Ensuring Respect for International Humanitarian Law 9780367186890, 9780429197628

This book explores the nature and scope of the provision requiring States to ‘ensure respect’ for international humanita

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Table of contents :
Cover
Half Title
Series Page
Title Page
Copyright Page
Table of Contents
Foreword
List of contributors
Abbreviations and common list of references
1. Common Article 1: an introduction
2. The Geneva Conventions and their Additional Protocols
3. Ensuring respect for IHL in the international community: Navigating expectations for humanitarian law diplomacy by third States not party to an armed conflict
4. Parliamentary scrutiny committees’ contribution to the obligation to respect and ensure respect for IHL
5. Ensuring respect for IHL by, and in relation to the conduct of, private actors
6. Ensuring respect for IHL by Kenya and Uganda in South Sudan: A case study
7. Ensuring respect and targeting
8. Weapons and the obligation to ensure respect for IHL
9. Artificial Intelligence and the obligation to respect and to ensure respect for IHL
10. The obligation to ensure respect for IHL in the peacekeeping context: Progress, lessons and opportunities
11. The obligation to ensure respect in relation to detention in armed conflict
12. Common Article 1 and counter-terrorism legislation: Challenges and opportunities in an increasingly divided world
13. Ensuring respect for IHL as it relates to humanitarian activities
14. The nature of the obligation to ensure respect under IHL for people displaced as a result of armed conflict
15. Challenges in the application of the obligation to ensure respect for IHL – foreign fighting as an example
16. The external dimension of Common Article 1 and the creation of international criminal tribunals
17. Common Article 1: emerging themes
Index
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Ensuring Respect for International Humanitarian Law

This book explores the nature and scope of the provision requiring States to ‘ensure respect’ for international humanitarian law (IHL) contained within Common Article 1 of the 1949 Geneva Conventions. It examines the interpretation and application of this provision in a range of contexts, both thematic and country-specific. Accepting the clearly articulated notion of ‘respect’ for IHL, it builds on the existing literature studying the meaning of ‘ensure respect’ and outlines an understanding of the concept in situations such as enacting implementing legislation, diplomatic interactions, regulating private actors, targeting, detaining persons under IHL in non-international armed conflict, protecting civilians (including internally displaced populations) and prosecuting war crimes. It also considers topical issues such as counter-terrorism and foreign fighting. The book will be a valuable resource for practitioners, academics and researchers. It provides much needed practical reflection for States as to what ensuring respect entails, so that governments are able to address these obligations. Eve Massingham is a Senior Research Fellow in the Law and the Future of War team at the University of Queensland School of Law. She has worked in the field of IHL for ten years with the International Red Cross and Red Crescent Movement throughout East and Southern Africa and in Australia. Eve holds a PhD from the University of Queensland and, among other qualifications, an LLM from King’s College London where she attended as a Chevening Scholar. She is an Australian qualified lawyer and has published a number of book chapters and articles on IHL. Eve has also served as an Australian Army Reserve Officer. Annabel McConnachie has worked with the IHL team at Australian Red Cross as a volunteer and staff member since 2003. Primarily involved with dissemination activities, she led the project developing a series of advocacy publications in collaboration with Pacific National Red Cross Societies for high-level engagement with parliamentarians. Annabel holds a BA (Hons) in law and history from Keele University and a Master of International Relations from Macquarie University in Sydney, where she lectured and convened units about human rights, international law and forced migration for ten years.

Routledge Research in the Law of Armed Conflict

Available titles in this series include: Armed Drones and Globalization in the Asymmetric War on Terror Challenges for the Law of Armed Conflict and Global Political Economy Fred Aja Agwu International Law and Drone Strikes in Pakistan The Legal and Socio-Political Aspects Sikander Ahmed Shah Islam and Warfare Context and Compatibility with International Law Onder Bakircioglu The Concept of Military Objectives in International Law and Targeting Practice Agnieszka Jachec-Neale Cosmopolitan Ethics and Law on Autonomous Weapons in Modern Warfare Ozlem Ulgen A Guide to International Disarmament Law Stuart Casey-Maslen and Tobias Vestner Protection of Civilians and Individual Accountability Obligations and Responsibilities of Military Commanders in United Nations Peacekeeping Operations Lenneke Sprik Africa and International Criminal Justice Radical Evils and the International Criminal Court Fred Aja Agwu

Ensuring Respect for International Humanitarian Law

Edited by Eve Massingham and Annabel McConnachie

First published 2021 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 52 Vanderbilt Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2021 selection and editorial matter, Eve Massingham and Annabel McConnachie; individual chapters, the contributors The right of Eve Massingham and Annabel McConnachie to be identified as the authors of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Names: Massingham, Eve, editor. | McConnachie, Annabel, editor. Title: Ensuring respect for international humanitarian law / edited by Eve Massingham and Annabel McConnachie. Description: Abingdon, Oxon ; New York, NY : Routledge, 2020. | Series: Routledge research in the law of armed conflict | Includes bibliographical references and index. Identifiers: LCCN 2020004557 (print) | LCCN 2020004558 (ebook) | ISBN 9780367186890 (hardback) | ISBN 9780429197628 (ebook) Subjects: LCSH: Humanitarian law. Classification: LCC KZ6471 . E57 2020 (print) | LCC KZ6471 (ebook) | DDC 341.6/7--dc23 LC record available at https://lccn.loc.gov/2020004557 LC ebook record available at https://lccn.loc.gov/2020004558 ISBN: 978-0-367-18689-0 (hbk) ISBN: 978-0-429-19762-8 (ebk) Typeset in Galliard by Taylor & Francis Books

