played nothing less than a central role. Low likelihood of collateral damage was the ‘litmus test to pick a target’. Similarly, the chairman of the NATO Military Committee at the beginning of the war, explained that NATO had three guiding principles: ‘we had first of all to avoid if possible any of our own casualties and fatalities; secondly, we were told to avoid collateral damage to the extent possible; and thirdly, bring it to a quick end’.45 One key factor in this shift in norms was the mediatization of war. This was a theme picked up by Michael Ignatieff to comment on NATO’s war in Kosovo—a virtual war—and the way that such ‘humanitarian’ wars have been experienced by Western publics: as spectator-sport warfare.46 Allied Force demonstrated that tactical events could have immediate and disproportionate strategic implications, of which targeteers needed to be very conscious. The new norm reflected a shift in the mentalité collective concerning accepted methods in warfare in the post-Cold War period.47 Paradoxically, political and societal concern for force protection of Western troops through the use of stand-off weapons, while considered essential for maintaining public support, has also been severely criticized as it seems to transfer risk of going to war upon the target society, as Martin Shaw argued.48 Likewise, the new capabilities that PGMs offered to target objects precisely, while avoiding WW II levels of destruction to cities, also received harsh criticism from ethicists. This new permissiveness for infrastructural campaigns puts civilians unnecessarily in danger, and, so the argument continues, violates civilian immunity. Instead of utilizing the new capabilities to strike previously precluded objects, the West has an enhanced responsibility to avoid collateral damage and civilian casualties.49 The demonstrated new capabilities had become normative in the ethical sense, an overwhelming social imperative, and a reality that no government in any advanced society can ignore.50

9.5

Into the Twenty-first Century

The first decade of the twenty-first century saw a number of important developments in targeting capabilities and processes, all driven by operational needs, technical developments and societal expectations. Key developments following

45

Thomas 2001, p. 164. Ignatieff 2000. 47 See for instance Latham 2002; McInnes 2002; Maoz and Gat 2001, in particular Luttwak 2001; Gat 2001. 48 See Shaw 2005, in particular Chapter 4. See for a discussion on the Risk Society for instance Rasmussen 2006. 49 See for instance Shue 2010, pp. 2–8; Smith 2002, pp. 355–374; Thomas 2006. 50 Gat 2001, p. 86. 46

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Allied Force include the refinement and widespread application of dynamic and time-sensitive targeting and the gradual introduction of unmanned aerial vehicles— drones—first as a surveillance platform and only a bit later as a strike platform. Third, it saw the application of high-tech targeting capabilities in an irregular warfare context against small groups of insurgents. These new Western capabilities drew some praise for improving targeting accuracy but also led to increasing media and political scrutiny and criticism. This in turn inspired ‘lawfare’: specific methods of opponents intended to create images that suggest Western militaries cause disproportionate collateral damage and civilian casualties, thereby undermining the perception of legitimacy. As a response, Western militaries focused increasingly on collateral damage mitigation procedures in the targeting process.

9.5.1

Operation Enduring Freedom: Targeting Non-State Actors

Improving Targeting Capabilities In the wake of Allied Force, U.S. Air Force leadership recognized the importance of improving CAOC performance and improved command, control, communications, computers, intelligence, surveillance, and reconnaissance (C4ISR) as well as system-wide datalink capabilities, with the CAOC as the hub of the system and, thus, centralizing control. Moreover, while processes for deliberate pre-planned targets were well established, the concept of TST was pushed to the forefront and formalized in doctrine.51 These initiatives dovetailed with a Pentagon-wide program of stimulating Network Centric Warfare which entailed creating a network of sensors, shooter platforms and command nodes through data-links, allowing the rapid dissemination of information, with the aim of reducing response times and increasing the tempo of operations.52 For air forces the objective was to further shorten the ‘sensor-to-shooter’ time, enhancing air-land cooperation in the process.53 When Operation Enduring Freedom began, these new processes and

51

Eventually these became a category of so called time-critical targets. The 2001 the US Joint Pub 3-60 Joint Doctrine for Targeting defined time-sensitive targets as “air-, land- or sea-based targets of such high priority to the friendly force that the JFC designates them as requiring immediate response because they pose (or will pose) a danger to friendly forces or because they are highly lucrative, fleeting targets of opportunity”. 52 Rumsfeld 2002, pp. 20–32. For an overview of these developments, see for instance Kagan 2006. 53 For a description of the tenets of Transformation, see Farrell et al. 2010, Chapter 2. For an overview of the evolution of air command and control, see Kometer 2007. The concept of NCW is discussed in Alberts 1999. Also see: Arquilla and Ronfeldt 1997.

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doctrines were not firmly established in the joint community, but would prove to be indispensable. The U.S. was confronted with an enemy trained in dispersed guerrilla fighting in mountainous terrain, with an impressive track record against the former Soviet Union and domestic rivals, with no significant infrastructure to offer either strategic coercive leverage or application of Warden’s 5-ring model. The Operation Phase I of the operation consisted of a series of air strikes against air-defence sites, training camps and government facilities. The first night strikes consisted of the prosecution of thirty-one targets using fifty cruise missiles, fifteen bombers and twenty-five attack aircraft. Once these targets were destroyed, progress stalled until the insertion of Special Operations Forces (SOF), which marked phase II. With only three to five hundred SOF actually within Afghan territory, uniting and empowering local opposition factions—the Northern Alliance, totalling no more than fifteen thousand men—the U.S. managed to evict a force of sixty thousand Taliban fighters, as well as the regime itself. It required a relatively limited operation of one hundred combat sorties a day, amounting to a total of thirty-eight thousand sorties, of which 6500 were strike sorties that dropped a total of approximately 17,500 munitions, with an accuracy rate of 75% (as compared to 45% in Desert Storm). New types of GPS-guided munitions, the Joint Direct Attack Munition (JDAM), proved very effective. The operation was enabled by an unprecedented array of ISR platforms, which flew 1300 sorties. Novel elements included the employment of armed UAVs and the use of JDAM-equipped B-1, B-2 and B-52 bombers in close coordination with SOF ground controllers. And, again, the usage of PGMs increased, this time up to 60%, with an average of 1.66 PGMs delivered per sortie (versus 0.32 in Desert Storm), indicating that the use of PGMs had become the norm.54 Joint SOF and Air Operations Because of the widely dispersed nature of the Taliban and elements of al-Qaida, the air component and SOF elements operated in concert to detect and identify emerging enemy targets. Ground units benefited from GPS target-locating and laser-target designating equipment, which allowed them to provide precise target location data to strike aircraft and guide PGMs to targets. Because of the lack of “traditional” preplanned ATO targets (e.g., infrastructure, integrated air defences, C2), the preponderance of air tasking in Enduring Freedom went towards interdicting enemy forces or logistics discovered real-time by ISR or SOF, which called in ten to thirty targets per day.55 Midway through the operation, ‘flex-targeting’ dominated: 80% of sorties took off without a specific assigned target.56 Instead, JSTARS, UAVs, signals intelligence platforms and SOF acted as eyes, spotting

54

Lambeth 2005, pp. 247–252. Lambeth 2005, p. 260. 56 Fyfe 2005, p. 11. 55

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pop-up targets and relaying time-sensitive, up-to-date and accurate target information to shooter platforms inbound or already circling in the vicinity. The networking of U.S. forces offered a reaction capability, with response times sometimes down to several minutes, and averaging only twenty minutes. This combination of air power supported by dispersed small units of SOF in cooperation with proxy forces has since been described as the ‘Afghan model’. Command Arrangement: Centralized Tasking As most of these tactical arrangements were invented while conducting operations, this might suggest a highly decentralized planning process. That was not the case. Inter-service doctrinal disagreements over the prioritization of targets, as well as political sensitivity about collateral damage, lay behind a tendency to centralize control. Moreover, SOF units were not familiar with the standard air-land coordinating procedures, were not equipped to receive planning products, and could only function as forward air controllers. This was allowed by the high number of sensors, bandwidth capacity, live video stream, and the quality of information they provided.57 ISR platforms were data linked with headquarters and strike aircraft and could, almost in real time, distribute target information in the command network, often within five to ten seconds.58 This produced friction. The lack of doctrine concerning authority for TST decisions complicated matters. Centralized control of TST was inefficient in that several headquarters had redundant, parallel TST processes as opposed to an integrated, synchronized approach. Organizations used different methodologies in the areas of Desired Mean Point of Impact selection, Collateral Damage Estimation (CDE), weapons target pairing, and battlefield tracking. Collateral damage considerations and coalition sensitivities dominated as the primary emphasis. Final approval for most TST nominations was also centralized at the senior levels; indeed, some leadership targets were reserved for the US Secretary of Defense. The notion of remote control by politicians and generals through a ‘seven-thousand-mile screwdriver’ was born.

9.5.2

Operation Iraqi Freedom

Targeting Technology and Processes Operation Iraqi Freedom, as far as targeting is concerned, in a sense merged Desert Storm and Enduring Freedom. It benefited from the continuing investments in information and communications technology and ISR systems, and the fact that all strike aircraft in the inventory were now equipped with day and night sensors and 57

Kometer 2007, pp. 129–137. Lambeth 2005, p. 254. See pp. 254–258 for a detailed description of the linking of various platforms. 58

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PGMs. Miss distances of those munitions were often reduced to 3 feet, which allowed smaller bombs to be used, which in turn reduced the risk of collateral damage. The undeniable need for risk limitation, by early 2003 resulted in extensive collateral damage mitigation methods, doctrinal publications, new procedures and software tools to aid planning, all benefiting from data accumulated during a decade of bombing campaigns.59 The U.S. introduced a computer program, nicknamed Bug-Splat, to calculate the risk that bomb blast and fragments might affect civilian objects near a pre-planned target. Officially named the Fast Assessment Strike Tool —Collateral Damage (FAST-CD), it generated blob-like images that precisely modelled potential damage that took account of specific munitions as well as the characteristics of the terrain or objects being struck. If the predicted risk of collateral damage was deemed too high, targeting specialists could try substituting either a smaller weapon or one with a delayed fuse, which lets a bomb penetrate first and then detonate, or could try changing the type of aircraft or its angle of attack. In addition, several high-level joint experiments and training exercises were conducted, focused on Scud hunting, dynamic targeting, solving C2 problems, smoothing joint targeting processes and trying out various planning software tools.60 Time-Sensitive-Targeting One of the key TST lessons from previous conflicts was the importance of defining and prioritizing the different target categories. Thus, in preparation of the campaign, a time-sensitive target—a target identified within the ATO cycle requiring immediate response—was defined to include Iraqi military leadership and non-military regime C2; weapons of mass destruction (WMD) delivery systems and equipment; terrorists and their facilities; and mobile WMD labs. A Dynamic Target (DT)—a target identified within the ATO cycle as being of significant importance to all components such that it should be struck during the ATO period given available assets—was defined to include long-range radars; air-defence components; anti-aircraft artillery (AAA) pieces; and SAM systems. A Joint Critical Target—a target identified within the ATO cycle that does not meet TST or DT criteria, but is important enough to introduce for strike during the cycle—was defined to include elements of C2 and communications. Finally, Emerging Targets—targets that meet sufficient criteria to be considered and developed as a target, but where the criticality and time sensitivity is initially undetermined—were defined to include mobile tactical SAMs; mobile artillery; and massed enemy ground forces. For each category, the relevant command and target approval authority were clearly delineated.61

59

See Crawford 2013, pp. 351–356; Graham 2003; Chairman of the Joint Chiefs of Staff Manual (CJCSM) 3160.01, Joint Methodology for Estimating Collateral Damage and Casualties for Conventional Weapons: Precision, Unguided, and Cluster, 20 September 2002. 60 Kometer 2007, p. 203. 61 Fyfe 2005, pp. 18–19.

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Planning In contrast to Desert Storm, this time the plan aimed to effect regime change and to leave as much Iraqi infrastructure intact and limit the suffering of the Iraqi people as much as possible. Therefore the strategic attack portion of the plan included the targeting only of C2 networks, regime security forces, select palaces, government ministries, command bunkers and WMD facilities.62 Planning for these targets benefited from the long preparation time, which spanned more than a year. Applying a systems approach and effects-based philosophy, each impact point for each target for the first seventy two hours of the campaign was developed and eventually reviewed in a conference involving intelligence agencies, CENTCOM planners and weapons experts of the relevant services.63 A TST mission opened the campaign, when cruise missiles and an F-117 struck the Iraqi leadership on 20 March. In some cases, it took only twelve minutes to destroy a confirmed target; in some cases, it was five minutes after detection. A key factor in this, apart from training and technical connectivity, was the fact that, in contrast to and because of experiences in Enduring Freedom, Franks had now delegated full authority to the JFACC and CAOC to developed target lists and conduct collateral damage estimates.64 Top-down tactical control was largely avoided. Since Desert Storm, targeting had dramatically gained in accuracy and responsiveness.65 As a result, in a single week, the coalition destroyed one thousand tanks and reduced the Republican Guard by 50%. Most Iraqi armour and artillery was neutralized before it could deploy against coalition ground forces. Many Iraqi troops fled their armour once the first bombs started hitting them. This allowed for a very rapid advance towards Baghdad. Even urban operations saw enhanced effectiveness of air strikes. Intense intelligence preparations had produced detailed maps featuring codes for individual buildings in specific areas of Baghdad, facilitating CAS coordination with ground troops. In the North, the combination of SOF, ISR, CAS and Peshmerga irregular forces managed to fix and attrite thirteen Iraqi divisions.66 In the West no Scud or similar missile was launched. Bagdad fell after three weeks.

9.5.3

Fighting Non-State Actors and Public Opinion

These new air capabilities also enabled NATO to conduct operations in Afghanistan from 2003 onward, including counter-insurgency operations as part of the International Security Assistance Force (ISAF). Intense air-land integration proved challenging (because of the vast distances involved, many caveats imposed by 62

Lambeth 2013, p. 33. Lambeth 2013. See the whole of Chapter 1 for a detailed overview of the joint planning process. 64 Lambeth 2013, p. 203. 65 See Lambeth 2013, Chapter 4 for key accomplishments. 66 See Andres 2007a, b, pp. 52–64; Andres 2007a, b, pp. 69–88. 63

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nations on the use of their units and limited NATO air C2 capabilities) but essential. Without rapid and precise offensive air support for troops in contact (which occurred on a daily basis), and air reconnaissance for convoy protection and detection and tracking of enemy movement, operations with ground forces in such vast, barren, and underdeveloped terrain were vulnerable, less effective and sometimes hardly feasible.67 Enhanced precision created trust among ground troops in calling in CAS at distances well within the traditional thousand-meter safe distance. New equipment moreover allowed forward air controllers and pilots to share the same air-to-ground image of the target, helping avoid fratricide. Such capabilities also facilitated engagements in urban environments. Those air-ground engagement capabilities were also used for counter-terrorist operations in Afghanistan, the Afghanistan-Pakistan border area, and Iraq. From 2015 onwards a proxy warfare model, or the so-called by-with-through approach, was employed to defeat ISIS in Iraq. U.S. and coalition trainers, special forces, fixed wing fighter-bombers and bombers, an umbrella of ISR platforms, all connected through an elaborate joint C2 structure, aided Kurdish fighters in the North and Iraqi regular troops in the south in their fight against ISIS. This evolved into an attritional campaign which succeeded in liberating ISIS held cities across the country while minimizing risk to Iraqi troops and limiting the required numbers of western combat troops in the area.68 With novel small diameter bombs, air strikes managed to limit damage to buildings during the vicious urban battles, hitting only specified floors if necessary. This campaign also demonstrated cases where pilots, after detecting civilians approaching the intended target, directed their inflight bombs away from it. Leadership Targeting From the perspective of targeting, what also stands out as novel in operations since Iraqi Freedom is the proliferation of the use of UAVs for surveillance, and increasingly also in the combat and leadership-targeting role. In fact, the first sortie of Enduring Freedom was an armed Predator UAV operated from an airbase near Las Vegas, seven thousand miles away. Literally thousands of small, medium and large UAVs have since been deployed in Iraq and Afghanistan as part of COIN operations. The advantages are obvious. For adversaries, this makes exposure outside buildings or forests a risky activity. Armed UAVs, or a combination of manned fighter aircraft and a UAV equipped with a targeting pod have also proved able to strike key leaders and small groups of Taliban insurgents and are especially suited for politically delicate missions, such as targeting of al-Qaeda militants in Pakistan and Yemen by the CIA. This practice of leadership targeting has increased rapidly since 2009.69 Drone strikes have fast become the icon of the Western postmodern style of warfare ever

67

Mueller 2010, Vol. I, pp. 47–65. See for a discussion of air power in COIN: Hayward 2009. See Broekhof et al. 2019; Nimmo 2016, pp. 81–95. 69 For an overview of the literature, see Osinga 2013. 68

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since 2009, equipped with small Hellfire missiles, drones operating on leadership-targeting missions are the final link in a long careful targeting chain which involves various military and civilian intelligence agencies, foreign intelligence sources, legal advisors and sometimes even senior political leadership. The key features that drones offer for these leadership attacks are real-time streaming video and very accurate sensors, enabling individuals to be found, tracked and, if their identity is confirmed, killed. So the technologies and organization of targeting developed for interstate warfare proved effective also for engaging violent non-state actors. With missions now targeting small groups or even single individuals with single PGMs from remote distances, it marks the final step in a process in which the target granularity has steadily become finer and the ability to control force larger. Backlash: Adaptive Opponents, Media and Lawfare Experiences in Afghanistan demonstrated not only the benefits of modern targeting capabilities, but also the conditional nature of technological superiority in campaigns against adaptive opponents in full view of the media. The emergence of, and proliferation of social media and the internet, has given rise to War 2.0, which in particular has offered non-state actors a powerful asymmetric edge, new virtual front where norms can be employed as weapons. Digital media are cheap and allow easy production and rapid global distribution of media material, as well as manipulation—i.e. spin—of events. This means that the connection between the popular perception of the war and the physical battlefield is much more immediate and therefore volatile than before. Web 2.0 media penetration compresses the operational level of war and gives each tactical action immediate strategic impact.70 Indeed, most challenges with targeting no longer revolve around technological, doctrinal or organizational problems. Instead, problems emanate, on the one hand, from the “mediatization” of war, Western norms and the Western publics’ perceptions of legitimacy, all producing pressure for increased transparency, accuracy and accountability, and on the other, from ‘lawfare’; the exploitation of those sensitivities by adaptive opponents through media spin.71 Local and global counterproductive media coverage was also the main reason that in Afghanistan the ISAF Commander, General Stanley McChrystal, took pains in July 2009 to limit the risk of civilian casualties by drastically curtailing the use of force. As he stated, ‘Air power contains the seeds of its own destruction if we do not use it responsibly. The tactical gains do not outweigh the costs’.72

70

See in particular Rid and Hecker 2009 for a detailed account of the use of social media by insurgent groups. 71 See Dunlap 2009, pp. 34–39; Dunlap 2008, p. 146. 72 As quoted in Crawford 2013, p. 19.

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The Israeli Experience

The Israeli experience during the past decade features these dynamics.73 The Israeli Air Force (IAF) had honed its skills in the targeted killing of key leaders of Hamas and the PLO through the use of data-linked surveillance UAVs, combat helicopters and fighter aircraft. This, combined with an aversion to casualties, resulted in a belief shared by civilian and military leaders that air power could offer a low-cost— primarily in terms of casualties—way to retaliate and defeat adversaries such as Hamas and Hezbollah. In essence, Israel has exploited new precision weapons and the fusion of intelligence sources in a counter-terrorism strategy. The effect has been periods of ‘quiet’ in which the demonstration of accurate intelligence and deadly force against specific key individuals produced restrictive deterrence: violence was not eliminated but limited to a level that Israeli society could handle.74 In the summer of 2006 this model was applied to stop Hezbollah firing Katyusha rockets against Israeli communities and to bring about the return of two soldiers who had been abducted by Hezbollah. In part this low-risk strategy was effective. The IDF is thought to have eliminated about five hundred of Hezbollah’s most advanced fighters and forced many of the others to evacuate the areas south of the Litani River. The IAF destroyed about half of the unused longer-range rockets, and much of Lebanon’s infrastructure, which was used to resupply Hezbollah. As it demonstrated again in Operation Cast Lead in December 2008 and subsequent operations against Hamas in the Gaza Strip, the established network of multiple UAVs, fighter aircraft and artillery allowed it to strike targets precisely within minutes, and sometimes seconds, of a launch being detected. On the other hand, air power was unlikely to be able to produce the desired outcome against a hybrid opponent such as Hezbollah that lacked high-value targets, such as industrial facilities and robust C2 nodes. Instead, the main targets became Hezbollah’s leadership and its fielded forces and weapons; because these were hidden amongst civilians and frequently moved, they were extremely difficult to target. The IDF attacks inevitably contributed to the tally of 1100 Lebanese civilian casualties. From standoff positions, there was no way to distinguish between non-uniformed Hezbollah fighters and Lebanese civilians. Mingling with civilians and hiding in mosques or day care centres were all tactics of dubious moral standing, but the collateral damage it elicited had the advantageous effect of rallying and recruiting sympathizers to Hezbollah’s cause in the fight against Israel. In response, the IDF implemented several measures to ensure the validity of targets (more detailed intelligence, involving lawyers to review targets) and reduce the risk of collateral damage (through increased employment of low collateral damage

73

This section draws in particular from Krebs 2009, pp. 141–156; Brun 2010, pp. 297–324. This section on Israeli counter terrorism practices involving leadership targeting draws from Alex Wilner 2013, pp. 740–772; Stahl 2010, pp. 111–133; Wilner 2011, pp. 3–37; Inbar and Shamir 2013, pp. 1–23; Byman 2006; Rid 2012, pp. 124–147; Henriksen 2012. 74

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munitions). In addition, it issued warnings to civilians by distributing hundreds of thousands of leaflets, and even by phone calls to some families in high-risk areas.75

9.5.5

Drones and Autonomous Weapon Systems

Two technological developments that (will) have significant impact on the manner in which the use of force is controlled are UAV—drones—and so-called autonomous weapons systems. Drone-strikes, it is claimed, kill too many innocent civilians and the practice of targeted killing with drones is dangerously immoral and eroding Western prestige.76 Such ‘remote killing’ has made ‘killing too easy’ and is ‘unethical’ because only one side is subject to attack and the other side is seven thousand miles from the front. In addition, according to some analysts, drones may create risk-free warfare as an option for politicians. Risk-free war promotes endless war as there is no incentive to end it, and a limitless expansion of the battlefield. Not only do drones lower the threshold for going to war, they also may make it easier to keep wars going, and when the target is global terrorism, fighting it may equally encompass the globe,77inspiring some analysts to call it surrogate warfare or vicarious warfare.78 This concern for the ease with which international norms concerning sovereignty can be violated has resulted in condemnation in a UN report.79 Finally, the lack of transparency concerning targeting procedures and legal accountability is advanced as an argument.80 Most of these arguments have been countered in detailed analysis.81 Indeed, a UN Rapporteur in 2013 reported that ‘If used in strict compliance with the principles of international humanitarian law, remotely piloted aircraft are capable of reducing the risk of civilian casualties in armed conflict by significantly improving the situational awareness of military commanders.’82 The president of the International Committee of the Red Cross likewise stated that drones ‘allow belligerents to carry out their attacks more precisely against military objectives and

75

Cordesman 2009. See for an extensive analysis Lambeth 2011. See, among many others, Cole et al. 2010; New America Foundation 2013; The Bureau of Investigative Journalism 2011; Heller 2013, pp. 94–103. 77 Miller 2011. 78 Waldman 2018; Krieg and Rickli 2018. 79 Pakistan: Statement by the UN Special Rapporteur on human rights and counter-terrorism, 15 March 2013, http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=13,148&LangID=E. 80 Becker and Shane 2012. See also Boyle 2013, pp. 6–9; UN Human Rights Council 2010, p. 3. 81 See for instance Byman 2013; Frank 2013; Savage 2012; Johnston 2012, pp. 47–79; Williams 2013; and Strawser 2013. 82 U.N. Human Rights Council 2013, p. 23t. 76

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thus reduce civilian casualties and damage to civilian objects, in other words, to exercise greater precaution in attack’.83 Nevertheless the result of the public criticism has been a decision to decrease in the number of drone-strikes and an increase in transparency on procedures regarding drone-strikes and concerns that drone strikes have become normalized continue.84 The proliferation of drones is set to continue apace and to accelerate as the costs continue to fall and commercial drones are widely available and easy to militarize for offensive purposes.85 At the latest count, over 95 states deploy drones for military purposes, a rise of 56% since 2010.86 The future also heralds the rise of autonomous weapon systems, or, in popular parlance, the killer robot. In particular the US and China have expanded their investments in artificial technology, with Russia, Israel, France and the UK following at a distance. Military powers publish AI strategies and establish well-funded AI centres at the heart of military institutions.87 Current efforts in AI focus on early warning (predictive modelling), intelligence analysis (signal detection), battlespace and courses of action analysis, target acquisition and recognition, swarming manoeuvre techniques, and command and control (C2) and (semi-) autonomous decision making.88 In this context the Chinese speak of the ‘intelligentisation’ of war, with reference to the US notion of informatised war of the 1990s.89 But it seems almost inevitable that the very character of war will change as a result of the progressive integration of AI in the modus operandi of armed forces over the course of the 2020s in particular when AI is built in unmanned weapon systems. The legality and ethics of, for instance, deploying autonomous weapon systems are hotly debated in academia, interest groups, parliaments, religious circles (including the Vatican) and the UN. As with the drone-warfare debate, opponents of these weapon systems allege that they will result in the ‘dronification’ of foreign affairs, an ‘everywhere war’ and the dehumanisation of warfare. Another concern relates to the deployment of immature AI to the battlefield which increases rather than decreases fog and friction and fuels unwanted escalatory spirals. Because use of drones and AWS reduces the need to deploy soldiers, political leaders might be more inclined to escalate during a crisis, with war as the result. If both contestants possess an arsenal of such systems, the question is what happens when one of them 83

Statement in Keynote Address on 8 September 2011 by Kellenberger to the 34th roundtable on Current Issues of International Humanitarian Law, San Remo, available at https://www.icrc.org/ eng/resources/documents/statement/new-weapon-technologies-statement-2011-09-08.htm. 84 Baker 2013; Shabagh 2020. 85 This section draws from Sweijs and Osinga 2020. 86 Gettinger 2019, VIII. 87 Allen 2019. 88 De Spiegeleire et al. 2017. 89 The State Council Information Office of The People’s Republic of China, China’s National Defense in the New Era (Foreign Language Press, July 2019), http://www.xinhuanet.com/english/ 2019-07/24/c_138253389.htm.

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runs out of such systems.90 António Guterres, the UN secretary-general, captured these concerns nicely when he said in a speech in 2018 that “The prospect of machines with the discretion and power to take human life is morally repugnant.”91The prospects of the use of such weapons has already led to thinking on how nations should organize to remain in (meaningful human) control.

9.6

Conclusion: Control and the Paradox of Western Warfare

The story-arc of targeting stretches between the strategic bombing theory of Douhet and the contemporary experience with drones. It is one of solving technical and informational obstacles concerning the location and identification of targets, and the assessments required to make engagement decisions, and, finally, the accurate delivery of munitions. It features an upward trend in accuracy of munitions, against objects of an ever-decreasing physical signature, in ever-shortening response times, if necessary from increasing distances. The ability to control aerial destructive force has steadily increased, in particular during the past two decades. Indeed, it has become the defining iconic characteristic of western warfare.92 It is also a story of constant experimenting with new targeting planning tools and processes, data communications and ISR capabilities. It is marked by a growing versatility and flexibility but also a constantly swinging pendulum between the poles of centralized and decentralized control, with a strong tendency towards stringent political oversight from distant capitals. Technological development is obviously a very dominant factor in the evolution of targeting, but not necessarily the most important one. Targeting has been shaped by organizational structures and processes and inter-service competition for scarce resources. Moreover, it is informed by perspectives on the nature of the political mandate and objectives, by the type of war or conflict and by intelligence on the nature of the opponent. It is also inspired, by assumptions, derived from experience, doctrine or strategic theory, about the causal logic that explains why force (lethal or otherwise) would produce a specific effect. Finally, in the articulation of mandates, directives, target limitations, and rules of engagement it is shaped by societal, political and professional norms which include but often also transcend accepted legal opinion that guides the use of force. A final central theme is that risk-avoidance has become a paramount concern for military commanders and their political superiors. Western militaries have increasingly been forced to carefully consider all potential side effects of attacks, and to take all possible precautions. Legal advice is now common practice in 90

Etzioni and Etzioni 2017; Lachow 2017; Altmann and Sauer 2017. Safi 2019. 92 Hippler 2017. 91

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targeting processes. The call for instant accountability is incessant. Indeed, as two legal scholars observed, now that individuals can be targeted, the morality and legitimacy of the practices of war are undergoing a fundamental transformation. Whereas the traditional practices and laws of war defined ‘the enemy’ in terms of categorical group-based judgments that turned on status—a person was an enemy because he was a member of the opposing army—we are now moving into a world that implicitly or explicitly requires the individuation of the enemy responsibility of specific persons before the use of military force can be justified, at least as a moral and political matter.93 It is norms and perceptions rather than law which matter most in the current media saturated era. We therefore live in a paradox of power, as a legal scholar recently posited: our capabilities of inflicting destruction through military means are unparalleled in human history; yet, for liberal democracies, contemporary military practices are the most restrained they have ever been, at least as far as effects of military operations on civilians go.94 And indeed, the debate on drone warfare accentuates the paradox that the demonstrated ability to attack with unprecedented precision has raised the bar for future operations. The ability of control has become a requirement. On the one hand the increase in accuracy of weaponry has broadened the realm of targetable objects and has inspired ideas to produce military success with fewer casualties on all sides. On the other hand, since Desert Storm brought images of cruise missiles flying through the streets of Baghdad, the ‘CNN effect’ is such that these images have become the expectation a public and political ethical norm and thus a military norm.95 Targeting errors thus gain instant attention and condemnation. In contrast with World War II, where the certainty of massive civilian casualties did not inhibit the wholesale bombing of cities, now the risk of unintended ‘collateral damage’ from air attacks has become highly problematic, even when legitimate targets are struck and civilian casualties are the result of deliberate tactics of defenders who exploit Western sensitivities. Christopher Coker noted in the aftermath of Allied Force that avoiding casualties and destruction is a humanizing trend and is the only way to maintain legitimacy for conducting combat operations: ‘To be just, wars have to be humane. Western societies can now only fight wars which minimize human suffering, that of their enemies as well as their own. Western societies are trying to humanize war. It is the great project for the twenty-first century’.96 There is no way back, we can only go forward, Christopher Coker concludes.97 But two decades later, that claim is debatable. Opponents of Western militaries have proven very agile in exploiting that sensitivity. In the past decade they were aided by the proliferation of social media such as camera equipped cell phones, You Tube and Twitter, the cyberspace

93

Issacharoff and Pildes 2013, pp. 1522–1523. Blum 2019. 95 Thomas 2001. 96 Coker 2002. 97 Coker 2002, p. 13. 94

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targeting tools for the information age. The coming decade(s), if armed drones, AI and autonomous weapon systems proliferate as expected, it is an open question to what extend the west will continue and be able to apply its own laudable but very stringent rule book when using military force. Its militaries may be forced to follow and the norms of war may well be redefined once again.98 And since this progress has actually only taken place within western societies and emerged in a time when the west could strategically afford such concern as the operations did not involve existential interests, it remains to be seen whether comparable levels of control and restraint will be the norm in future interstate war that challenges survival of the State.

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Hallion RP (1992) Storm over Iraq, air power and the Gulf War. Smithsonian Institution Press, Washington D.C. Hecker RT (2009) War 2.0: irregular warfare in the information age. Praeger, Westport Heller K (2013) ‘One Hell of a Killing Machine’: signature strikes and international law. J Int Crim Justice 11(1):94–103 Henriksen D (2012) Deterrence by default? Israel’s military strategy in the 2006 war against Hizballah. Journal of Strategic Studies, 2012, 35(1) Hippler T (2017) Governing from the skies: a global history of aerial bombing. Verso Books, London Hosmer S (1996) Psychological effects of US air operations in four wars, 1941–1991. RAND, Santa Monica Ignatieff M (2000) Virtual war: Kosovo and beyond. Viking Press, Toronto Inbar E, Shamir E (2013) Mowing the Grass: Israel’s Strategy for Protracted Intractable Conflict. Journal for Strategic Studies, 37(1):1–23 Issacharoff S, Pildes RH (2013) Targeted Warfare: Individuating Enemy Responsibility. New York Univ Law Rev 88(5):1521–1599 Jakobsen PV (1998) The Yugoslav wars. In: Jakobsen PV (ed) Western use of coercive diplomacy after the Cold War. MacMillan, London Johnston PB (2012) Does decapitation work? Assessing the effectiveness of leadership targeting in counterinsurgency campaigns. International Security 36(4):47–79 Kagan F (2006) Finding the target, the transformation of American military policy. Encounter Books, New York Keaney TA, Cohen EA (1993) Gulf War air power survey: operations and effects and effectiveness, Washington, D.C. Kometer M (2007) Command in air war. Maxwell AFB, Air University Press Krebs S (2009) Air power’s role in asymmetric operations: the case of the Second Lebanon War. In: Hayward J (ed) Air power, insurgency and the War on Terror. Royal Air Force Centre for Air Power Studies, Cranwell Krieg A, Rickli JM (2018) Surrogate warfare: the art of war in the twenty first century? Defence Studies 18(2):113–130 Lachow I (2017 The upside and downside of swarming drones. Bulletin of the Atomic Scientists 73(2):96–101 Lambeth B (2001) NATO’s air war for Kosovo, a strategic and operational assessment. RAND, Santa Monica Lambeth B (2005) Air power against terror. RAND, Santa Monica Lambeth B (2011) Air operations in Israel’s war against Hezbollah: learning from Lebanon and getting it right in Gaza. RAND, Santa Monica Lambeth B (2013) The unseen war, allied air power and the takedown of Saddam Hussein. Naval Institute Press, Annapolis Lantis J (2016) Arms and influence: U.S. technology innovations and the evolution of international security norms. Stanford University Press, Stanford Larson E, Savych B (2006) Misfortunes of war: press and public reactions to civilian deaths in wartime. RAND, Santa Monica Latham A (2002) Warfare transformed: a Braudelian perspective on the ‘revolution in military affairs’. European Journal of International Relations 8(2):231–266 Lifton RJ (1990) A genocidal mentality. Basic Books, New York Luttwak E (2001) Blood and computers: the crisis of classic military power in advanced postindustrialist societies and the scope of technological remedies. In: Maoz Z, Gat A (eds) War in a changing world. The University of Michigan Press, Ann Arbor Mann EC, Endersby G, Searle TR (2002) Thinking effects, effects-based methodology for joint operations. Air University Press, Maxwell AFB Maoz Z, Gat A (eds) (2001) War in a changing world. The University of Michigan Press, Ann Arbor

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Air-Commodore Prof. Dr. Frans Osinga is a former fighter pilot in the Royal Netherlands Airforce. He is the professor for Military Operational Arts & Sciences, and chair of the Department of War Studies at the Netherlands Defence Academy. Prof. Osinga is a professor by special appointment for War Studies, which is sponsored by the Royal Society for War Studies at the Institute of Security and Global Affairs at Leiden University. Mark P. Roorda is an adviser at the Centre of Expertise for Military Law of the Netherlands Public Prosecution Service. A former officer in the Royal Netherlands Marine Corps, he was a student and later a colleague of Prof. Terry Gill at the NLDA. Prof. Gill is supervising his Ph.D. research on the incorporation of the law of armed conflict in the military targeting process for the use of unmanned weapon systems.

Chapter 10

Some Thoughts on the Role of the Notion of ‘Control’ in ‘Choosing’ the Paradigm of Hostilities or Law Enforcement as the Governing Framework for the Use of Force in Military Operations: Is There Any? Eric Pouw Contents 10.1 10.2 10.3 10.4 10.5

Introduction...................................................................................................................... The Paradigms of Hostilities and Law Enforcement...................................................... Explaining the Problem: ‘Choosing’ the Right Paradigm.............................................. Control and Its Place in the Paradigms .......................................................................... ‘Effective Control’ ........................................................................................................... 10.5.1 Effective Control Over Territory........................................................................ 10.5.2 Effective Control as a Result of the Exercise of Public Powers....................... 10.5.3 Effective Control Over Persons.......................................................................... 10.5.4 Conclusions ‘Effective Control’ ......................................................................... 10.6 Situational Control........................................................................................................... 10.6.1 Effective Control, but no Situational Control .................................................... 10.6.2 Situational Control, but no Effective Control .................................................... 10.6.3 Situational Control as Building Block for a Common-Sense Approach to Making the ‘Choice’ ...................................................................................... 10.6.4 Conclusions ‘Situational Control’ ...................................................................... 10.7 Conclusions...................................................................................................................... References ..................................................................................................................................

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Abstract This contribution examines whether there is a role for ‘control’ in deciding which normative paradigm governing the use of force—law enforcement or hostilities—applies to a State’s military operations.




Keywords relationship between IHL and IHRL paradigms of law enforcement and hostilities use of force effective control situational control common-sense approach













E. Pouw (&) The Hague, The Netherlands e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2021 R. Bartels et al. (eds.), Military Operations and the Notion of Control Under International Law, https://doi.org/10.1007/978-94-6265-395-5_10

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Introduction

Let me begin by taking the opportunity to extend my gratitude to the man in whose honour this book was made: Terry Gill. Having known him since 1997, when I was a student in one of his courses at the Law Faculty of the University of Utrecht, Terry has played a key role in my development not only as a (military) lawyer, but also as a scholar in international law, particularly so between 2007 and 2013 when he guided me in writing my doctorate thesis on the interplay between international humanitarian law and international human rights law in counterinsurgency operations, with a specific focus on the use of force and detention. In that respect, I consider Terry as my ‘academic father’. The vastness of his knowledge, not only of international law, but also of military history, often astounded me, let alone his tireless work in shaping the International Law of Military Operations. I have particular fond memories of the many hours we spent talking about the various topics of my doctorate thesis, including the topic central to my contribution to this book. This concerns the question of the role of ‘control’, if any, in making the ‘choice’ between the applicable normative paradigm governing the use of force in a State’s military operations. A key part in my doctorate thesis deals with this question. I held that this ‘choice’ is greatly influenced, if not dependent on the exercise of ‘control’. In this chapter, I take the opportunity to focus again on this question. I will do so by briefly introducing the paradigms of hostilities and law enforcement and the ‘problem’ of having to make a ‘choice’ between them, in Sects. 10.2 and 10.3 respectively. In Sect. 10.4, the notion of ‘control’ as an element within the paradigms will be examined, followed by a discussion of two forms of ‘control’ in Sects. 10.5 and 10.6: ‘effective control’ and ‘situational control’. I will finalize this chapter with my conclusions in Sect. 10.7.

10.2

The Paradigms of Hostilities and Law Enforcement

From a State perspective, the use of force by its military forces, whether in a State’s own territory or abroad, is amongst the most extreme forms of State power. When analysing the legal framework governing the use of force by a State’s military forces, two frameworks come in view, nowadays commonly referred to as the normative paradigms of law enforcement and hostilities, respectively.1 Each paradigm applies to a distinct factual context and has a distinct set of rules that regulate State conduct. The paradigm-construct is mostly used or referred to in reference to the use of force. The paradigm of law enforcement refers to all activities by a State or similar authorities deemed necessary to allow it to exercise authority over persons (e.g. by 1

For an extensive analysis of the paradigms of law enforcement and hostilities, see Melzer 2008.

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means of arrest, detention, internment or other forms amounting to the deprivation of liberty) or territory (e.g. a State’s national territory, but also another State’s territory); to maintain or restore public order and security; and to suppress criminal or subversive activity. The paradigm of law enforcement may apply both in peacetime and armed conflict. While rules and principles governing the conduct of State authorities operating in the domain of law enforcement can be derived from several branches of international law (including to some extent from IHL in so far as law enforcement takes place in the context of an armed conflict), the primary branch of international law supplying those rules and principles is commonly understood to be IHRL.2 The paradigm of hostilities, from a factual viewpoint, refers to those situations in the context of an armed conflict that can be said to be actual hostilities, i.e. situations in which parties to an armed conflict are engaged in armed clashes or similar activities, thereby resorting to means and methods of warfare, with a view to force an opponent into (total or partial) submission by affecting its military potential, or by doing all that is militarily necessary to prevent its own military potential from being negatively affected such that itself is forced into submission.3 From a legal point of view, the paradigm of hostilities refers to the legal framework that governs the conduct of hostilities in armed conflict. Remaining undefined in IHL, ‘hostilities’ can be described as the sum of attacks—a term defined in IHL as ‘any act of violence directed against the adversary, whether offensive or defensive in nature’4—and other related military activities, such as deployment and manoeuvres, reconnaissance, surveillance and logistical support and supply activities, all aimed at directly contributing to the defeat of the opponent. While it is commonly accepted that IHL and IHRL both offer rules applicable to armed conflict, it is also commonly understood that in relation to many subjects regarding armed conflicts, IHL functions as the lex specialis.5 This is undoubtedly the case with respect to hostilities, with respect to which IHL, unlike IHRL, contains a specific sub-regime, called the ‘law of hostilities’, specifically designed to regulate the fighting between the parties to an armed conflict.

2

On the paradigm of law enforcement, see Melzer 2011, pp. 33–36. However, on the role of IHRL in the paradigm of law enforcement, see Jöbstl 2018. See also Cohen 2018. Both publications analyse the position of the Israel HCJ with respect to the legality of the ROE used by the IDF against Palestinian demonstrators in Gaza, between March and May 2018, in which the HCJ denied the applicability of IHRL to the use of force by the IDF against the demonstrators, yet argued that IHL contains within it a law enforcement paradigm that governs the use of force. 3 On the paradigm of hostilities, see Melzer 2011, pp. 37–42. 4 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims in International Armed Conflicts, opened for signature 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978) (API), Article 49. 5 The rule that IHL functions as the lex specialis is not absolute, as in some areas IHRL offers more specific standards, for example in relation to the use of force in relatively calm situations of occupation for the purpose of maintaining public order and safety. See Kleffner 2011, pp. 72–75.

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Explaining the Problem: ‘Choosing’ the Right Paradigm

Having two paradigms at one’s disposal, the question is which paradigm to ‘choose’. At first sight, this question may seem easy to answer. After all, law enforcement is traditionally viewed to belong exclusively to the realm of domestic police fighting criminals, in a peacetime setting, whereas hostilities are generally seen as something belonging exclusively to the domain of the military fighting other militaries in war. As it seems, this traditional distinction seems to be exclusively based on a peace versus armed conflict, a police versus military and a criminal versus combatant distinction. However, when applied to today’s conflicts, this traditional approach is no longer accurate from a factual, nor from a legal point of view. This has to do with the nature of today’s armed conflicts, which sees fundamental changes in the responsibilities for the military. Armed conflicts are predominantly non-international in character. Whether purely internal or taking place on the territory of another State, these conflicts can best be described as ‘wars amongst the people’.6 This sees commanders and their soldiers confronted with all sorts of practical and legal challenges. Typically, in these conflicts fighters are difficult to distinguish from civilians, causing it to become challenging for soldiers to comply with the fundamental IHL-principle of distinction. In addition, in conflict areas police forces may no longer be present or functional, forcing military personnel to take up typical law enforcement duties. In fact, in some environments, they may have to switch from combat to law enforcement and vice versa, due to quickly changing circumstances. In other words, law enforcement is not necessarily limited to peacetime or police forces only. From a legal point of view, having to deal with non-state actors, such as insurgents or rebels, also raises questions regarding their status and hence the applicable paradigm. After all, non-state actors picking up weapons and using them to carry out hostilities not only qualify as lawful military targets under IHL, but are at the same time criminal suspects for violating the domestic penal code of the State in which they operate or the State to which they belong. One could argue that the concept of hostilities overlaps with the concept of law enforcement, as the insurgents not only pose a military threat but also pose a threat to public security, law, and order. So, must they be arrested or does international law allow them to be attacked? This question not only applies to non-international armed conflicts, but also to other situations where States are confronted with hostilities on top of their duties to maintain law and order, for example when they are an occupying power. So, making the ‘choice’ is not that straightforward. Clarity on what determines this ‘choice’ is, however, of fundamental importance. As explained below, the

6

Smith 2005.

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differences between the legally permissible scope for the use of force are quite extreme. To the extent that law enforcement activities amount to the use of deadly force, the applicable legal framework derives from the rules and principles governing the right and duty of States to take all measures to respect and protect one of the most fundamental human rights: the right to life.7 The current state of the law governing the right to life (or, better said, allowing States to deviate from the prohibition on arbitrary deprivation of life) offers only a very strict window for the use deadly force not to be ‘arbitrary’. Besides having a legal basis, it must be absolutely necessary and proportionate to achieve the aim of protecting persons against an actual or immediate unlawful attack that might cause death or serious bodily harm of oneself or that of any other person in the immediate vicinity; in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; in action lawfully taken for the purpose of quelling a riot or insurrection, all with a view to minimize, to the greatest extent possible, the recourse to lethal force in order to protect the life of all persons that could be affected by the use of force, including that of the person(s) posing the threat.8 As follows from this paradigm, the 7 Melzer 2010, p. 281. The right to life has been secured in all the human rights treaties. Thus, within the UN conventional human rights framework, the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, UNTS 999 (entered into force 23 March 1976/28 March 1979) (ICCPR), p. 171, Article 6 ICCPR states that “[e]very human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.” Article 4(2) ICCPR categorically prohibits the derogation from the right to life under any circumstances. The American Convention on Human Rights, opened for signature 22 November 1969, O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123 (entered into force 18 July, 1978) (ACHR), reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/ Ser.L.V/II.82 doc.6 rev.1 at 25 (1992) contains an almost identical provision, in Article 4, and also prohibits any derogation from the right to life in Article 27(2) ACHR. The European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, opened for signature 4 November 1950, ETS 5 (entered into force 3 September 1953) (ECHR), Article 2 of the ECHR stipulates that “[n]o one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.” In contrast to the texts of the ICCPR and the ACHR, which use the term ‘arbitrary’ as a threshold to determine a violation of the right to life, Article 2(2) ECHR contains an exhaustive list of exceptional situations in which the deprivation of life does not violate the right to life. Thus, “Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection. 8 Melzer 2010, pp. 283–288, who identifies the requirement of strict necessity, proportionality, precaution and legal basis. There is a wealth of jurisprudence from which these requirements can be distilled, such as, for example ECtHR, McCann and Others v. United Kingdom, Judgment, 5 September 1995, App. No. 18984/91; ECtHR, Andronicou and Constantinou v. Cyprus, Judgment, 9 October 1997, App. No. 25052/94; ECtHR, Gülec v. Turkey, Judgment, 27 July 1998, Appl. No. 21593/93; ECtHR, Kelly and Others v. the United Kingdom, Judgment, 4 May 2001, App. No. 30054/96; ECtHR, Makaratzis v. Greece, Judgment, 20 December 2004, App. No. 50385/99; UNHRC, Maria Fanny Suarez de Guerrero v. Colombia, 5 February 1979,

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protection of life is paramount and the rules are clearly not designed for situations of warfare. In contrast, the paradigm of hostilities paints quite a different picture. When focusing on the use of deadly force, the rules and principles in this paradigm permit the proactive use of force to kill or wound lawful military targets as well as to destroy lawful military objects necessary to defeat the opponent or to prevent it from becoming the object of defeat.9 Well established and recognized principles, following from the balance inherent in IHL between humanitarian concerns and military necessity and providing the basis for all of these fighting rules, are distinction, proportionality (intrinsically linked with the obligation to take precautionary measures to prevent of limit civilian injury, death or destruction), humane treatment and the prohibition on causing superfluous injury and unnecessary suffering.10 An important remark to be made here is that a State’s use of force exercised under IHL does not imply that State thereby violates its obligations under IHRL. To the contrary, as long as the use of force is applied in conformity with IHL, such use of force cannot be considered ‘arbitrary’ and constitutes a legitimate form of deprivation of life, otherwise prohibited.11 In view of the above, the applicability of the one paradigm or the other is, in essence, about the relationship between IHL and IHRL.12 It is not only relevant from a military point of view, in terms of consequences for planning and execution of military operations, but of course even more so for persons on the ‘receiving end’ of the use of force, as it determines their fate in terms of life and death. The question, however, is: what determines which paradigm applies, particularly so in situations where both paradigms could apply simultaneously?

Comm. No. 11/45, UN Doc. Supp. No. 40 (A37/40), 137 (1982); IACtHR, Neira Alegria et al. v. Peru, Judgment, 19 January 1995, Ser. C, No. 21 (1995); IACommHR, Armando Alejandre Jr. and Others v. Cuba ('Brothers to the Rescue'), Decision, 29 September 1999, Case No. 11.589, Report No. 86/99. 9 Provided that such use of force does not violate those principles and norms of IHL designed to protect fighters from unnecessary suffering and superfluous injury and to protect persons that do not (e.g. civilians) or no longer (e.g. wounded, sick or shipwrecked fighters and those taken prisoner) directly take part in the hostilities. 10 Kleffner 2010, p. 52. Some argue that ‘chivalry’ is an additional principle of IHL. See Gill 2013a. 11 See, for example, Article 15 ECHR. 12 Multiple decisions of the ICJ and human rights bodies, as well as numerous publications have dealt with the relationship between IHL and IHRL. See, inter alia, ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996 (Nuclear Weapons Advisory Opinion), ICJ Rep 1996, p. 226, para 25; ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories, Advisory Opinion, 9 July 2004 (Palestinian Wall Advisory Opinion), ICJ Rep 2004, p. 136, paras 102 et seq.; ICJ, Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, 19 December 2005 (DRC v. Uganda), ICJ Rep 2005, pp. 242–245, paras 216–221; UN Human Rights Committee (2004) General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, CCPR/C/21/Rev.1/Add.13; Droege 2007; Hampson 2008; Kleffner 2011; Milanovic 2011; Provost 2002; Sassòli and Olson 2008.

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As can be expected in any legal debate, views among experts as to what determines the ‘choice’ between the paradigms in situations of simultaneous application differ. This debate has led some to adopt rather static or one-sided approaches to the relationship between IHL and IHRL, whereby the determination of the ‘right’ paradigm is either based on human rights concerns or attempts to introduce or advance further humanisation13 of armed conflict by restrictive interpretations of IHL, or solely hinges upon the attack-status of individuals under IHL, in order to protect interests of military necessity.14 In his article ‘Some Thoughts on the Relationship Between International Humanitarian Law and International Human Rights Law: A Plea for Mutual Respect and a Common-Sense Approach, Terry has described this debate as—“the incessant competition and jockeying for precedence by humanitarian law and human rights lawyers and advocates”, which he describes as “unnecessary, incorrect as a matter of law, and […] dangerously counterproductive.”15 He concludes that if the debate continues this way, “the most likely result will be that the law is either cynically adapted to fit a particular policy, or will be ignored altogether. That would be nothing less than a brevet of incompetence and irrelevance for both ‘sides’ in the debate and would be the worst possible outcome for the persons both branches of the law are intended to protect.”16 In this contribution, I propose that ‘control’ plays a sometimes decisive or, at a minimum, indicative role in making the ‘choice’—as a matter of law, policy or tactical outcome. In fact, I consider ‘control’ to be a principal component for—what has been dubbed by Terry as—a common-sense approach to the relationship between IHL and IHRL.17 In the remaining part of this contribution, I will explain when, how and why. I will do so by first looking briefly at the place of ‘control’ in the paradigms’.

10.4

Control and Its Place in the Paradigms

In the paradigm of law enforcement, ‘control’ occupies a prominent position. For a State to effectively enforce the law, a significant degree of actual control or exercise of authority over territory or persons is required. This is quite evident with respect to measures such as arrest, detention, internment or other forms amounting to the deprivation of liberty, which inherently imply the actual physical control over

On ‘humanisation’ of IHL, see Meron 2000. See also, for example, Doswald-Beck 2011; Milanovic 2011; Schabas 2007. 14 See, for example, Osiel 2009, p. 131; Corn 2010, pp. 93–94; Hays Parks 2010. 15 Gill 2013b, p. 265. 16 Gill 2013b, p. 265. 17 Gill 2013b, p. 265. 13

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persons. However, (other) law enforcement activities to maintain or restore public order and security; or to suppress criminal or subversive activity—for example policing in the streets, the carrying out of criminal investigations or quelling a riot or demonstration—can only be done in an environment in which the government authorities are able to exercise the public powers bestowed upon them by the law, free from interference by threats of such a nature that would factually prevent them from such exercise. The term usually used in this context is ‘effective control’. Once a State exercises effective control, it exercises jurisdiction. From a legal point of view, jurisdiction entails the establishment of a relationship between the State and every person under its effective control allowing that State to exercise its public powers in conformity with the law. This includes its obligations under IHRL, such as the norms and principles governing the use of deadly force in order to comply with the obligation to not arbitrarily deprive a person from his or her life, but also obligations under other regimes of international law, such as IHL, involving duties for a State to maintain or restore public order and security. In other words, having effective control is a prerequisite for a State’s ability to enforce the law and protect the legal interests of all persons under its jurisdiction.18 When taking a closer look at hostilities as a factual concept, we see a rather different picture. In the event of hostilities, effective control over territory or persons is either lost or under severe pressure, either because a party to the conflict is under attack by an opposing party and struggling to remain in control, or because a party to the armed conflict attempts to regain the factual effective control it has lost to an opposing party as a result of the fighting. The struggle to gain, retake or retain effective control is so fierce that it requires the resort to means and methods of warfare. In such circumstances, the resort to typical law enforcement measures visà-vis members of the opposing party to stop them from endangering public order and security no longer makes sense, except in cases where State authorities physically take control over persons, for example fighters who surrendered or were detained during military operations. As the above shows, ‘effective control’ is a significant element characterizing and distinguishing both paradigms, at both a factual and legal level. This triggers the next question: does it therefore play a role in making the ‘choice’ between paradigms, and, if so, what is its role? To answer that question, we need to take a closer look at what ‘effective control’ really is.

18

This goes further than the discussion of the extraterritorial applicability of human rights treaties as a result of the requirement built-in these treaties (except for the African Charter) that an individual must find him- or herself within the jurisdiction of the State, such as required by Article 2(1) ICCPR, Article 1(1) ACHR; Article 1 ECHR.

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‘Effective Control’

As previously explained, in terms of (international) law, the exercise of effective control entails the ability of a State to exercise jurisdiction over persons or territory for the purposes of engaging its obligations vis-a-vis individuals under IHRL or other legal regimes of international law, such as the law of occupation under IHL. Relative to military operations, the question then is: when are persons brought within the effective control and thereby jurisdiction of a State? Views on the matter differ, depending, inter alia, on the factual situation and the legal framework that is applied to it. The case-law of the principal human rights bodies, most notably the ECtHR, offers useful, though admittedly at times ambiguous, guidance and shows that there are three approaches in determining whether a State exercises jurisdiction over persons: (1) the State exercises effective control over territory and thereby over all persons present on that territory; (2) the State exercises public powers in another State that normally belong to that other State with that State’s consent; or (3) the State exercises control and authority over the persons through its agents. Given their relevance to the current topic, these approaches will be briefly discussed below, starting with effective control over territory.

10.5.1 Effective Control Over Territory Taking the situation of a State’s activities—for purposes of clarity further referred to as State A—within the boundaries of its own territory in a peacetime setting as a starting point, the exercise of effective control is the default situation for every State with respect to its own territory and, as a result, for all persons present therein. Principally, all individuals present on the territory of State A are presumed to find themselves within the jurisdiction of that State, irrespective of the nature of the State conduct or omissions.19 A peacetime setting does not necessarily mean that the situation in the State is always peaceful. It may very well be that State A is struggling with violent criminality, terrorism, rebellion, or insurgency. Perhaps a shift takes place from peacetime to internal armed conflict due to hostilities between the government and organized armed groups or between such groups. Even in those instances of turmoil, the State may be presumed to exercise jurisdiction over persons due to its exercise of effective control over territory, except for those portions where and when it is no longer capable of doing so, for example because territory has come under the control of organized armed groups as a result of hostilities, or when State authority has crumbled to a degree that the State is no longer to exercise any degree of public authority over persons or territory. However, as the ECtHR held in Ilascu 19

ECtHR, Ilascu and Others v. Moldova and Russia, Judgment, 8 July 2004, App. No. 48787/99 (Ilascu), para 312.

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and Others v. Moldova and Russia, even though the “factual situation reduces the scope of the jurisdiction to the degree that it may no longer be possible to comply with its negative obligations under the ECHR,” a State still has “positive obligations to take appropriate steps to ensure respect for those rights and freedoms within its territory […]” and “[t]hose obligations remain even where the exercise of the State’s authority is limited in part of its territory, so that it has a duty to take all the appropriate measures which it is still within its power to take.”20 When operating abroad, the exercise of effective control by a State A over foreign territory (of State B) is obviously less straightforward. After all, the sovereign State B to whom that territory belongs is presumed to exercise effective control, similar to what has been explained above with regard to State A. So, if State A attacks State B with its military forces, triggering an international armed conflict, State B continues to exercise effective control over its territory, unless State A can be considered an occupying power over (parts of) State B’ territory. Belligerent occupation is the strongest example of a situation where a State exercises effective control over foreign territory. According to Article 42 of the 1907 Hague Regulations Respecting the Laws and Customs of War, “[t]erritory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.” While IHL does not offer further standards for determining when ‘authority’ has been sufficiently established, or ends, there appears to be general agreement that a state of belligerent occupation only commences and for so long as, in this case, State B does not consent to the presence of State A’s troops on its territory;21 State A assumes control over area’s in State B’s territory, thereby rendering incapable State B’s public exercise of authority in those areas, for example as a result of its defeat or retreat; and, in addition, State A has the ability to exercise the level of authority over State B’s territory required to enable it to comply with all the obligations imposed by the law of occupation, irrespective of its willingness to do so.22 According to the ICRC, the law of occupation continues to apply if State A shares this authority with State B, provided that State A “continues to bear ultimate and overall responsibility for the occupied territory.”23 Also, there is support for the view that State A will be considered an occupying power “when it enforces overall

Ilascu, above n 19, para 313. In casu, this implied that “Moldova still has a positive obligation to take the diplomatic, economic, judicial or other measures that it is in the power to take and are in accordance with international law to secure to the applicants the rights guaranteed by the Convention.” See Ilascu, above n 19, para 331. 21 Such consent must be genuine, valid and explicit. See ICRC 2012, p. 10. 22 The test is not the factual exercise of authority, but the ability to do so, in order to prevent States from attempting to evade their duties under the law of occupation, for example by deliberately not exercising authority or by installing a puppet government. ICRC 2012, p. 10. 23 ICRC 2012, p. 10. 20

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control over de facto local authorities or other organized groups that have effective control over a territory or part thereof.”24 The level of control required is generally considered to be ‘effective’ control.25 Whether control is sufficiently ‘effective’ cannot be answered in the abstract, but must be determined on the basis of the facts. Air supremacy or naval power do not amount to effective control; it requires “boots’ on the ground.”26 However, effective control does not arise by the mere fact that State A’s ground forces are able to carry out hostilities or, in doing so, become the militarily stronger party and as a result “is able to prevail in a particular situation or engagement with opposing forces, or for that matter consistently prevails in most, or even all engagements […] until such time as organized resistance has ceased or has been overcome, and effective control is established over persons or territory.”27 Neither does effective control arise if continuing combat obstructs a sufficient degree of stabilization or when it remains impossible to determine who exercises effective control over the particular part of territory. Nor is the mere non-consensual presence of military forces in foreign territory sufficient for effective control to take effect; occupation requires a lasting presence. Thus, troop movements or hit-and-run actions by units of State A that withdraw from State A do not amount to the exercise of effective control over State B’s territory. The same may be concluded with respect to invading airborne or mechanized units.28 More specific parameters that may be taken into consideration are the size of the occupying forces, the manner in which they operate, the particular terrain, the density of the population, the degree of opposition, et cetera. As stated in the UK’s Manual of the Law of Armed Conflict: “[f]or occupation of an area it is not necessary to keep troops permanently stationed throughout that area. It is sufficient that the national forces have withdrawn, that the inhabitants have been disarmed, that measures have been taken to protect life and property and to secure order, and that troops are available, if necessary to enforce authority in the area.”29 As an occupying power, State A may be facing resistance of a rebellion or guerrilla or paramilitary units in certain parts of the occupied territory. This mere fact does not end the occupation,30 even when the resistance is characterized by almost continuous hostilities31 or when State A’s degree of effective control may be temporarily reduced or ceased to insurgents.32 The state of belligerent occupation will remain in effect as long as State A is capable of assuming control of any part of

24

ICRC 2012, p. 10. Campanelli 2008, p. 665. 26 Dinstein 2009, p. 44; also Gasser 2008, p. 274. 27 Gill 2013b, p. 262. 28 United Kingdom Ministry of Defence 2005, para 11.3.2. 29 United Kingdom Ministry of Defence 2005, para 11.3.2. 30 Occupation terminates when the Occupying Power ceases to exercise effective control over the occupied territory. This, too, is a factual determination. Ibid., para 11.7. 31 Roberts 2005, p. 34. 32 Dinstein 2009, p. 43; Zwanenburg 2004, p. 748. 25

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the territory, at its own will.33 Effective control may “ebb and flow”, and “the fluctuations may be egregious,”34 but it is not until “the power of the occupant is effectively displaced for any length of time, […]” that the state of belligerent occupation ends.35 The crossing of the threshold of belligerent occupation by determining the exercise of effective control over territory triggers the applicability of the law of belligerent occupation, and thus places State A under the obligations and subsequent limitations commensurate to it. While a belligerent occupation does not affect the sovereignty of the occupied State,36 the Occupying Power acquires possession of the occupied territory with jurisdictional rights—within the constraints imposed by LOAC—to prescribe, adjudicate and to enforce.37 In addition, it is bound by the obligation of Article 43, 1907 Hague Regulations, which imposes on the Occupying Power the responsibility to “take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.” These responsibilities amount to the exercise of public powers, regardless of whether the Occupying Power in fact complies with the duties ensuing from them.38 As remarked by Dinstein, Article 43 contains an obligation of conduct, not of result: “[t]he Occupying Power must pursue the goal prescribed, yet nobody can cavil if the measures taken will not be crowned with success.”39 The question arises whether this also implies that State A, as an occupying power, exercises jurisdiction over all individuals present in the territory of State B for the purposes of engaging its obligations vis-a-vis individuals under IHRL. On the basis of IHRL case-law, for example that of the ECtHR,’military occupation’ is one of the accepted situations in which a State can be held to exercise jurisdiction (albeit for the purposes of establishing whether the ECHR applies to a State Party) over persons present in foreign territory, due to its exercise of effective control over

33 United States Military Tribunal, Nuremberg, United States v. Wilhelm List and others (the Hostages Trial), Judgment, 19 February 1948, The United Nations War Crimes Commission, Law Reports of Trials of War Criminals, vol. VIII, 1949 (Hostages Trial) pp. 34–76, p. 56. According to the United Kingdom Manual of the Law of Armed Conflict, the occupation remains in effect (“[…] so long as the occupying power takes the steps to deal with the rebellion and re-establish its authority or the area in question is surrounded and cut off”). United Kingdom Ministry of Defence 2005, para 11.7.1. 34 Dinstein 2009, p. 45. 35 United States Department of the Army 1956, para 360. 36 Dinstein 2009, p. 49. 37 Ibid., p. 46. 38 Campanelli 2008, p. 664. 39 Dinstein 2009, p. 92.

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territory, “whether that was done directly, through the State’s armed forces, or through a subordinate local administration.”40 The parameters used by IHRL treaty-bodies to determine the existence of a military occupation for the purposes of the applicability of human rights obligations differ somewhat from those used to determine the applicability of the law of occupation. Notwithstanding the somewhat different approach, “admitting the existence of a military occupation is tantamount to admitting a degree of territorial control by the occupant, which, by virtue of the definition of military occupation, satisfies the conditions of Article 1 of the ECHR.”41 As a result, as an occupying power, State A is bound by the law of belligerent occupation, other rules of IHL, and in respect of IHRL, to all the rights and freedoms in the treaty to which it is party for all persons residing within the occupied territory.

10.5.2 Effective Control as a Result of the Exercise of Public Powers Of course, there may be other grounds for the presence of State A on State B’s territory than its desire to attack it on its own soil or its subsequent belligerent occupation. For example, State A may be present on the territory of State B upon the latter’s invitation, or with its consent or acquiescence. If in those instances effective control over territory or persons cannot be established, jurisdiction may arise if it becomes clear that State A exercises public powers—be it judicial or executive powers—normally to be exercised by the government of State B. This may be the case when State A assumes responsibility for security, including the enforcement of civil law and order in State B, as the United Kingdom (and the US) did in Iraq. In the situation in which State A were to carry out military operations on the territory of State B without State B’s invitation, consent or acquiescence, yet without becoming an occupying power—for example by carrying out cross-border hit-and-run operations with small units against insurgents hiding in State B’s border region—the exercise of jurisdiction appears to require a high degree of control in the view of the ECtHR, as could be concluded from the case of Issa v. Turkey. In this case, regarding a large-scale Turkish military operation in Iraq in the mid-'90s to fight the PKK, the ECtHR held that Turkey did not establish jurisdiction on the basis of effective control over territory despite the fact that the Turkish operations in Iraq involved in excess of 35,000 troops accompanied by tanks, armoured vehicles, aircraft and helicopters, and lasted six weeks between 19 March and 2 May 1995, in

40 ECtHR, Loizidou v. Turkey, Preliminary Objections, 23 March 1995, App. No. 40/1993/435/514 (Loizidou), para 62; ECtHR, Cyprus v. Turkey, Judgment, 10 May 2001, App. No. 25781/94 (Cyprus v. Turkey). 41 Campanelli 2008, p. 665.

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which period Turkish troops infiltrated 40–50 km southwards into Iraq and 385 km to the east. Unlike its military occupation of Cyprus, Turkey’s troops in Issa were not present over a very long period of time, nor stationed throughout the whole of the territory of northern Iraq. The area was not constantly patrolled and there were no check points on all main lines of communication between the northern and southern parts of the island.

10.5.3 Effective Control Over Persons If effective control is not established over territory, it may nonetheless be established over persons. This is undoubtedly the case once and as long as a State exercises physical control over persons in the territory of another State, for example because they have been deprived of their liberty because they were captured or arrested by government authorities, such as its military forces.42 Effective control through authority and control over persons may also arise in situations other than deprivation of liberty, for example when a State has full control over a military camp and the persons present there, although admittedly, jurisdiction arises because of the State’s actual physical control over the persons present in the camp.43 Effective control over persons may also arise because of a State’s use of firearms —via its military forces—thereby killing or injuring persons. For example, in Jaloud v. the Netherlands, the ECtHR concluded that effective control over persons in State B also arises in the event of checkpoints that are manned by a State A’s military forces, regardless of the formal construct under which State A is operating under in State B. The ECtHR solely looked at the purpose of those checkpoints, which was to assert authority and control over persons passing through.44

10.5.4 Conclusions ‘Effective Control’ What becomes clear from the analysis above is: (1) that effective control may arise as a result of military operations, or that military operations take place in a situation where a State already exercised effective control; (2) that in those instances the State exercises de facto or de iure jurisdiction, and; (3) that IHRL applies alongside other relevant bodies of international law the applicability of which is triggered by the See for example ECtHR, Öcalan v. Turkey, Judgment, 12 May 2005 (Öcalan), App No. 46221/99; Al-Skeini above n 42, para 136, ECtHR, Hassan v. UK, Judgment, 16 September 2014, App. No. 29750/09 (Hassan), para 76. 43 Al-Skeini above n 43, para 136. 44 ECtHR, Jaloud v. Netherlands, Judgment, 20 November 2014, App. No. 47708/08 (Jaloud), para 152. 42

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exercise of effective control (such as the law of belligerent occupation) with respect to the use of force to restore or maintain public order and security, or to the treatment of persons. With respect to the question of the applicable normative paradigm and the role of control in making the ‘choice’, it also follows that (4) the actual exercise of effective control is, at a minimum, indicative or, at the most, prescriptive de iure of the normative paradigm of law enforcement as the framework governing the use of force. This is evidently so with respect to individuals in the State’s physical control, but also with respect to a State’s use of force as an occupying power to the extent that it fulfils its obligation under Article 43 HIVR to “take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country”. In those instances, the exercise of effective control also implies that, in order to protect the right to life, the use of force is limited to the requirements in the normative paradigm of law enforcement. This would be no different when State A would be exercising the public powers of State B with the latter’s consent and such exercise would entail pure law enforcement duties. Clearly, in foreign military operations where effective control over territory or persons is manifestly absent due to hostilities, force may be applied within the framework of the normative paradigm of hostilities. After all, the lack of effective control means that the State in case does not exercise de facto jurisdiction and that it is not in a position to comply with IHRL, as a practical matter. So far, it may be fair to conclude that there is, indeed, a role for control in ‘choosing’ the normative paradigm for the use of force. However, there is, in my view, a more nuanced role for control to play. The role of the exercise of effective control is helpful, but also somewhat limited to the two clear-cut situations presented above, i.e. the exercise or the non-exercise of effective control. Looking at effective control alone would possibly offer off-the-chart conclusions in situations that are more complicated and in which it would be useful, if not necessary, to also take account of an additional layer of control to make the ‘choice’ between paradigms: ‘situational control’. As I will argue below, ‘situational control’ is an essential ingredient for the application of a common-sense approach in determining the relationship between IHL and IHRL with respect to the use of force.

10.6

Situational Control

For the purpose of this chapter, I define situational control as the tactical level control reasonably exercised by military forces during an operation, irrespective of de facto or de iure effective control. In other words: situational control is the actual control exercised by individual soldiers or units at the scene of a particular deployment where an encounter with (an) opponent(s) takes place or is expected to take place. Situational control may be established by looking at, for example, the nature of the threat, ranging from individual crime-based violence such as murder,

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rape or hostage taking, to internal disturbances and tensions, such as riots or isolated acts of violence, as well as sporadic and infrequent hostilities and large-scale combat situations. Other parameters are whether the military forces outnumber the opponent, the means and methods applied by both the enemy and the State’s military forces, the frequency and duration of the violence, or the effects in terms of harm to both fighters and civilians, as well as to own forces.45

10.6.1 Effective Control, but no Situational Control Taking account of ‘situational control’ is, as said, particularly relevant in situations that are less clear-cut. This is, firstly, the situation where a State’s military forces operate in or outside its own territory and, notwithstanding the exercise of jurisdiction, are confronted with hostile activities during a particular situation. An example in case would be the situation in which military forces of an occupying power are confronted with hostilities in occupied territory. While the exercise of effective control or public powers in that case points at law enforcement as the applicable paradigm to govern the use of force by the State’s military forces, the specific context in which these forces may be required to operate—taking into account parameters such as the ones presented above—is informative of the ‘situational control’ these forces exercise (or could exercise—in light of the information available prior to deployment) right there and then. ‘Situational control’ is exercised as long as military forces can adequately deal with imminent and concrete threats posed to public security, law, and order, including threats to themselves or innocent bystander in the immediate vicinity, even when these can be linked to hostile acts. This implies that arrest is the primary approach to ‘neutralize’ an opponent, rather than the use of deadly force. However, an IHRL-based approach may not be appropriate if the parameters point to the absence of situational control to the extent that, in view of having to deal with actual hostilities, it is no longer sensible or even factually possible to stick with the normative paradigm of law enforcement, simply because it reaches its logical limits both in practical terms as well in terms of the risks it would pose to own forces and nearby civilians. Instead, the normative paradigm of hostilities, which up to that point was placed ‘in reserve’ and remained ‘dormant’, becomes ‘active’ as the more specialized framework and, as a result, opens the door to a more forceful approach to deal with violent opponents.

45

Ben-Naftali and Michaeli 2003, p. 287 ff; Droege 2008, p. 537; Ni Aoláin 2007, p. 578; Sassòli and Olson 2008, p. 614. See also Israel HCJ, The Public Committee Against Torture in Israel v. The Government of Israel, Judgment, 11 December 2005 (Targeted Killings Case), paras 26 ff, 39–40; UN Human Rights Committee (HRC), UN Human Rights Committee: Concluding Observations: Israel, 21 August 2003, CCPR/CO/78/ISR, para 15; ECtHR, Nachova v. Bulgaria, Judgment 6 July 2005, App. No. 43577/98 (Nachova), para 95.

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10.6.2 Situational Control, but no Effective Control A second situation concerns military forces engaged in combat, operating under the paradigm of hostilities, but essentially in control of the tactical situation at hand, for example because they manage to tactically outmanoeuvre (an) opponent(s) by making full use of the elements of speed and surprise. One could think of a raid by special forces on a known insurgent-location in the middle of the night, overpowering opponents in their sleep. In those instances, the ‘situational control’ implies that the military forces are, factually, in a position to capture or arrest, rather than to kill or wound. It is particularly this situation that has led to the fierce debate between protagonists of humanity and humanitarian concerns on the one side and those protecting interests of military necessity on the other.46 Most controversial is the opinion that a ‘capture, not kill’-approach reflects the current standing of the law, more in particular that IHL contains a ‘less harmful means’-rule following a restrictive interpretation of military necessity with respect to any person directly participating in hostilities if the situation allows for capture or arrest.47

10.6.3 Situational Control as Building Block for a Common-Sense Approach to Making the ‘Choice’ As previously concluded, ‘effective control’, or the absence thereof, is at a minimum indicative or at the most prescriptive de iure of the normative paradigm to be applied. The two situations of Sects. 10.6.1 and 10.6.2 demonstrate that ‘situational control’, alongside other factors if so required or desired48 and in the absence of a positive rule that prescribes ‘situations control’ as a mandatory check, functions at least as an additional policy consideration to be taken into account when thinking about the use of force that best fits a particular situation, provided of course that the outcome does not exceed the boundaries of the applicable framework. This is, for example, how the Israel High Court of Justice (HCJ) ruled in its Targeted Killings decision of 2005, in which it instructs Israeli security forces how to operate in the Occupied Territories. Basically, addressing the two situations described above, the court held that a civilian directly participating in hostilities:

46

Gill 2013b, p. 265. This is the approach adopted by the ICRC in chapter IX of its Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, see ICRC 2010, p. 77 ff. Criticising this approach is Hays Parks, see Hays Parks 2010. 48 Examples of other considerations are concerns over public opinion or loss of public support; the protection of innocent bystanders against life threatening use of force; the grand strategy of the military campaign; or a demonstration of a government’s willingness to exercise civil jurisdiction. 47

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cannot be attacked at such time as he is doing so, if a less harmful means can be employed. In our domestic law, that rule is called for by the principle of proportionality. Indeed, among the military means, one must choose the means whose harm to the human rights of the harmed person is smallest […]. Thus, if a terrorist taking a direct part in hostilities can be arrested, interrogated and tried, those are the means which should be employed […]. [T]rial is preferable to the use of force. A rule-of-law state employs, to the extent possible, procedures of law and not procedures of force […].49

At the same time, the court acknowledges that […], arrest, investigation, and trial are not means which can always be used. At times the possibility does not exist whatsoever; at times it involves a risk so great to the lives of the soldiers, that it is not required […]. It might actually be particularly practical under the conditions of belligerent occupation, in which the army controls the area in which the operation takes place, and in which arrest, investigation, and trial are at times realizable possibilities […]. Of course, given the circumstances of a certain case, that possibility might not exist. At times, its harm to nearby innocent civilians might be greater than that caused by refraining from it. In that state of affairs, it should not be used.50

On the one hand, the Israel HCJ lets humanitarian factors override considerations of military necessity in situations of ‘situational control’, not because it does not acknowledge the threat posed by terrorist and the desire to counter such threats, nor because it views IHRL as superior to IHL or ‘reads into’ IHL a ‘capture, not kill’-rule, but because in light of the context on the ground it is the ‘right’ thing to uphold a domestic legal principal to which it assigns more weight: proportionality. At the same time, the court is realistic and reasserts that such an approach is not always feasible. The approach adopted here by the Israel HCJ is an example of how ‘situational control’ is applied in an actual scenario. In fact, it demonstrates how it could play a pivotal role in—what Terry advocates as—a common-sense-approach to the relationship between IHL and IHRL with respect to the use of force. As explained by Terry, the fact that IHL makes way for IHRL, or vice versa. is the consequence of the relationship between the two bodies of law, their basic functions and purposes, and the system of interpretation of their parallel application referred to above, and not because of ‘restrictive military necessity’ arising from IHL, or any presumed superiority of one body of the law over the other. It is essentially a matter of ‘common sense’, as well as of sound legal interpretation to apply the paradigm which best fits the particular situation, notwithstanding the formal applicability of either regime. […] While admittedly it is comparatively easy to determine which paradigm is applicable […], and in some cases, the decision will not always be so clear, this does not mean that the problems which may arise are insolvable, or that rules appropriate to the situation cannot be devised and applied. These give precedence where precedence is due and provide for a reasonable

49

Targeted Killings Case, above n 49, para 26. Targeted Killings Case, paras 39–40. See, also, for example, the approach adopted by the Colombian Government, as explained by the Colombian Vice-Minister of Defence, the Honourable Sergio Jaramillo Caro, in Pfanner et al. 2008, p. 828.

50

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solution, which recognises the basic purposes of both bodies of the law, and takes account of both human rights and humanitarian requirements, without ignoring military and security considerations.51

10.6.4 Conclusions ‘Situational Control’ In this section, I called for ‘situational control’ to consider as a layer additional to ‘effective control’. This allows for a more context-sensitive approach to the question which rules of force—those under IHL or IHRL—should apply to military forces in carrying out their operations. In my view, this is both a pragmatic and legally sound approach that, if embraced by actors engaged in the fields of IHL and IHRL, would not only lead to the ‘right’ conclusions with respect to the appropriate level and degree of force, but would also contribute to ending “the incessant competition and jockeying for precedence by humanitarian law and human rights lawyers and advocates”.52

10.7

Conclusions

In terms of international law, two normative paradigms—law enforcement or hostilities—may govern the use of force by a State’s military forces. As ultimately only one normative paradigm can govern the use of force, a question that has become subject of debate over the past decades is what determines the ‘choice’ of one paradigm over the other. In view of the central theme of this book, I ask whether ‘control’ has a role to play in making that determination. I conclude that it does, in various ways. ‘Control’ plays an important role as a significant element characterizing and distinguishing both paradigms, at both a factual and legal level. More specifically, this concerns ‘effective control’ over territory or persons, which in the case of the normative paradigm of law enforcement will be required to enable a State to comply with its obligations under IHRL or other norms of international law relative to restoring or maintaining public order and security or to the treatment of persons, such as those found in the law of belligerent occupation. In contrast, the normative paradigm is characterized by the inability to effectively exercise effective control, as a result of hostilities. So, a State’s primary step in determining which paradigm applies is to establish whether it can be concluded that a State exercises jurisdiction

51

Gill 2013b, pp. 263–264. Other scholars adopt similar lines of argument. See, for example, Watkin 2004, p. 18; Kretzmer 2005; Lubell 2005, pp. 749 ff; Droege 2008; Watkin 2008; Garraway 2010, p. 510; Criddle 2012. 52 Gill 2013b, p. 56.

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over territory or persons. In Sect. 10.5, I examined when such is the case. In that respect, ‘effective control’ plays, at a minimum, an indicative or, at the most, a prescriptive role de iure in ‘choosing’ the normative paradigm of law enforcement as the framework governing the use of force. While helpful, this role of control is also somewhat limited, as it offers a rather static or rigid approach that is insensitive for the context at the actual scene of military operations. After all, that a State exercises effective control is no guarantee that its military forces will not be confronted with hostilities, in which case the use of force under the normative paradigm of law enforcement may reach its logical limits and, given the lack of actual control of the situation at hand, a shift to the normative paradigm of hostilities makes better sense, both factually and legally. In the alternative, the fact that a State may not be in a position to exercise effective control due to hostilities in an armed conflict does not mean that the tactical situation on the ground is such that its military forces are in a position where they could capture or arrest opponents instead of killing or wounding them. This is why, in Sect. 10.6, I call for an additional layer of control to consider in making the ‘choice’: ‘situational control’. In my view, considering ‘situational control’ implies that the specific context of the situation at hand is to be taken into account when thinking about the appropriate level and degree of force to be used. As such, ‘situational control’ functions as an essential ingredient for the application of a common-sense approach, as advocated by Terry, in determining the relationship between IHL and IHRL with respect to the use of force, thereby leaving their objects and purposes intact, without jeopardizing military and security considerations. Such a pragmatic and legally sound approach, if embraced by actors engaged in the fields of IHL and IHRL, would not only lead to the ‘right’ conclusions with respect to the appropriate level and degree of force, but would also contribute to reconcile the views of IHL and IHRL protagonists at the extreme ends of the military necessity-humanity debate.

References Articles, Books and Other Documents Ben-Naftali O, Michaeli KR (2003) ‘We must not make a scarecrow of the law’: a legal analysis of the Israeli policy of targeted killings. Cornell International Law Journal 36:233–292 Bowring B (2009) Fragmentation, lex specialis and the tensions in the jurisprudence of the European Court. Journal of Conflict and Security Law 14(3):1–14 Campanelli D (2008) The law of military occupation put to the test of human rights law. International Review of the Red Cross 871:653–668

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Cohen A (2018) Analysis of Israel’s Supreme Court Decision allowing lethal force in Gaza: the Case of Yesh Din vs. The Chief of the General Staff, HCJ 3003/18. https://www.justsecurity. org/57033/analysis-israels-supreme-court-decision-allowing-lethal-force-gaza/. Accessed 17 March 2018 Cohen A, Shany Y (2007) A development of modest proportions: the application of the principle of proportionality in the Targeted Killings Case. Journal of International Criminal Justice 5:310–321 Corn GS (2010) Mixing apples and hand grenades: the logical limit of applying human rights norms to armed conflict. Journal of International Humanitarian Legal Studies 1(1): 52–94 Council of Europe (1953) European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, opened for signature 4 November 1950, ETS 5 (entered into force 3 September 1953) (ECHR) Criddle E (2012) Proportionality in counterinsurgency: a relational theory. Notre Dame Law Review 87(3):073–1112 Dennis MJ (2005) Application of human rights treaties extraterritorially in times of armed conflict and military occupation, agora: ICJ Advisory Opinion on Construction of a Wall in the Occupied Palestinian Territory. American Journal of International Law 99(1):119–141 Dinstein Y (2009) The international law of belligerent occupation. Oxford University Press, Oxford Doswald-Beck L (2011) Human rights in times of conflict and terrorism. Oxford University Press, Oxford Droege C (2007) The interplay between international humanitarian law and international human rights law in situations of armed conflict. Israel Law Review 40:310–355 Droege C (2008) Elective affinities: human rights and humanitarian law. International Review of the Red Cross 90(871):501–548 Garraway CHB (2010) ‘To kill or not to kill’ - dilemmas in the use of force. Journal of Conflict and Security Law 14(3):499–510 Gasser H-P (2008) The protection of civilians. In: Fleck D (ed) The handbook of humanitarian law in armed conflicts. Oxford University Press, Oxford, pp 237–324 Gill TD (2013a) Chivalry, a Principle of the Law of Armed Conflict? In: Matthee M et al (eds) Armed conflict and international law: in search of the human face, liber amicorum in memory of Avril McDonald. T.M.C. Asser Press, The Hague, pp 33–51 Gill TD (2013b) Some thoughts on the relationship between international humanitarian law and international human rights law: a plea for mutual respect and a common-sense approach. Yearbook of International Humanitarian Law 16:251–266 Hampson F (2008) The relationship of international humanitarian law and human rights law from the perspective of a human rights treaty body. International Review of the Red Cross 90(871):549–572 Hampson F (2011) Direct participation in hostilities and the interoperability of the law of armed conflict and human rights law. In: Pedroso RA, Wollschlaeger DP (eds) International Law and the Changing Character of War. Naval War College, Newport, pp 187–213 Hays Parks W (2010) Part IX of the ICRC’s “Direct participation in hostilities” Study: no mandate, no expertise, and legally incorrect. New York University Journal of International Law and Politics 42:769–830 ICRC (2010) Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law. Report written by Nils Melzer. See https://www.icrc.org/en/ publication/0990-interpretive-guidance-notion-direct-participation-hostilities-underinternational ICRC (2012) Expert meeting ‘belligerent occupation and other forms of administration on foreign territory’. Report prepared and written by Tristan Ferraro Jöbstl H (2018) Lost between law enforcement and active hostilities: a first glance at the Israeli Supreme Court Judgment on the use of lethal force during the Gaza border demonstrations. https://www.ejiltalk.org/lost-between-law-enforcement-and-active-hostilities-a-first-glance-at-

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the-israeli-supreme-court-judgment-on-the-use-of-lethal-force-during-the-gaza-borderdemonstrations. Accessed 17 March 2020 Kleffner J (2011) Human rights and humanitarian law: general issues. In: Gill TD, Fleck D (eds) The handbook of the international law of military operations. Oxford University Press, Oxford, pp 51–77 Kretzmer D (2005) Targeted killing of suspected terrorists: extra-judicial executions or legitimate means of defence? European Journal of International Law 16(2):171–212 Lubell N (2005) Challenges in applying human rights law to armed conflict. International Review of the Red Cross 87(860):737–754 Melzer N (2008) Targeted Killings in International Law. Oxford, Oxford University Press Melzer N (2010) Keeping the balance between military necessity and humanity: a response to four critiques of the ICRC’s Interpretive Guidance on the notion of direct participation in hostilities. New York University Journal of International Law and Politics 42:831–916 Melzer N (2011) Conceptual distinction and overlaps between law enforcement and the conduct of hostilities. In: Gill TD, Fleck D (eds) The handbook of the international law of military operations. Oxford University Press, Oxford, pp 33–49 Meron T (2000) The humanization of humanitarian law. American Journal of International Law 94:239–278 Meyrowitz H (1972) Le droit de la guerre et les droits de l’homme. Revue de droit public et de la science politique en France et à l’étranger 5:1059–1105 Milanovic M (2011) Norm conflicts, international humanitarian law, and human rights law. In: Ben-Naftali O (ed) International humanitarian and international human rights law: Pas de Deux. Oxford University Press, Oxford, pp 96–125 Ni Aoláin F (2007) The no-gaps approach to parallel application in the context of the War on Terror. Israel Law Review 40:563–591 Osiel M (2009) The end of reciprocity: terror, torture, and the law of war. Cambridge University Press, Cambridge Pfanner T et al (2008) Interview with Sergio Jaramillo Caro. International Review of the Red Cross 90(872):823–822 Provost R (2002) International human rights and humanitarian law. Cambridge University Press, Cambridge Roberts A (2005) The end of occupation: Iraq 2004. International Comparative Law Quarterly 54:27–48 Sassòli M, Olson L (2008) The relationship between international humanitarian and human rights law where it matters: admissible killing and internment of fighters in non-international armed conflicts. International Review of the Red Cross 90(871):599–627 Schabas W (2007) Lex specialis? Belt and suspenders? The parallel operation of human rights law and the law of armed conflict, and the conundrum of jus ad bellum. Israel Law Review 40(2):592–613 Smith R (2005) The utility of force: the art of war in the modern world. Allen Lane United Kingdom Ministry of Defence (2005) Manual on the law of armed conflict. Oxford University Press, Oxford United States Department of the Army (1956) FM 27–10 The law of land warfare United Nations Human Rights Committee (UNHRC) (2004) General comment no. 31 [80], The nature of the general legal obligation imposed on States Parties to the Covenant, 26 May 2004, CCPR/C/21/Rev.1/Add.13 Watkin K (2004) Controlling the use of force: a role for human rights norms in contemporary armed conflict. American Journal of International Law 98:1–34 Watkin K (2008) Maintaining law and order during occupation: breaking the normative chains. Israel Law Review 41:175–200 Zwanenburg M (2004) Existentialism in Iraq: Security Council Resolution 1483 and the law of occupation. International Review of the Red Cross 856:745–769

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Cases ECtHR, Loizidou v. Turkey, Preliminary Objections, 23 March 1995, App. No. 40/1993/435/514 ECtHR, Cyprus v. Turkey, Judgment, 10 May 2001, App. No. 25781/94 ECtHR, Bankovic and Others v. Belgium and 16 Other Contracting States, Judgment, 12 December 2001, App. No. 52207/99 ECtHR, Ilascu and Others v. Moldova and Russia, Judgment, 8 July 2004, App. No. 48787/99 ECtHR, Issa v. Turkey, Judgment, 16 November 2004, App. No. 31831/96, ECtHR ECtHR, Öcalan v. Turkey, Judgment, 12 May 2005, App No. 46221/99 ECtHR, Nachova v. Bulgaria, Judgment 6 July 2005, App. No. 43577/98 ECtHR, Al-Skeini et al v. United Kingdom, Judgment, 7 July 2011, App. No. 55721/07 ECtHR, Hassan v. UK, Judgment, 16 September 2014, App. No. 29750/09 ECtHR, Jaloud v. Netherlands, Judgment, 20 November 2014, App. No. 47708/08 IACommHR, Response of the United States to Request for Precautionary Measures (Detainees in Guantanamo Bay, Cuba), 15 April 2002, 41 ILM 1015 IACommHR, Franklin. Guillermo Aisalla Molina v. Ecuador, Admissibility, 21 October 2010, Case IP-02, Report No. 112/10, Inter-Am.C.H.R., OEA/Ser.L/V/II.140 Doc. 10 ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, ICJ Reports 1996 ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Rep 2004 ICJ, Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, 19 December 2005, ICJ Rep 2005 Israel HCJ, The Public Committee Against Torture in Israel v. The Government of Israel, Judgment, 11 December 2005 (Targeted Killings Case) UN Human Rights Committee (HRC), UN Human Rights Committee: Concluding Observations: Israel, 21 August 2003, CCPR/CO/78/ISR United States Military Tribunal, Nuremberg, United States v. Wilhelm List and others (the Hostages Trial), Judgment, 19 February, 1948, The United Nations War Crimes Commission, Law Reports of Trials of War Criminals, vol. VIII, 1949

Treaties American Convention on Human Rights, opened for signature 22 November 1969, O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123 (entered into force 18 July, 1978), reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 25 (1992) International Covenant on Civil and Political Rights, opened for signature 16 December 1966, UNTS 999 (entered into force 23 March 1976/28 March 1979) Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims in International Armed Conflicts, opened for signature 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978)

Lieutenant-Colonel Dr. Eric Pouw LL.M. is Legal Advisor in the Netherlands Army Legal Service. In 2013, he defended his Ph.D. thesis, supervised by Terry Gill, entitled ‘International Human Rights Law and the Law of Armed Conflict in the Context of Counterinsurgency - With a Particular Focus on Targeting and Operational Detention’, at the University of Amsterdam.

Chapter 11

Controlling Migrants at Sea During Armed Conflict Martin D. Fink and Wolff Heintschel von Heinegg

Contents 11.1 Introduction...................................................................................................................... 220 11.2 The Laws of Armed Conflict .......................................................................................... 221 11.2.1 The Law of Blockade......................................................................................... 222 11.2.2 The Duty to Rescue at Sea Under LOAC ......................................................... 225 11.3 The Duty to Rescue Under the International Law of the Sea ....................................... 226 11.4 UN Mandate .................................................................................................................... 228 11.4.1 The Case of Libya.............................................................................................. 228 11.5 Conclusions...................................................................................................................... 230 References .................................................................................................................................. 231

Abstract Overseas migrant flows during armed conflict can present challenges for naval forces in terms of controlling the maritime operational area. Although armed conflict, refugees, migrants and displaced persons appear inherently interconnected subjects, they are separate issues when viewed from a legal perspective. Controlling the maritime areas, for instance by means of blockade operations, poses questions on how to deal with the duty to rescue migrants at sea. The laws of armed conflict at sea do not provide for rules that collides both issues. This chapter explores some of the questions that arise from the situation of migrant flows within maritime operational areas.

M. D. Fink University of Amsterdam, Amsterdam, The Netherlands e-mail: md.fi[email protected] W. Heintschel von Heinegg (&) Europa-Universität, Viadrina, Frankfurt (Oder), Germany e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2021 R. Bartels et al. (eds.), Military Operations and the Notion of Control Under International Law, https://doi.org/10.1007/978-94-6265-395-5_11

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Keywords Law of blockades Migrants Duty to rescue Rendering assistance Libya Second Geneva Convention







The authors have known Terry Gill for a considerable time and they have both profited from his contributions to numerous discussions and academic works on a variety of burning issues covering in particular jus ad bellum, jus in bello and operational law. Fortunately, the relationship with Terry Gill eventually changed from a predominantly professional to a personal one that made every cooperation with him even more enjoyable. The authors take pride in stating that Terry Gill has always been a highly professional and challenging colleague from whose wisdom and insight they continue to profit. They are certain that this will continue in the future. This contribution to the liber amicorum dedicated to him is but a humble expression of appreciation.

11.1

Introduction

Migrant flows in the Mediterranean Sea probably characterize most the effects on the maritime dimension of current conflicts in Africa and the Middle East. Apart from being engaged in armed conflict and maritime security operations from and in the Mediterranean basin, States continue to endeavour minimizing both the root causes and human tragedies for migrants crossing the sea to Europe. Also non-governmental organisations (NGOs) have stepped in, next to States and commercial shipping, aiming to help save migrants from the perils of the sea. Operational and legal challenges exist when naval operations engaged in armed conflict at sea and migrant flows occur simultaneously and in the same geographical maritime space. Operation challenges might arise over controlling maritime space de-conflicting areas of operations and civilians. Legal questions may arise as to what extent naval forces have responsibilities over migrants that flow through the operational area under their control. Although in the current situation in the Mediterranean Sea no public evidence appears to exist that migrant flows towards Europe conflict with the main maritime operational areas, the issue is not wholly theoretical. As demonstrated during the naval operations in the Libya campaign in 2011, migrants set off for Europe via the sea while naval forces were supporting the protection of civilians mandate in Libya and enforcing a UN mandated arms embargo off the coast of Libya.1 In 2012, the Council of Europe published an investigation titled ‘Lives lost in the Mediterranean Sea; who is responsible?’,2 concerning the so-called left-to-die boat case. A boat packed with migrants of which 63 people died at sea off the coast of Libya during the start of the coalition and

1

See Fink 2011a. Council of Europe, Parliamentary Assembly 2012, Resolution 1872 (2012).

2

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NATO operations Odyssey Dawn and Unified Protector. The investigation highlighted the lack of clarity as regards the responsibility with regard to warships under NATO command in respect of effecting rescues at sea. Although armed conflict, refugees, migrants and displaced persons appear inherently interconnected subjects, they are separate issues when viewed from a legal perspective. Rescuing persons at sea has a particular legal framework that primarily centres on the notion of the duty to render assistance and also raises obligations under human rights law. The legal framework for armed conflict at sea focuses on armed conflict. International law has, however, neither a specific framework that deals with migrants during armed conflict at sea, nor does it contain provisions within the different applicable legal frameworks that provide clear answers on how to deal with migrants during armed conflict. Migrant flows amidst armed conflict at sea can, therefore, raise several questions. One particular question is what legal obligations for naval forces exist to deal with or control migrants at sea during armed conflict and control other vessels aiming to assist migrant vessels. We will reflect on this issue from three perspectives. The first is the obligations of a belligerent Party under the laws of armed conflict (LOAC) towards migrants in a situation of an international armed conflict. The second perspective relates to the obligations that may arise from the international law of the sea during armed conflict. And third is the obligations that may arise from a UN mandate. This last perspective will be highlighted in the context of the case of the Libya operations in 2011.

11.2

The Laws of Armed Conflict

Although armed conflict and persons that are forced to leave their habitual place, such as refugees, displaced persons or migrants, seem interconnected, there are only a few provisions in LOAC that deal with some of these categories of persons.3 With regard to migrants in particular, LOAC, being the primary legal framework for military operations during armed conflict, does not provide specific provisions.4 Nonetheless, migrants qualify as civilians and therefore fall under the protective rules applicable to them. Starting from a broad view regarding this protection, the principles of distinction and humanity provide the basic guarantees to protect civilians from armed violence during armed conflict in which they should not be made the object of an attack and be treated humanely. The armed forces’ responsibilities with regard to refugees and displaced persons lie mainly in de-conflicting 3

See also Gieseken 2017. The International Organisation for Migration (IOM) has defined a migrant as follows: any person who is moving or has moved across an international border or within a State away from his/her habitual place of residence, regardless of (1) the person’s legal status; (2) whether the movement is voluntary or involuntary; (3) what the causes for the movement are; or (4) what the length of the stay is. At: www.iom.int/who-is-a-migrant. Accessed 31 March 2020.

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battlespace, refraining from destroying objects that are indispensable for the civilian population,5 humane treatment and allowing humanitarian relief for the civilian population by others than the belligerent Parties.6 As such, rules exist on targeting and detention and on the coordination of warfare with regard to the transfer or displacement of the civilian population.7 In the maritime dimension, the general principles of distinction and humanity apply equally. Furthermore, the law of naval warfare, a specialized subset of LOAC, applies during international armed conflict. Unlike the land dimension, the law of naval warfare does not contain specific provisions dealing with the transfer or displacement of persons. This is an obvious result of the characteristics of the maritime dimension, where no human permanently resides and where everyone by definition is a transient. Even though a specific framework for migrants at sea is absent in LOAC, migrants can affect the interpretation of obligations of belligerents at sea under LOAC and may, therefore, pose certain legal challenges. This could be the case when a State has control over a maritime area, or through obligations that arise in relation to persons that are at sea. In the first situation, one can consider the impact of migrant flows on the establishment of a belligerent blockade. In the second situation, one can consider the duty to rescue at sea under Article 18 of the Second Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea of 1949 (GCII). Both situations will be dealt with further below.

11.2.1 The Law of Blockade ‘A blockade is a belligerent operation to prevent vessels and/or aircraft of all nations, enemy and neutral, from entering or exiting specified ports, airports, or coastal areas belonging to, occupied by, or under the control of an enemy nation.’8 For a blockade to be lawful and valid, it needs to be declared and notified, applied impartially and effectively enforced. The requirement of impartiality means that the blockade must be equally enforced vis-à-vis all vessels, whether belligerent or neutral.9 Moreover, ‘blockades, in order to be binding, must be effective’, which is

5

Article 54 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, opened for signature 12 December 1977, 1125 UNTS 3 (entered into force 7 December 1970) (AP I). 6 AP I, above n 5, Article 70. 7 Article 49, Convention (IV) Relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) and AP I, above n 5, Article 85. 8 Heintschel von Heinegg 2015. 9 See Article 5 of the Declaration concerning the Laws of Naval War 1909, opened for signature 26 February 1909 (London Declaration).

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a question of fact.10 Interpreting these requirements for lawfully enforcing a blockade in connection with migrant flows brings two particular issues to the fore. First is the impact of migrant flows on the requirements of impartiality and effectiveness. Second is the issue of rescue vessels aiming to help migrants at sea within the blockaded area. Historically, the purpose of the requirement of effectiveness was to ensure that no blockade was announced without actually enforcing it, where States practiced the so-called paper blockade. According to the 1856 Paris Declaration and Article 2 of the 1909 London Declaration, a blockade must be ‘maintained by a force sufficient to really prevent access to the coast of the enemy’. This, however, ‘does not mean that all […] vessels must in fact be prevented from either entering or leaving the blockaded area. Rather, it is sufficient if the maintaining force is of a strength or nature that there is a high probability that ingress to and egress from the blockaded area will be detected, and prevented by the blockading power.’11 A blockade does not, therefore, become instantly unlawful and invalid when some vessels manage to cross the blockade line. The general requirement is that the blockading State is maintaining a credible force for factually maintaining a blockade at sea with sufficient probability that vessels will be detected and captured. Effectiveness is furthermore measured by additional factors, such as the means available to establish and enforce a blockade and tactical and strategic success in the purpose of the blockade. Apart from the so-called paper blockades no blockade has been rendered unlawful and invalid because of its lack of operational effectiveness at sea. Arguably, a blockade will not be rendered unlawful when several migrant boats manage to pass. A point of discussion, however, remains whether a blockade is actually effective when a much-used migrant route goes through the blockaded area, potentially allowing hundreds of persons to leave the blockaded coast or port. The requirement of impartiality obliges the blockading force not to make any distinction between type of vessel or flag. As a starting point, this requirement leaves no room for dispensation, not even for migrant boats. As blockades are generally considered economic or military in purpose and will also have the intent to prevent possible enemy individuals from slipping away via the sea, upholding impartiality continues to makes sense from a military operational perspective. While effectiveness allows for room to pass without the blockade becoming invalid, impartiality limits the possibility to allow a complete exception for migrant vessels. Furthermore, even if one would argue that migrant vessels should be allowed to pass as an exception to the requirements of effectiveness and impartiality, most likely they would not want to pass the blockade but steer towards the blockading force in order to be rescued. This forces the belligerent State also to find a place of safety and to leave the blockade lines. A steady flow of migrants at sea leaving the

10

Paris Declaration Respecting Maritime Law 1856, opened for signature 16 April 1856 (entered into force 16 April 1856); Article 2 of the London Declaration; International Institute of Humanitarian Law 1995 (San Remo Manual), para 95. 11 Heintschel von Heinegg 2015, p. 33.

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coastline may, therefore, hamper blockade operations and ultimately, in a more indirect manner, its effectiveness. With regard to relief shipping aiding migrants at sea, first of all the customary rules on the establishment and execution of blockades have until so far not provided an explicit obligation to allow relief shipping through a belligerent blockade similar to the land rules regarding humanitarian relief.12 The San Remo Manual (SRM) has, however, added two sections in the Manual with regard to relief shipping and blockades that in essence translates Article 70 API into the maritime dimension. Section 103 and 104 SRM state: 103. If the civilian population of the blockaded territory is inadequately provided with food and other objects essential for its survival, the blockading party must provide for free passage of such foodstuffs and other essential supplies, subject to: (a) the right to prescribe the technical arrangements, including search, under which such passage is permitted; and (b) the condition that the distribution of such supplies shall be made under the local supervision of a Protecting Power or a humanitarian organization which offers guarantees of impartiality, such as the International Committee of the Red Cross. 104. The blockading belligerent shall allow the passage of medical supplies for the civilian population or for the wounded and sick members of armed forces, subject to the right to prescribe technical arrangements, including search, under which such passage is permitted.

The mentioned sections provide an opportunity for allowing relief shipping to pass, without breaching the core requirements. Even if the said sections are under debate on whether they are in fact a rule of law, one can hardly imagine that the development of the law is not going in the direction that seeks to underline humanitarian considerations in sieges from the sea. The mentioned sections of the SRM came under discussion with regard to practice during the Mavi Marmara incident in May 2010, where a flotilla of vessels said to be relief shipping tried to pass the Israeli blockade off the coast of Gaza. No definitive view, however, on the acceptance of these sections was drawn from the incident.13 The mentioned sections of the Manual have also surfaced with regard to the humanitarian disaster in Yemen that was felt to be caused by naval enforcement operations off the coast of Yemen, by many erroneously named a blockade.14 Arguably, a general view does exist that relief shipping should be allowed to pass a blockade. Based on the abovementioned SRM sections, the blockading force may permit, subject to technical arrangements and control measures, the passing of relief shipping without breaching the requirements of impartiality and effectiveness, if their purpose is to provide aid to migrants present in the blockaded port or territory or to prevent them from leaving the blockaded area via the sea. It needs to be emphasized that any such transport would be subject to an authorization by the blockading power. This follows from the fact that even relief consignments destined to the civilian population of the 12

See Akande and Gillard 2017. See Fink 2011b. 14 See Fink 2017. 13

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blockaded area may only be undertaken if they are in accordance with the legitimate requirements imposed by the blockading power. Relief shipping focuses its relief on the situation on land that might perhaps diminish the need for civilians to migrate out of the country. In the context of maritime migrant flows, one could argue that relief shipping might also come to the aid and rescue of migrants already at sea. If one were to accept this, relief shipping in this context could, for instance, be vessels of NGOs that focus on this kind of aid and rescue. Those ships do not dock in port and offload their relief items, but linger at sea within the blockaded area or near the blockade line. In any case, both situations presuppose that relief shipping is able to pass the blockade line. It is, however, far from settled whether relief vessels must be allowed to enter or leave the blockaded area in order to transport migrants to a place of safety. It is clear from the above that the operational issues at sea between the three actors of migrants, blockading warships and relief vessels at sea pose operational, but also legal challenges on how to interpret the law of blockade. These challenges may lead to different conclusions. One conclusion might be that relief shipping should be allowed in a controlled manner to pass in order to minimize migrant vessels coming out to sea, which underlines the need for the abovementioned SRM sections to become accepted as law. The impact on the effectiveness of maintaining a blockade could form a basis to argue that relief vessels are allowed to pass through a blockade to deal with migrant already at sea.

11.2.2 The Duty to Rescue at Sea Under LOAC With regard to the LOAC rules that relate to persons at sea, Article 18 GCII contains the duty to take all possible measures to search for and collect the wounded, sick and shipwrecked at sea after each engagement. In the context of rescuing migrants it is interesting to note that the scope of application of this provision is in fact limited. For the purpose of the application of the Second Geneva Convention, Article 13 GCII limits the scope of wounded, sick and shipwrecked to members and militias of the armed forces of the parties to the conflict, members of the merchant marine of the parties to the conflict and civilians under the condition of a levee en masse. Article 18 GCII, therefore, does not apply to civilians that do not belong to the mentioned groups. Although migrants can be considered civilians from a LOAC point of view, they will most likely not be considered civilians that fall within the mentioned categories. They cannot, therefore, benefit from the duty to rescue under the Second Geneva Convention. The ICRC’s 2017 Commentary on Article 13 GCII appears to except the limited approach to the protection of civilians under this duty and mentions that either general principles of international law or other conventions cover the protection of civilians at sea:

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At the Diplomatic Conference in 1949, it was emphasized that ‘it is of course clearly understood that those not included in this enumeration [of Article 13] still remain protected, either by other Conventions, or simply by the general principles of International Law’. Thus, Article 13 cannot in any way entitle a Party to a conflict to fail to respect a wounded, sick or shipwrecked person, or to deny the requisite treatment, even where the person does not belong to one of the categories specified in it.15

Although Article 8(b) API mentions that shipwrecked persons are ‘persons, whether military or civilian, who are in peril at sea or in other waters as a result of misfortune affecting them or the vessel or aircraft carrying them and who refrain from any act of hostility’, this definition must still be interpreted within the boundaries of Article 13 GCII.16 In sum, strictly applied and as it stands today, the law of naval warfare and the protective measures of LOAC at sea would not allow exceptions for vessels transporting migrants out of the blockaded area. The conclusion from the LOAC section appears to be that naval forces of a blockading force off an enemy coast have neither an obligation to take in displaced persons that come out to sea, nor do they have an obligation to allow other vessels that want to come out and help vessels with migrants at sea or on land to pass a blockade. Today, however, humanitarian considerations impact on the interpretation of the law of naval warfare. Arguably, the law of naval blockade could be interpreted as allowing for exceptions to the principles of impartiality and effectiveness, provided the sole purpose of the vessels authorized to cross the blockade line is to transport migrants to a place of safety. This, however, is far from generally accepted.

11.3

The Duty to Rescue Under the International Law of the Sea

As the 2017 Commentary mentions, the protection of persons at sea during armed conflict might be protected through other conventions. With regard to those conventions, most notably the conventions of the international law of sea, one must firstly conclude that, as with LOAC, specific rules on dealing with migrants and migrant shipping at sea do not exist. The nature of migrant shipping however small boats not suitable for ocean transport over far distances overly packed with persons - bring them within the realm of vessels that could easily come in danger at sea. It is not the fact that persons are migrants, but the fact that they are in distress at sea that causes the obligations within the international law of the sea to apply.17 The key obligation with regard to persons at danger at sea is the mariner’s duty to render 15

ICRC 2017, Commentary of Article 13 GC II, para 1503. Papanicolopulu appears to take a different view to include all civilians. Papanicolopulu 2016. 17 As this chapter focuses on migrants at sea amidst armed conflict rather than the issue of migrants crossing into another State via the sea, the legal challenges of bringing migrants to a place of safety are not discussed here. See on the rights to stop migrant vessels e.g. Klein 2014. 16

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assistance. It is codified in several international conventions and considered as a rule of international customary law.18 Article 98 UNCLOS poses an obligation for States to ensure that their flagged vessels will abide the duty to render assistance. This duty applies at all times and for every vessel, including warships.19 One issue that arises from the duty to render assistance during international armed conflict is the issue of the duty to render assistance for merchant shipping vis-a-vis a belligerent blockade or naval operational zones. Both zones are notified through the usual maritime notification channels in order for all maritime traffic to know where military operations are ongoing at sea. The limitation to the duty is the potential danger of the rescue operation to one’s own vessel, crew or passengers. In the context of a blockade, where breaching a blockade allows the blockading State to use force against the blockade breaker, from the perspective of the rescuing merchant vessel, arguably, the duty is limited to exposing oneself to the consequences of breaching a blockade. Passing the blockaded line would not go without permission. From the perspective of the blockading force, it is interesting that the same obligation of rendering assistance lies with the commanders of the warships of the blockading force. Albeit not legal, but an operational challenge of balancing between blockading operations and the duty to rescue, therefore, exists. Legally, military operational considerations are not a valid reason not to render assistance, unless the action causes danger to warship, crew or passengers. The duty to render assistance does not mention ‘to take all possible measures’ that is translated by the ICRC-Commentary as ‘what would be expected of a reasonable commander in the given circumstances,’ and has always included some room for discussion with regard to military operational circumstances.20 Migrants in need of rescue could challenge and derail blockade operations by sinking their vessels close to the blockading force, forcing them to start rescue operations. As operational commanders need to consider enforcing a blockade without derailing into migrant rescue operations, practically, and with the consent of the blockading force, merchant vessel might move through the blockade to assist, without breaching the requirement of impartiality. Consent of the blockading force, in such a case, would merge the obligation of the blockading force and the duty to render assistance.

18

E.g. the International Convention for the Safety of Life at Sea, opened for signature 1 November 1974, 1184 UNTS 2 (entry into force 25 May 1980) (SOLAS Convention) and the International Convention on Maritime Search and Rescue, opened for signature 27 April 1979, 1405 UNTS (entry into force 22 June 1985) (SAR Convention). 19 Papanicolopulu 2016. 20 ICRC 2017, Commentary of Article 18 GC II, paras 1634–1652.

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UN Mandate

Next to LOAC and the international law of the sea, a third legal factor of note with regard to the issue of migrants at sea during armed conflict is a UN mandate. Migrant flows and naval operations coexist in the East and Central Mediterranean Sea. With regard to the latter area, in his report from August 2018, the UN Secretary-General noted that 91 per cent of the migrants that arrive in Italy come from the Central Mediterranean route departing from Libya.21 During the Arab Spring crisis in 2011, States, individually and within coalitions, operated naval forces in that area. Since 2015, EU-military operation EUNAVFOR MED (operation Sophia), operates in that area.22 Although the UNSC adopted several resolutions with regard to both conflict and the migrant situation, interestingly, no Chapter VII resolution has been adopted in which the Council explicitly authorized a tasking for naval forces to take up search and rescue operations. Naval involvement with regard to migrant has not been based on particular authorization from the UNSC, but rather on other legal frameworks, the international law of the sea in particular. This makes sense as a UN mandate will usually come in the form of an authorization and not an obligation. States can decide whether they want to take part in the enforcement of such resolution but cannot be obliged to do so. Arguably, therefore, a resolution that authorizes search and rescue operations that are within the existing other frameworks would not add anything to the obligations already existing under the international law of the sea. It would only make sense where SAR operations are authorized within the territorial waters of another State, and more politically, commit States to endeavour dealing with migrants while conducting military operations. During the Libya crisis, the UNSC was offered an opportunity to deal migrants during armed conflict.

11.4.1 The Case of Libya The case of the naval operations off the coast of Libya is interesting because migrant flows and naval operations have occurred in the same maritime area. The naval operations conducted with regard to Libya can be divided into two phases. The first phase deals with the naval operations that took place during the armed conflict against the Ghaddafi-regime in 2011. The second phase deals with the naval operations that are conducted as a reaction to the increased migrant flows from the central southern Mediterranean. Although this phase is outside a situation of armed

21

UN Secretary General (2018) UN Doc. S/2018/807, para 3. Council Decision (CFSP) 2015/778 of 18 May 2015 on a European Union military operation in the Southern Central Mediterranean (EUNAVFOR MED), available https://eur-lex.europa.eu/ legal-content/EN/TXT/?uri=CELEX%3A32015D0778. Accessed 31 March 2020.

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conflict, it is still interesting to mention it briefly in the context of how a UN mandate has been used with regard to migrants. The primary resolutions with regard to the Libya conflict in 2011 were SC Resolutions 1970 and 1973 (2011). These resolutions authorized the protection of civilians through military means in Libya, but did not specifically address the issue of migrants at sea, nor did it deal with migrants. The naval enforcement measures off the coast of Libya were not a belligerent blockade but an inspection regime for goods and certain specific persons, which meant that ships passing the embargo-fleet would not render the naval operation unlawfully established. Next to maritime embargo operations, the NATO fleet was tasked with traditional military naval activities, such as naval gunfire support and minesweeping. The migrant-boat tragedies that occurred during the early stages of the coalition and NATO operations in this part of the Mediterranean came under scrutiny in 2011 when the European Council investigated the so-called left-to-die boat. The boat (a small rubber dinghy) left Libya in the end of March 2011 and washed up on the Libyan shores two weeks later leaving 63 people dead at sea. At sea, the boat came into trouble and managed to contact persons ashore in Italy that transferred the emergency call to the rescue coordination centre, who then trickled the information to vessels in the area. It was alleged that NATO vessels and helicopters where close, but did not respond to the situation. In a letter from NATO in response to questions of the European Council investigator, it stated: The primary mission of our naval task force was to prevent the flow of weapons to Libya, enforcing the UN arms embargo, a task that we accomplished successfully, despite coming under fire on many occasions from pro-Gadhafi forces. At the time of this incident in late March, only eight vessels in the Mediterranean were under NATO command, covering an operations area of over 61,000 square nautical miles. They actively complied with all their obligations under international law, particularly SOLAS.23

With this paragraph, NATO stressed its mission, the vastness of the operational area and its resources. By stressing its mission, NATO underlined that it was not there with a task to deal with migrants and only felt itself obligated to deal with them under the framework of the international law of the sea. By stressing the vastness of the maritime operational area in combination with its limited resources at that time, NATO pointed out that it could not be hold accountable for everything that occurred in that area. After Gaddafi’s death in October 2011 that winded down the military operations, subsequent resolutions were adopted altering the content of the embargo, to include also the stopping of crude oil out of Libya.24 They did not, however, authorize measures specifically with regard to the migrant flows. As migrant flows in the Southern Central Mediterranean Sea increased drastically in the years following, and while the resolutions adopted in the context of the

23 Froh 2012. Appendix 2 to Report, Doc. 12895, 5 April 2012, Council of Europe, Parliamentary Assembly 2012, above n 2. 24 See UN Security Council (2013) Resolution 2095 (2013), UN Doc. S/RES/2095 and UN Security Council (2014) Resolution 2174 (2014) UN Doc. S/RES/2174.

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Libya conflict remained in place, the UNSC adopted resolutions 2240 (2015) and 2292 (2016). These resolutions form the basis for EU naval operation Sophia and Triton. In the meanwhile, NATO changed its anti-terrorism operation Active Endeavour into a broader based maritime security operation, Sea Guardian. Although the resolutions directed attention and resources through state commitment, the UNSC did not authorize more than what is already obliged under UNCLOS. With regard to legal authorities, the preamble of resolution 2240(2015) mentions that UNCLOS is the applicable legal framework. But the resolution does not specifically mandate searching for and rescuing migrants at sea. Sophia is not a coordinated rescue operation to ensure that all boat-migrants in need will be picked up. Instead, it focuses on the root-causes of the migrant flow issue. Sophia, therefore, focuses on disrupting the business model of migrant smugglers and traffickers, by monitoring and gathering intelligence, seizure of vessels that are used for human smuggling and trafficking, and training of the Libyan coastguard authorities in different maritime areas of operation. Next to this, the operation has supporting tasks in implementing the Libya arms embargo adopted in 2011. Nevertheless, it also performs rescue operations when it encounters persons in distress at sea, all of which find their legal basis in the international law of the sea. The mentioned UN Secretary-General reports notes on this: 11. Although the operation’s mandate does not comprise a search and rescue operation, all of its assets are bound by international law to respond to incidents pertaining to the International Convention for the Safety of Life at Sea and have the duty to disembark survivors and deliver them to a place of safety. The operation reports that it complies with the principle of non-refoulement, as contained in the Convention relating to the Status of Refugees, as well as international human rights and humanitarian law. Therefore, no person rescued or apprehended by the operation has been handed over to the authorities of non-European Union member States or disembarked in non-European Union member States.25

Also the other existing EU operation, Triton, is not a SAR operation, but essentially a border control mission. With regard to rescue operations at sea, and similar as Sophia, Belvilacqua states that ‘In practice, Triton remained first and foremost a border control operation, whereas rescue activities continue to be incidental and a secondary task of this primary mission.’26

11.5

Conclusions

One of the conclusions that the Council of Europe investigator draws on the left-todie boat case is ‘…that there was a failure by NATO and individual member States involved in planning Operation Unified Protector off the Libyan coast. It was

25

UN Secretary General (2018) UN Doc. S/2018/807, para 11. Bevilacqua 2017, 169.

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foreseeable that there would be an exodus of people fleeing the country, including by the dangerous sea route.’27 NATO’s response to the incident was to include this in its lessons learned cycle. Warfare and refugees, migrants and displaced persons are interconnected. In current conflicts the maritime dimension is often sought to flee from armed conflict ridden regions hoping to find a better place. As such, the conclusion to plan for these occasions is a very sound one. In terms of applicable international law with regard to controlling migrants at sea, this chapter has touched upon the issue that LOAC at sea does not provide rules on the special protection of migrants during armed conflict. They neither belong to any of the categories of protected persons, nor are the belligerents obliged to provide for their safe transport to places of safety. This holds particularly true for situations of naval blockades. Through other frameworks of law, the duty to render assistance at sea under UNCLOS and the applicable IMO Conventions are of limited practical relevance in this context. Three different frameworks of international law were briefly considered in this chapter. But it could have been even more frameworks. Clearly, human rights law also has a place in the legal discussion of what control over a maritime area of operations means for migrants at sea. The method of thought that it is necessary to consider different applicable legal frameworks in an integral manner to support the planning and conduct of military operations has been one that professor Gill has been great proponent of. One of the many thoughts professor Gill added to the field of international law with regard to military operations has been in particular to shape the sub-discipline of international law of military operations (ILMO) and to seek understanding in ‘how various areas of law interact with each other and influence and regulate and shape the way in which contemporary military operations are planned and conducted.’28 In this regard he has been the ‘flux capacitator’ himself by enabling his military law students to make the method their own and apply it in military operations in all military dimensions, which has greatly benefitted legal support to military operations.

References Akande D, Gillard E (2017) Promoting compliance with the rules regulating humanitarian relief operations in armed conflict: some challenges. Israel law Review 50(2):119–137 Bevilacqua H (2017) Exploring the ambiguity of Operation Sophia between military and search and rescue activities. In: Andreone G (ed) The Future of the Law of the Sea. Springer, pp 165– 189 Council of Europe, Parliamentary Assembly (2012), Resolution 1872 (2012) ‘Lives lost in the Mediterranean Sea: Who is responsible?’ Available online at http://www.assembly.coe.int/nw/ xml/XRef/Xref-XML2HTML-en.asp?fileid=18234&lang=en. Accessed 31 March 2020 Fink M (2011a) UN-mandated maritime arms embargo operations in Operation Unified Protector. The Military Law and Law of War Review 50(1–2):237–260

27

Council of Europe, above n 2, para 11. Gill and Fleck 2015, p. 5.

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Fink M (2011b) Contemporary views on the lawfulness of naval blockades. Aegean Review of the Law of the Sea and Maritime Law 1(1):191–205 Fink M (2017) Naval blockade and the humanitarian crisis in Yemen. Netherlands International Law Review 65(2):291–307 Froh R (2012) Letter from Mr Richard Froh, Deputy Assistant Secretary General, Operations Directorate of NATO, to Ms Strik, rapporteur of the Committee on Migration, Refugees and Displaced Persons, dated 23 April 2012 Gieseken H (2017) The protection of migrants under international humanitarian law. International Review of the Red Cross 89(1):121–152 Gill TD, Fleck D (2015) Concept and sources of the international law of military operations. In: Gill TD, Fleck D (eds) The Handbook of the International Law of Military Operations. Oxford University Press, Oxford, pp 3–13 Heintschel von Heinegg W (2015) Blockade. Max Planck Encyclopaedia of International Law (MPEIL), MN 1 International Committee of the Red Cross (ICRC) (2017) Commentary on the Second Geneva Convention: Convention (II) for the amelioration of the condition of wounded, sick and shipwrecked members of armed forces at sea. Cambridge University Press, Cambridge International Institute of Humanitarian Law (1995) Doswald-Beck L et al (eds) San Remo Manual on International Law Applicable to Armed Conflicts at Sea. Cambridge University Press, Cambridge Klein N (2014) A case for harmonizing laws on maritime interceptions of irregular migrants. International and Comparative Law Quarterly 63:787–814 Papanicolopulu I (2016) The duty to rescue at sea, in peacetime and in war: a general overview. International Review of the Red Cross 98(2):491–514

Treaties Convention (IV) Relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) Declaration concerning the Laws of Naval War (1909), opened for signature 26 February 1909 (London Declaration), reprinted in American Journal of International Law (1909) 3(3):179– 220 International Convention for the Safety of Life at Sea, opened for signature 1 November 1974, 1184 UNTS 2 (entry into force 25 May 1980) International Convention on Maritime Search and Rescue, opened for signature 27 April 1979, 1405 UNTS (entry into force 22 June 1985) Paris Declaration Respecting Maritime Law (1856), opened for signature 16 April 1856 (entered into force 16 April 1856), reprinted in Roberts A, Guelff R (2000) Documents on the laws of war, 3rd edn. Oxford University Press, Oxford, pp 47–52 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Additional Protocol I), opened for signature 12 December 1977, 1125 UNTS 3 (entered into force 7 December 1979)

Commander Dr. Martin D. Fink is a Legal Advisor in the Royal Netherlands Navy, currently serving as the head of the Royal Netherlands Marechaussee’s Legal Service. He defended his Ph.D., supervised by Terry Gill, on maritime interception and the law of naval operations, in 2016 at the University of Amsterdam. He reworked his Ph.D. thesis into a book, which is published by T. M. C. Asser Press as Maritime Interception and the Law of Naval Operations: A Study of Legal Bases and Regimes of Maritime Interception.

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Prof. Dr. Wolff Heintschel von Heinegg holds the Chair of Public Law, in particular public international law, European law and foreign constitutional law, at the Europa-Universität Viadrina in Frankfurt (Oder), Germany. Prof. Heinegg was one of the experts responsible for a number of international law manuals, e.g. the San Remo Manual on International Law Applicable to Armed Conflicts at Sea, the Manual on Air and Missile Warfare (2010), the Tallinn Manual on the International Law Applicable to Cyber Warfare (2013) and the Tallinn Manual 2.0 on Cyber Operations (2016).

Chapter 12

The Impact of Control Over Armed Forces on Conflict Classification in War Crimes Cases Rogier Bartels

Contents 12.1 Introduction...................................................................................................................... 236 12.2 Effective Control Versus Overall Control....................................................................... 238 12.2.1 Effective Control................................................................................................. 238 12.2.2 Overall Control ................................................................................................... 239 12.2.3 Two Tests ........................................................................................................... 241 12.2.4 Lower Threshold of Control for “Overall Control” .......................................... 242 12.3 Impact on the Rights of the Accused ............................................................................. 243 12.3.1 ICTY ................................................................................................................... 243 12.3.2 Special Court for Sierra Leone .......................................................................... 245 12.3.3 International Criminal Court .............................................................................. 249 12.4 Two Interesting Developments with Regard to Armed Groups Exercising Control and Conflict Classification .............................................................................................. 253 12.4.1 Occupation by Proxy.......................................................................................... 253 12.4.2 ‘Occupation’ by Organised Armed Groups ....................................................... 255 12.5 Concluding Remarks ....................................................................................................... 257 References .................................................................................................................................. 258

The present contribution updates and supplements a discussion on the same topic contained in the author’s Ph.D. thesis and in Rogier Bartels, ‘The Classification of Armed Conflicts by International Criminal Courts and Tribunals’, 20 (2020). International Criminal Law Review. The views expressed in the present contribution are the author’s alone and do not necessarily represent the institutions he works for or is affiliated with. R. Bartels (&) Chambers (Trial Division), International Criminal Court, The Hague, The Netherlands e-mail: [email protected] R. Bartels Faculty of Law, University of Amsterdam, Amsterdam, The Netherlands © T.M.C. ASSER PRESS and the authors 2021 R. Bartels et al. (eds.), Military Operations and the Notion of Control Under International Law, https://doi.org/10.1007/978-94-6265-395-5_12

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Abstract This contribution analyses how the two different notions of control over armed forces that have been developed in the international case law (namely, “effective control”, as set out by the International Court of Justice, and the “overall control” standard, as set out by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY)) impact on the classification of a conflict by international criminal courts and tribunals as either an international or a non-international armed conflict; and concomitantly on the fair trial rights of the accused. The Taylor case at the Special Court for Sierra Leone is discussed as an example where application of the overall control standard—if correctly applied— would have impacted on the classification of the conflict, and thereby on the Special Court’s jurisdiction over the crimes committed by the accused. Subsequently, the practice of the International Criminal Court (ICC), where the overall control standard was adopted without any explicit consideration, is analysed, as well as the consequential impact of adopting this lower standard on rights of the accused. In the last section, the author discusses two recent developments in the international case law, namely, the ICTY’s ruling that effective control over (part of) a territory by an armed group under overall control amounts to occupation-by-proxy, and the ICC’s finding that control over territory by an organised armed group may fulfil the intensity requirement for the existence of a non-international armed conflict, even in the absence of any clashes or fighting between the parties.







Keywords Armed conflict international humanitarian law conflict classification International Court of Justice International Criminal Tribunal for the former Yugoslavia International Criminal Court Special Court for Sierra Leone overall control effective control




12.1
















Introduction

The application of international humanitarian law (IHL), also known as the law of armed conflict or jus in bello, depends on the existence of an international or non-international armed conflict.1 Identifying when such situations exist is therefore of key importance. As not all IHL rules are applicable to both types of conflict, the difference between international and non-international armed conflicts remains relevant and one has to determine whether violence between two or more fighting entities qualifies one of the two types of armed conflict.2 The scope and classification of armed conflict are also important for international criminal law, because 1

Some provisions of IHL apply in peacetime or continue to apply after the armed conflict has ended. 2 In determining whether IHL applies, one cannot simply first ask the question whether there is an armed conflict, and only then consider whether that conflict is in fact international or non-international in nature. An armed conflict exists when there is an international or non-international armed conflict, not the other way around.

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the existence of an armed conflict is required for atrocities to qualify as war crimes. The distinction between international and non-international armed conflicts is of key importance during (international) criminal trials.3 The Rome Statute of the International Criminal Court (Rome Statute), for example, preserves the separation between the two types, and for certain war crimes and the International Criminal Court (ICC) only has jurisdiction if they are committed as part of international armed conflicts. An aspect of conflict classification by international courts and tribunals is the questions whether a situation in which a third State supports an armed group fighting a government amounts to an international armed conflict. When the third State controls the armed group to a certain level, the group’s actions may be attributed to the State and as such, two States are pitted against each other, thereby leading to a classification of the fighting as an international armed conflict. The approach by international criminal courts and tribunals when assessing whether such control exists forms part of my Ph.D. research conducted under the supervision of Terry Gill. It is a privilege to contribute (and edit) a book honouring Terry’s career and achievements. Terry taught the IHL course during my law studies at Utrecht University. I fondly recall his inspiring lectures.4 In this regard, it is appropriate to quote one of Terry’s favourite movie directors, Stanley Kubrick, who stated that “[i]nterest can produce learning on a scale compared to fear as a nuclear explosion to a firecracker.” To stay with this metaphor, in his many years of teaching IHL, Terry has ignited the interest of many in this field of law. In my case, I made my career out of it. If one deals with IHL in the Netherlands, one cannot ‘escape’ Terry Gill. After having started to work in IHL, Terry became my Ph.D. supervisor (together with Jann Kleffner), and as such also came to be a mentor. Conflict classification under IHL is something we actually have rather different views on, especially when it concerns conflicts that involve multiple armed groups, such as in Syria.5 When discussing conflict classification during international criminal trials, in the context of my Ph.D. research, there was luckily much agreement. One aspect of conflict classification in international criminal law that we discussed is the approach taken when an otherwise non-international situation potentially internationalises due to third State involvement on the side of an armed group, whereby the relevant court or tribunal has to analyse whether the third State exercises overall, or instead effective, control over the non-State actor. The oldest of the two test, i.e. effective control test, was set out by the International Court of Justice (ICJ) in the Nicaragua 3

The International Criminal Tribunal for the former Yugoslavia (ICTY), for example, has held that the grave breaches regime of the 1949 Geneva Conventions only applies to international armed conflicts (see further below). 4 In fact, I have later used many of the examples and exercises in his own teaching, including the one that all of Terry’s students will remember: the essay exercise about IHL questions in the movie Saving Private Ryan. 5 Compare Terry’s excellent article on classifying the Syria conflict (Gill 2016) with the author’s views on the matter, e.g., Bartels 2012, 2018.

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case. It was this famous case that Terry scrutinised for his Ph.D. research, and that ‘launched’ his career in international law. The topic is therefore worth discussing in the present liber amicorum. In this contribution, I first set out the two tests, developed by the ICJ and International Criminal Tribunal for the former Yugoslavia (ICTY), respectively. It then discusses the impact the approach taken by the relevant institution to potential internationalisation of the conflict has on the rights of the accused, starting with the ICTY, followed the Special Court of Sierra Leone (SCSL or Special Court), and, finally, the ICC. At the end of this contribution, two recent developments in the international case law that concern control exercised by organised armed groups are discussed. First, the ICTY judgments in which the Tribunal found that effective control over (part of) a territory by an armed group under overall control amounts to occupation-by-proxy; and, second, the ICC’s recent findings that control over territory by an organised armed group may fulfil the intensity requirement for the existence of a non-international armed conflict, even in the absence of any clashes or fighting between the parties. The last section contains some concluding observations.

12.2

Effective Control Versus Overall Control

12.2.1 Effective Control In the 1980s, the United States provided extensive support to rebel forces opposing socialist or communist governments in Central America. As a result from the support for one such armed opposition group, the “Contras” who fought the Nicaraguan government forces, a case was brought before the ICJ by Nicaragua against the United States. As part of the litigation, the Court had to determine the “crucial question”6 as to “whether or not the relationship of the contras to the United States Government was so much one of dependence on the one side and control on the other side that it would be right to equate the contras, for legal purposes, with an organ of the United States Government, or as acting on behalf of that Government.”7 After reviewing the evidence placed before it by Nicaragua, the Court found that United States participation, even if preponderant or decisive, in the financing, organizing, training, supplying and equipping of the contras, the selection of its military or paramilitary targets, and the planning of the whole of its operation, is still insufficient in itself, on the basis of the evidence in the possession of the Court, for the purpose of attributing to the United States the acts committed by the contras in the course of their military or 6

Gill 1989, p. 252. ICJ, Case concerning the Military and Paramilitary Activities in and against Nicaragua (The Republic of Nicaragua v The United States of America), Judgment on the Merits of 27 June 1986 (Nicaragua Judgment), para 109.

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paramilitary operations in Nicaragua. Al1 the forms of United States participation mentioned above, and even the general control by the respondent State over a force with a high degree of dependency on it, would not in themselves mean, without further evidence, that the United States directed or enforced the perpetration of the acts contrary to human rights and humanitarian law alleged by the applicant State. Such acts could well be committed by members of the contras without the control of the United States. For this conduct to give rise to legal responsibility of the United States, it would in principle have to be proved that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed.8

The Court therefore considered that legal responsibility for a third State for violations of human rights law and IHL by an armed group only arises if it is proven that the third State exercised effective control over the military operations of the armed group.

12.2.2 Overall Control In its first case, many aspects of the ICTY’s jurisdiction over war crimes allegedly committed during the Balkan war were challenged by the defence for Mr Tadić. One type of war crimes over which the Tribunal had jurisdiction was the grave breaches of the four Geneva Conventions of 1949.9 As the Appeals Chamber had decided early on in the Tadić case, in its seminal ruling on jurisdiction, that the grave breaches regime only applied during international armed conflicts.10 The Tadić Trial Chamber was therefore called upon to decide whether the situation at hand, namely the situation in Bosnia and Herzegovina, qualified as an international armed conflict. The Trial Chamber assessment of the impact of the involvement of the Federal Republic of Yugoslavia (FYROM, i.e. Serbia) in the conflict in Bosnia and Herzegovina, and—not unreasonably, given that this standard had been set out some years before by the world court—applied the ICJ’s effective control standard to determine the relationship between Serbia (and Serbian armed forces, the VJ) and the armed group made up of Bosnian Serbs (VRS). The Trial Chamber found that Serbia did not exercise effective control over the VRS and consequently classified the conflict, at the time relevant to the charges, as non-international.11 It therefore acquitted Mr Tadić for the grave breaches

8

Nicaragua Judgment, para 115. Article 2 of the ICTY Statute. 10 ICTY, Prosecutor v Dusko Tadić, Case No. IT-94-1-A, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (Appeals Chamber), 2 October 1995 (Tadić Jurisdiction Decision), para 81. 11 The Trial Chamber had noted that the initial stage of the fighting was an international armed conflict between FYROM and Bosnia and Herzegovina, until 19 May 1992, when the Yugoslav National Army formally withdrew from Bosnia and Herzegovina. ICTY, Prosecutor v Tadić, Case No. IT-94-1-T, Judgment (Trial Chamber), 7 May 1997, para 569. 9

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charges.12 The Prosecution contested its findings on appeal, arguing that and when considering the Trial Chamber’s the Appeals Chamber found that the Trial Chamber erred by relying exclusively upon the ‘effective control’ test derived from the Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States) in order to determine the applicability of the grave breach provisions of the relevant Geneva Convention. The Prosecution submits that the Chamber should have instead applied the provisions of the Geneva Conventions and the relevant principles and authorities of international humanitarian law which, in its view, apply a ‘demonstrable link’ test.13

The Appeals Chamber considered the nature of the conflict and held that a non-international armed conflict may become international: (i) if another State intervenes through its troops, or (ii) if some of the parties act on behalf of that State.14 It then had to consider “on what legal conditions armed forces fighting in a prima facie internal armed conflict may be regarded as acting on behalf of a foreign Power”.15 The Appeals Chamber agreed with the Prosecution that the answer to this question should be found in IHL, not in the law of State responsibility or general public international law.16 Therefore, in “discuss[ing] the question at issue first from the viewpoint of international humanitarian law”,17 the Appeals Chamber found that IHL, by providing the requirement of “belonging to a Party to the conflict” in the Third Geneva Convention of 1949, “implicitly refers to a test of control”.18 Accordingly, it follows that IHL “holds accountable not only those having formal positions of authority but also those who wield de facto power as well as those who exercise control over perpetrators of serious violations of international humanitarian law.”19 “[S]ome measure of control by a Party to the conflict over the perpetrators” is therefore required for individual criminal responsibility to arise.20 Yet, the Appeals Chamber then found that IHL “does not include legal criteria regarding imputability specific to this body of law and that “[r]eliance must therefore be had upon the criteria established by general rules on State responsibility”. By moving away from IHL, into the law of State responsibility, the Appeals Chamber took the ICJ’s test ‘head on’. Whereas the Prosecution had argued that the

He was convicted for “other serious violations of the laws and customs of war”, as war crimes pursuant to Article 3 of the ICTY Statute were referred to, and crimes against humanity. 13 ICTY, Prosecutor v Tadić, Case No. IT-94-1, Judgment (Appeals Chamber), 15 July 1999 (Tadić Appeal Judgment), para 69. 14 Tadić Appeal Judgment, para 84. 15 Tadić Appeal Judgment, para 81. 16 Tadić Appeal Judgment, para 90. 17 Tadić Appeal Judgment, para 91. 18 Tadić Appeal Judgment, para 95. 19 Tadić Appeal Judgment, para 96. 20 Tadić Appeal Judgment, para 96. 12

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ICJ’s test was correct to determine State responsibility and the ICTY should use a different test for criminal responsibility, the Appeals Chamber, in describing the Nicaragua Judgment as “somewhat unclear” on the issue, explained that the ICJ, in its view, was unpersuasive.21 The Appeals Chamber, having reviewed—what it referred to as—judicial and State practice, set out its own test. It found that [i]n order to attribute the acts of a military or paramilitary group to a State, it must be proved that the State wields overall control over the group, not only by equipping and financing the group, but also by coordinating or helping in the general planning of its military activity. Only then can the State be held internationally accountable for any misconduct of the group. However, it is not necessary that, in addition, the State should also issue, either to the head or to members of the group, instructions for the commission of specific acts contrary to international law.22

It further clarified that “control by a State over subordinate armed forces or militias or paramilitary units may be of an overall character (and must comprise more than the mere provision of financial assistance or military equipment or training)”;23 and that such overall control may be deemed to exist when a State (or, in the context of an armed conflict, the Party to the conflict) has a role in organising, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group. Acts performed by the group or members thereof may be regarded as acts of de facto State organs regardless of any specific instruction by the controlling State concerning the commission of each of those acts.24

In summarising its test, the Appeals Chamber concluded that the control of a third State over an armed group fighting another government “required by international law for considering the armed conflict to be international was overall control going beyond the mere financing and equipping of such forces and involving also participation in the planning and supervision of military operations.”25

12.2.3 Two Tests The ICJ reaffirmed its version of the control test in Bosnia Genocide case, but noted that in the context of the ICTY, when “the sole question” to decide is “whether or

21

Tadić Appeal Judgment, paras 106–115. In fact, the Appeals Chamber found the effective control test “to be unconvincing […] based on the very logic of the entire system of international law on State responsibility”. Tadić Appeal Judgment, para 116. 22 Tadić Appeal Judgment, para 131. 23 Tadić Appeal Judgment, para 137 (emphasis omitted). 24 Tadić Appeal Judgment, para 137 (emphasis omitted). 25 Tadić Appeal Judgment, para 145 (emphasis in original).

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not a conflict is international”, “it may well be that the test is applicable and suitable”.26 In its last judgment, the ICTY Appeals Chamber noted “that the ICJ refrained from taking a position on whether the Overall Control Test employed by the Appeals Chamber in the Tadić case was correct”,27 and went on to apply the overall control test to the case.28 As the ICTY has applied the principle of stare decisis rather strictly,29 it is not surprising the Tribunal has since Tadić consistently applied the overall control test. In fact, as will be seen below, international criminal courts and tribunals have all adopted the overall control standard. It therefore appears relatively uncontested in international criminal law that the Tadić test is to applied when considering possible internationalisation of a prima facie non-international armed conflict. Yet, which standard ought to be used for conflict classification under IHL is less certain. The recently published Law of Armed Conflict Manual of New Zealand, for example, relies on the effective control standard,30 and the scholarly discussion on the correct test is still alive.

12.2.4 Lower Threshold of Control for “Overall Control” In the Nicaragua case, the ICJ was “not satisfied that all the operations launched by the contra force, at every stage of the conflict, reflected strategy and tactics wholly devised by the United States.”31 It further held that there was “no clear evidence” of the United States having exercised effective control “in all fields as to justify treating the contras as acting on its behalf”.32 However, the Court did find it to be “clear that a number of military and paramilitary operations by [the Contras] were decided and planned, if not actually by United States advisers, then at least in close collaboration”.33 Although the Court could not establish with certainty that these operations were in fact decided on and planned by American State agents, what is important is that effective control requires all operations to be devised by the intervening third State.

26

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 (Bosnia Genocide Judgment), paras 402–407. 27 ICTY, Prosecutor v Prlić et al., Case No. IT-04-74-A, Appeal Judgment, 29 November 2017 (Prlić et al. Appeal Judgment), para 238, referring to the ICJ’s Bosnia Genocide Judgment, paras 404–407. 28 See the discussion below. 29 On stare decisis at the ICTY, and international criminal law generally, see Orie 2012. 30 New Zealand Defence Force 2019, at 5.3.2b. 31 Nicaragua Judgment, para 106 (emphasis added). 32 Nicaragua Judgment, para 109 (emphasis added). 33 Nicaragua Judgment, para 106.

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The ICTY Appeals Chamber, for its part, went through great lengths to explain that for its overall control test, the third State only has to play “a role” in the organisation, coordination, or planning of the armed groups’ military operations.34 Notwithstanding the ICJ’s ruling, it stressed that “under international law it is by no means necessary that the controlling authorities should plan all the operations of the units dependent on them, choose their targets, or give specific instructions concerning the conduct of military operations and any alleged violations of international humanitarian law”.35 It further considered that under the overall control test, “[a]cts performed by the group or members thereof may be regarded as acts of de facto State organs regardless of any specific instruction by the controlling State concerning the commission of each of those acts.”36 Overall control therefore clearly requires a lower level of control.37 Indeed, in the ICTY Appeals Chambers own words, this test it is “less rigorous” than the ICJ’s effective control standard.38 With ICTY test is easier satisfied, it also means that less evidence has to be presented to prove that control to the required standard existed. The party desiring to prove the existence of an international armed conflict through third State intervention, thus benefits from the standard being lower. The next section considers the manner in which the ICTY, SCSL, and ICC have applied the overall control test and how this has impacted on the rights of the accused.

12.3

Impact on the Rights of the Accused

12.3.1 ICTY In its early years, the ICTY displayed a tendency to facilitate classification of a situation as international.39 It may have done so, at least in part, to guarantee the application of the grave breaches regime, which is only applicable to international armed conflicts.40 When dealing with the conduct of the Hrvatsko Vijeće Obrane

34

Tadić Appeal Judgment, para 137. Tadić Appeal Judgment, para 145). It further emphasised that “international rules do not require that such [overall] control should extend to the issuance of specific orders or instructions relating to single military actions” (Tadić Appeal Judgment, para 145). 36 Tadić Appeal Judgment, para 137. 37 Robert Cryer et al. refer to the overall control test as being “more flexible” than the effective control test: Cryer et al. 2014, p. 278. See also Cassese 2003, pp. 653–663; and Shaw 2003, pp. 704–705. 38 ICTY, Prosecutor v. Aleksovski, Case No. IT-95-14/1-A, Judgment (Appeals Chamber), 24 March 2000, paras 145–146. 39 See Sassòli 2001 for a critique of this tendency from the perspective of IHL and the suitability of the international armed conflict rules of IHL to the fighting in non-international armed conflicts. 40 Compare, for example, Tadić Appeals Judgment, para 104. 35

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(HVO),41 the ICTY generally found the relevant (part of the) conflict to be international in character.42 Yet, in Aleksovski, the majority of the trial chamber found, shortly before the Appeals Chamber rendered its judgments on the merits in appeal in the Tadić case, that the armed conflict was non-international in nature, because the Prosecution had “failed to discharge its burden of proving that, during the time-period and in the place of the indictment, the HVO was in fact acting under the overall control of the HV in carrying out the armed conflict against Bosnia and Herzegovina”;43 and had therefore “failed to establish the internationality of the conflict”.44 However, after those first cases, most ICTY trial chambers declined to explicitly classify the situation before it as either an international or a non-international armed conflict.45 Instead, those chambers simply held that the (jurisdictional) requirement of “existence of an armed conflict” was satisfied, because in their view “[w]hen an accused is charged with violation of Article 3 of the Statute, based on a violation of Common Article 3, it is immaterial whether the armed conflict was international or non-international in nature”. In such a case, “there is no need for the Trial Chamber to define the nature of the conflict”.46 The finding in the Aleksovski case, discussed above, is a “telling” example of how the truth can be distorted as a result of the different evaluations of evidence by the various chambers of the same institution.47 At the ICTY, the application of the overall control standard could lead to more findings that an international armed conflict existed at the time of the alleged crimes, and thus to the application of the grave breaches war crimes. However, the ICTY had found in Tadić “[w]hat is inhumane, and consequently proscribed, in international wars, cannot but be inhumane and inadmissible in civil strife”.48 Any conduct that could not qualify as a grave breach, merely because of the situation having been determined to be a 41

Croatian Defence Council; a paramilitary group of Bosnian Croats. E.g., ICTY, Prosecutor v Blaškić, Case No. IT-95-14, Judgment (Trial Chamber), 3 March 2000, paras 75–76, and 94; ICTY, Prosecutor v Kordić and Čerkez, Case No. IT-95-14/2-T, Judgment (Trial Chamber), 26 February 2001; and ICTY, Prosecutor v Natelilić and Martinović, Case No. IT-98-34-T, Judgment (Trial Chamber), 31 March 2003, para 194. 43 The HV were the Croatian armed forces. 44 ICTY, Prosecutor v Aleksovski, Case No.: IT-95-14/1-T, Joint Opinion of the Majority, Judge Vohrah and Judge Nieto-Navia, on the Applicability of Article 2 of the Statute Pursuant to Para 46 of the Judgement (Trial Chamber), 25 June 1999, para 27. 45 See, e.g., ICTY, Prosecutor v Popović et al., Case No. IT-05-88-T, Judgment (Trial Chamber), 10 June 2010, paras 744 and further; ICTY, Prosecutor v Galić, Case No. IT-98-29-T, Judgment (Trial Chamber), 5 December 2003, para 22; ICTY, Prosecutor v Simić et al., Case No. IT-95-9-T, Judgment (Trial Chamber), 17 October 2003, para 38; and ICTY, Prosecutor v Furundžija, Case No. IT-95-17/1-T, Judgement (Trial Chamber), 10 December 1998, paras 59–60. 46 ICTY, Prosecutor v Halilović, Case No. IT-01-48-T, Judgment (Trial Chamber), 16 November 2005, para 25. In, e.g., Mrksić et al., a similar reasoning was applied: ICTY, Prosecutor v Mrksić et al., Case No. IT-95-13/1-T, Judgment (Trial Chamber), 27 September 2007, para 457. 47 See also Decoeur 2013, p. 479. 48 Tadić Jurisdiction Decision, para 119. 42

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non-international armed conflict, would therefore also result in individual criminal responsibility in times of non-international armed conflict. Prosecution of the conduct as a war crime would thus be possible. While at the ICTY the difference for an accused was therefore mostly the difference in stigma between a conviction for grave breaches of the Geneva Conventions of 1949 and ‘regular’ war crimes, at another ad hoc tribunal the difference would be between a conviction and an acquittal—at least for war crimes. This situation, as it arose at the Special Court for Sierra Leone is discussed next.

12.3.2 Special Court for Sierra Leone The drafters of the Statute of the Special Court for Sierra Leone (SCSL) had viewed the conflict as non-international and only given it jurisdiction over violations of Common Article 3 and Additional Protocol II, as well as three types of “[o]ther serious violations of international humanitarian law”.49 As the former can only be committed during non-international armed conflict,50 and the list of other serious violations was—as opposed to a comparable provision in the ICTY Statute—limited to three specific crimes, the defence teams of several accused before the Special Court understandably challenged the Prosecution’s classification of the armed conflict in Sierra Leone as being non-international.51 According to the defence team for Mr Fofana, for example, the facts of the case “undoubtedly show[ed] that the conflict was of an international nature”.52 It argued that “the jurisdiction of the Special Court under Articles 3 and 4 is limited to internal armed conflicts” and therefore, if the conflict was indeed found to be international, the Special Court would lack jurisdiction ratione materiae over certain of the crimes charged.53 In light of the UN Security Council’s statement that it was “deeply concerned” by “the unequivocal and overwhelming evidence 49

See Articles 3 and 4 of the Statute of the SCSL, respectively. Namely, intentionally directing attacks against civilians; intentionally directing attack against certain protected objects, and the conscription, enlistment of children under the age of 15, or their use in hostilities. 51 In addition to the defence for Mr Fofana, discussed below, also the defence team for Mr Kallon contended that the non-international armed conflict in Sierra Leone had been become an international armed conflict. It argued that the involvement of peace forces of UNAMSIL, as well as private military security companies, had internationalised the initial non-international armed conflict. The Kallon Defence, together with the defence team for Mr Sesay, made a similar argument as to the involvement of ECOMOG intervention force, which consisting of troops from several ECOWAS States. SCSL, Prosecutor v Sesay et al., Case No. SCSL-04-15-T, Judgment (Trial Chamber), 2 March 2009 (Sesay et al. Trial Judgment), para 973. 52 SCSL, Prosecutor v Fofana, Case No. SCSL-2003-11-PT, Reply to the Prosecution Response to the Preliminary Defence Motion on Lack of Jurisdiction Materiae: Nature of the Armed Conflict (Fofana Defence), 30 November 2003 (Fofana Defence Motion), para 1. 53 Fofana Defence Motion, para 1. 50

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presented by the report of the Panel of Experts that the Government of Liberia is actively supporting the RUF at all levels”,54 the Defence’s argument should have been given some prima facie weight. Yet, notwithstanding the explicit reference in the chapeau of Article 3 of the Statute of the SCSL to Common Article 3 and Additional Protocol II, the Special Court’s Appeals Chamber decided that the nature of the armed conflict in Sierra Leone did not have any bearing on the Court’s jurisdiction over the (alleged) war crimes.55 As the Norman, Fofana and Kondewa Trial Chamber subsequently took judicial notice of “the fact that the ‘armed conflict in Sierra Leone occurred from March 1991 until January 2002’”,56 it and did not really discuss the classification of the conflict in its judgment. Be that as it may, the references in the judgment to the application of Additional Protocol II and to the criteria of organisation and intensity make clear that the bench had considered the fighting to constitute a non-international armed conflict.57 In the next case, the Sesay et al. Trial Chamber also took judicial notice of “the armed conflict in Sierra Leone”, thereby summarily dismissing the submission by the Kallon Defence that no armed conflict existed at the time part of the alleged crimes took place.58 Even though the judicial notice taken was of the existence of an “armed conflict”, it is evident that in fact notice was taken of the existence of a non-international armed conflict. The defence teams for Mr Kallon and Mr Sesay had argued that the conflict was international in nature, either through overall control by Liberia or the involvement of ECOWAS forces,59 but the Trial Chamber dismissed these submissions. Instead, it held that “therefore […] the armed conflict in Sierra Leone was of a non-international character”.60 Remarkably, the Sesay et al. Trial Chamber had dismissed the Defence’s arguments on internationalisation of the non-international armed conflict, because in the Chamber’s view “the evidence does not establish beyond reasonable doubt

54

UN Security Council Resolution S/RES/1343 (7 March 2001), p. 1. SCSL, Prosecutor v Fofana, Case No. SCSL-2003-11-PT, Decision on Preliminary Motion on Lack of Jurisdiction Materiae: Nature of the Armed Conflict (Appeals Chamber), 25 May 2004, para 31. 56 SCSL, Prosecutor v Norman, Fofana and Kondewa, Case No. SCSL-04-14-PT, Annex I to the Decision on Prosecution’s Motion for Judicial Notice and Admission of Evidence, 2 June 2004, p. 2. 57 SCSL, Prosecutor v Fofana and Kondewa, Case No. SCSL-04-14-T, Judgment (Trial Chamber), 2 August 2007, paras 123–128. The Trial Chamber did mention the criteria for the application of Additional Protocol II, but did not apply these criteria and thus appears to have not satisfied itself that they were met. Compare with Quénivet 2014, p. 52. 58 Sesay et al. Trial Judgment, para 969, referring to its Consequential Order on Judicial Notice, Annex I, Fact A. 59 In doing so, the Special Court appears to place the burden of proof for the nature of the armed conflict on the accused (rather than on the Prosecution), holding that “the Defence did not at any stage adduce evidence to establish” its theory “that the support extended to the RUF by Charles Taylor was such that the RUF were in fact acting on behalf of, or belonging to, the Republic of Liberia” (Sesay et al. Trial Judgment, para 974). 60 Sesay et al. Trial Judgment, para 977. 55

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that Taylors [sic] interactions with the RUF leadership were such that he was in a position to exercise overall control over the RUF as an organization”.61 However, the findings on the classification of the conflict in the aforementioned cases were questionable, if one considers what the Special Court established with respect to Liberia’s involvement in its last case. In the judgment in the Taylor trial, the findings on the role of the accused, who at the time of the crimes was the head of State of neighbouring Liberia, and on the assistance Mr Taylor provided to the rebel forces in Sierra Leone, show a significant level of control. The Taylor Trial Chamber found, as summarised by the Appeals Chamber, that the accused had provided arms and ammunition, operational support and military personnel to the RUF/ AFRC that were critical in enabling the RUF/AFRC‘s Operational Strategy. Similarly, the Trial Chamber found that Taylor and Sam Bockarie planned an attack on Freetown and thereby had a substantial effect on the crimes committed during and after the Freetown Invasion. Both of them identified the targets, goals and modus operandi of the campaign.62

Comparing this finding to the ICTY’s Appeals Chamber’s ruling that a State exercises overall control when it has “a role in organizing, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group”,63 it appears that Mr Taylor, and therefore Liberia, exercised overall control over the rebels who were fighting the Sierra Leonean government. Especially since “it is by no means necessary that the controlling authorities should plan all the operations of the units dependent on them, choose their targets, or give specific instructions concerning the conduct of military operations and any alleged violations of international humanitarian law”.64 Moreover, “international rules do not require that such [overall] control should extend to the issuance of specific orders or instructions relating to single military actions”.65

61

Sesay et al. Trial Judgment, para 976. SCSL, Prosecutor v Taylor, Case No. SCSL-03-01-A, Judgment (Appeals Chamber), 26 December 2013, para 593, referring to paras 6907–6937 and 6958–6968 of the trial judgement. The Taylor Trial Chamber considered whether Mr Taylor himself had exercised effective control over the RUF and AFRC. It noted that he had “substantial influence over the leadership of the RUF, and to a lesser extent that of the AFRC”, but “substantial influence over the conduct of others falls short of effective control” (SCSL, Prosecutor v Taylor, Case No. SCSL-03-01-T, Judgment (Trial Chamber), 18 May 2012 (Taylor Trial Judgment), para 6979). However, this assessment is part of the Chamber’s analysis of the elements of superior responsibility. The threshold for control by a State as set out by the ICTY Appeals Chamber, as can be seen from the analysis above, was clearly met if Mr Taylor’s acts are seen as those of the State of Liberia. See similarly, albeit written before the Taylor Trial Judgment and on the basis of the allegation against him contained in the indictment: Ousman Njikam, The Contribution of the Special Court for Sierra Leone to the Development of International Humanitarian Law (Duncker and Humblot 2013), pp. 146–147 and 151–153; and Cryer 2014, pp. 136–138. 63 Tadić Appeal Judgment, para 137 (emphasis omitted). 64 Tadić Appeal Judgment, para 137. 65 Tadić Appeal Judgment, para 145. 62

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The reluctance of the Special Court’s chambers to seriously consider the Defence’s submissions on overall control is therefore problematic. The findings as to Mr Taylor’s role made by the Taylor Trial Chamber are particularly striking in light of an earlier finding by the Sesay et al. Trial Chamber. When the Kallon and Sesay Defence, “[r]elying on the second requirement for internationalisation”, had submitted that the Taylor’s support of the RUF “was such that the RUF were in fact acting on behalf of, or belonging to, the Republic of Liberia”, the Sesay et al. Trial Chamber “observe[d] that the Defence did not at any stage adduce evidence to establish this theory.”66 Because judicial notice had been taken of the existence of an “armed conflict in Sierra Leone […] from March 1991 until January 2002”, the Taylor Trial Judgment did not contain any discussion on the type of armed conflict either.67 As Mr Taylor was found guilty of having committed violations of Common Article 3 and Additional Protocol II,68 this necessarily means that the Trial Chamber characterised the situation as a non-international armed conflict. Given the subject-matter jurisdiction of the Special Court and the express submissions on this issue by some of the accused, the legality of the Special Court’s convictions for violations of Common Article 3 and Additional Protocol II may thus be questioned.69 This is especially so, since one of the members of the bench, namely Judge Sebutinde, specifically questioned the Special Court’s prosecution during the closing arguments in Taylor on the nature of the armed conflict. She asked whether Mr Taylor’s involvement and control over the RUF amounted to “overall control” and the conflict therefore had been international in nature.70 In response to Judge Sebutinde’s questions, the Prosecution had submitted that even though it alleged that Mr Taylor exercised effective control over the members of the RUF who had committed crimes in Sierra Leone, “the conflict in Sierra Leone was not of an international character because Mr Taylor was acting independently and in violation of his duties as President of Liberia.”71 It argued that it was not the Liberian government, but Mr Taylor, in a private capacity, who controlled the RUF.72

66

Sesay et al. Trial Judgment, para 974. Taylor Trial Judgment, para 571. In light of the parties’ agreement “that ‘[d]espite temporary lulls in the fighting occasioned by a 30 November 1996 peace agreement and a 7 July 1999 peace agreement, active hostilities continued in the Republic of Sierra Leone until about 18 January 2002”, the Trial Chamber found that it was “established beyond reasonable doubt that there was an armed conflict in Sierra Leone at all times relevant to the Indictment period” (Taylor Trial Judgment, para 571). 68 See the “Disposition” of the Taylor Trial Judgment. 69 All accused were also convicted for crimes against humanity and these convictions are not affected by the classification of the conflict. 70 SCSL, Prosecutor v Taylor, Case No. SCSL-03-01-T, Transcript of Hearing of 9 February 2011, pp. 49288–49289. 71 Transcript of Hearing of 9 February 2011, p. 49292. 72 Transcript of Hearing of 9 February 2011, p. 49292. 67

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This argument is unconvincing, as the conduct of a democratically elected president, who used State organs and State resources,73 could surely be ascribed to State of Liberia. Moreover, the Prosecution’s contention implies that overall control could only exist if some form of constitutional process were to be followed, for example, with parliament approval of the support of an armed group. Not only would such a requirement politicise conflict classification, while the purpose of introducing of the concept of “armed conflict” in the 1949 Geneva Convention had aimed to prevent this, the argument also foregoes that overall control is generally not be achieved through public acts but instead by way of covert action, such as the United States’ support to the Contras that was subject to ICJ’s consideration in the Nicaragua case. Irrespective of how one views the Prosecution’s submission, the fact that the issue of possible overall control and resulting internationalisation of the conflict was clearly on the radar of the Taylor Trial Chamber, makes the judgment’s silence on the classification of the conflict all the more puzzling; and indeed, all the more problematic from a fair trial rights perspective.

12.3.3 International Criminal Court At the ICC, without providing much explanation, the Trial Chamber in the ICC’s first case embraced the overall control standard as being the “correct approach”. The Lubanga Trial Chamber merely stated: “As regards the necessary degree of control of another State over an armed group acting on its behalf, the Trial Chamber has concluded that the ‘overall control’ test is the correct approach.”74 During the confirmation stage, Pre-Trial Chamber I had similarly also adopted the overall control standard without the slightest explanation.75 According to the Special Court’s Prosecution, “those elements within the government and within the country that [Mr Taylor] used to further his conduct in Sierra Leone were also in violation of their duties in Liberia.” Transcript of Hearing of 9 February 2011, p. 49292. 74 ICC, Prosecutor v Lubanga, Case No. ICC-01/04-01/06, Judgment Pursuant to Article 74 of the Statute (Trial Chamber), 14 March 2012 (Lubanga Trial Judgment), para 541. A scholar, who critically assessed the Trial Chamber’s approach to classifying the armed conflict, expresses his surprise about the Trial Chamber’s lack of reasoning, because “[o]ne could have expected the [Trial Chamber] to at least consider the ICJ’s opinion [in the Genocide case] before blindly following the Tadić precedent. […] Irrespective of what answer the [Trial Chamber] would have given, considering that all cited authorities predate the ICJ’s Genocide judgment, one would have expected the [Trial Chamber] to show a minimum degree of awareness of this debate.” Liefländer 2012, pp. 195–196. 75 It had done so merely by reference to the ICTY Appeals Chamber in Tadić, stating that it was of the “view that where a State does not intervene directly on the territory of another State through its own troops, the overall control test will be used to determine whether armed forces are acting on behalf of the first State”. ICC, Prosecutor v Lubanga, Case No. ICC-01/04-01/06, Decision on the confirmation of charges (Pre-Trial Chamber), 29 January 2007 (Lubanga Confirmation Decision), paras 210–211. 73

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The present contribution does not take a position on which standard ought to be applied, but given that the debate as to best manner to assess attributability of the actions of an armed group for the purposes of conflict classification is still alive in the academic literature76 and in practice,77 the lack of reasoning provided by the ICC is notable. Indeed, it was met with surprise and the lack of explanation attracted widespread academic criticism.78 In Katanga, the ICC’s second case, the overall control standard was also accepted by the majority without discussion or explanation.79 However, Judge Van den Wyngaert, who was in the minority, considered in her dissenting opinion that the question of overall versus effective control “is far from settled”. With respect to this issue and conflict classification generally, she noted that “the facts of this case are particularly complex on this point” and the evidence “not sufficient to arrive at any conclusions beyond reasonable doubt”.80 A scholar observes about the Katanga judgment that [w]hile the result may be defendable, the methodology of the judgment requires critical scrutiny [,as] the Katanga majority fails to engage with two disputed questions, namely (i) to what extent the internationalization of internal armed conflict depends on formal attribution under the law of state responsibility (i.e. agency or control), rather than on criteria relating to non-intervention and use of force; and (ii) on what grounds the ‘overall control’ test remains the correct test after the International Court of Justice ruling in Bosnia v. Serbia.81

It has been emphasised that “[f]uture decisions should engage more deeply with this justification, before this reasoning becomes standard vocabulary in ICC jurisprudence”.82 However, in the next cases, no such justification was provided. In the Bemba case, the overall control standard was applied without explanation.83 In the next judgment concerning alleged war crimes, it was no different. 76

See the discussion in ICRC 2016, paras 269–273; and Sivakumaran 2011, pp. 225–228. See the Law of Armed Conflict Manual of New Zealand: New Zealand Defence Force 2019, at 5.3.2b. 78 Liefländer 2012, pp. 195–196; Ambos 2012; Akande 2012, pp. 58–60; Ventura 2013; Cullen 2015; Jorritsma 2018, pp. 405–431. Earlier, the then ICJ Judge Bruno Simma had already questioned the Lubanga Pre-Trial Chamber’s lack of explanation, or even reference to the existence of the Nicaragua Judgment, in the Lubanga Confirmation Decision: Simma 2009, p. 280. 79 ICC, Prosecutor v Katanga, Case No. ICC-01/04-01/07, Judgment pursuant to article 74 of the Statute, 7 March 2014, (Katanga Trial Judgment), para 1178. The academic criticism referred to in the previous footnote in relation to the Lubanga Trial Judgment equally applies here. 80 Katanga Judgment, Minority Opinion of Judge Christine Van den Wyngaert, para 276. 81 Stahn 2014, p. 819. 82 Stahn 2014, p. 819. 83 ICC, Prosecutor v Bemba, Case No. ICC-01/05-01/08, Judgment pursuant to Article 74 of the Statute (Trial Chamber), 21 March 2016, para 130, in which the Trial Chamber held: “that Trial Chambers I and II found that an armed conflict may be considered internationalised when it is established that armed groups are acting on behalf of a foreign government. For determining whether an armed group is acting on behalf of a state, Trial Chambers I and II endorsed the “overall control” test, as set out by the ICTY Appeals Chamber in the Tadić case, which requires 77

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With regards to possible internationalisation, the Trial Chamber in Ntaganda, like its ICC predecessors, applied the overall control test.84 The Trial Chamber acknowledged the existence of the ICJ’s effective control test, but other than noting that three other Trial Chambers of the ICC also applied the overall control test, it did not explain why it chose the ICTY test over the one adopted by the ICJ. Importantly, despite finding that a third State (Rwanda) had assisted Mr Ntaganda’s organised armed group, inter alia, by supplying it with weapons and ammunition, and had been “involved in its activities to a certain level”, the trial chamber held that on the basis of the evidence on the record it could not “conclude beyond reasonable doubt that the involvement of Rwanda with the UPC/FPLC rose to the level of overall control”.85 As a result, it found that the fighting in which the accused’s armed group had been involved “must be classified as a non-international armed conflict”.86 One may wonder whether requiring overall control to be established beyond reasonable doubt is appropriate. The Ntaganda Trial Chamber found that while there was some evidence pointing at possible overall control by Rwanda over the UPC/FPLC, it could not conclude beyond reasonable doubt that such overall control indeed existed.87 As such, the Trial Chamber concluded, “the fighting that the UPC/FPLC was engaged in during the temporal scope of the charges must be classified as a non-international armed conflict.”88 As an armed conflict is either an international or non-international armed conflict, and given that—as correctly noted by the Ntaganda Trial Chamber89—each of the two types of conflict requires a different set of factors to be proven, the very fact that overall control could not be proven beyond reasonable doubt, even though there was evidence that pointed towards such third State control, actually indicates that there was in fact doubt. That would mean that a non-international armed conflict was not proven to the requisite standard.90 The Ntaganda Trial Chamber must therefore have considered that the evidence on Rwanda’s involvement did not rise to the level of reasonable doubt. Nevertheless, one may wonder whether a finding that is reached as a result from the insufficiency, or limited credibility thereof, of the evidence presented by the the state to “ha[ve] a role in organizing, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group”. The Chamber follows Trial Chambers I and II in endorsing this approach.”. 84 ICC, Prosecutor v Ntaganda, Case No. ICC-01/04-02/06, Judgment (Trial Chamber), 8 July 2019, (Ntaganda Trial Judgment), para 727. 85 Ntaganda Trial Judgment, para 717. 86 Ntaganda Trial Judgment, para 717. 87 Ntaganda Trial Judgment, para 730. 88 Ntaganda Trial Judgment, para 730. 89 Ntaganda Trial Judgment, para 702. 90 Unless, of course, the bench considered that the doubt created by the said evidence did not amount to “reasonable doubt” and therefore did not affect its initial finding that the organisation and intensity requirements for non-international armed conflict had been fulfilled.

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Prosecution on third State involvement is compatible with the accused’s right to fair trial. Moreover, if the Prosecution does not lead the evidence on overall control, for example, or on other factors that may impact on the classification, and the accused would wish to argue that the conflict should be characterized differently, his or her defence team would have to present evidence to convince the relevant chamber. This arguably amounts to a reversal of the burden of proof. At the Special Court, as discussed above, the Sesay et al. Trial Chamber did in fact reverse the burden of proof as regards the nature of the armed conflict when it placed the duty to proof the existence of an international armed conflict on the accused, rather than on the prosecution. In Sesay et al. Trial Judgment, the chamber found that the defence teams had not presented evidence to establish that Liberia (in the person of its president Charles Taylor) had overall control over the RUF and that consequently there was no reason to classify the conflict other than as a non-international armed conflict.91 Given that the overall control standard requires less third State involvement than effective control, less evidence has to be presented to prove said control to the relevant standard. As regards fair trial rights, the other way around, namely if classification of the conflict as and international armed conflict is more beneficial to the Prosecution than to the accused, also raises interesting questions about the test used to determine the character of the conflict and its consequential impact on the rights of the accused. Conflict classification is a primary aspect of IHL, but the concept of overall control was created to determine the nature of armed conflict for the purposes of international criminal proceedings. Since criminal law generally requires the law, or—as the case may be—standard, to be applied that is most beneficial to the accused, the following finding of the ICTY Appeals Chamber in Aleksovski may come as a surprise. In considering whether the armed conflict at the time of the charged conduct was international or non-international, the Appeals Chamber held: The ‘overall control’ test calls for an assessment of all the elements of control taken as a whole, and a determination to be made on that basis as to whether there was the required degree of control. Bearing in mind that the Appeals Chamber in the Tadić Judgement arrived at this test against the background of the ‘effective control’ test set out by the decision of the ICJ in Nicaragua, and the ‘specific instructions’ test used by the Trial Chamber in Tadić, the Appeals Chamber considers it appropriate to say that the standard established by the ‘overall control’ test is not as rigorous as those tests. To the extent that it provides for greater protection of civilian victims of armed conflicts, this different and less rigorous standard is wholly consistent with the fundamental purpose of Geneva Convention IV, which is to ensure ‘protection of civilians to the maximum extent possible’.92

This consideration by the ICTY Appeals Chamber shows the clash between the different principles and presumptions that govern IHL and (international) criminal 91

Sesay et al. Trial Judgment, para 974. ICTY, Prosecutor v. Aleksovski, Case No. IT-95-14/1-A, Judgment (Appeals Chamber), 24 March 2000, paras 145–146.

92

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law, namely the presumption of protection and the presumption of innocence, respectively. The ICTY Appeals Chamber focused on the humanitarian goals of IHL and its purpose to protect those affected by armed conflict. However, it did so in the context of a criminal trial. Whereas international criminal courts and tribunals must not lose sight of IHL as the basis for war crimes, and the plight of victims of war is an important reason for the prosecution of atrocities, it must not be forgotten that international cases are in their very essence criminal trials; trial during which the rights of the accused persons must be safeguarded. The core element of any criminal process must be the presumption of innocence. A corollary of the criminal law presumption of innocence is the principle of in dubio pro reo, which requires that in case of doubt as to what the evidence establishes, a determination shall favour the accused.93 Naturally, the legality principle also applies. This includes the concept of favor rei, according to which criminal rules have to be interpreted in favour of the accused. In light of these principles, international courts and tribunals should perhaps be more restrictive in their determinations that a certain type of armed conflict existed.94

12.4

Two Interesting Developments with Regard to Armed Groups Exercising Control and Conflict Classification

12.4.1 Occupation by Proxy In the very last judgment of the ICTY before the Tribunal morphed into a residual mechanism, the appeal judgment in Prlić et al., the Appeals Chamber made some interesting clarifications on the concept of occupation by proxy—a topic that had been touched upon by the Prlić et al. in its judgment. Pursuant to Article 2 of the ICTY Statute, the Prosecution had charged grave breaches of the 1949 Geneva Conventions.95 As noted above, in its first case, and consistently thereafter, the ICTY had found that for the grave breaches regime to be applicable, an international armed conflict must have existed at the time of the alleged conduct.96 In the trial judgment, the Prlić et al. Trial Chamber had to consider whether an international armed conflict existed at the relevant time. The 93

See, e.g., Article 66 of the Rome Statute of the International Criminal Court; and ICTY, Prosecutor v. Limaj et al., Case No. IT-03-66-A, Judgment (Appeals Chamber), 27 September 2007, para 21. 94 See similarly Bartels 2017, p. 65. 95 The “grave breaches” of the 1949 Geneva Conventions are a limited list of crimes that can be committed against persons specifically protected by these conventions. The 1949 Geneva Conventions establish individual criminal responsibility for those crimes (see Articles 50, 51, 130, and 147 of the four 1949 Geneva Conventions, respectively. 96 Tadić Jurisdiction Decision, para 81.

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territorial scope of any IHL applicable during an international armed conflict is, at a minimum, the entire territory of the belligerent States. However, in a rather peculiar manner, the Trial Chamber had considered for each of the municipalities where crimes allegedly had been committed, whether an international armed conflict existed in the relevant municipality—even though all the villages and towns were located within one and the same State, namely Bosnia-Herzegovina. When called upon to clarify this aspect of the trial judgment, the Appeals Chamber recalled that “an armed conflict is not limited to the specific geographical municipalities where acts of violence and actual fighting occur, or to the specific periods of actual combat.”97 It explained that the question whether a specific situation constitutes an “armed conflict” for the purposes of the ICTY Statute requires a holistic evaluation of the parameters of the alleged conflict.98 The Appeals Chamber therefore reversed the Trial Chamber’s “erroneous” conclusions that no international armed conflict existed in some of the charged municipalities, namely those where no active combat was taking place.99 As the state of occupation was thus not required for the conflict to have been international in nature at the relevant place and time, the question of occupation by proxy actually had become moot. As the ground of appeal included an alleged legal error of the Trial Chamber’s legal findings on occupation, the question whether a state of occupation could exist if the entity carrying out the effective control over the territory was a non-State actors under overall control by a third State, the Appeals Chamber nevertheless discussed the matter. The Trial Chamber, after having recalled the criteria for occupation as set out by the ICTY in Natelilić and Martinović, had stated that “if the Prosecution proves that the party to the armed conflict under the overall control of a foreign State fulfils the criteria for control of a territory as identified above, a state of occupation of that part of the territory is proven.”100 On appeal, two of the accused argued that the Trial Chamber had “erred in law in failing to find that it was Croatia, rather than the HVO, that occupied the relevant municipalities.”101 The Appeals Chamber first recalled Article 42 of the Hague Regulations and ICTY’s case law setting out the requirements for the establishment and exercise of authority by the occupying power.102 Then, the Appeals Chamber considered that “States should not be allowed to evade their obligations under the law of occupation through the use of proxies”.103 While observing that thus far the Tribunal, as well as the ICJ, had only implicitly accepted this to be the case, the Appeals Chamber held

97

Prlić et al. Appeal Judgment, para 230. Prlić et al. Appeal Judgment, para 230. 99 Prlić et al. Appeal Judgment, para 233. 100 ICTY, Prosecutor v Prlić et al., Case No. IT-04-74-T, Judgment (Trial Chamber), 29 May 2013, Volume I, para 96. 101 Prlić et al. Appeal Judgment, para 230. 102 Prlić et al. Appeal Judgment, paras 316–321. 103 Prlić et al. Appeal Judgment, para 232. 98

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that the authority of an Occupying Power “may be exercised by proxy through de facto organised and hierarchically structured groups”.104 The ICTY Appeals Chamber’s explicit recognition of the occupation by proxy is an interesting contribution to the development of the IHL. Following this finding, the law of occupation applies when an armed group under overall control of a third State exercises effective control over a territory.105 Making such a determination requires a two-staged assessment of the control exercised. However, it appears that in order to exercise effective control over the occupied territory and its population, the third State would need to have effective control, rather than merely overall control, over the armed group. If not, it would be the armed group, rather than the third State, being the occupier. However, non-State actors cannot be Occupying Powers. Nonetheless, an organised armed group may exercise such a level of control over (part of) a territory that an occupation-like situation arises. Two recent considerations of such a situation by the ICC are discussed next.

12.4.2 ‘Occupation’ by Organised Armed Groups At the ICC, in the Al Mahdi case, which concerned the destruction of the mausoleums in Timbuktu, another “occupation”-like control over territory by an armed group came up. As a result of the guilty plea, the Trial Chamber only had to verify whether “the admission of guilt [was] supported by the facts of the case”.106 The information before the Chamber in relation to the contextual elements of war crimes was therefore very limited.107 Based on the limited facts, the Chamber was nonetheless satisfied that the alleged acts occurred in the context of and were associated with a non-international armed conflict between the Malian government forces and organised armed groups, including Ansar Dine and Al-Qaeda in the Islamic Maghreb (AQIM).108 Faced with a situation where the (limited) facts did not establish that any actual hostilities were taking place at the time relevant to the charges, the Al Mahdi Trial Chamber made a rather novel finding on the intensity criterion.109 It noted “that the Prlić et al. Appeal Judgment, para 322. In making this finding, the Appeals Chamber relied on, inter alia, Melzer 2019 and Dinstein 2009. 105 For an early discussion of this possibility, see Gal 2014. 106 ICC, Prosecutor v Al Mahdi, Case No. ICC-01/12-01/15, Judgment and Sentence (Trial Chamber), 27 September 2016 (Al Mahdi Judgment), para 29. 107 Al Mahdi Judgment, para 29. 108 Al Mahdi Judgment, para 49. 109 Various ICTY trial chambers have clarified the notion of NIAC, highlighting two requirements: (i) the existence of (at least) two parties of an organised nature, that are (ii) fighting each other with a certain level of intensity. ICTY, Prosecutor v Dusko Tadić, Case No. IT-94-1-A, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (Appeals Chamber), 2 October 1995 (Tadić Jurisdiction Decision), para 562. The International Criminal Tribunal for Rwanda (ICTR) 104

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fact that these groups exercised control over such a large part of Mali for such a protracted period—with the resulting effect on the civilian population concerned— clearly demonstrates a sufficient degree of intensity of the conflict.”110 More recently, the Ntaganda Trial Chamber expanded on this idea. The Ntaganda Trial Chamber, while recalling that exercise of control over a part of the territory is not required to fulfil the organisation requirement, held that in the absence of active hostilities, such control “may be a determinative factor in assessing whether the intensity threshold is fulfilled.”111 It clarified that “in the absence of any direct clashes during certain periods”, control by an organised armed group indicates that the government or any other opposing armed groups “were either unable or unwilling to challenge the [group]’s control over the areas concerned”.112 IHL must indeed continue to apply to situations that would amount to occupation if the belligerent party exercising effective control would be a State instead of a non-State actor. Although the concept of occupation does not exist in non-international armed conflict, precisely because States do not want bestow on non-State actors the authority and recognition that comes with being an Occupying Power, by controlling part of a State’s territory to the detriment of the governmental authorities in such a manner that the government could only regain its authority, and thereby effective control, over that territory through the use of armed force, the intensity requirement ought to be considered as being fulfilled, also if no armed confrontations take place for a prolonged period.113 This is so, because “the absence of armed clashes between government forces and the armed group are likely to be due to the government’s inability to challenge the armed group’s control over part of its territory, for example, because the armed group is considered too strong to be ousted militarily.”114 The continued application of IHL during such periods of effective control by an organised armed group is important to ensure that the population that lives under the said control continues to benefit from the protective regime of IHL. Especially

followed this approach in its first case: ICTR, Prosecutor v Akayesu, Case No. ICTR-96-4-T, Judgment (Trial Chamber), 2 September 1998, para 620. Subsequently, other chambers of these tribunals concluded that “protracted” refers more to the “intensity” of the violence than to its duration. See e.g., ICTY, Prosecutor v Delalić et al., Case No. IT-96-21-T, Judgment (Trial Chamber), 16 November 1998, para 184; ICTY, Prosecutor v Kordić and Čerkez, Case No. IT-95-14/2-A, Judgment (Appeals Chamber), 17 December 2004, para 341; ICTY, Prosecutor v Limaj et al., Case No. IT-03-66-T, Judgment (Trial Chamber), 30 November 2005, para 84, ICTY, Prosecutor v Haradinaj et al., Case No. IT-04-84-T, Judgment (Trial Chamber), 3 April 2008, para 38; ICTR, Prosecutor v Musema, Case No. ICTR-96-13-T, Judgment (Trial Chamber), 27 January 2000, para 248–251. 110 Al Mahdi Judgment, para 49. 111 Ntaganda Trial Judgment, para 717. 112 Ntaganda Trial Judgment, para 721. 113 Bartels 2017, pp. 471–472. 114 Bartels 2017, p. 472.

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since the rules that govern the behaviour of the government cannot be effectuated in such situations, and because the question whether international human rights law binds organised armed groups is still very much debated.115

12.5

Concluding Remarks

The ICJ considered that acts by an armed group could only be seen as having been committed on behalf of a State, if the State had effective control over the group. The ICTY, when faced with support of armed groups and questions of conflict classification, developed a different, lower standard of control to assess the impact of third State involvement. Since then, the ICTY’s overall control test has been applied by international criminal courts and tribunals to determine whether State support for an armed group fighting a government internationalises a situation so as to amount to an international armed conflict. The cases discussed in this contribution show that the adoption of the lower standard may raise fair trial rights questions. The standard is easier to be satisfied and thus easier to prove, requiring less or different evidence. If classification of the conflict as international is not beneficial for the accused, what then justifies applying the lower standard? If, however, a finding that the conflict was international in nature benefits the accused, and his or her defence team argues that an international armed conflict existed, can the accused then be made to prove that a third State exercised the required level of control, especially when such third State actions are generally done in a covert manner? The present contribution shows that one has to be mindful that the methodology for conflict classification under IHL may impact on the rights of the accused if that methodology is applied in the same way during international criminal trials. As regards conflict classification, besides previously having significantly assisted IHL by clarifying what factors and indicators may be looked at the determine whether the organisation and intensity requirements for the existence of a non-international armed conflict are fulfilled,116 the international criminal case law has recently provided to welcome developments. The ICTY recognised that occupation by proxy is possible if a State exercises effective control over a territory through an armed group that is under its overall control. At the ICC, the idea that an organised armed group can exercise an occupation-like form of control over a territory and that thereby the intensity requirement for the existence of a non-international armed conflict may be fulfilled, has been accepted and explained. In academic scholarship similar proposals have

115

See the contribution by Katharine Fortin and Jann Kleffner in Chap. 15 in the present volume. See further Fortin 2017. 116 See, most specifically, ICTY, Prosecutor v Boškoski and Tarculovski, Case No. IT-04-82-T, Judgment (Trial Chamber), 10 July 2008.

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been made.117 The ICC’s recognition that a non-international armed conflict does not require constant fighting, so long as an organised armed group exercises effective control of a certain territory, is a welcome development, as it means that IHL continues to govern the acts of this group vis-à-vis the population that lives under its control during such time.

References

Articles, Books and Other Documents Akande D (2012) Classification of Armed Conflicts: Relevant Legal Concepts. In: Wilmshurst E (ed) International Law and the Classification of Conflicts. Oxford University Press, Oxford, pp. 32–79 Ambos K (2012) The First Judgment of the International Criminal Court (Prosecutor v. Lubanga): A Comprehensive Analysis of the Legal Issues. International Criminal Law Review 12(2):115– 153 Bartels R (2012) The organisational requirement for the threshold of non-international armed conflict applied to the Syrian opposition. Armed Groups and International Law Blog (post of 9 August 2012), available at https://armedgroups-internationallaw.org/2012/08/09/theorganisational-requirement-for-the-threshold-of-noninternational-armed-conflict-applied-tothe-syrian-opposition/ Bartels R (2017) A Fine Line Between Protection and Humanisation: The Interplay Between the Scope of Application of International Humanitarian Law and Jurisdiction over Alleged War Crimes Under International Criminal Law. Yearbook of International Humanitarian Law 20:37–74 Bartels R (2018) When Do Terrorist Organisations Qualify as “Parties to an Armed Conflict” Under International Humanitarian Law? Military Law and Law of War Review 56:451–488 Cassese A (2003) The Nicaragua and Tadić Tests Revisited in Light of the ICJ Judgment on Genocide in Bosnia. The European Journal of International Law 18(4):653–663 Cryer R (2014) The relationship of international humanitarian law and war crimes: international criminal tribunals and their statutes. In: Harvey C, Summers J, White ND (eds) Contemporary Challenges to the Laws of War: Essays in Honour of Professor Peter Rowe. Cambridge University Press, Cambridge, pp. 117–146 Cryer R et al (eds) (2014) An Introduction to International Criminal Law and Procedure, 3rd edn. Cambridge University Press, Cambridge Cullen A (2015) The Characterization of Armed Conflict in the Jurisprudence of the ICC. In: Stahn C (ed) The Law and Practice of the International Criminal Court. Oxford University Press, Oxford, pp. 762–777 Decoeur H (2013) Avoiding Strict Liability in Mixed Conflicts: A Subjectivist Approach to the Contextual Element of War Crimes. International Criminal Law Review 13(2):473–492 Dinstein Y (2009) The International Law of Belligerent Occupation. Cambridge University Press, Cambridge Fortin K (2017) The Accountability of Armed Groups under Human Rights Law. Oxford University Press, Oxford

117

See, e.g., Bartels 2017, pp. 471–472; see, however, Sassòli 2017 , p. 53, for a different view.

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Gal T (2014) Unexplored Outcomes of Tadić: Applicability of the Law of Occupation to War by Proxy. Journal of International Criminal Justice 12(1):59–80 Gill TD (1989) Litigation Strategy at the International Court: A Case Study of the Nicaragua v. United States Dispute. Martinus Nijhoff Publishers, Leiden Gill TD (2016) Classifying the Conflict in Syria. International Law Studies (Naval War College) 92:353–380 ICRC (2016) Commentary to the First Geneva Convention of 1949. Cambridge University Press, Cambridge Jorritsma R (2018) Where General International Law meets International Humanitarian Law: Attribution of Conduct and the Classification of Armed Conflicts. Journal of Conflict and Security Law 23(3):405–431 Liefländer TR (2012) The Lubanga Judgment of the ICC: More than just the First Step? Cambridge Journal of International and Comparative Law 1(1):191–212 Melzer N (2019) International Humanitarian Law: A Comprehensive Introduction. ICRC, Geneva New Zealand Defence Force (2019) Manual of Armed Forces Law: Law of Armed Conflict (Vol 4), 2nd edn. Njikam O (2013) The Contribution of the Special Court for Sierra Leone to the Development of International Humanitarian Law. Duncker & Humblot, Berlin Orie AMM (2012) Stare decisis in the ICTY Appeal System? Successor Responsibility in the Hadžihasanović Case. Journal of International Criminal Justice, 10(3):635–644 Quénivet N (2014) Applicability Test of Additional Protocol II and Common Article 3 for Crimes in Internal Armed Conflict. In: Jinks D, Maogoto JN, Solomon S (eds) Applying International Humanitarian Law in Judicial and Quasi-Judicial Bodies. T.M.C. Asser Press, The Hague, pp. 31–60 Sassòli M (2001) The Legal Qualification of the Conflicts in the Former Yugoslavia: Double Standards or New Horizons for International Humanitarian Law? In: Yee S, Tieya W (eds) International Law in the Post-Cold War World: Essays in Memory of Li Haopie. Routledge, London, pp. 324–333 Sassòli M (2017) Legal Qualification of the Fight Against Terrorism. In: Kolanowski S (ed) Proceedings of the 17th Bruges Colloquium ‘Terrorism, Counter-terrorism and International Humanitarian Law’. College of Europe/ICRC, Bruges, pp. 47–55 Sassòli M (2019) International Humanitarian Law: Rules, Controversies, and Solutions to Problems Arising in Warfare. Edward Elgar, Cheltenham Shaw M (2003) International Law, 5th edn. Cambridge University Press, Cambridge Simma B (2009) Universality of International Law from the Perspective of a Practitioner. European Journal of International Law 20(2):265–297 Sivakumaran S (2011) Re-envisaging the International Law of Internal Armed Conflict. The European Journal of International Law 22(1):219–264 Stahn C (2014) Justice Delivered or Justice Denied? The Legacy of the Katanga Judgment. Journal of International Criminal Justice 12(4):809–834 Ventura MJ (2013) Two Controversies in the Lubanga Trial Judgment of the International Criminal Court: The Nature of Co‐perpetration’s Common Plan and the Classification of the Armed Conflict. In: Casey-Maslen S (ed) The War Report 2012. Oxford University Press, Oxford, pp. 483–491

Cases ICJ ICJ, Case Concerning Military and Paramilitary Activities in and Against Nicaragua (The Republic of Nicaragua v The United States of America) (Merits), Judgment, 27 June 1986 ICJ, Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Merits) Judgment, 26 February 2007

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ICC ICC, Prosecutor v Bemba, Judgment pursuant to Article 74 of the Statute (Trial Chamber), 21 March 2016, Case No. ICC-01/05-01/08 CC, Prosecutor v Katanga, Judgment pursuant to article 74 of the Statute, 7 March 2014, Case No. ICC-01/04-01/07 ICC, Prosecutor v Lubanga, Decision on the confirmation of charges (Pre-Trial Chamber), 29 January 2007, Case No. ICC-01/04-01/06 ICC, Prosecutor v Lubanga, Judgment Pursuant to Article 74 of the Statute (Trial Chamber), 14 March 2012, Case No. ICC-01/04-01/06 ICC, Prosecutor v Al Mahdi, Judgment and Sentence (Trial Chamber), 27 September 2016, Case No. ICC-01/12-01/15 ICC, Prosecutor v Ntaganda, Judgment (Trial Chamber), 8 July 2019, Case No. ICC-01/04-02/06 ICTR ICTR, Prosecutor v Akayesu, Judgment (Trial Chamber), 2 September 1998, Case No. ICTR-96-4-T ICTR, Prosecutor v Musema, Judgment (Trial Chamber), 27 January 2000, Case No. ICTR-96-13-T ICTY ICTY, Prosecutor v Aleksovski, Judgment (Appeals Chamber), 24 March 2000, Case No. IT-95-14/1-A ICTY, Prosecutor v Aleksovski, Joint Opinion of the Majority, Judge Vohrah and Judge Nieto-Navia, on the Applicability of Article 2 of the Statute Pursuant to Paragraph 46 of the Judgement, 25 June 1999, Case No. IT-95-14/1-T ICTY, Prosecutor v. Blaškić, Judgment (Trial Chamber), 3 March 2000, Case No. IT-95-14 ICTY, Prosecutor v Boškoski and Tarčulovski, Judgment (Trial Chamber), 10 July 2008, Case No. IT-04-82-T ICTY, Prosecutor v Delalic et al., Judgment (Trial Chamber), 16 November 1998, Case No. IT-96-21-T ICTY, Prosecutor v Furundžija, Judgment (Trial Chamber), 10 December 1998, Case No. IT-95-17/1-T ICTY, Prosecutor v Galic, Judgment (Trial Chamber), 5 December 2003, Case No. IT-98-29-T ICTY, Prosecutor v Halilovic, Judgment (Trial Chamber), 16 November 2005, Case No. IT-01-48-T ICTY, Prosecutor v. Haradinaj et al., Judgment (Trial Chamber), 3 April 2008, Case No. IT-04-84-T ICTY, Prosecutor v Kordic and Cerkez, Judgment (Appeals Chamber), 17 December 2004, Case No. IT-95-14/2-A ICTY, Prosecutor v Kordic and Cerkez, Judgment (Appeals Chamber), 26 February 2001, Case No. IT-95-14/2-T ICTY, Prosecutor v. Limaj et al., Judgment (Appeals Chamber), 27 September 2007, Case No. IT-03-66-A ICTY, Prosecutor v Limaj et al., Judgment (Trial Chamber), 30 November 2005, Case No. IT-03-66-T ICTY, Prosecutor v Mrkšic et al., Judgment (Trial Chamber), 27 September 2007, Case No. IT-95-13/1-T ICTY, Prosecutor v. Natelilić and Martinović, Judgment (Trial Chamber), 31 March 2003, Case No. IT-98-34-T ICTY, Prosecutor v Popovic et al., Judgment (Trial Chamber), 10 June 2010, Case No. IT-05-88-T ICTY, Prosecutor v Prlic et al., Judgment (Appeals Chamber), 29 November 2017, Case No. IT-04-74-A ICTY, Prosecutor v Simic et al., Judgment (Trial Chamber), 17 October 2003, Case No. IT-95-9-T ICTY, Prosecutor v Dusko Tadic, Judgment (Appeals Chamber), 15 July 1999, Case No. IT-94-1 ICTY, Prosecutor v Dusko Tadic, Opinion and Judgment (Trial Chamber), 7 May 1997, Case No. IT-94-1-T

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ICTY, Prosecutor v Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (Appeals Chamber), 2 October 1995, Case No. IT-94-1-A SCSL SCSL, Prosecutor v. Fofana and Kondewa, Judgment (Trial Chamber I), 2 August 2007, Case No. SCSL-04-14-T SCSL, Prosecutor v. Norman, Fofana and Kondewa, Annex I to the Decision on Prosecution’s Motion for Judicial Notice and Admission of Evidence, 2 June 2004, Case No. SCSL-04-14-PT SCSL, Prosecutor v. Fofana, Decision on Preliminary Motion on Lack of Jurisdiction Materiae: Nature of the Armed Conflict (Appeals Chamber), 25 May 2004, Case No. SCSL-2003-11-PT SCSL, Prosecutor v. Fofana, Reply to the Prosecution Response to the Preliminary Defence Motion on Lack of Jurisdiction Materiae: Nature of the Armed Conflict (Fofana Defence), 30 November 2003, Case No. SCSL-2003-11-PT SCSL, Prosecutor v. Taylor, Judgment (Appeals Chamber), 26 December 2013, Case No. SCSL-03-01-A SCSL, Prosecutor v. Taylor, Judgment (Trial Chamber II), 18 May 2012, Case No. SCSL-03-01-T SCSL, Prosecutor v Sesay, Kallon and Gbao, Judgment (Trial Chamber), 2 March 2009, Case No. SCSL-04-15-T

Treaties and Agreements Regulations Respecting the Laws and Customs of War on Land, Annex to the 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land, 100 BFSP 338, reprinted in 2 AJIL (1908) Supp. p. 90 Statute of the International Criminal Tribunal for the former Yugoslavia, 32 ILM (1993) p. 1159 Statute of the Special Court for Sierra Leone, annexed to the Agreement between the United National and the Government of Sierra Leone on the establishment of a Special Court for Sierra Leone (16 January 2002), 2178 UNTS p. 137 UN General Assembly, Rome Statute of the International Criminal Court (17 July 1998), United Nations, Treaty Series, vol. 2187, No. 38544

Rogier Bartels is a Legal Officer in Chambers (Trial Division) at the International Criminal Court, a post-doctoral research fellow at the Federmann Cyber Security Center of the Hebrew University of Jerusalem, and a part-time judge in the criminal law department of the District Court of Amsterdam. Terry Gill is one of the supervisors of his recently submitted Ph.D. thesis on the interplay between international humanitarian law and international criminal law, at the University of Amsterdam.

Chapter 13

The Requirement of Effective Control in the Law of Occupation Marten Zwanenburg

Contents 13.1 13.2 13.3 13.4 13.5

A Personal Note by the Author ...................................................................................... Introduction...................................................................................................................... Effective Control as a Requirement for Occupation: A Factual Criterion..................... The Former Government Is Incapable of Publicly Exercising Its Authority................. The Occupying Power Is in a Position to Substitute Its Own Authority for that of the Former Government ................................................................................ 13.6 A Different Threshold Under GC IV? ............................................................................ 13.7 ‘Effective Control’ in the Context of Indirect or Proxy Occupation ............................. 13.8 Conclusion ....................................................................................................................... References ..................................................................................................................................

264 264 265 267 269 272 274 278 279

Abstract This chapter focuses on the impact of control on occupation. Whether a State exercises effective control over territory of another State determines whether that territory is occupied. In other words, whether an occupation, i.e. a form of international armed conflict, exists and the law of occupation applies. If so, the State exercising effective control is an ‘Occupying Power’. This contribution first addresses the role of the notion of effective control in the law of occupation. The second part deals with a possible second function of the notion of effective control,

This contribution was written in a personal capacity and the views set forth do not necessarily reflect those of the Ministry of Foreign Affairs or the Ministry of Defence of the Netherlands or any other part of the government of the Netherlands. The author is grateful to Natia Kalandarishvili-Mueller and Rogier Bartels for useful comments on a previous version of this contribution. M. Zwanenburg (&) Netherlands Defence Academy, Breda, The Netherlands e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2021 R. Bartels et al. (eds.), Military Operations and the Notion of Control Under International Law, https://doi.org/10.1007/978-94-6265-395-5_13

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related to the phenomenon of occupation by proxy, when territory is occupied by an entity that is not part of a State, usually an organized armed group, acting on behalf of a State.








Keywords International humanitarian law law of occupation Occupying Power Fourth Geneva Convention of 1949 effective control non-State actors ICTY International Court of Justice





13.1







A Personal Note by the Author

It was through one of his articles, which was of great value to me in completing my Ph.D., that I was first introduced to Professor Gill. Although I did not know this at the time, the article reflected many of his qualities as a scholar and a teacher: thorough, perceptive and eloquent. Many years and many interactions with Professor Gill later, it is a pleasure to be able to contribute to this collection of essays in his honour. This relates to the field of International Humanitarian Law, to the study of which Professor Gill has contributed greatly.

13.2

Introduction

The notion of ‘effective control’ plays an important role in international law. It is employed in various subfields, including the law of state responsibility and human rights. As this contribution will attempt to illustrate, it is also a vital element of the law of occupation, which itself is part of International Humanitarian Law (IHL). This is because whether a State exercises effective control over territory of another State, determines whether that territory is occupied. Only if the territory is occupied, does the law of occupation apply. In that case the State exercising effective control is an ‘Occupying Power’. The first part of the contribution deals with this role of the notion of effective control in the law of occupation. The second part of the contribution deals with a possible second function of the notion of effective control. The latter is related to the phenomenon of occupation by proxy, i.e. the occupation of territory by an entity that is not part of a State, usually an organized armed group, acting on behalf of a State. In this context, effective control is one of two different tests put forward in case law and literature for the purpose of determining whether the connection between the organized armed group and the State is close enough to conclude that the former is acting for the latter. If that is the case and the organized group exercises effective control over territory, it can be said that it is occupying the territory as a proxy of the State.

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13.3

265

Effective Control as a Requirement for Occupation: A Factual Criterion

The Geneva Conventions of 1949 and the Additional Protocol I of 1977 refer to occupation, but they do not contain a definition of the term. It is generally accepted that the test for determining whether or not there is an occupation is set out in Article 42 of the 1907 Hague Regulations. In its judgment in Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), the International Court of Justice (ICJ) held that the test for determining whether territory is occupied under customary law is reflected in Article 42 Hague Regulations.1 This article provides, in the authentic French version: Un territoire est considéré comme occupé lorsqu’il se trouve placé de fait sous l’autorité de l’armée ennemie. L’occupation ne s’étend qu’aux territoires où cette autorité est établie et en mesure de s’exercer.2

The formulation of the article makes clear that the test is a factual one. This is underlined by the use of the words “de fait”. Consequently, the determination whether a territory is occupied needs to be made on the basis of an evaluation of the facts on the ground.3 It is not dependent on the subjective assessment of the situation by one or more of the parties concerned.4 It also means that an occupation cannot be established simply by stating so. As the UK Law of War Manual provides: “Mere proclamation of occupation is insufficient to bring an occupation into existence.”5 It is necessary that the territory concerned has been placed under the authority of the armed forces of the enemy as a matter of fact, and that that authority can subsequently be exercised.6 The formulation of Article 42 raises the question when this criterion is met. In other words, how much authority does there need to be over territory, and what requirements does the exercise of that authority need to meet, before it can be said that the territory concerned is occupied?

1

ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, 19 December 2005 (Armed Activities), (2005) ICJ Rep 168, para 172. 2 The English version reads: “Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.” 3 Benvenisti 2012, p. 43; Kolb and Vité 2009, pp. 63–64. 4 Cuyckens 2017, p. 21. 5 United Kingdom Ministry of Defence 2004, p. 276. 6 See Dinstein 2009, p. 42.

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In modern-day literature and case law, the criterion of authority is usually recast as “effective control.”7 Gill has written that the “key notion in determining whether the provisions relating to occupation are applicable is that of ‘effective control’.”8 The word “effective”, like the words “de fait” in Article 42 of the 1907 Hague Regulations, serves to highlight the factual nature of the control that is required. The formulation of Article 42 does not clarify at which point there is sufficient control to be able to say that control is “effective”, however. It is generally considered that to determine whether there is “effective control” and thus an occupation, two requirements must be met.9 These two requirements are in fact two sides of the same coin. The first is that the former government has been rendered incapable of publicly exercising its authority in the occupied area. The second is that the Occupying Power is in a position to substitute its own authority for that of the former Government. These two elements are reflected in many military manuals, including those of the United Kingdom (UK) and the United States (US). The elements are discussed in more detail in the following sections. Before doing so, however, it is important to point out that the prevailing view is that the object of the authority concerned is territory, and not primarily the population in that territory.10 Judicial opinion also mainly subscribes to the test of effective territorial control.11 A possible exception is the judgment of the ICJ in the Armed Activities case. This judgment, with regards to Uganda’s alleged occupation of parts of the territory of the Democratic Republic of Congo (DRC), can be read as implying that there must be control over the population in addition to control over territory. In particular, the Court considered relevant that a Ugandan officer, General Kazini, appointed a new governor for the Congolese province of Ituri. The ICJ considered that regardless of whether or not General Kazini, commander of the Ugandan forces in the DRC, acted in violation of orders and was punished as a result, his conduct is clear evidence of the fact that Uganda established and exercised authority in Ituri as an occupying Power.12

7

See e.g. Dinstein 2009, p. 42. Gill 2009, p. 368. 9 Different numbers and formulations of criteria have been suggested by different authorities and institutions. See e.g. the report of an expert process led by the ICRC, which states that there are three criteria: (a) presence of foreign forces, (b) the exercise of authority over the occupied territory and (c) the non-consensual nature of the occupation. ICRC 2016, p. 10. It is submitted that these criteria are (explicitly or implicitly) included in the two criteria proposed by the author. 10 An exception is Benvenisti, who suggests that in addition to control over territory, control over the population is also required. Benvenisti 2012, p. 47. 11 Benvenisti 2012, p. 49. 12 Armed Activities, above n 1, para 176. 8

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This can be read as the ICJ requiring the exercise of direct authority over a population for there to be an occupation, in addition to control over territory.13 This requirement was criticized by Judge Kooijmans in his separate opinion to the judgment.14 As noted above, it also does not find support in most of the literature and in the jurisprudence of other domestic and international courts.15 An interpretation that places the potential control of the occupying power over the population at the heart of occupation is supported by case law, some military manuals and a large body of literature.16 If this were not so, the Occupying Power would be able to circumvent its obligations by simply refusing to establish the control it is in a position to establish. This would not be in accordance with the object and purpose of the law of occupation, which is to ensure a measure of stability and order in the occupied territory and so to balance and safeguard the interests of the displaced sovereign and the local population next to those of the occupying power. This is the idea underlying the obligation of the occupying power in Article 43 Hague Regulations to restore, and ensure, as far as possible, public order and safety.

13.4

The Former Government Is Incapable of Publicly Exercising Its Authority

The first element required for there to be an occupation is that the former government is incapable of publicly exercising its authority. A clear indication for this is that the armed forces of that government are no longer able to resist. This may take the form of surrender, defeat or withdrawal of such forces. For example, the occupation of the Netherlands by Germany during World War II is generally considered to have started on 15 May 1940, the day on which the surrender of the Dutch armed forces was signed by the Chief of Defence General Winkelman.17 The former government may relocate to the territory of an allied state, or a new government-in-exile may be established there. However, the existence of a government-in-exile does not affect the existence of an occupation. This is because such a government is not effective: it is not capable of (publicly) exercising its

13

Benvenisti 2012, p. 50. Armed Activities, above n 1, separate opinion of Judge Kooijmans. 15 With some exceptions. Dinstein for example states that the sheer non-consensual stationing of troops somewhere in the territory of another state does not satisfy the need for the consolidation of belligerent occupation around them. There have to be signs of effective control radiating in the environs, in a manner supplanting the authority of the displaced sovereign. Dinstein 2009, p. 43. Dinstein goes on to cite from the Armed Activities judgment with approval. 16 Ferraro 2012, p. 150; Koutroulis 2010, p. 58; ICRC 2012, pp. 19–20; Koutroulis 2010, p. 58. 17 de Jong 1970, p. 371. It may be noted that the surrender did not include the province of Zeeland, in which fighting continued for several days. As a consequence, this province was occupied later than the rest of the country. 14

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authority in the occupied territory.18 Again, the Netherlands during World War II provides an example. Upon the invasion by Germany, the Dutch government fled to London and took up its work for the liberation of the Netherlands from there. This again shows that the notion of occupation is essentially a factual one. A government-in-exile will as a rule continue to be recognized as the entity with legal title to the territory concerned. It may legislate for the territory and conclude treaties on behalf of the territory. But it is not in a position to actually enforce such legislation or treaties in the territory. In other words, it does not have effective control the way governments normally do over their territory. The fact that regional and local authorities continue to exercise authority in the occupied territory does not affect an occupation. As the US Law of War Manual states, “The suspension and substitution of authority may take place with local authorities continuing to administer territory subject to the paramount authority of the Occupying Power.”19 What matters is whether any pre-existing authority in the occupied territory (or, for that matter, any new authority) is subject to the authority of the Occupying Power. The UK Law of War Manual states in this context: In some cases, occupying troops have operated indirectly through an existing or newly appointed indigenous government. […] In such cases, despite certain differences from the classic form of military occupation, the law relating to military occupation is likely to be applicable.20

Indeed, the law of occupation envisages that national or local authorities will continue to exercise their functions. This is reflected in the wording of, inter alia, Articles 50, 54 and 56 of Geneva Convention IV. Article 50 provides that the Occupying Power shall facilitate the proper working of all institutions devoted to the care and education of children. It is to do so “with the co-operation of the national and local authorities.” That the determinative factor is whether the original authorities are able to exercise effective control or not, is also reflected in the judgment of the Trial Chamber of the ICC in the Katanga case. In this case, the Trial Chamber considered the lack of such control by the central and regional authorities of the DRC relevant in determining that the province of Ituri was occupied by Uganda. It held that: at no point during the period under consideration was the DRC able to exercise fully its sovereignty over Ituri. Both central and regional governmental authorities proved incapable of functioning publicly and performing their role on that part of its territory, even though they engaged in a counter-offensive in November 2002.21

18

Kelsen 1952, p. 288. United States Department of Defense 2016, p. 766. 20 UK Ministry of Defence 2004, p. 276. 21 ICC, Prosecutor v. Germain Katanga, Judgment, 7 March 2014, Case No. ICC-01/04-01/ 07-34-36-T, para 1201. 19

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269

The Occupying Power Is in a Position to Substitute Its Own Authority for that of the Former Government

The second element of an occupation is that the Occupying Power is in a position to substitute its own authority for that of the former Government. The clearest indication of the Occupying Power exercising its own authority is when it establishes an administration of the territory. An example is the establishment of the Coalition Provisional Authority (CPA) by the United States and the United Kingdom in Iraq in 2003. In the first regulation issued by this authority, its administrator clarified that the CPA shall exercise powers of government temporarily in order to provide for the effective administration of Iraq.22 The preamble to the regulation referred inter alia to UN Security Council Resolutions, including resolution 1483, and the laws and usages of war. The latter was an indirect reference to the law of occupation. The former recognized in its preamble the specific authorities, responsibilities, and obligations under applicable international law of the UK and US as Occupying Powers under unified command (the “Authority”).23 The establishment of an administration by the Occupying Power is however not a legal requirement for an occupation to exist. It is true that the US Military Tribunal in the Hostages Trial after World War II made the following statement, which appears to require such establishment: Whether an invasion has developed into an occupation is a question of fact. The term invasion implies a military operation while an occupation indicates the exercise of governmental authority to the exclusion of the established government. This presupposes the destruction of organized resistance and the establishment of an administration to preserve law and order.24

This statement by the Military Tribunal must however be seen against the background of the situation at that time. When the Tribunal issued its judgment, it was common practice for Occupying Powers to actually establish an administration of the occupied territory. This is a logical step to take in view of the responsibilities that arise for an Occupying Power on the basis of Article 43 of the Hague Regulations as soon as an occupation exists. This is no longer the practice today, however. The practice is more and more that occupants make use of arrangements where authority is to be exercised by transitional governments or organized armed groups or simply refrain from establishing an administrative system.25 To require the establishment of an administration by the Occupying Power could undermine the application of the law of occupation. It could lead such a power to attempt to

22

Coalition Provisional Authority, Regulation No. 1, 16 May 2003, Section 1 (1). UN Security Council, Resolution 1483 (2003), UN Doc. S/RES/1483, preambular para 13. 24 United States Military Tribunal, Nuremberg, Trial of Wilhelm List and others, Case No. 7, 19 February 1948 (Hostages), pp. 55–56. 25 See in this respect the separate opinion of Judge Kooijmans in the Armed Activities case, above n 1. 23

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evade its responsibilities by failing to establish such an administration, for the purpose of arguing that it is not an Occupying Power. The establishment of an administration may thus be regarded as one indication of occupation, but not as a requirement. This is the sense in which it was referred to by the International Criminal Tribunal for the former Yugoslavia (ICTY) in its judgment in the Naletiliċ and Martinoviċ case.26 The principal indication of the Occupying Power being in a position to substitute its own authority for that of the former Government is the control exercised by its armed forces in the territory instead of the ousted Government. It is principally through its armed forces that the Occupying Power exercises effective control. First of all, this presupposes the presence of those armed forces in the occupied territory to establish an occupation. For the establishment of an occupation it is necessary that the Occupying Power has “boots on the ground.”27 This does not mean that the Occupying Power must have forces present throughout the occupied territory. It is not realistic to expect it to be in position to deploy troops everywhere in the occupied territory.28 The US Law of War Manual states in this regard that military occupation does not require the presence of military forces in every populated area, although the occupying force must, inter alia, control the most important places.29 The manual does not specify what “the most important places” are. It is likely that drafters of the manual had in mind places of large military significance, such as geographically advantageous terrain, airfields, bases, and lines of communication. Control of such places is of primary importance to be able exercise control over the entire territory. The question is what the exact threshold of control is to be considered sufficiently “effective” for there to be an occupation. In this context Dinstein states that “defining the exact amount of control deemed objectively ‘effective’ is an imponderable problem.”30 The answer to this question will inevitable depend, to some extent, on the circumstances of the particular territory concerned. The US Law of War Manual, for example, states in this regard: Similarly, as long as the occupation is effective, there is no precise number of forces that are considered necessary to constitute an effective occupation. The number of forces necessary to maintain effective occupation will depend on various considerations, such as the disposition of the inhabitants, the number and density of the population, the nature of the terrain, and similar factors.31

In this context, it is generally accepted that the fact that there is sporadic local resistance to those forces after an occupation has been established does not affect 26

ICTY, Prosecutor v. Mladen Naletiliċ and Vinko Martinoviċ, Judgment, 31 March 2003, Case No. IT-98-34-T (Naletiliċ and Martinoviċ), para 221. 27 ICRC 2012, p. 17. 28 Dinstein 2009, p. 44. 29 US Department of Defense 2016, p. 764. 30 Dinstein 2009, p. 43. 31 US Department of Defense 2016, p. 765.

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the reality of occupation.32 The fact that the Occupying Power encounters guerrilla operations resulting in the resistance forces exercising a brief control over certain sections of the territory does not alter the legal status of occupation.33 Article 42 Hague Regulations requires that the authority of the Occupying Power can be exercised. It is therefore sufficient that the Occupying Power is in a position to re-establish its control over a part of the occupied territory where it has temporarily lost control, not that it has such control in every single part at every moment. This is reflected in the above-mentioned judgment of the American Military Tribunal in the Hostages case. The accused in this case were all high-ranking German military officials charged with responsibility for crimes committed by troops under their command during the occupation of Albania, Greece, Norway and Yugoslavia. The Tribunal held that: While it is true that the partisans were able to control sections of these countries at various times, it is established that the Germans could at any time they desired assume physical control of any part of the country.34

The fact that potential control is sufficient is also reflected in military manuals.35 It is supported in the literature as well.36 It may be noted however that the ICTY Trial Chamber judgment in the Naletilić and Martinović case can be read as pointing in a different direction.37 In this judgment the Trial Chamber held that “the law of occupation only applies to those areas actually controlled by the occupying power and ceases to apply where the occupying power no longer exercises an actual authority over the occupied area.”38 However, the Trial Chamber stated that one indication of an occupation is that “the occupying power has a sufficient force present, or the capacity to send troops within a reasonable time to make the authority of the occupying power felt.”39 It is submitted that this demonstrates that the Trial Chamber did not consider that actual control of every area within the occupied territory is required at all times. The general recognition that all of Iraq was occupied by the US and UK provides an illustration of the fact that the Occupying Power need not have physical control over every part of the territory at all times. There were many armed confrontations between local insurgents and the forces of those States and other States supporting the CPA, with those insurgents at times holding certain parts of the territory. This did not call into question the conclusion that Iraq was occupied, however.

32

US Department of Defense 2016, p. 765. Arai-Takahashi 2009, p. 7; Dinstein 2009, p. 45. 34 Hostages, above n 24, p. 56. 35 US Department of Defense 2016, p. 764; UK Ministry of Defence 2004, p. 276. 36 von Glahn 1957, p. 29; Ferraro 2012, p. 150. 37 This is the way the judgment is read by Cuyckens 2017, p 28. 38 Naletiliċ and Martinoviċ, above n 26, para 218. 39 Naletiliċ and Martinoviċ, above n 26, para 217. 33

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It was explained above that it is not necessary for the Occupying Power to have established a military administration over the territory for there to be an occupation. This was confirmed by the ICJ in the Armed Activities case.40

13.6

A Different Threshold Under GC IV?41

An important question is whether the test set out in Article 42 Hague Regulations is the same as applies to determining whether the rules on the law of occupation in Geneva Convention IV apply. The Convention itself is silent on this issue. It includes an important broadening of the scope of application of the law of occupation, by providing in Article 2(2) for its application in case of an occupation without resistance—that is, without a prior armed conflict. But it does not offer a definition of the term occupation. The ICRC Commentary to the Convention, edited by Jean Pictet, states that a separate, and different, test applies in the case of the Fourth Geneva Convention from the one in the Hague Regulations. The test employed by Pictet for determining whether there is an occupation for the purposes of the Fourth Geneva Convention is based on a particular reading of Article 4 of that convention. This reading is that the provisions on occupation in the Fourth Geneva Convention apply as soon as enemy forces exercise control over a protected person. Thus, the test applied is based on control over persons, rather than control over territory as required under the Hague Regulations. It has been adopted by a number of authors.42 Gill has also written in support of this test. He states that there is in fact no contradiction between the approach in Article 42 of the Hague Regulations and the ICRC Commentary if one bears in mind the distinct primary purpose of the provisions on occupation in the Hague Regulations and GC IV respectively. He states that both definitions are based on the existence of the notion of effective control and it is clear that this can mean one thing when it comes to the administration of territory in place of the sovereign which is no longer capable of doing so, and something else when it comes to the treatment of (groups of) individual civilians who find themselves in the power of the adversary’s armed forces who may or may not have the intention and capability of exercising governmental authority.43 This view also appears to have been embraced by the Trial Chamber in the Naletilić and Martinović case.44 There are serious arguments for questioning the ‘Pictet theory’, however. I have discussed these in detail elsewhere, and will therefore limit myself to summarizing

40

Armed Activities, above n 1, para 173. This section is based on Zwanenburg 2012. 42 See inter alia Benvenisti 2012, pp. 51–53; Siegrist 2011. 43 Gill 2009, p. 368; Sassòli 2012. 44 Naletiliċ and Martinoviċ, above n 26, paras 219–221. 41

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them here.45 One objection concerns the wording of Article 4 of the Fourth Geneva Convention. The relevant part of this article provides that: Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of an armed conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.

It is important to note that the article refers to persons who find themselves in the hands of, inter alia, an Occupying Power. The article thus appears to require a pre-existing occupation, in the context of which persons find themselves in the hands of the Occupying Power. In other words, the occupation does not come about through the fact that persons find themselves in the hands of a power. Accepting the theory put forward in the ICRC Commentary would lead to a situation in which the determination whether a person is a ‘protected person’ is conflated with the test for determining whether there is an occupation.46 This is difficult to reconcile with the existence of a section in the Fourth Geneva Convention that is specifically devoted to situations of occupation. It would also raise the question whether a distinction must be made between persons and goods as regards the situations in which they are protected. Part III, Section III of the Fourth Geneva Convention contains provisions protecting persons as well as provisions protecting goods. Under the theory in the ICRC Commentary, the threshold for application of the former would be lower than for the latter. The former would be protected by virtue of Article 4 of the Fourth Geneva Convention as soon as they found themselves in the hands of a Party to the conflict, whereas the latter would presumably only be protected in the case of an occupation in the sense of the Hague Regulations. It may also be noted that there is nothing in the travaux préparatoires of the Geneva Conventions to suggest that the drafters intended to depart from the previously accepted notion of occupation.47 If it had been their intention to include such a radical departure in the Fourth Geneva Convention, one would at the very least expect that such an intention would have been mentioned during the debates. One may wonder whether accepting the Pictet theory accords with the principle of effectiveness. In other words, it could be argued that it would lead to a situation in which an Occupying Power is in a position of material impossibility to fulfil obligations imposed on it. This would imply that the drafters of the Fourth Geneva Convention did not espouse the Pictet theory, as it cannot be supposed that they would accept obligations for their respective states that they knew those states would not be able to fulfil. In general, most of the provisions of Part III, Section III, of the Fourth Convention appear to presuppose the existence of effective control over a certain territory in order to be fully respected. This is particularly true for the ‘positive’ obligations included in this Section, namely those obligations that require Zwanenburg 2012. For arguments in favour of the ‘Pictet theory’, see inter alia ICRC 2012, pp. 24−26. 46 Koutroulis 2010, p. 69. 47 Zwanenburg 2007, p. 108. 45

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the Occupying Power to do something rather than refrain from doing something. Some might argue that, in view of the above, not all but only certain rights and obligations of the law of occupation would apply in a situation where protected persons find themselves in the hands of a Party to the conflict. This is problematic for two reasons. First, there is nothing in the text of the Fourth Geneva Convention to suggest such a differentiation between different obligations in Part III, Section III. Second, it is entirely unclear precisely which rights and obligations would apply in a situation where the Pictet theory applies, and which would not. This would create a situation in which states parties (as well as protected persons) would be left guessing which obligations they had in a particular situation. This is very undesirable from the perspective of legal certainty. It is certainly true that the primary purpose of the Hague Regulations and that of Geneva Convention IV is different. Whereas the former is principally concerned with safeguarding the rights of the displaced sovereign, the latter focuses on the protection of the population of the occupied territory.48 In principle, therefore, it would not be illogical for the two to use a different definition of the notion of occupation. A closer inspection of the language of Geneva Convention IV against the background of the system of that Convention, however, calls into question the argument that the convention does indeed include a different definition.49

13.7

‘Effective Control’ in the Context of Indirect or Proxy Occupation

The discussion above started from the premise that a State’s armed forces occupy a territory. In contemporary conflicts however, States are normally not the only actors involved. Often one or more organized armed groups also play a role. Some of these groups may be closely associated with a State. This raises the question whether such an organized group can occupy a territory on behalf of a State. There appears to be no reason why this could not be the case.50 In an armed conflict, the traditional situation is that a State acts through its armed forces. Those armed forces are an organ of the State, as a result of which their conduct is considered to be that of the State.51 Thus, if those forces occupy a territory, their State is considered to be an Occupying Power. The State is not limited to acting through its organs, however. It is also possible that it acts through agents that are

48

See also Kolb and Vité 2009, p. 68. See also Arai-Takahashi 2009, pp. 14–15; Cuyckens 2017, pp. 54–59. 50 See e.g. Koutroulis 2010, pp. 29–33. 51 Compare article 4 of the Draft Articles on the Responsibility of States drafted by the International Law Commission (ILC). Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries, report of the International Law Commission, Fifty-Third Session, UN Doc. A./56/10 (2001). 49

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not part of the formal state structure, as long as their conduct is controlled by the State. It is such control that makes that the conduct of those agents is considered to be conduct of the State. Following this line of reasoning, if an organized armed group has established such control over a territory as would be necessary for a State to be considered an Occupying Power and it is acting on behalf of a State, this could make that State an Occupying Power. The legal policy rationale for this position was set forth by the Appeals Chamber of the ICTY in its judgment in the Prlić et al. case, in which it stated that the “rationale behind this is that States should not be allowed to evade their obligations under the law of occupation through the use of proxies”.52 This possibility of “indirect occupation” or “proxy occupation” appears to find support in the literature.53 The possibility was accepted by the Trial Chamber of the ICTY in the Tadić case. In the context of determining whether persons in the hands of the Bosnian Serb Army were “protected persons” in the sense of Geneva Convention IV, the Trial Chamber in that case inquired whether the conduct of the Bosnian Serb army could be attributed to the Federal Republic of Yugoslavia. It held that as a rule of customary international law, the acts of persons, groups or organizations may be imputed to a State where they act as de facto organs or agents of that State. According to the Trial Chamber, in the case at hand the acts of the armed forces of the Republika Srpska, although nationals of the Republic of Bosnia and Herzegovina, could be imputed to the Federal Republic of Yugoslavia “if those forces were acting as de facto organs or agents of that State for that purpose or more generally”.54 The Trial Chamber held that: Were the Trial Chamber to make this imputation it would not be concerned further with questions of State responsibility for those acts; the Trial Chamber would conclude that the civilian victims of the accused’s acts were “protected persons” within the meaning of Geneva Convention IV as persons in territory occupied by a Party to the conflict of which they are not nationals.55

With regard to the question what the applicable standard for such imputation is, the Trial Chamber looked to the ICJ’s judgment in the Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) case, which applied the standard of effective control.56 The Appeals Chamber in the Tadić case was however of the view that the standard to be applied in such cases is that of overall control. This is a less exacting standard than the one of effective control. In the words of the Appeals Chamber:

52

ICTY, The Prosecutor v. Jadranko Prlić, Bruno Stojić, Slobodan Praljak, Milivoj Petković, Valentin Ćorić, Berislav Pušić, 29 November, 2017, Case. No. IT-04-74-A (Prlić et al. 2017), para 322. 53 See e.g. Ferraro 2012, p. 159; Gal 2014, p. 59; ICRC 2016, pp. 115–117. 54 ICTY, The Prosecutor v. Dusko Tadić, Judgment, 7 May 1997, Case No. IT-94-1 (Tadić 1997), para 584. 55 Tadić 1997, para 584. 56 Tadić 1997, para 585.

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The control required by international law may be deemed to exist when a State (or, in the context of an armed conflict, the Party to the conflict) has a role in organising, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group. Acts performed by the group or members thereof may be regarded as acts of de facto State organs regardless of any specific instruction by the controlling State concerning the commission of each of those acts.57

The Tadić Appeals Chamber, unlike the Trial Chamber, did not expressly refer to the possibility that a State can occupy territory through its overall control over an organized group which exercises effective control over that territory. The implication however is that there may be such a possibility.58 These conclusions were confirmed by another Trial Chamber of the ICTY in its judgment in the Blaškić case. This case concerned a commander of the Croatian Defence Council (HVO). The HVO was an organized armed group established by ethnic Croats in Bosnia and Herzegovina. Croatia occupied parts of Bosnia and Herzegovina but part of the territory was controlled by the HVO. The ICTY needed to determine if the law of occupation was applicable to the HVO with respect to the destruction of property. The Trial Chamber held that: Croatia played the role of occupying Power through the overall control it exercised over the HVO, the support it lent it and the close ties it maintained with it. Thus, by using the same reasoning which applies to establish the international nature of the conflict, the overall control exercised by Croatia over the HVO means that at the time of its destruction, the property of the Bosnian Muslims was under the control of Croatia and was in occupied territory.59

This finding was not overturned by the Appeals Chamber in its judgment in the Blaškić case.60 However, the Trial Chamber’s findings in Blaškić were challenged in Naletilić and Martinović. The Trial Chamber in that case had to determine the applicability of the law of occupation and in doing so took the opportunity to clarify its own interpretation and application of the law. In this context, it should be noted that: the jurisprudence of the Tribunal relating to the legal test applicable is inconsistent. In this context, the Chamber respectfully disagrees with the finding in the Blaškić Trial Judgement argued by the Prosecution. The overall control test, submitted in the Blaškić Trial Judgement, is not applicable to the determination of the existence of an occupation. The Chamber is of the view that there is an essential distinction between the determination of a state of occupation and that of the existence of an international armed conflict. The application of the overall control test is applicable to the latter. A further degree of control is required to establish occupation.61

57

Tadić 1997, para 137. Gilder 2017, p. 64. 59 ICTY, The Prosecutor v. Tihomir Blaškić, Judgment, 3 March 2000, Case No. IT-95-14-T (Blaškić 2000), para 149. 60 ICTY, The Prosecutor. v. Tihomir Blaškić, Judgment, 29 July 2004, Case No. IT-95-14-A. 61 Naletilić and Martinović 2003, para 214. 58

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Ferraro disagrees with this finding and contends the Chamber confused overall control of a territory with overall control of a non-state actor which has effective control over the territory in question.62 In the most recent judgment of the ICTY concerning occupation, the Appeals Chamber explicitly accepted what was already implicit in the judgment of the Appeals Chamber in the Blaskić case. In its judgment in the Prlić et al. case, the Appeals Chamber held that the requisite degree of control by a State over a non-state actor in the context of occupation by proxy is overall control.63 The ICJ in the Armed Activities case appeared to accept the possibility of occupation by proxy in principle. On the facts, however, it considered that: Neither can the Court uphold the DRC’s contention that Uganda was an occupying Power in areas outside Ituri controlled and administered by Congolese rebel movements. As the Court has already indicated, the evidence does not support the view that these groups were “under the control” of Uganda.64

The standard used by the Court to determine whether the rebel movements were acting on behalf of Uganda was whether those movements were acting on the instructions of, or under the direction or control of Uganda.65 “Effective control” is the shorthand used to describe that standard. The divergent approaches taken by the ICTY and the ICJ suggest that the law concerning the standard for occupation by proxy is unsettled. From a legal policy perspective, arguments can be made for preferring either standard. On the one hand, it could be argued that from a protection perspective, the overall control standard is preferable.66 Because this is the lower standard of the two, using it will make the law of occupation applicable more easily. It could be argued that this will increase the protection for the population of the territory, since the law of occupation contains a number of additional rights and safeguards for that population. On the other hand, the observation that a State that is not actually present in the territory with its own armed forces is an Occupying Power, may serve as an incentive for that State to physically enter the territory. If it is considered as an Occupying Power in any case, the decision-makers of the State might argue that it might as well take the step of deploying into the territory, since the opprobrium of being an Occupying Power has already been incurred. This could further undermine respect for the territorial integrity of states, which is a fundamental principle of international law. The development of State practice will have to provide further guidance on this issue.

62

Ferraro 2012, p. 159. Prlić et al. 2017, para 334. 64 Armed Activities, para 177, where the Court refers to para 160. 65 Armed Activities, para 160. 66 This appears to be the reasoning put forward by Gilder 2017, pp. 622–63. 63

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Conclusion

It is clear that, as Gill has noted, ‘effective control’ is the key notion in determining whether the provisions of IHL relating to occupation are applicable.67 Although those words are not to be found in any IHL instrument, they are used as shorthand to express the requirements in Article 42 Hague Regulations, both in the literature and by courts. This means that the expression ‘effective control’ has an autonomous meaning under IHL. In other words, there is not necessarily a correlation between the meaning of that expression in the context of IHL and, for example, its meaning as used in the context of human rights law.68 An important question with respect to the use of the expression ‘effective control’ in the context of occupation law is what must be controlled. In the context of Article 42 Hague Regulations, it is submitted that what must be controlled is territory. It has been suggested that in addition to control over territory, the Occupying Power must also control the population. The better interpretation of the test for occupation however stipulates that occupation begins when the foreign army is in actual control over enemy territory, and is in a position to establish, if it so wishes, an authority of its own over the population. This test finds support in most of the literature and in the jurisprudence of other domestic and most international courts. There is some controversy whether under Geneva Convention IV, there is a separate test which, if met, also makes the provisions on occupation in the convention applicable. The ICRC Commentary to the Convention suggests that this is the case. Such a test would be based on control exercised by enemy forces over an individual, rather than over territory. Although this test finds support in literature, including in the writing of Gill, there are serious arguments for questioning whether such a test is part of the lex lata. These arguments were set out in Sect. 13.6 above. Another important question with respect to the use of the expression ‘effective control’ in the context of occupation law is the level of control that must be maintained by the Occupying Power once it has established its authority. In particular, the question is whether actual control is required, or whether potential control is sufficient. It is submitted that it is sufficient that the Occupying Power is in a position to re-establish its control over a part of the occupied territory, not that it has such control over every single part of the territory at every moment. Against 67

Gill 2009. Consistent with this, for example, the European Court of Human Rights did not accept that the United Kingdom exercised “effective control” over Basra for the purposes of determining whether the ECHR applied, even though there was no doubt the UK was the occupying Power there in the sense of IHL. See Al-Skeini and others v. the United Kingdom, Grand Chamber judgment, 7 July 2011, Application no. 55721/07 (Al-Skeini). See also the criticism of Judge Bonello in his Concurring Opinion. Concurring Opinion of Judge Bonello, p. 78, paras 24–28. Judge Bonello considers that once a State is acknowledged by international law to be “an Occupying Power”, a rebuttable presumption ought to arise that the Occupying Power has “authority and control” over the occupied territory for the purposes of determining whether the ECHR is applicable.

68

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this background, the use of word ‘effective’ in the expression ‘effective control’ can be somewhat misleading. The notion of effective control may also play an important role in the context of so-called indirect occupation or occupation by proxy, i.e. the situation in which an organized armed group occupies a territory on behalf of a State. In this context, ‘effective control’ is one of two alternative standards that have been proposed for the purpose of determining whether the group is in fact acting on behalf of a State, the other standard being an ‘overall control’ test. The case law of international courts and tribunals, specifically of the ICTY and the ICJ, is inconsistent on this point. Future State practice may provide more guidance on which standard should be considered as lex lata. This contribution has set out a number of legal policy considerations that may be seen as supporting one standard or the other.

References Articles, Books and Other Documents Arai-Takahashi Y (2009) The Law of Occupation: Continuity and Change of International Humanitarian Law, and its Interaction with International Human Rights Law. Martinus Nijhoff, Leiden, Boston Benvenisti E (2012) The International Law of Occupation. Oxford University Press, Oxford Cuyckens H (2017) Revisiting the Law of Occupation. Brill, Leiden, Boston de Jong L (1970) Het Koninkrijk der Nederlanden in de Tweede Wereldoorlog, part 3, mei ’40. Sdu, The Hague Dinstein Y (2009) The International Law of Belligerent Occupation. Cambridge University Press, Cambridge Ferraro T (2012) Determining the Beginning and End of an Occupation under International Humanitarian Law. International Review of the Red Cross 94:133–163 Gal T (2014) Unexplored Outcomes of Tadić: Applicability of the Law of Occupation to War by Proxy. Journal of International Criminal Justice 12:59–80. Gilder A (2017) Bringing occupation into the 21st Century: The Effective Implementation of Occupation by Proxy. Utrecht Law Review 13:64–81 Gill T (2009) The Law of Belligerent Occupation: The Distinction between Invasion and Occupation of Disputed Territory. In: de Guttry A, Post HP, Venturini G (eds) The 1998–2000 War between Eritrea and Ethiopia: An International Legal Perspective. TMC Asser Press, The Hague, pp 365–370 ICRC (2012) Expert Meeting on Occupation and other Forms of Administration of Foreign Territory. ICRC, Geneva ICRC (2016) Commentary on the First Geneva Convention. Cambridge University Press, Cambridge Kelsen H (1952) Principles of International Law. Rinehart, New York Kolb R, Vité S (2009) Le droit de l’occupation militaire: Perspectives historiques et enjeux juridiques actuels. Bruylant, Brussels Koutroulis V (2010) Le début et la fin de l’application du droit de l’occupation. Pedone, Paris Sassòli M (2012) A Plea in Defence of Pictet and the Inhabitants of Territories under Invasion: The Case for the Application of the Fourth Geneva Convention during the Invasion Phase, International Review of the Red Cross 94: 42–50

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Siegrist M (2011) The Functional Beginning of Belligerent Occupation. Graduate Institute Publications, Geneva United Kingdom Ministry of Defence (2004) Joint Service Manual of the Law of Armed Conflict, available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/ 27874/JSP3832004Edition.pdf United States Department of Defense (2016) Law of War Manual (updated December 2016), available at: tps://www.defense.gov/Portals/1/Documents/pubs/DoD%20Law%20of%20War% 20Manual%20-%20June%202015%20Updated%20Dec%202016.pdf?ver=2016-12-13-1720 36-190 von Glahn G (1957) The Occupation of Enemy Territory: A Commentary on the Law and Practice of Belligerent Occupation. University of Minnesota Press, Minneapolis Zwanenburg M (2007) The Law of Occupation Revisited: The Beginning of an Occupation. Yearbook of International Humanitarian Law 10: 99–130 Zwanenburg M (2012) Challenging the Pictet Theory. International Review of the Red Cross 94: 30 – 36

Case Law ECtHR, Al-Skeini and others v. the United Kingdom, Grand Chamber judgment, 7 July 2011, Application no. 55721/07 ICC, Prosecutor v. Germain Katanga, Judgment, 7 March 2014, Case No. ICC-01/04-01/ 07-34-36-T ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, Judgment, 19 December 2005, [2005) ICJ Rep 168, para 172 ICTY, The Prosecutor v. Dusko Tadić, Judgment, 7 May 1997, Case No. IT-94-1 ICTY, The Prosecutor v. Tihomir Blaškić, Judgment, 3 March 2000, Case No. IT-95-14-T ICTY, Prosecutor v. Mladen Naletiliċ and Vinko Martinoviċ, Judgment, 31 March 2003, Case No. IT-98-34-T ICTY, The Prosecutor. v. Tihomir Blaškić, Judgment, 29 July 2004, Case No. IT-95-14-A ICTY, The Prosecutor v. Jadranko Prlić, Bruno Stojić, Slobodan Praljak, Milivoj Petković, Valentin Ćorić, Berislav Pušić, 29 November 2017, Case. No. IT-04-74-A United States Military Tribunal, Nuremberg, Trial of Wilhelm List and others, Case No. 7, 19 February 1948

Prof. Dr. Marten Zwanenburg is legal counsel at the Netherlands Ministry of Foreign Affairs, and the professor of military law at the Netherlands Defence Academy, where he succeeded Prof. Terry Gill.

Chapter 14

The Shaping of the Notion of ‘Control’ in the Law on International Responsibility by Certain International and Regional Courts Gentian Zyberi

Contents 14.1 14.2 14.3 14.4

A Short Dedication.......................................................................................................... Introduction...................................................................................................................... The Notion of Control..................................................................................................... State Responsibility for Serious Violations of International Law.................................. 14.4.1 State Responsibility for Violations by Own Armed Forces.............................. 14.4.2 State Responsibility for Actions of Third Parties.............................................. 14.5 Control in the Law on Individual Criminal Responsibility............................................ 14.5.1 Co-perpetrator Responsibility............................................................................. 14.5.2 Control in the Context of Command or Superior Responsibility ..................... 14.5.3 The ‘Specific Direction’ Test ............................................................................. 14.6 Concluding Remarks ....................................................................................................... References ..................................................................................................................................

282 283 285 287 287 292 296 297 298 299 301 302

Abstract The notion of control plays an important role within the context of the law on international responsibility in terms of both ascertaining jurisdiction and attribution of responsibility for internationally wrongful acts, including for mass atrocity crimes committed in armed conflict situations. This chapter aims at analysing the use and the shaping of this notion through several landmark decisions issued by selected key international and regional courts. The international courts include the International Court of Justice, the two ad hoc international criminal tribunals, namely the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, and the International Criminal

G. Zyberi (&) Norwegian Centre for Human Rights, University of Oslo, Oslo, Norway e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2021 R. Bartels et al. (eds.), Military Operations and the Notion of Control Under International Law, https://doi.org/10.1007/978-94-6265-395-5_14

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Court. From the three regional human rights courts, focus remains on the European Court of Human Rights. The aim is to find out how and to what extent this case law has shaped the notion of control in the law on international responsibility for States and individuals in the context of an armed conflict. Ultimately, this analysis will provide more clarity concerning standards of conduct and related legal obligations incumbent upon those involved in an armed conflict, especially civilian and military leaders, non-State armed groups, and State organs involved in planning and executing military operations.







Keywords Control test international humanitarian law military operations international and regional courts state responsibility individual criminal responsibility

14.1










A Short Dedication

Terry is a highly esteemed colleague and dear friend with whom I have had the pleasure to cooperate in teaching, research, and the practice of international law. I first met him in early September 2001 as a Master student at Utrecht University, where he was the program coordinator of the International Law specialization. His Socratic method, aimed at helping students find suitable topics for Master theses by probing and not telling, is something that has stuck with me. Later on, Terry was my Ph.D. co-supervisor (together with Cees Flinterman) at Utrecht University during the period 2003–2008. I had the pleasure to teach in his IHL course and help with coaching the Utrecht IHL moot court teams over several years. While Terry’s scholarly work and expertise spans several different areas of international law, there are two areas where I have worked more closely with him and have benefited greatly from his expertise, namely the International Court of Justice (ICJ) and international humanitarian law (IHL). Hence, my contribution to his liber amicorum draws heavily on these two areas. Terry assisted in the legal process and pled before the ICJ on behalf of Albania in the Kosovo Declaration of Independence case, where I coordinated the work of the Albanian legal team. We also prepared amicus briefs on IHL-related matters in a case tried in the US. On the research side, we have cooperated in the framework of the Yearbook of IHL and the work of the International Law Association study group on contemporary challenges to IHL. Terry’s collegiality, friendship, and good advice are greatly appreciated by many who have had the chance and the privilege to work with him over the years, including myself.

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283

Introduction

This chapter aims at analyzing the notion of control in armed conflict situations from the perspective of the law on international responsibility.1 This analysis is based on landmark cases decided by the main international and regional courts dealing with claims of internationally wrongful acts, including mass atrocity crimes committed in armed conflict situations. Such internationally wrongful acts might have been committed through direct involvement by a State’s armed forces, State support for armed groups in other States, State contributions to and involvement in international military operations, or by non-State armed groups. For purposes of international responsibility, these situations can be divided into direct and indirect attribution,2 which would also largely fit with direct and accessory responsibility. Some of the armed conflict situations where serious violations of international human rights and humanitarian law, commonly referred to as mass atrocity crimes, have been committed in the more recent past include Georgia, Libya, Syria, Ukraine, Yemen, Sudan (Darfur), South Sudan, Myanmar, the Occupied Palestinian Territory, and the Central African Republic.3 The number of non-international armed conflicts has more than doubled between 2001 and 2016, from fewer than 30 to more than 70.4 The number of parties fighting in these conflicts has likewise grown exponentially, whereby recent ICRC data show that only one-third of conflicts today are between two belligerent parties: 44% have between three and nine opposing forces, and 22% have more than ten.5 The increasing number of armed conflicts, of the warrying parties, of States involved in supporting them overtly or covertly, and the prolonged nature of these conflicts, raise many complex issues, including who controls these actors and their activities and who bears responsibility for serious violations of international law. The notion of control within the context of the law on international responsibility is first introduced and then analyzed as it has been used and shaped through landmark decisions of key international and regional courts concerning serious

Drafts of this chapter were presented at the seminar on “Law in Today’s Hybrid Armed Conflicts”, organized by Professor Eric Talbot Jensen in February 2019 at Brigham Young University Law School and at a seminar organized by Professor Chen Yifeng in May 2019 at the Peking University Centre for International Human Rights and Humanitarian Law. I am grateful for comments and insights received from colleagues participating in these seminars. I am also grateful for their comments to Rogier Bartels and Kjetil Mujezinović Larsen. Any mistakes are my own. Comments are welcome at [email protected]. 2 See inter alia Larsen 2008, pp. 509, 520–522; Messineo 2014, pp. 60–97; Fry 2017, pp. 98–133. 3 Many of these armed conflicts concern situations under investigation before the International Criminal Court (ICC) or subject to its preliminary examinations, as well as cases brought before the International Court of Justice (ICJ). For more information, see www.icc-cpi.int/pages/situation. aspx. 4 ICRC 2018, p. 13. 5 ICRC 2018, p. 13. 1

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violations of human rights and humanitarian law in the context of armed conflict situations.6 These include primarily the International Court of Justice (ICJ) the two UN ad hoc tribunals, the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), and the International Criminal Court (ICC). From the case law of the three regional human rights courts, the focus remains with the European Court of Human Rights (ECtHR). The main aim is to analyse how this case law has shaped the notion of control in the law on international responsibility concerning States and individuals.7 There seem to be two main approaches to assigning international responsibility to a State or individual, namely a ‘cause-effect’ approach requiring a clear causal link between the wrongful conduct and resulting harm, and a ‘significant contribution’ approach based on the degree of contribution to bringing about the resulting harm. Both approaches would also include the possibility for shared responsibility between two or more actors for the resulting harm.8 When it comes to States, because of the preference for applying a higher threshold concerning State responsibility and related difficulties attached to ascertaining with sufficient certainty the degree of contribution to an internationally wrongful act, international and regional courts seem to have mainly adopted the ‘cause-effect’ approach. When it comes to individuals, the theories of joint criminal enterprise and co-perpetration, as well as aiding and abetting, have allowed for the ‘(significant) contribution’ approach to be applied frequently in international criminal trials. The analysis in this chapter aims at providing more clarity concerning standards of conduct for civilian and military leaders, non-State armed groups, and State organs involved in planning and executing military operations and related activities. Besides relevant case law, the analysis concerning the law on responsibility will be based on the International Law Commission’s (ILC) Articles on State Responsibility of 2001 and other relevant ILC documents,9 the Statutes of the international criminal courts and tribunals,10 relevant UN resolutions,11 and 6

For a detailed analysis of the relationship between human rights and humanitarian law in the context of military operations see among others De Wet and Kleffner 2014; Geiss and Krieger 2020. 7 See generally Alter et al. 2018. More specifically on the law of international responsibility, see Jørgensen 2003; Bonafè 2009; van Sliedregt 2012. See also Darcy 2014a, b, especially pp. 223– 264. 8 See among others Zyberi 2017, pp. 236–262. 9 See especially Formulation of the Nurnberg Principles; Draft code of offences against the peace and security of mankind (Part I); Draft code of crimes against the peace and security of mankind (Part II) including the draft statute for an international criminal court; State responsibility; Crimes against humanity, available at https://legal.un.org/ilc/guide/gfra.shtml. Accessed 1 March 2020. 10 ICC, ICTY, ICTR. 11 UN General Assembly (1974) Resolution 3314 (XXIX) on the Definition of Aggression; UN General Assembly (1970) Resolution 2625 (XXV) on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, UN Doc. A/RES/2625 (XXV); UN General Assembly (2005) Resolution 60/1 on the 2005 World Summit Outcome, UN Doc. A/RES/60/1; UN Security Council (2006): Resolution

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scholarly writing. While the chapter analyses the law on international responsibility by focusing separately on State responsibility and individual criminal responsibility, in certain instances this responsibility might overlap or be shared among different actors.12 This shared responsibility is even more pronounced in international military operations mandated by the UN,13 as peace operations,14 or international military operations under Chapter VII of the UN Charter,15 where different States contribute with their military capacities. Additionally, although not dealt with here, military-nature operations in cyberspace and the development of autonomous weapon systems raise interesting questions concerning control and international responsibility for serious violations of international law.

14.3

The Notion of Control

Control is a complex and elusive concept. A dictionary definition construes it as ‘the direct or indirect power to direct the management and policies of a person or entity, whether through ownership of voting securities, by contract, or otherwise; the power or authority to manage, direct, or oversee’.16 In international law, control is mainly associated with the drawing of jurisdictional boundaries and the exercise of public authority. International courts have required States to exercise adequate control over their territory to ensure that harm does not occur to those within their territory or across boundaries.17 They have required States not to support or direct third actors to cause harm to the interests of other States.18 And, they have required individuals in leading positions to exercise adequate control over their subordinates

1674 (2006) on the Protection of Civilians in Armed Conflict, UN Doc. S/RES/1674; UN Security Council (2011) Resolution 1593 (2005) on Sudan (Darfur), UN Doc. S/RES/1593; UN Security Council (2011) Resolution 1970 (2011) on Libya, UN Doc. S/RES/1970; UN Security Council (2018) Resolution 2427 (2018) on Protection of Children Affected by Armed Conflict, UN Doc. S/ RES/2018/2427. 12 On the issue of shared responsibility, see generally Nollkaemper and Plakokefalos 2014 and 2017. See also Johansen 2019. 13 See ILC 2011, Articles on the Responsibility of International Organizations. 14 See among others Larsen 2008. 15 Kuwait, 1991; Libya, 2011. 16 Garner 1999, p. 330. 17 ICJ, Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania), Judgment (Merits), [1949] ICJ Rep 4, 9 April 1949 (Corfu Channel 1949) pp. 18 and 22; Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [1996] ICJ Rep 226, 8 July 1996, para 29. 18 ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment (Merits), [1986] ICJ Rep 14, 27 June 1986 (Nicaragua 1986), para 220.

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to prevent or stop international crimes.19 However, the contours of this concept, in terms of its scope and required degree to trigger international responsibility, remain elusive in view of various techniques that have emerged to adapt control thresholds, locating responsibility within omissions, the duty to prevent, or under the due diligence rule and articulating principles of shared responsibility.20 The raising expectations on States and individuals to prevent and stop internationally recognized crimes can potentially lead to differing interpretations of the law on international responsibility by international and regional courts. There is an internationally wrongful act of a State when conduct consisting of an action or omission: (a) is attributable to the State under international law; and (b) constitutes a breach of an international obligation of the State.21 In the context of State responsibility, control is related to requirements for attributability of conduct and of responsibility and assessed in connection with the related concepts of authority and existence of real links between the actors involved in bringing about the internationally wrongful act, through actions or omissions. Individual criminal responsibility is based on the existence of the necessary mens rea and actus reus elements of a crime, as defined under international criminal law. Hence, in the context of individual criminal responsibility,22 control is related to the mens rea element and reflected in the extent and nature of the involvement of the individual in the commitment of the crime. The complexity of assessing control for purposes of attributing international responsibility is easily demonstrated by the number and the variety of actors influencing armed conflicts, the different and complex relationships among different authorities at the domestic, regional and international level and among individuals themselves, including those under a hierarchical relationship.23 Given the various internal and external factors that determine the behaviour of States and individuals, and the blurred lines of authority among these actors, assessing the existence and degree of ‘control’ is a difficult exercise for international and regional courts.

19

See among others United States Military Commission, Manila, Trial of General Tomoyuki Yamashita, Case No. 21, 4 February 1946, LRTWC, Volume IV (London: UN War Crimes Commission, 1948); ICTY, Prosecutor v. Delalić et al., Appeals Chamber Judgment, Case No. IT-96-21-A, 20 February 2001; ICTR, Prosecutor v. Bagilishema, Appeals Chamber Judgment, Case No. ICTR-95-1A-A, 3 July 2002; ICC, Prosecutor v. Jean-Pierre Bemba Gombo, Appeal Judgment Pursuant to Article 74 of the Statute, Case No. ICC-01/05-01/08-A, 8 June 2018 (Bemba 2018). 20 Boon 2014, p. 329. 21 Article 2 of the ILC ASR. 22 Article 25 ICC Statute; Article 7 ICTY Statute; Article 6 ICTR Statute. See among others van Sliedregt 2012; De Hemptinne et al. 2019. 23 See among others Roughan 2013, pp. 174–192; Çali 2014.

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State Responsibility for Serious Violations of International Law

With regard to the responsibility of the State, the analysis will include two scenarios, State responsibility for conduct of its own armed forces, including those participating in international military operations, and State responsibility for actions of third parties. As reflected in the Armed Activities case, the ICJ has upheld a strict test when concerning responsibility for the conduct of a State’s own armed forces, even when their conduct exceeds the orders or instructions received from their government.24 The test of international responsibility might need to be adjusted to better reflect the more complex circumstances present when a State’s armed forces participate in international military operations.25 When it comes to State responsibility for actions of third parties, the ICJ has set a high threshold, requiring effective control of such non-State armed forces. The ‘effective control’ test for actions of third parties was developed in the Nicaragua case and later upheld in the Application of the Genocide Convention case.26 In dealing with State responsibility, the ECtHR has used the ‘effective overall control’ test,27 whereas it has used the ‘ultimate (overall) authority and control’ test when attributing conduct to an international organization.28 In the subsections below, we will analyse how these control tests have been construed by these courts.

14.4.1 State Responsibility for Violations by Own Armed Forces Armed forces are an organ of the State and there is a strict liability regime for serious violations of international law, including international humanitarian law (IHL). The activity of persons or groups acting as de facto State organs would also trigger State responsibility, although their relationship to the State must be of a 24

ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, [2005] ICJ Rep 168, (Armed Activities 2005), 19 December 2005, paras 213– 214. 25 See Gill and Fleck 2015, especially Chapter 30 by B. Kondoch and M. Zwanenburg, pp. 559– 578; Murphy and Wills 2017, pp. 585–612; Boutin 2017, pp. 154–179. 26 Nicaragua 1986, paras 113–115. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, [2007] ICJ Rep 43, 26 February 2007 (Application of Genocide Convention 2007), paras 398–406. 27 ECtHR, Loizidou v. Turkey (App. No. 15318/89), Judgment (Merits), 18 December 1996, para 56; Case of Al-Jedda v. The United Kingdom (App. No. 27021/08), Judgment (Grand Chamber), 7 July 2011, paras 84–85. See also Larsen 2011. 28 ECtHR, Behrami and Saramati (App. No. 71412/01 and App. No. 78166/01), Decision on Admissibility (Grand Chamber), 2 May 2007, paras 133–34.

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nature of ‘complete dependence’.29 In terms of persons or armed groups being considered as de facto organs of the State, the ICJ requires for those persons to be in a relationship of such complete dependence on the State that they cannot be considered otherwise than as organs of the State, so that all their actions performed in such capacity would be attributable to the State for purposes of international responsibility.30 Article 4 of the 2001 ILC Articles on State Responsibility, entitled ‘Conduct of Organs of a State’, considered a codification of customary international law, provides as follows: 1. The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State. 2. An organ includes any person or entity which has that status in accordance with the internal law of the State. Under international law, a State is presumed to be in control of its own armed forces. International responsibility attaches even if the armed forces actions or omissions exceed their specific orders or instructions. As the Court has held in the Armed Activities case, it is irrelevant for the attribution of their conduct to the State whether armed forces acted contrary to the instructions given or exceeded their authority.31 Citing Article 3 of the Fourth Hague Convention of 1907 and Article 91 of Additional Protocol I (API), the Court has found a party to an armed conflict shall be responsible for all acts by persons forming part of its armed forces.32 In these cases, control of own armed forces is presumed. Moreover, for purposes of assigning responsibility, the burden for discharging adequate control of armed forces is left to the State concerned. When it comes to the activity of persons or groups acting as de facto State organs, the ICJ has expressly held that a State is responsible only for its own conduct, that is to say the conduct of persons acting, on whatever basis, on its behalf. That is true of acts carried out by its official organs, and also by persons or entities which are not formally recognized as official organs under internal law but which must nevertheless be equated with State organs because they are in a relationship of complete dependence on the State.33

This requirement of a ‘relationship of complete dependence’ seems to create an intermediate category between a State’s responsibility for its own conduct and State responsibility for conduct of third parties. However, this category is likely to remain an empty one, since proving the existence of such a relationship before the ICJ would be an almost impossible burden to discharge. In the next two subsections, we 29

Application of Genocide Convention 2007, para 393. Application of Genocide Convention 2007, para 397. 31 Armed Activities 2005, para 214. 32 Armed Activities 2005, para 214. 33 Application of Genocide Convention 2007, para 406. 30

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will deal with State responsibility in a situation of occupation and in the framework of participation in international military operations.

14.4.1.1

Control in Situations of Occupation34

The issue of control over territory has come to the fore under different situations before the European Court,35 including situations of occupation concerning the Turkish Republic of Northern Cyprus (TRNC), Nagorno-Karabakh, Transdniestria, and Crimea. The main violations in these situations have included the right to property, right to life, right to private and family life, and the right to an effective remedy. The first claims under a situation of occupation brought before the European Court concerned the Turkish occupation of the Northern Cyprus. In a case arising in the context of this situation, the ECtHR found that having effective overall control over northern Cyprus, Turkey’s responsibility could not be confined to the acts of its own soldiers or officials in northern Cyprus, but was also engaged via the acts of the local administration which survived by virtue of Turkish military and other support.36 Hence, Turkey’s jurisdiction extended to the entire range of the Convention rights and violations of those rights were imputable to it.37 Because the area in which the alleged acts took place was on the territory of the TRNC, the European Court found that the applicant came under the authority and/or effective control and, therefore, within the jurisdiction of Turkey.38 The ECtHR has found that the requirement of actual authority is widely considered to be synonymous to that of effective control.39 In a case stemming from the situation in Nagorno-Karabakh, the ECtHR noted that the assessment of whether Armenia exercised effective control over Nagorno-Karabakh would depend primarily on military involvement, but other indicators, such as economic and political support might be of relevance.40 The European Court concluded that the Nagorno Karabakh Republic (NKR) and its administration survived by virtue of the military, political, financial and other support given to it by Armenia which, consequently, exercised effective control over Nagorno-Karabakh and the surrounding territories, including

34

On occupation and the notion of effective control by the Occupying Power, see also Chap. 13 by Marten Zwanenburg in the present volume. 35 For relevant case law, see the two factsheets on respectively ‘Armed Conflicts’ at www.echr.coe. int/Documents/FS_Armed_conflicts_ENG.pdf, and ‘Extraterritorial Jurisdiction’ at www.echr.coe. int/Documents/FS_Extra-territorial_jurisdiction_ENG.pdf. Accessed 1 March 2020. 36 ECtHR, Manitaras and Others v. Turkey (App. No. 54591/00), Judgment (Decision on Admissibility), 3 June 2008, para 27. 37 Manitaras and Others v. Turkey, 2008, para 27. 38 Manitaras and Others v. Turkey, 2008, para 28. 39 ECtHR, Chiragov and Others v. Armenia (App No. 13216/05), Judgment (Merits, Grand Chamber), 16 June 2015, para 96. 40 Chiragov and Others v. Armenia, 2015, para 169.

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the district of Lachin.41 With regard to upholding the rights of the displaced persons, the ECtHR found that peace negotiations do not absolve the government from taking other measures, especially when negotiations have been pending for such a long time.42 The European Court also noted that, pending a comprehensive peace agreement, it would appear particularly important to establish a property-claims mechanism, which should be easily accessible and provide procedures operating with flexible evidentiary standards, allowing the applicants and others in their situation to have their property rights restored and to obtain compensation for the loss of their enjoyment.43 Another territory occupied and annexed in 2014 is Crimea. Currently, there are two inter-State applications lodged by Ukraine against Russia pending before the ECHR.44 These cases concern Ukraine’s allegations of violations of the ECHR by Russia and armed groups that Russia allegedly controls. The alleged violations include Article 2 (right to life), Article 3 (prohibition of torture and inhuman or degrading treatment), Article 5 (right to liberty and security), and Article 6 (right to a fair trial) of the ECHR. There is also a case between Ukraine and Russia pending before the ICJ, based on the Convention on the Elimination of Racial Discrimination (CERD) and the International Convention for the Suppression of the Financing of Terrorism (ICSFT).45 With regard to Transdniestria, the European Court has dealt with issues of State responsibility through a twofold assessment of the conduct of both Moldova, as Transdniestria is de jure part of its territory, and of Russia as a sponsor State of the Moldavian Republic of Transdniestria (MRT).46 The ECtHR has observed that, although Moldova had no effective control over the acts of the “MRT” in Transdniestria, the fact that the region was recognized under public international law as part of Moldova’s territory gave rise to an obligation for that State, under Article 1, to use all the legal and diplomatic means available to it to continue to guarantee the enjoyment of the rights under the ECHR to those living there.47 As regards Russia, the European Court has stated that the “MRT” was only able to continue to exist because of Russian military, economic and political support.48 In those circumstances, the region’s high level of dependency on Russian support gave

41

Chiragov and Others v. Armenia, 2015, para 186. Chiragov and Others v. Armenia, 2015, para 198. 43 Chiragov and Others v. Armenia, 2015, para 199. See also ECtHR, Sargsyan v. Azerbaijan (App. No. 40167/06), Judgment (Merits, Grand Chamber), 16 June 2015. 44 Ukraine v. Russia (re Crimea) (App. No. 20958/14) and Ukraine v. Russia (re Eastern Ukraine) (App. No. 8019/16), relinquished to the Grand Chamber in May 2018. 45 ICJ, Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), submitted on 16 January 2017. 46 See among others, ECtHR, Mozer v. the Republic of Moldova and Russia (App. No. 11138/10), Judgment (Grand Chamber) 23 February 2016, paras 99–100 with regard to the responsibility of Moldova and paras 110–111 with regard to the responsibility of Russia. 47 Mozer v. the Republic of Moldova and Russia, 2016, para 100. 48 Mozer v. the Republic of Moldova and Russia, 2016, para 110. 42

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a strong indication that Russia continued to exercise effective control and decisive influence over the “MRT” authorities.49 These cases highlight the complexity of situations where the law on international responsibility has to be applied to the actions of de facto State entities.

14.4.1.2

Control in International Military Operations

Several international military operations have been conducted in the last three decades, some of which have given rise to international litigation. Thus, ten cases against NATO countries were brought before the ICJ, concerning the NATO military intervention in Kosovo in 1999 to stop the campaign of ethnic cleansing of Kosovar Albanians by Serbian military and para-military troops. All these cases were discontinued for lack of jurisdiction.50 Several cases have been brought before the European Court concerning alleged violations committed by State armed forces during international military operations. The European Court has reiterated that in certain exceptional circumstances a State can exercise jurisdiction extraterritorially through the assertion of authority and control by that State’s agents over individual (s) or territory.51 In its admissibility decision in a case concerning detention and surrender to the national State of detainees, the European Court considered that the United Kingdom authorities had exercised total and exclusive control, first through the exercise of military force and then by law, over the detention facilities in which the applicants were held.52 The ECtHR found that the applicants had been within the UK’s jurisdiction and had remained so until their physical transfer to the custody of the Iraqi authorities on 31 December 2008.53 In its judgment on the merits, the European Court found a violation of Article 3 (prohibition of inhuman or degrading treatment) of the ECHR, concluding that the applicants’ transfer to Iraqi

49

Mozer v. the Republic of Moldova and Russia, 2016, para 110. These cases were discontinued for lack of jurisdiction. See the Legality of Use of Force (Yugoslavia v. Spain), [1999] ICJ Rep 926, 2 June 1999; and (Serbia and Montenegro v. Belgium), [2004] ICJ Rep 279; (Serbia and Montenegro v. Canada) [2004] ICJ Rep 429; (Serbia and Montenegro v. France) [2004] ICJ Rep 575; (Serbia and Montenegro v. Germany), [2004] ICJ Rep 720; (Serbia and Montenegro v. Italy), [2004] ICJ Rep 865; (Serbia and Montenegro v. Netherlands), [2004] ICJ Rep 1011; (Serbia and Montenegro v. Portugal), [2004] ICJ Rep 1160; (Serbia and Montenegro v. United Kingdom), [2004] ICJ Rep 1307; 15 December 2004 (Legality of Use of Force cases). 51 ECtHR, Al-Skeini and Others v. The United Kingdom (App. No. 55721/07), Judgment (Grand Chamber), 7 July 2011, paras 136 and 149; Catan and Others v. Moldova and Russia (App. Nos. 43370/04, 8252/05 and 18454/06), Judgment (Grand Chamber), 19 October 2012, para 114. 52 ECtHR, Al-Saadoon and Mufdhi v. United Kingdom (App. No. 61498/08), Judgment (Admissibility), 30 June 2009, para 88. 53 ECtHR, Al-Saadoon and Mufdhi v. United Kingdom (App. No. 61498/08), Judgment (Admissibility), 30 June 2009, para 89. 50

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custody had subjected them to inhuman treatment.54 In particular, it observed that the Iraqi authorities had not given any binding assurance that they would not execute the applicants.55 Lastly, under Article 46 of the ECHR, the European Court requested the UK Government to take all possible steps to obtain assurance from Iraqi authorities that the applicants would not be subjected to the death penalty.56 This case law of the European Court highlights the responsibility of States involved in international military operations with regard to detained persons.

14.4.2 State Responsibility for Actions of Third Parties Third parties usually are non-State armed groups that act as proxies for a State in an armed conflict. The ICJ has developed the famous Nicaragua test, whereby for a State to be held responsible, in principle it would have to be proved that the State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed.57 The World Court has rejected the ‘overall control’ test developed by the ICTY, stating that this test ‘is unsuitable, for it stretches too far, almost to breaking point, the connection which must exist between the conduct of a State’s organs and its international responsibility.’58 The main difference between the two tests, seem to be that while for the ICTY there is no need to prove that each operation during which acts were committed in breach of international law was carried out on a State’s instructions, or under its effective control,59 the ICJ requires a higher threshold whereby in each instance ‘an organ of the State gave the instructions or provided the direction pursuant to which the perpetrators of the wrongful act acted or where it exercised effective control over the action during which the wrong was committed.’60 This is quite an important element concerning the triggering of international responsibility, which applies not only concerning the crime of genocide,61 but also to any internationally wrongful act.62

54

ECtHR, Al-Saadoon and Mufdhi v. the United Kingdom (App. No. 61498/08), Judgment, 2 March 2010, para 144. 55 Al-Saadoon and Mufdhi v. the United Kingdom, 2010, paras 142–143. 56 Al-Saadoon and Mufdhi v. the United Kingdom, 2010, para 171. 57 Nicaragua 1986, para 115. 58 Application of Genocide Convention 2007, para 406. 59 Application of Genocide Convention 2007, para 402. 60 Application of Genocide Convention 2007, para 406. 61 The ICJ held that ‘Genocide will be considered as attributable to a State if and to the extent that the physical acts constitutive of genocide that have been committed by organs or persons other than the State’s own agents were carried out, wholly or in part, on the instructions or directions of the State, or under its effective control.’ 62 Application of Genocide Convention 2007, para 401.

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A distinction has been drawn by the ICJ concerning responsibility for international law violations by third parties and responsibility for own actions in support of third parties. A State is responsible for violating the principle of non-intervention included in the UN Charter by mere virtue of providing ‘financial support, training, supply of weapons, intelligence and logistic support’ to such third parties.63 The Court requires a high degree of control over military operations of third parties, for a State to incur international responsibility for violations committed by such third party. Cassese has criticized the ICJ for upholding the ‘effective control’ test, based on both legal and policy considerations.64 The three policy considerations that Cassese has brought forward in favour of adopting an ‘effective control’ test are namely (1) the extensive support that States provide to military or paramilitary groups or armed bands fighting abroad against other states or at home against rebellious or secessionist groups, (2) terrorist groups being supported by States, and (3) the use of national military contingents by international organizations for peacekeeping or other military operations.65 Given the increase in the number of armed conflicts, of parties involved therein, and the destabilization effects on international peace and security, it might become necessary to revisit the Nicaragua test.

14.4.2.1

Conduct Directed or Controlled by a State

As Crawford has pointed out, although for some purposes the State is equated to its peoples or at least its nationals, for the purposes of responsibility the State is normally limited to the acts of its organs and agents exercising public authority.66 However, State responsibility arises for actions of third parties acting under instructions, direction or control of the State. The ICJ has used Article 8 of the ILC Articles on State Responsibility on ‘Conduct Directed or Controlled by a State’, to address issues of State responsibility for actions of third parties. According to this provision, “The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of that State in carrying out the conduct.” While Article 8 of the ILC Articles on State Responsibility and the Court’s practice use the notions of instructions, and direction or control, still it is not easy to deconstruct the exact meaning of these concepts.67 In the Application of the Genocide Convention case, the Court concluded that it ‘has not been established that those massacres were committed on the instructions or under the direction of

63

Nicaragua 1986, para 242. Cassese 2007, pp. 649–668. 65 Cassese 2007, pp. 665–667. 66 Crawford 2013, p. 141. 67 ILC Commentary to Article 8. 64

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organs of the respondent State, nor that the Respondent exercised effective control over the operations in the course of which those massacres, which… constituted the crime of genocide, were perpetrated.’68 State responsibility requires more than the mere provision of aid or assistance to non-State actors for the providing State to be liable for violations committed by such groups.69 The internationally wrongful acts must have been committed under the instructions or direction of the State, or the group was under the State’s control, be it “effective” or “overall”.70 Such a standard does not apply in the case of knowingly providing aid or assistance to lawbreaking States, nor, is it necessary that an individual aider and abettor issued instructions to or exercised control over the direct perpetrators of war crimes in order to be held criminally liable.71 The ICJ seems to operate with a high threshold standard when determining State responsibility.

14.4.2.2

State Responsibility for Complicity in Serious Violations of International Law

The issue of State responsibility for complicity in internationally wrongful acts is quite relevant in several ongoing armed conflicts, including Syria, Yemen, Libya, and Ukraine, that have resulted in hundreds of thousands of persons killed or wounded and tens of millions displaced.72 National parliaments, courts, or civil society have engaged with related legal and political issues, including the scope of military and political support for different warrying factions or permits for arms sales. Generally, these discussions have revolved around the concepts of ‘duty to prevent’ and ‘due diligence’. Several powerful States are increasingly outsourcing military interventions to human and technological “surrogates” in order to maintain a geographical distance from the battlefield and ease the domestic costs of direct involvement.73 This may take the form of logistical, training, intelligence, advisory, air or other support to belligerent parties.74 These developments and tendencies are problematic in terms of efforts to ensure international peace and security and friendly relations among States. From the perspective of the law on international responsibility, the main relevant elements include conduct, fault, and nexus between conduct and harm. For purposes of the crime of genocide, the ICJ seems to have erased the distinction between ‘complicity’ and ‘aid and assistance’, by finding that it “sees no reason to make any distinction of substance between ‘complicity in genocide’, within the

68

Application of Genocide Convention 2007, para 413. Darcy 2014a, b, pp. 264–265. 70 Darcy 2014a, b, p. 265. 71 Darcy 2014a, b, p. 265. 72 See among others Lanovoy 2014, pp. 134–168; Jackson 2015. 73 ICRC 2018, p. 14. 74 ICRC 2018, p. 14. 69

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meaning of Article III, paragraph (e), of the Convention, and the ‘aid or assistance’ of a State in the commission of a wrongful act by another State within the meaning of Article 16”.75 Article 16 of the ILC Articles on State Responsibility limits the scope of responsibility for aid or assistance in three ways. First, the relevant State organ or agency providing aid or assistance must be aware of the circumstances making the conduct of the assisted State internationally wrongful; secondly, the aid or assistance must be given with a view to facilitating the commission of that act, and must actually do so; and thirdly, the completed act must be such that it would have been wrongful had it been committed by the assisting State itself. The Court assessed “whether organs of the respondent State, or persons acting on its instructions or under its direction or effective control, furnished ‘aid or assistance’ in the commission of the genocide in Srebrenica, in a sense not significantly different from that of those concepts in the general law of international responsibility.”76 Distinguishing between complicity and the duty to prevent, the Court has held that complicity always requires that some positive action has been taken to furnish aid or assistance to the perpetrators of the genocide, while a violation of the obligation to prevent results from mere failure to adopt and implement suitable measures to prevent genocide from being committed. In other words, while complicity results from commission, violation of the obligation to prevent results from omission.77

The ICJ distinguishes between complicity (aid and assistance), involving concrete steps aimed at bringing about a harmful consequence, from the duty to prevent involving a failure to exercise due diligence. The ILC commentary to Article 16 explains that there is no requirement that the aid or assistance should have been essential to the performance of the internationally wrongful act; it is sufficient if it contributed significantly to that act.78 Drawing on this commentary, Jackson has criticized the approach taken by the ICJ.79 The ICJ has laid down a requirement of the aid making a substantial contribution to the harm, which is similar to the requirement applied by the ICTY for assigning individual criminal responsibility whereby the accomplice’s assistance must have a substantial effect on the

75

Application of Genocide Convention 2007, para 420. Article 16 of the ILC Articles on State Responsibility, entitled “Aid or assistance in the commission of an internationally wrongful act”, provides that, “A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) That State does so with knowledge of the circumstances of the internationally wrongful act; and (b) The act would be internationally wrongful if committed by that State.” 76 Application of Genocide Convention 2007, para 438. 77 Application of Genocide Convention 2007, para 432. 78 ILC Commentary to the 2001 Articles on State Responsibility, para 5. 79 Jackson 2015, pp. 208–214.

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principal’s commission of the crime.80 The main concern with the approach of the Court concerns the standard of knowledge or wrongful intent necessary for triggering State responsibility for actions of non-State actors, given the fact that the State is a legal entity composed of different organs and layers of authority. Jackson points out that international law understands complicit conduct as a particular way of contributing to wrongdoing, falling between direct State perpetration and a failure to exercise due diligence in preventing the wrong from occurring.81 The characteristics of complicity make its use as a mode of liability before international or regional courts quite difficult and of limited value. That said, complicity retains its relevance because of its potential use for purposes of condemnation and eventually countermeasures by the affected State.

14.5

Control in the Law on Individual Criminal Responsibility

States are legal entities and they act through individuals. The law on individual criminal responsibility has developed significantly through the case law of several international criminal courts and tribunals, including the International Military Tribunals at Nuremberg and the Far East, the ICTY, the ICTR, and the ICC. While there are different modes of liability for individual criminal responsibility, they can be divided into three main categories, namely direct perpetration, co-perpetration, and command or superior responsibility.82 The main focus in this section will be on co-perpetration and superior responsibility, with command responsibility focusing on military commanders and superior responsibility focusing on political (civilian) leaders. Relevant for this discussion is also the defence of superior orders, as codified in Article 33 of the ICC Statute.83 The aim is to focus on the notion of control and its relation to individual criminal responsibility of civilian and military 80 See ICTY, Prosecutor v. Tadić (Case No. IT-94-1-A), Appeals Chamber Judgment, 15 July 1999, para 229; Prosecutor v. Simić (Case No. IT-95-9-A), Appeals Chamber Judgment, 28 November 2006, para 85; Prosecutor v. Mrkšić and Šlivančjanin (Case No. IT-95-13/1-A), Appeals Chamber Judgment, 5 May 2009, para 81. See also Jackson 2015, p. 212. 81 Jackson 2015, p. 214. 82 Van Sliedregt 2012; De Hemptinne et al. 2019. 83 Article 33 of the ICC Statute on ‘Superior orders and prescription of law’ provides as follows: “The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless: (a) The person was under a legal obligation to obey orders of the Government or the superior in question; (b) The person did not know that the order was unlawful; and (c) The order was not manifestly unlawful. 2. For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful.”

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leaders, when mass atrocity crimes are committed by their subordinates.84 Articles 25 and 28 of the ICC Statute, respectively on individual criminal responsibility and on the responsibility of commanders and other superiors represent an important development and codification of the law in this regard.

14.5.1 Co-perpetrator Responsibility Co-perpetration plays an important role in international criminal law when it comes to assigning individual criminal responsibility for crimes committed in an armed conflict, including war crimes. International criminal courts and tribunals have struggled to apportion appropriate responsibility to the perpetrators of mass atrocity crimes based on their rank, namely leadership, mid-rank and low-level. Article 25 of the ICC Statute, outlining individual criminal responsibility, is quite detailed compared to the counterpart provisions in the ICTY and the ICTR Statutes. Paragraph 3 distinguishes between perpetration and other forms of participation, establishing a four-tiered system of participation. In particular, perpetration corresponds to the most serious qualification of individual criminal responsibility and it is expressly provided for under letter (a) in three different forms: (i) as an individual; (ii) jointly with another person (co-perpetration) and (iii) through another person (indirect perpetration).85 The ICC has found that “through a combination of individual responsibility for committing crimes through other persons together with the mutual attribution among the co-perpetrators at the senior level, a mode of liability arises which allows the Court to assess the blameworthiness of ‘senior leaders’ adequately.”86 Based on the new drafting of the Rome Statute a new format of perpetration has emerged at the ICC based on the notion of “indirect perpetration”.87 Pursuant to this new interpretation, commission of crimes encompasses the concept of “control over the crime”, including control over an organized apparatus of power, whereby indirect perpetration interacts with co-perpetration in such a way that the two forms of participation complement each other.88 This new doctrine on perpetration serves to make clearer the distinction between principal and accessorial liabilities within the context of the collective and multi-level commission of crimes.89 Pre-Trial Chamber I of the ICC has addressed this issue in the confirmation of charges decision in Katanga and Ngudjolo case, where it decided that the

84

See among others Case Matrix Network 2016. Bowman 2016. 86 ICC, Prosecutor v. Katanga and Ngudjolo, ICC PT. Ch. I, Confirmation of Charges Decision, ICC-01/04-01/07-717, 30 September 2008 (Katanga and Ngudjolo 2008), para 492. 87 Bowman 2016. 88 Bowman 2016. 89 Bowman 2016. 85

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“control over the crime” amounted to “control over the organization”.90 The requirements of indirect perpetration include the existence of an organized apparatus of power, within which the direct and indirect perpetrators operate, and which enables the indirect perpetrator to secure the commission of the crimes.91 This provides an interesting discussion of individual criminal responsibility through control of the State or other organized apparatus of power.

14.5.2 Control in the Context of Command or Superior Responsibility92 Civilian or military leaders can be held responsible for the way they exercise control over persons under their command or authority. The case law of the international criminal courts and tribunals, from the post-World War 2 international military tribunals of Nuremberg and the Far East, has been instrumental in shaping and interpreting the different elements of this form of responsibility. Military commanders exercise or are expected to exercise effective control over their subordinates and to ensure that serious violations of IHL are prevented or suppressed.93 The ICTY has held that “effective control is the ultimate standard and that a showing of effective control is required in cases involving both de jure and de facto superiors”94 and it has “simply acknowledged that the possession of de jure authority constitutes prima facie a reasonable basis for assuming that an accused has effective control over his subordinates.”95 When it comes to relevant indicators, according to the ICTY, the power to give orders and have them executed can serve as an indicium of effective control.96 Military commanders have to assess complex situations and order their troops to take different actions in the course of military operations.97 Besides planning and executing military operations, they also have a standing duty to prevent serious violations of IHL, as well as to punish subordinates for such violations. The duty to prevent serious IHL violations arises from the time a superior acquires knowledge, or has reason to know that a crime is being or is

90

ICC, Katanga and Ngudjolo 2008, para 500. Katanga and Ngudjolo 2008, paras 515–518. Bowman 2016. 92 On the control element in command responsibility, see also the contribution by Harmen van der Wilt and Maria Nybondas in Chap. 16 of the present volume. 93 See among others Green 2016, pp. 619–632; Horowitz 2019; Jackson 2019, pp. 409–431. 94 ICTY, Prosecutor v. Hadžihasanović and Kubura, Case No. IT-01-47-A, Appeal Chamber Judgement, 22 April 2008 (Hadžihasanović and Kubura 2008), para 20. 95 Hadžihasanović and Kubura 2008, para 21. 96 Hadžihasanović and Kubura 2008, para 199. 97 See inter alia Johansen 2017; Guldahl Cooper 2018. 91

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about to be committed, while the duty to punish arises after the superior acquires knowledge of the commission of the crime.98 The ICTY has taken a case-by-case approach to determining what would amount to reasonable measures of suppression on the part of a superior by holding that “whether the measures taken were solely of a disciplinary nature, criminal, or a combination of both, cannot in itself be determinative of whether a superior discharged his duty to prevent or punish under Article 7(3) of the Statute”.99 The Special Court for Sierra Leone has gone as far as holding that as part of his duty to prevent subordinates from committing crimes, a superior also has the obligation to prevent his subordinates from following unlawful orders given by other superiors.100 According to the ICC, “Article 28 is designed to reflect the responsibility of superiors by virtue of the powers of control they exercise over their subordinates.”101 Elements of the responsibility of military commanders under this article include “effective command and control, or effective authority and control, over the forces that committed the crimes” and “crimes committed by the forces must have been a result of the failure of the accused to exercise control properly over them”.102 According to the ICC, “‘effective control’ requires that the commander have the material ability to prevent or repress the commission of the crimes or to submit the matter to the competent authorities”.103 The ICC has listed a number of factors which may indicate the existence of “effective control”.104 Similar to the case law concerning State responsibility, the terminology used by the different courts on the issue of control differs from one court to another.

14.5.3 The ‘Specific Direction’ Test This particular test, developed by the ICTY, generated quite an intense debate inside the ICTY, among international criminal courts and tribunals, and among scholars. The test is quite interesting from the perspective of individual criminal responsibility, because it highlights the difficulties related to attributing responsibility for mass atrocity crimes committed by allied or proxy armed forces. The ICTY Appeals Chamber found that “not all cases of aiding and abetting will involve proximity of an accused individual’s relevant acts to crimes committed by 98

ICTY, Prosecutor v. Limaj et al., Case No. IT-03-66-T, Trial Chamber Judgement, 30 November 2005, para 527. 99 ICTY, Hadžihasanović and Kubura 2008, para 33. 100 SCSL, Prosecutor v. Fofana and Kondewa, Case No. SCSL-04-14-T, Trial Chamber Judgement, 2 August 2007, para 248. 101 ICC, Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08, Judgment pursuant to Article 74 of the Statute, 21 March 2016 (Bemba 2016), para 172. 102 Bemba 2016, para 170 (emphasis added). 103 Bemba 2016, para 183. 104 Bemba 2016, para 188.

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principal perpetrators. Where an accused aider and abettor is remote from relevant crimes, evidence proving other elements of aiding and abetting may not be sufficient to prove specific direction.”105 Taking a similar line of reasoning to that on State responsibility for actions of third parties, the Appeals Chamber noted that, “[A]ssistance from one army to another army’s war efforts is insufficient, in itself, to trigger individual criminal liability for individual aid providers absent proof that the relevant assistance was specifically directed towards criminal activities.” Lest its finding be understood as condoning or encouraging potentially criminal behaviour, the Appeals Chamber underscored that this conclusion should in no way be interpreted as enabling military leaders to deflect criminal liability by subcontracting the commission of criminal acts.106 In providing some more explanation for its finding, the Appeals Chamber held that, if an ostensibly independent military group is proved to be under the control of officers in another military group, the latter can still be held responsible for crimes committed by their puppet forces. Similarly, aid from one military force specifically directed towards crimes committed by another force can also trigger aiding and abetting liability. However, as explained above, a sufficient link between the acts of an individual accused of aiding and abetting a crime and the crime he or she is charged with assisting must be established for the accused individual to incur criminal liability.107

While not rising to a level of control, the test did require a level of involvement that went beyond mere assistance. This interesting test was eventually withdrawn by another Appeals Chamber of the ICTY, by concluding that “specific direction” is not an element of aiding and abetting liability under customary international law.108 Rather, the actus reus of aiding and abetting “consists of practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime.”109 The required mens rea is “the knowledge that these acts assist the commission of the offense”.110 This later finding is more in line with the approach taken with regard to individual criminal responsibility by the ICTY and other international criminal courts and tribunals.

105

ICTY, Prosecutor v. Perišić, Case No. IT-04-81-A, Appeals Chamber Judgement, 28 February 2013, para 39. 106 Prosecutor v. Perišić 2013, para 72. 107 Prosecutor v. Perišić 2013, para 72. 108 ICTY, Prosecutor v. Šainović et al., Case No. IT-05-87-A, Appeals Chamber Judgement, 23 January 2014, para 1649, footnotes omitted. 109 Prosecutor v. Šainović et al. 2014, para 1649. 110 Prosecutor v. Šainović et al. 2014, para 1649.

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Concluding Remarks

The law on international responsibility for States and individuals remains separate, though as noted by the ICJ, the two areas are closely related.111 As Darcy has noted, While perfect alignment is neither desirable nor feasible given the fundamentally different underpinnings of State and individual responsibility, this recent international case law has shown that in certain instances indirect responsibility might arise for a State official who aids or abets a non-State armed group engaging in war crimes, but not for the State on whose behalf such an official acts.112

The notion of control remains problematic, because of its somewhat indeterminate nature and expression in practice and how it is understood and applied within the law on international responsibility. The notion of control is important in the context of the law on international responsibility in order to determine jurisdiction, attribute conduct, assign responsibility, and order reparations. Admittedly, reasons of a political and legal nature inform and influence the conduct of relevant stakeholders. The case law of different international and regional courts has addressed different types of armed conflict, actors, and scenarios. The control test for State responsibility used by different international and regional courts seems to differ in scope and language, having been phrased as ‘effective control’ by the ICJ, ‘overall control’ by the ICTY, and ‘effective overall control’ by the ECtHR. The lack of sufficient clarity with regard to the exact threshold of control which triggers international responsibility might result in both allowing unlawful conduct and an accountability gap for mass atrocity crimes, be it in terms of State responsibility or individual criminal responsibility. This risk is further compounded by new technological developments and methods of warfare. As the ICRC has pointed out, taken together, both human and technological “outsourcing” can be seen as an attempt to dilute responsibility for battlefield conduct, as State sponsors eschew accountability for the actions of their partners (despite their legal obligation to ensure respect for IHL), while the use of such surrogates and the detachment of drone operators from their targets make it easier to dehumanize the enemy.113 The situation of Syria, Libya, Democratic Republic of Congo, Central African Republic, Darfur (Sudan), Ukraine, Myanmar, Afghanistan, Yemen, and other states show that shared responsibility for preventing or stopping mass atrocity crimes might result in a diluted sense of responsibility and lack of accountability for failures.114 At the same time, in view of the complex relations among internal and external actors that affect the situation on the ground, a linear ‘cause-effect’ approach to international responsibility seems deficient.

111

Application of the Genocide Convention 2007, para 173; Zyberi 2017, pp. 236–262. Darcy 2014a, b, p. 273. 113 ICRC 2018, pp. 14–15. 114 Zyberi 2017, p. 262. 112

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The current use of the notion of control in the law on international responsibility seems to show a strict liability test for own actions of States or individuals. The threshold for attributing responsibility becomes more stringent when it comes to assigning responsibility for actions of third parties. This is an area of the law on international responsibility which needs to be theorized more, and developed further, as armed conflicts become more complex, fought among multiple parties over prolonged periods of time with different degrees of external support by a State, international or regional organization, or non-State actors.

References Articles, Books and Other Documents Alter KJ, Helfer LR, Madsen MK (eds) (2018) International court authority. Oxford University Press, Oxford Bonafè BI (2009) The relationship between state and individual responsibility for international crimes. Brill Publishers, Leiden Boon KE (2014) Are control tests fit for the future? The slippage problem in attribution doctrines. Melbourne Journal of International Law 15(2):330–377 Boutin B (2017) Attribution of conduct in international military operations: a causal analysis of effective control. Melbourne Journal of International Law 18(2):154–179 Bowman K (2016) Article 25, individual criminal responsibility, www.casematrixnetwork.org/ cmn-knowledge-hub/icc-commentary-clicc/commentary-rome-statute/commentary-romestatute-part-3/. Accessed 1 March 2020 Çali B (2014) The authority of international law: obedience, respect, and rebuttal. Oxford University Press, Oxford Case Matrix Network (2016) International criminal law guidelines: command responsibility, https://www.legal-tools.org/doc/7441a2/pdf/. Accessed 1 March 2020 Cassese A (2007) The Nicaragua and Tadić tests revisited in light of the ICJ Judgment on Genocide in Bosnia. European Journal of International Law 18(4):649–668 Crawford J (2013) State responsibility: the general part. Cambridge University Press, Cambridge Darcy S (2014) Assistance, direction and control: untangling international judicial opinion on individual and state responsibility for war crimes by non-state actors. International Review of the Red Cross 96(893):243–273 Darcy S (2014) Judges, law and war. Cambridge University Press, Cambridge De Hemptinne J et al (2019) Modes of liability in international criminal law. Cambridge University Press, Cambridge De Wet E, Kleffner J (eds) (2014) Convergence and conflicts of human rights and international humanitarian law in military operations. Pretoria University Law Press, Pretoria Fry JD (2017) Attribution of responsibility. In: Nollkaemper A, Plakokefalos I (eds) Principles of shared responsibility in international law: an appraisal of the state of the art. Cambridge University Press, Cambridge, pp 98–133 Garner BA (ed) (1999) Black’s law dictionary. West Group, St. Paul Geiss R, Krieger H (eds) 2020) The ‘legal pluriverse’ surrounding multinational military operations. Oxford University Press, Oxford Gill TD, Fleck D (eds) (2015) The handbook of the international law of military operations. Oxford University Press, Oxford

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Green AH (2016) The commander’s dilemma: creating and controlling armed group violence. Journal of Peace Research 53(5):619–632 Guldahl Cooper C (2018) NATO rules of engagement: on ROE, self-defence and the use of force during armed conflict. University of Oslo, Oslo Horowitz J (2019) Joint Blog Series: Precautionary measures in urban warfare: a commander’s obligation to obtain information, https://blogs.icrc.org/law-and-policy/2019/01/10/joint-blogseries-precautionary-measures-urban-warfare-commander-s-obligation-obtain-information. Accessed 1 March 2020 ICRC (2018) The roots of restraint in war. ICRC, Geneva ILC (2001) Articles on state responsibility for internationally wrongful acts ILC (2011) Articles on the responsibility of international organizations for internationally wrongful acts Jackson M (2015) Complicity in international law. Oxford University Press, Oxford Jackson M (2019) Command responsibility. In: De Hemptinne J et al (eds) Modes of liability in international criminal law. Cambridge University Press, Cambridge, pp 409–431 Johansen SØ (2019) Dual attribution of conduct to both an international organisation and a member state. Oslo Law Review 6(3):178–197 Johansen SR (2017) On military necessity and the commander’s assessment of military necessity under the international law of armed conflict during conduct of hostilities. University of Oslo, Oslo Jørgensen NHB (2003) The responsibility of states for international crimes. Oxford University Press, Oxford Kondoch B, Zwanenburg M (2015) International responsibility and military operations. In: Gill TD, Fleck D (eds) The handbook of the international law of military operations. Oxford University Press, Oxford, pp 559–578 Lanovoy V (2014) Complicity in an internationally wrongful act. In: Nollkaemper A, Plakokefalos I (eds) Principles of shared responsibility in international law: an appraisal of the state of the art. Cambridge University Press, Cambridge, pp 134–168 Larsen KM (2008) Attribution of conduct in peace operations: the “ultimate authority and control test”. European Journal of International Law 19(3):509–531 Larsen KM (2011) ‘Neither effective control nor ultimate authority and control’: attribution of conduct in Al-Jedda. The Military Law and the Law of War Review 50:347–368 Messineo F (2014) Attribution of conduct. In: Nollkaemper A, Plakokefalos I (eds) Principles of shared responsibility in international law: an appraisal of the state of the art. Cambridge University Press, Cambridge, pp 60–97 Murphy R, Wills S (2017) United Nations peacekeeping operations. In: Nollkaemper A, Plakokefalos I (eds) The practice of shared responsibility in international law. Cambridge University Press, Cambridge, pp 585–612 Nollkaemper A, Plakokefalos I (eds) (2014) Principles of shared responsibility in international law: an appraisal of the state of the art. Cambridge University Press, Cambridge Nollkaemper A, Plakokefalos I (eds) (2017) The practice of shared responsibility in international law. Cambridge University Press, Cambridge Roughan N (2013) Authorities: conflicts, cooperation, and transnational legal theory. Oxford University Press, Oxford Van Sliedregt E (2012) Individual criminal responsibility in international law. Oxford University Press, Oxford Zyberi G (2017) Responsibility of states and individuals for mass atrocity crimes. In: Nollkaemper A, Plakokefalos I (eds) Principles of shared responsibility in international law: an appraisal of the state of the art. Cambridge University Press, Cambridge, pp 236–262

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Case Law ECtHR, Loizidou v. Turkey (App. No. 15318/89), Judgment (Merits), 18 December 1996 ECtHR, Behrami and Saramati (App. No. 71412/01 and App. No. 78166/01), Decision on Admissibility (Grand Chamber), 2 May 2007 ECtHR, Manitaras and Others v. Turkey (App. No. 54591/00), Judgment (Decision on Admissibility), 3 June 2008 ECtHR, Al-Saadoon and Mufdhi v. United Kingdom (App. No. 61498/08), Judgment (Admissibility), 30 June 2009 ECtHR, Case of Al-Jedda v. The United Kingdom (App. No. 27021/08), Judgment (Grand Chamber), 7 July 2011 ECtHR, Al-Skeini and Others v. The United Kingdom (App. No. 55721/07), Judgment (Grand Chamber), 7 July 2011 ECtHR, Catan and Others v. Moldova and Russia (App. Nos. 43370/04, 8252/05 and 18454/06), Judgment (Grand Chamber), 19 October 2012 ECtHR, Chiragov and Others v. Armenia (App. No. 13216/05), Judgment (Merits, Grand Chamber), 16 June 2015 ECtHR, Sargsyan v. Azerbaijan (App. No 40167/06), Judgment (Merits, Grand Chamber), 16 June 2015 ECtHR, Mozer v. the Republic of Moldova and Russia (App. No. 11138/10), Judgment (Grand Chamber) 23 February 2016 ECtHR, Ukraine v. Russia (re Crimea) (App. No. 20958/14) and Ukraine v. Russia (re Eastern Ukraine) (App. No. 8019/16), relinquished to the Grand Chamber in May 2018 ICC, Prosecutor v. Katanga and Ngudjolo, ICC PT. Ch. I, Confirmation of Charges Decision, ICC-01/04-01/07-717, 30 September 2008 ICC, Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08, Judgment pursuant to Article 74 of the Statute, 21 March 2016 ICC, Prosecutor v. Jean-Pierre Bemba Gombo, Appeal Judgment Pursuant to Article 74 of the Statute, Case No. ICC-01/05-01/08-A, 8 June 2018 ICJ, Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania), Judgment (Merits), [1949] ICJ Rep 4, 9 April 1949 ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment (Merits), [1986] ICJ Rep 14, 27 June 1986 ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [1996] ICJ Rep 226, 8 July 1996 ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, [2005] ICJ Rep 168, (Armed Activities 2005), 19 December 2005 ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, [2007] ICJ Rep 43, 26 February 2007 ICJ, Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation) ICJ, Legality of Use of Force (Yugoslavia v. Spain), [1999] ICJ Rep 761, 2 June 1999 ICJ, Legality of Use of Force (Yugoslavia v. United States of America), [1999] ICJ Rep 926, 2 June 1999 ICJ, Legality of Use of Force (Serbia and Montenegro v. Belgium), [2004] ICJ Rep 279, 15 December 2004 ICJ, Legality of Use of Force (Serbia and Montenegro v. Canada), [2004] ICJ Rep 429, 15 December 2004 ICJ, Legality of Use of Force (Serbia and Montenegro v. France), [2004] ICJ Rep 575, 15 December 2004

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ICJ, Legality of Use of Force (Serbia and Montenegro v. Germany), [2004] ICJ Rep 720, 15 December 2004 ICJ, Legality of Use of Force (Serbia and Montenegro v. Italy), [2004] ICJ Rep 865, 15 December 2004 ICJ, Legality of Use of Force (Serbia and Montenegro v. Netherlands), [2004] ICJ Rep 1011, 15 December 2004 ICJ, Legality of Use of Force (Serbia and Montenegro v. Portugal), [2004] ICJ Rep 1160, 15 December 2004 ICJ, Legality of Use of Force (Serbia and Montenegro v. United Kingdom), [2004] ICJ Rep 1307, 15 December 2004 ICTR, Prosecutor v. Bagilishema, Appeals Chamber Judgment, Case No. ICTR-95–1A-A, 3 July 2002 ICTY, Prosecutor v. Tadić (Case No. IT-94–1-A), Appeals Chamber Judgment, 15 July 1999 ICTY, Prosecutor v. Delalić et al., Appeals Chamber Judgment, Case No. IT-96–21-A, 20 February 2001 ICTY, Prosecutor v. Limaj et al., Case No. IT-03-66-T, Trial Chamber Judgement, 30 November 2005 ICTY, Prosecutor v. Simić (Case No. IT-95-9-A), Appeals Chamber Judgment, 28 November 2006 ICTY, Prosecutor v. Hadžihasanović and Kubura, Case No. IT-01-47-A, Appeal Chamber Judgement, 22 April 2008 ICTY, Prosecutor v. Mrkšić and Šlivančjanin (Case No. IT-95-13/1-A), Appeals Chamber Judgment, 5 May 2009 ICTY, Prosecutor v. Perišić, Case No. IT-04-81-A, Appeals Chamber Judgement, 28 February 2013 ICTY, Prosecutor v. Šainović et al., Case No. IT-05-87-A, Appeals Chamber Judgement, 23 January 2014 SCSL, Prosecutor v. Fofana and Kondewa, Case No. SCSL-04-14-T, Trial Chamber Judgement, 2 August 2007 United States Military Commission, Manila, Trial of General Tomoyuki Yamashita, Case No. 21, 4 February 1946, LRTWC, Volume IV (London: UN War Crimes Commission, 1948)

Prof. Gentian Zyberi is the Head of the Norwegian Centre for Human Rights, Faculty of Law, University of Oslo and a member of the UN Human Rights Committee (2019–2022). His Ph.D. degree from Utrecht University (The Netherlands) on the contribution of the International Court of Justice to interpreting and developing rules and principles of international human rights and humanitarian law was co-supervised by Terry Gill.

Chapter 15

Responsibility of Organized Armed Groups Controlling Territory: Attributing Conduct to ISIS Katharine Fortin and Jann Kleffner

Contents 15.1 Introduction...................................................................................................................... 15.2 Brief History of the Rise and Fall of the Islamic State ................................................. 15.3 The Islamic State and IHL and IHRL ............................................................................ 15.4 Need for Secondary Rules of Attribution ....................................................................... 15.5 Applying State Responsibility by Analogy: Potential and Pitfalls ................................ 15.6 Attributing Conduct to the Islamic State ........................................................................ 15.7 Concluding Remarks ....................................................................................................... References ..................................................................................................................................

308 310 312 314 318 320 324 326

Abstract In stark contrast to the situation for states, international organizations and individuals, there is no coherent international legal framework governing the responsibility of non-state organized armed groups that are parties to armed conflicts. The present chapter explores the possibility of developing such a framework for international law by focusing first on formulating a set of rules on attribution of conduct; and, second, using the Islamic State (IS) as a case study, to explore how some core rules of attribution could be applied to a specific type of organized armed group, namely those that—at least during a certain period of their existence— exercise territorial control.

The research assistance of Isak Malm is gratefully acknowledged. K. Fortin (&) Netherlands Institute of Human Rights, Utrecht University, Utrecht, The Netherlands e-mail: [email protected] J. Kleffner Swedish Defence University, Stockholm, Sweden e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2021 R. Bartels et al. (eds.), Military Operations and the Notion of Control Under International Law, https://doi.org/10.1007/978-94-6265-395-5_15

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Keywords International humanitarian law international human rights law organized armed groups territorial control armed conflict attribution collective responsibility




15.1










Introduction

At present, international law does not provide for a well-developed and coherent set of rules governing the responsibility of non-state organized armed groups that are parties to armed conflicts. In stark contrast to states, international organizations and individuals, there is no legal framework addressing matters such as the attribution of conduct to such groups qua groups as collective entities, the legal consequences of responsibility, and possible ‘defences’ in the sense of circumstances that preclude the wrongfulness of acts in breach of international law that are attributable to such groups. Of course, states and other actors are far from inactive vis-à-vis organized armed groups and take a variety of measures addressed to them, such as imposing sanctions. Yet, these accountability measures are not accompanied by a coherent framework of responsibility grounded in international law. The present chapter explores the possibility of developing such a legal framework. However, rather than engaging in a generic discussion on the desirability and possible design of international legal rules and principles governing the responsibility of organized armed groups as a broad category,1 our analysis is delineated in the following way. First, our focus will be on formulating a set of rules on attribution of conduct. Other aspects of a framework for responsibility are beyond the purview of the present chapter. Secondly, we will explore the issue of attribution in relation to a specific type of organized armed group, namely those that—at least during a certain period of their existence—exercise territorial control. Our considerations hence cannot necessarily be transposed to organized armed groups that fail to possess such control. We will conduct that exercise inductively and channel our analysis through a case-study on an organized armed group that has featured in the academic work of Terry Gill, namely the Islamic State/Daesh.2 The Islamic State makes a useful case study, because the differences in its organisational structure, functions and size over the short years of its existence have been extreme. In its early years, it presented itself as just another armed group in the patchwork of what was estimated to be more than a thousand armed opposition groups fighting in Assad’s Syria. But by 2014, it was exercising territorial control over an area twice the size of the

1

For these, see e.g. Fortin 2017, pp. 277–279; Kleffner 2009, pp. 238–269. See e.g. Gill 2016; Gill and Tibori-Szabó 2020. Terry Gill also organized the launch conference of the LACMO Research Network on ‘The Rise and Fall of ISIS’ in Amsterdam in September 2018.

2

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Netherlands (i.e. around 88,000 km2) inhabited by 12–15 million people.3 Today, the capacities of the Islamic State are vastly reduced, and its fighters have largely retreated to the deserts and mountains of Syria and Iraq.4 During the course of its life, the Islamic State not only grew and then shrank again, it also combined with other groups, who fought with it under different forms of allegiance. Some armed groups merged with the Islamic State, others simply adopted its logo and flags. Others declared that their acts were those of the Islamic State, with the latter at times endorsing those acts after the event. The Islamic State had sophisticated governance structures, existed in different forms and fought under banners of allegiance with other groups, which makes it a robust and challenging case study to examine the difficulties of developing a set of secondary rules for organized armed groups broadly, and rules on attribution more specifically. Similarly, the history of the Islamic State’s ‘rise and fall’ vividly highlights that any attribution regime developed for armed groups will need to take account of armed groups changing their shape over time. Equally, the case of the Islamic State invites us to reflect on the—admittedly at the time of writing somewhat speculative—possibility to hold an armed group responsible, after an armed conflict has ceased, when its legal personality (as an obligation bearer) has been extinguished, for instance because it has been comprehensively defeated or dissolved in the course of a peace process. The fact that the Islamic State fought together with other groups, shows that it is also necessary to clarify the circumstances in which an armed group may be responsible for the acts of (members of) another armed group. Equally, affiliated groups—and individuals—have sometimes pledged allegiance to the Islamic State, either after an attack or before an attack, which requires a consideration of the significance of such pledges for the responsibility of the group allegiance is pledged to. It is unclear how these questions should be answered, both from a lex lata and lex ferenda perspective. The purpose of this chapter is to evaluate how these difficulties play into an examination of the extent to which the rules on State responsibility pertaining to attribution can be applied by analogy to armed groups like the Islamic State. Drawing upon literature from the social sciences on the Islamic State and news stories, it considers whether the organisational realities of such a group make the application of these rules appropriate or workable. The chapter briefly recounts first the history of the rise and fall of the Islamic State (Sect. 15.2) and the applicable primary rules that bind the Islamic State (Sect. 15.3). An analysis of the need for secondary rules on responsibility of organised armed groups follows (Sect. 15.4). The subsequent sections address the 3

CNN (2019) ISIS fast facts. https://edition.cnn.com/2014/08/08/world/isis-fast-facts/index.html. Accessed 26 February 2020; BBC (2018) Islamic State and the crisis in Iraq and Syria in maps. https://www.bbc.com/news/world-middle-east-27838034. Accessed 26 February 2020. 4 Abdulrahim R and I Coles (2018) Islamic State returns to guerilla warfare in Iraq. https://www. wsj.com/articles/islamic-state-returns-to-guerrilla-warfare-in-iraq-and-syria-1514889000. Accessed 26 February 2020.

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suitability of applying the rules on state responsibility on attribution to the Islamic State by analogy (Sect. 15.5), followed by the actual application of the pertinent rules on attribution (Sect. 15.6). The last section offers some concluding observations.

15.2

Brief History of the Rise and Fall of the Islamic State

Although the Islamic State has its origins in the 2000s in Iraq, the legal analysis in this chapter focuses on the re-emergence of the group after the beginning of the non-international armed conflict in Syria in 2011. The Islamic State emerged as an actor in that armed conflict in 2013 under the leadership of Abu Bakr al-Baghdadi.5 In late 2013, the Islamic State was widely seen as just another armed group in the fight against the Assad regime in Syria.6 In the early years of its existence, when it was estimated that there were up to a thousand armed groups fighting in different alliances against the regime, the Islamic State often fought alongside other armed groups, in order to defend towns and strategic centres from advances by the regime.7 But the Islamic State quickly transformed itself into something different.8 Rapidly taking control of huge swathes of territory, it made it clear that its main priority was to establish a Caliphate that would cover a huge area of Iraq and Syria.9 Its new Caliph—Abu Bakr al-Bagdadhi—urged Muslims throughout the world to come and join the group, particularly “judges and those who have military and managerial and service skills, and doctors and engineers”.10 The group’s strength and territorial control reached the peak of its power in 2015, when it is estimated that between 10 and 15 million people lived under its control. At this time, the group controlled major urban centres such as Raqqa (which had around one million residents before IS took control) in Syria and Mosul (which had two million residents before IS took control) in Iraq.11 During the years that the group controlled these territories, the Islamic State developed a sophisticated bureaucracy in territory under control, with over 12 ‘diwans’ (akin to ministries) covering issues pertinent to

5

Stanford University 2019. BCC (2013) Guide to the Syrian Rebels. https://www.bbc.com/news/world-middle-east24403003. Accessed 26 February 2020. 7 Ukraine in Arabic (2014) Islamic State to form an alliance with the Jabhat al-Nusra. http://arab. com.ua/en/islamic-state-to-form-an-alliance-with-the-jabhat-al-nusra. Accessed 26 February 2020; Wikipedia 2019. 8 Khatib 2015. 9 Oosterveld and Bloem 2017. 10 Al Arabiya (2014) ‘Caliph’ urges skilled jihadists to join ISIS. http://english.alarabiya.net/en/ News/middle-east/2014/07/01/-Caliph-urges-skilled-jihadists-to-join-ISIS.html. Accessed 26 February 2020. 11 Robinson et al. 2017. 6

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its governance project e.g. education, health, enforcement of public morality, public services, and agriculture.12 Studies on the Islamic State demonstrate that it deliberately provided public services in areas under its control not only to fulfil its aspiration of creating an economically prosperous Caliphate but also to protect and ensure its internal revenue.13 Unlike many other armed groups involved in the Syrian conflict, it is thought that the Islamic State was almost entirely internally funded. To secure its income, it relied heavily on directly taxing the population under its control, the imposition of social regulations and financial protection-schemes. According to US estimates, from 2016 onwards the group raised several hundred million dollars annually from these revenues.14 It also relied heavily on its control of natural resources, such as oil, natural gas and phosphates. In order to protect these revenue streams, it was important that economic life in the Caliphate continued in the towns where it had consolidated its control i.e. that markets remained opened and that people kept on buying and selling commodities. The group took steps to regulate every aspect of daily life, issuing landlines, pharmacy permits, fishing regulations and travel permits.15 It promulgated laws and regulations, which it used both to punish crimes connected to the armed conflict (i.e. prosecution of captured fighters, persons related to the regime, spies) and common crimes (e.g. witchcraft, possession of pornography, adultery, theft, fraud, murder, homosexuality).16 It frequently carried out cruel public executions, and displayed the bodies of convicted criminals in public places to communicate its lack of mercy and terrify the civilian population.17 As a fighting force, the Islamic State is said to have been organised similarly to a regular army, with many of its top leaders being former officers in Saddam Hussein’s army in Iraq.18 After its split with Al-Qaida in February 2014, it continued to expand and carry out military operations in Syria and Iraq. From this time

12

al-Tamini 2015. Robinson et al. 2017, p. xv. 14 Ibid., p. xvi. 15 al-Tamini (2017) Licensing exam for Islamic State pharmacists no cake walk. https://www. meforum.org/6696/isis-qualifying-exams-for-pharmacists-are-no-joke. Accessed 26 February 2020; al-Tamini 2015. See also Callimachi R (2018) The ISIS Files. https://www.nytimes.com/ interactive/2018/04/04/world/middleeast/isis-documents-mosul-iraq.html. Accessed 26 February 2020. 16 Revkin 2016, p. 18. 17 UN Human Rights Council (2014) Report of the Independent International Commission of Inquiry on the Syrian Arab Republic: Rule of Terror: Living under ISIS in Iraq, UN Doc. A/HRC/27/CRP.3, paras 32–36. 18 The Washington Post (2015) Most of Islamic State’s leaders were officers in Saddam Hussein’s army. https://www.washingtonpost.com/world/most-of-islamic-states-leaders-were-officers-insaddam-husseins-iraq/2015/04/04/f3d2da00-db24-11e4-b3f2-607bd612aeac_graphic.html? noredirect=on&utm_term=.c3bf49305a5e. Accessed 26 February 2020. See also Reuter C (2015) Secret files reveal the structure of Islamic State. https://www.spiegel.de/international/world/ islamic-state-files-show-structure-of-islamist-terror-group-a-1029274.html. Accessed 26 February 2020. 13

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onwards, the group was significantly organised with hierarchical command structure and both military and civilian shuras. One of the factors in its military successes is said to be linked to the fact that it contained fighters from several disparate conflicts, many of whom had earlier fought guerrilla wars. Its disparate membership and military capability enabled the group to shift between fighting as a conventional army and fighting as a guerrilla militia, employing different tactics according to the situation.19 Throughout its existence, the Islamic State regularly fought together with franchise groups that used its flags, logos and discourse but remained formally separate.20 It also has regularly taken part in coordinated attacks with separate groups, such as its operations in Aleppo with Jund al-Aqsa.21 It also has many affiliates in third countries such as Afghanistan, Nigeria, the Philippines, Kenya, Tanzania, Uganda and Somalia.22 Towards the end of 2017, the Islamic State suffered a series of significant military defeats, losing control of much of its territorial control and abandoning urban centres. At the time of writing in early 2020, a vastly reduced Islamic State holds pockets of territory in Syria and Iraq. Hiding in isolated mountain or desert regions or among civilian populations, the group is now focusing on guerrilla tactics and sabotage tactics, rather than governance and administration.23

15.3

The Islamic State and IHL and IHRL

There is every indication that the Islamic State fulfils the organisation requirement to be considered an ‘organised armed group’ as a party to a non-international armed conflict that has been set out in international case law.24 As from the time of its 19

Barfi 2016. al-Tamini (2015) Talking to the Yarmouk Martyrs Brigade. https://www.newsdeeply.com/syria/ community/2015/10/13/talking-to-the-yarmouk-martyrs-brigade. Accessed 26 February 2020. 21 Stanford University 2016. 22 Warner 2017; Blanchard and Humud 2018. See also Noack R (2019) Bagdadi may be dead, but groups linked to Islamic State continue to pose threat in regions far and wide. https://www. washingtonpost.com/world/2019/10/28/baghdadi-may-be-dead-groups-linked-islamic-statecontinue-pose-threat-regions-far-wide/. Accessed 26 February 2020. 23 UN Security Council (2017a, b) Twenty-fifth report of the Analytical Support and Sanctions Monitoring Team submitted pursuant to resolution 2368(2017) concerning ISIL (Da’esh), Al-Qaida and associated individuals and entities, UN Doc S/2020/53; Wright, R (2018) ISIS makes a comeback—as Trump opts to stay in Syria. https://www.newyorker.com/news/news-desk/ isis-makes-a-comebackas-trump-opts-to-stay-in-syria. Accessed 26 February 2020; Abdulrahim R and Coles I (2018) Islamic State returns to guerilla warfare in Iraq and Syria https://www.wsj.com/ articles/islamic-state-returns-to-guerrilla-warfare-in-iraq-and-syria-1514889000. Accessed 26 February 2020. See Flood 2018, p. 31. 24 For a list of indicative factors for that requirement, see e.g. ICTY, Prosecutor v. Boškoski and Tarčulovski, Judgment, 10 July 2008, Case No. IT-04-82, paras 194–206. See, e.g., also ICC, Prosecutor v Ntaganda, Judgment, 8 July 2018, Case No. ICC-01/04-02/06, paras 704–715, ICC, Prosecutor v Bemba Gombo, Judgment, 21 March 2016, Case No. ICC-01/05-01/08, paras 134–136. 20

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entry into the armed conflict in Syria in 2013, it had a clear command structure, was able to carry out operations in an organised manner, had sophisticated logistics regarding military equipment, training and financing, a rigorous disciplinary system and a spokesperson. As of this time, the intensity of violence between the Islamic State and its opponents—the armed forces of Syria, the US and Turkey, several armed non-State actors, including the more moderate opposition groups, the Syrian Democratic Forces (SDF) and the Kurdish Peshmerga25—has been such that there is little doubt as to the applicability of the law of non-international armed conflict. Since Additional Protocol II is inapplicable to the armed conflict(s) in Syria and Iraq, because both States have failed to ratify it, the Islamic State is bound by common Article 3 and customary international law of non-international armed conflicts. A strong case can be made that human rights law is also applicable to the Islamic State. This is particularly the case in the years where it controlled huge swathes of territory and exercised governance functions. Many of the theories explaining how armed groups are bound by human rights law rely on a group’s control of territory, asserting inter alia that an armed group inherits the international law obligations of the State in these instances.26 Equally, the additional value of human rights law vis-a-vis international humanitarian law in these circumstances is particularly clear, as human rights law is particularly well-suited to regulating the dynamics of everyday life that arise when armed actors perform functions of government in territory under their control. It has often been noted that human rights law contains a number of provisions that are entirely absent from international humanitarian law, such as a detailed provisions on the elimination of discrimination against women and protections of the right to freedom of expression, the right to freedom of movement, the right to freedom of association, freedom of religion and the right to health, in the sense of a right that extends to healthy people as well as the sick and the wounded.27 It also contains important legal provisions relating to the right to legal identity, including the right for children to be registered at birth, and their right to a name. Human rights law also provides important provisions regarding law enforcement, which include rules governing the right to life, the right not to be arbitrarily detained and the right to a fair trial. These types of provisions are particularly important when scrutinising the daily life experienced by individuals living in territories and urban centres controlled by the Islamic State. Indeed, it has been argued that these provisions are particularly important when an armed group enforces laws relating to crimes with no obvious relationship to the armed conflict.28 It can be noted in this regard that the Islamic State was assiduous at enforcing laws in territory under its control, promulgating a detailed set of criminal

25

Ibid. See inter alia Clapham 2019, p. 11; Henckaerts and Wiesener 2020; Fortin 2017; Murray 2016. 27 See Fortin 2016, pp. 169–170. See also Henckaerts and Wiesener 2020, p. 203. 28 See Fortin 2016, pp. 177–179. 26

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laws relating to common crimes such as witchcraft, adultery, theft or homosexuality, pornography, selling or consuming drugs, alcohol or cigarettes.29 It is at least arguable that these prosecutions, detentions and arrests should also be assessed under human rights law, rather than (or in addition to) the law of non-international armed conflict.30 The idea that these law enforcement activities fall completely outside the scope of international humanitarian law is made less likely by the fact that the Islamic State deliberately integrated the imposition of appalling conditions of cruelty into its activities, as part of their military strategy.31

15.4

Need for Secondary Rules of Attribution

The present discussion about secondary rules on responsibility of the Islamic State and rules on attribution as part of them is to be understood against the background of a growing concern for the accountability of organised armed groups. Indeed, the absence of or lack of clarity in rules on responsibility has been suggested to constitute a ‘gap’ in the accountability regime for armed groups.32 The latter exists, for instance in the form of condemnations of violations and calls to cease them, the imposition of sanctions etc., thereby reflecting a growing concern for and relevance of organised armed groups as violators of international law. The corollary of the rise in, and recognition of, the power of organized armed groups to act in ways similar to states, is a limitation of states’ responsibility for conduct of organized armed groups. It stands to reason that the resulting gap be filled by a legal regime for the responsibility of organized armed groups.33 Yet, there are currently no such legal rules providing guidance on how to attribute conduct to armed groups, or on the content and implementation of their responsibility, nor are there judicial or arbitral fora which can adjudicate the international responsibility of armed groups as such and hence could clarify with some authority the secondary rules that govern violations committed by them. Indeed, the lack of engagement with the issue in the practice of bodies that are called upon to document violations committed in the course of the armed conflict in Syria is instructive in this regard. The Independent International Commission of Inquiry on the Syrian Arab Republic has painstakingly documented these violations. In many of these reports, the violations of non-State armed groups are dealt with quite vaguely with allegations being loosely attributed to ‘some anti-government armed groups’ rather than being attributed to an identified and

29

Revkin 2016, pp. 14–20. See Fortin 2016, p. 179. See ICRC 2019, p. 43. 31 Ibid. 32 Bílková 2015, p. 275. Bellal 2015, p. 285. 33 See in this vein also Cahin 2010, pp. 332 and 335–337. 30

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named entity.34 The Commission’s inability to pinpoint individuals’ affiliation is likely explicable, at least in part, in the light of the intense fragmentation of the armed conflict.35 The Commission pointed out that the overlap in ideological orientation and political aspirations, as well as continuous personal and collective migration between groups made it difficult to ‘draw linear or fixed lines of separation’ between some of the Syrian opposition groups.36 However, it is symptomatic that the issue of attribution as a matter of law to the Islamic State in the Commission’s reports remained to a large degree amorphous even when the Islamic State became more organised and controlled more territory, and the Commission increasingly dealt with its actions separately from the acts of other non-State armed groups, which continued to be dealt with collectively.37 In its accounts of the violations of international law by the Islamic State, the Commission makes little attempt to identify the roles of individual perpetrators (e.g. fighter, judge, bureaucrat) by the Commission. More often, the reports simply refer to ‘ISIS’ taking a particular action—whether it be carrying out an execution or committing someone to detention. In so doing, the Commission avoids an identification of the exact details as to the position of the perpetrator. Sometimes, the reports refer to ‘ISIS fighters’ however.38 In its November 2014 report on ‘Living under ISIS’,39 the Commission also did not seem to have particular difficulty in determining that particular actions of elements of IS’ ‘primitive but rigid administrative system’,40 comprising the Al-Hisbah morality police, the general police force, courts and entities managing recruitment, tribal relations and education, could be attributed to ISIS when analysing the violations of international humanitarian law and human rights law committed by the group.41 And yet, while one can discern from such references that the Commission is of the view that acts of IS fighters and other ‘organs’ of that group can be attributed to IS, the reports are silent 34 See UN General Assembly (2013) Human Rights Council: Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, UN Doc. A/HRC/24/; UN General Assembly (2014b) Human Rights Council, Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, UN Doc. A/HRC/25/65. 35 See UN General Assembly (2013) Human Rights Council: Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, UN Doc. A/HRC/24/46, para 14. 36 Ibid., para 17. 37 UN General Assembly (2014c) Human Rights Council: Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, UN Doc A/HRC/27/60. 38 See for example UN General Assembly (2014c) Human Rights Council: Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, UN Doc A/HRC/27/60. 39 UN General Assembly (2014a) Human Rights Council: Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, ‘Rule of Terror: Living under ISIS in Syria’, UN Doc A/HRC/27/CRP.3. 40 Ibid., para 16. 41 See, eg., ibid., para 49 for punishments carried out by Al-Hisbah and the all-female Al-Khans’aa brigade.

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on the issue of how and on what (legal) basis. This lack of determinacy undermines the legitimacy of accountability practices.42 It is further submitted that a clear legal framework for the responsibility of organised armed groups would fill an important void that currently exists between primary rules that are binding upon them qua groups, on the one hand, and a set of secondary rules that is reflective of their existence as collective entities, on the other. Clearly, quite a few primary rules in the field of international humanitarian and human rights law are applicable—either exclusively or in addition to individuals—to organized armed groups in their collective dimension.43 Not to devise a set of secondary rules on responsibility would thus fail to capture this important aspect of primary rules. This is not the least important to facilitate determinations of whether armed groups are violating their own commitments, enshrined within special agreements or unilateral declarations. Over the last twenty years, there has been an increase in these kinds of commitments. Notable examples are the Deeds of Commitment signed under the auspices of Geneva Call and the action plans agreed under the monitoring and reporting mechanism of the UN Special Representative on Children and Armed Conflict.44 Equally armed groups often commit themselves to humanitarian norms in the context of peace agreements. It is impossible to monitor an armed group’s adherence to these types of agreements, if there are no clear secondary rules available to provide guidance, including on the issue of attributing conduct to the group. In addition, organized armed groups provide the collective context in which violations that individuals commit occur. More often than not, the nature of such violations does not exhaust itself in the actions of individuals. Rather, these violations are embedded in a collective context that is the organised armed group.45 The current trend to reduce these groups to mere ‘tools’ of individuals46 does not do justice to the significance of the agency of organised armed groups. Indeed, this trend, which emphasises the role of individuals while downplaying the role of the organised armed group as a collective actor in its own right, brings to full circle the 42

On the significance of determinacy for legitimacy, see Franck 1988, p. 713; Franck 1995, p. 30. See for example the judicial guarantees referred to in common Article 3 of the Geneva Conventions and Article 6 of Additional Protocol II which apply to armed groups in their collective dimension and cannot be fulfilled by individuals. 44 For more information about Geneva Call’s work, see its website https://www.genevacall.org/ what-we-do/. This lists the number of armed non-State actors that have signed its Deeds of Commitments protecting children in armed conflict, prohibiting sexual violence and gender discrimination, prohibiting attacks on health care facilities, personnel and medical transports and anti-personnel mines. Since the inception of the mandate, the Special Representative of the Secretary-General for Children and Armed Conflict has signed twenty-nine action plans with parties to non-international armed conflicts including armed groups. See UN General Assembly (2018) Annual Report of the Special Representative of the Secretary-General for Children and Armed Conflict, UN Doc. A/HRC/37/47. 45 Kleffner 2009, pp. 238–269. 46 The ICC’s jurisprudence is indicative of such a trend, see e.g. Ntaganda 2019, above n 24, para 819. 43

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assertion of the International Military Tribunal in Nuremberg in 1949 that ‘[c]rimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced’.47 Yet, we submit that capturing the phenomenon of violations committed by members of organized armed groups requires a holistic approach that addresses the individual and the collective dimension of such violations, rather than a mutually exclusive approach that focuses on the individual at the expense of the collective context in which s/he acts. Further support for such a holistic approach can be found in the fact that international criminal law suffers from two additional challenges, one legal, the other factual. As to the legal, some violations of norms addressed to parties to a non-international armed conflict, including organised armed groups, do not constitute crimes governed by international criminal law. The ‘mere’ violation of the obligations on precautions in, and against the effects of attacks, which are applicable in non-international armed conflicts by virtue of customary international humanitarian law,48 are examples at hand. Another pertinent example is found in the prohibition of arbitrary detention in customary international humanitarian law, which does not constitute a crime in the Rome Statute.49 Whereas such violations could be addressed through the principles and rules of state responsibility, if committed by states, the absence of similar secondary rules pertaining to the responsibility of organised armed groups leaves a regulatory void. As to the factual challenge, only a fraction of crimes committed by (members of) organised armed groups are investigated and prosecuted, be it before domestic, internationalised and international criminal courts and tribunals. The efforts to investigate and prosecute crimes committed by IS-members are no exception in this regard. Despite notable steps to secure the criminal responsibility of Islamic State members,50 only a very limited number of domestic trials have been conducted, if considered against the scale of documented crimes. A framework for the responsibility of organized armed groups would make it possible to capture those violations that are not addressed through criminal proceedings. The foregoing arguments demonstrate that a focus on secondary rules addressing armed groups as such is as much a factual necessity as it is necessary to fill a

47

IMT, Judgment, 30 September 1946 and 1 October 1946 para 41. Cf. Henckaerts and Doswald-Beck 2005, Rules 15–20 and 22. The other rules on precautions (Rules 21, 23 and 24) are only ‘arguably’ applicable to NIAC’s in the ICRC’s assessment. 49 Cf. Henckaerts and Doswald-Beck 2005, Rule 99 which states ’arbitrary deprivation of liberty is prohibited’ in both international armed conflicts and non-international armed conflicts. 50 See e.g. the International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic (IIIM), created by UN General Assembly (2016) Resolution 71/248, UN Doc. A/RES/71/248. See also the United Nations Investigative Team to Promote Accountability for Crimes Committed by Da’esh/ISIL (UNITAD), created by the UN Security Council (2017a, b) Resolution 2379, UN Doc. S/RES/2379. 48

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normative gap, to give a more solid conceptual foundation and methodological rigour to existing practices of holding armed groups to account for violations of the international norms that bind them.

15.5

Applying State Responsibility by Analogy: Potential and Pitfalls

In an attempt to devise a set of secondary rules governing the responsibility of organized armed groups for violations of the law of armed conflict and human rights law, two possibilities present themselves. One is to start with a clean slate and design such a set of rules from scratch without references to any established framework of responsibility. The other is to draw on those established under international law and explore whether and to what extent they can be transposed to organized armed groups. As to the latter possibility, those that have evolved in respect of collective entities—as opposed to individuals—would seem to be particularly suitable in light of the quest for devising a set of rules that are applicable to organized armed groups as such. The latter possibility would bring to the fore the rules and principles on the responsibility of states for internationally wrongful acts as a useful starting point.51 It is submitted that the second possibility is preferable. It is reflective of the fact that organized armed groups bear at least some resemblance to states and display state-like features to varying degrees. Indeed, the very fact that international law has evolved to recognize that rules of the law of armed conflict that were originally reserved for states in as much as they were limited to international armed conflicts, nowadays also apply in non-international armed conflict and hence bind organized armed groups, bears witness to the fact that organized armed groups and states share certain characteristics. Both entities bear legal personality and can occupy similar functional spheres relating to the conduct of hostilities and governance of everyday life. The gradual recognition that human rights law is binding on at least certain types of organized armed groups is also symptomatic of the fact that states and armed groups share some common features.52 Organized armed groups, much like states, command and exercise control over persons and at times also territory,

51

While international law also provides a set of rules on the responsibility of international organizations, as codified in the Draft Articles on the Responsibility of International Organizations, see ILC 2011, these rules draw heavily on analogies with the law of state responsibility. It is therefore submitted that the latter rules are the more useful reference point also for exploring the possibilities of analogies for the present purpose of rules of responsibility for organized armed groups. 52 Above, Sect. 15.3.

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project policies which are formulated by ‘an authority’, and are in a position to project armed violence in the pursuit of their aims to a degree of intensity that reaches the threshold of an armed conflict.53 At the same time, any transposition of rules on the responsibility of states to organized armed groups needs to be approached with caution in recognition of the differences that do exist between states and organized armed groups. The latter do not have an internationally recognized right to exist in a legal system based on the sovereign equality of states that have the right to suppress organized armed groups on their territory. Furthermore, the law of state responsibility is devised to regulate the horizontal relation between states, i.e. between the state responsible for an internationally wrongful act on the one hand, and other states on the other hand. In contrast, a set of rules devised for regulating the responsibility of organized armed groups is not, or at least not primarily, concerned with the horizontal relation between different organized armed groups, but the vertical relation between states and organized armed groups or, for that matter, between individuals and organized armed groups. Last but not least, all states by definition share the features of statehood—a permanent population, defined territory, and effective government and the capacity to enter into international relations. Organized armed groups, in contrast, do share only the features of being ‘organized’, ‘armed’ and a ‘group’.54 Within those parameters, organized armed groups are very diverse, with some displaying more state-like features (such as control over population and territory through quasi-legislative, -executive and -judicial organs) than others. Indeed, organized armed groups regularly change over time and go through different phases during which they exhibit such features to varying degrees. That diversity and fluctuating nature of organized armed groups means, in turn, that the rules and principles of the law on state responsibility may be more appropriate to some (phases in the life of) organized armed groups than others.55 In the case of the Islamic State, the law of state responsibility may prove to be a more suitable point of reference during the period after its establishing its firm control over territory and persons in Iraq and Syria around 2014, and the setting up of institutions that ensued, peaking in 2015, up until the point at which the Islamic State lost such control and its bureaucratic structures were displaced.56 The aforementioned considerations need to be borne in mind when we now turn to an examination of whether and to what extent the rules on attribution in the law on state responsibility can inform the formulation of such rules vis-à-vis organized armed groups in general, and the Islamic State in particular.

53

Kleffner 2009, p. 260. See Prosecutor v. Boškoski and Tarčulovski, n. 24 for criteria for determining whether an entity can be considered an ‘organized armed group’. 55 Kleffner 2009, p. 261. See also Fortin 2018, pp. 350–351. 56 See supra nn 11–17. 54

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Attributing Conduct to the Islamic State

The law of state responsibility provides for a number of rules on how to attribute conduct to States.57 Thus, Article 4 ASR does so with conducts of ‘organs’ of the State, regardless of ‘whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State.’ There does not appear to be any good reason why such a rule of attributing conduct could and should not be applied by analogy to organs of organized armed groups as a matter of principle. Admittedly, it may be difficult to discern whether an entity is in fact an organ, since the central means to determine the matter in the law of state responsibility—namely the internal law of the State— may be unavailable in the context of organized armed groups. However, it has been noted that a determination under Article 4 ASR as to whether an entity can be qualified as an ‘organ’ does not exhaust itself in a mere exercise in formalities as reflected in internal law. Rather, state organs can become such by virtue of practice.58 Furthermore, the conduct of persons, groups or entities can be attributed to a state on the basis of Article 4 ASR if it can be qualified as de facto organs, namely when they act ‘in ‘complete dependence’ on the State, of which they are ultimately merely the instrument’59. In the case of attributing conduct to IS, these three dimensions of how to become an ‘organ’—by way of internal rules, by way of practice and by way of complete dependence—are all manifest. The Islamic State’s internal rules and practices applicable to its fighters, their recruitment and remuneration, those governing entities endowed with the performance of executive functions, such as the Al-Hisbah morality police and the general police force, and those exercising judicial functions, as well as the rules and practices relating to the operation of ‘diwans’, suggest that the respective entities are ‘organs’ of IS whose conduct can be attributed to it. Indeed, this approach explains most plausibly the practice of the International Commission of Inquiry on Syria referred to above, in which acts of the aforementioned entities are attributed to IS.60 Over and above the creation of its own organs, IS also assumed control over parts of the pre-existing bureaucracy in Syria and Iraq, and ensured that they operated in complete dependence on it,61 providing good grounds to also attribute the conduct of such entities to it as de facto organs. It is less straightforward to also apply Article 5 ASR by analogy to IS. The rule provides for attribution of acts of conduct of persons or entities which are not State

57

ILC 2001, Articles 4–11. See ILC 2001, commentary to Article 4, para 11. 59 ICJ 2007 (Bosnia Genocide case), 2007 ICJ Rep 43, para 392. 60 See supra nn 38–40. 61 For a recount of that process of assuming control over the Iraqi Directorate of Agriculture, see Callimachi R (2018) The ISIS Files. https://www.nytimes.com/interactive/2018/04/04/world/ middleeast/isis-documents-mosul-iraq.html. Accessed 26 February 2020. 58

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organs under Article 4, but are empowered by the law of that State to exercise elements of the governmental authority, provided they are acting in that capacity in the particular instance. Yet, although there is no obvious reason to reject the possibility of finding guidance in the rule to organized armed groups in principle, subject to the necessary modifications as far as the notions of ‘internal law’ and ‘governmental functions’ are concerned,62 the specific case of IS would seem to render such an exercise less relevant. Whereas Article 5 is concerned with the outsourcing of governmental functions to private institutions, with the managing of prisons and immigration control as often-cited examples,63 the available facts do not seem to indicate that IS has engaged in analogous practices. To the extent that entities cannot be qualified as ‘organs’ of IS in the sense above, the instruction, direction or control-test under Article 8 ASR can provide further guidance on how to attribute conduct to it. The potential relevance of these notions is demonstrated by the fact that the Islamic State has had different forms of relations, including coordinated military operations, with franchise groups that remained formally separate.64 The relationship between IS in Syria and Iraq, on the one hand, and IS in Libya, on the other is instructive in this regard. Some sources seem to suggest that IS in Libya was ‘under the direct command and control’ of IS’ ‘core operation in Iraq and Syria’, chiefly through the presence and role of a commander by the name of Zubaidi, who headed the Islamic State operations in central Iraq prior to going to Libya.65 Some have taken the position that, ‘if the group in Libya was sufficiently organized for the purposes of IHL, and its leadership was under the direct command and control of [IS] headquarters’ it would suffice if the ‘central leadership exercises factual command and control over the commanders of sub-groups or units, and the sub-group’s leadership exercises operational coordination and strategic authority over its units’ to consider the entire sub-group part of the overall organization.66 That position contrasts with an alternative view, which holds that all parts of the armed group would need to act under a centralized military command and a chain of command from top to bottom, in other words that a chain of command would run all the way from the IS leadership in Syria and Iraq to the IS rank and file in Libya.67 Admittedly, both views are expressed in the context of determining whether an armed group forms part of a transnational armed group that possesses centralized

62

Kleffner 2009, p. 263. See, e.g., Momtaz 2010. 64 See supra nn 20–21. 65 Chesney R (2015) The Global War on ISIL and Its Associated Forces. https://www.lawfareblog. com/global-war-isil-and-its-associated-forces. Accessed 26 February 2020. 66 Rodenhäuser 2018, p. 100. 67 Ambos and Alkatout 2012, p. 347. 63

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command structures so that both are considered as one, rather than the context of attributing conduct for the purpose of determining responsibility. What the difference in opinion brings to the fore for the purposes of the present analysis is, however, that IS in Syria and Iraq exercised ‘direct command and control’ over IS in Libya and the legal question whether the degree of such command and control can be considered sufficient for an attribution of the conduct of IS in Libya to IS in Syria and Iraq. Under the test of Article 8 ASR, the level of control that is required is subject to debate, with some holding that ‘overall control’68 is sufficient, whereas others posit that ‘effective control’69 is required. The latter notion would restrict attribution to acts of a non-state organized armed group that is subject to control, which is not only equipped and/or financed, but its actions are also supervised by the State in question, and that the group also receives specific instructions from that State, or that the State controls the specific operation in the course of which the conduct in question occurred. ‘Overall control’, on the other hand, would let it suffice that, beyond equipping and financing the group, the State coordinates and helps in the general planning of its military activity, whereas it would not be necessary to also issue, either to the head or to members of the group, instructions for the commission of specific acts. If transposed to the attribution of conduct of one armed group to another, the difference between the two levels of control would mean that conduct of IS in Libya would only be attributable to IS in Syria and Iraq under the effective control test if the latter supervised the actions of the former and issued specific instructions, or controlled the specific operation in question in Libya. The overall control test would in contrast be satisfied already if it were established that IS in Syria and Iraq would coordinate and help in the general planning of the actions of IS in Libya. One of the extra-ordinary features of the rise of IS has been that it has been accompanied by a series of ‘pledges of allegiance’ from armed groups around the globe, including Libya,70 Nigeria71 and the Philippines,72 and from individuals.73 68

ICTY, Prosecutor v. Dusko Tadić, Judgment, 15 July 1999, Case No. IT-94-1-A (1999), para 131. Although it is at times pointed out that the latter assertion is made in the specific context of classification of armed conflicts as either international or non-international when dealing with individual criminal responsibility for war crimes, which militates against a transposition from that area to the general law of state responsibility, we subscribe to the view, expressed so aptly by Condorelli and Kress 2010, p. 235. 69 ICJ, Case concerning military and paramilitary activities in and against Nicaragua (Nicaragua v. United States of America), merits, 27 June 1986 (Nicaragua case) I.C.J. 14, para 115; Bosnia Genocide case 2012, above n 59, paras 392–393. 70 Wikipedia 2020. 71 BBC (2015) Nigeria’s Boko Haram pledges allegiance to Islamic State. https://www.bbc.com/ news/world-africa-31784538. Accessed 26 February 2020. 72 Straits Times (2016) ISIS officially recognises pledges of allegiance from militant groups in the Philippines. https://www.straitstimes.com/asia/se-asia/isis-officially-recognises-pledges-ofallegiance-from-militant-groups-in-the. Accessed 26 February 2020. 73 Moore J (2015) Spiritual leader of Libya’s biggest jihadi group pledges allegiance to ISIS. https://www. newsweek.com/top-judge-libyas-biggest-jihadi-group-pledges-allegiance-isis-320408. Accessed 26

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The question arises whether such pledges have, or should have, any bearing on the attribution of the conduct of those groups and individuals to IS, if unaccompanied by any of the factors that would result in an attribution of conduct of those pledging allegiance under the aforementioned notions of organ attribution or attribution in accordance with the instruction, direction or control-test. In the law on state responsibility, a possible construct in those instances would be attribution of conduct that is being acknowledged and adopted as a State’s own.74 That regulation under Article 11 ASR contemplates a situation in which conduct is being adopted subsequent to its occurrence, rather than prospectively, and that cases of ‘acknowledgment’ and ‘adoption’ have to be distinguished from cases of mere support or endorsement.75 Making that distinction may not be easy, but as a general rule, the subsequent conduct or words of the State would need to be such as to justify the conclusion that the original conduct of the person or entity in question is, in effect, acknowledged and adopted as the State’s own and that the acknowledgment and adoption must be clear and unequivocal, even though it might not necessarily be express, but can be inferred from the conduct of the State in question.76 At the same time, the intentions of the author of the conduct in question are irrelevant. If applied to the Islamic State in Syria, unilateral pledges of allegiance by a certain group or individual would hence not, without more, render the conduct of such a group or individual attributable to IS. That can be different in those cases where IS has officially announced that it accepted those pledges of allegiance, as it did on several occasions,77 provided one can discern from such acceptances that IS unequivocally acknowledges and adopts the conduct of the group or individual in question as its own. That determination may be easier in the case of conduct of individuals who engaged in a one-off action, such as a terrorist attack, than in the case of groups. As to individuals, official reactions of the Islamic State to some terrorist attacks as announced through its Amaq news outlet sometimes leave little

February 2020. See for the case of Sayfullo Saipov Celona L (2017) Terror suspect in NYC truck attack pledged allegiance to ISIS: https://nypost.com/2017/10/31/terror-suspect-in-nyc-truckattack-had-pledged-allegiance-to-isis/. Accessed 26 February 2020. See for the case of Anis Amri: Withnall A (2016) Berlin attack suspect Anis Amri ‘recorded video pledging allegiance to Isis’: https://www.independent.co.uk/news/world/europe/berlin-christmas-market-attack-anis-amriisis-video-pledged-allegiance-milan-suspect-a7492636.html. Accessed 26 February 2020. 74 Cf ILC 2001, Article 11. 75 ILC 2001, p. 122 at 6. 76 Ibid., at 6 and 9. 77 See e.g. Straits Times (2016) ISIS officially recognises pledges of allegiance from militant groups in the Philippines. https://www.straitstimes.com/asia/se-asia/isis-officially-recognisespledges-of-allegiance-from-militant-groups-in-the. Accessed 26 February 2020. (Phillipines); CBS News (2015) ISIS accepts Boko Haram allegiance pledge. https://www.cbsnews.com/news/ isis-accepts-boko-haram-allegiance-pledge/. Accessed 26 February 2020. (Boko Haram in Nigeria); Withnall A (2016) Berlin attack suspect Anis Amri ‘recorded video pledging allegiance to Isis’. https://www.independent.co.uk/news/world/europe/berlin-christmas-market-attack-anisamri-isis-video-pledged-allegiance-milan-suspect-a7492636.html. Accessed 26 February 2020. (Anis Amri).

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doubt that the Islamic State acknowledges and adopts those attacks as its own, referring to individual perpetrators as ‘soldiers of the caliphate’,78 and praising, approving and endorsing their actions in hindsight. As to groups, at least the following issues need addressing in regard to accepted pledges of allegiance. First, the question arises whether an accepted pledge of allegiance can be construed as ‘acknowledgment’ and ‘adoption’ of the conduct of the group ‘en bloc’, i.e., the conduct in its entirety, or whether an ‘acknowledgment’ and ‘adoption’ need to pertain to more specific conduct, such as a specific operation of the group whose pledge of allegiance has been accepted. Second, as Article 11 ASR regulates situations in which conduct is acknowledged and adopted subsequent to its occurrence, the acceptance of a pledge of allegiance by a group would raise the question whether attribution also extends to conduct that occurs after the acceptance of the pledge of allegiance by the Islamic State, i.e. prospectively. Be that as it may, the construct of acknowledging and adopting conduct as its own in the law of state responsibility is a useful starting point in examining attribution to the Islamic State of conduct of groups and individuals who have pledged allegiance to it, in cases where conduct cannot be attributed in other ways.

15.7

Concluding Remarks

The above analysis has demonstrated the need to develop a legal framework under which conduct can be attributed to armed groups. The development of these rules would be instrumental in building the legitimacy of accountability practices. It would also fill an important void that has arisen between a growing set of primary rules that are binding upon armed groups on the one hand, and the lack of rules determining how conduct in breach of such rules can be attributed on the other. International criminal law cannot be the only tool at the international community’s disposal to address the acts of armed groups, because its focus on individual criminal responsibility makes it poorly equipped to address the full measure of an armed group’s collective power and agency. To identify the need of a set of secondary rules on responsibility of organized armed groups is one thing; yet our analysis also shows that it is quite another to devise such rules. While analogizing with the law on State responsibility may be a useful starting point, the idiosyncrasies and diversity of organized armed groups and the oscillating attributes they display militate against a simple and wholesale transposition of the law of state responsibility in general, and its rules of attribution more specifically. Indeed, the case of the Islamic State amply demonstrates that an 78

See e.g. Bearak M (2016) When ISIS claims terrorist attacks, it’s worth reading closely: https:// www.washingtonpost.com/news/worldviews/wp/2016/07/26/when-isis-claims-terrorist-attacks-itsworth-reading-closely/. Accessed 26 February 2020; Chavez N and Alkashali H (2017) ISIS calls New York terror attack suspect a ‘soldier of the caliphate’. https://edition.cnn.com/2017/11/03/us/ new-york-terror-attack/index.html. Accessed 26 February 2020.

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analogy may be more befitting the period during which it displayed the features of a quasi-state, and perhaps less befitting other periods. One can extrapolate from this case study that there is a convincing case to proceed by transposing at least some of the rules on attribution from the articles on State responsibility, including organ-attribution, attribution on the basis of the instruction, direction or control-test, and attribution of conduct acknowledged and adopted as its own when an armed group functions as a quasi-state. The mentioned considerations that, in our view, should guide the development of rules on attribution, need also to be part of the broader quest for developing a law of responsibility of organised armed groups, including the regulation of issues such as reparations, damages, claims, and countermeasures. The rise and fall of the Islamic State illustrates the challenges that the law on the content and implementation of such a framework of responsibility face. These challenges do not only include the, mildly put, unwillingness of the Islamic State to engage in processes designed to determine its responsibility. It also includes the eventuality that the current campaign against the Islamic State (both military and non-military) results in its disappearance, and with it its existence as an entity against which responsibility can be implemented. In addition, one can reasonably expect some resistance to the idea that accountability measures directed against the Islamic State be subjected to a legal framework that curtails the policy options of States and international organizations. While all of these challenges need to be taken seriously, so should the consequences of leaving the issue of accountability of organised armed groups to politics alone. One of the key distinguishing features between governance by the Islamic State and legitimate governance is that the latter is founded on an idea of the rule of law, which entails that all actors are accountable to laws that are ‘publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires […] adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.’79 To develop a legal framework of responsibility of organised armed groups is a pivotal step in building a system based on this idea of the rule of the law; one that the Islamic State so blatantly denies to those that are subjected to its reign of terror.

UN Doc. S/2004/616 (2004) para 6. See also ’Uniting our Strengths’, Report of the Secretary-General, UN Doc. A/61/636-S/2006/980 (2006).

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References Articles, Books and Other Documents al-Tamimi A (2015) The Evolution in Islamic State Administration: The Documentary Evidence. Perspectives in Terrorism 9(4): 117–129 Ambos K, Alkatout J (2012) Has “Justice Been Done”? The Legality of Bin Laden’s Killing Under International Law. Israel Law Review 45(2) 341–366 Barfi B (2016) The Military Doctrine of the Islamic State and the Limits of Ba’athist Influence. CTC Sentinel Vol 9(2), 18–23 Bellal A (2015) Establishing the Direct Responsibility of Non-State Armed Groups for Violations of International Humanitarian Law: Issues of Attribution. In: Gal-Or N, Ryngaert C, Noortman M (eds) Responsibilities of the Non-State Actor in Armed Conflict and the Market Place. Brill, 304–322 Bílková V (2015) Establishing Direct Responsibility of Armed Opposition Groups for Violations of International Humanitarian Law? In: Gal-Or N, Ryngaert C, Noortman M (eds) Responsibilities of the Non-State Actor in Armed Conflict and the Market Place. Brill, pp 261–284 Blanchard C, Humud C (2018) The Islamic State and U.S. Policy, Congressional Research Service. https://fas.org/sgp/crs/mideast/R43612.pdf. Accessed 26 January 2020 Cahin G (2010) The Responsibility of other Entities: Armed Bands and Criminal Groups. In: Crawford J, Pellet A, Olleson S (eds) The Law of International Responsibility. Oxford University Press, pp 331–354 Clapham A (2019) Human Rights Obligations for Non-State Actors: Where Are We Now? In: Lafontaine F, Larocque F (eds) Doing Peace the Rights Way: Essays in International Law and Relations in Honour of Louise Arbour. Intersentia, Antwerp Condorelli L, Kress C (2010) The Rules of Attribution: General Considerations. In: Crawford J, Pellet A, Olleson S (eds) The Law of International Responsibility. Oxford University Press, p 235 Flood DH (2018) From Caliphate to Cave: The Islamic State’s Asymmetric War in Northern Iraq. CTC Sentinel Vol 11(8): 30–34 Fortin K (2016) The Application of Human Rights Law to Everyday Civilian Life under Rebel Control. Netherlands International Law Review 63: 161–181 Fortin K (2017) The Accountability of Armed Groups under Human Rights Law. Oxford University Press, Oxford Fortin K (2018) How to Cope with Diversity While Preserving Unity in Customary International Law? Some Insights from International Humanitarian Law. Journal of Conflict and Security Law Vol 23(3): 337–358 Franck T (1988) Legitimacy in the International Legal System. American Journal of International Law 84(4): 705–759 Franck T (1995) Fairness in International Law and Institutions. Oxford University Press Gill TD (2016) Classifying the Conflict in Syria. International Law Studies, 92(1):353–380 Gill TD, Tibori-Szabó K (2020) Twelve Key Questions on Self-Defense against Non-State Actors. International Law Studies 95(1): 467–505 Henckaerts JM, Doswald-Beck L (2005) Customary International Humanitarian Law. Cambridge University Press Henckaerts JM, Wiesener C (2020) Human Rights Obligations of Non-State Armed Groups: An Assessment Based on Recent Practice. In: Heffes E et al (eds) International Humanitarian Law and Non-State Actors. T.M.C. Asser Press, The Hague, pp 195–227 ICRC (2019) Report on International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, 33rd International Conference of the Red Cross and Red Crescent, 9–12

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December 2019, https://rcrcconference.org/app/uploads/2019/10/33IC-IHL-Challenges-report_ EN.pdf, accessed 26 January 2020 ILC (2001) Articles on Responsibility of States for Internationally Wrongful Acts, https://legal.un. org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf, accessed 26 January 2020 ILC (2011) Draft Articles on the Responsibility of International Organizations, https://legal.un.org/ ilc/texts/instruments/english/commentaries/9_11_2011.pdf, accessed 26 January 2020 Khatib, L (2015) The Islamic State’s Strategy: Lasting and Expanding. Carnegie Middle East Centre. https://carnegieendowment.org/files/islamic_state_strategy.pdf, accessed 10 January 2020 Kleffner JK (2009) The Collective Accountability of Organised Armed Groups for System Crimes. In: Nollkaemper A, van der Wilt H (eds) System Criminality in International Law. Cambridge University Press, Cambridge, pp 238–269 Momtaz D (2010) Attribution of Conduct to the State: State Organs and Entities Empowered to Exercise Elements of Governmental Authority. In: Crawford J, Pellet A, Olleson S (eds) The Law of International Responsibility. Oxford University Press, pp 331–354 Murray D (2016) Human Rights Obligations of Non-State Actors. Bloomsbury Oosterveld WT, Bloem W (2017) The rise and fall of ISIS: from evitability to inevitability, The Hague Centre for Strategic Studies. https://hcss.nl/sites/default/files/files/reports/The%20Rise %20and%20Fall%20of%20ISIS.pdf, accessed 10 January 2020 Revkin M (2016) The legal foundations of the Islamic State. https://www.brookings.edu/wpcontent/uploads/2016/07/Brookings-Analysis-Paper_Mara-Revkin_Web.pdf, accessed 10 January 2020 Robinson E et al. (2017) When the Islamic State Comes to Town: The Economic Impact of Islamic State Governance in Iraq and Syria. RAND Corporation. https://www.rand.org/pubs/research_ reports/RR1970.html, accessed 10 January 2020 Rodenhäuser T (2018) Organizing Rebellion: Non-state Armed Groups Under International Humanitarian Law, Human Rights Law, and International Criminal Law. Oxford University Press Stanford University (2016) Mapping Militant Organisations: Jund al-Aqsa. http://web.stanford. edu/group/mappingmilitants/cgi-bin/groups/view/669, accessed 10 January 2020 Stanford University (2019) Mapping Militants: the Islamic State. https://cisac.fsi.stanford.edu/ mappingmilitants/profiles/islamic-state#text_block_18356, accessed 26 February 2020 UN General Assembly (2013) Human Rights Council: Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, UN Doc. A/HRC/24/46 UN General Assembly (2014) Human Rights Council: Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, ‘Rule of Terror: Living under ISIS in Syria’, UN Doc A/HRC/27/CRP.3 UN General Assembly (2014) Human Rights Council, Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, UN Doc. A/HRC/25/65 UN General Assembly (2014) Human Rights Council: Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, UN Doc A/HRC/27/60 UN General Assembly (2016) Resolution 71/248, UN Doc. A/RES/71/248 UN General Assembly (2018) Annual Report of the Special Representative of the Secretary-General for Children and Armed Conflict, UN Doc. A/HRC/37/47 UN Human Rights Council (2014) Report of the Independent International Commission of Inquiry on the Syrian Arab Republic: Rule of Terror: Living under ISIS in Iraq, UN Doc. A/HRC/27/CRP.3 UN Security Council (2017) Resolution 2379, UN Doc. S/RES/2379 UN Security Council (2017) Twenty-fifth report of the Analytical Support and Sanctions Monitoring Team submitted pursuant to resolution 2368(2017) concerning ISIL (Da’esh), Al-Qaida and associated individuals and entities, UN Doc S/2020/53 Warner J (2017) Sub-Saharan Africa’s Three ‘New’ Islamic State Affiliates. CTC Sentinel Vol 10 (1): 28–32

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Wikipedia (2019) Yarmouk Martyrs Brigade, https://en.wikipedia.org/wiki/Yarmouk_Martyrs_ Brigade, accessed 26 February 2020 Wikipedia (2020) Islamic State of Iraq and the Levant in Libya https://en.wikipedia.org/wiki/ Islamic_State_of_Iraq_and_the_Levant_in_Libya#Laws, accessed 26 January 2020

Cases ICC, Prosecutor v Bemba Gombo, Judgment, 21 March 2016, Case No. ICC-01/05-01/08 ICC, Prosecutor v Ntaganda, Judgment, 8 July 2018, Case No. ICC-01/04-02/06 ICJ, Case concerning application of the convention on the prevention and punishment of the crime of genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment, 26 February 2007 (Bosnia Genocide case), 2007 ICJ Rep 43 ICJ, Case concerning military and paramilitary activities in and against Nicaragua (Nicaragua v. United States of America), merits, 27 June 1986 (Nicaragua case) I.C.J. 14 ICTY, Prosecutor v. Boškoski and Tarčulovski, Judgment, 10 July 2008, Case No. IT-04-82 ICTY, Prosecutor v. Dusko Tadić, Judgment, 15 July 1999, Case No. IT-94-1-A (1999) IMT, Judgment, 30 September 1946 and 1 October 1946

Dr. Katharine Fortin is a lecturer of public international law and human rights at Utrecht University’s Netherlands Institute of Human Rights. Her research focuses on the legal framework applicable to non-international armed conflicts and the protection of civilians vis-à-vis armed groups. Her Ph.D. (cum laude) at Utrecht University was co-supervised by Terry Gill. Prof. Dr. Jann Kleffner is professor of international law and the head of the Centre for International and Operational Law at the Swedish Defence University. He is also an extraordinary professor at the Faculty of Law of the University of Pretoria, South Africa.

Chapter 16

The Control Requirement of Command Responsibility: New Insights and Lingering Questions Offered by the Bemba Appeals Chamber Case Harmen van der Wilt and Maria Nybondas

Contents 16.1 Introduction...................................................................................................................... 16.2 The Bemba Case: New Light on the Standard of ‘Reasonable and Effective Measures’? ....................................................................................................................... 16.3 On Garantenstellung, Strict Liability and Endangerment .............................................. 16.4 Command and Control: A Normative Concept .............................................................. 16.5 Some Final Reflections.................................................................................................... References ..................................................................................................................................

330 333 336 341 345 346

Abstract Taking the (controversial) acquittal of Mr. Bemba by the Appeals Chamber of the International Criminal Court as the point of departure, this contribution aims to shed some light on the relationship between two elements of the doctrine of command responsibility, to wit effective control and the material ability to punish or repress crimes by subordinates. We come to the conclusion that distinct perceptions of the nature of command responsibility inevitably produce different interpretations of the elements of the doctrine. If one starts from the premise that command responsibility is predicated on endangerment liability, it is fair to argue that the mere fact that subordinates have engaged in war crimes serves as a rebuttable presumption that the commander has failed to exercise the necessary The contribution was written in Mrs. Nybondas’ personal capacity and the views expressed are those of the author alone. H. van der Wilt (&) University of Amsterdam, Amsterdam, The Netherlands e-mail: [email protected] M. Nybondas Eurojust, The Hague, The Netherlands e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2021 R. Bartels et al. (eds.), Military Operations and the Notion of Control Under International Law, https://doi.org/10.1007/978-94-6265-395-5_16

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control. The presumption can indeed be rebutted, first by the finding that the commander has taken adequate measures to repress or punish the perpetrators. Second, because we are dealing with criminal punishment, it must be proven that the commander can be blamed for his dereliction of duty. The commander would not be ‘guilty’ for absence or loss of control, if it either turns out that another person wielded effective control over the perpetrators, or if the commander had been entrusted with ‘command and control’, but had lost it along the way, due to, for instance, a mutiny by his subordinates.







Keywords Bemba International Criminal Court international criminal law command responsibility effective control strict liability modes of liability

16.1













Introduction

The concept of command and control has always fascinated Terry Gill. We vividly recall his assertions that the military commander is responsible for the conduct of his subordinates ‘24 hours a day, 7 days a week’. There is nothing comparable in tranquil civilian life and the distinction makes sense. Making war is living on the edge. The stakes are very high, because the purpose is total victory over the enemy at (nearly) all costs. It is most literally a question of life and death. In this perilous condition, there is someone who has to be in charge; he must have his subordinates on a leash and must count on their loyal and unquestioned obedience. This power and authority warrants that the commander is responsible for the actions of the forces under his command and control. The concept of general command responsibility has obtained legal status in Article 1 of the Hague Regulations, which stipulates that one of the conditions for being a belligerent is ‘to be commanded by a person responsible for his subordinates’.1 Command responsibility in general is a rich and multifaceted concept, displaying social, moral and legal features.2 Command (or superior) responsibility in international criminal law, on the other hand, is a much more limited notion, as it connotes the responsibility of a superior/commander for war crimes, crimes against humanity or genocide committed by his subordinates. The notion developed into a recognised concept in international criminal law through the Yamashita judgement rendered by the United States Military Commission at Manila in the aftermath of the Second World War, the codification of the notion in Articles 86 and 87 of the Additional Protocol I to the 1949 Geneva Conventions and in the Statutes of the International Criminal Tribunals for the former Yugoslavia and Rwanda (ICTY and

1

Regulations Respecting the Laws and Customs of War on Land, Annex to the 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land, 100 BFSP 338, reprinted in 2 AJIL (1908) Supp. p. 90, Article 1. 2 Nybondas 2010, pp. 39–64.

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ICTR, respectively). The case law of these and subsequent international(ised) tribunals and courts has been decisive for how command responsibility is presently understood. Effective control is implicit in a superior-subordinate relationship and one of the three key elements of criminal command responsibility.3 The other two elements are a requisite mens rea (‘knew or had reason to know’, in the Statutes of the ICTY and ICTR, the Special Court for Sierra Leone (SCSL) and the Extraordinary Chambers in the Courts of Cambodia (ECCC); ‘knew or, owing to the circumstances, should have known’ in the Rome Statute of the International Criminal Court (Rome Statute)) and a failure to prevent or repress the crimes or to submit the matter to the competent authorities for investigation and prosecution.4 The latter aspect refers to an omission that ultimately creates the criminal liability. The mens rea-element will not further detain us here.5 The failure to take reasonable and necessary measures, however, is crucial for the understanding of the notion of ‘effective control’ for the two are inextricably entwined. After all, the commander’s power to control is defined in terms of his ‘material ability to prevent and punish the commission of violations of international humanitarian law’, and it is precisely his failure to do so that triggers criminal responsibility.6 Whereas this intimate relationship between two elements of the doctrine of command responsibility has been taken for granted and has been considered axiomatic, it caused confusion and heated discussion on the occasion of the acquittal of Mr. Bemba by the Appeals Chamber of the International Criminal Court

3

ICTR, Prosecutor v. Bagilishema, Judgment, 7 June 2001, Case No. ICTR-95-1A-T, para 38. See also Article 28 sub (a) of the Rome Statute of the International Criminal Court, 17 July 1998, United Nations, Treaty Series, vol. 2187, No. 38544 (Rome Statute): ‘A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority as the case may be (…)’ (italics added). 4 See, respectively Article 7(3) Statute of the International Criminal Tribunal for the former Yugoslavia, 32 ILM (1993) p. 1159 (ICTY-Statute), Article 6(3) Statute of the International Criminal Tribunal for Rwanda, 33 ILM (1994) p. 1159 (ICTR-Statute), Article 6(3) Statute of the Special Court for Sierra Leone, annexed to the Agreement between the United National and the Government of Sierra Leone on the establishment of a Special Court for Sierra Leone, 16 January 2002, 2178 UNTS p 137 (SCSL Statute), Article 29 ECCC Statute and Article 28 Rome Statute. While it is interesting to note that Article 29 of the Law on the Establishment of Extraordinary Chambers in the Court of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea (NS/RKM/1004/006) (ECCC-Statute), different from the Statutes of other international(ised) tribunals, explicitly refers to ‘effective control’, the present contribution does not address the case law of the ECCC. 5 It is worth observing that under the Rome Statute the mens rea for military commanders is stricter than for civilian superiors (‘knew, or consciously disregarded information which clearly indicated that subordinates were committing or about to commit such crimes’). Compare Nybondas 2010, pp. 183–188. 6 ICTY, Prosecutor v. Delalić et al. Judgement of the Trial Chamber, 16 November 1998, Case No. IT-96-21-T, para 378.

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(ICC) in June 2018.7 Since the Bemba Judgment, case law from the international (ised) courts and tribunals has not addressed liability under the command responsibility notion and, thus, the uneasy situation that arose with the Bemba Judgment still remains. One of the issues that divided the Trial Chamber and the (majority of the) Appeals Chamber was the question whether Mr. Bemba had taken ‘reasonable and necessary measures within his power to prevent or repress the commission of crimes by his subordinates’. While the Appeals Chamber censured the Trial Chamber for its assessment of the evidence, it also displayed a different—somewhat more lenient—normative view on what could be expected from a commander like Mr. Bemba in the situation at hand. Although the majority of the Appeals Chamber did not explicitly pronounce on the issue whether Mr. Bemba had possessed ‘effective control’, it is highly probable, if not almost certain, that both Chambers—in view of the close connection between the elements, as expounded above—had different opinions on the content and scope of this concept. It ties in with the problem that Judge Eboe-Osuji in his concurring Separate opinion to the Appeals Chamber Judgment has aptly qualified as the ‘Control Paradox’.8 The failure to exercise proper control (by not taking the necessary and reasonable measures) may well point at the absence of such control and therefore negate a prerequisite for criminal responsibility.9 The paradox cannot easily be solved, because it reflects normative assumptions on the obligations of military commanders. In this contribution, we aim to shed some light on the relationship between effective control and the material ability to punish or repress crimes by subordinates. We start with a brief discussion of the several opinions, divulged in the judgments, on what constitutes ‘reasonable and necessary measures’, because this gives an indication of the proper normative limitations of effective control (Sect. 16.2). In Sect. 16.3, we will reflect on the moral and legal nature of the commander’s obligation to restrain his subordinates from committing war crimes. In particular, we will address the question whether the findings of the Appeals Chamber in Bemba might point at a relaxation of the standard, moving away from a rigid Garantenstellung, approaching strict liability. In Sect. 16.4, we will revisit the

7

ICC, Prosecutor v. Jean-Pierre Bemba Gombo, Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against Trial Chamber II’s “Judgment pursuant to Article 74 of The Statute”, 8 June 2018, Case No. ICC-01/05-01/08 (Bemba Appeal Judgment). 8 ICC, Prosecutor v. Jean-Pierre Bemba Gombo, Concurring Separate Opinion of Judge Eboe-Osuji, ICC-01/05-01/08-3636-Anx3, 14 June 2018, p. 86. 9 Concurring Separate Opinion of Judge Eboe-Osuji, 2018, p. 86: ‘Hence the conundrum becomes this. The presence of effective control anchors liability when the offence is, on an appreciable view, the absence of proper control. The question must then be grappled with: whether proof of failure of control—expressed as ‘improper control’ in the usual parlance—is not the very proof of absence of effective control.’ (italics in original)

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Control Paradox by exploring whether different findings on effective control and adequacy of measures can be consistently reconciled. While Sect. 16.5 presents some conclusions.

16.2

The Bemba Case: New Light on the Standard of ‘Reasonable and Effective Measures’?

The Bemba case originated in the internecine and protracted armed conflicts in central Africa over the last decades. Soldiers of the Mouvement pour la Liberation du Congo (MLC), the armed group of which Mr. Bemba was the president, had been found to have engaged in rampant murder, rapes and pillage, constituting war crimes and crimes against humanity in the Central African Republic (CAR) in the course of the 2002–2003 CAR Operation. According to the Trial Chamber, Mr. Bemba had taken some lukewarm measures, by issuing general warnings to his forces not to mistreat the civilian population, creating two investigating commissions with a limited mandate, organising the trial of seven low-ranking soldiers and the establishment of a round of interviews (the ‘Sibut Mission’) that did not really amount to an investigation.10 The Trial Chamber suggested that Mr. Bemba had lacked real commitment by picking and choosing some relatively minor incidents (pillage and smuggling of goods, while ignoring murder and rape) and focusing on the rank and file, all with the sole purpose of improving the image of the MLC.11 In view of his position, Mr. Bemba could have done much more, in the realm of prevention (e.g., ensuring that MLC troops were properly trained in the rules of international humanitarian law, issuing clear orders to the commanders of the troops in the CAR to prevent the commission of crimes), investigation and repression and cooperation with CAR authorities with a view to initiate criminal proceedings.12 One of the more specific measures that the Trial Chamber considered feasible, and within the scope of Mr. Bemba’s authority, was the deployment of the troops away from the civilian population, and even the complete withdrawal from the CAR.13 In view of all the opportunities at his disposal, the Trial Chamber found that ‘the measures Mr. Bemba did take patently fell short of “all necessary and reasonable measures” to prevent and repress the commission of crimes within his material ability’.14

10

ICC, Prosecutor v. Bemba, Judgment of the Trial Chamber, 21 March 2016, Case No. ICC-01/ 05-01/08 (Bemba Judgment), para 726. 11 Bemba Judgment, paras 727–728. 12 Bemba Judgment, para 729. 13 Bemba Judgment, para 730. 14 Bemba Judgment, para 731.

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Why did the Appeals Chamber not agree with the Trial Chamber? The Appeals Chamber started by pointing out that the Chamber had arguably expected too much from Mr. Bemba. As a military commander, he had a war to fight and was allowed to weigh the measures to prevent or repress atrocities against operational realities on the ground. The abstract enumeration of measures that Mr. Bemba could have taken was not very helpful, because they were very difficult to disprove. In the opinion of the Appeals Chamber, the Trial Chamber should have indicated in concreto the measures that were available to Mr. Bemba, while taking into account that he operated from another country, far removed from his forces. The Trial Chamber had insufficiently paid attention to this latter aspect.15 Furthermore, the Appeals Chamber was of the opinion that the Trial Chamber had put too much emphasis on Mr. Bemba’s dubious motives ‘to counter public allegation and rehabilitate the public image of the MLC’.16 In fact, rather than considering this as an ‘aggravating factor’, as the Chamber had asserted itself, it had assessed all the measures taken by Bemba in the light of these preconceived base motives and had found them wanting.17 Moreover, the Appeals Chamber suggested that a balance is to be struck between the approximate number of the crimes and the question whether measures that are taken to prevent or repress them reach the threshold of adequacy. As the Trial Chamber had failed to pay attention to this question of proportionality, it could not have concluded that the measures had not been reasonable and necessary.18 The Appeals Chamber also observed that the Prosecutor had not properly incorporated the omission to redeploy forces as an instance of the ‘failure to take the necessary and reasonable measures’ in the charges. Mr. Bemba had thus suffered prejudice due to lack of proper notice, as he was deprived of the possibility to defend himself against such allegation.19 It is not so easy to gauge this ‘avalanche’ of criticism heaped upon the poor heads of the Trial Chamber judges, because the several aspects are of different tenor and nature. Some of the criticism boils down to the reproach that the Trial Chamber had simply paid insufficient attention to evidence, like the observation that the Chamber had ignored Mr. Bemba’s argument that he indeed had informed the CAR authorities or that he had empowered his commanders to fully and adequately investigate the crimes. The conclusion that he had failed to take reasonable and necessary measures was, in other words, not borne out by the facts. The critical remark at the address of the Prosecutor in respect of the possibility of redeployment of troops seems to be an error of a procedural nature. It is one of the basic principles of a fair trial that the accused must be properly apprised of the charges against him, as he will otherwise not be able to defend himself and to refute allegations. None of these observations display an essentially different perspective on the standard of

15

Bemba Bemba 17 Bemba 18 Bemba 19 Bemba 16

Appeal Appeal Appeal Appeal Appeal

Judgment, Judgment, Judgment, Judgment, Judgment,

paras 170–171. para 177. para 178. para 184. paras 187–188.

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‘reasonable and effective measures’. In a similar vein, one may agree with the Appeals Chamber that the Trial Chamber’s focus on the motives of Mr. Bemba was unwarranted, but it does not necessarily imply that the Appeals Chamber harboured a different opinion on the question what constitutes ‘reasonable and necessary measures’. While motives are not entirely irrelevant, what actually counts at the end of the day is whether measures are effective and capable of countering the commission of atrocities. The intention to polish the reputation of one’s troops, apart from being not such a bad motivation in the first place, is likely to accomplish that aim. More interesting for the purpose of our enquiry are those considerations in the Appeals Chamber’s judgment in which the conviction glimmers trough that the concrete capabilities and opportunities of the military commander should count as point of departure and that the Trial Chamber did not sufficiently pay heed to that principle. Judge Eboe-Osuji in his concurring opinion correctly observed that feasibility, while not a separate and additional element, is ‘implicit in the concept of reasonableness of measures.’20 Rejecting the tautological and rather empty definition of ‘necessary and reasonable measures’ by the ICTY in the Halilović case, he specified ‘reasonable measure’ as ‘that which reality shows to be available and good sense recommends as appropriate in the circumstances, in order to avert the contemplated mischief.’21 Of course, a commander would be expected to train his subordinates and initiate them in the ethos of international humanitarian law, but that would only be the start. Ultimately, he would be judged by the concrete actions that he had taken on the ground to avert the risk of his subordinates engaging in war crimes. Specific circumstances could inform the feasibility of measures and geographic remoteness, hampering contact between the commander and his subordinates, is one factor that can be taken into account. While the Appeals Chamber fiercely criticised the Trial Chamber on a number of points, they agreed at least on the qualification of redeployment or even withdrawal of troops as key among the range of measures that would be at the disposal of the commander to prevent or repress (further) crimes.22 It is interesting that Judge Eboe-Osuji observed that such an obligation to withdraw would be more compelling if the deployment of troops had not been ushered in by necessary self-defence. The judge effectively blurred the boundaries between the jus ad bellum and the jus in bello.23

20

Concurring Separate Opinion of Judge Eboe-Osuji, p. 88. Concurring Separate Opinion of Judge Eboe-Osuji, p. 88. Compare for the definition as propounded by the ICTY: ICTY, Prosecutor v. Halilović, Judgment of the Appeals Chamber, 16 October 2007, Case No. IT-01-48-A, para 63: ‘The Appeals Chamber stresses that “necessary” measures are measures appropriate for the superior to discharge his obligation (showing that he genuinely tried to prevent or punish) and “reasonable” measures are those reasonably falling within the material powers of the superior.’ 22 Concurring Separate Opinion of Judge Eboe-Osuji, p. 90. 23 Concurring Separate Opinion of Judge Eboe-Osuji, pp. 82–83. Although one has to admit that this distinction has become slightly blurred by the introduction of the crime of aggression into the Rome Statute. 21

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The Appeals Chamber’s judgement sends a clear message. Endangerment is the rational for command responsibility. The person who is called upon to be in charge when engaging in such a risky enterprise as warfare, is encumbered with the heavy burden to fence off mischief and minimise casualties as much as possible. But the bottom line is that he can be blamed for this because he failed to accomplish what was humanly possible. The criminal nature of command responsibility does not allow the application of the strict liability yardstick.

16.3

On Garantenstellung, Strict Liability and Endangerment

Despite the cautiousness with which command responsibility is approached, also by the Bemba Appeals Chamber, there is a reason for accepting the command responsibility concept in the first place, for having interpreted and developed it through case law and for including it in the Rome Statute in 1998. This reason is the arguably unique position from which the (de jure) military commander operates in situations of armed conflict. The position of commander raises expectations as to his moral and legal responsibilities, because of the tasks that he is to carry out, but more importantly because the subordinates to such a person find themselves in a position of dependence. A commander within the military organisation is aware that his position carries with it a number of responsibilities, also towards his subordinates, and accepts these responsibilities when embarking upon his duties. The responsibilities include ensuring the security of the subordinates as well as ensuring that the subordinates do not perform unlawful acts. It is easy to lose sight of these moral and legal responsibilities inherent in the position of the commander when struggling with the concept and where it fits in the structure of criminal law. Criminal law and omissions normally do not go well together, but when it comes to the command responsibility principle it is this special relationship between the commander and his subordinates, as well as the responsibilities that come with it, which form the rationale of command responsibility as a concept under criminal law and, thus, justifies criminal liability in relation to omissions of the commander. While perhaps problematic from a criminal law point of view, also national criminal law accepts criminal liability for omissions by certain limited categories of people through the Garantenstellung theory. The fear when founding liability on Garantenstellung is that it is only the moral responsibility of the guarantor, in this case the commander, which is assessed, or that liability is based solely on the position that this person occupies. Judges Van den Wyngaert and Morrison explicitly pointed to this danger of getting into ‘a mind-set that gives priority to the desire to hold responsible those in high leadership positions and to always ascribe to them the highest levels of moral and legal

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culpability.’24 Similarly, they held that neither the ‘human drama’ involved, nor the risk that potentially thousands of victims will not be eligible for compensation, may serve as ‘a factor in the decision whether or not to convict an accused’.25 In other words, criminal liability cannot be imposed for political reasons or to satisfy potential victims. With the phrase ‘Article 28 is not a form of strict liability’,26 the Appeals Chamber reiterated this message, which already had been brought forward by the Pre-Trial Chamber in its 2009 Confirmation Decision.27 Under the Rome Statute commanders or persons acting as a commander are not to be held to a strict liability standard. As such, neither modern case law nor scholars contest this finding and yet there was a need to explicitly point this out both at the beginning and the end of the procedure. With this concern of strict liability in mind, it is helpful to refer to Ashworth, who has formulated three reasons as to why liability for an omission should remain the exception. All three reasons were addressed, in one way or another, in the Bemba case.28 First, while a prohibited act can be given a precise definition, it may be more difficult to describe an omission in exact terms. The specific circumstances of a case may play an important role when deciding whether failing to act actually was an omission that leads to criminal liability. This can easily lead to legal uncertainty.29 An example in Bemba can be found in the context of a discussion on the causal link between the superior’s omission and the crime committed. The Pre-Trial Chamber had declared that ‘it is only necessary to prove that the commander’s omission increased the risk of the commission of the crimes charged in order to hold him criminally responsible under Article 28(a) of the Statute.’30 Judges Van den Wyngaert and Morrison rejected the idea that the commander’s failure increases that risk. In their opinion, the risk stays the same if the superior does not take action. His omission is rather a failure to reduce the risk that crimes will be committed.31 This line of thinking was used to support the argument that such a failure ‘can hardly be seen as causing the manifestation of said risk.’32 The omission is apparently perceived in a different way by these appeal judges, despite the case law and literature used by Pre-Trial Chamber in support of the view that the superior’s 24

ICC, Prosecutor v. Jean-Pierre Bemba Gombo, Separate Opinion Judge Van den Wyngaert and Judge Morrison, ICC-01/05-01/08-3636-Anx2, 8 June 2018, para 35. 25 Separate Opinion Judge Van den Wyngaert and Judge Morrison, para 75. 26 Bemba Appeals Judgment 2018, para 170. 27 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, 15 June 2009, Case No. ICC-01/05-01/08 (Bemba Confirmation Decision), para 427. The same message is provided in para 351, in the context of the discussion on the mens rea requirement. 28 Ashworth 2006, pp. 45–46; and Nybondas 2010, p. 52. 29 Nybondas 2010, p. 52. 30 Bemba Confirmation Decision, para 425 [footnotes omitted]. 31 Separate Opinion Judge Van den Wyngaert and Judge Morrison, para 55. 32 Separate Opinion Judge Van den Wyngaert and Judge Morrison, para 55.

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behaviour has an impact on the behaviour of the subordinates. One of the sources used was Hadžihasanović, a case before the ICTY and one of few ‘real’ cases of command responsibility.33 The differing views on this issue show how hard it is to clearly define the omission. After so many years of quite thorough thinking about the doctrine, there is apparently still room for doubt in this regard, which fuels the fear for strict liability in command responsibility cases. The second reason for cautiousness regarding omissions is, arguably, that where there is legal uncertainty regarding the obligation to take action, the case to a large extent will depend on the prosecutorial discretion in pursuing the case. The Defence in Bemba expressed severe criticism of the Prosecution for altering its ‘case theory’ during the criminal proceedings. The alleged mode of liability changed from individual criminal responsibility, more specifically commission as an individual, jointly with another or through another person (Article 25(3)(a)), to command responsibility pursuant to Article 28.34 This alteration was made at the ‘invitation’ of the Pre-Trial Chamber,35 in fact, after the Pre-Trial Chamber declined to confirm the charges pursuant to Article 25(3) for lack of evidence,36 and yet the Defence held that changing the ‘case theory’ was an infringement of the rights of the accused, more specifically the right to be informed of the charges against him.37 The Defence submitted that facts used to bring the first case were inconsistent with the charges under Article 28(a). The Prosecution denied any such inconsistency and the Trial Chamber saw no merit in the submissions of the Defence. The Chamber subsequently held that the Defence had been given adequate notice of the changes.38 So when the Pre-Trial Chamber declined to confirm the charges under Article 25(3)(a), it may be assumed that the safest prosecution strategy was to pursue the command responsibility charges. The said protests on the part of the Defence do point to legal uncertainty regarding the omission of the commander, if it is not clear how the criminal behaviour of the commander should be labelled and if the Prosecution can alter the mode of liability when the case has already been brought before the court. In this regard, we also note the Separate Opinion of Van den Wyngaert and Morrison, who stated that ‘[i]t is not excluded that if the Prosecutor had brought different charges or if she had found stronger evidence, it would have been possible to hold Mr. Bemba criminally responsible for his failure as a commander in relation to some or all of the crimes that were committed by MLC soldiers in the CAR’.39 Why include such a statement? Is it not quite common that the lack of evidence will lead to an acquittal or is this to emphasise that in the case at hand the Prosecution

33

Bemba Confirmation Decision, n. 559. Bemba Judgment, para 35. 35 Bemba Judgment, para 37. 36 Bemba Confirmation Decision, pp. 184–185. 37 Bemba Judgment, para 35. 38 Bemba Judgment, para 37. 39 Separate Opinion Judge Van den Wyngaert and Judge Morrison, 8 June 2018, para 78. 34

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failed? Thus, if the Prosecutor had worded things differently and had brought the case in a different way, the accused might have been convicted, also pursuant to Article 28(a). If that was the case, then certainly prosecutorial discretion plays a crucial role in cases concerning omissions. A third reason to treat liability for omissions as an exception is the fact that a more solid justification is needed when it comes to liability for an omission, due to a moral distinction between acts and omissions and because the criminalisation of an omission imposes a duty to act. Indeed, also in Bemba, the Majority argued in the Appeal Judgment that a commander’s duty to act is not to be imposed easily. The Appeals Chamber held that ‘[t]here is a very real risk, to be avoided in adjudication, of evaluating what a commander should have done with the benefit of hindsight’. Simply juxtaposing the fact that certain crimes were committed by the subordinates of a commander with a list of measures which the commander could hypothetically have taken does not, in and of itself, show that ‘the commander acted unreasonably at the time.’40 This, again, exemplifies the concern that a commander may be subjected to strict liability. While it seems rather common to list morally and legally reprehensible acts, the Appeals Chamber suggests that we cannot draw conclusions about a commander’s omissions, i.e. his (moral and) legal duty to act, on the basis of a list of possible measures. The commander’s omission should only be assessed on the basis of concrete facts. In his concurring separate opinion, Judge Eboe-Osuji also pointed to the apparent moral distinction between acts and omissions when elaborating on the awkwardness of applying a dereliction of duty theory to the Bemba case.41 In essence, if the commander who failed to act is held responsible for a dereliction of duty, it is ‘awkward’ to hold him criminally liable for crimes against humanity and war crimes. It is awkward because the omission seems less reprehensible than the commission of such serious crimes. Judge Eboe-Osuji explicitly addressed the concern of strict liability in his Concurring Separate Opinion and held that the worries were unfounded. He rightly pointed to the pre-conditions that are imperative to a finding of command responsibility; the failure to exercise control properly, the knowledge requirement and the necessary and reasonable measures condition.42 These well recognised pre-conditions ensure that the commander is not held liable solely on the basis of his position or possible moral responsibility for the events. Judge Eboe-Osuji addressed the strict liability issue in the context of his interesting plea for endangerment as the ‘Ultimate Anchor of Criminal Responsibility’.43 Eboe-Osuji introduced endangerment liability as a form of liability that, ‘perhaps’, affords ‘a fuller appreciation of the rationale of command responsibility’,44 without being an additional element that is to be proved under

40

Bemba Appeal Judgement, para 170. Concurring Separate Opinion of Judge Eboe-Osuji, para 194. 42 Ibid., para 249. 43 Ibid., p. 77. 44 Ibid., para 232. 41

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Article 28 of the Rome Statute.45 As a starting point, Judge Eboe-Osuji stated that ‘criminal law’s concerns in punishing individuals whose conducts violate the interests of others are not limited to conducts in the nature of attacks against those interests in a manner that causes actual harm. The concerns of criminal law also extend to conducts that create the threat or risk of actual harm.’46 Reference was made to various national jurisdictions in which endangerment liability is accepted, often in specific circumstances and in relation to certain types of conduct.47 The Judge further held that endangerment liability fits in the context of an armed conflict, as wars, by nature, are notoriously dangerous.48 It is easy to follow this reasoning, including the explanation that it is the duty of the commander to ‘ensure that innocent victims are not subjected to undue harm’.49 When he fails in this duty, endangerment liability enters into the picture. As such, the proposed endangerment liability certainly may assist in fully appreciating the rationale of command responsibility, with one caveat, perhaps. If we accept that the basic rationale for command responsibility, as explained earlier on, is the duties that the commander has on the basis of his position and his unique relationship with his subordinates, we also need to realise that the job of the (de jure) commander is a perfectly legal job and assignment. Judge Eboe-Osuji explains that the difference between ‘criminal homicide in peacetime and homicide by operation of war is the occurrence of the latter in the context of military hostility.’50 He continues by saying that ‘[t]hat distinction similarly separates the responsibility of the crime boss and that of the military commander; though each had (by training, arming and deployment or planning) facilitated or contributed to the homicide committed by his subordinate, though for different purposes.’51 From a military point of view, these findings are problematic. The distinction is not the context of military hostility, as such, the distinction is the fact that the crime boss trains, arms and deploys subordinates for an illegal purpose, while the military commander trains, arms and deploys for a legal purpose, as in times of armed conflict the governing body of law (i.e. international humanitarian law) allows for the killing of military members of the opposition, provided that they are have not surrendered or are otherwise placed hors de combat. If the distinction was the military hostilities, the commander would also be held liable when he does not prevent the subordinates from killing the enemy, which in fact is what he trains, arms and deploys the subordinates for. For the (de jure) military commander there is no ‘ancillary criminality in training, arming and deploying people’52 in the context of the armed

45

Ibid., Ibid., 47 Ibid., 48 Ibid., 49 Ibid., 50 Ibid., 51 Ibid., 52 Ibid., 46

para para para para para para para para

238. 233. 236. 243. 245. 266. 266. 265.

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forces. The endangerment rationale, thus, should apply to the commander’s duty to conduct the military operation in a manner that ensures that innocent victims are not subjected to undue harm in the dangerous context of an armed conflict. The endangerment should not be based on the commander’s training, arming and deploying soldiers for the dangerous context of an armed conflict. The endangerment theory as formulated in the Bemba case, perhaps, gives a better understanding of the rationale of command responsibility. The added value may also lie in Judge Eboe-Osuji’s addressing the concern of strict liability and taking away this worry by showing that whenever command responsibility is assessed, the elements of effective command, knowledge and necessary and reasonable measures have to be established. Could we even argue that without having established that the subordinates are under the commander’s effective command and control, or effective authority and control, the commander cannot be subject to endangerment liability?

16.4

Command and Control: A Normative Concept

The acquittal of Jean-Pierre Bemba by the Appeals Chamber leaves us in a quandary. How is it possible that two Chambers, assessing a similar fact pattern, arrive at diametrically opposed conclusions as to the criminal responsibility of a military commander? In order to shed some light on this confusing state of affairs, we suggest a reassessment of the relationship between the elements of control and the duty to prevent or repress crimes committed by subordinates. It is clear that the Trial Chamber accepted that Mr. Bemba exercised effective command and control over his subordinates. After all, otherwise the Chamber could not have entered into a conviction. Previous case law of the ad hoc tribunals has revealed that the existence of ‘effective control’ can be inferred from certain factors that are rather a matter of evidence than of substantive law.53 A crucial element is the power to issue orders that derives from his position in the (military) hierarchy.54 Such power to issue orders need not arise from the superior’s formal or de jure status, but may be ‘based on the existence of de facto powers of control.’55 In Strugar, a Trial Chamber of the ICTY was confronted with the question whether a commander could be held responsible for crimes committed by subordinates two levels down in the chain of command and indeed confirmed that ‘there is no legal requirement that the superior-subordinate relationship be a direct or immediate one for a superior to be 53

Bemba Judgment 2016, para 188. Compare ICTY, Prosecutor v. Blaskić, Judgment of the Appeals Chamber, 29 July 2004, Case No. IT-95-14-A, para 69. 54 ICTY, Prosecutor v. Kordić and Čerkez, Trial Judgment, 26 February 2001, Case No. IT-95-14/2-T (Kordić and Čerkez Judgement), para 421. 55 ICTY, Prosecutor v. Delalić et al., Judgment of the Appeals Chamber, 20 February 2001, Case No. IT-96-21-A, (Delalić Appeal Judgment), para 195.

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found liable for a crime committed by a subordinate, provided that the former had effective control over the acts of the latter.’56 It makes sense that, in the context of criminal proceedings, emphasis is put on the superior’s capacity to avert the commission of war crimes. Consequently, relevance has been attached to the superior’s capacity to re-subordinate units or make changes in the command structure,57 powers to promote, replace, remove or discipline members of the forces, and to initiate investigations,58 and authority to send forces to locations where hostilities take place and withdraw them at any given moment.59 Furthermore, powers of representation, like the capacity to represent the forces in negotiations or interact with external bodies, ideological profile, manifested in public appearances and statements, may serve as important indications that a person is ‘in command’ and exercises effective control.60 There is no necessary inconsistency between a finding that an accused has occupied a position of command that would (and should) have enabled him to prevent or repress war crimes and a subsequent conclusion that this person failed to take the necessary and reasonable measures at his disposal. In fact, all judgements that imply a finding of criminal command responsibility endorse such an outcome. Like all duties of care, the doctrine of command responsibility in general and the element of ‘effective command and control’ in particular is a normative concept that demands a certain level and quality of performance. It is only when the person in question fails to live up to the standards—when there is a gap between the expectation that behoves persons that fulfil such roles and the exercise of presumed powers—that he (possibly) incurs criminal liability. From this perspective, the ‘control paradox’ is more apparent than real, as it boils down to the distinction between sein und sollen. Yet, Judge Eboe-Osuji has a point in drawing our attention to this conundrum, because the superior’s ‘failure’ to take the requisite measures may have been occasioned by an excusable loss of effective control. Indeed, the Appeals Chamber of the ICTY has acknowledged that possibility in the Hadžihasanovic case when it held that massive disobedience or non-compliance by subordinates, verging on mutiny, or the sudden change of command may serve as evidence of lack of effective control.61 It is often rather difficult to ascertain whether the superior’s omission can be attributed to a genuine—and excusable—loss of

56

ICTY, Prosecutor v. Strugar, Trial Judgment, 31 January 2005, Case No. IT-01-42-T (Strugar Judgment), para 366. 57 Strugar Judgement 2005, para 397. 58 Delalić Appeals Judgement 2001, para 767. 59 Bemba Confirmation Decision, para 417. 60 Kordić and Čerkez Judgment, para 424 and SCSL, Prosecutor v. Brima et al., Judgment of the Trial Chamber, 20 June 2007, Case No. SCSL-2002-16-T, para 788. 61 ICTY, Prosecutor v. Hadžihasanović & Kubura, Judgment of the Appeals Chamber, 22 April 2008, Case No. IT-01-47-A, paras 225–230. The Appeals Chamber observed that the operations that would have been required to keep the El Mujehedin—supposedly under the command of Hadžihasanović—in line and liberate hostages resembled actions against an enemy and did not reveal a superior-subordinate relationship.

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control or to a dereliction of duty and it is precisely this predicament that Judge Eboe-Osuji wished to highlight in the paragraph quoted before. Strictly speaking, the finding that the accused had no effective control over his subordinates would obviate any investigation into the question whether he had taken reasonable and effective measures. However, because the element of effective control is measured and assessed in terms of the sufficiency and adequacy of the measures taken, that latter issue has to be addressed. In other words, the postulated connection between two elements of the superior responsibility doctrines has created the control paradox. It is not entirely clear whether the majority of the Appeals Chamber in Bemba agrees that he wielded effective control over his subordinates. The chronological order in which the elements feature in the Rome Statute and in all other relevant legal instruments does not afford an affirmative answer, because, as just indicated, the element of effective control is informed by the assessment of the appropriateness of the measures taken. As the appeal of the defence focused on the third element that ultimately constituted the accused’s criminal responsibility, the Appeals Chamber could concentrate on that contested issue and leave the issue of effective control in abeyance. A positive answer would create much confusion. After all, it would imply, in view of the intimate connection between the third and first element and apart from any factual errors made by the Trial Chamber (vide introduction)—that both Chambers harboured different opinions of what constitutes ‘effective control’, the Appeals Chamber being less demanding. Judge Eboe-Osuji does not beat around the bush when he contends that he is not ‘persuaded that the evidence in the case confidently pointed to “effective control” over the troops to the degree and extent that the Trial Chamber found’.62 This position enables him to circumvent the control paradox. After all, he does not have to explain how and why Mr. Bemba, despite possessing effective control, failed to exercise it by not taking reasonable and necessary measures. However, it shifts the problem, because it begs the question what Judge Eboe-Osuji exactly means by ‘effective control’. At first blush, the bone of contention between Judge Eboe-Osuji and the Trial Chamber seems to be in the realm of the factual assessment of the evidence. Judge Eboe-Osuji censures the Trial Chamber for being blinded by formal appearances of power and authority, like ruptures in the chain of command, (abstract) disciplinary powers and control over financial resources of the MLC. Such features do not necessarily compel a finding of effective control which requires the record ‘to show consistent evidence that the subjects of such decision-making power were consistently responsive to the power, such as would compel the view of the ultimate decision maker’s ability to prevent and repress crimes of the subordinates.’63 While this position acknowledges the close connection between effective control and the need to take reasonable and necessary measures, one wonders whether it does not set the bar too high by requiring a kind of micro management.

62

Concurring Separate Opinion of Judge Eboe-Osuji, para 259. Ibid., para 262.

63

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Reflections on the origin and nature of the doctrine of superior responsibility in (international) criminal law sheds further light on Judge Eboe-Osuji’s interpretation of the concept of ‘effective control’. Initially, Judge Eboe-Osuji perceptively predicates superior responsibility on endangerment liability. The engagement in an incredibly perilous affair that can only be compensated by considerable powers to avert the dismal consequences as much as possible breeds the obligation to make use of those powers to the fullest extent. The commission of crimes by subordinates is prima facie indicative of criminal responsibility of the commander and that presumption can even hardly be rebutted by a genuine claim of loss of control.64 But after this endorsement of endangerment liability, Judge Eboe-Osuji changes course and defends a much narrower conception of superior responsibility putting it on a par with complicity liability.65 Invoking Article 30 of the Rome Statute on the requisite mens rea, he argues that the commander’s failures must be shown to be wilful, pointing at connivance in or condonation of the crimes of his subordinates.66 Undoubtedly, the complicity construction corresponds with a strict reading of the effective control standard. If one assumes that control can only be ‘effective’ when the commander has his subordinates under constant surveillance and scrutiny, so he can discipline them whenever necessary, failure to exercise such control must be a sign of bad faith, an intent to further their commission of war crimes.67 The problem with the interpretation of superior order responsibility as a specialis of complicity liability is that it denaturalises the very doctrine. The reference to Article 30 of the Rome Statute, limiting in principle mens rea to ‘intent and knowledge’, is not convincing, because that provision starts with the default rule ‘unless otherwise provided’. It is generally acknowledged that Article 28(1) of the Rome Statute on superior responsibility for military commanders that propounds a ‘should have known’ standard is the most conspicuous example of an exception to the general rule.68 It is difficult to imagine how a commander can wilfully facilitate the commission of crimes by his subordinates if he is not aware of their occurrence.69 Ultimately, Judge Eboe-Osuji’s concurring opinion reflects an inner struggle on the appropriate moral and legal basis of the doctrine of command responsibility.

Ibid., para 267: ‘In those circumstances, justice is seldom served in absolving commanders of criminal responsibility merely because they may truly have lost control of their troops in the actual theatre of war.’ 65 In defence of the judge, it should be emphasised that he does not take the reader by surprise, as he has minutely contemplated the soundness of complicity theory sustaining command responsibility. See paras 198–231 with frequent references to the works of Grotius. 66 Concurring Separate Opinion of Judge Eboe-Osuji, paras 267–269. 67 Judge Eboe-Osuji explicitly acknowledges this inference: ‘[…] once the presence of effective control has been found, the failure to exercise proper control must be wilful […]’: Concurring Separate Opinion of Judge Eboe-Osuji, para 268. 68 Schabas 2010, p. 474. 69 It bears emphasis that a finding of ‘aiding and abetting’ requires both knowledge of the crimes and the purpose to facilitate them, compare Article 25(3), sub c of the Rome Statute. 64

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While it contains acute observations that display a fine understanding of the concept, he is torn between his predilection for endangerment liability and his solemn duty to keep the doctrine within the confines of criminal law principles. That takes him to equalising superior responsibility to complicity. Both approaches cannot be reconciled and this pervasive tension procures that his monologue interieure is interesting food for thought but does not resolve the quandaries (like the control paradox) that he himself has identified and articulated.

16.5

Some Final Reflections

The acquittal of Mr. Bemba by the Appeals Chamber has caused a lot of confusion and heated debate amongst scholars.70 Those who were confident that the elements of the doctrine of superior responsibility had more or less crystallised in the case law of the ad hoc tribunals and after the codification in the Rome Statute were left in bewilderment. How was it possible that judges could arrive at such different assessments of what could be reasonably and legally expected from a military commander and probably—in view of the close connection between the elements of the doctrine—harbour distinct opinions on the concept of ‘effective control’? From a perspective of legal certainty this development is highly undesirable. In this contribution, we have attempted to shed some light on the issue by suggesting that distinct perceptions of the nature of command responsibility—as particularly come to the fore in the concurrent separate opinion of Judge Eboe-Osuji —inevitably produce different interpretations of the elements of the doctrine. If one starts from the premise that command responsibility is predicated on endangerment liability—a position that we have defended in Sect. 16.3—, it is fair to argue that the mere fact that subordinates have engaged in war crimes serves as a rebuttable presumption that the commander has failed to exercise the necessary control. After all, the occurrence of war crimes demonstrates that he has not accomplished the task that behoves his status and position. The failure to exercise control need not necessarily point at wilful connivance in or condonation of these crimes—as suggested by Judge Eboe-Osuji—but can also be caused by the commander’s not being equal to such a demanding job. The presumption is indeed rebuttable, for one thing, of course, by the finding that the commander has taken adequate measures to repress or punish the perpetrators. But also beyond that situation, because criminal responsibility is incompatible with strict liability. It must, in other words, be proven that the commander can be blamed for his dereliction of duty. ‘Guiltless’ absence or loss of control would pre-eminently be at order if it turns out that another person wielded effective control over the perpetrators (instead of the person under suspicion), or if the commander had indeed been entrusted with ‘command and control’, but had lost it 70

See, amongst others, the critical comments of Sadat 2018; Amman 2018; Whiting 2018.

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along the way. The former scenario is relatively easy to address, because the standards for the formal assessment of military command and control are rather straightforward (see Sect. 16.4 above). The latter scenario is much more interesting, as it encompasses situations in which subordinates (unexpectedly) start a mutiny or the commander, despite all his best efforts, is incapable of reigning in his men. The bar for exculpation is quite high, because the defendant must make amenable that his loss of initial control over his men cannot be attributed to him (no culpa in causa as to their lack of discipline). Obviously, this normative framework for the assessment of command responsibility is rather abstract and it does not indicate what kind of measures may be expected from commanders in distinct situations. However, it can serve as a starting point for a discussion on how the shaken faith in a consistent and steady standard of ‘effective control’ can be restored.

References

Books and Online Documents Amman D (2018) In Bemba and Beyond, Crimes Adjudged to Commit Themselves. EJIL: Talk! European Journal of International Law, Firenze. https://www.ejiltalk.org/in-bemba-andbeyond-crimes-adjudged-to-commit-themselves/, accessed 23 February 2020 Ashworth A (2006) Principles of Criminal law, 5th edn. Oxford University Press, Oxford Just Security (2018) Reiss Center on Law and Security at New York University School of Law, New York. https://www.justsecurity.org/57760/appeals-judges-turn-icc-head-bemba-decision/, accessed 23 February 2020 Nybondas ML (2010) Command Responsibility and its Applicability to Civilian Superiors. T.M.C. Asser Press, The Hague Sadat L (2018) Fiddling While Rome Burns? The Appeals Chamber’s Curious Decision in Prosecutor v. Jean-Pierre Bemba Gombo. EJIL:Talk! European Journal of International Law, Florence https://www.ejiltalk.org/fiddling-while-rome-burns-the-appeals-chambers-curiousdecision-in-prosecutor-v-jean-pierre-bemba-gombo/, accessed 23 February 2020 Schabas WA (2010) The International Criminal Court - A Commentary on the Rome Statute. Oxford University Press, Oxford Whiting A (2018) Appeals Judges Turn the ICC on its Head with Bemba Decision.

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ICC, Prosecutor v. Jean-Pierre Bemba Gombo, Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against Trial Chamber III’s “Judgment pursuant to Article 74 of the Statute”, 8 June 2018, Case No. ICC-01/05-01/08. ICC, Prosecutor v. Jean-Pierre Bemba Gombo, Separate Opinion of Judge Van den Wyngaert and Judge Morrison, 8 June 2018, Case No. ICC-01/05-01/08. ICC, Prosecutor v. Jean-Pierre Bemba Gombo, Concurring Separate Opinion of Judge Eboe-Osuji, 14 June 2018, Case No. ICC-01/05-01/08. ICTR, Prosecutor v. Bagilishema, Trial Judgement, 7 June 2001, Case No. ICTR-95-1A-T. ICTY, Prosecutor v. Blaskić, Appeal Judgement, 29 July 2004, Case No. IT-95-14-A. ICTY, Prosecutor v. Delalić et al., Trial Judgement, 16 November 1998, Case No. IT-96-21-T. ICTY, Prosecutor v. Delalić et al., Appeal Judgement, 20 February 2001, Case No. IT-96-21-A. ICTY, Prosecutor v. Hadžihasanović & Kubura, Appeal Judgement, 22 April 2008, Case No. IT-01-47-A. ICTY, Prosecutor v. Halilović, Appeal Judgement, 16 October 2007, Case No. IT-01-48-A. ICTY, Prosecutor v. Kordić and Čerkez, Trial Judgement, 26 February 2001, Case No. IT-95-14/2-T. ICTY, Prosecutor v. Strugar, Trial Judgement, 31 January 2005, Case No. It-01-42-T. SCSL, Prosecutor v. Brima et al., Trial Judgement, 20 June 2007, Case No. SCSL-2002-16-T.

Treaties and Agreements Regulations Respecting the Laws and Customs of War on Land, Annex to the 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land, 100 BFSP 338, reprinted in 2 AJIL (1908) Supp. p 90 UN General Assembly, Rome Statute of the International Criminal Court, 17 July 1998, United Nations, Treaty Series, vol. 2187, No. 38544 Statute of the International Criminal Tribunal for the former Yugoslavia, 32 ILM (1993) p 1159 Statute of the International Criminal Tribunal for Rwanda, 33 ILM (1994) p 1159 Statute of the Special Court for Sierra Leone, annexed to the Agreement between the United National and the Government of Sierra Leone on the establishment of a Special Court for Sierra Leone, 16 January 2002, 2178 UNTS p 137

National Law Law on the Establishment of Extraordinary Chambers in the Court of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea (NS/RKM/ 1004/006)

Prof. Harmen van der Wilt, Ph.D., is professor of international criminal law at the University of Amsterdam and an ad litem judge at the Chamber of International Judicial Cooperation in Criminal Matters of the District Court of Amsterdam. Dr. Maria Nybondas, LL.M., MPolSc works as a Judicial Cooperation Advisor at Eurojust, the European Union Agency for Criminal Justice Cooperation, in The Hague. She defended her Ph.D. thesis, supervised by Prof. Terry Gill and Prof. Harmen van der Wilt, entitled ‘Command Responsibility and its Applicability to Civilian Superiors’, in 2009 at the University of Amsterdam.

Chapter 17

The Importance of Arms Control Law Eric Myjer

Contents 17.1 17.2 17.3 17.4 17.5 17.6 17.7

Introduction...................................................................................................................... The Concept of Arms Control ........................................................................................ Recent History of Arms Control Law ............................................................................ Defining Arms Control Law and the Elements of Security and Supervision................ Supervision Under the INF Treaty ................................................................................. Supervision Under the Chemical Weapons Convention ................................................ The Risks of Political Expediency for Arms Control Law—Back to the Cold War Days? ............................................................................................................................... 17.8 Some Concluding Observations Concerning the Importance of Arms Control Law .................................................................................................................................. References ..................................................................................................................................

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Abstract International arms control law is a special branch of public international law that is linked to both ius ad bellum and ius in bello. Both the notion of arms control will be dealt with as well as the development of arms control law and how it can be defined. As a field of law it shows common characteristics of arms control arrangements, like that of security and of the necessity of supervision of compliance with commitments. As an example, supervision in both the Chemical Weapons Convention and the INF Treaty will be looked at. Present day risks of political expediency to arms control law will also be discussed. In conclusion arguments will be given why arms control law as a branch of public international law is important.

The author would like to thank Jonathan Herbach and Thilo Marauhn for their valuable comments on a draft version of this contribution. E. Myjer (&) University of Utrecht, Utrecht, The Netherlands e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2021 R. Bartels et al. (eds.), Military Operations and the Notion of Control Under International Law, https://doi.org/10.1007/978-94-6265-395-5_17

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Keywords International arms control law arms control ius ad bellum ius in bello law of armed conflict security supervision verification of compliance Chemical Weapons Convention INF Treaty




17.1
















Introduction

It is paradoxical that arms control law as a field of public international law ‘flourished’ at a time of relative quietness in international relations, whereas at times of heightened political tensions, like now, when the (further) control of armaments is crucial, there appears to be hardly any inclination to move forward in this field. This can, of course, partly be explained by considerations of security, but these are the very considerations that call for control of arms (armaments), especially those that could have devastating consequences when used and may lead to a rapid escalation of a conflict. Weapons of mass destruction (WMD) are a case in point, but one can also think of the development of new weapons technologies. This is assuming there is even a case for legitimate use of force. Prof Bert Röling,1 the internationally renowned public international lawyer and scholar who supervised my doctorate,2 made me aware of the inherent dangers of weapons and weapons systems. As former Judge in the International Military Tribunal for the Far East (IMTFE), also known as the Tokyo War Crimes Tribunal, he was acutely aware of the dangers of weapons. For him, that weapons are necessary for self-defence and that they should be used in accordance with the humanitarian law rules was self-evident. However, he pointed out that the mere possession of weapons in too large a quantity and the possession of weapons of mass destruction in particular, brought with it enormous dangers, including the potential for unintended war due to a technical mistake or miscalculation. That explained the necessity and urgency of an active policy to control weapons, both bilaterally and multilaterally in the context of the United Nations, with a central role for the UN Security Council3 and the UN General Assembly.4 The point of departure thereby is the prohibition on the use of military force ex Article 2(4) UN Charter, with the only exceptions of use of force in self-defence by states in case of an armed attack (ex. Article 51 UN Charter) or force mandated by the UN Security Council.

On the contributions by BVA Röling (1906–1985) as judge and scholar in different fields of (public) international law, (international) criminal law and polemology (science of war and peace), see Schrijver 2010; Kelk 2010; Cryer 2010; Van Der Wilt 2010; Cassese 2010. 2 As promotor, according to the Dutch terminology. 3 See Charter of the United Nations, opened for signature 26 June 1945, 1 UNTS XVI, entered into force 24 October 1945, [UN Charter], Article 26. 4 See Article 11 (1) UN Charter. 1

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This liber amicorum on the occasion of colleague and friend Terry Gill entering the realm of Professors Emeriti also offers an opportunity to reflect on what ties our respective fields of specialization together-in the case of Terry, international humanitarian law (IHL) or law of armed conflict (LOAC) and ius ad bellum, and in my case,5 arms control law and ius ad bellum- and why further academic development of all of these branches of international law is important. That these branches of international law surpass those in most other areas of law in relevance becomes self-evident if one realizes their great (international) political importance, as they concern the rules and the interpretation of rules that may make the difference between life and death of civilians and could impact the very survival of states. In the case of arms control law concerning nuclear weapons, we may even be talking about the fate of humanity as such. The overlap and hinge point between our respective fields of specialization is the ius ad bellum, the rules about when use of military force is allowed for, with on one side the ius in bello, the rules on what kind of (legitimate) military force can be applied in an armed conflict, and on the other side arms control law, which comprises rules on types of weapons states may or may not have and at what levels. This shows, in other words, Terry’s specialization versus mine, and our mutual concern with issues of the ius ad bellum and its principles. Not surprising therefore that we have become “brothers in arms” with a shared past at both Utrecht University and the University of Amsterdam, where we had the opportunity to contribute to the development of our respective specializations and share them with an international student population eager to learn. How fortunate that our joint efforts to further strengthen academic research into arms control law bears fruition now that, with the support of the Netherlands Ministry of Foreign Affairs, a special chair in International Arms Control Law will be created at the University of Amsterdam and “embedded” within the T.M.C. Asser Institute in The Hague. In this contribution, it is argued why arms control law as a branch of public international law is so important. Given the theme of this volume—the concept of control in international law related to military operations—one could even argue that knowledge of this area of the law is foundational for the application of other areas of public international law that deal with the use of arms, like the law of collective security, international law of military operations, international humanitarian law, or more generally conflict and security law. For, as the International Court of Justice (ICJ) has made clear in its landmark Nicaragua Judgment, there is a freedom to possess weapons unless otherwise agreed.6 Knowledge of the agreed

5

More in general: conflict and security law. “In international law there are no rules, other than such rules as may be accepted by the State concerned, by treaty or otherwise, whereby the level of armaments of a sovereign State can be limited”. ICJ, Case concerning Military and Paramilitary Activities in and against Nicaragua, (Nicaragua v. United States of America), Judgement, 27 June 1986, 27 June 1986, Merits, [1986] ICJ Rep 1, para 269.

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restrictions on armaments, therefore, is essential before conducting military operations. That is where we encounter the law of arms control. What could be a more fitting topic than this one to celebrate Terry Gill’s contribution to this wider field of law of which he is such a master. In order to explain the importance of arms control law as a special field of public international law and the necessity to not only further develop it, but also to use its insights and modalities to advance arms control efforts as such, in this short contribution some of its main traits will be sketched. In so doing, I will also stress the importance of arms control more generally, which at present is under threat. In order to illustrate the centrality of the elements of security and supervision to arms control law, I will take both the Intermediate-Range Nuclear Forces (INF) Treaty and the Chemical Weapons Convention as examples. This leads me to the following sections: the concept of arms control (Sect. 17.2); the development of arms control law as a separate branch of public international law (Sect. 17.3); defining arms control law and the elements of security and supervision (Sect. 17.4) both in the case of the INF Treaty (Sect. 17.5) and the Chemical Weapons Convention (Sect. 17.6); the risks posed by political expediency to arms control law—(back to the Cold War days?) (Secti. 17.7), and some concluding observations concerning the importance of arms control law (Sect. 17.8).

17.2

The Concept of Arms Control

Arms control already goes a long way back in history, either employed preventively or as part of a peace treaty. The advent of nuclear weapons and related developments in missile technology added a whole new dimension, with nuclear weapons becoming part of the strategy of deterrence and thereby leading to an arms race between the United States and the Soviet Union. Much was written in the Cold War days on theories of deterrence and nuclear strategies by people like Philip Green, Thomas Schelling, Jerome Kahan and Bernard Brodie,7 and terminology like that of countercity or counterforce strategy and mutually assured destruction (MAD) became common parlance of the nuclear strategist. Hedley Bull8 provided an important European contribution to the debate on arms control in the nuclear age that was growing especially in the US. This also led to debates on the risks involved and on the necessity of arms control by people like Stanley Hofmann9 or Alva

7 See for instance Green 1966; Schelling 1966; Brodie 1959, 1973. In general see also on the military doctrine of the United States: Myjer 1980, pp. 45–120. 8 Bull 1961. On the important contribution of Hedley Bull to the debate on arms control, see 1987. See also Myjer 1993, pp. 171–193. 9 Hoffmann 1978, 1981.

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Myrdal, the former Swedish Minister of Disarmament and Nobel Peace Prize laureate (1982) with her “Game of Disarmament”.10 An early contribution was made by J. David Singer on deterrence, arms control and disarmament.11 There are different ways in which the control of arms could take shape. This brought me (as a Ph.D. student)12 in the late seventies to investigate whether it would be possible to create a system of deterrence, whereby the prepared self-defence of a state would be a sufficient deterrent for any potential aggressor, but whereby the weapons used for that self-defence could only have a defensive function (be used defensively) and could not be used offensively. In other words, would a system of effective self-defence be possible that would deter a potential aggressor from attacking, but that could never be seen as a threat. Such a system of deterrence would answer to the ius ad bellum ban on the use of force of Article 2(4) UN Charter and the exception of Article 51—the legitimate function of the use of force. However, this interesting theoretical concept, especially from an arms control perspective, is impossible to realize in practice, not only because most weapons can be used both defensively as well as offensively, but also because it would exclude the possibility of executing a mandate from the UN Security Council to use force, the other exception to the ban on the use of force. It was only after the Cuban missile crisis of 1962 that serious attempts were undertaken to control the arms race resulting in treaties like the 1963 trilateral Partial (or Limited) Test Ban Treaty,13 the multilateral Nuclear Non-Proliferation Treaty (NPT),14 signed in 1968, or bilateral treaties between the United States and the Soviet Union, like the 1972 Anti-Ballistic Missile (ABM) Treaty,15 and the 1972 Salt I Interim Agreement,16 to name a few of the early ones.17 Arms control is a political process between sovereign states and is therefore dependent on the will of states, who possess these weapons and weapons systems, to limit the level of their armaments. This also explains why during the Cold War arms race there was only limited progress in the field of arms control, and as far as there were arrangements these were not viewed as forming a coherent branch of public international law, that deserved analysis and research, like for instance the

10

Myrdal 1977. Singer 1962. 12 See Myjer 1980. 13 Treaty Banning Nuclear Weapons Tests in the Atmosphere, in Outer Space and Under Water, between the US, the UK and the USSR, opened for signature 5 August 1963, 480 UNTS 43, entered into force 10 October 1963. 14 Treaty on the Non-Proliferation of Nuclear Weapons (NPT), opened for signature 12 June 1968, 729 UNTS 1681, entered into force 5 March 1970. 15 Treaty Between the US and the USSR on the Limitation of Anti-Ballistic Missile Systems, opened for signature 26 May 1972, 23 UST 3435, entered into force 3 October 1972. 16 Interim Agreement on Certain Measures with Respect to the Limitation of Strategic Offensive Arms (SALT I Agreement), between the US and the USSR, opened for signature 26 May 1972, entered into force 3 October 1972. 17 For an extensive account, see for instance Goldblat 1994, p. 65. 11

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law of armed conflict. Arms control belonged to the political domain, and as far as there was room for academic analysis it was done by political scientists. At the time of this East-West confrontation, the possibility of legal analysis of an unbiased nature was treated with suspicion and was thought to be politically coloured. Only by the end of the Cold War, and especially shortly thereafter, was there a growing willingness to agree on far-reaching arms control arrangements like the Chemical Weapons Convention,18 or the Comprehensive Nuclear-Test-Ban Treaty (CTBT).19 These developments then also signalled the beginning of a comprehensive analysis of the different arms control arrangements as belonging to a separate branch of public international law, namely the law of arms control.

17.3

Recent History of Arms Control Law

From the early nineties onwards, the interest in arms control law as a separate branch of public international law has increased, as it was possible to view this political-strategic topic with a certain detachment and no longer exclusively from the East-West, Cold War perspective. A case in point was the International Law Association (ILA) in 1990 establishing a committee to study Arms Control and Disarmament Law, and even then with a carefully formulated mandate: To investigate the manner in which the principles and rules of international law may contribute to the control or reduction of armaments and military forces and to the reduction of the risk of armed conflict, with special regard to any shortcomings that may be found, offering recommendations for improvement where appropriate.20

Over a period of 14 years, the Committee published, in addition to its Final Report, a further five Reports on a wide range of topics relating to arms control law.21 An important contribution to this branch of law was also made by the UN, which published a series on this topic, the first of which was “The International Law

18

Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, opened for signature 13 January 1993, 1974 UNTS 45, entered into force 29 April 1997. 19 Comprehensive Nuclear-Test-Ban Treaty (1996), adopted by the UNGA A/RES/50/245, opened for signature 17 September 1996. 20 ILA 2004. What is explicitly mentioned as not being part of the mandate shows how careful this “exclusive” area was approached: “The Committee is not called upon to evaluate any arms control agency or institution, nor charged with the task of examining the adequacy of substantive arms control provisions as such, nor with the oversight of the efficacy of provisions regarding the verification and observance of arms control treaties. The objective shall be to concentrate upon the operation of the relevant principles and rules of international law although, in order to do so in a concrete manner, it will be necessary to take cognisance of specific arms control provisions and the operation of arms control related institutions’. 21 ILA 1992, pp. 389-403, 1994, pp. 401–431, 1996, pp. 307–322, 1998, pp. 164–178, 2000, pp. 222–247.

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of Arms Control and Disarmament”,22 based on a symposium early 1991 at the UN in Geneva. Both Julie Dahlitz,23 as first chair, and Dieter Fleck, as chair and rapporteur of the ILA Committee on Arms Control and Disarmament Law, deserve to be mentioned here for their relentless work.

17.4

Defining Arms Control Law and the Elements of Security and Supervision

When speaking about the subject of arms control law it should be clear that “arms” refers not only to the hardware of weaponry. Rather the term covers the various means to employ military force: materials, humans and ideas (e.g. technologies). Each of these three categories, individually and combined, can be the object of arms control law.24 Arms control law can then be defined as that part of public international law that deals both with the restraints internationally exercised upon the use of military force (in general) and on the use, transfer and/or the possession of armaments (in particular), including their component parts and related technologies, whether in respect of the level of armaments, their character or deployment and with the applicable supervisory mechanisms.25 Arms control law therefore distinguishes itself by its preventive character, whereas in the case of humanitarian law, which has overlaps with arms control law, the effect of some rules may be preventive but are mainly about the regulation of the actual application of force. The definition is quite broad and concerns a great number of treaties as diverse as the INF Treaty,26 the Treaty on Conventional Armed Forces in Europe (CFE),27 the strategic arms reduction treaties,28 the NPT and the Chemical Weapons Convention (CWC). These are all treaties between states and therefore binding (so-called hard law). Also relevant binding decisions by the Security Council (under 22

Dahlitz and Dicke 1991; Dahlitz 1994; Dahinden et al. 2002. See also Dahlitz 1983. 24 Marauhn and Myjer 2020, forthcoming. 25 Myjer and Herbach 2018, p. 209. 26 Treaty between the United States of America and the Union of Soviet Socialist Republics on the Elimination of their Intermediate-Range and Shorter-Range Missiles, opened for signature 8 December 1987, entered into force 1 June 1988, ceased to be in force on 2 August 2019, after the U.S. withdrawal. 27 Treaty on Conventional Armed Forces in Europe (CFE), opened for signature 19 November 1990, entered into force 9 November 1992, and adapted in 1999. 28 Treaty between the United States of America and the Union of Soviet Socialist Republics on Strategic Offensive Reductions (Start I) of 31 July 1991, entered into force 5 December 1994; Treaty between the United States of America and the Union of Soviet Socialist Republics on Strategic Offensive Reductions (Start II) opened for signature 26 September 1997 (never entered into force); Treaty between the United States of America and the Russian Federation on Measures for the Further Reduction and Limitation of Strategic Offensive Arms of (known as the New START Treaty), opened for signature 8 April 2010, entered into force 5 February 2011. 23

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Chap. VII of the Charter) dealing with arms and related materials, such as Resolution 1540,29 fall into that category. Arms control law, however, also includes soft law arrangements agreed on by states, that can range from politically binding arrangements,30 like the Missile Technology Control Regime (MTCR), or the Wassenaar Arrangement, to recommendations and guidelines, memoranda of understanding and codes of conduct, to non-binding resolutions by international organizations (viz. General Assembly resolutions). A few of the most striking common characteristics of arms control arrangements are: • control on use, transfer and/or possession of particular armaments, component parts and related technology (the arms, or weaponization element); • the element of security; • verification via supervision of compliance; • important role for confidence building measures.31 Crucial to any arms control arrangement is the element of supervision of compliance, or compliance control. This is logical as arms control impacts a state’s national security, and a state will only agree to measures of arms control if it is certain that these measures will improve its security, or at the very least not diminish its security. To be certain of that, an adequate system of supervision should be in place to provide assurances that when a state agrees on disarmament or control of certain arms their contracting partner(s) shall likewise comply with their agreed commitments. Otherwise, states would run the risk that their national security might be harmed. The US President Ronald Reagan, when agreeing on some of the major arms control agreements with the USSR, expressed this necessity with his maxim “trust, but verify”. It is therefore not surprising that for States an important feature of arms control negotiations is how to most effectively ensure compliance with commitments. For instance, would a state have to rely only on its own National Technical Means (NTMs), and how effective would this be in light of the nature of the commitments? Or would a state be allowed to verify within the territory of another state via inspections, and how intrusive could these be? Or will a combination of these two methods be satisfactory? Or would states prefer multilateral supervision by an international organisation, like the International Atomic Energy Agency (IAEA) or the Organisation for the Prohibition of Chemical Weapons (OPCW)? All these choices will of course depend on the arms to be controlled, on the technical possibilities to verify convincingly and, specifically with regard to NTMs, on a state’s technical capabilities and actual capacity to do so. Agreeing on adequate supervision is therefore central to successful arms control negotiations.

29

UNSC Res 1540 (28 April 2004). In the case of chemical and biological weapons for instance arrangements by the Australia Group. 31 Myjer and Herbach 2018, pp. 209–210. 30

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Arms control law can provide insights like how best to supervise compliance of arms control commitments based on analysis of different systems of supervision. In the following I will look at two prime examples of supervision and see what lessons can be learned. The first is the landmark bilateral (US/USSR) INF Treaty, that the US and Russia withdrew from in 2019, and the second is the multilateral CWC, both of which are examples of elaborate systems of verification/supervision.

17.5

Supervision Under the INF Treaty

In the 1970s, the issue of replacement by the Soviet Union of older intermediate-range missiles by SS-20 intermediate-range missiles led, in 1979, to the well-known dual track strategy by NATO to call on the one hand for negotiations between the US and the USSR to limit deployment of intermediate-range nuclear forces, while on the other hand calling for deployment of 572 cruise missiles by December 1983 in case these32 negotiations would not be successful. The possible placement of cruise missiles led to massive protests by peace movements in Western European countries like the UK, Germany and the Netherlands. After long negotiations, the US and the USSR agreed in September 1987 on a “double zero” treaty to eliminate all declared INF systems, both ground-launched ballistic and cruise missiles with ranges between 500 and 5500 kilometres, their launchers and associated support structures and support equipment within three years of the Treaty’s entry into force, and to ensure compliance with the total ban on possession and use of these missiles.33 Jozef Goldblat regarded this Treaty as “highly significant,”34 for “(t)he destruction of INF-missiles removed an entire category of nuclear weapons which might have been used early and pre-emptively in an East-West armed conflict.”35 That the US and the USSR regarded the element of security as extremely important is demonstrated by the detailed verification regime they agreed on and especially the element of on-site inspections. Article XI of the Treaty regulates the right to conduct on-site inspections ‘for the purpose of ensuring verification of compliance with the provisions of this Treaty’ (Para 1). Article XII concerns verification by NTMs “in a manner consistent with generally recognized principles of international law” and also forbids the parties to interfere with NTMs of the other Party operating in accordance with this Article. 32

NATO, Double track decision on Theatre Nuclear Forces, 12 December 1979. https://www.nato. int/cps/en/natolive/official_texts_27040.htm. Accessed 31 March 2020. 33 On the INF Treaty (Treaty Between the United States of America and the Union of Soviet Socialist Republics on the Elimination of their Intermediate-Range and Sorter-Range Missiles) of 8 December 1987, entered into force 1 June 1988, see United States Arms Control and Disarmament Agency 1996, pp. 256–346. 34 Goldblat 1994, p. 65. 35 Goldblat 1994, p. 65.

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As mentioned, the destruction had to take place within in a three-year period. For ten more years, the Treaty allowed inspections (Article XI para 5), and for 13 years it allowed for continuous monitoring of portals of certain facilities ex Article XI (para 6). Furthermore, a Special Verification Commission was established “to (a) resolve questions relating to compliance with the obligations assumed; and (b) agree upon such measures as may be necessary to improve the viability and effectiveness of this Treaty.”36 In the words of the US Arms Control and Disarmament Agency (ACDA): “At the time of its signature, the Treaty’s verification regime was the most detailed and stringent in the history of nuclear arms control.”37 The supervision of compliance with the INF Treaty obligations is contained in a separate and detailed Protocol on Inspections,38 which provides for the on-site inspections. Under this INF Treaty model of on-site inspections “because of the sensitive nature of the subject matter of these agreements and the equal status of all the parties, careful attention was given to the rights and obligations of both the inspecting and inspected parties.”39 Because the INF Treaty concerned the employment of INF systems in the European theatre, the US also concluded a treaty with European countries where these were already placed or might be placed in order for inspections to be able to take place in these states. These states were Belgium, Germany, Italy, the Netherlands and the UK. This agreement (of 11 December 1989) entered into force simultaneously with the INF Treaty and remained in force for a period of 13 years, corresponding with the period of on-site inspections under the INF Treaty.40 However, the US more recently concluded that there was a case of non-compliance by Russia, which led the US President Trump on 2 February 2019 to suspend US obligations under the Treaty and make clear that he intended to withdraw from this treaty in six months’ time. Shortly thereafter Russia also suspended its treaty obligations. US Foreign Secretary Pompeo had announced earlier 36

INF Treaty, Article XIII: “1. To promote the objectives and implementation of the provisions of this Treaty, the Parties hereby establish the Special Verification Commission. The Parties agree that, if either Party so requests, they shall meet within the framework of the Special Verification Commission to:

(a) resolve questions relating to compliance with the obligations assumed; and (b) agree upon such measures as may be necessary to improve the viability and effectiveness of this Treaty.” 37 United States Arms Control and Disarmament Agency 1996, p. 254. 38 Protocol Regarding Inspections relating to the Treaty between the United States of America and the Union of Soviet Union Republics on the Elimination of their Immediate –Range and Shorter Range Missiles. 39 Ifft 1994, p. 16. 40 Agreement among the USA, Belgium, FR Germany, Italy, The Netherlands and the UK regarding inspections relating to the INF Treaty (Western Basing Agreement) of 11 December 1987. In Goldblat 1994, pp. 532–533. Similarly on 11 December 1987 an agreement was concluded among the USSR, the GDR and Czechoslovakia regarding inspections relating to the INF Treaty (Eastern Basing Agreement). In Goldblat 1994, pp. 534–535.

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that the United States found Russia in “material breach” of the treaty and would suspend its treaty obligations unless Russia would reverse its course within a sixty-day period.41 On 2 August 2019, the US formally withdrew from the INF Treaty. In a statement, Secretary Pompeo said, “[w]ith the full support of our NATO Allies, the United States has determined Russia to be in material breach of the treaty and has subsequently suspended our obligations under the treaty.”42 Although the Treaty foresees in the Special Verification Commission (SVC),43 a mechanism to solve disputes regarding non-compliance issues, it appears that both parties only made a perfunctory use of this mechanism without doing their utmost to keep the Treaty alive.

17.6

Supervision Under the Chemical Weapons Convention

The 1993 CWC,44 which is the most comprehensive arms control instrument to date, is a nearly universal treaty with 193 states parties.45 It includes an absolute ban to use and produce chemical weapons as well as an obligation to destroy both weapons and production facilities, and it provides an elaborate system of verification. Elsewhere I have shown that the Chemical Weapons Convention establishes a highly-developed model of supervision with different functions—collection function, review function, creative function and correction function.46 Elements include the mandatory provision of information by State Parties and verification via an elaborate system of inspections, including initial, regular and challenge inspections. For this sophisticated supervisory mechanism, the Organization for the Prohibition of Chemical Weapons (OPCW) was established with its own inspectorate. Although the comprehensiveness of this Convention is a model for other areas of arms control, like the Comprehensive Nuclear-Test-Ban Treaty, it lacks a mechanism for effective redress in cases of chemical weapons use, where in such cases “of particular gravity” referral to the UN General Assembly and the UN Security Council under Article XII (para 4) is in order. This was made clear in the case of Syria where chemical weapons have been used both by the Assad regime, Syria being a State Party since 2013, and by non-State actors. In April 2014, an OPCW Fact-Finding Mission (FFM) was set up by the Director General of the OPCW, with an on-going mandate “to establish facts

41

4 December 2018. https://www.armscontrol.org/factsheets/INFtreaty. Accessed 31 March 2020. 43 See above and n 36. 44 On the CWC, see Krutzsch et al. 2014. 45 As of 19 February 2020, see https://www.opcw.org/evolution-status-participation-convention. Accessed 31 March 2020. 46 Myjer 2001, p. 106-onwards. 42

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surrounding allegations of the use of toxic chemicals, reportedly chlorine, for hostile purposes in the Syrian Arab Republic”. In 2015, the FFM stated that chlorine as a weapon had been used in Syria. This mechanism, however, could not identify those responsible for the attacks, not having the proper mandate to do so. This led to strong condemnation by the UNSC in SC Res 220947 and to the establishment of the OPCW-UN Joint Investigative Mechanism through resolution UN SC Res 2235 (2015).48 With this Joint Investigative Mechanism, it was possible to not only establish the use of chemical substances, but also to attribute such use. In October 2017, due to a veto by Russia, the mandate was not renewed. Also, in the light of the use in the UK—in Salisbury—of chemical substances (novichok, a military-grade nerve agent) against the former Russian spy Skripal, the UK took the initiative to convene a Special Session of the Conference of States Parties in 2018. This led to a majority decision to also allow the OPCW to attribute responsibility for the use of chemical weapons.49 For that purpose, the Secretariat established an Investigation and Identification Team (IIT). This development, however, signalled the politicisation of the OPCW’s decision mechanism, which although it allows for majority voting, as a rule has managed decision-making by consensus. The Syrian conflict, with Russia and Iran as allies of the Assad regime, brought this split into the open. It also put the focus on the weakness of the correction mechanism of CWC supervision since the ultimate compliance control measure in case of established non-compliance is referral to the UN Security Council, which might lead to a binding decision under Chap. VII of the UN Charter, like sanctions or enforcement measures to redress a situation. In such a situation, a veto by Russia is now likely, or, depending on the situation by another of the P5, thereby blocking an effective remedy. Notwithstanding this negative development in case actual use of chemical weapons can be attributed, after having expressed its grave concern over actual cases of use of chemical weapons,50 the Fourth Review Conference emphasised that

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SC/Res 2209 (2015) of 6 March 2015. of 7 August 2015. 49 “(…) Strengthening Implementation of the Convention: (19) Affirms that, whenever a chemical weapons use occurs on the territory of a State Party, those who were the perpetrators, organizers, sponsors or otherwise involved should be identified, and underscores the added value of the Secretariat conducting an independent investigation of an alleged use of chemical weapons with a view to facilitating universal attribution of all chemical weapons attacks; (20) Decides that the Director-General, if requested by a State Party investigating a possible chemical weapons use on its territory, can provide technical expertise to identify those who were perpetrators, organizers, sponsors or otherwise involved in the use of chemicals as weapons, and further decides that, in this context, the Director-General may enlist support as appropriate from outside experts with relevant qualifications and professional experience, and invites the Director-General to submit to the Conference at its next regular session specific proposals to establish such independent, impartial, expert arrangements;(…)” OPCW, C-SS-4/DEC.3 of 27 June 2018. 50 Paragraph 9.11 “The Fourth Review Conference expressed its grave concern over the significant number of cases in which chemical weapons have been used since the Third Special Session of the Conference of the States Parties to Review the Chemical Weapons Convention (hereinafter “the 48

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as the destruction of declared chemical weapons stockpiles nears completion, the Organisation should continue to implement its disarmament mandate and focus on preventing re-emergence of chemical weapons and avoiding risk of their proliferation, with a view to excluding the possibility of their use by anyone, anywhere, at any time.51

17.7

The Risks of Political Expediency for Arms Control Law—Back to the Cold War Days?

The previous two sections have shown that both in the case of the INF Treaty and in the case of the Chemical Weapons Convention, developments have had a negative impact on the respective arms control regime, and thereby on arms control law in general. What is especially worrisome is that these developments seem to originate from a lack of political willingness by states to make maximum use of the available elaborate treaty regime in question. Although in the case of INF the instrument of on-site inspections was no longer available, another element of the supervisory system, namely the Special Verification Commission (SVC) (ex. Article XIII INF Treaty) was still in place. As we have already seen, the SVC provided a forum for discussing and resolving implementation and compliance issues, and for considering additional procedures to improve the viability and effectiveness of the Treaty.52 From what can be gathered from the available sources, there was not a real effort to use the SVC to sort out the compliance issue by the US and the Russian counter compliance issue. Given the importance of the INF Treaty, especially for the European theatre, it is worrying that the parties failed to solve their differences making use of the SVC. One cannot escape the impression that political considerations of convenience also played a part, like President Trump’s aversion to being bound by arms control agreements. Therefore, the conclusion is inescapable that in the end primarily political reasons led to the withdrawal from the INF Treaty and not issues of non-compliance. From the perspective of arms control law, one might further ask whether an essential supervisory element in the INF Treaty was lacking that might have

Third Review Conference”) and reaffirmed its condemnation, in the strongest possible terms, of the use of chemical weapons anywhere, at any time, by anyone, under any circumstances and expressed strong conviction that those responsible for the use of chemical weapons must be held accountable. The Fourth Review Conference paid respect to all victims of chemical weapons”, Chairperson’s report of the proceedings of the Fourth Special Session of the Conference of the States Parties to Review the Operation of the Chemical Weapons Convention (hereinafter “the Fourth Review Conference”) of 30 November 2018, RC-4/3/Rev.1, para 9.11. 51 Chairperson’s report of the proceedings of the Fourth Special Session of the Conference of the States Parties to Review the Operation of the Chemical Weapons Convention (hereinafter “the Fourth Review Conference”) of 30 November 2018, RC-4/3/Rev. 1, para 9.20. 52 United States Arms Control and Disarmament Agency 1996, p. 254.

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prevented this apparent stalemate in claims of non-compliance. This is an especially pertinent question since the INF Treaty’s verification system was regarded as, in the words of ACDA, “at the time of its signature, […] the most detailed and stringent in the history of nuclear arms control.”53 From the perspective of arms control (law) what was lacking is strangely enough not a comprehensive system of verification, but a permanent system of on-site verification. Given that the system of verification that was agreed upon was so comprehensive, if the instrument of on-site inspections that now only lasted for 13 years would have been of unlimited duration, it might have been able to solve the issue of non-compliance that led to the withdrawal of both the US and Russia, or at least it would have been more difficult to leave for political reasons. It will be clear that these developments not only negatively impact existing elaborate arms control regimes, but they thereby also negatively impact international security. In addition, challenges to a rules-based international order contribute to these developments of which the present US President’s aversion to multilateralism is a case in point. These challenges now appear also to come both from within the West, by traditional supporters of arms control agreements like the US, as well as from the outside by countries like Russia. This is especially the case now that both the US and Russia have withdrawn from the landmark INF Treaty. One can also see the relevance of agreed commitments, such as those under the New Start Treaty, being put into question, with the possibility that the US is willing to let New Start expire by February 2021, instead of seeking its extension to 2026. If that were to happen, no bilateral nuclear arms control treaty between the US and Russia, states with the largest nuclear arsenals, would be in force anymore, the first time since the Salt I agreement of 1972. At the same time, the non-proliferation regime of the NPT is under threat by developments such as Russia and the US modifying their nuclear inventory, changing to smaller nuclear weapons and expressing their willingness to introduce what the US has called “tailored deterrence strategies.”54 Even France and the United Kingdom are modernising their nuclear submarines. This development of the nuclear arsenals by the nuclear superpowers stands in stark opposition to the commitment by the nuclear weapon states under Article VI of the NPT to pursue nuclear disarmament negotiations in good faith, which is, in the words of the ICJ, an obligation to achieve a precise result—nuclear disarmament in all its aspects.55 At present, no such negotiations are taking place. Besides the obvious greater risk that nuclear weapons might be used, when the threshold is lowered, the dangers of these developments are apparent. More States Parties might come to the conclusion 53

United States Arms Control and Disarmament Agency 1996, p. 254. Nuclear Review Posture, US Department of Defense, February 2018, at VII–VIII. 55 “The legal import of that obligation goes beyond that of a mere obligation of conduct; the obligation here is an obligation to achieve a precise result-nuclear disarmament in all its aspectsby adopting a particular course of conduct, namely, the pursuit of negotiations on the matter in good faith” ICJ, Legality of the Treat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996 [1996] ICJ Rep 226, para 99. 54

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that possession of nuclear weapons might be to their advantage and opt to leave the NPT, like in the case of North Korea. Similarly, the withdrawal by the US from the Joint Comprehensive Plan of Action (2015) with Iran might lead Iran to develop nuclear weapons. Furthermore, other non-nuclear weapon States Parties to the NPT also might choose to abandon the NPT, even without a plan to develop their own nuclear capabilities, because of the stalemate in negotiations under Article VI of the Treaty and become party to the Treaty on the Prohibition of Nuclear Weapons (2017). All these developments risk the crumbling of the nuclear non-proliferation regime. These developments are reminiscent of the Cold War days, when for superpowers restrictions on their freedom to possess arms, and therefore arms control, were only acceptable if it was politically convenient to them. In those days it was a bi-polar world, nowadays it is a multipolar world. This means a multiplication of the risks inherent in the possession of armaments. A similar development reminiscent of the Cold War days is the politization of the decision-making process within the OPCW. In the case of the CWC, luckily the basic supervisory means of inspections is still in place, but the ultimate remedium of a binding UN Security Council measure in case of non-compliance is uncertain, to say the least.

17.8

Some Concluding Observations Concerning the Importance of Arms Control Law

It is important to have and maintain intimate knowledge of the field of arms control law, even, and perhaps more so, now that the rules-based international order is being challenged and a number of crucial arms control agreements are under threat. For without such knowledge, one may not actually be aware of possible negative developments with regard to specific arms control arrangements, such as difficulties with compliance monitoring, non-compliance, or difficulties in the application of treaty regimes, and therefore not be alarmed in time and adequately prepared for such developments in order to take timely action (like starting consultations with all States Parties concerned, or invoke agreed mechanisms). The use of chemical weapons in Syria, both by the Syrian state (a CWC State Party) as well as by non-State groups, in spite of the ban under the CWC shows that Member States need to be constantly alert to prevent the re-emergence of chemical weapons in spite of the CWC being the most comprehensive arms control treaty to date. This is especially the case since this use led to political manoeuvring within its almost universal membership! Given that breaches of arms control treaties occur, even when there is a high degree of compliance control, or that when states no longer want to be bound by treaty obligations they might withdraw from an arms control treaty, why then is the study of arms control law and its further development via academic research so important?

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Before summing up pertinent arguments that illustrate why that is the case, a reminder is in order. For whether or not states are prepared to engage in any meaningful arms control negotiation and restrict their freedom to possess arms, will ultimately depend on states’ political willingness to do so, which to a large extent is shaped by security considerations. In other words, a state’s arms control policy is a function of its concept of security, and if states do not want to be bound in the first place, they will not enter into treaty obligations. National political and security considerations undoubtedly have been at work in the discussed cases of INF and the CWC. Present day disinclination of states to engage in any meaningful arms control negotiation and even backtracking on arms control achievements of the past almost seem to have taken us back to the Cold War days. At present, however, with multilateral (super) power competition, the political landscape is more complex. This makes some of the classic reasons for arms control, like diminishing the risks inherent in the development and possession of weapons and weapons systems like WMD, even more pertinent. Add to that the rapidly advancing technological developments, like those concerning cyber, hypersonic weapons or autonomous weapons, and it becomes clear that even greater efforts are needed. In order to advance arms control, a detailed knowledge of both the process of arms control and of the law of arms control is essential. For a number of reasons, therefore, further research into arms control law as a branch of public international law is crucial. In conclusion, the following can be said of arms control law, illustrating its self-evident importance. • The point of departure is that States are free to possess weapons, unless they have agreed otherwise. • In order to know the agreed limitations with regard to the possession of weapons and weapon systems, knowledge of such arms control agreements is essential. Here we find ourselves within arms control law as a branch of public international law. • Knowledge of arms control arrangements (agreements) in particular is important in situations of legitimate use of force (ius ad bellum) and the actual use of weapons under the law of armed conflict (ius in bello). • Different from the law of armed conflict, which is about the means and methods employed during armed conflict, arms control law by its nature is preventive in character. • Arms control law is a coherent and independent branch of public international law, with common elements and specific characteristics, like security as a core element and therefore the crucial importance of supervision of compliance with arms control commitments. • Detailed knowledge of this branch of the law is also important because it shows the available instruments applicable in case of compliance issues with regard to a particular treaty regime.

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• Arms control law shows that it is possible to reach agreements (it shows experience), either of a legally binding or politically binding nature within this highly volatile and delicate area of security. It shows, in other words, that it is possible to develop rules either as hard law, or as soft law. • Knowledge of arms control law furthermore is relevant for it informs us of some essential elements for new arms control arrangements under negotiation, such as a fissile material cut-off treaty (FMCT). • For the further development of effective arms control regimes and the concomitant arms control law regimes, active multilateralism is essential.

References Brodie B (1959) Strategy in the missile age. Princeton University Press, London. Brodie B (1973) War and politics. Macmillan Publishers, New York. Bull H (1961) The control of the arms race. Weidenfeld & Nicolson for The Institute for Strategic Studies London, London. Cassese A (2010) B.V.A. Röling - A personal recollection and appraisal. Journal of International Criminal Justice 8:1141–1152. Cryer R (2010) Röling in Tokyo: a dignified dissenter. Journal of International Criminal Justice 8:1109–1126. Dahinden E, Dahlitz J, Fisher N (eds) (2002) Small arms and light weapons, legal aspects of national and international regulations, Volume IV, arms control and disarmament Law. United Nations, New York. Dahlitz J (1983) Nuclear arms control, with effective international agreements. George Allen & Unwin Limited, Australia. Dahlitz J (ed) (1994) Avoidance and settlement of arms control disputes, Volume II, arms control and disarmament law. United Nations, New York. Dahlitz J, Dicke D (eds) (1991) The international law of arms control and disarmament. United Nations, New York. Goldblat J (1994) Arms control, a guide to negotiations and agreements. International Peace Research Institute, Stockholm. Green P (1966) Deadly logic, The theory of nuclear deterrence. Ohio State University Press, Columbus. Hoffmann S (1978) Primacy or world order, American foreign policy since the Cold War. McGraw-Hill, New York. Hoffmann S (1981) Duties beyond borders, on the limits and possibilities of ethical international politics. Syracuse University Press, Syracuse. Ifft E (1994) The use of on-site inspections in the avoidance and settlement of arms control disputes. In: Dahlitz J (ed) Avoidance and settlement of arms control disputes, Volume II, arms control and disarmament law. United Nations, New York. ILA (1992) International Law Association, Committee on Arms Control and Disarmament Law (1990–2004), First Report: General Observations on the Law of Arms Control. In: International Law Association (ed) Report of the 65th Conference (Cairo 1992), pp 389-403. Available online at https://www.ila-hq.org/index.php/committees. Accessed 31 March 2020. ILA (1994) International Law Association, Committee on Arms Control and Disarmament Law (1990–2004), Second Report: Legal Restraints on Arms Proliferation. Report of the 66th Conference (Buenos Aires 1994), pp 401–431.

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ILA (1996) International Law Association, Committee on Arms Control and Disarmament Law (1990–2004), Third Report: Legal Remedies for Arms Control Impasse. Report of the 67th Conference (Helsinki 1996), pp 307–322. ILA (1998) International Law Association, Committee on Arms Control and Disarmament Law (1990–2004), Fourth Report: Further Constraints on Nuclear Weapons. Report of the 68th Conference (Taipei 1998), pp 164–178. ILA (2000) International Law Association, Committee on Arms Control and Disarmament Law (1990–2004), Fifth Report: National and International Verification Measures, Report of the 69th Conference (London 2000), pp 222–247. ILA (2004) International Law Association, Committee on Arms Control and Disarmament Law (1990–2004), Final Conference Report (Berlin 2004), pp. 488–526, available online at https:// www.ila-hq.org/index.php/committees. Accessed 31 March 2020. Kelk C (2010) Bert Röling as a criminal law scholar. Journal of International Criminal Justice 8:1093–1108. Krutzsch W, Myjer EPJ, Trapp R (eds) (2014) The Chemical Weapons Convention: A Commentary. Oxford University Press, Oxford. Marauhn T, Myjer EPJ (eds) (2020) Research Handbook on International Arms Control Law. Edward Elgar, Cheltenham (forthcoming). Myjer EPJ (1980) Militaire veiligheid door afschrikking, verdediging en het geweldverbod in het Handvest van de Verenigde Naties [Military security via deterrence, defence and the ban on the use of force in the United Nations Charter]. Kluwer, Deventer, pp 45–120. Myjer EPJ (1993) Hedley Bull, the international lawyer and the use of force. Leiden Journal of International Law 6:171–193. Myjer EPJ (2001) The Organization for the Prohibition of Chemical Weapons: Closer towards an international arms control organization? A quantum leap in the institutional law of arms control. In: Myjer EPJ (ed) Issues of arms control law and the Chemical Weapons Convention, obligations inter se and supervisory mechanism. Martinus Nijhoff Publishers, The Hague. Myjer EPJ, Herbach J (2018) Arms control law as the common legal framework for CBRN security. In: Malizia A, D’Arienzo M (eds) Enhancing CBRN safety & security: Proceedings of the SICC 2017 Conference. Springer, New York. Myrdal A (1977) The Game of Disarmament: How the United States and Russia Run the Arms Race. Manchester University Press, Manchester. NATO (1979) Double track decision on theatre nuclear forces, 12 December 1979. https://www. nato.int/cps/en/natolive/official_texts_27040.htm. Accessed 31 March 2020. O’Neill R, Schwartz DN (1987) Hedley Bull on Arms Control. Palgrave Macmillan/the International Institute for Strategic Studies, London. Schelling TC (1966) Arms and Influence. Yale University Press, New Haven. Schrijver N (2010) B.V.A. Röling - a pioneer in the pursuit of justice and peace in an expanded world. Journal of International Criminal Justice 8:1071–1091. Singer JD (1962) Deterrence, Arms Control and Disarmament: Toward a Synthesis in National Security Policy. Ohio State University Press, Columbus. United States Arms Control and Disarmament Agency (1996) Arms Control and Disarmament Agreements, texts and histories of the negotiations. United States Arms Control and Disarmament Agency, Washington, D.C. United States Department of Defense (2018) Nuclear Review Posture. US Department of Defense, February 2018. Van Der Wilt H (2010) A valiant champion of equity and humaneness: the legacy of Bert Röling for international criminal law. Journal of International Criminal Justice 8: 1127–1140.

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Cases ICJ, Case concerning Military and Paramilitary Activities in and against Nicaragua, (Nicaragua v. United States of America), Judgement, 27 June 1986, Merits, [1986] ICJ Rep 14 ICJ, Legality of the Treat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, [1996] ICJ Rep 226

Treaties Charter of the United Nations, opened for signature 26 June 1945, 1 UNTS XVI, entered into force 24 October 1945. Treaty Banning Nuclear Weapons Tests in the Atmosphere, in Outer Space and Under Water, between the US, the UK and the USSR, opened for signature 5 August 1963, 480 UNTS 43 (entered into force 10 October 1963). Treaty on the Non-Proliferation of Nuclear Weapons, opened for signature 12 June 1968, 729 UNTS 1681 (entered into force 5 March 1970). Treaty Between the US and the USSR on the Limitation of Anti-Ballistic Missile Systems, opened for signature 26 May 1972, 23 UST 3435 (entered into force 3 October 1972). Interim Agreement on Certain Measures with Respect to the Limitation of Strategic Offensive Arms (SALT I Agreement), between the US and the USSR, opened for signature 26 May 1972 (entered into force 3 October 1972). Agreement regarding inspections relating to the INF Treaty (Western Basing Agreement), between the USA, Belgium, FR Germany, Italy, The Netherlands and the UK, 11 December 1987. Agreement regarding inspections relating to the INF Treaty (Eastern Basing Agreement), between the USSR, the GDR and Czechoslovakia, 11 December 1987. Treaty between the United States of America and the Union of Soviet Socialist Republics on the Elimination of their Intermediate-Range and Shorter-Range Missiles, opened for signature 8 December 1987 (entered into force 1 June 1988, ceased to be in force on 2 August 2019, after the U.S. withdrawal). Treaty on Strategic Offensive Reductions (Start I), between the United States of America and the Union of Soviet Socialist Republics, opened for signature 31 July 1991 (entered into force 5 December 1994). Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, opened for signature 13 January 1993, 1974 UNTS 45 (entered into force 29 April 1997). Comprehensive Nuclear-Test-Ban Treaty (1996), adopted by the UNGA A/RES/50/245, 17 September 1996 and opened for signature 24 September 1996 (never entered into force). Treaty on Strategic Offensive Reductions (Start II), between the United States of America and the Union of Soviet Socialist Republics, opened for signature 26 September 1997 (never entered into force). Treaty on Conventional Armed Forces in Europe (CFE), opened for signature 19 November 1990 (entered into force 9 November 1992). Treaty Measures for the Further Reduction and Limitation of Strategic Offensive Arms of (known as the New START Treaty), between the United States of America and the Russian Federation, opened for signature 8 April 2010 (entered into force 5 February 2011). Protocol Regarding Inspections relating to the Treaty on the Elimination of their Immediate— Range and Shorter Range Missiles, between the United States of America and the Union of Soviet Union Republics, opened for signature 8 December 1987, (entered into force 1 June 1988, ceased to be in force on 2 August 2019, after the U.S. withdrawal).

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Prof. Dr. Eric Myjer is Professor Emeritus of Conflict and Security Law within the Faculty of Law at Utrecht University. He is co-editor in chief of the Journal of Conflict and Security Law. He was a member of the Committee on Arms Control and Disarmament Law and of the Committee on the Use of Force of the International Law Association, and he has published widely on issues in the area of conflict and security law with a special emphasis on arms control law.

Chapter 18

Control in Weapons Law William Boothby

Contents 18.1 Introduction...................................................................................................................... 370 18.2 Arms Control ................................................................................................................... 371 18.2.1 Biological Weapons Convention........................................................................ 373 18.2.2 Chemical Weapons Convention ......................................................................... 375 18.2.3 Ottawa Convention ............................................................................................. 378 18.2.4 Explosive Remnants of War .............................................................................. 380 18.2.5 Cluster Munitions Convention ........................................................................... 382 18.2.6 Obligations of Peace Forces............................................................................... 383 18.3 Loss of Control of a Weapon ......................................................................................... 384 18.4 Meaningful Human Control ............................................................................................ 387 18.5 Conclusions...................................................................................................................... 388 References .................................................................................................................................. 390

Abstract This chapter analyses the role that notions of control play in the field of weapons law. For this purpose, the chapter first explores what arms control treaties actually are and where this idea of control features in the treaties. Next, the focus is on the consequences arising from the loss of control of a weapon to determine where responsibility lies for actions that take place after the operator of a weapon has lost control of it. Lastly, the chapter explores the notion of ‘meaningful human control’ as a possible requirement that weapon systems must be subject to. In this context, the author addresses the question of whether control in this context has the same meaning as control in the context of arms control treaties. Keywords Weapons law control


arms control
loss of control
meaningful human

W. Boothby (&) Australian National University, Canberra, Australia e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2021 R. Bartels et al. (eds.), Military Operations and the Notion of Control Under International Law, https://doi.org/10.1007/978-94-6265-395-5_18

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Introduction

For many years, it has been my privilege to work with Terry Gill. Before launching into the intricacies of my chosen topic, I wish to put on record my very high regard for the thoroughness and depth of his expertise, for his unrivalled enthusiasm for our mutual topic, International Humanitarian Law, for his massive contribution to the dissemination and understanding of international law and for the fine qualities as a lawyer and as a human being that he brings to all he does. I congratulate you on achieving this milestone, Terry, and I hope that we will work together on many future projects. You have inspired and educated many in the past and I feel sure that you will continue to do so for a long time to come. It is my considerable pleasure to have been invited to contribute to this, your Festschrift, and I very much hope that the pages that follow meet with your discerning approval. And with that I will now turn to my chosen topic, which is the important role that notions of control play in the field of weapons law. We have ‘arms control treaties’, in which the exercise of control over certain classes of weapon is either forbidden or at least initiates certain legal obligations. So, in the following sections and sub-sections we will explore what an arms control treaty actually is and will then look at the treaties where this idea of control features, trying to determine in each case what exactly the idea entails and what obligations flow from it. This will require us to consider whether the idea of control seems to be similar or different when applied in the different treaties and we will then have to apply treaty interpretation techniques to seek to give the concept meaning. The second dimension to consider when addressing control of a weapon is the consequences arising from the loss of its control. Such loss of control may occur for example as a result of a hacking operation. The legal issue here is to determine where responsibility lies for actions that take place after the operator of a weapon has lost control of it. As we shall see, much will depend on the circumstances giving rise to that loss of control and on the degree to which it can properly be said that another person has taken over control. For the present introductory purposes, it suffices to note that there are legal consequences in play here, and that they are directly linked to issues of control of a weapon. As many readers will already doubtless be aware, autonomous weapon technologies and the potential implications flowing from their development and introduction into service are attracting considerable scientific, legal, military, ethical and academic interest at the moment. Discussions at the diplomatic level are being conducted annually in Geneva. During the course of such discussions, possible requirements that weapon systems must be subject to what has come to be known as ‘meaningful human control’ have been suggested. Here again, the question that readily arises is whether control in this context has the same meaning as control in the context of arms control treaties, but other questions and issues also arise, such as what form control needs to take in order to be meaningful. These matters will also be considered in the following pages.

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So, it can readily be seen that this chapter neatly breaks down into three main sections, namely arms control, the legal consequences of loss of control and the notion of meaningful human control. After exploring each of these sections in turn, in the final section an attempt will be made to draw the discussion together and to achieve some conclusions. As a preliminary matter, it should be recalled that Article 31 of the Vienna Convention on the Law of Treaties1 prescribes a specific rule on the interpretation of treaty provisions. “A treaty 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.” Context comprises the text including preamble and annexes, relevant agreements between all the Parties and any instrument by one or more Parties accepted by the other Parties. This is the approach to interpretation that will be adopted in the following sub-sections. The ordinary meaning of the word ‘control’, as given in the Concise Oxford English Dictionary, is, so far as relevant, “the power to influence people’s behaviour or the course of events”; and “a device by which a machine is regulated”. In the context of the current chapter, it will be the capability of influencing the course of events that would seem to be most relevant. Accordingly, ‘in control’ means “able to direct a situation, person or activity”; ‘out of control’ signifies “no longer able to be managed”; and ‘under control’, in relation to a danger or emergency, refers to “being dealt with or contained successfully”.2 It is, however, worth considering whether mere ability to influence is sufficient in the arms control treaty context. In all likelihood, States will only consider the weapons and remnants discussed in the following pages to be subject to their control if the State is able to direct activities and events relating to the weapons or remnants in question. This will therefore be taken to be the ordinary meaning of the word.

18.2

Arms Control

It is important at the outset of this section to understand clearly the distinction between law of armed conflict provisions in general and notions of arms control in particular. The law of armed conflict is essentially that body of law that regulates all aspects of warfare, international and non-international, including the law applying to targeting, the law that protects victims, the law that determines which weapons it is permitted to employ and how they may be used and the law as to such specific aspects as neutrality, detention, maritime, air and outer space operations. In the weapons context, law of armed conflict provisions tend to take the form of prohibitions of particular weapon technologies, such as the customary law prohibition

1

Vienna Convention on the Law of Treaties, Vienna, opened for signature 23 May 1969. 1155 UNTS 331 (entered into force 27 January 1980) (VCLT). 2 Concise Oxford English Dictionary 2006, p. 311.

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of poisons and poisoned weapons,3 the prohibition of bullets designed to explode on impact with the human body4 and the limitations on the use of air-delivered incendiary weapons.5 Arms control, on the other hand, has been described as referring “to unilateral measures, bilateral and multilateral agreements as well as informal regimes (‘politically binding’ documents, ‘soft’ law) between States to limit or reduce certain categories of weapons or military operations in order to achieve stable military balances and thus diminish tensions and the possibility of large-scale armed conflict”.6 The present author rather feels, however, that this approach risks including arms reduction agreements, disarmament arrangements and similar processes within the arms control concept, and this might be seen by some observers as throwing the arms control net rather too wide, particularly if the effect were to be to include arrangements that are considered to be binding at the political as opposed to the legal level. Perhaps Adam Roberts and Richard Guelff strike the right note when they write that “[a]rms control and disarmament agreements do not expressly address the actual conduct of armed conflict; rather, they establish some controls over the production, testing, stockpiling, transfer, or deployment of the weapons by which armed conflict might be conducted.”7 The United States Department of Defense Law of War Manual takes the broader view, suggesting that “arms control … includes a variety of efforts to reduce the numbers, types, performance characteristics, proliferation, testing, or other aspects of certain categories of weapons.” In the US view, the notion also includes “non-binding political commitments as well as reciprocal unilateral statements of intention or policy”.8 In the US view, the purpose of arms control is to reduce the likelihood of war, the consequences of war and the cost of preparing for war.9 So perhaps the correct way to look at the matter is to view treaties that we shall discuss below in which the prohibitions apply to use as well as other activities associated with weapons as being hybrid in nature. The provisions of the treaty that prohibit use constitute law of armed conflict provisions whereas the provisions that relate to activities other than the use of the weapon amount to arms control

3

Convention (IV) respecting the Laws and Customs of War on Land, and its annex: Regulations concerning the Law and Customs of War on Land, opened for signature 18 October, 1907, 539 UNTS (entered into force 26 January 1910), Article 23(a). 4 United Kingdom, Ministry of Defence 2004, paras 6.10–6.10.2. The basis for the prohibition is the superfluous injury/unnecessary suffering principle, see Parks 2005, p. 142. 5 Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which may be Deemed to be Excessively Injurious or To Have Indiscriminate Effects, opened for signature 10 October 1980, 1342 UNTS 137 (entered into force 2 December 1983), Article 2(2). 6 Den Dekker 2004, pp. 315–316. 7 Roberts and Guelff 2000, p. 37. 8 US Department of Defense Law of War Manual, June 2015, para 1.6. 9 US Department of Defense Law of War Manual, June 2015, para 1.6.

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provisions. It follows from this that the ‘control’ element consists of the increased assurance that prohibiting such activities as possession, stockpiling, transfer, and deployment of the relevant weapons affords. The assurance is that the States party to the relevant treaties will adhere to their treaty obligations and that States in general will adhere to arms control obligations that have customary law status. The assurance that the weapons will not be used is increased by the prohibition of their possession etc.10

18.2.1 Biological Weapons Convention At this point we should consider the terms of some important arms control treaties with a view to determining what role ideas of control fulfil. The Biological Weapons Convention11 is one of the earliest instruments of its kind and would therefore seem to be a sensible place to start. Under Article II of the Convention States party are obliged to destroy or divert for peaceful purposes agents, toxins, weapons, equipment and means of delivery that “are in its possession or under its jurisdiction or control”. Such a linguistic construction employing the word ‘or’ twice leaves it open to interpretation whether the notions of possession, jurisdiction and control are interpreted as three mutually exclusive concepts. In the view of the present author, the better view must be that they are not. Self-evidently, if an object is in the possession of a State, that State will also ordinarily have both jurisdiction over it and control of it. If a State has jurisdiction over an object, it may or may not have actual possession of it and it will be a question of fact whether the State will be able to exercise control over the object. Likewise, the possibility of a State exercising control over a thing might be by virtue of the State possessing it or because the State also has jurisdiction over it. If the destruction obligation is, in particular circumstances, based exclusively on the exercise of control by a State, such control will need to be sufficient in both physical and legal terms to render it legally appropriate to impose an obligation on the relevant State to arrange for the destruction of the substances or objects in question. We will explore those aspects a little further in connection with other treaties.

10

Consider, for example, the relationship between the simple prohibition on use in the 1925 Geneva Gas Protocol, an exclusively law of armed conflict treaty, and the more extensive arms control obligations imposed by the Chemical Weapons and Biological Weapons Conventions, discussed below. 11 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, opened for signature 10 April 1972, 1015 UNTS 163 (entered into force 26 March 1975) (Biological Weapons Convention or BWC).

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Article IV of the BWC then provides: Each State Party to this Convention shall, in accordance with its constitutional processes, take any necessary measures to prohibit and prevent the development, production, stockpiling, acquisition or retention of the agents, toxins, weapons, equipment and means of delivery specified in Article I of the Convention, within the territory of such State, under its jurisdiction or under its control anywhere.

This Article is very obviously concerned with stopping (prohibit and prevent) activities that would breach the general obligations in Article I. Again we are confronted with the same interpretational problem, namely in this case whether notions of presence in the territory of a State, jurisdiction and control are mutually exclusive and for the reasons explained in relation to Article II, the better view seems to be that they are not. There is an additional question, namely whether the word ‘anywhere’ only qualifies control or whether it applies to both jurisdiction and control. Here the sentence structure and the meaning of jurisdiction might suggest that it only applies to control. After all, either an object is subject to the jurisdiction of a State or it is not, and the ‘anywhere’ language does not really add to that concept of jurisdiction. Where control is concerned, however, the addition of ‘anywhere’ seems to be making the point that a State may have control of an object, substance etc. for the purposes of the provision inside or outside its territory, and that the precise location is irrelevant provided that control is in fact exercised. As we saw under Article 31 of the Vienna Convention, the context of a provision shall be taken into account when it is being interpreted. The context for these purposes will include the paragraph of the Preamble which asserts that the negotiating Parties were “[d]etermined, for the sake of all mankind, to exclude completely the possibility of bacteriological (biological) agents and toxins being used as weapons”.12 This suggests that taken together, jurisdiction and control were intended to encompass all significant or relevant relationships with the prohibited substances and objects and implies, in this author’s opinion at least, that control therefore should be given a relatively broad meaning. At the time of writing none of the 180 States party to BWC made a statement on ratification addressing the meaning of ‘control’.

During Review Conferences, however, positions have been agreed that might shed some light as to the meaning of control. Thus, the 6th Review Conference of the Convention called upon States Party, in accordance with their constitutional processes, to adopt legislative, administrative, judicial and other measures designed to apply within their territory, under their jurisdiction or under their control anywhere and apply, if constitutionally possible and in conformity with international law, to actions taken anywhere by natural or legal persons possessing their nationality.13 While this approach may well be tied to both the jurisdiction and control aspects, it gives an indication of the broad interpretation that seems to the author to be indicated here. Review Conferences have also noted the importance of 12

BWC, Preamble, penultimate paragraph. See Final Document of the Sixth Review Conference, 2006, para 11(ii).

13

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legislation as to the physical protection of laboratories and facilities to prevent unauthorized access to and removal of microbial or other biological agents or toxins.14 The 6th Review Conference called upon States party to adopt legislative and other measures to ensure the safety and security of microbial and other biological agents in laboratories, facilities and during transportation again to prevent unauthorized access or removal.15 The same Conference, in the context of the prohibition of transfers in Article III, called for States party to take measures for the protection and safeguarding of relevant substances, including through measures to control access to and handling of them. The passing and subsequent enforcement of such legislative and other measures will clearly be important features of the control that a State is being required by the provision to exercise, and it would seem sensible to regard substances and objects for which the exercise of such control is practically possible as being within the control of the relevant State party for these purposes.

18.2.2 Chemical Weapons Convention The prime purposes of the Chemical Weapons Convention16 are clearly given in the first and sixth paragraphs of its Preamble, namely to achieve “effective progress towards general and complete disarmament under strict and effective international control” and “for the sake of all mankind to exclude completely the possibility of the use of chemical weapons, through the implementation of the provisions of this Convention, …”. It is with these prime objectives in mind that the meaning of specific provisions of the CWC should be interpreted, noting the centrality of notions of control to the objectives that the treaty seeks to accomplish. In Article I, a State party must “destroy chemical weapons it owns or possesses, or that are located in any place under its jurisdiction or control”.17 Likewise, the obligation to destroy chemical weapons production facilities applies to such facilities it owns or possesses, “or that are located in any place under its jurisdiction or control”.18 So here, the idea of control is specifically linked to the place where the chemical weapon or the production facility is, rather than the weapon or facility as such. It will of course be a question of fact whether a particular State that is a party to the Convention is in actual control of a relevant location. The important question that arises is whether the term ‘jurisdiction or control’ should be interpreted 14

See Final Document of the Third Review Conference, 1991, para 3 and the Final Document of the Fourth Review Conference, 1996, para 4. 15 See Final Document of the Sixth Review Conference (2006), para 11. 16 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, opened for signature 3 September 1992, 1975 UNTS 45 (entered into force 29 April 1997) (CWC). 17 CWC, Article I(2). 18 CWC, Article I(4).

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narrowly or broadly. Stuart Maslen argues persuasively that the use of the term was intended to be as broad as possible given the objective of ridding the world of a whole class of weapons.19 The control element is interpreted as referring to “places over which a State Party exercises factual power or authority, in particular occupied territories. Such places may belong to another State but have an extraterritorial status, or belong to the international parts of the globe.” Where the legal status of the place is disputed, such as in occupied territory, “the State Party actually exercising the control is addressed by this provision”.20 Under Article III there are very numerous reporting obligations placed upon States party to the Convention. These include a requirement to declare e.g. whether there are chemical weapons in any place under their jurisdiction or control, specifying such locations, the aggregate quantities of such weapons, and giving detailed inventories.21 Authoritative commentators have explained that each element in the rule individually triggers an affirmative or negative declaration, i.e. the State must declare its own chemical weapons anywhere, including those in places not under its own jurisdiction or control, and must also declare chemical weapons of others located on its territory or in any place subject to its jurisdiction or control.22 Interestingly, a State party is also obliged to report “any chemical weapons on its territory that are owned and possessed by another State and located in any place under the jurisdiction or control of another State”.23 This provision recognizes that the presence of, e.g., a chemical weapon on a State’s territory does not necessarily establish that the chemical weapon is also within that State’s control. Similarly, in relation to chemical weapons production facilities, the requirement to declare is triggered by any form of ownership, possession or location in places under the jurisdiction or control of the declaring State party. Article IV contains procedural requirements for the implementation of CWC provisions e.g. as to verification, as supplemented by the Verification Annex. For present purposes, it suffices to note that e.g. the requirement to provide access applies inter alia to all chemical weapons owned or possessed by a State party or that are located in any place under its jurisdiction or control.24 So, again, control is linked to a State’s relationship with the relevant place and will not necessarily be synonymous with jurisdiction.25 Importantly, Article IV(11) contemplates a situation in which a State party has on its territory chemical weapons that are in a place under the jurisdiction or control of another State and requires the territorial State to make the fullest efforts to have the chemical weapons removed from its territory.

19

Maslen 2004, p. 148. Maslen 2004, p. 149. 21 CWC, Article III(1) and (2). 22 Krutzsch et al. 2014, pp. 107–108. 23 CWC, Article III(3). 24 Note the employment of the same language in relation to chemical weapons production facilities in CWC, Article V(1). 25 CWC, Article IV(5). 20

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This would seem to address the situation in which, for example, State A operates military facilities on the sovereign territory of State B and suggests that State B’s obligation is to make every effort to persuade State A to remove the relevant weapons from State B’s territory. An important question as to control arose in connection with the US/UK occupation of Iraq following the 2003 invasion of that country. It has been stated that the US and UK in the course of a debate before the Organization for the Prohibition of Chemical Weapons, “maintained… that they were not in control of the territory in question and that they had not been occupying powers.”26 While the latter suggestion is clearly inconsistent with the observable historical fact that for a period of time the US and UK were indeed in occupation of Iraq, the question remains as to whether a situation of occupation necessarily implies a sufficient degree of territorial control for these, and other, control-related obligations being discussed in the present section of this chapter to become applicable. In their authoritative Commentary on the Convention, Krutzsch et al. acknowledge that security and other considerations may make it impractical or undesirable to divulge some of the detail normally included in a declaration, but “that does not release the State Party from the obligation to declare. At a minimum, the fact that chemical weapons had been discovered should have been declared”. Possible options that could have been considered are then noted. Where other obligations are concerned, Krutzsch et al. point e.g. to the Article IV(10) requirement, inter alia, that the “highest priority be assigned to ensuring the safety of people during transportation, sampling, storage, and destruction of chemical weapons… It is therefore entirely reasonable to conclude that the obligations with regard to the submission of destruction plans and the conduct of on-site verification could not be implemented, while at the same time there was an urgent need to destroy the discovered weapons.”27 It would therefore seem that when chemical weapons are discovered in the course of hostilities on the territory of a non-party State, subject to considerations of safety and security, as much information as possible should be passed as early as possible to the Executive Council of the OPCW. Where destruction of chemical weapons takes place in such circumstances, it seems that reasonable efforts should be made, again subject to safety and security aspects, to retain relevant information. All of this suggests that if a State is in control of territory in a situation which renders the implementation of some of the control-based obligations in the treaty impractical, those obligations should be interpreted in light of the relevant impediments, but the treaty obligations that are feasible must be complied with and as much associated information as possible should be made available to the OPCW. For the purposes of this sub-section, it should in addition be noted that: Article VI(2) links the obligation to adopt measures necessary to ensure that toxic chemicals are only developed, produced etc. for purposes not prohibited under

26

Report in Krutzsch et al. 2014, p. 124, footnote 14. Krutzsch et al. 2014, p. 125.

27

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the CWC inter alia to places under a State party’s control and applies the Verification Annex provisions to toxic chemicals, precursors and facilities in such places;28 and Article VII(1)(b) of the Convention requires a State Party not to “permit in any place under its control any activity prohibited to a State Party under this Convention”. Finally, and helpfully, Krutzsch et al. indicate that concepts of territory, jurisdiction and control as used here represent a broad spectrum including “mere de facto control”. The effect of the combined language as used in Article IX(8) seems therefore to be to “cover [ ] cases involving two different States Parties, i.e. facilities owned by or otherwise linked to one State Party, but located in another State Party.”29 The statements made by States Party on ratification of the Convention do not either clarify or affect the interpretation of the word ‘control’ as it applies in the context of the CWC.

18.2.3 Ottawa Convention As is well known, the potential for anti-personnel landmines to have indiscriminate effects and the large numbers of resulting civilian casualties inspired a campaign for their prohibition in which numerous non-governmental organisations, the ICRC, certain States and celebrities including Diana, Princess of Wales participated. A diplomatic conference was held in Oslo and culminated in the adoption of a Convention known as the Ottawa Convention.30 The Preamble to that Convention discloses that putting to an end the suffering and casualties caused by anti-personnel landmines (APLs), particularly to civilians including children, is the chief purpose of the Convention,31 such that its provisions should be interpreted in that context. The Convention prohibits transfer of APLs in most circumstances, and defines transfer so as to involve the physical movement of APLs into or from national territory and the transfer of title to and control over them. The stockpile destruction obligation under Article 4 applies to APLs that a State party “owns or possesses, or that are under its jurisdiction or control”.32 By contrast, the obligations to safeguard and destroy APLs in mined areas arises where the mined area is under the 28

CWC, Article VI(2). Krutzsch et al. 2014, p. 311. 30 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, opened for signature 18 September 1997, 2056 UNTS 211 (entered into force 1 March 1999) (Ottawa Convention). 31 Ottawa Convention, Preamble, para 1. 32 Note that whereas under the CWC the idea of control related to the place where the chemical weapons are, under this provision of the Ottawa Convention, the concept relates to the weapons themselves. 29

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“jurisdiction or control” of the State party. The position of the UK is that it has neither jurisdiction nor control over APL stockpiled by the US on UK territory.33 Stockpile reports are required for APLs, i.e. the actual munitions, that are owned or possessed by a State party or that are subject to its jurisdiction or control34 while reporting of mined areas, i.e. areas that are dangerous due to the presence or suspected presence of mines, is limited to those areas under a State party’s jurisdiction or control.35 This is logical given the application of the obligations in Articles 4 and 5 respectively to munitions and to geographical locations. Article 9 deals with national implementation measures and requires that States party “take all appropriate legal, administrative and other measures, including the imposition of penal sanctions, to prevent and suppress any activity prohibited to a State Party under the[e] Convention undertaken by persons or on territory under its jurisdiction or control.” Informed commentators note that a State at a minimum has jurisdiction where conduct takes place or has harmful effects within its territorial boundaries, including relevant coastal waters and seabed areas. Those commentators go on to suggest that the term control, as used here, “suggests extension of this authority to conduct that takes place at embassies, military installations, and other locations within another nation’s jurisdiction, including occupied territory, but which are nevertheless under a State Party’s legal control.”36 Stuart Maslen then addresses the specific issue of States Party gaining control of areas outside their national territory on which APL stockpiles are located. Does Article 4 of the Convention require destruction of the stockpiles? Citing a dictionary definition to the effect that control consists of the act or power of directing or regulating, command or regulating influence, and having referred to an Australian statement on ratification (discussed below), Maslen concludes that physical possession may suffice to invoke Article 4 obligations.37 It would seem to the present author that the existence or otherwise of a situation of control either over territory or over a stockpile is ultimately going to be a question of fact. Acknowledging that if a situation of occupation is established, this will presuppose sufficient control of the occupied territory by the Occupying Power, mere presence of an armed force in a particular location during the conduct of ongoing military operations will not necessarily imply the existence of a control relationship either with specific weapons or territory. Maslen deals with the matter with suitable caution. Recognising that there are significantly different types of UN peace operations, mandates and command structures, he suggests, correctly in the present author’s view, that there is no obligation to clear APL in an unsafe

33 Maslen 2004, p. 151, citing United Kingdom Permanent Representation to the Conference on Disarmament, APL Mine Stockpiles and their Destruction: A Progress Report, Landmine Monitor Fact Sheet (11 May 2001), cited in ICBL, Landmine Monitor Report 2002, 22. 34 Ottawa Convention, Article 7(1)(b). 35 Ottawa Convention, Article 7(1)(c). 36 Maslen 2004, pp. 252–253. 37 Maslen 2004, p. 153.

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environment or a temporary operational context in which there is no control. Equally sensibly, he opines that the position would be different if a national contingent is operating for an extended period under a broad mandate and has de facto control of territory in the absence of an effective central government with such control of all of its territory.38 This all suggests that the factual situation on the ground and the legal circumstances of the deployment will be of vital importance in determining whether a situation of ‘control’ can properly be said to exist. Where statements on ratification are concerned, it is worthy of note that Argentina drew attention to what it described as the illegal occupation by the UK of the Malvinas such as renders it effectively prevented from having access to the mines emplaced there with a view to fulfilling obligations under the Convention. Clearly, in this sense Argentina lacks control.39 Australia made a statement that jurisdiction or control in Articles 4, 5(1) and (2) and 7(1)(b) and (c) “is intended to mean within the sovereign territory of a State Party or over which it exercises legal responsibility by virtue of a United Nations mandate or arrangement with another State and the ownership or physical possession of anti-personnel mines, but does not include the temporary occupation of, or presence on, foreign territory where anti-personnel mines have been laid by other States or persons.”40 Absent legal responsibility conferred specifically by the mandate, one can safely conclude that in the Australian view control could not be based on temporary occupation or presence of a State Party’s armed forces on the territory of another State.

18.2.4 Explosive Remnants of War In 2003 the States Party to the Conventional Weapons Convention adopted a Protocol addressing the arrangements to be made for the clearance of explosive remnants of war, including abandoned explosive remnants.41 Abandoned explosive ordnance is defined as being no longer under the control of the Party that left it behind or dumped it.42 This would suggest that for the purposes of this provision, control is a physical thing, in the sense that control will be lost e.g. if a Party to the conflict is compelled to abandon explosive munitions when vacating a location. Article 3 of the Protocol makes it clear that a State Party has the responsibilities for clearance, removal and destruction of explosive remnants of war, as set forth in 38

Maslen 2004, p. 167. Statement by Argentina on ratification on 14 September 1999; source www.icrc.org. 40 Declaration by Australia on ratification of the Convention on 14 January 1999; source www.icrc. org. 41 Protocol V on Explosive Remnants of War to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, opened for signature 28 November 2003, 2399 UNTS 100 (entered into force 12 November 2006) (Protocol V). 42 Protocol V, Article 2(3). 39

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the Article, in relation to explosive remnants that are “in territory under its control”. The obligations in Article 3 will provide the clearest available indication of what control means in this context. Paragraph 2 of the Article refers to obligations to mark and clear, remove or destroy explosive remnants in such territory. Clearly, a considerable degree of relatively secure control will be required if such activities are to be undertaken with suitable security for the personnel undertaking such dangerous activities. The obligation is caveated with the words ‘as soon as feasible’ which might imply that control does not necessarily presuppose the practical ability to undertake all such activities, or to undertake them with absolute security. Nevertheless, there will be a clear link between notions of control and the practical ability to undertake most at least of the mentioned activities. In a further provision of Article 3, there is the following requirement: After the cessation of active hostilities and as soon as feasible, each High Contracting Party and party to an armed conflict shall take the following measures in affected territories under its control, to reduce the risks posed by explosive remnants of war: (a) survey and assess the threat posed by explosive remnants of war; (b) assess and prioritise needs and practicability in terms of marking and clearance, removal or destruction; (c) mark and clear, remove or destroy explosive remnants of war; (d) take steps to mobilise resources to carry out these activities.43

Surveying and assessing threats, assessing and prioritizing necessary action, and mobilizing the resources required to enable such activities will, in the present author’s view, presuppose an even greater level of secure control of the relevant territory. Clearly, it will readily be noted from this discussion that concepts of control lie at the core of these important provisions in the Protocol. Moreover, although the ‘as soon as feasible’ caveat again appears, the detailed nature of the listed activities and the kind of situation that must exist in the relevant territory for those activities to be implemented at all make it clear that a reasonably high degree of territorial control is contemplated. Articles 4, 5 and 6 of the Protocol deal respectively with: the recording, retention and transmission to Parties in control of territory of information to facilitate clearance of explosive remnants; the obligation to take feasible precautions; and the protection of humanitarian missions and organisations. The nature of these obligations does not materially assist us in assessing the degree and security of the control required for such provisions to apply. In all likelihood, control is intended to have the same meaning throughout the Protocol but that is not made clear in the text. On ratification of the Protocol on 7 October 2011 Argentina made a similar statement in relation to the Malvinas to that discussed above in respect of the Ottawa Convention.

43

Protocol V, Article 3(3).

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18.2.5 Cluster Munitions Convention The Cluster Munitions Convention has two and a half pages of preambular paragraphs.44 The core purposes of the Convention can be neatly summarized as the prohibition of all relevant activities associated with the cluster munitions defined in Article 2 and the prevention of the casualties and suffering caused by unexploded bomblets. Provisions in the text should therefore be interpreted in good faith and in line with the accomplishment of these objectives. One of the prohibited activities is transfer of cluster munitions, a notion that is defined as including “transfer of title to and control over cluster munitions”. At face value, the ‘and’ in the quoted text would seem to be conjunctive, in the sense that it is the transfer of both title and control that would inter alia amount to effective transfer for the purposes of the treaty. The storage and stockpile destruction obligation in the treaty is applied to cluster munitions under a State Party’s “jurisdiction and control”. The main obligations are to separate out cluster munitions, to destroy them or to ensure their destruction.45 The obligation to clear and destroy cluster munition remnants is also applicable to cluster munition contaminated areas under a State Party’s “jurisdiction and control”, so the only point of difference here is that it is the area as opposed to the munitions that must be under jurisdiction and control of the relevant State. Applying the same approach as that adopted in relation to the treaties discussed earlier, it is instructive to note the actions specified in this part of the treaty. These include: surveying, recording and assessing the threat posed by such remnants; assessing and prioritizing the need in relation to marking, protection of civilians, clearance and destruction; taking all feasible steps to ensure that all cluster munition contaminated areas under a State’s jurisdiction or control are perimeter marked, monitored and protected to ensure effective exclusion of civilians; clearing and destroying all cluster munition remnants in areas under a State’s jurisdiction or control; and conducting cluster munition risk education. It must be emphasized that these obligations arise where a State Party has either jurisdiction or control over the relevant area. It is clear that a relatively high and secure degree of control will be required to enable these obligations to be satisfactorily complied with, and this will of necessity inform the interpretation of the word ‘control’ as used in this provision.46 State obligations with regard to victim assistance47 and the requirement to take national measures to implement the obligations in the Convention48 are both expressed in terms of areas or territory under a State’s jurisdiction or control. 44

Convention on Cluster Munitions, opened for signature 30 May 2008, 2688 UNTS 39 (entered into force 1 August 2010) (CMC). 45 Convention on Cluster Munitions, Article 3(1) and (2). 46 Convention on Cluster Munitions, Article 4(2). 47 Convention on Cluster Munitions, Article 5. 48 Convention on Cluster Munitions, Article 9.

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Colombia, in a statement made on ratification, noted that at that time an internal armed conflict was under way, that there may on national territory be cluster munitions or cluster munition remnants of the location of which Colombia has neither knowledge nor suspicion, and that for the purposes of Article 4 it interpreted ‘cluster munition remnants’ to refer to cluster munition remnants “whose location is known or suspected by the State”. Perhaps this raises a point of general application, namely that if a State does not have sufficient control to be aware of the existence of relevant munitions or remnants, or to be aware of the location of such munitions or remnants, that State cannot be said to have sufficient control for the purposes of obligations the proper discharge of which presupposes such awareness.

18.2.6 Obligations of Peace Forces In the context of peace operations, Stuart Maslen cites APL destruction operations by French troops in Afghanistan, noting that it cannot be shown whether this was linked to France’s appreciation of its obligations under the Convention; he observes “[i]t can be argued that where a State Party [presumably meaning a State Party’s armed forces] is acting under the command of an international organization, such as the UN or NATO, ‘control’ for the purposes of Article 4 cannot be directly imputed to the State.”49 Canada deals with these matters in its Law of Armed Conflict Manual where the position is expressed as follows: Canada’s obligation to clear minefields after the cessation of hostilities will vary depending upon circumstances such as the degree of jurisdiction or control exercised over the territory, the terms of any peace accord and any other bilateral or multilateral arrangement. There is no legal obligation to clear mines simply because Canada is conducting operations in an Area of Responsibility (AOR) during peace support or any other operation.50

This linkage with the terms of the mandate is also reflected in rule 18.3 of the recently published Leuven Manual on the International Law relating to Peace Operations as follows: 18.3 If this is required by a Peace Operation’s mandate, a Peace Force shall make feasible efforts to clear, remove, or destroy anti-personnel mines, cluster munition remnants and other explosive remnants of war in affected areas under its control. If a Troop Contributing Country is bound by applicable treaty obligations in this regard, it must comply with them.51

49 Maslen 2004, p. 153. The point is then acknowledged that the mission mandate may incorporate stockpile destruction. 50 Office of the Judge Advocate General (2001) Joint Doctrine Manual, The Law of Armed Conflict at the Operational and Tactical Levels B-GJ-005-104/FP-021, para 511(7). 51 Gill and Fleck 2017, p. 262.

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The associated Commentary cites Article 3(2) of CCW Protocol V, Article 5(1) of the Ottawa Convention and Article 4(1) of the Cluster Munition Convention. By way of clarification, it is explained that where “the requirements for application of these treaty obligations are met during a State’s involvement in a Peace Operation, the obligations must be observed by the State, even if such activities are not addressed in the mandate.” Highly significantly, the Commentary goes on to point out that “applicability of these treaties to Peace Operations is a contentious issue that has not been authoritatively resolved.” However, the Manual expresses the view that “current operational practice does not support a claim that legal obligations to this effect exist during Peace Operations.” Accordingly, while it can safely be assumed that belligerent occupation will usually give rise to such obligations, a similar assumption cannot be made in the context of Peace Operations. Much will depend on the particular facts and circumstances, and on whether a specific obligation is set forth in the mandate for the Peace Operation. Absent reference to such an obligation in the mandate, prime responsibility for demining and removal of explosive remnants of war will rest with the territorial State.52 The treaty interpretation of control that has emerged from this discussion does not appear to be either obscure or ambiguous, nor is the result manifestly absurd or unreasonable. Recourse does not therefore have to be made to supplementary interpretation under VCLT, Article 32. Whether control is being exercised of a weapon at the time of its employment and, if so, by whom has come to be an important issue in two distinct contexts. These will now be considered in turn. The first concerns the legal consequences that arise when control of a weapon is lost. The second relates to discussions, taking place under the aegis of the Conventional Weapons Convention, of the issues associated with what are referred to as Lethal Autonomous Weapon Systems.

18.3

Loss of Control of a Weapon

It is foreseeable that computer-controlled weapon systems will in the future be the object of hostile cyber interference. Arguably, once the prospect of cyber interference by an adverse party becomes evident, legally prescribed precautionary measures, such as the obligation to take ‘constant care’,53 imply that everything feasible must be done to seek to ensure those systems remain robust against the kinds of known cyber interference that would render the use of such weapon

52

Gill and Fleck 2017, Commentary to Rule 18.3, paras 1 to 3, and Rule 18.1. Article 57(1) of 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) (AP I), provides as follows: “In the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects”.

53

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systems indiscriminate.54 This is one of those contexts in which military requirements for weapon reliability will coincide with the humanitarian obligation not to undertake indiscriminate attacks.55 It may be desirable, but not necessarily legally required, for weapon systems that employ computer control technologies to be so designed as to detect, and then disclose to operators and/or to commanders, when cyber interference occurs or the performance or reliability of their control function is degraded, particularly if that degradation renders indiscriminate attacks likely. However, sophisticated cyber interference techniques may mask the fact, extent or consequences of such interference. The present author has, elsewhere,56 considered the implications of situations in which a hacker is able to erode the control of computer-aided weapon systems. This might, for example, involve the transmission of false target co-ordinates, the delivery of a distorted sensor feed to the weapon operator or directly to an automated weapon or the corruption of stored targeting data. In each case, the result might be the targeting of an object that the system and/or the operator are led to believe is a military objective but which, in fact, is not. Detection of such cyber intrusions and interference may be difficult, but if such detection becomes feasible the fitting of the appropriate capability may also become a required precautionary measure. Detection and counteracting of such intrusion and interference operations may well become essential to ensuring that the mission complies with targeting law and, indeed, achieves its desired military purpose. After all, the exercise of proper control over the use of force in armed conflict is a long-standing requirement in both legal and operational terms. However, it must always be appreciated that acts of cyber interference that erode the utility of the enemy’s targeting system are lawful operations against military objectives. Cyber deception operations that distort the enemy’s picture of the battle-space do not as such invite his confidence as to protection under the law and do not therefore amount to perfidy. Rather, they seek to erode his confidence as to, say, the control he is able to exercise over his own weapon systems,57 which is a classic example of a lawful ruse.58 It is therefore clear that current law would only prohibit such a cyber deception operation if its explicit purpose were to be to cause the deceived party to the conflict to attack civilians, civilian objects or persons or objects entitled to specific protection and if it directly caused that result. Cyber interference that is limited to eroding the control of the adversary over his own weapon systems, for example, or that merely degrades the adversary’s targeting

54

Note that indiscriminate attacks are prohibited; AP I, Article 51(4). Consider: Thurnher 2018. 56 This part of the present sub-section draws, in part, on material published in: Boothby 2018, Chapter 6. 57 The notion of perfidy under API, Article 37(1) requires, inter alia, the deception of the enemy as to protected status under the law of armed conflict. 58 Lawful ruses of war are defined in API, Article 37(2). 55

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processes e.g. by causing those weapons or targeting processes to malfunction would not breach current law. We can therefore identify some suggested design requirements for weapon systems the control of which is dependent on or materially aided by computer systems. These requirements might usefully prioritise: a. robustness against intrusion or interference; b. the detection and communication to the operator and/or to those commanding the mission of any cyber intrusion or interference that does take place; c. communication to the operator and/or to those commanding the mission of the effect of any cyber intrusion or interference on the ability to exercise control over the system or on the accuracy of the operational picture that forms the basis of attack decisions, and d. making the operator or those commanding the mission aware of the operational effect, if any, of such intrusion or interference. In addition and again with specific reference to issues of control, it would be helpful, perhaps: a. for those commanding the mission to be able if necessary to terminate the mission, or b. for them to be able to divert the weapon system elsewhere and/or to re-task it mid-mission, or c. for them to be able to alter the weapon system’s method of operation so that any further action can only take place if the operator is exercising control, or d. for the weapon system to be so configured that it will take such action, or e. for the system to have a suitable combination of such facilities. If a hacker takes remote control of a weapon system, legal responsibility for subsequent wrongful use of the system and of its munitions will transfer to the persons who have taken and retain control and to a State if those taking control are organs of that State or if they are acting under direction and control exercised by that State with knowledge of the circumstances.59 This all suggests that commanders and controllers of weapon systems will wish to know, and to be able to show, if and when loss of control takes place. Moreover, hackers have a duty to ensure that their subsequent use against the enemy of a weapon system of which they have taken control complies with distinction, discrimination and proportionality and that required precautions in attack are taken. Where control of the weapon system is not taken by the hacker, but his actions nevertheless interfere with the weapon’s operation, the hacker is unlikely to be regarded as the attacker, but will have legal obligations to take constant care and to take feasible precautions against the effects of attacks.60

59

International Law Commission (2001), Article 17. These precautions arise under Articles 57(1) and 58 of API.

60

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Where the extent of cyber interference with a weapon system is limited to preventing the weapon from attacking its intended target without actually directing the weapon towards a target of the hacker’s choosing, the cyber hacker would seem to lack the required degree of control of the weapon to be regarded as the attacker61 so if the consequence is that the weapon impacts on civilians or civilian objects he should not thereby be deemed to have breached Article 51(2) or 52(1) of API. This discussion has involved some fine distinctions based on the intent of the cyber hacker, an intent which it is likely to be difficult to establish.

18.4

Meaningful Human Control

Concerns about the introduction of autonomous technology into the design of weapon systems have led to discussions at the United Nations in Geneva during a series of meetings arranged under the aegis of the Conventional Weapons Convention. During a meeting in 2016, there were wide-ranging and intensive discussions in which it was noted that no fully autonomous weapon systems currently exist.62 ‘Meaningful human control’ and ‘appropriate human judgment’ were mentioned as being possible requirements on the basis that by insisting on the existence of meaningful human control of weapon systems, concerns associated with autonomous weapon technologies might be addressed. When considering what form meaningful human control might take, the very numerous ways in which human beings are already closely involved in the acquisition and use of computer-aided and other weapon systems must of course be borne in mind. Procurement officials are responsible for the decision to procure these new weapons and engineers and scientists test and evaluate the performance of the new weapon systems. Other engineers, computer programmers, technicians and operators manage and operate computer-aided weapon systems as is the case with existing, less technically complex weapon systems. Lawyers and officials determine the lawfulness of the new weapon systems; planners and commanders must ensure they are actually used lawfully e.g. by seeking to ensure that the orders as to the timing, location, purpose and conduct of the mission do not give rise to attacks that breach targeting law;63 and technicians and other personnel prepare

61

Such an event would not at any event amount to an attack if, from the perspective of the hacker, it does not amount to an act of violence against the adverse party. 62 Chairperson of the Informal Meeting of Experts 2016, para 13. 63 The US view is that it is for commanders to authorize the use of lethal force in accordance with ROE and IHL on the basis of the commander’s understanding of the tactical situation, on the basis of the weapon systems’ performance informed by testing and operational experience, and on the basis of the employment of tactics, techniques and procedures for that weapon. The US notes that commanders will remain accountable for autonomous weapon system use, considers that States will not field weapons they cannot control as such weapons are not militarily useful, and focuses on ‘appropriate levels of human judgment over the use of force’. The US rejects the suggestion of

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accurate mission- and target-specific data and generally prepare the weapon system for its task. These are just some of the interactions between human beings and modern weapon systems. The interesting question to consider is which, if any, of the listed activities individually or taken together might be regarded as ‘meaningful human control’. Put another way, does meaningful human control necessarily mean that a human being must have ‘hands on’ control of the weapon system at the stage when the munition is fired and/or directed to a chosen target? Applying the Oxford Dictionary definition cited earlier, one might conclude that the more that the processes listed in the immediately preceding sub-sections ‘influence the course of events’, ‘regulate what the machine does’, or direct or manage the relevant activity, the more likely it will be that the relevant human activities will be seen to represent ‘meaningful human control’. Key in that regard will be the extent to which the human involvement as a whole has the effect of constraining the range of possible decisions and actions that the weapon system is permitted to perform. Thilo Marauhn has explained the emergence of ‘meaningful human control’ as a political notion and has suggested that the focus in the CCW discussion of LAWS should be on the established rules of IHL and, perhaps, of arms control.64 He recognises that “[t]he concept of ‘meaningful human control’ facilitates implementation of the law as it stands but argues persuasively that it “should not become part of the law”.65 Under the auspices of the CCW further meetings of the Group of Governmental Experts have taken place in Geneva in 2017, 2018 and in 2019.66

18.5

Conclusions

Perhaps the first and most obvious conclusion to draw from this discussion is that the meaning to be given to control when that word is used in the field of weapons law must inevitably depend on the precise context. Where ‘arms control’ in general “a new requirement that machines make legal determinations” and considers that different weapon systems and operational contexts can require different levels of human judgment with some functions being better done by computers and others being better done by human beings; CCW Group of Governmental Experts on Lethal Autonomous Weapons Systems, US Intervention on Appropriate Levels of Human Judgment over the Use of Force, Geneva, 15 November 2016. Georg Heppner and Ruediger Dillmann suggest that “in safety critical applications the human will always have to make the final decision”; Heppner and Gillmann 2018. 64 Marauhn 2018, pp. 207, 210–212. 65 Marauhn 2018, p. 217. There are important ethical concerns over the erosion of human agency and intent in decisions to kill, injure and destroy and as to loss of responsibility and of human dignity. The resulting vital ethical requirement for human control is powerfully advocated in: Davison 2018. For a more sceptical analysis of the claimed linkage between notions of human dignity and concerns arising from autonomous weapon systems, see: Pop 2018. 66 For a discussion of some aspects of the 2017 meeting see: Stürchler and Siegrist 2017.

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is concerned, the control aspect seems to involve prohibitions or restrictions of the use of certain kinds of weapons that are considered to pose particular challenges to international security. In the specific arms control treaties that we have examined, it is noticeable that the word control is often used in conjunction with other, distinct but somewhat related concepts, such as jurisdiction. Where obligations are addressed to States with ownership, possession, jurisdiction or control, the effect is to address virtually all relationships with the weapons or substances concerned. It seems to be sensible to conclude that mere presence of armed forces in a relevant location will not, per se, necessarily imply a sufficient degree of control for mine and weapon clearance and related obligations to take effect. Peace forces may be specifically mandated to clear ordnance representing a danger, for example to civilians returning to a location in which hostilities have taken place. In such circumstances, the legal obligation to clear will be based on the terms of the mandate, and not specifically on notions of control. As a general proposition, it would seem unlikely that peacekeeping forces will usually have a sufficient degree of control for them to incur an obligation on that basis for example to clear munitions or substances absent such specific references in the mandate. Peacekeeping forces will, however, frequently take appropriate action to seek to promote their own security and that of the civilian population from threats posed by remnants of war, but absent specific provision in the mandate, they may well not be doing so out of a legal obligation. Where presence of armed forces in territory belonging to another State has taken on the character of a belligerent occupation, it can persuasively be argued that the obligation exists to take relevant clearance, removal and destruction action. The responsibility to take action, including marking, safeguarding, removal and destruction of the relevant weapons, substances and remnants will rest with the State or States that, taken together, constitute the Occupying Powers. Those obligations will be as set forth in the treaties to which the particular State is party, and have been discussed in the preceding sections of this chapter. While occupation will usually give rise to such obligations, much will inevitably depend, in the end, on the degree of control that the Occupying Power in practice has. More numerous and extensive measures are likely to be feasible in situations of settled, relatively peaceful occupation than in circumstances in which, although the requirements for occupation are met, the security of the Occupying Power’s control is frequently being challenged by violent acts. As science enables the development of increasingly sophisticated computer-enabled weapon systems, attention has centred on the desirability of meaningful human control. Technological advance may also enable cyber interference with the computer control systems of some advanced systems, giving rise to challenging legal questions as to where responsibility lies for the ensuing uses of force, questions some of which this chapter has sought to address. Where ‘control’ is concerned, we can perhaps conclude that ensuring that there is human control over weapon systems is a priority, but that this priority is, ironically, being expressed at a time when that very control may be challenged, inter alia, by cyber

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interference with weapon control systems. In the future, it may be significantly more difficult to determine who was really in control of a weapon system when particular events occur. In short, things may not always actually be as they seem.

References Articles, Books and Other Documents Boothby WH (2018) New Technologies and the Law in War and Peace. Cambridge University Press, Cambridge Chairperson of the Informal Meeting of Experts (2016) Report of the 2016 Informal Meeting of Experts on Lethal Autonomous Weapon Systems. http://www.unog.ch/80256EDD006B8954/ (httpAssets)/DDC13B243BA863E6C1257FDB00380A88/$file/ReportLAWS_2016_ AdvancedVersion.pdf. Accessed 20 March 2020 Concise Oxford English Dictionary (2006) Concise Oxford English Dictionary, 11th edn. Oxford University Press, Oxford Davison N (2018) Autonomous weapon systems: An ethical basis for human control? ICRC Humanitarian Law and Policy blog, 3 April 2018 Den Dekker G (2004) The Effectiveness of International Supervision in Arms Control Law. Journal of Conflict & Security Law, Vol. 9, No. 3, Oxford University Press, Oxford, pp 315– 330 Gill T, Fleck D (eds) (2017) Leuven Manual on the International Law Applicable to Peace Operations. Cambridge University Press, Cambridge Heppner G, Gillmann R (2018) Autonomy of Mobile Robots. In: Heintschel von Heinegg W (ed) Dehumanization of Warfare, 1st edn. Springer, Cham, pp 77–98 International Law Commission (2001) Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries. https://legal.un.org/ilc/texts/instruments/english/ commentaries/9_6_2001.pdf Accessed 20 March 2020 Krutzsch W, Myjer E, Trapp R (2014) The Chemical Weapons Convention: A Commentary. Oxford University Press, Oxford Marauhn T (2018) Meaningful Human Control – and the Politics of International Law. In: Heintschel von Heinegg W (ed) Dehumanization of Warfare, 1st edn. Springer, Cham, pp 207– 218 Maslen S (2004) Commentaries on Arms Control Treaties, Volume 1: The Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-Personnel Mines and on their Destruction. Oxford University Press, Oxford Office of the Judge Advocate General (2001) Joint Doctrine Manual, The Law of Armed Conflict at the Operational and Tactical Levels B-GJ-005–104/FP-021 Parks HW (2005) Conventional Weapons and Weapon Reviews. Yearbook of International Humanitarian Law 8:55–142 Pop A (2018) Autonomous weapon systems: A threat to human dignity. ICRC Humanitarian Law and Policy Blog, 10 April 2018 Review Conference of the States Parties to the Biological Weapons Convention, Final Document of the Third Review Conference of the States Parties to the Biological Weapons Convention (1991), available through https://www.unog.ch/80256EE600585943/(httpPages)/92CFF2CB73D4806DC 12572BC00319612?OpenDocument. Accessed 20 March 2020

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Review Conference of the States Parties to the Biological Weapons Convention, Final Document of the Fourth Review Conference of the States Parties to the Biological Weapons Convention (1996), available through https://www.unog.ch/80256EE600585943/(httpPages)/92CFF2CB73 D4806DC12572BC00319612?OpenDocument. Accessed 20 March 2020 Review Conference of the States Parties to the Biological Weapons Convention, Final Document of the Sixth Review Conference of the States Parties to the Biological Weapons Convention (2006) available through https://www.unog.ch/80256EE600585943/(httpPages)/92CFF2CB73 D4806DC12572BC00319612?OpenDocument. Accessed 20 March 2020 Roberts A, Guelff R (2000) Documents on the Laws of War, 3rd edn. Oxford University Press, Oxford Stürchler N, Siegrist M (2017) A ‘Compliance-Based’ Approach to Autonomous Weapon Systems. https://www.ejiltalk.org/a-compliance-based-approach-to-autonomous-weapon-systems/. Accessed 20 March 2020 Thurnher JS (2018) Feasible Precautions in Attack and Autonomous Weapons. In: Heintschel von Heinegg W (ed) Dehumanization of Warfare, 1st edn. Springer, Cham, pp 99–117 United Kingdom, Permanent Representation to the Conference on Disarmament, APL Mine Stockpiles and their Destruction: A Progress Report, Landmine Monitor Fact Sheet (11 May 2001), ICBL, Landmine Monitor Report 2002, 22 United Kingdom, Ministry of Defence (2004) The Manual of the Law of Armed Conflict, Oxford University Press, Oxford United States, General Counsel of the Department of Defense (2015) Department of Defense Law of War Manual

Treaties Convention on Cluster Munitions, opened for signature 30 May 2008, 2688 UNTS 39 (entered into force 1 August 2010) Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, opened for signature 3 September 1992, 1975 UNTS 45 (entered into force 29 April 1997) Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, opened for signature 10 April 1972, 1015 UNTS 163 (entered into force 26 March 1975) Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, opened for signature 18 September 1997, 2056 UNTS 211 (entered into force 1 March 1999) (Ottawa Convention) Convention (IV) respecting the Laws and Customs of War on Land, and its annex: Regulations concerning the Law and Customs of War on Land, opened for signature 18 October, 1907, 539 UNTS (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, 1125 UNTS 3 (entered into force 7 December 1978) Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which may be Deemed to be Excessively Injurious or To Have Indiscriminate Effects, opened for signature 10 October 1980, 1342 UNTS 137 (entered into force 2 December 1983)

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Protocol V on Explosive Remnants of War to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, opened for signature 28 November 2003, 2399 UNTS 100 (entered into force 12 November 2006) Vienna Convention on the Law of Treaties, opened for signature 23 May 1969. 1155 UNTS 331 (entered into force 27 January 1980)

Air Commodore (Ret.) Dr. William Boothby served in the Royal Air Force Legal Branch, retiring as Deputy Director of Legal Services in July 2011. He is the author of Weapons and the Law of Armed Conflict, The Law of Targeting and Conflict Law and contributed—together with Terry Gill—to expert discussions on the notion of Direct Participation in Hostilities, to the HPCR Manual of the Law of Air and Missile Warfare, the 2013 Tallinn Manual on the Law of Cyber Warfare and the Leuven Manual on Peace Operations Law.

Chapter 19

Control Through ROE in Military Operations: Autonomous Weapons and Cyber Operations as Reasons to Change the Classic ROE Concept? J. F. R. Boddens Hosang

Contents 19.1 Introduction...................................................................................................................... 394 19.2 The Classic ROE Concept .............................................................................................. 396 19.2.1 Role of ROE in Controlling the Use of Force .................................................. 397 19.2.2 Components of ROE .......................................................................................... 398 19.2.3 Classic Approach to ROE Implementation........................................................ 400 19.3 Autonomous Weapons and ROE .................................................................................... 403 19.3.1 Autonomous Weapons: A Brief Overview ........................................................ 403 19.3.2 ROE for Autonomous Weapons ........................................................................ 406 19.4 Cyber Operations and ROE ............................................................................................ 409 19.4.1 Cyber as Military Use of Force and Provocative Action.................................. 410 19.4.2 ROE for Cyber Operations................................................................................. 414 19.5 Conclusion: From “If It Isn’t Broken, Don’t Fix It” to Weapon-Specific Customization .................................................................................................................. 416 19.6 Personal Note................................................................................................................... 418 References .................................................................................................................................. 419

Abstract Rules of Engagement (ROE) are the classic tool for controlling the use of force, as well as other elements of military operations, in order to exercise control over the operation as a whole. However, many elements of the classic ROE concept and system are based on traditional methods and means of warfare and may not be readily applicable to emerging technologies, such as autonomous weapons and

J. F. R. Boddens Hosang is the Deputy Director of Legal Affairs of the Netherlands Ministry of Defence. This chapter was written in a personal capacity and does not necessarily reflect the official opinions of the Netherlands Ministry of Defence. J. F. R. Boddens Hosang (&) Netherlands Ministry of Defence, The Hague, The Netherlands e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2021 R. Bartels et al. (eds.), Military Operations and the Notion of Control Under International Law, https://doi.org/10.1007/978-94-6265-395-5_19

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cyber operations. This chapter argues that while the classic ROE concept can meet these challenges, some customization of the ROE system may eventually become necessary, moving from operator-oriented to weapon-specific ROE. Keywords Rules of Engagement

19.1


Cyber Operations
Autonomous Weapons

Introduction

There can be little doubt that Rules of Engagement (ROE) are the principal instrument for controlling the use of force in military operations, as well as instructing military forces as regards the required posture1 vis-à-vis other parties in the theatre of operations. After all, ROE delineate the authorizations to use force beyond (personal) self-defence,2 and may contain restrictions on otherwise lawful use of force in order to ensure that the operation achieves specific political or military objectives. They also regulate operational and tactical activities that may be considered provocative to other parties,3 through the use of political policy instructions within the ROE themselves. These principal purposes of ROE, often referred to at a more strategic or abstract level as “escalation dominance,”4 remain the core function of ROE and are so inherently central to the entire concept of ROE that they are unlikely to change as such. However, the classic ROE concept also contains elements related to the application and implementation of ROE that are being challenged by current developments in technology, or rather the weaponization of specific technological advances. While the term “battlespace awareness” is more related to, and the concept is essential in, warfare rather than scholarly writing, academic discourse can equally benefit from this concept as regards the delineation of the discussion at hand. Consequently, a few remarks are in order in this introduction to set out the scope of

“Posture” in the context of military operations refers to the overall intent of the deployment in terms of de-escalating the situation, maintaining the status quo, or taking the initiative. This concept can be expanded with peacetime deployment concepts such as “deterrence”, “defensive” or “showing resolve” as modifiers for force posture. 2 See, inter alia, NATO document MC 362/1, which defines ROE as directives to military forces (including individuals) that define the circumstances, conditions, degree, and manner in which force, or actions which might be construed as provocative, may be applied.” While this definition does not rule out the application of ROE to self-defence, the right of self-defence is considered inherent in most legal systems, or at least a personal decision of the person invoking self-defence, and ROE therefore generally contain a phrase emphasizing that nothing in the ROE limits or negates the inherent right of self-defence. The right of self-defence itself and the interaction between ROE and self-defence is, however, beyond the scope of this chapter. 3 NATO document MC 362/1. 4 Escalation dominance refers to the ability (or at least intent) to control the level of hostilities in a given area of operations. ROE are a principal tool in achieving escalation dominance, but obviously rely on available assets and force capabilities to achieve the desired effect. 1

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this chapter. Although inevitably written from a legal perspective, given both the nature of this book and the background of the present author, this chapter will focus less on the variable contents of ROE, meaning the actual limitations or permissions regarding the use of force in various legal and political contexts, and will instead focus more on ROE as an instrument of control as such, meaning the “tool” for translating legal (and other) concerns into simple and clear instructions for military forces. While there are many current challenges as regards interpretation and application of the international law of military operations, including such concepts as “hybrid warfare”5 and the increased focus on “humanitarian intervention” in the face of deadlocked decision making in the United Nations Security Council,6 those challenges are related to the contents of the ROE: which levels or types of military use of force can legally be authorized. However, those developments do not challenge the structure and instrumental aspects of ROE as such. Current technological developments do, however, challenge the ROE concept itself and two developments in particular illustrate this effect. Firstly, autonomous weapon systems have sparked extensive debates as regards their moral and ethical aspects, as well as their compatibility (or lack thereof) with international humanitarian law. While those discussions, when viewed from the standpoint of ROE development, also focus on the contents of ROE, the aspect of attribution of conduct and the aspect of actual control over the use of force are directly related to the conceptual model of ROE themselves. ROE, after all and as will be discussed below, principally address the operational commanders rather than individual soldiers. Moreover, ROE are intended to be concise and, although tailored specifically for the operation for which they are issued, are formulated sufficiently generically to allow application in every situation in the operation as a whole, subject to the evaluation of the situation (including the application of the principles of necessity and proportionality under the applicable paradigm)7 by the (on-scene) commander. Notwithstanding the rapid, almost exponential, rate at which artificial intelligence is developing, it is at present still questionable whether autonomous systems are capable of applying ROE as intended or, if the system is so capable, whether the

5

There is no agreed international definition of hybrid warfare, and the term can be used to describe a variety of strategies. A common element in those strategies is, however, the exertion of influence and achieving generally hostile goals in and against other States without resorting to overt use of military forces or “traditional” armed attacks or invasions. The annexation of Crimea by the Russian Federation is an example of hybrid warfare, combining (dis)information tactics and similar activities to influence local parties and subsequently deploying first covert and later overt troops to “stabilize” the situation without large-scale military engagements or use of force. See, inter alia, Chivvis 2017. 6 For example, in the debates on Syria, Security Council resolutions were vetoed 12 times since 2011; “Syria: Does Russia always use a veto at the UN Security Council?” BBC News, 16 April 2018, available online at https://www.bbc.com/news/world-43781954 (last accessed on 18 June 2018). 7 For a more detailed discussion of the effects of legal paradigms on ROE, see Boddens Hosang 2017.

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human developers of ROE are capable of developing ROE to suit the systems they are using. Secondly, cyber operations represent a current example of military use of originally civilian technology, expanding the concept of weaponization of civilian technology. However, two other aspects of cyber operations and cyber systems are more germane to the present discussion. Firstly, there is a significant difference between cyber activities and more “conventional” use of military (weapon) systems in terms of the required level of specificity in the authorizations and prohibitions. While ROE addressing “classic” platforms may be as simple as authorizing (or prohibiting) entry into the territorial waters of another State or authorizing (or prohibiting) unobserved indirect fire, such ROE are meaningless when used in regards to entering adversarial networks or attacking adversarial ICT systems generically. The classic ROE presuppose an inherent effect or (potential) consequence resulting from the regulated activities of classic platforms. Cyber systems and tools simply do not conform to that way of thinking, since in most cases (barring highly specific software engineered to cause predetermined effects in only one specific target system, utilizing characteristics unique to that system) the effects or potential consequences of cyber tools are determined by the operator and they can be used and tailored to suit almost any (or at least a vast variety of) desired outcome(s). Consequently, greater focus is needed on the type of activity and the type of specific outcome in order to regulate the use of cyber operations through ROE. In the following sections of this chapter, the classic ROE conceptual framework will first be examined in brief, in order to lay a foundation for the discussion that follows. Next, autonomous weapons and cyber operations will be examined in somewhat greater detail than the sections above, in order to identify the specific aspects of those two technologies which pose challenges for the classic ROE concept. Finally, the ROE conceptual framework will be re-examined in relation to those challenges in order to determine how the ROE concept can either be applied to overcome those challenges or be modified to accommodate these technological developments.

19.2

The Classic ROE Concept

The concept of ROE as an instrument to control the use of force in military operations is not a new concept,8 and neither is the conceptual model9 still applied to explain ROE today. While the following observations may therefore seem obvious to those who are familiar with ROE, it is nonetheless helpful to reiterate a few basic ROE aspects to facilitate the discussion to follow.

8

For an extensive description of the history of ROE, see inter alia: Martins 1994; Hall 1997. Roach 1983.

9

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19.2.1 Role of ROE in Controlling the Use of Force As was stated in the introduction, ROE regulate the use of force and actions which may be perceived as hostile or provocative in order to achieve (or attempt to achieve) escalation dominance in the area of operations. ROE do so either by authorizing certain actions or certain use of force, with the implicit understanding that anything not so authorized is therefore prohibited, or through prohibiting specific actions or use of force which would, in the applicable legal paradigm, be lawful. The former application of ROE (that is, ROE as the sole authorizations to use force) is current doctrine, while the latter (that is, ROE as prohibitions on otherwise lawful use of force) is now mostly a theoretical model only to be found in manuals and academic writing.10 Experience shows that the common understanding or practice among many military forces is that the ROE contain the sum total of authorized actions and authorized use of force, meaning that actions which may be lawful but which are not authorized by the ROE are simply assumed prohibited de facto even if not de jure.11 Notwithstanding the principal and primary role of ROE in controlling the use of force in a given operation, they are not the only instrument to do so and commonly serve their function in combination with other mechanisms. In many operations, targeting directives are issued which set forth guidance on permissible targets, indicating which objects or persons may (lawfully) be targeted.12 Additionally, tactical directives may be issued to set additional criteria or establish operation-specific requirements on specific methods of warfare or specific use of force.13 In this interaction between the various documents, the ROE establish whether force may be used at all, the targeting directive establishes against whom that force may be used, and the tactical directive delineates how that force may subsequently be applied. In other words, while the additional directives and related documents provide refinement in the instructions, the ROE are still the principal document for authorizing the use of force in a given operation. Consequently, the 10

MC 362/1, op. cit., see supra n 2, and the San Remo Handbook on Rules of Engagement 2009. Personal observations of the present author, including practical experience with the use of ROE in the Netherlands armed forces and discussions with military legal advisers from other States and NATO. 12 Bear in mind that “targeting” means that the object or person may be made a target but does not ipso facto mean that they may be subjected to the use of force. Targeting can also refer to identifying useful subjects for information operations, military diplomacy, etc. See also Ducheine et al. 2016. 13 For example, a tactical directive may prohibit indirect fire without forward observation, meaning long-range artillery can only provide fire support if the supported unit has eyes on target and can direct the artillery unit in its targeting. While this is not a legal requirement, provided the artillery unit applied the proper decisions and considerations as required by international humanitarian law, such a requirement may be instated for political or public relations reasons related to minimizing collateral damage beyond the requirements of international humanitarian law. Note that some ROE models do provide ROE for this purpose as well; see the San Remo Handbook on Rules of Engagement 2009, Series 27. 11

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ROE are also the principal document for “translating” the mandate for a given operation into clear and concise instructions, as well as functioning as a conduit between applicable law and the actual use of force.

19.2.2 Components of ROE There are various methods for drafting ROE, and while some methods may be more efficient than others, there is no “wrong” way of drafting ROE provided three key elements are taken into account. These three elements were identified long ago already,14 and refer to the military operational, legal, and political components of ROE. While the actual drafting of a ROE set can benefit from the use of various compendia or handbooks available for that purpose,15 they cannot replace any of the requisite components and each of the three components must be reflected in some way in the ROE drafting and approval process and, thus, in the ROE set itself.

19.2.2.1

Operational

Although the explanations on the legal and political components of ROE to be presented below may provide a different impression, ROE are principally a military operational document. This is not always reflected in the drafting process, although practices vary from State to State, nor necessarily in the ROE themselves, which often contain restrictions or limitations not desired by the military operators applying the ROE. The operational nature of the ROE is, however, reflected in their actual application by military forces and their dissemination in the military chain of command, and is reflected in their ultimate purpose. While the nature of that purpose may be political, the methods and means of achieving that purpose are inherently military operational in nature. ROE are, after all, military instructions issued to military personnel for the purpose of carrying out the operation in question.

19.2.2.2

Legal

The legal component of ROE can be divided into two influences on the contents of the ROE themselves. Firstly, all use of force must, of course, comply with applicable law. ROE are not laws and cannot create legal authorizations regarding the use of force; ROE merely “translate” applicable law, including international and

14

Roach 1983. For example, the MC 362/1 within NATO; the EU Use of Force Policy document; the UN Model Rules of Engagement; the San Remo Handbook on Rules of Engagement 2009.

15

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national law,16 into the rules for the military forces participating in the operation in question. Consequently, the ROE must be evaluated by legal advisers to ensure that the authorizations granted in the ROE are not more permissible than the law allows and that the ROE properly reflect the criteria and conditions placed on the use of force under applicable law.17 The second influence of, or interaction with, law as regards the ROE concerns their status under (military) criminal law. Since ROE can be considered standing orders,18 violating the ROE may be punishable under the military criminal or disciplinary law of the State in question as a separate, specific criminal act. Since the ROE reflect applicable law, a violation of the ROE may, of course, additionally result in other crimes, including war crimes or crimes such as murder or manslaughter, in which case the ROE may have probative value in terms of establishing knowledge or intent. Conversely, to the extent that superior orders provide a degree of exculpatory grounds under the legal system in question, ROE may provide a level of justification in a criminal law sense. However, since ROE contain authorizations rather than positively formulated orders to use force, meaning the actual use of force is subject to the decision by the operator in question to use force in the given circumstances, and given that the principles of necessity and proportionality must be met, the exculpatory effect of ROE (if any) will be dependent on the particular legal system of the State in question.

19.2.2.3

Political

Given the self-evident observation that all military operations are intended to achieve political goals, whether national or international, it should be no surprise that the political element in ROE is often the most influential element of the three elements discussed here. With the exception of large-scale armed conflicts on the scale of the two World Wars, practically all modern military operations, including armed conflicts of a more localized nature, are subject to delicate political compromises, whether of an international nature or due to the democratic system in the States in question. Such compromises may be related to containing the conflict and avoiding spill-over effects into neighbouring States, the balance of international (political) power in the area of operations, maintaining the support of the parliament

16

For States adhering to a monistic approach towards international law, authorizations granted by rules of international (customary or treaty) law may apply directly to the national armed forces of those States. States which adhere to a dualistic approach may need a national law to implement such authorizations. 17 The exception to this observation is the requirement to adhere to the principles of necessity and proportionality in all use of force (applying the definitions of those concepts in the applicable legal paradigm; op. cit. note 7). This requirement is not normally reflected in the text of the ROE themselves but is understood to apply to the ROE as a whole and to all use of force in a given operation. 18 International Society for Military Law and the Law of War 2006.

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or similar representational body of government, etc. Preserving popular support for the operation in question, whether represented by a body of government or more directly, is also complicated by direct media coverage, including social media updates from private individuals, which contributes to political interest not only in the results or goals of the military operation, but also in the actual conduct of the operation down to the operational or even tactical levels.19 Political influence on the ROE can be reflected in three ways. Firstly, the use of force authorized by the ROE must be in keeping with the overall political objectives of the operation and ROE sets are normally reviewed and approved by the relevant political command authority for the military forces in question. Secondly, in international operations in which the ROE are drafted, approved and promulgated in a multinational context, States may issue restrictions on the international ROE, either limiting or blocking specific rules within the ROE set for their national contingents. Such restrictions are referred to as caveats and may only restrict or clarify the ROE but may not create more permissive authorizations than the ROE themselves. Finally, ROE sets commonly contain a Political Policy Indicator (PPI), sometimes in combination with a Political Policy Statement (PPS). The PPI consists of a single code word, indicating whether the ROE should be read and applied with an overarching intent of de-escalating the situation, maintaining the status quo in the area of operations, or taking the initiative in the use of force and accepting possible escalation. In NATO and the EU these three options are reflected by the PPIs “X-ray” (de-escalation), “Yankee” (maintain status quo) and “Zulu” (take the initiative).20 The PPS, if used, consists of a brief paragraph in the introductory section of a ROE set referred to as the Commander’s Guidance, and explains the overall political objectives and the relevant political sensitivities or considerations regarding the operation.

19.2.3 Classic Approach to ROE Implementation Standard ROE doctrine contains three elements regarding the implementation of ROE that are central to the discussion on ROE in relation to autonomous weapons 19

The three commonly used levels of command and control in military operations, and therefore levels at which to describe an operation, are the strategic, operational and tactical levels. The strategic level refers to the overarching political and the highest military levels of command, including the decision whether to participate in an operation and the overall goals of the operation. The operational level refers to the level directly in command of the operation, implementing the strategic goals and instructions and providing overall command and control of the operation itself. The tactical level refers to the actual conduct itself, including assigning specific attack or patrol missions, directing the participating units to carry out actual engagements, etc. Although additional levels can be identified, such as the technical level referring to the conduct of individual personnel operating a weapon or weapon system, those are less relevant for this discussion of political influences on ROE. 20 MC 362/1, op. cit., see supra n 2.

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and cyber operations. While the sections above explained the purpose of ROE and the influences in the contents of the ROE, this section is concerned with how ROE apply to military operations in terms of the overarching concepts regarding ROE implementation.

19.2.3.1

ROE Cover the Operation as a Whole

The ROE approved for, and promulgated or implemented in, the operation in question apply to the operation as a whole and set out the authorizations for all military forces participating in that operation. While obviously specific instructions can be issued for the conduct of individual engagements or activities within the operation, the ROE set itself delineates the overarching instruction as regards the use of force (and actions which may be construed as provocative) in that operation. Consequently, ROE are commonly written in fairly general terms, leaving the interpretation and application of the ROE, in combination with the various directives, up to the personnel participating in the operation and based on the specific circumstances of each engagement. For example, ROE may authorize the use of minimum force21 to defend against intrusions into military restricted areas, but do not specify which areas or which intrusions. The personnel in question must therefore determine when and where to establish such areas and which intrusions, ranging from friendly visitors to hostile infiltration, warrant which kind of response, up to and including the use of force. Similarly, while ROE may authorize the use of minimum force to defend against acts which are hostile but do not rise to the level of a self-defence situation, establishing whether a specific activity in a specific situation constitutes a hostile act is left up to the personnel in question. In other words, the ROE set out the authorizations for the operation, but do not set out specific instructions regarding the actual use of force in every individual encounter within that operation.

19.2.3.2

ROE Are not Weapons Instructions or Tasks

As a logical corollary to the preceding observation, ROE are not used to provide instructions on how to operate a specific weapon or weapon system and are not used to assign tasks to individual units or military personnel.22 As regards the first part of

The term “minimum force” means that the least amount of force appropriate or suitable for resolving the situation must be used but includes deadly force if that is the suitable amount of force, bearing in mind the principles of necessity and proportionality, in the given situation. 22 Bear in mind that while the additional directives or certain ROE may contain more detailed rules specific to certain weapon systems, they similarly do not set out how to operate the weapon (system) but merely regulate effects or the operational use of that weapon (system). Using the example of indirect fire, the directives may specify that unobserved indirect fire is prohibited but do not set out how the observers should be in contact with the fire support unit, how to aim the weapons in question, etc. 21

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this observation, ROE can authorize or regulate the use of specific weapon systems, such as crew-served weapons or riot control agents, but those rules relate to the circumstances under which, or purposes for which, a specific weapon or weapon system may be used. They do not set forth instructions on the actual (technical) use of those weapons. For example, while the ROE may authorize the use of pepper spray in the context of carrying out a lawful arrest or detention, they do not specify the minimum range, how many times pepper spray may be used against the same person, etc., leaving such details up to commanders to implement in other ways, such as through directives. As regards the second part of the observation, ROE do not assign tasks within the operation for which they are implemented and the ROE cannot be used as authority to carry out activities not assigned by higher command or outside the scope of the mandate. Put simply, if in the context of assigned tasks and duties within an operation the use of force becomes necessary, the ROE set out the authorizations (or restrictions) regarding that use of force. The simple fact that the ROE authorize the use of force in certain situations does not mean that the ROE themselves set forth an inherent duty or authorization to create or seek out such situations. Which tasks or duties will be assigned to carry out the operation or to achieve the operation’s overall objectives is up to the chain of command of the operation, keeping in mind the mandate and associated instructions and directives from the strategic level.

19.2.3.3

ROE as a Strategic or Operational Document

Finally, it follows from the previous observations that the ROE are primarily a strategic or operational level document, issued to commanders, and not normally a document addressing the tactical level.23 While the ROE are commonly summarized in a so-called “soldier’s card” describing the authorities to use force at the level of the individual serviceman,24 such cards only set forth the authorizations on the use of force relevant down to that level and for which that level is authorized to make such decisions. Consequently, the soldier’s cards generally only contain rules related to, or just beyond, self-defence rather than the more operational level authorizations related to mission accomplishment or authorizing types of use of force normally restricted to higher command level decisions. Those additional authorizations are set forth in the ROE and therefore the ROE generally address those higher command levels.

23

An exception would be combat pilots, who normally carry a summary of the ROE as part of the so-called “Special Instructions” (SPINS) issued to such personnel. 24 The term “serviceman” is used to refer to individual military personnel regardless of gender. While some States refer to the soldier’s cards as “ROE cards”, there is a difference in contents between the actual ROE set for an operation and such simplified cards issued to individual personnel.

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Autonomous Weapons and ROE

Lethal autonomous weapons are currently a hotly debated topic, and they have inspired dozens of publications with strongly divergent opinions.25 While many of those publications and debates focus almost exclusively on the (assumed, see below) dangers or threats posed by autonomous systems,26 intergovernmental debates are also taking place in the context of the Group of Governmental Experts (GGE) of the Conference of High Contracting Parties to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects (CCW).27 But the divergent views and ongoing developments in the debates on this issue are not the only (or even the primary) difficulty in discussing autonomous weapons. As several authors have identified, the terminology used to describe the actual topic at hand is a complication in itself, as various terms are used with various meanings.28 Consequently, it should be emphasized at the outset that this chapter seeks neither to resolve the debate on the legality of autonomous weapons nor to expand on the attempts by others to clarify the related terminology. Instead, this section will discuss the effects of weaponized autonomous technology on the traditional ROE concept and doctrine.

19.3.1 Autonomous Weapons: A Brief Overview Without intending to contradict the previous statements and without intending to add to the debate on terminology, a distinction can be made, albeit a fluid one, between automatic systems and autonomous systems. For the purpose of this chapter, automatic systems are those systems which carry out their functions according to predetermined and pre-programmed parameters and responses, following a set of fixed steps requiring (and allowing) no further interpretation or evaluation. An example of a (non-weaponized) automatic system would be a set of lights fitted with a sensor, turning on when it gets dark and turning off when it gets light; the system does not “decide” if it is dark, it merely reacts to a sensor and then 25

For a very brief bibliography, see the list provided online by the United Nations Office in Geneva at: https://www.unog.ch/80256EDD006B8954/(httpAssets)/4C452E8607E0FBC3C12581D40034 1DE1/$file/CCW+Website_Articles_LAWS_Archive.pdf (last accessed on 18 June 2018). 26 See, for example, “Autonomous weapons are a game-changer,” The Economist, 25 January 2018, available online at https://www.economist.com/special-report/2018/01/25/autonomousweapons-are-a-game-changer (last accessed on 18 June 2018); and the Campaign to Stop Killer Robots at https://www.stopkillerrobots.org/act/ (last accessed on 18 June 2018). 27 The conference reports and various other information on the debates can be found online at: https://www.unog.ch/80256EE600585943/(httpPages)/8FA3C2562A60FF81C1257CE600393D F6?OpenDocument (last accessed on 18 June 2018). 28 See, for example, ICRC 2015, pp. 44–45; Ekelhof 2017.

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turns on or shuts off the flow of electricity to the lights. Autonomous systems, on the other hand, are systems which carry out their functions according to interpretations made by artificial intelligence subsystems which are capable of interpreting the system’s functional parameters (including its functional capabilities and status as well as its mission objectives) and external input (via sensors or other sources) and making their own decisions on how to act or proceed without (further) human intervention. When combined with on-board target identification and selection as well as on-board weapons release authority, those latter systems are the main cause for concern in the debates referred to above. In between these two (simplified) examples of systems are (weapon) systems with various degrees of autonomy in parts of their functions, as well as autonomous systems supporting human activities and decisions in the various processes, including the targeting process, related to military operations.29 Keeping in mind both the space constraints and scope of this chapter, three types of weapon systems will be discussed in order to further clarify the previous generic descriptions and relate them to the ROE discussion to follow. The first category is closer to the “automatic” end of the range described above and consists of various defensive systems in use around the world for the defence of either a geographical area or of a ship or vehicle against incoming missiles, mortar shells, etc., at response speeds unattainable by humans. Examples include the Raytheon “Phalanx”30 and Thales “Goalkeeper”31 close-in weapons systems, often used to defend vessels but also capable of land-based use, the Raytheon “Patriot”32 and Rafael “Iron Dome”33 air and missile defence missile systems, and the Rheinmetall ADS-Gen334 designed to protect vehicles and tanks against incoming threats. What these systems have in common, generically, is the combination of a sensor and tracking unit to identify and prioritize incoming threats, and a weapon, such as a missile or (rapid-fire) gun, to destroy the threats.35 They are defensive and reactive in nature and are usually set up to defend a specific object or geographical area. Although they work best in a fully automatic mode and will then intercept and seek to destroy any target matching the pre-set parameters, their behaviour is entirely

29

For a discussion of the targeting process in relation to the debate on autonomous systems, see Ekelhof 2018. 30 https://www.raytheon.com/capabilities/products/phalanx (last accessed on 19 June 2018). 31 https://www.thalesgroup.com/en/goalkeeper-close-weapon-system (last accessed on 19 June 2018). 32 https://www.raytheon.com/capabilities/products/patriot (last accessed on 19 June 2018). 33 http://www.rafael.co.il/5614-689-EN/Marketing.aspx (last accessed on 19 June 2018). 34 https://www.rheinmetall-defence.com/en/rheinmetall_defence/public_relations/themen_im_ fokus/active_defence_system_ads/index.php (last accessed on 19 June 2018). 35 As regards active protection systems, so-called “soft kill” systems exist as well, such as dispensers of chaff or flares to misdirect incoming homing missiles and various automatic smoke screen systems. As those normally do not equate to the use of force in the sense intended here, they will not be discussed as they are generally irrelevant to a discussion on ROE.

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predictable and known beforehand.36 In other words, while accidental death or destruction of civilians or civilian objects cannot be entirely avoided when using these systems, the risks can be mitigated by limiting their use to specific areas or local threat levels, giving prior warnings, closing certain areas of local airspace or terrain to civilian aircraft and vehicles, or shutting down the system if civilians have been identified in the vicinity. A higher level of autonomy can be identified in the second category, consisting of so-called “loitering munitions.” These systems, such as the AeroVironment “Switchblade”37 and the Israel Aerospace Industries (IAI) “Harop,”38 are essentially weaponized unmanned aerial vehicles (UAV) in which the UAV itself is the weapon, such as by integrating a warhead into the UAV, thus distinguishing them from unmanned combat aerial vehicles (UCAV) in which the UAV is capable of firing a weapon in the same way that a manned combat aircraft does but is intended to return to base after the mission. Loitering munitions were originally designed to take over the manned “wild weasel” missions, by allowing these unmanned aircraft to take over the (highly dangerous) tasks of baiting and then targeting and destroying air defence systems such as surface to air missile systems. The systems carry out this task by loitering over the area in question, detecting the enemy radar or guidance systems and then homing in on that signal. Additionally, both of the systems mentioned above are capable of attacking other targets by being directed to do so by a human operator. The human operator can also call off an attack initiated by the system. Ironically, while these systems have more autonomous abilities than the automatic systems, the risk of accidentally targeting civilians or civilian property is lower. The fully autonomous modes, after all, are designed to identify specific radar signatures and target the accompanying enemy air defence systems, which are valid military objectives, while their use against other targets requires human direction and control. The final system category relevant for this discussion does not exist yet (as far as is known) and is the topic of the current international debates. This concerns autonomous weapon systems, such as weaponized UAVs, unrestricted as regards their target categories, capable of determining on their own whether a person or object is a valid military objective, making their own evaluations of necessity and proportionality (and therefore making their own collateral damage estimates), and making their own decisions as regards weapons release, all without human

36

As also discussed by the ICRC 2015, pp. 44–45. Note that the ICRC also indicates, as part of apparently explaining why these systems are less controversial than fully autonomous systems, that “most of these existing weapons are overseen in real time by a human operator.” Apart from the fact that this is, indeed, not always the case, the human operator cannot intervene once the system’s weapon fires (other than shutting down the system to prevent further weapons use). In other words, there is a significant difference between human oversight and actual human control (“human in the loop”). 37 http://www.avinc.com/uas/adc/switchblade/ (last accessed on 19 June 2018). 38 http://www.iai.co.il/2013/36694-46079-en/Business_Areas_Land.aspx (last accessed on 19 June 2018).

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supervision or control (other than initial activation of the system). Since infallible or faultless software does not exist, the only method to avoid accidental injury, death or destruction to civilians and civilian objects in this case consists of limiting the use of such systems to areas devoid of civilians and civilian objects, which would seem hypothetical (at best) in the modern world.

19.3.2 ROE for Autonomous Weapons Each of the three categories of weapons discussed above presents its own challenges in relation to the standard ROE doctrine. Obviously as regards the extant systems, such challenges have already been identified and addressed, and neither of those two categories has presented a need to change the ROE system as such. The third category, however, presents greater challenges. Two of the elements of ROE doctrine discussed above are particularly relevant in the context of autonomous weapons: the degree of system-level specificity of the ROE (element 2, see Sect. 19.2.3.2) and the level to which the ROE should be disseminated (element 3, see Sect. 19.2.3.3).

19.3.2.1

System-Specific Instructions

Although air and missile defence systems can be deployed as the sole asset for a given operation or mission,39 and in such cases will have asset-specific ROE by default, automatic defensive systems are also deployed in more expansive or multifaceted operations. Obviously, this is always the case for close-in weapon systems and active defence systems protecting vehicles, as such devices are intrinsically linked to, and intended to protect, the ship or vehicle on which they are installed. As was already pointed out above, ROE can be used to authorize or regulate the use of specific weapons, including the circumstances or purposes for which those weapons can be used in the given operation. Given the rather limited purpose of these systems (defence against incoming threats), the predictability of their reactions (due to the pre-programmed and fixed parameters) and knowledge of their effect once activated, the ROE for such systems can be simple and indicate when and where they may be activated and, in the case of air and missile defence

39

An example would be NATO’s support to Turkey following the outbreak of the civil war in Syria. See https://www.nato.int/cps/ua/natohq/topics_92555.htm?; http://www.usafe.af.mil/News/ Article-Display/Article/748507/dutch-relinquishes-nato-mission-to-spanish-allies/ and https://www. bundesregierung.de/Content/EN/Artikel/2015/01_en/2015-01-07-mandat-active-fence-tuerkei_en. html (all last accessed on 19 June 2018). While these deployments were considered part of a NATO operation by the States deploying assets to Turkey, it may also be argued that the deployments were not a separate operation but instead part of the standing NATO integrated air and missile defence system and methodology.

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systems, whether weapon release authority can be delegated to the firing unit or must be retained at a higher level, such as the command and control centre of a series of linked units. Loitering munitions similarly pose only limited challenges for the ROE. When used in their autonomous mode, ROE similar to the ones described above regarding automatic systems can be implemented, specifying when and where these munitions can be deployed in that mode. After all, these munitions in this mode carry out a single, predictable task for a specific and single purpose, similar to the systems discussed above. When used as a man-operated guided long-range missile, the munitions are no different, from a ROE perspective, from any other weapon and the human operator will have to apply the ROE, targeting directives, etc., when targeting and guiding the missile (as well as, obviously, having to comply with applicable law, such as international humanitarian law). Fully autonomous weapons, on the other hand, are not limited in their purpose and their choice of weapon use is not predictable in the sense that they will always only attack a specific type of target. Put simply, limiting the ROE to when and where such systems can be activated is, given their (theoretical) scope of activity, the same as limiting the ROE to when or where a soldier with a rifle can or cannot be deployed and leaving all further decisions up to the soldier. While that may, theoretically, be a valid method of operation in extremely large-scale armed conflicts,40 it would not be a realistic or viable option in “normal” military operations. Given the conceptual model of such autonomous weapons, it may in fact be questioned whether they can be treated as a weapon in the sense of the weapon-specific ROE or should rather be seen as a machine counterpart to a human operator. That would mean that instead of regulating the use of autonomous weapons by applying the ROE to the machine, the operation of such systems should instead be approached by having the ROE applied by the machine. While this does not change the ROE doctrine as discussed here, it does change the way in which ROE are normally designed and written. Although it is generally possible to use the technical capabilities and the operational experiences with a specific system as input for drafting the ROE,41 and this is also the basis for the ROE regarding automatic systems and loitering munitions, true autonomous systems instead require the ROE to be written in such a way that the system itself can interpret and apply the ROE.42 Apart from the challenge of writing ROE in this manner, this approach will also affect the level of detail in the ROE themselves and require system software capable of applying the legal constraints under applicable law in conjunction with the specific requirements of the ROE for the given operation and accompanying directives. The first element, that is modifying the ROE to be usable by an autonomous system, would then most likely result in two sets of ROE: one for the

40

See supra n 11 and accompanying text, and the discussion of the political element of ROE. Gillespie 2015, p. 52. 42 Gillespie and West 2010, pp. 18–19. 41

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human operators, following the “traditional” ROE doctrine, and one for electronic “operators,” following the requirements of the machine.

19.3.2.2

Level of Dissemination

It was observed above that ROE commonly address the operational (and higher) levels, but with the exception of combat pilots are not normally disseminated down to the tactical level. The use of the words “commonly” and “normally” already indicate that this element of ROE doctrine is not absolute, and automatic and semi-autonomous weapons are examples of exceptions to this element. Leaving aside the (military) semantic discussion of which weapons or weapon systems are “strategic,” “operational level,” or “tactical,”43 especially as regards the air and missile defence systems discussed above, it may be clear from the descriptions given above that both automatic and semi-autonomous weapon systems require dissemination of the ROE down to lower levels of command. In the case of air and missile defence systems, that may be the commander of a firing unit or the commander of an integrated unit. As regards the close-in weapon systems and automatic vehicle defence systems, that would be the commander of the vessel or vehicle in question, and it should be noted that a vehicle commander would definitely be part of the tactical level rather than the operational or higher levels.44 Finally, as regards loitering munitions, a distinction can be made between their autonomous mode and their human-operated mode. ROE addressing the use of autonomous loitering munitions may be disseminated at the operational level, as the decision to deploy such systems in this manner would normally be taken at that level. In the human-operated mode, however, it would be the human operator that would need to apply the ROE (and concomitant other directives), therefore requiring dissemination of the ROE to the individual operator level for such personnel. Given the nature and capabilities of the systems in question, after all, the summary soldier’s cards would not suffice as guidance for such weapons use. Finally, as regards future fully autonomous systems, it was already observed above that the interaction between ROE and such systems can take two forms: either the system is deployed “as is” with ROE guidance addressing the person deciding to deploy the system and integrating the system’s capabilities (and limitations) in that decision and those ROE, or the system is designed to be capable of interpreting and applying the ROE itself. Given the inherent uncertainties and risks

43

See supra n 19. Note, however, that these terms can also refer to a weapon’s capabilities and effects or to the command level at which the decision to use or deploy a weapon or weapon system is made. Given these various uses, the terminology can often be more confusing than clarifying in discussions on specific weapons. A controversial but clear example would be so-called “non-strategic nuclear weapons” (also called “tactical nuclear weapons”), in which the term itself refers to the weapon’s yield and area of effect, but the decision for deployment would definitely require authorization from the strategic level of command. 44 As such systems may also be considered part of self-defence, see also supra n 2.

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involved in the first approach, it would seem unlikely that decisions to deploy such systems would be taken at the tactical level and it may even be questioned whether an operational level decision would be sufficient. Consequently, the ROE in that scenario would address the operational or higher levels of command, in keeping with current doctrine. However, as was stated above, it would seem rather unlikely that such use of fully autonomous systems would be approved in all but the most extreme types of armed conflict45 and it would therefore seem more likely that the second option, meaning integration of the ROE into the actual system itself, would be pursued. Apart from questions as to whether that is achievable from a technical point of view, it would also mean that such systems would in essence become operators requiring ROE dissemination at the tactical level, similar to combat pilots. In other words, increasing autonomy in the range and scope of the use of force requires a concomitant lower level dissemination of the ROE for the operation.

19.4

Cyber Operations and ROE

Given that cyber operations are discussed more specifically and in-depth in another chapter, the scope of the following discussion will be limited to the specific scope of this chapter and therefore only address ROE doctrine in relation to cyber operations. That is also the simplest of the necessary delimitations as regards the scope of the following discussion. Given the nature and scope of the term “cyber,” it is clear that this term and its associated terminology, using “cyber” as a prefix for almost any type of activity or area of interest, can encompass essentially anything related to, pursued in, derived from, etc., the domain called “cyberspace.” Since that in itself is already close to a circular definition, a first broad delimitation can be achieved by explaining that the following discussion relates to military use of computers, networks and associated electronic devices intended to be used with or in such computers and networks. However, further delimitation of the discussion is required, since “military use” can, in essence, cover a wide variety of topics ranging from personnel administration or simple office procurement tasks to taking out the strategic command and control systems of an adversary’s armed forces. First, this discussion focuses on cyber operations in the context of military operations which are related to a (national) self-defence situation, an armed conflict or pursuant to an international mandate such as an authorizing resolution from the United Nations Security Council. In other words, domestic law-enforcement operations and national

45

Apart from valid concerns regarding such systems’ abilities to properly apply the law applicable to the situation, the armed forces using such systems would also require a remarkable level of trust that the systems will not accidentally target friendly forces or the operating armed forces themselves.

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intelligence operations46 will not be discussed here. The reason for this first delimitation is that the activities thus excluded are not usually governed by ROE, but by other methods and means of instructing the personnel in question as regards applicable law and permissible actions. For similar reasons, the second and final delimitation is that this discussion will focus on the use of cyber operations against or in response to an adversarial party, in which responsive actions are actions triggered by a deliberate activity of that adversarial party.47 Finally, the delimitation set on this chapter as a whole needs to be kept in mind, in that this chapter is intended to analyse ROE doctrine rather than ROE contents.48

19.4.1 Cyber as Military Use of Force and Provocative Action Since ROE address the use of force and acts which may be construed as provocative, the first challenge in relating cyber operations to ROE is whether cyber operations amount to either of those categories of acts, with cyber operations as use of force being the least self-evident of the two. Notwithstanding the extensive use of “kinetic” terminology to describe various hostile or malicious cyber activities, including “cyber warfare” as a term covering all use of cyber methods and means between adversaries49 and “cyber-attack”50 as a term covering anything from temporary (distributed) denial of service activities against a website to causing actual physical damage to networks or systems, not all cyber activities amount to “use of force” in the ordinary (much less the legal) sense. Nonetheless, as already indicated by the reference to physical damage, some cyber activities can amount to “use of force” and even to an “armed attack” in the sense of Article 51 of the Charter of the United Nations. The first Tallinn Manual identified eight factors that can assist in determining whether a cyber activity amounts to use of force, while emphasizing that these 46

This term is used to refer to intelligence operations in support of national policy and strategy, usually undertaken at the strategic level or under the direction and supervision of the strategic level, as opposed to operational and tactical intelligence activities carried out to support a military commander during the conduct of a military operation. While strategic intelligence can also aid such a military commander, what is at issue here is the nature of the activity, not the possible uses or addressees of the outcome (the products) of those activities. 47 The use of antivirus or other software tools against malicious software broadly disseminated via the internet as a random threat is similarly not covered by ROE and the military nature of the response is coincidental, as civilian users would be similarly threatened and take similar responsive actions. 48 For detailed analyses and discussions on implementing international law in cyber operations, see as regards operations in the context of an armed conflict: Schmitt 2013 (Tallinn 1.0); and as regards operations below the threshold of an armed conflict: Schmitt 2017 (Tallinn 2.0). 49 For example: Jensen and Banks 2018; Dougherty 2016; O’Flaherty 2018. 50 For example: Choo 2018.

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factors “are not formal legal criteria” and noting that which factors are applied by States and which weight is given to which factor will vary.51 Among those factors are the levels of severity, invasiveness, and State involvement. As regards severity, the manual specifies that cyber activities resulting in physical harm to persons or property will “in and of themselves qualify the act as a use of force.”52 The ICRC has similarly identified that certain forms of cyber activities may result in death, injury and damage to (civilian) property and has pointed out, as has also been stated by others, that cyber activities must comply with international law, including international humanitarian law as applicable.53 The issue of State involvement also relates to the inherent difficulty of attributing cyber conduct, which may of course be directed via many different routes, identity masking (or spoofing) tools and similar electronic misdirection, to a specific perpetrator or actor. The issue of attribution of course also plays a significant role in determining where and how to direct a response in the event a cyber-attack (in this case using the term intentionally) rises to the level of an armed attack in the sense of Article 51 of the Charter of the United Nations, as has been argued can be the case if certain levels and types of effects are reached.54 However, although cyber activities rising to the level of the use of force are not likely to occur frequently, the extensive media coverage and frequent political statements regarding cyber threats and State (or State-sponsored) cyber activities make it clear that cyber activities are in any case very likely to be considered provocative or, at least, politically and legally sensitive.55 The political sensitivity and the related public opinion sensitivity may be explained in part by the wide-spread use of computers and networked systems (including the “internet of things,” IOT) in private use, making any threat capable of reaching into the private homes of people far less abstract than military operations in foreign lands. Additionally, there are clear and indelible connections between cyber operations and intelligence operations56 and between “cyber” and the various tactics associated with hybrid warfare.57 However, regardless of the underlying political, sociological or psychological cause, it may reasonably be concluded that the use of cyber activities in the context of military operations will in any case be considered

51

Schmitt 2013 (Tallinn 1.0), pp. 48–51. Schmitt 2013 (Tallinn 1.0), p. 48. 53 ICRC 2015, pp. 39–40. 54 See, inter alia, Schmitt 2013 (Tallinn 1.0), Rule 13 and accompanying commentary (pp. 54–61); the advisory report by the Advisory Council on International Affairs and the Advisory Committee on Issues of Public International Law to the Government of the Netherlands 2011; Kehler et al. 2017. 55 Kehler et al. 2017 similarly conclude that cyber activities are provocative and sensitive, complicated further by the lack of experience among (most) military commanders with the cyber domain. 56 See, for example: Banks 2017; Paganini 2017. 57 See supra n 5, as well as, for example: Groll 2015; Radin 2017. 52

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(potentially) provocative and it can therefore equally reasonably be concluded that ROE will be needed to regulate military cyber operations. The use of the future tense in the preceding sentence was deliberate, as cyber ROE are, in the present author’s experience, a rarity in multinational ROE sets, while both ROE and cyber operations are generally considered classified to such a degree that no public disclosure of any State’s national ROE for cyber operations has, as far as is known, taken place as yet.58 Furthermore, while some of the ROE compendia discussed above59 contain a “serial” for cyber operations, the ROE in those serials tend to be very limited in number and either superficial at best or riddled with so many “DESIG” elements60 that the ROE text, once duly drafted with all of the elements filled in, will become more like a paragraph in a tasking order than a clear, concise rule in the “normal” style in which ROE tend to be written.61 While this observation on cyber ROE can be explained in part by the lack of experience among commanders (and among those in charge of drafting ROE) as referred to elsewhere,62 cyber operations also lend their own specific complications in terms of regulating those operations through ROE. Although not on the same level of difficulty as integrating ROE into code or input which can be applied by machines as discussed above in relation to autonomous weapons, the nature of cyber operations as the use of software and electronics does add to the complications in the application of ROE to such operations. This observation applies to both the highly specific uses of cyber operations such as the Stuxnet operation and the more generic use of cyber tools. ROE in general either regulate the use of force or other behaviour regardless of the means by which force is used or that behaviour is carried out,63 or they regulate specific weapons or weapon systems as was discussed above. But as regards behaviour (noting that cyber operations are not easily equated with use of force), regulating cyber operations requires a significantly greater level of detail than is common in ROE. Authorizing “computer network attacks” (CNA) is a fairly meaningless ROE unless further guidance is given as regards the purpose, levels of permissible damage, etc., of those attacks. In other words, the ROE will need to clarify what is meant by the generic term CNA, given the wide range of types of activities and equally wide range of possible results covered by that term in the realm of cyber operations. As

58

See also Kehler et al. 2017. See supra n 15 and accompanying text. 60 As ROE compendia only contain sample ROE intended as general inspiration or guidance, many of those ROE contain elements that can be filled into make the ROE in question specifically suitable for the operation in question. Those “fill in the blank” elements are indicated as [DESIG] in the text of the ROE in the NATO and EU compendia and as (SPECIFY) in the San Remo Handbook on Rules of Engagement 2009. 61 Compare, for example, the ROE 131 series with the ROE 111 series in the San Remo Handbook on Rules of Engagement 2009. 62 See supra n 55. 63 See, for example, the ROE 42 and ROE 50–59 series in the San Remo Handbook on Rules of Engagement 2009. 59

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regards the related tools or “weapons,” ROE can obviously regulate a highly specific tool such as Stuxnet, but those tools tend to be purpose-built, target-specific and for one-time use only. A single use tool does not require ROE, it “merely” requires design specifications and a one-time order to use the tool in question. More generic tooling, such as hacking tools, key loggers, etc., cannot be regulated by system-oriented ROE for the same reasons as were indicated in regards to behaviour-based ROE: their uses (and possible results thereof) are too unspecific for those ROE to have any real meaning.64 Two final causes of the difficulties encountered when combining ROE (doctrine) with cyber operations relate to the interaction between cyber operations and military operations in general, and the concomitant ROE-related command and control issues. Applying the same distinction between target-specific cyber tools and more general cyber tools, it is clear that the first type of cyberattack is so specific and requires such specific support activities, ranging from the design and programming of the tool to the various activities and deployments required to deliver the cyber weapon to the target (often requiring some form of physical, human activity),65 that such a cyberattack becomes an operation on its own. While theoretically such specific attacks can be part of a wider operation, the level of complexity and the size of such an undertaking, including the resources required, would elevate it to the level of an operation instead of a subordinate mission. In combination with the obvious (political) sensitivity of such an attack, it would seem likely that such operations would be subject to command and control or at least direct oversight by the strategic level of command. This also means, apart from the observation already made above regarding the one-time use aspect of such attacks, that it is unlikely that “normal” ROE would be issued in such cases, but that instead direct and specific orders would be issued at each stage of the operation. As regards more generic cyber operations, there is a clear desire in some nations to seek integration of cyber capabilities into “conventional” military operations.66 While that makes sense and can even be considered a logical requirement as regards defensive cyber operations, meaning the use of cyber tools and technology to protect one’s own networks and systems, the integration of cyber operations with external effect (i.e. causing effects on systems or networks other than one’s own) into military operations is more complex. Firstly, it would require lower command levels than the strategic (or even operational) level to understand and therefore be able to effectively use the assets which would then become available to them,

64

Obviously, this problem is compounded the more abstract one becomes, as regulating the use of computers or software in general would be even more meaningless. 65 Obviously, the simplest defence against cyber attacks is to remove the system to be protected from any physical connection to the internet. In such cases, delivering a cyber weapon to that system will require human intervention, such as by connecting an infected USB-drive to the target system. 66 See, for example, point 7 in the 2015 update of the Netherlands’ “Defence Cyber Strategy” at https://english.defensie.nl/topics/cyber-security/defence-cyber-strategy (last accessed on 21 June 2018).

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requiring training and education at (at least) a basic level in cyber operations. Secondly, the tactical capabilities and possible uses of cyber operations would need to be addressed in planning the operation, in the same way that other “weapons” are considered.67 Finally, the ROE for operations in which cyber capabilities have been integrated will need to properly address those capabilities and those ROE will need to be disseminated down to the relevant levels.

19.4.2 ROE for Cyber Operations Although several of the observations made above have already provided tentative conclusions or explanations of the interaction between cyber operations and ROE, it may be considered helpful to examine the three elements of ROE doctrine discussed above in relation to those observations on cyber operations.

19.4.2.1

Operation Versus Individual Missions

While ROE generally govern the operation as a whole and are drafted accordingly, the ROE for cyber operations will need to differentiate between cyber activities as an integrated part of the operation as a whole, and cyber operations which are so complex and specific that they are a separate operation in themselves. Even as regards integrated cyber capabilities, however, it may be necessary to deviate from the standard ROE doctrine and separate cyber operations or cyber activities from the ROE for the operation as a whole. Reasons to do so may be related to compartmentalization of the information in question, as many offensive (that is, cyber activities with external effect as described above) cyber activities can only be effective when carried out with a high degree of secrecy. Additionally, the potential sensitivity or level of provocation caused by such activities (assuming the covert nature of the activities has been compromised and/or some degree of attribution by the adversary has taken place) may require a more specific, higher command relationship or authorization requirement than would be the case for “normal” activities in the context of the operation. The above observations lead to the conclusion that while it is possible to fit cyber ROE and cyber operations themselves into the common ROE doctrine, it seems more likely and perhaps more effective to view cyber operations as a subset of the military operation as a whole and consequently provide specific ROE, with an equally specific method of dissemination, for cyber operations even when those operations are part of, and integrated into, “normal” military operations in general. 67

Netherlands Defence Cyber Strategy 2015. This is obviously not a challenge as such, but in the author’s personal experience still a challenge for most military operational planners. It may safely be assumed, however, that this is merely part of a learning process and the difficulties will decrease or even disappear over time.

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System-Specific Instructions

It should be clear from the discussion above that cyber operations require a significantly higher level of specificity in the ROE than (most) other types or elements of military operations. This not only requires a new way of drafting the ROE, but also means that general ROE for the operation as a whole cannot suffice. Instead, “weapon system”-specific ROE will need to be drafted to regulate the conduct of cyber operations within the wider military operation. In combination, these observations mean that a new style of ROE needs to be developed, instead of attempting to modify existing ROE language structure (such as the weapon-specific ROE found in most compendia) to fit the specifics of cyber capabilities. While such newly designed ROE can of course be integrated into the ROE set for the operation as a whole, their unicity and specificity, both in terms of content and in terms of their addressees, support the tentative conclusion above that cyber operations may need (or deserve) their own separate ROE sets, in the same way that air, land and sea operations within a joint operation68 are sometimes given their own ROE sets. This would also support the view that “cyber” is a distinct domain, next to the air, land, sea, and space domains.69

19.4.2.3

Level of Dissemination

Both of the preceding analyses of the interaction between the elements of ROE doctrine under discussion and cyber operations, as well as the more general discussion on cyber operations in the preceding sections, lead to the obvious conclusion that ROE regulating cyber activities will need specific consideration as regards their dissemination. While highly specific, single-use cyber operations may require strategic level oversight or command, and thus obviate the need for actual ROE and relying instead on direct orders, generic or general cyber activities or capabilities, when aimed at creating external effects, require specific ROE with equally specific dissemination. Apart from the need for compartmentalization referred to above, the highly technical and capability-specific nature of cyber ROE also leads to the conclusion that such ROE can best be disseminated directly to the operators, or their (tactical level) direct (unit) commanders or supervisors,70 rather

“Joint” operations are operations involving units from different armed forces services under unified command, such as combining air, land, and sea assets. “Combined” operations, a term often seen in conjunction with “joint” operations, are operations involving units from more than one State under unified (multinational or lead-nation) command. 69 This view was supported and recognized by the NATO member States at the 2016 Warsaw summit; https://ccdcoe.org/nato-recognises-cyberspace-domain-operations-warsaw-summit.html (last accessed on 21 June 2018). 70 Given the unique characteristics of cyber operations and cyber operators, it is possible that not all cyber operations in support of a military operation will be carried out by military personnel within the normal chain of command. It should be noted, however, that cyber operations amounting to the 68

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than including them in the ROE set as a whole. However, in order to integrate cyber operations properly in operations as a whole, the cyber ROE and the capabilities they address should be known and understood by the commander of the operation as a whole, as well as subordinate commanders tasked with operational planning and unity of effort of the military forces in question. Additionally, cyber capabilities in general, but also the specific role they can (or are intended to) play must be integrated in the operational plan from the outset, in order to maximize efficient use of those (normally scarce) capabilities.

19.5

Conclusion: From “If It Isn’t Broken, Don’t Fix It” to Weapon-Specific Customization

The discussion above illustrates that the two technological developments in question, that is autonomous weapons and cyber operations, provide challenges to certain elements of standard ROE doctrine as well as to standard ROE drafting. As regards autonomous weapons in the true sense, this obviously has not led to actual problems yet, for the simple reason that such weapons do not yet exist. Given that ROE address the use of force and actions which may be considered provocative during actual deployments or anticipated military operations, it may also therefore be considered premature to discuss ROE methodology in relation to non-existing weapons. But the observations regarding the need to allow integration of ROE into the programming of such weapons may dictate taking these issues into consideration even at this stage, in order to allow anticipation of such requirements in any ongoing research and development. As regards cyber operations, problems have already been identified at least as regards the drafting of appropriate ROE. While this may be due to a lack of understanding—on the part of ROE specialists (and commanders) in terms of understanding cyber technology and its capabilities, but perhaps also on the part of cyber operators in terms of understanding ROE—the further development of cyber capabilities as part of military operations and the anticipated further integration of cyber operations in “regular” military operations mean that ROE for such cyber operations require closer (and perhaps urgent) attention. Turning back to ROE doctrine, the three elements identified as most relevant for this discussion clearly continue to have merit for military operations as a whole. Apart from this simple observation, there are also good reasons for maintaining those elements of ROE doctrine. An overall policy regarding the use of force in an operation is necessary as part of the military planning, in order to maintain overall

use of force or otherwise directly linked to the conduct of hostilities may amount to direct participation in hostilities on the part of the cyber operators. Militarization of such operators, even if temporary for the duration of such tasking or the participation in an operation, should therefore be considered from the perspective of adhering to international humanitarian law.

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command and control and to achieve the main purpose of ROE in the first place: escalation dominance. Moreover, the (political and military) decision making process at the strategic level requires insight into the authorizations (or restrictions) regarding the use of force and regarding actions which may be considered provocative as part of the operational plan and concept of operations. While ROE sets and the compendia from which they are derived already provide the means to regulate the use of specific weapons, it is generally understood that, in keeping with the object and purpose of ROE, such specific instructions should be limited to those weapons which provide a specific cause for concern or which are specifically sensitive in the operation in question. Both the need for clarity and simplicity in the ROE and the need for flexibility in the actual conduct of the operation would seem to warrant caution as regards technical-level control via an overarching operational (or even strategic) document. As ROE require approval from the political level, moreover, detailed technical regulations regarding specific weapons are best set forth in the concomitant directives in a given operation, limiting the ROE to the overall political, military and legal guidance (and constraints) for the operation as whole. In other words, while the ROE can be used to set the limits on the “what” aspect of those weapons which require specific attention, the “how” aspect of implementing that regulation can best be set forth in lower level documents. Finally, the level of dissemination of ROE reflects their overall use and purpose and not every rule in a given ROE set is equally relevant at every level of command or conduct in an operation. The system of combining operational level ROE with tactical and technical level summaries in the form of soldier’s cards contributes to the understanding at all levels of what is expected, allowed and prohibited as regards the conduct of operations at each level. It should also be noted that in addition to the overall requirements of necessity and proportionality, many ROE require evaluations or assessments of factors beyond the level of information available at the individual serviceman’s level. These observations lead to the conclusion that, as in the old adage, “if it isn’t broken, don’t (try to) fix it.” On the other hand, there is a distinct difference between changing an entire system or doctrine and adding to it or expanding that system or doctrine. Trying to fit modern developments in weapons technology into the existing system may be like trying to fit a square peg into a round hole and once it has been clearly established that such an approach will not produce viable or efficient results, as in the case of cyber ROE, there should be no further fear or hesitation to adapt the system. In other words, while the existing ROE doctrine may continue to function just fine for operations as a whole, new technologies may require specific additions to the doctrine or specifically delineated deviations from the norm. A first step in establishing whether new technologies require a new approach to ROE drafting and doctrine is to examine operational experience, preferably in a testing environment or under (other) controlled conditions, including testing the concept of operations for the new technologies. In other words, an analysis is needed as to how the weapons in question were intended to be used and integrated into military operations and then observing not only how they function, but whether

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they actually function in the way they were intended.71 Once an understanding is established as to how the technologies function within an operational context, applying ROE to those technologies can be tested and thus an evaluation can be made whether “normal” ROE will sufficiently guide the use of these technologies or whether specific or special ROE are required. As regards the technologies under discussion here, limited deviations from standard ROE doctrine have already been implemented in order to accommodate automatic and semi-autonomous weapons. Such deviations, to the extent that they even are deviations, are not so different from the standard practice regarding “conventional” means such as combat pilots. But further developments in autonomous technology and current experience with cyber operations inevitably lead to the conclusion that certain new technologies will require an addendum to existing ROE doctrine: “weapon”-specific customization of the ROE, both in drafting and in overall ROE doctrine. In other words, ROE and the associated doctrine need to develop along with the technologies they regulate during military operations in order for the overall purpose of ROE to remain effective. That, finally, requires an open dialogue with a view to developing mutual understanding between the ROE specialists and the technologists, as well as between the political and military commanders and the operators they deploy to carry out military operations. After all, control is not achieved by merely giving orders, but requires understanding and common effort.

19.6

Personal Note

Dear Terry, to say you have taught many, including me, so very much is an understatement and moreover does not do justice to what you do. You do not “teach”, you “educate”: you open minds and expand horizons, you challenge and stimulate to learn and understand, and most importantly of all, you inspire. You do this through your research, your writing and your classes, but more than that, through your personality and your inimitable style. A true gentleman and a true scholar, erudite and with an encyclopaedic knowledge of not only the law, but so many more fields—I can honestly say that my jazz collection has doubled in size thanks to your expert advice—but also a man with a tremendous sense of humour and a sense of adventure. The rapport we developed when I wrote my Master’s thesis under your supervision in the University of Utrecht back in 1990–1991 grew into a true friendship over the years, especially in the course of writing my Ph.D. dissertation under your patient guidance. A development you predicted when you 71

It should be noted that such an approach is also required for the obligatory evaluation as to whether the weapons would in all or some circumstances violate applicable international law, which to States Parties to the First Additional Protocol to the Geneva Conventions is known as the “Article 36 review”. See also Gillespie 2015, op. cit., note 41 as regards new technologies and applying Article 36 reviews.

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quoted the immortal words of Rick Blaine at the end of our first meeting on that project: “I think this is the beginning of a beautiful friendship.” So, in closing, allow me to end this brief personal note simply by saying a heart-felt thank you, for that friendship, for your inspiration and for all that I have learned from you over the years.

References Advisory Council on International Affairs and the Advisory Committee on Issues of Public International Law to the Government of the Netherlands (2011) Cyber Warfare, at https://aivadvies.nl/download/da5c7827-87f5-451a-a7fe-0aacb8d302c3.pdf, last accessed on 21 June 2018. Banks WC (2017) Cyber Espionage and Electronic Surveillance: Beyond the Media Coverage. Emory Law Journal 66(3):513–525. Boddens Hosang JFR (2017) The Effects of Paradigm Shifts on the Rules on the Use of Force in Military Operations. Netherlands International Law Review 64(2). Chivvis CS (2017) Understanding Russian ‘Hybrid Warfare’ and What Can be Done About It. RAND Corporation, Santa Monica. Choo C (2018) Singapore was the top cyber attack target during Trump-Kim talks, says report. South China Morning Post (international edition), 19 June 2018. Dougherty J (2016) NATO cyberwar challenge: Establish rules of engagement. CNN, 7 November 2016. Ducheine PAL, Schmitt MN, Osinga FPB (eds) (2016) Targeting: The Challenges of Modern Warfare. T.M.C. Asser Press, The Hague. Economist (2018) Autonomous weapons are a game-changer, available online at https://www. economist.com/special-report/2018/01/25/autonomous-weapons-are-a-game-changer, last accessed on 18 June 2018. Ekelhof MAC (2017) Complications of a Common Language: Why It Is So Hard to Talk about Autonomous Weapons. Journal of Conflict and Security Law 22(2):311–331. Ekelhof MAC (2018) Lifting the Fog of Targeting: ‘Autonomous Weapons’ and Human Control through the Lens of Military Targeting. Naval War College Review 71(3) no 6. Gillespie T (2015) New Technologies and Design for the Laws of Armed Conflict. The RUSI Journal 160(6):50–56. Gillespie T, West R (2010) Requirements for Autonomous Unmanned Air Systems set by Legal Issues. The International C2 Journal 4(2):18–19. Groll E (2015) Cyber Spying Is Out, Cyber Lying Is In. Foreign Policy (online weblog), available at http://foreignpolicy.com/2015/11/20/u-s-fears-hackers-will-manipulate-data-not-just-steal-it/, last accessed on 21 June 2018. Hall DB (1997) Rules of Engagement and Non-Lethal Weapons: A Deadly Combination? Available online at www.globalsecurity.org/military/library/report/1997/Hall.htm, last accessed on 18 June 2018. ICRC (International Committee of the Red Cross) (2015) International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, Report of the 32nd International Conference, pp. 44–45. International Society for Military Law and the Law of War (2006) Recueil, XVII. Brussels. Jensen B, Banks D (2018) Cyber warfare may be less dangerous than we think. Washington Post, 26 April 2018. Kehler CR, Lin H, Sulmeyer M (2017) Rules of engagement for cyberspace operations: a view from the USA. Journal of Cyber Security 3(1):69–80, available online at https://academic.oup. com/cybersecurity/article/doi/10.1093/cybsec/tyx003/3058505, last accessed on 21 June 2018.

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Martins MS (1994) Rules of Engagement for Land Forces: A Matter of Training, Not Lawyering. Military Law Review 193(4). Netherlands Ministry of Defence (2015) Defence Cyber Strategy 2015, available online at https:// english.defensie.nl/topics/cyber-security/defence-cyber-strategy, last accessed on 5 June 2020. O’Flaherty K (2018) Cyber Warfare: The Threat from Nation States. Forbes, 3 May 2018. Paganini P (2017) 10 Biggest Cyber Espionage Cases. Security Affairs (online weblog), available at https://securityaffairs.co/wordpress/66617/hacking/cyber-espionage-cases.html, last accessed on 21 June 2018. Radin A (2017) Hybrid Warfare in the Baltics: Threats and Potential Responses. RAND Corporation, Santa Monica. Roach JA (1983) Rules of Engagement. Naval War College Review 36(1) no 6, reprinted in the United States Naval War College International Law Studies 68, available online on the United States Naval War College website, http://stockton.usnwc.edu/ils/. San Remo Handbook on Rules of Engagement (2009) International Institute of Humanitarian Law, available online at http://www.iihl.org/wp-content/uploads/2017/11/ROE-HANDBOOKENGLISH.pdf, last accessed on 21 June 2018. Schmitt MN (ed) (2013) Tallinn Manual on the International Law Applicable to Cyber Warfare. CUP, Cambridge. Schmitt MN (ed) (2017) Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations. CUP, Cambridge. Stop Killer Robots, at https://www.stopkillerrobots.org/act/, last accessed on 18 June 2018.

Dr. J. F. R. Boddens Hosang is the Deputy Director of Legal Affairs at the Netherlands Ministry of Defence. In 2017, he defended his Ph.D. thesis, entitled ‘Rules of Engagement: Rules on the Use of Force as Linchpin for the International Law of Military Operations’, supervised by Prof. Terry Gill, at the University of Amsterdam. His thesis is published by Oxford University Press as Rules of Engagement and the International Law of Military Operations. Dr. Boddens Hosang is a lecturer in UN Peacekeeping at Leiden University and a guest lecturer on Rules of Engagement at the University of Amsterdam and the Netherlands Defence Academy.

Chapter 20

‘Autonomous’ Weapons and Human Control Jeroen C. van den Boogaard and Mark P. Roorda

Contents 20.1 Introduction...................................................................................................................... 422 20.2 Autonomous Weapons: Deconstructing the Frame ........................................................ 423 20.3 International Law with Regard to the Concept of Control Over (the Effects of) Weapons .......................................................................................................................... 426 20.4 The Debate About ‘Meaningful Human Control’ .......................................................... 429 20.5 An Alternative Approach to Control for the Purpose of Emerging Technologies.................................................................................................................... 432 20.6 Conclusions...................................................................................................................... 434 References .................................................................................................................................. 435

Abstract There is an ongoing debate on whether and how the use of certain emerging weapon technologies perceived as decreasingly allowing human control over the use of force should be regulated or banned. The focus of the debate on such so-called autonomous weapon systems has from the outset been too narrow and misguided. The frame of ‘autonomy’ and the resulting weapon-centric focus on control, neglects that the effects of the military use of weapons may be controlled in many more ways than by restricting certain weapons or technologies. This chapter argues that the legal requirement to exercise control over the effects of the use of

J. C. van den Boogaard Netherlands Defence Academy, Breda, The Netherlands e-mail: [email protected] J. C. van den Boogaard Faculty of Law, University of Amsterdam, Amsterdam, The Netherlands M. P. Roorda (&) Netherlands Public Prosecution Service, Arnhem, The Netherlands e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2021 R. Bartels et al. (eds.), Military Operations and the Notion of Control Under International Law, https://doi.org/10.1007/978-94-6265-395-5_20

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force, may be complied with by virtue of a range of (human) decisions preceding, during and even after employment of a particular weapon.




Keywords Autonomous Weapons Control International Humanitarian Law Autonomy




20.1


Meaningful Human Control

Artificial Intelligence

Introduction

The debate on so-called autonomous weapon systems (AWS) has sparked a relatively new issue with regard to the concept of control: does international law contain an obligation to exercise (human) control over weapons, and if so, what are its applicability and substance, and how should it operate in practice? The issue is being discussed in the context of the UN process regarding the Convention on Certain Conventional Weapons (CCW),1 in which States and other actors such as NGOs contribute. Particular subjects that have sparked discussion include the distinction between automated and autonomous weapons, and whether, and how, a human must remain ‘in/on the loop’ when algorithms and artificial intelligence allow systems to select and attack targets without direct human involvement. It has been suggested that weapons should remain under ‘meaningful human control’, a concept that has gained traction both among civil society and States, yet also remains undefined. This chapter aims to contribute to the debate by assessing the legal requirement of control over weapons and arguing for an alternative approach to the system-centric reasoning that is prevalent in the ongoing discussions. The current focus on (real-time) control over a weapon results in a highly polarized debate. Some States prefer retaining the possibility to exploit emerging technologies in the interest of national security, while others are convinced that only a ban will prevent uncontrollable weapons. Redirecting the focus on the effects of the use of weapons may not only be legally sounder, it also allows for a broader understanding of how control may be exercised in practice. As a result, the legitimate concerns on decreasing human control over the use of force may be addressed without the need of an outright ban on certain technologies. The chapter starts in Sect. 20.2 by arguing how the notion of autonomy misdirects attention and thinking regarding the subject. Section 20.3 then analyses the international legal requirement of control over (the effects of) the use weapons. Section 20.4 aims to summarise the current debate with regard to the concept of meaningful human control and how it offers possibilities for applying the legal requirement. This results in an argument for a broader approach to control and a suggestion for possible elements thereof in Sect. 20.5. Section 20.6 concludes. 1

Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects (Convention on Certain Conventional Weapons, or: CCW), opened for signature 10 October 1980, 1342 UNTS 137 (entered into force 2 December 1983).

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20.2

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Autonomous Weapons: Deconstructing the Frame

The concerns related to autonomy in weapon systems were, comprehensively, placed on the international agenda mainly as a result of the attention generated by the ‘Campaign to Stop Killer Robots’. Several of its members had since 2007 drawn attention to the development of so-called “armed battlefield robots”,2 “armed autonomous unmanned systems”,3 and “robots with attack and kill capabilities”.4 Their efforts received the attention sought and, more importantly, their use of terminology shaped much of the subsequent debate. Following a report by the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, professor Christof Heyns, on “lethal autonomous robotics” in April 2013,5 the issue was placed on the agenda first of the UN Human Rights Council6 and subsequently of the Meeting of State Parties to the UN CCW forum, which decided to convene an informal meeting of experts on “lethal autonomous weapons systems” in 2014.7 Eventually, autonomous weapon systems (AWS) became the most frequently used term among civil society, policymakers, and scholars, while killer robots continues to be used synonymously, particularly in popular media. The resulting and now firmly rooted frame of autonomy has had a number of significant consequences for the general understanding of the topic and the progress that is being made to address it. Two of these are addressed here. First, use of the term autonomy has led to a range of issues with regard to definition and perception. Finding a definition of autonomy and how to distinguish it from automation has sparked extensive debate among scholars and in international society. Philosophers, ethicists, psychologists, legal scholars, and computer scientists, among others, have contributed, each with their respective perspectives.8 Yet, so far, there is no generally accepted definition, nor is it expected any time soon. Illustrative is that after six years of discussions within the UN CCW forum,

2

Sharkey (2007) Robot Wars are a Reality, The Guardian, 18 August 2007. https://www. theguardian.com/commentisfree/2007/aug/18/comment.military. Accessed 18 March 2020. 3 See the mission statement of the International Committee for Robot Arms Control, see https:// www.icrac.net/about-icrac/. Accessed 18 March 2020. 4 See Williams 2011, p. 2. 5 United Nations General Assembly 2013, Human Rights Council: Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns, UN Doc. A/HRC/23/47. 6 Campaign to Stop Killer Robots, 28 May 2013, Consensus: killer robots must be addressed, https://www.stopkillerrobots.org/2013/05/nations-to-debate-killer-robots-at-un/. Accessed 18 March 2020. 7 For a general overview of the discussions in the context of the CCW on the topic of ‘Lethal Autonomous Weapons Systems’, see https://unog.ch/80256EE600585943/(httpPages)/ 8FA3C2562A60FF81C1257CE600393DF6?OpenDocument. Accessed 18 March 2020. 8 See for example Backstrom and Henderson 2012, pp. 488–490.

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one of the main items on the agenda remains the “characterization of the systems under consideration in order to promote a common understanding.”9 A direct consequence of the lack of a generally accepted definition is the widely divergent range of perceptions of what AWS are and, thus, on how to address the issues involved. Some, especially those that seek an international ban or regulation, portray images of weaponized robots that operate without human involvement and have the ability to decide on what, when, where, and how independently. In other words: Terminator gone rogue. On the other end of the spectrum are those that point to the fact that although algorithms and artificial intelligence are already used for warfighting purposes, this is only for relatively limited tasks, such as for flagging points of interest in video footage or analysing large quantities of other data. This lack of a definition and the resulting disagreement on the subject of the discussion has resulted in States addressing varying issues based on their individual policy requirements, instead of coming to the core of shared issues and is likely to prevent any substantive international arrangement—legal or other—on the matter, at least for the foreseeable future. Besides the definitional difficulty, use of the term autonomy seems unsuitable in general. The debate concerns the requirement and organization of control, yet considering the common understanding of the terms, any level of human control over a system would mean, by definition, that it is not autonomous. The terms are mutually exclusive. It thus appears oxymoronic to pursue (human) controllable AWS. Some have tried to remedy this incongruity by adding a category of “fully autonomous weapons”10 or by referring to autonomy in so-called “critical functions” only,11 temporarily solving one definitional problem by replacing it for another. So, while use of the term autonomy in relation to weapons systems has greatly contributed in mobilizing popular objection and placing it on the international agenda, it now seems counterproductive in finding common ground to address the legitimate concerns of decreasing levels of human control over the effects of the use of certain emerging technologies. Second, use of the terms autonomous system and robot has, from the outset, led to a rather strong focus on the machinery—the tools—rather than control over the effects of the use of force in general. This has been exacerbated by opting for a disarmament forum to discuss the issue; a forum that historically is experienced in restricting the development, possession, and use of particular types of arms or materials used in warfare. Such a focus neglects that the underlying issue of preventing the undesirable effects of the weaponization of technological developments in the fields of computer programming and artificial intelligence, may be tackled not only by regulating or banning specific types of weapons. An effects-based approach

9

United Nations 2019a, p. 3. See for instance: http://www.reachingcriticalwill.org/resources/fact-sheets/critical-issues/7972fully-autonomous-weapons; https://www.stopkillerrobots.org/learn/; and https://www.hrw.org/ topic/arms/killer-robots. Accessed 18 March 2020. 11 ICRC 2015. 10

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would seem to offer more possibilities. Questions such as whether (autonomous) machines are or will be able to make ethical decisions or to adhere to humanitarian law place the burden on the machine, while it neglects that humans will retain the ability to assess the risks involved and to decide to use—or not—a particular system in a particular situation. Even when an artificially intelligent system would be able to adapt to changing circumstances in ways that would seem unpredictable to the owner, such is often said of so-called self-learning systems, its employment remains a conscious decision for which the decision-maker retains the ability to abstain or to adjust the parameters. The ability to make the employment decision ensures that humans remain ultimately responsible, at least in a moral and political sense. If one accepts that this is the case, it appears to be one of the most significant factors to prevent the undesired effects of the use of such weapons. As one of the authors has argued before, there seems to be no logic in using means and methods of warfare of which the effects are unpredictable, especially for armed forces that have a genuine interest in the legitimacy of their use of force and the adherence to international (humanitarian) law.12 The less predictable the effects, the more reluctant the reasonable commander will be to accept them. The employment decision is the ultimate failsafe, no matter how artificially intelligent the system. The importance of the human role may be exemplified by pointing to a system which is often taken as an example of an autonomous weapon—or a predecessor thereto: the Israeli manufactured Harpy. The Harpy is a loitering munition that is brought in orbit in a pre-defined area after which it independently finds and targets radar systems by homing in on its emitted wave frequency. Admittedly, it operates independently of direct human involvement, especially in its ‘critical functions’ of selecting and engaging targets. In fact, the Harpy is advertised by its manufacturer as “fully autonomous”.13 Yet, critically assessed, its only feat is to detect a frequency and to crash into its point of origin. Humans, however, choose the type of weapon, define the proposed area and timeframe of operation, assess the likelihood of presence of enemy radar installations, pre-program their frequencies in the weapon, decide on what the weapon should do in case no radar point of origin is identified, assess whether collateral damage issues may arise and whether additional restrictions could prevent such undesired effects, and, ultimately, decide on whether to accept the possible consequences and to launch or not. In the authors’ view, this pre-launch human involvement offers a substantial level of control over the effects of the use of the weapon, even absent the possibility of positive control during execution. So, while the Harpy does what it does after launch, it seems somewhat of a stretch to attribute the effects of its use solely to the ‘autonomy’ of the machine. For these reasons, the current authors are of the opinion that the frame of autonomy has done discussions more harm than good. It has prevented a substantive outcome both because of prolonged discussions on definitions as well as

12

Roorda 2015, p. 163. For details of the Harpy, see the website of IAI: Harpy: Autonomous Weapon for All Weather. https://www.iai.co.il/p/harpy. Accessed 18 March 2020.

13

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because of focussing the debate on the wrong questions. That is not to say that there are no legitimate concerns over the development and use of weapons with increasing levels of algorithmic and artificially intelligent software that play a role in targeting decisions and the resulting use of force. There certainly are. The point is merely to refrain from using the term autonomy or autonomous weapons and to focus on the required level of control over the effects of the use of force in general and of the use of particular weapon systems more specifically.

20.3

International Law with Regard to the Concept of Control Over (the Effects of) Weapons

International law features the notion of control in a multitude of legal contexts, as is evidenced by the variety of subjects that are dealt with in this volume. This section assesses the substance of the requirement of control in international law,14 both in the sense of positive control over the use of weapons (i.e. controlling their employment and functioning) and in the sense of control over the effects of the use of a weapon. The most relevant field of international law is International Humanitarian Law (IHL, also known as the law of armed conflict), in particular with respect to the use of weapons (i.e. targeting law or the law on the conduct of hostilities) and the law with regard to the regulation or inherent lawfulness of weapons (i.e. weapons law). The law on arms limitations—or arms control law—is less relevant for the purpose of this chapter, even though the term control would suggest otherwise.15 Arms control law concerns itself with regulating the possession, trade, destruction, development and stockpiling of different types of weapons (some otherwise lawful), ranging from small arms to combat aircraft and other platforms, including components of weapons (such as certain types of chemicals) and goods that also have peaceful purposes (dual-use goods).16 Control in this sense points to regulation and oversight efforts towards regulation, limitation or disarmament, or in the words of the preamble of the Biological Weapons Convention: “through effective measures, (…) [to] facilitate the achievement of general and complete disarmament under strict and effective international control.”17

14

See also the contribution of Boothby in Chap. 18 in this volume. See also the contribution of Myjer in Chap. 17 in this volume. 16 For a restrictive definition, see https://www.un.org/disarmament/convarms/att/. For a wider definition: Arms control law is a “branch of public international law [and] consists of the rules and principles of international law related to the control of armaments—‘control’ being understood as encompassing the whole range of prohibitions of armaments quantitative and qualitative arms limitations as well as obligations to disarm.” Den Dekker 2008, p. 75. 17 Preamble, Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (biological) and Toxin Weapons and on their Destruction, opened for signature on 10 April 1972, 1015 UNTS 163 (entered into force 26 March 1975) (Biological Weapons Convention). A similar phrase is included in the Preamble to the Convention on Prohibitions or 15

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Within the relevant fields of law, the term control is used in several meanings, yet almost exclusively to describe limitations as to the scope of certain provisions, such as to limit the scope to persons, areas or territory under the (jurisdiction or) control of a party to the legal instrument;18 to civilians and civilian objects under the control of a party thereto;19 or to persons under the control of a commander.20 In other words, the term control is not used explicitly in relation to the use of weapons or the effects thereof. The question then is whether it may be inferred that the law on the conduct of hostilities and weapons law contain implicit legal obligations as to control the employment and functioning of weapons and its subsequent effects. It seems fair to say that this is the case, particularly with regard to weapon effects. Section I of Part IV of Additional Protocol I,21 which contains some of the most relevant rules on the conduct of hostilities,22 is titled “General protection against effects of hostilities”. From the included duty to afford the civilian population and individual civilians general protection against dangers arising from military operations,23 it logically follows that the effects of warfare should be controllable with a view to protecting civilians and civilian objects. Such a view is supported by the legal duty to take constant care to spare the civilian population, civilians and civilian objects.24 Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects (Convention on Certain Conventional Weapons, or CCW), opened for signature 10 October 1980, 1342 UNTS 137 (entered into force 2 December 1983). 18 See for example: Articles 2 and 4, Biological Weapons Convention; above n 17; Articles 3, 4, 5, and 6 Protocol on Explosive Remnants of War to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects, opened for signature 28 November 2003, 2399 UNTS 100 (entered into force 12 November 2006) (Protocol V CCW); Articles 4, 5, 6(7)(c), 7(1)(b) and (c), and 9 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction (Ottawa Convention), opened for signature 18 September 1997, 2056 UNTS 211 (entered into force 1 March 1999); Articles 5(3) and (4), 9(2), 10(2) and (3), 12 (2)(b)(i) and (3)(b)(ii), and 14 Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended on 3 May 1996 (Amended Protocol II CCW) annexed to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects, opened for signature 3 May 1996, 2048 UNTS 93 (entered into force on 3 December 1998); and Articles 17(2), 25, 27, 30(1), 33(4), 42(2), 46(2), 47(2)(d), 49(2), 54(5), and 70(1) Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, opened for signature 12 December 1977, 1125 UNTS 3 (entered into force 7 December 1970) (AP I). 19 See for example: AP I, above n 18, Article 58. 20 See AP I, above n 18, Article 87. 21 AP I, above n 18, Articles 48–67. 22 AP I applies to international armed conflict, yet most of its provisions on the conduct of hostilities contained in this section are considered customary IHL and therefore equally applicable in non-international armed conflict. 23 AP I, above n 18, Article 51(1). 24 AP I, above n 18, Article 57(1).

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This duty obligates explicitly to “take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, [collateral civilian casualties or damage]”,25 an obligation that sets standards for adjusting the parameters within which an operation is executed and which —ultimately—prohibits the use of certain weapons if the use of a different weapon is feasible and would result in fewer civilian casualties and/or less damage to civilian objects. It has also been convincingly argued that the precautions principle is a comprehensive obligation that consists of numerous implicit obligations.26 These may include the positive legal duty to assess the legality of the weapons systems under IHL27 but also the implicit obligations to use reliable weapons and to train military personnel in the use of these weapons. In a similar fashion, the prohibition of attacks which employ a method or mean of combat the effects of which cannot be limited as required by IHL and as such cannot discriminate between military objectives and civilians or civilian objects,28 seems to imply a duty to retain a certain degree of control. Exemplifications of this rule are Article 3(3)(b) Amended Protocol II CCW, which refers to the placement of mines “which cannot be directed to a specific military objective”; Article 4(2) (a) Amended Protocol II CCW, referring to restrictions on the use of explosive devices in populated areas, unless against “a military objective belonging to or under the control of an adverse party”; and the restrictions on the use of incendiary weapons on the basis that “the massive spread of fire through incendiary weapons is largely indiscriminate in its effects”.29 That these rules do not make explicit that they require a certain degree of control over the regulated effects of such weapons should not be construed as an argument for the absence of such a legal requirement. The relation between the use of weapons and their effects are in most cases relatively direct, especially at the time of conception of AP I. It is only in the case of computerized weapons that the need arises to make the issue of control over the effects of using certain weapons explicit in the determination of its legality. An issue that has received considerable attention elsewhere is whether the legal obligation to control (the effects of) the use of weapons, also entails that such control needs to be exercised by humans. Jensen, for instance, asks whether the law requires the human element to be a part of the decision-making process for the use of future weapons. His conclusion is that the law is unclear at this point and as a result it “does not require a human decision for selecting and engaging targets” to remain within the boundaries of IHL, as long as the entity (whether human or (partly) machine) making a decision is “able to apply fully and comply with

AP I, above n ICRC 18, Article 57(2)(a)(ii). See also Article 58 titled “Precautions against the effects of attacks”. 26 See generally Corn 2015, pp. 419–466. 27 AP I, above n 18, Article 36. 28 AP I, above n 18, Article 51(4)(c). 29 UN General Assembly, Resolution 2932 1972: “the massive spread of fire through incendiary weapons is largely indiscriminate in its effects”. 25

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[IHL].”30 On the other hand, the ICRC argues that since there are “serious doubts about the ability of autonomous weapon systems to comply with IHL in all but the narrowest of scenarios and the simplest of environments”,31 this requires the control to be human. It seems that such approaches are primarily focussed on the question of control over the employment and functioning of weapons (Jensen: “the entity”). If one would accept, however, the position of the current authors that for the current debate it is more relevant to focus on the requirement of control over the effects of the conduct of hostilities, it seems a moot discussion whether that control is exercised by humans, as long as—correctly pointed out by Jensen—IHL is complied with. So while a legal obligation for positive human control over (the operation of) weapons does not seem to exist, it seems reasonable to accept that a legal obligation exists for human control over the effects of the conduct of hostilities. The debate with regard to emerging technologies, therefore, should not narrowly focus on limiting or banning specific technologies. The focus should be on what level of control is required over the use of legitimate force, while the outcome of such a debate may (still) be to place restrictions on the use of specific weaponry. In examining how such a legal obligation may operate, it is particularly informative to look at the discussions on a concept that was introduced in the context of the CCW: meaningful human control (MHC).

20.4

The Debate About ‘Meaningful Human Control’

The notion of MHC was introduced by non-governmental organization Article 36 in 2013 in a paper calling for an international legal obligation for “individual attacks to be under meaningful human control” and a ban on weapons that could undertake attacks without it.32 The concept was quickly adopted by much of civil society and even among some States.33 The reason seems obvious: it is intuitively appealing. Taken at face value, one could hardly disagree with the desire to have weapons remain under meaningful human control, especially considering the earlier discussed firmly rooted image of the autonomous killer robot and the (irrational, yet understandable) discomfort that it causes. In a sense, those who opposed certain emerging technologies and their (perceived) autonomy found a common denominator in advocating such discomfort. It served both to indicate the subject of regulation or ban—weapon systems lacking meaningful human control—and to strengthen their plea and was thus placed at the centre of attention in the international debate.

30

Jensen 2020, p. 28. ICRC 2015, p. 3. 32 Article 36, 2013. 33 For a general overview with regard to meaningful human control, see UNIDIR 2014. 31

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Somewhat more challenging than its acceptance as a standard was the understanding of its substance. Many argued that it was “vague”34 or “imprecise”.35 Neslage concludes, for this reason, that MHC is not useful for States “in any significant way to know whether they would be in compliance with international law”,36 while Marauhn notes that the concept “does not add anything to existing standards of the law of armed conflict, perhaps even risks blurring them”.37 In this, he suggests, it is merely a “political label”.38 Indeed, MHC has faced similar definitional struggles as the concept of autonomy—perhaps unsurprisingly, given their use as antonyms. Nonetheless, MHC has proven valuable in redirecting (part of) the attention from what is not wanted towards what is. The subsequent discussion on the substance of MHC also proved valuable in broadening the focus from the machinery to the use of force in general. Some of the views on MHC were still system-centric in expressing that such control should be exercise, for instance, over the “critical functions” of a weapon (i.e. the selection and attacking functions that are performed in the weapon itself) as to distinguish from functions less related to the forceful effects, such as navigation.39 Human Rights Watch explicitly took the position that control by humans should not apply to “overall operations” but to individual attacks, a viewpoint seemingly influenced by its position that “[o]nly by prohibiting the use of fully autonomous weapons can such control be guaranteed.”40 Others, however, appeared to accept that control may be exercised through factors other than those merely influencing the direct operation of a system. Article 36, for instance, argued that MHC includes a need for “adequate contextual information” for the human operator and others responsible for attack planning and a need for accountability of those responsible for attacks.41 Somewhat more detailed are the factors provided by UNIDIR, noting that meaningful human control consists of eight more or less technical parameters, including: function of the weapon; spatial limitations; time limitations; predictability; whether the intended target is an object or consists of human beings; mobility of the AWS; and standards of compliance and verification.42 In a study by Horowitz and Scharre, it is concluded that MHC encompasses three “essential components”: “[h]uman operators are making informed, conscious decisions about the use of weapons; [h]uman operators have sufficient information to ensure the lawfulness of the action they are

34

Neslage 2015, p. 176. Crootof 2016, p. 55. 36 Neslage 2015, p. 177. 37 Marauhn 2018, p. 207. 38 Marauhn 2018, p. 212. 39 ICRC 2016, p. 8. 40 Human Rights Watch 2016, p. 2. 41 Article 36 2013, pp. 3–4. Although also still adding that a positive action by a human operator is required for individual attacks. 42 UNIDIR 2014, pp. 5–7. 35

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taking, given what they know about the target, the weapon, and the context for action; [and] [t]he weapon is designed and tested, and human operators are properly trained, to ensure effective control over the use of the weapon.”43 Ekelhof, broadening the scope even further, has argued that the entire military decision making process, referred to as the targeting process, offers the context in which MHC must be understood.44 During the execution phase of the targeting cycle, human control over any type of weapon is lost at a certain point.45 That moment is, however, preceded by a range of other steps where humans decide, among others, on the goal of the operation, the use of a particular weapon in a particular situation, and the parameters within which the operation is to be executed taking account of the possible effects. McFarland adds that any AWS is unavoidably always developed, and its algorithms programmed, by human beings.46 Counterarguments have been made as well. Even when MHC would be perfected, Schwarz doubts that it is “possible to retain the level of human control required for a morally meaningful decision” because “we cannot readily understand or predict how AI-supported LAWS might interact with the contingent, dynamic environment of warfare”; because we may be unable to intervene in a timely manner, and because humans are often unfit to “challenge an algorithmic decision on its technological authority.”47 Yet, again, such arguments seem to suggest a rather system-centred approach. As discussions on the subject progressed, MHC is more and more seen as to require “employing whatever measures are necessary, whether human or technical, to ensure that an operation involving an AWS is completed in accordance with a commander’s intent and with all applicable legal, ethical and other constraints.”48 MHC therefore “emerges primarily as a standard of implementation aiming at the proper application of the law of armed conflict.”49 This means that a human must not necessarily always remain in or on ‘the loop’, depending on the extent to which the rules of IHL are being safeguarded as a result of preceding decisions on the circumstances of deployment. States also seem to adopt this approach.50 The final report of the 2019 meeting of the Group of Governmental Experts on Lethal Autonomous Weapons Systems also acknowledges a similar approach. The report did not include a discussion of the term MHC. Instead, it noted that “[h]uman-machine interaction, which may take various forms and be implemented 43

Horowitz and Scharre 2015, p. 4. Ekelhof 2016. 45 Roorda 2015, p. 160. 46 McFarland 2018. 47 Schwarz 2018. 48 McFarland 2018. 49 Marauhn 2018, p. 217. 50 UNIDIR 2014, p. 4: Both the United States and the United Kingdom “have explicitly stated policy acknowledging the necessity of either human control or human judgment in relation to autonomous weapon systems indicates that some of the notions at the heart of the concept of Meaningful Human Control are already accepted principles by some States.” 44

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at various stages of the life cycle of a weapon, should ensure that the potential use of weapons systems based on emerging technologies in the area of lethal autonomous weapons systems is in compliance with applicable international law, in particular IHL. In determining the quality and extent of human-machine interaction, a range of factors should be considered including the operational context, and the characteristics and capabilities of the weapons system as a whole”.51 Although this conclusion may be seen as merely stating the obvious, it does steer clear of earlier preoccupations within the CCW context of rogue killer robots and reintroduces the existing regulatory framework with regard to the use of weapons as the focal point of discussions about AWS. Nevertheless, it is suggested in this contribution that the concept of control remains central to the discussions relating to the legality of the use of particular weapons and the foreseeable effects of their use. Discussion on the concept of MHC—even though inherently vague as a standard of its own—enhanced discussions on the basis for and the substance of the requirement of control, a discussion that has also broadened its span from the system towards the effects of the use of force in general, a development the current authors have received gladly.

20.5

An Alternative Approach to Control for the Purpose of Emerging Technologies

The (future) development and use of weapons with algorithmic and other intelligent functions necessitates that the legal requirement of control—that was always implicit in the rules of IHL with regard to the conduct of hostilities and the use of weapons—be made explicit. As was noted above, focus should be on the required level of control over the effects of the use of force in general and of particular weapon systems more specifically. This is not only sounder from a legal perspective, it also offers more options than when merely focussing on how to exercise real-time control over the operation of a weapon. The (military) context in which a weapon is deployed is highly relevant in this respect. First of all, the context shapes the practical application of the regulatory framework of the conduct of hostilities, including the rules on distinction, precautions, and proportionality.52 What is practically required by the legal duty to take precautionary measures, for instance, differs from situation to situation. Second, and perhaps most important with regard to the use of emerging technologies, the (pre-launch) assessment of the context shapes the possibility to exercise control. Central therein is the capacity to decide on the use of a particular system in a particular context. This is what offers ultimate

51

United Nations 2019b, pp. 3–4. https://undocs.org/en/CCW/GGE.1/2019/3. Accessed 19 March 2020. 52 Van den Boogaard 2015, p. 283.

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control—over any type of system. That decision will be based on the capacity to understand the functioning of a system and the environment in which it will operate; the capacity to understand the possible effects that a system will generate considering the system’s functioning and the environment; and the capacity to abort or redirect a system after deployment (positive control). Combined, these elements offer a certain level of predictability of the effects that allows those who plan or decide upon employment and subsequent attack to adhere to their legal obligations under IHL. Whether a particular type of weapon would offer sufficient options to readily assess the functioning of a system should be subject to “effective and rigorous testing and evaluation”53 in order to secure the confidence in the weapon, which also informs a legal weapons review. When in doubt of whether the use of a particular weapon will comply with IHL, additional measures may be taken to adjust the context, the functioning of a system, or a combination thereof. Such options depend on the capacity to shape the operating environment; and the capacity to formulate and implement rules by which the system will operate (procedural control). These elements act in unison: a lack of capacity to adjust the environment may be counterbalanced by limitations to the area of operation. The military commander’s decision to employ a certain a weapon in a certain context is the ultimate failsafe; a lack of capacity to understand the possible effects of the use of a system, may be fully compensated by a full capacity to decide on its use. This is how, in the authors opinion, it is possible to retain full human control over a system that is highly sophisticated in terms of artificial intelligence (and to lose control over fairly simple systems). For those who are critical as to whether parties to an armed conflict would adhere to legal requirements, it may be useful to point to the fact that being in control of weapon systems and the effects that they produce, makes military sense. Armed forces would want to allocate capabilities as effectively and efficiently as possible to support achieving their objectives. In this sense, control serves as a prerequisite for military effectiveness. There is no military rationale to develop or use weapons that are uncontrollable, given the risk of potentially harming one’s own cause or causing merely inconsequential effects. So, while it is prohibited to employ a method or mean of combat the effects of which cannot be limited as required by IHL, it is also militarily ineffective—unless, for instance, part of the military strategy would be to spread terror among the civilian population by random attacks.54 So far largely unrecognized in the debate, the fact that the military would want to be in control perhaps serves as a potent counterbalancing force to increasing ‘autonomy’ in weaponry. The ‘reasonable commander’ is thus not only a legal standard, it is an operational one as well. Finally, control may also be exercised (long) prior or after any particular use. Elements of control prior to use may include the capacity to influence development of systems and the capacity to formulate and implement legal, operational or policy

53

Meier 2019, p. 316. See for a discussion about the testing of AWS: Meier 2019, pp. 307–315. Which is explicitly prohibited in AP I, above n 18, Article 51(2).

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norms by which particular usage is restricted or prohibited. In this sense, the ongoing debate is by and of itself a form of exercising human control. After use, control may be exercised by virtue of a capacity to understand and assess the causes of malfunctions or undesired results from (normal) operation and to take appropriate action (technical and accountability) to prevent similar mistakes.

20.6

Conclusions

For a number of reasons the debate regarding the legality of weapons with increasing levels of algorithmic and intelligent ‘reasoning’ is highly polarised. Yet, the challenges in limiting the (unforeseeable) risks concerned with the use of such systems in armed conflict should be of equal concern to all. So far, the discussion has revolved around the notion of autonomy and the question to what extent human beings would legally be required to remain ‘in the loop’ of weapon operation. This chapter has argued that the question of control should not be focussed merely on the system itself. It should focus on the effects of the conduct of hostilities, including the use of weapons, in general. IHL implicitly contains a legal requirement to maintain control over such effects. It is particularly the extent to which a military commander is able to predict and influence the effects of the use of weapons what indicates the level of control and the human decision to deploy a system offers the ultimate failsafe. The authors feel that discarding the notion of autonomy and accepting that control may be exercised in more ways than to merely control a weapon in real time, may break barriers in the sense that States may be able to continue exploring and exploiting the utility of emerging (weapon) technology, while at the same time the legitimate concerns may be addressed. If States run their process to decide on the use of intelligent weapons in the same way they run their process on deciding on the use of other types of weapons—i.e. a military commander consciously decides on the use of particular means and is, thus, responsible for the effects thereof and the implementation of the law—one could hardly see how this does not amount to control. A reasonable commander will be reluctant, at least, to decide on the use of a system if the effects are not predictable. In order to facilitate commanders making such a decision, military forces acquiring such intelligent weapon systems should invest in educating, training, and exercising the functioning and use of such weapons.

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References Articles, Books and Other Documents Article 36 (2013) Killer robots: UK Government policy on fully autonomous weapons, a commentary on the UK Ministry of Defence’s 2011 joint doctrine note on “The UK approach to unmanned systems”, available at: www.article36.org/wp-content/uploads/2013/04/Policy_ Paper1.pdf. Accessed 18 March 2020. Article 36 (2015) Killing by machine: key Issues for understanding meaningful human control, April 2015, available at: http://www.article36.org/wp-content/uploads/2013/06/KILLING_ BY_MACHINE_6.4.15.pdf. Accessed 18 March 2020. Backstrom A, Henderson I (2012) New capabilities in warfare: an overview of contemporary technological developments and the associated legal and engineering issues in article 36 weapons reviews. International Review of the Red Cross 94:483–514. Corn GS (2015) War, law, and the oft overlooked value of process as a precautionary measure. Pepperdine Law Review 42:419–466. Crootof R (2016) A meaningful floor for meaningful human control. Temple International & Comparative Law Journal 30:53–62. Den Dekker G (2008) The Law of Arms Control and Depleted Uranium Weapons. In: MacDonald A, Kleffner JK, Toebes BCA (eds) Depleted Uranium Weapons and International Law: A Precautionary Approach. T.M.C. Asser Press, The Hague, pp 75–97. Ekelhof M (2016) Human control in the targeting process. Presentation to the United Nations Convention on Certain Conventional Weapons Informal Meeting of Experts in Lethal Autonomous Weapons Systems (LAWS), 12 April 2016, available at: https://www.unog.ch/ 80256EDD006B8954/(httpAssets)/A053D83CCD3B95C5C1257F9B004EAB6E/$file/2016_ LAWS+MX_presentations_towardsaworkingdefinition_ekelhofnotes.pdf. Accessed 18 March 2020. Human Rights Watch (2016) Killer robots and the concept of meaningful human control, Memorandum to the Convention on Conventional Weapons (CCW) Delegates, April 2016 (in cooperation with the Harvard International Human Rights Clinic), available at: https://www. hrw.org/sites/default/files/supporting_resources/robots_meaningful_human_control_final.pdf. Accessed 18 March 2020. Horowitz MC, Scharre P (2015) Meaningful human control in weapon systems: a primer. Working paper. Center for a New American Security (CNAS), https://css.ethz.ch/en/services/digitallibrary/publications/publication.html/189786. Accessed 18 March 2020. IAI (undated) Harpy: Autonomous weapon for all weather. https://www.iai.co.il/p/harpy. Accessed 18 March 2020. ICRC (2015) Statement of the International Committee of the Red Cross (ICRC), CCW Meeting of Experts on lethal autonomous weapons systems, Geneva, 13 April 2015, available at: https:// www.unog.ch/80256EDD006B8954/(httpAssets)/4CE346B40DDBF000C1257E2600616A59/ $file/ICRC+general+statement+CCW+LAWS+expert+meeting+13+04+2015+FINAL.pdf. Accessed 18 March 2020. ICRC (2016) Autonomous weapon systems: implications of increasing autonomy in the critical functions of weapons, Report, available at: https://www.icrc.org/en/publication/4283autonomous-weapons-systems. Accessed 18 March 2020. ICRC (2019) Artificial intelligence and machine learning in armed conflict: a human-centred approach, available at: https://www.icrc.org/en/document/artificial-intelligence-and-machinelearning-armed-conflict-human-centred-approach. Accessed 18 March 2020. Jensen ET (2020) The (erroneous) requirement for human judgement (and error) in the law of armed conflict. International Law Studies 96:26–57.

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Marauhn T (2018) Meaningful human control—and the politics of international law. In: Heintschel von Heinegg W, Frau R, Singer T (eds) The dehumanization of warfare. Springer, pp 207–218, https://doi.org/10.1007/978-3-319-67266-3_11. McFarland T (2018) Autonomous weapons and human control. International Committee of the Red Cross, Humanitarian Law and Policy blog, 18 July 2018, available at: https://blogs.icrc. org/law-and-policy/2018/07/18/autonomous-weapons-and-human-control/. Accessed 18 March 2020. Meier MW (2019) Lethal Autonomous Weapon Systems: Is It the End of the World as We Know It,… Or Will We Be Just Fine? In: Ford CM, Williams WS (eds) Complex Battlespaces: The Law of Armed Conflict and the Dynamics of Modern Warfare. Oxford University Press, pp 289–316. Neslage K (2015) Does “meaningful human control” have potential for the regulation of autonomous weapon systems? University of Miami National Security & Armed Conflict Law Review 6:151–177, available at: https://repository.law.miami.edu/umnsac/vol6/iss1/7. Accessed 18 March 2020. Roorda MP (2015) NATO’s targeting process: ensuring human control over (and lawful use of) ‘autonomous’ weapons. In: Williams AP, Scharre PD (eds) Autonomous systems: issues for defence policymakers, NATO HQ SACT Norfolk USA, pp 152–168, available at: https:// www.act.nato.int/images/stories/media/capdev/capdev_02.pdf. Accessed 18 March 2020. Schwarz E (2018) The (im)possibility for meaningful human control for lethal autonomous weapons systems, International Committee of the Red Cross, Humanitarian Law and Policy blog, 29 August 2018, available at: https://blogs.icrc.org/law-and-policy/2018/08/29/impossibility-meaningful-human-control-lethal-autonomous-weapon-systems/. Accessed 18 March 2020. United Nations (2019a) United Nations Convention of Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, CCW/GGE.1/2019/3, Report of the 2019 session of the Group of Governmental Experts on emerging technologies in the area of lethal autonomous weapons systems, 25 September 2019, available at: https://undocs.org/en/CCW/ GGE.1/2019/3. Accessed 18 March 2020. United Nations (2019b) United Nations Convention of Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, CCW/GGE.1/2019/3, Guiding Principles, Annex IV, to the Report of the 2019 session of the Group of Governmental Experts on emerging technologies in the area of lethal autonomous weapons systems, 25 September 2019, available at: https://undocs.org/en/CCW/GGE.1/2019/3. Accessed 18 March 2020. United Nations General Assembly (1972) Resolution 2932 (XXVIII) on General and Complete Disarmament, UN Doc. UA/PV.2093, 29 November 1972, https://undocs.org/en/A/RES/2932 (XXVII). Accessed 18 March 2020. United Nations General Assembly (2013) Human Rights Council: Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns, UN Doc. A/ HRC/23/47, https://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/ Session23/A-HRC-23-47_en.pdf. Accessed 18 March 2020. Van den Boogaard JC (2015) Proportionality in autonomous weapons systems. Journal of International Humanitarian Legal Studies 6:247–283, https://doi.org/10.1163/1878152700602007 UNIDIR (2014) The weaponization of increasingly autonomous technologies: considering how meaningful human control might move the discussion forward. Available at: https://unidir.org/ files/publications/pdfs/considering-how-meaningful-human-control-might-move-thediscussion-forward-en-615.pdf. Accessed 18 March 2020. Williams J (2011) Borderless battlefield: The CIA, the U.S. military, and drones. International Journal of Intelligence Ethics 2:2–34, available at: http://journals.fcla.edu/ijie/article/view/ 83440/williams. Accessed 18 March 2020.

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Treaties Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects (Convention on Certain Conventional Weapons, or: CCW), opened for signature 10 October 1980, 1342 UNTS 137 (entered into force 2 December 1983). Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (biological) and Toxin Weapons and on their Destruction (Biological Weapons Convention), opened for signature on 10 April 1972, 1015 UNTS 163 (entered into force 26 March 1975). Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction (Ottawa Convention), opened for signature 18 September 1997, 2056 UNTS 211 (entered into force 1 March 1999). Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Additional Protocol I), opened for signature 12 December 1977, 1125 UNTS 3 (entered into force 7 December 1979). Protocol on Explosive Remnants of War to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects (Protocol V CCW), opened for signature 28 November 2003, 2399 UNTS 100 (entered into force 12 November 2006). Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended on 3 May 1996 (Amended Protocol II CCW) annexed to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects, opened for signature 3 May 1996, 2048 UNTS 93 (entered into force on 3 December 1998).

Dr. Jeroen C. van den Boogaard is an assistant professor in military law at the Netherlands Defence Academy and a lecturer and researcher at the University of Amsterdam. In 2019, he defended his Ph.D. thesis entitled ‘Proportionality in International Humanitarian Law—Principle, Rule and Practice’, which was supervised by Prof. Terry Gill. Together with Terry Gill, he teaches the course on International Humanitarian Law at the University of Amsterdam. Mark P. Roorda is an adviser at the Centre of Expertise for Military Law of the Netherlands Public Prosecution Service. A former officer in the Royal Netherlands Marine Corps, he was a student and later a colleague of Prof. Terry Gill at the NLDA. Prof. Gill is supervising his Ph.D. research on the incorporation of the law of armed conflict in the military targeting process for the use of unmanned weapon systems.

Chapter 21

State Control Over the Use of Autonomous Weapon Systems: Risk Management and State Responsibility Robin Geiß

Contents 21.1 Introduction...................................................................................................................... 21.2 Risk Management and State Responsibility in the Context of Autonomous Weapon Systems ............................................................................................................................ 21.3 Risk Management—Preventative Measures.................................................................... 21.3.1 Article 36 AP I and the Martens Clause ........................................................... 21.3.2 Article 36 AP I and Autonomous Weapons Systems ....................................... 21.3.3 Preventative Steps to Be Taken to Minimise Risks Arising Out of the Deployment of Autonomous Weapons Systems..................................... 21.4 Attribution and State Responsibility ............................................................................... 21.5 Conclusion ....................................................................................................................... References ..................................................................................................................................

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This contribution builds on and is derived from a study written for the Friedrich Ebert Foundation, Robin Geiß, The international-law dimension of autonomous weapons systems (October 2015), available at: http://library.fes.de/pdf-files/id/ipa/11673.pdf, on an intervention delivered to the third CCW meeting of experts on lethal autonomous weapons systems (LAWS) Geneva, 11–15 April 2016, see Robin Geiß, Autonomous Weapons Systems: Risk Management and State Responsibility, available at: http://www.unog.ch/80256EDD006B8954/(httpAssets)/ 00C95F16D6FC38E4C1257F9D0039B84D/$file/Geiss-CCW-Website.pdf (last accessed 6 February 2020) and the chapter R. Geiß and H. Lahmann, ‘Autonomous weapons systems: a paradigm shift for the law of armed conflict?’, in J. Ohlin (ed.), Research Handbook on Remote Warfare, Edward Elgar Publishing 2017, pp. 371. R. Geiß (&) University of Glasgow, Glasgow, UK e-mail: [email protected] R. Geiß Geneva Academy of International Humanitarian Law and Human Rights, Geneva, Switzerland © T.M.C. ASSER PRESS and the authors 2021 R. Bartels et al. (eds.), Military Operations and the Notion of Control Under International Law, https://doi.org/10.1007/978-94-6265-395-5_21

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Abstract Starting from the premise that meaningful human control always needs to be ensured when deploying autonomous weapons systems and that anti-personnel autonomous weapons systems should be banned altogether, this contribution considers to what extent State control over the development and any later use of autonomous weapon systems is required, should these weapon systems and weapons nevertheless be developed. First, the questions that risk management and State responsibility pose in this regard are analysed, and what preventative steps may be taken. Second, attribution and State responsibility for the use of autonomous weapons are considered.







Keywords Autonomous weapons State responsibility international humanitarian law weapons review procedures attribution




21.1




Introduction

I first met Professor Gill in 2010 during the deliberations of the International Group of Experts that drafted the Tallinn Manual on the International Law applicable to cyber warfare. We stayed in touch ever since and over the years have had many opportunities to collaborate especially in the context of the ILA Study Group on the Challenges of twenty-first century warfare and as editors of the Yearbook of International Humanitarian Law. I greatly enjoyed our various interactions and inspiring discussions, highly enriched not only by Professor Gill’s eloquence and outstanding expertise in the field of the laws of armed conflict but also by his splendid sense of humour. I am therefore truly delighted to be able to contribute to this volume edited in his honour. Once the subject of speculation and abstract ideas, the increased application of artificial intelligence (AI) in the industrial and commercial sectors has drawn wider attention to the debate on the use of AI in a military context and the deployment of autonomous weapons systems (AWS). Here, the use of AWS is generally considered revolutionary,1 as it has drastic consequences for decision-making processes in conflict situations. Whereas humans will continue to decide on the general deployment of AWS, the situational decisions, potentially including the decision to kill, will increasingly be made by machines.2 Some degree of speculation, however, remains as truly autonomous weapons systems do not yet exist. Sophisticated automated systems like the Samsung SGR-A1 guarding the demilitarised zone between South and North Korea and the US Northrop Grumman X-478 already exist, but these are not yet fully autonomous in the sense that they—once they are activated—can independently and without further human intervention, select targets and attack, the definition of AWS applied

1

See e.g. Singer 2009, p. 179 et seq. UN General Assembly 2013, p. 28.

2

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in this chapter.3 In fact, some experts retain doubts whether such robot can ever be developed.4 Most experts, however, come to the conclusion that the deployment of autonomous weapons systems in a military context is merely a matter of time. Such assessment is fuelled by announcements from major military powers like the United States, intending to develop and increasingly deploy AWS before 2038.5 Similarly, China intends to lead the world in AI by 2030 and as is well-known, Russian President Vladimir Putin predicted that “whoever leads in AI will become the ruler of the world”. There can be no doubt that the arms race in the field of AI is already well underway. Incentives for states to deploy AWS in conflict zones are manifold, especially where increasingly complex conflict situations in urban settings require fast analysis of increasing amounts of data in order to make an informed yet immediate decision in a combat situation. Robots are far more capable than humans when it comes to collecting and analysing large quantities of data sets and then acting precisely according to the information gathered. The deployment of AWS in this context might even be seen as unavoidable in order to react to the realities of modern conflict zones.6 Further, deploying AWS instead of humans firstly, decreases the risk of human loss and secondly, excludes human emotions from the battlefield. Not only do robots experience no physical exhaustion or boredom, but they also do not react excessively in situations of fear or anger and do not suffer from post-traumatic stress disorder or other consequences on mental health. The lack of emotions can, however, also seen as a major flaw of this new technology. The argument against the deployment of AWS stresses that where the decision process is determined by algorithms, systems operate clinically and are incapable of showing empathy or mercy. Human life thus ultimately decreases in value where the decisions to kill are made by robots. This so-called ‘video game mentality’ has already been witnessed in the context of remotely controlled drone missions—a sentiment that arguably is amplified by the use of AWS.7 Ultimately, decisive risks also remain with respect to the programming of robots. Can forms of serious malfunction or reactions to unforeseen circumstances be excluded? This short contribution will explore questions of risk management and state responsibility. In doing so, it is based on the understanding that meaningful human control always needs to be ensured when deploying autonomous weapons systems and that anti-personnel autonomous weapons systems should be banned altogether.

3

This definition is based on the broad definition set out by the United States Department of Defense in US Department of Defense 2013. 4 See O’Connell 2014, p. 226. 5 US Department of Defense 2013. 6 Hans-Arthur Marsiske, Können Roboter Kriege humanisieren?, Telepolis, 13 April 2014, http:// www.heise.de/tp/artikel/41/41439/1.html (last accessed 7 February 2020). 7 Geneva Academy of International Humanitarian Law and Human Rights 2014, p. 5.

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Risk Management and State Responsibility in the Context of Autonomous Weapon Systems

It is clear that autonomous weapons systems that cannot comply with the laws of armed conflict must not be fielded. In order to analyse whether they are capable of complying with existing international humanitarian law provisions, Article 36 to the Additional Protocol I (API) of the Geneva Conventions is a logical starting point for any discussions about autonomous weapons systems. It states that In the study, development, acquisition or adoption of a new weapon, means or method of warfare, a High Contracting Party is under an obligation to determine whether its employment would, in some or all circumstances, be prohibited by this Protocol or by any other rule of international law applicable to the High Contracting Party.

To this end, the following section (Sect. 21.3) will provide an analysis as to how the obligations set out in Article 36 API can be applied in the context of autonomous weapons systems. However, even weapons that have been thoroughly reviewed may fail or malfunction in combat. This is true for any type of weapon. Accidents can happen. There is no such thing as absolute certainty. With regard to autonomous weapons systems there is concern that because of their autonomy—even after thorough testing—there remains a higher than usual risk and degree of unpredictability as to how exactly they will operate under actual battlefield conditions and a resultant higher risk of accidents and wrongful conduct. The question is how to manage these risks and how to allocate (state) responsibility if something goes wrong? Issues raised with respect to state responsibility in the context of autonomous weapons systems will be addressed in Sect. 21.4 of this chapter.

21.3

Risk Management—Preventative Measures

21.3.1 Article 36 AP I and the Martens Clause Important general clauses that are supposed to ensure the timelessness and dynamism of international humanitarian law include the so-called Martens Clause and the weapons inspection obligation enshrined in Article 36 of the First Additional Protocol to the Geneva Conventions. The Martens Clause was first put in writing in the preamble of the Hague Convention of 1899 and finds its contemporary formulation in Article 1(2) of the First Additional Protocol to the Geneva Conventions: In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.

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The International Committee of the Red Cross concludes from this that new weapons must be investigated before their deployment to see whether they are at odds with the basic principles of humanity or the dictates of public conscience.8 In other words, the First Additional Protocol lays down the obligation, before the introduction of new weapons technologies, to investigate whether they would violate the provisions of international humanitarian law or any other applicable regulation of international law. Although the customary law status of the clause is controversial, even some militarily important states, which have not ratified the First Additional Protocol, have at least recognised the fundamental obligation to inspect weapons and have introduced formal investigation procedures.9 However, it remains controversial whether a weapon that violates Article 36 Additional Protocol I is automatically prohibited or whether a special treaty is required for that. The more convincing view is that a weapon cannot be permitted if it is not compatible with the principles of international humanitarian law per se. A clear difficulty in this respect is that the principles themselves are not sufficiently precise and tend to apply rather high standards. A new weapon is therefore only rarely deemed to be in violation thereof.10 With regard to the development of autonomous weapons systems it has rightly been pointed out that it is crucial to commence their investigation early on and in particular to keep an eye on the process at every step. Because if the weapons are manufactured solely on the basis of purely technical feasibility and then are made ready for sale, given the immense research and development costs a vested interest arises that makes the commissioning of such systems virtually inevitable. In such circumstances and at that point it would seem difficult to arrive at the conclusion that there is no compatibility with Article 36 Additional Protocol I.11 The following section will take a closer look at autonomous weapons system and their compatibility with international law by conducting a review as suggested under Article 36 AP I.

21.3.2 Article 36 AP I and Autonomous Weapons Systems In the debate on autonomous weapons systems the focus to date has been on the question whether such systems would be capable of complying with the rules of international humanitarian law. These are the provisions of international law that are applicable during an armed conflict. They modify key human rights protections,

8

ICRC 2006, p. 17. See Human Rights Watch 2012, p. 22; this applies in particular to the United States, see US Department of Defense 2003. 10 Geiß 2014, p. 237. 11 Sassòli 2014, p. 322. 9

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in particular the right to life. Thus, during armed conflict the right to life is granted only in accordance with international humanitarian law. That means, among other things, that enemy fighters and combatants may be attacked basically at any time as legitimate military targets, even if they constitute no direct threat to other parties to the conflict at the given point in time. With respect to the principle of distinction according to which civilians do not constitute legitimate targets in armed conflicts and which is codified in Article 51 in the first Additional Protocol to the Geneva Conventions and as found in customary international law, it must be concluded that in principle, autonomous weapons systems are capable of complying with this provision. Difficulties remain with respect to the technological challenges to program the sensors of the weapons systems so that it is capable of making such distinction with sufficient reliability. It is uncertain whether this standard can be met. Further, it remains unclear whether algorithms are able to make these decisions in complex conflict situations as they typically arise in situations of ‘asymmetrical’ or ‘urban warfare’ in which human behaviour has to be interpreted context specifically. At the same time, making such distinction is also a difficult task for soldiers who at the one hand can be positively influenced by applying a ‘gut feeling’ yet can also panic in combat situations. The latter challenges are not applicable to autonomous weapons systems. It follows that although AWS can comply with the principle of distinction in some circumstances, questions remain as to whether robots should be allowed to use lethal force against humans and if they do so whether they should be held accountable to higher standards than their human counterparts. In addition, the capability of AWS to detect an enemy fighter who enjoys protection as a person hors de combat, i.e. the status of protection granted when a fighter surrenders or is injured, remains questionable. According to a second cornerstone principle of humanitarian law, the principle of proportionality, attacks ‘which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated’ are prohibited.12 Thus, autonomous weapons systems have to be able to make a decision between an anticipated military advantage and possible civilian damages—an immensely difficult and complex assessment that requires value-based case-by-case decisions. The applicable standard for the decision is that of a ‘reasonably well-informed person’13 and it remains questionable whether an algorithm can fulfil such standard in order to determine whether under the circumstances prevailing at the time in question and when taking into account all available information it could be expected that the attack would result in an excessive number of civilian casualties. Experts disagree as to whether robots could

12

The principle of proportionality is codified in Articles 51(5)(b) and 57(2)(a)(iii) Additional Protocol I to the Geneva Conventions as well as customary international law. 13 ICTY, Prosecutor v. Stanislav Galic, Judgment (Trial Chamber) (Case No. IT-989-29-T), 5 December 2003, para 58.

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fulfil this standard. An argument brought forward in favour of the deployment of AWS to conduct the proportionality assessment is that as they lack emotions such as anger, they cannot be tricked into applying excessive force.14 With regard to the duty of care that an attacking force is liable to take according to Article 57(1) AP I, constant assessments of precautions in order to prevent civilian losses must be taken. This obligation arguably extends from commanders to then manufacturers and programmers of LAWS.15 As such, risk to civilian loss has to be constantly reassessed during an operation. This could be interpreted as an implicit duty to retain human oversight in form of a human soldier ‘on the loop’.16 Arguably, sufficient precaution can then only be guaranteed where autonomous weapons systems are only deployed in situations that excludes risk to civilians—an unlikely scenario given common conflict structures in the twenty-first century. The previous analysis has shown that autonomous weapons systems as such do not violate international humanitarian law. Whether they are ultimately capable of complying with the principles of distinction and proportionality and are capable of taking the necessary precautions, however, will depend on the contexts in which they are deployed and, for the time being, remains subject to speculation as long as algorithms are not sufficiently advanced. However, if they are able to fulfil such high standards, autonomous systems can work more precisely than humans and thus, at least in some circumstances, could ultimately decrease risk to civilian and combatants’ lives. A purely legal analysis, however, fails to take into account basic considerations, such as the question whether humanitarian law is based on the assumption that humans are making decisions in armed conflict scenarios.17 Humanitarian law certainly refers to human standards with respect to decision-making processes. Where robots are deployed, should they not be held accountable to higher standards? In addition, the use of autonomous weapons systems in armed conflicts raises fundamental ethical questions. Many argue that leaving the decision to kill to robots violates human dignity. The protection of human dignity is based on the perception that every human being is treated as an individual—a premise that can no longer be upheld where the killing of a human being is seen as a mere object of mathematically calculated decisions to kill. UN Special Rapporteur Heyns in this context aptly talks of “death by algorithm”.18 Furthermore, a person attacked by an autonomous weapons system fundamentally lacks the opportunity to appeal to the attacker’s humanity. Factors such as 14

Arkin 2007, p. 58; Noel Sharkey criticizes Arkin’s approach generally, on the ground that it envisages only a back-end system, which relies on the development in the near future of sensors capable of providing such software with an adequate sense of the outside world. The development of such sensors is not on the horizon, however, which means that Arkin’s argument is merely a thought experiment and is likely to remain so; Sharkey 2012, p. 790. 15 Boothby 2014, p. 115. 16 Geneva Academy of International Humanitarian Law and Human Rights 2014, p. 4. 17 Asaro 2012, p. 700. 18 Heyns 2015, p. 5.

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dignity or empathy are removed from the equation. Robots have no understanding of the inherent value of human life. Killing is not always necessary. Even if such systems could be programmed in such a way that they always apply deadly force within what is legally permissible the possibility exists that people will die who otherwise would have been spared. The deployment of autonomous weapons systems further impacts the resident civilian population whose capability of living a dignified life could be impaired. Much like the deployment of drones,19 the use of lethal weapons systems could have disturbing effects, preventing civilian population to lead a normal everyday life. The assessment makes clear that although AWS are not necessarily in violation of international humanitarian law, their deployment raises many questions for the application of existing principles of humanitarian law. A review under the broad obligation set out in Article 36 AP I points to the continued risks and legal as well as ethical implications that must be considered when deploying AWS even where their use is not in violation of international humanitarian law as such.

21.3.3 Preventative Steps to Be Taken to Minimise Risks Arising Out of the Deployment of Autonomous Weapons Systems Some have argued that because of these risks autonomous weapons systems should be banned. Others have argued that residual risks, i.e. risks that remain after the required Article 36 API weapons review, are generally acceptable. In my view, both approaches go too far. Article 36 API should be understood as an important first step. The deployment of autonomous weapons systems is not (per se) unlawful but it is (at least in certain deployment scenarios) a high-risk activity. This novel technology—especially if it is used in a complex battlefield environment—is not (yet) fully understood. There is predictable unpredictability. Therefore, further fine-tuning and additional risk mitigation is required beyond mere weapons reviews. The following section will thus expand on the relevant preventative steps to be taken in order to minimise the risks posed by autonomous weapons systems. Prevention is better than cure. The identification and specification of detailed (due diligence) obligations aiming at risk prevention and harm reduction is central. Violations of such obligations also lead to state responsibility. With respect to the Laws of Armed Conflict such obligations could e.g. be derived from common Article 1 GC I-IV (and corresponding customary international law), which requires States to ensure respect for the laws of armed conflict in all circumstances. The problem is not the lack of a legal basis but the lack of clarity as to what exactly it is that the due diligence obligation to ensure respect requires with regard to 19

International Human Rights and Conflict Resolution Clinic at Stanford Law School and Global Justice Clinic at NYU School of Law 2012.

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autonomous weapons systems. As is well known due diligence obligations typically require what a reasonable actor would do under the given circumstances. But it is hard to know what is considered reasonable when dealing with a new technology for which clear standards, practical experiences and benchmarks do not (yet) exist. Without such clarification, due diligence obligations aimed at risk mitigation remain empty shells. It is therefore recommended that in addition to the clarification of Article 36 API more emphasis is put on the specification and clarification of due diligence obligations aimed at risk prevention and harm reduction. There are various ways in which risks resulting from unpredictable robot behaviour could be mitigated [e.g. by implementing automatic deactivation devices, real-time monitoring, conservative programming (“shoot second”, “double-check”)]. As a general rule the higher the risk, the stricter the obligation to mitigate risks. There is thus a graduated set of risk mitigation obligations depending on deployment scenarios, the range of tasks to be fulfilled, and the specific features of the weapons system at issue. In other words, risk mitigation obligations will be rather low when a robot is deployed in a predetermined area where no human beings are present. Conversely, if a robot were to be deployed in a complex, highly dynamic (urban) area risk mitigation obligations would be very high and could turn into a prohibition to use robots in such contexts where risks cannot be sufficiently mitigated.

21.4

Attribution and State Responsibility

Where a state benefits from the various (strategic) gains associated with this new technology, it should be held responsible whenever the (unpredictable) risks inherent in this technology are realized. On the basis of this rationale a state could be held responsible for failures regarding risk prevention and harm reduction (at the pre-deployment stage) as well as for specific (wrongful) actions of the autonomous weapon system. The following section will expand on the question of how state attribution and responsibility can be established in the context of autonomous weapons systems. Traditional accountability models in the context of arms and weapons deployment are typically premised on some form of control and/or foreseeability. With the technological developments in the last few decades, it has become evident that higher levels of autonomy in weapons systems mean lower levels of control and foreseeability. Accordingly, the more autonomous a (weapons) system is, the more difficult will it be to establish accountability on the basis of traditional accountability models. This challenge exists with regard to civil uses of autonomous technology (e.g. self-driving cars) in the same way that it exists for military uses of autonomous systems. This, however, does not mean that there is an inevitable or insurmountable “accountability gap”. Especially in the area of state responsibility—the conceptual challenges are greater when focusing on individual criminal responsibility—

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accountability challenges can be overcome by way of regulation and clarification of existing laws. There is no conceptual barrier for holding a state (or individual human being) accountable for wrongful acts committed by a robot or for failures regarding risk minimization and harm prevention. There is therefore no need to devise a new legal category of “e-persons”, “non-human actors”, or “virtual legal entities” and any idea that a robot could be held accountable should be rejected. Against this backdrop, the following section will now turn to the possibility of state responsibility in the context of autonomous weapons systems. In accordance with general rules on state responsibility, a state is responsible for internationally wrongful acts that are attributable to it. No particular legal challenges arise with regard to the attribution of acts committed by autonomous weapons systems. For as long as human beings decide on the deployment of these systems, accountability can be determined on the basis of established rules on attribution. Thus, if a member of the armed forces (i.e. a state organ) of State A decides to deploy a robot on a combat mission, all activities carried out by the robot are attributable to that State. The mere fact that a weapons system has (some) autonomous capabilities does not alter this assessment. The determination whether an internationally wrongful act has been committed, i.e. whether a (primary) norm has been violated by an autonomous weapons system can be more problematic. Some rules of international (humanitarian) law are violated whenever their objective requirements are met. In this case no particular challenges arise. Other primary rules of international (humanitarian) law, however, in order to be violated, require an element of “fault” (negligence, recklessness, intent). Which rules belong to the first or the second category may not always be clear and is in my view not fully settled. It depends on the specific requirements and interpretation of the (primary) rule in question. If the rule in question belongs to the second category, i.e. if it is a rule that requires an element of “fault” in order to be violated, it may be difficult or impossible to establish state responsibility for robotic activity. The following scenario may help to illustrate the problem: A state/military commander may field a thoroughly tested and duly authorized autonomous weapons system, which—because it operates autonomously in a complex and dynamic battlefield environment—nevertheless unexpectedly violates the laws of armed conflict. There is no indication that the military commander acted with intent or negligence. And intent and negligence denote human mental states that are by definition absent in a robot. Given the complexity of these systems it may in any case be difficult to prove what exactly went wrong. As a consequence, it may be impossible to establish or prove state responsibility. Conceptually, there are two principal ways how this particular accountability challenge associated with autonomous systems could be overcome. These two approaches are not mutually exclusive. Ideally, they should complement each other. First, a (future) liability regime for autonomous weapons systems could be designed so as to not require any proof of fault (“strict liability”) or reverse the burden of proof (“presumed liability”). Strict liability regimes for unpredictable, high-risk activities are not without precedent in international (see e.g. Outer Space Treaty

21

State Control Over the Use of Autonomous Weapon Systems …

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1967, Space Liability Convention 1972). With respect to civil uses of autonomous systems the Swedish automaker Volvo also pledged to be “fully liable” for accidents caused by its self-driving technology. Further reflection, however, is required as to how such a liability regime could (ever) be applied in the context of an armed conflict and with regard to systems that are by definition designed to cause certain damage. Second, instead of focusing (only) on the specific act in question the focus could be shifted to risk mitigation and harm reduction obligations (at the pre-deployment stage) and state responsibility arising from failure to abide by these obligations.

21.5

Conclusion

The previous analysis has shown that the deployment of autonomous weapons systems bears unpredictable risk. These risks and the legality of the deployment of AWS can—as a first step—be evaluated by a review procedure as set out in Article 36 AP I. However, this is only the first step, as such assessment points to the need for further clarification of both, Article 36 AP I and the due diligence obligations relating to risk prevention, such as common article 1 to the Geneva Conventions. Further, steps that should be taken in order to minimise the remaining risks, such as conservative programming of AWS, should correspond to the deployment scenario. Risks, however, will remain and as such, states are responsible where risks materialise as they are also the ones profiting from the strategic gains enabled by this new technology. Where an act can be attributed to a state, state responsibility can be established when an internationally wrongful act has been committed.

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Prof. Dr. Robin Geiß is professor of international law and security at the University of Glasgow, Director of the Glasgow Centre for International Law and Security, and he is currently the Swiss Chair of International Humanitarian Law at the Geneva Academy of International Humanitarian Law and Human Rights.

Appendix

List of publications Terry D. Gill 2019 Gill TD, Tibori Szabó KJ (2019) Twelve Key Question on Self-Defense against Non-State Actors. International Law Studies (Naval War College) 95:468–505 Gill TD (2019) ILMO: The ‘Flux Capacitor’ of Contemporary Military Operations. Afscheidsrede. Militair Rechtelijk Tijdschrift 112(3), https://puc. overheid.nl/mrt/doc/PUC_294031_11/ Gill TD et al. (2019) Yearbook of International Humanitarian Law, Volume 21, 2018. T.M.C. Asser Press, The Hague, https://doi.org/10.1007/978-94-6265343-6 2018 Gill TD et al. (2018) Yearbook of International Humanitarian Law, Volume 20, 2017. T.M.C. Asser Press, The Hague, https://doi.org/10.1007/978-94-6265264-4 Ducheine PAL, Gill TD (2018) From cyber operations to effects: some targeting issues. Militair Rechtelijk Tijdschrift, 111(3):37–41 Gill TD (2018) Belligerency. In: Djukić D, Pons N (eds) The Companion to International Humanitarian Law. Brill Nijhoff, Leiden, pp 210–211, https://doi. org/10.1163/9789004342019 Gill TD (2018) Belligerents, Equality of. In: Djukić D, Pons N (eds) The Companion to International Humanitarian Law. Brill Nijhoff, Leiden, pp 212– 214, https://doi.org/10.1163/9789004342019 Gill TD (2018) Belligerents. In: Djukić D, Pons N (eds) The Companion to International Humanitarian Law. Brill Nijhoff, Leiden, pp 211–212, https://doi. org/10.1163/9789004342019 © T.M.C. ASSER PRESS and the authors 2021 R. Bartels et al. (eds.), Military Operations and the Notion of Control Under International Law, https://doi.org/10.1007/978-94-6265-395-5

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Gill TD (2018) Peacekeeping. In: Djukić D, Pons N (eds) The International Humanitarian Law. Brill Nijhoff, Leiden, pp 550–551, https://doi.org/10.1163/ 9789004342019 Gill TD, Tibori-Szabó, K (2018) The intervention in Somalia—1992–95. In: Ruys T, Corten O (eds) The use of force in international law: a case based approach. Oxford University Press, Oxford, pp 482–494, https://doi.org/10. 1093/law/9780198784357.001.0001 2017 Gill TD et al. (2017) Yearbook of International Humanitarian Law, Volume 19, 2016. T.M.C. Asser Press, The Hague, https://doi.org/10.1007/978-94-6265213-2 Gill TD et al. (2018) Final Report ILA Study Group on the conduct of hostilities: the conduct of hostilities under international humanitarian law: challenges of 21st Century warfare. Yearbook of International Humanitarian Law, Volume 19, 2016, pp 287–336. T.M.C. Asser Press, The Hague, https://doi.org/10.1007/ 978-94-6265-213-2 Gill TD, Fleck D, Boothby WH, Vanheusden A (eds) (2017) Leuven Manual on the international law applicable to peace operations: prepared by an international Group of Experts at the invitation of the International Society for Military Law and the Law of War. Cambridge University Press, Cambridge, https://doi.org/ 10.1017/9781108610100 Gill TD, van Haaster J, Roorda M (2017) Some legal and operational considerations regarding remote warfare: drones and cyber warfare revisited. In: Ohlin JD (ed) Research Handbook on Remote Warfare. Edward Elgar, Cheltenham, pp 298–332, https://doi.org/10.4337/9781784716998.00020 Schmitt MN et al. (2017) Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations: prepared by the International Groups of Experts at the Invitation of the NATO Cooperative Cyber Defence Centre of Excellence. Cambridge University Press, Cambridge, https://doi.org/10.1017/ 9781316822524 2016 Gill TD (2016) Just Security Blogpost—Letter to the Editor from Professor Terry Gill on classification of international armed conflict, https://www. justsecurity.org/33569/letter-editor-prof-terry-gill-classification-internationalarmed-conflict/ Gill TD (2016) Classifying the Conflict in Syria. International Law Studies (Naval War College), 92:353–380 Gill TD et al. (2016) Yearbook of International Humanitarian Law, Volume 18, 2015. T.M.C. Asser Press, The Hague, https://doi.org/10.1007/978-94-6265141-8

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Gill TD (2016) Some considerations concerning the role of the ius ad bellum in targeting. In: Ducheine PAL, Schmitt MN, Osinga FPB (eds) Targeting: the challenges of modern warfare. T.M.C. Asser Press, The Hague, pp 101–119, https://doi.org/10.1007/978-94-6265-072-5_5 2015 Gill TD et al. (2015) Yearbook of International Humanitarian Law, Volume 17, 2014. T.M.C. Asser Press, The Hague, https://doi.org/10.1007/978-94-6265091-6 Gill TD (2015) International humanitarian law applied to cyber-warfare: Precautions, proportionality and the notion of ‘attack’ under the humanitarian law of armed conflict. In: Tsagourias N, Buchan R (eds) Research handbook on international law and cyberspace. Edward Elgar Publishing, Cheltenham, pp 366–379, https://doi.org/10.4337/9781782547396.00029 Gill TD, Fleck D (2015) Concept and sources of the international law of military operations. In: Gill TD, Fleck D (eds) The handbook of the international law of military operations, 2nd edn. Oxford University Press, Oxford, pp 3–13 Gill TD (2015) Legal characterization and basis for enforcement operations and peace enforcement operations under the Charter. In: Gill TD, Fleck D (eds) The handbook of the international law of military operations, 2nd edn. Oxford University Press, Oxford, pp 95–109 Gill TD (2015) Legal parameters for the use of force in the context of the UN collective security system. In: Gill TD, Fleck D (eds) The handbook of the international law of military operations, 2nd edn. Oxford University Press, Oxford, pp 128–132 Gill TD (2015) Characterization and legal basis for peace operations. In: Gill TD, Fleck D (eds) The handbook of the international law of military operations, 2nd edn. Oxford University Press, Oxford, pp 153–160 Gill TD (2015) Legal parameters for the use of force within the context of peace operations. In: Gill TD, Fleck D (eds) The handbook of the international law of military operations, 2nd edn. Oxford University Press, Oxford, p 169 Gill TD (2015) Legal basis of the right of self-defence under the UN Charter and under customary international law. In: Gill TD, Fleck D (eds) The handbook of the international law of military operations, 2nd edn. Oxford University Press, Oxford, pp 213–224 Gill TD, Ducheine PAL (2015) Rescue of nationals. In: Gill TD, Fleck D (eds) The handbook of the international law of military operations, 2nd edn. Oxford University Press, Oxford, pp 240–243 Gill TD (2015) Humanitarian intervention. In: Gill TD, Fleck D (eds) The handbook of the international law of military operations, 2nd edn. Oxford University Press, Oxford, pp 244–251 Gill TD (2015) Military intervention with the consent or at the invitation of a government. In: Gill TD, Fleck D (eds) The handbook of the international law of military operations, 2nd edn. Oxford University Press, Oxford, pp 252–255

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Gill TD, Fleck D (2015) Private contractors and security companies. (eds) The handbook of the international law of military operations, 2nd edn. Oxford University Press, Oxford, pp 541–545 Gill TD, Fleck D (2015) International law for military operations: conclusions and perspectives. In: Gill TD, Fleck D (eds) The handbook of the international law of military operations, 2nd edn. Oxford University Press, Oxford, pp 610– 618 Gill TD (2015) When does self-defence end? In: Weller M (ed) The Oxford handbook of the use of force in international law. Oxford University Press, Oxford, pp 737–752 2014 Gill TD et al. (2014) Yearbook of International Humanitarian Law, Volume 16, 2013. T.M.C. Asser Press, The Hague, https://doi.org/10.1007/978-94-6265038-1 Gill TD (2014) Some thoughts on the relationship between international humanitarian law and international human rights law: a plea for mutual respect and a common-sense approach. In: Haek Y et al. (eds) The realisation of human rights: when theory meets practice: studies in honour of Leo Zwaak. Intersentia, Cambridge/Antwerp/Portland, pp 335–350 Gill TD (2013) Some thoughts on the relationship between international humanitarian law and international human rights law: a plea for mutual respect and a common-sense approach. Yearbook of International Humanitarian Law 16:251–266 2013 Gill TD et al. (2013) Yearbook of International Humanitarian Law, Volume 15, 2012. T.M.C. Asser Press, The Hague Boddens Hosang H, Gill TD, Ducheine PAL, Marchand C (2013) Report on the role of self-defence in multinational operations. In: Recueil (International Society for Military Law and the Law of War) Gill TD, Marchand C, Ducheine PAL, Boddens Hosang JFR (2013) General Report to the 19th Congress of the International Society of Military Law and the Law of War on “Legal Interoperability and Ensuring Observance of the Law Applicable in Multinational Deployments”. Review of Military Law and the Law of War 19:121–172 Gill TD (2013) Chivalry: a principle of the law of armed conflict? In: Matthee M, Toebes B, Brus M (eds) Armed conflict and international law: in search of the human face: liber amicorum in memory of Avril McDonald. T.M.C. Asser Press, The Hague, pp 33–51, https://doi.org/10.1007/978-906704-918-4_2 Gill TD (2013) Non-intervention in the cyber context. In: Ziolkowski K (ed) Peacetime regime for state activities in cyberspace: international law,

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international relations and diplomacy. NATO CCD COE Publications, Tallinn, pp 217–238 Gill TD (2013) The Security Council. In: Zyberi G (ed) An institutional approach to the responsibility to protect. Cambridge University Press, Cambridge, pp 83–108, https://doi.org/10.1017/CBO9781139567664.007 Gill TD, Ducheine PAL (2013) Anticipatory self-defense in the cyber context. International Law Studies (Naval War College), 89:438–471 Gill TD, Ducheine PAL (2013) Anticipatory self-defense in the cyber context. Israel Yearbook on Human Rights 43:81–110 Schmitt M, Boothby WH, Demeyere B, Heintschel von Heinegg W, Gill TD et al (2013) Tallinn manual on the international law applicable to cyber warfare: prepared by the International Group of Experts at the invitation of the NATO Cooperative Cyber Defence Centre of Excellence. Cambridge University Press, Cambridge https://doi.org/10.1017/CBO9781139169288 2012 Ducheine PAL, Voetelink J, Stinissen J, Gill TD (2012) Towards a legal framework for military cyber operations. In: Ducheine PAL, Osinga F, Soeters J (eds) NL ARMS 2012—Cyber warfare: critical perspectives. T.M.C. Asser Press, The Hague, pp 101–128 Gill TD (2012) Legal aspects of the transfer of authority in UN Peace Operations. Netherlands Yearbook of International Law 42:37–68, https://doi. org/10.1007/978-90-6704-849-1_2 2011 Ducheine PAL, Gill TD (2011) De legitimering van statelijk geweldgebruik na 9/11. In: Osinga F, Soeters J, van Rossum W (eds) Nine eleven: tien jaar later. Boom, Amsterdam, pp 216–234 2010 Gill TD (2010) Legal characterization and basis for enforcement operations and peace enforcement operations under the Charter. In: Gill TD, Fleck D (eds) The handbook of the international law of military operations. Oxford University Press, Oxford, pp 81–93 Gill TD (2010) Legal parameters for the use of force in the context of the UN collective security system. In: Gill TD, Fleck D (eds) The handbook of the international law of military operations. Oxford University Press, Oxford, pp 110–114 Gill TD (2010) Characterization and legal basis for peace operations. In: Gill TD, Fleck D (eds) The handbook of the international law of military operations. Oxford University Press, Oxford, pp 135–142

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Gill TD (2010) Legal parameters for the use of force within the context of peace operations. In: Gill TD, Fleck D (eds) The handbook of the international law of military operations. Oxford University Press, Oxford, pp 150 Gill TD (2010) Legal basis of the right of self-defence under the UN Charter and under customary international law. In: Gill TD, Fleck D (eds) The handbook of the international law of military operations. Oxford University Press, Oxford, pp 187–198 Gill TD (2010) Humanitarian intervention. In: Gill TD, Fleck D (eds) The handbook of the international law of military operations. Oxford University Press, Oxford, pp 221–227 Gill TD (2010) Military intervention at the invitation of a government. In: Gill TD, Fleck D (eds) The handbook of the international law of military operations. Oxford University Press, Oxford, pp 229–232 Gill TD, Ducheine PAL (2010) Rescue of nationals. In: Gill TD, Fleck D (eds) The handbook of the international law of military operations. Oxford University Press, Oxford, pp 217–219 Gill TD, Fleck D (2010) Concept and sources of the international law of military operations. In: Gill TD, Fleck D (eds) The handbook of the international law of military operations. Oxford University Press, Oxford, pp 3–10 Gill TD, Fleck D (2010) Private contractors and security companies. In: Gill TD, Fleck D (eds) The handbook of the international law of military operations. Oxford University Press, Oxford, pp 489–493 Fleck D. Gill TD (2010) Conclusions. In: Gill TD, Fleck D (eds) The handbook of the international law of military operations. Oxford University Press, Oxford, pp 565–573 2009 Gill TD (2009) The law of belligerent occupation: the distinction between invasion and occupation of disputed territory. In: de Guttry A, Post HG, Venturini G (eds) The 1998–2000 war between Eritrea and Ethiopia: an international legal perspective. T.M.C. Asser Press, The Hague pp 365–370 2007 Gill TD (2007) The temporal dimension of self-defense: anticipation, pre-emption, prevention and immediacy. In: Schmitt MN, Pejic J (eds) International law and armed conflict: exploring the faultlines: essays in honour of Yoram Dinstein. Martinus Nijhoff, Leiden, pp 113–155 2006 Gill TD (2006) Voordracht ter gelegenheid van de oprichting van de Gezamenlijke Militaire Juridische Dienst. Militair Rechtelijk Tijdschrift 99(6):184–188

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Gill TD (2006) Boekbespreking: Martin Zwanenburg—Accountability of Peace Support Operations, Martinus Nijhoff. Militair Rechtelijk Tijdschrift 99(5):175– 180 2005 Dolman MM, Ducheine PAL, Gill TD, Walgemoed GF (2005) Functioneel geweldgebruik in internationale operaties: een spiegel van rechtspraak en praktijk. Militair Rechtelijk Tijdschrift 98(10):369–420 Gill TD, Van Sliedrecht E (2005) Guantánamo Bay: A Reflection on the Legal Status and Rights of “Unlawful Enemy Combatants”. Security and civil liberties: the case of terrorism. Utrecht Law Review 1:28–54 2004 Gill TD (2004) The War in Iraq and the Contemporary Jus ad Bellum. Merkourios 22(59):50–54 Gill TD (2004) Humanitarian Intervention: Legality, Justice and Legitimacy. The global community: Yearbook of International Law and Jurisprudence, 1:51–75 Gill TD (2004) Iraq: Occupation, Stabilization and Transition. Militair Rechtelijk Tijdschrift 97(5):192–195 2003 Gill TD (ed) (2003) Rosenne’s World Court: what it is and how it works. Martinus Nijhoff, The Hague Gill TD (2003) Vredesoperaties en humanitair oorlogsrecht. Militair Rechtelijk Tijdschrift 96(9):331–347 Gill TD (2003) The Eleventh of September and the Right of Self-Defense. In: Heere WP (ed) Terrorism and the military: international legal implications. T.M.C. Asser Press, The Hague, pp 23–42 Gill TD (2003) The War in Iraq and the Contemporary Jus ad Bellum. International Law FORUM du droit international, 5(4):241–246 2002 Gill TD (2002) The 11th of September and the international law of military operations (oratie). Vossiuspers UvA Gill TD (2002) De gedetineerden in Guantánamo en het internationale humanitaire recht. Nederlands Juristenblad 77(9):407–408

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2001 Gill TD (2001) Humanitaire interventie: rechtmatigheid, rechtvaardigheid en legimiteit nader bekeken. Militair Rechtelijk Tijdschrift 94(6):221–241 2000 Gill TD, Heere WP (eds) (2000) Reflections on principles and practice of international law: essays in honour of Leo J. Bouchez. Nijhoff, The Hague Gill TD (2000) Just war doctrine in modern context. In: Gill TD, Heere WP (eds) Reflections on principles and practice of international law: essays in honour of Leo J. Bouchez. Nijhoff, The Hague, pp 17–64 1999 Gill TD (1999) The Nuclear Weapons Advisory Opinion of the International Court of Justice and the fundamental distinction between the jus ad bellum and the jus in bello. Leiden Journal of International Law 12(3):613–624 1996 Gill TD (1996) Vijftig jaar Internationaal Gerechtshof. Militair Rechtelijk Tijdschrift 89(6):233–237 1995 Gill TD (1995) Het Internationaal Gerechtshof en Oost Timor. Nederlands Juristenblad 707(37):1366–1368 Gill TD (1995) Legal and some political limitations on the power of the UN Security Council to exercise its enforcement powers under Chapter VII of the Charter. Netherlands Yearbook of International Law 26:33–138 1993 Gill TD (1993) Het V.N. Tribunaal voor oorlogsmisdrijven in het voormalig Joegoslavie. Onafhankelijk Juridische Opinieblad 24(6):156–164 1992 Gill TD (1992) The forcible protection, affirmation and exercise of rights by states under contemporary international law. Netherlands Yearbook of International Law 23:105–173

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1990 Gill TD (1990) De Golf-crisis. Nederlands Juristenblad 65(38): 1475–1478 Gill TD (1990) Political and legal disputes and the problem of “real consent”. In: Soons AHA (ed) International arbitration: past and prospects: a symposium to commemorate the centenary of the birth of Professor J.H.W. Verzijl (1888– 1987). Martinus Nijhoff, Dordrecht, pp 195–200 1989 Gill TD (1989) Litigation strategy in the Nicaragua Case at the International Court. In: Dinstein Y (ed) International law at a time of perplexity: essays in honour of Shabtai Rosenne. Nijhoff, Dordrecht, pp 197–224 Gill TD (1989) Litigation strategy at the International Court: a case study of the Nicaragua v United States dispute. Doctoral Thesis, Martinus Nijhoff, Dordrecht 1984 Gill TD (1984) South West Africa and the sacred trust 1919–1972. T.M.C. Asser Instituut, The Hague