Contents

Foreword

vii

DR HELEN DURHAM AO

List of contributors Abbreviations and common list of references 1 Common Article 1: an introduction

x xv 1

EVE MASSINGHAM AND ANNABEL MCCONNACHIE

2 The Geneva Conventions and their Additional Protocols

12

JONATHAN CROWE

3 Ensuring respect for IHL in the international community: Navigating expectations for humanitarian law diplomacy by third States not party to an armed conflict

23

SARAH MCCOSKER

4 Parliamentary scrutiny committees’ contribution to the obligation to respect and ensure respect for IHL

44

LARA PRATT

5 Ensuring respect for IHL by, and in relation to the conduct of, private actors

63

CATHERINE DRUMMOND

6 Ensuring respect for IHL by Kenya and Uganda in South Sudan: A case study

83

KENNETH WYNE MUTUMA

7 Ensuring respect and targeting

100

DALE STEPHENS

8 Weapons and the obligation to ensure respect for IHL EVE MASSINGHAM

115

vi Contents 9 Artificial Intelligence and the obligation to respect and to ensure respect for IHL

132

HITOSHI NASU

10 The obligation to ensure respect for IHL in the peacekeeping context: Progress, lessons and opportunities

145

LEANNE SMITH

11 The obligation to ensure respect in relation to detention in armed conflict

163

KELISIANA THYNNE

12 Common Article 1 and counter-terrorism legislation: Challenges and opportunities in an increasingly divided world

178

PETRA BALL AND YVETTE ZEGENHAGEN

13 Ensuring respect for IHL as it relates to humanitarian activities

198

NATHALIE WEIZMANN

14 The nature of the obligation to ensure respect under IHL for people displaced as a result of armed conflict

217

LINDA ISABEL NGESA

15 Challenges in the application of the obligation to ensure respect for IHL – foreign fighting as an example

231

MARNIE LLOYDD

16 The external dimension of Common Article 1 and the creation of international criminal tribunals

248

PARISA ZANGENEH

17 Common Article 1: emerging themes

263

EVE MASSINGHAM AND ANNABEL MCCONNACHIE

Index

274

Foreword Dr Helen Durham AO

This book is a much-needed contribution to the debate on ensuring respect for IHL – a critical issue facing the world today. Ensuring Respect for International Humanitarian Law addresses directly key dilemmas and captures important discussions that relate to bringing humanity, safety and dignity to those caught up in the horrors of armed conflict. Respect for IHL often occurs quietly – a wounded enemy allowed through a checkpoint, a detainee able to send a message to his or her family or humanitarian assistance provided where there is great need. These day-to-day instances do not make the headlines. Yet they prove that respect for IHL is not only possible but is happening daily in the midst of war. It is clear that more can, and must, be done to improve the protection of victims of armed conflict, and implementing the obligation to ‘ensure respect’ is one avenue to do so. Ensuring Respect for International Humanitarian Law explores the nature and scope of the provision requiring States to ‘ensure respect’ for IHL in order to provide concrete examples of what it looks like in practice. By examining the interpretation and application of this provision in a range of contexts, it builds upon the existing literature relating to the notion of “respect” for IHL. In this regard, the collection is an innovative contribution to the contemporary debate on the meaning of ‘ensuring respect’. As a humanitarian institution with operational responsibilities under IHL and a mandated role as “guardian” of this legal framework, the International Committee of the Red Cross (ICRC) undertakes many activities to generate respect for IHL. This is a critical topic for the ICRC and it touches upon all aspects of our work, from legal and policy discussions at headquarters, to influencing in the field. From our work facilitating States to ratify and implement IHL treaties, pre-deployment training of militaries, visiting detainees or diplomatic engagement with States on the manner in which they “support” parties in a conflict, respect for IHL is at the core of the ICRC. Ensuring respect for IHL is also a core concern for the ICRC. Since at least the 1950s the organisation has considered that according to Common Article 1 (CA1), States must exert their influence on parties to the conflict to ensure respect in case of serious violations. Recent writings by the ICRC have drawn renewed attention to this obligation. In particular, the ICRC’s updated Commentary to the First Geneva Convention is the subject of ongoing discussion in this regard. It

viii Foreword distinguishes two aspects of the obligation to ensure respect. On the one hand, a negative obligation to refrain from encouraging or assisting violations of IHL; and on the other, a positive obligation to take feasible measures in order to influence the parties to the conflict and bring them to an attitude of respect for IHL (2016 Commentary, paras. 158–173; Cameron et al, 2015; Döermann and Serralvo, 2014; Droege and Tuck, October 2017). Authors have begun to respond to this work, evaluating CA1 from the perspective of their particular areas of expertise. More recently we are witnessing that in today’s world no one fights alone. Military operations are being conducted by, with, and through other States and local forces. Partnerships involve sharing intelligence, training and equipping, and providing close air support – to name just a few. Whilst this aspect of modern warfare undoubtedly comes with risks, it also provides valuable opportunities. States supporting the parties to the conflict are in a particularly strong position to influence their behaviour. In this way, they can lead from the front, to ensure respect for IHL, and secure better protection for people affected by armed conflict (Droege and Tuck, March 2017). Partnered warfare is just one illustration of the many avenues for ensuring respect for IHL in armed conflict today. A number of chapters in this volume address new challenges in contemporary armed conflict. Gone are the days when we can look at issues exclusively through the lens of the black letter law; today we also need to provide practitioners with pragmatic advice on implementation of the law, and I am so pleased to see that the collection in this book does exactly that. For example, Catherine Drummond identifies that the focus on States and non-State armed groups by existing literature on CA1 has led to limited examination of the obligations in relation to private actors in contemporary armed conflict. She proposes that, in order to live up to their obligations to ensure respect for IHL, States must carry out a scoping exercise to map the extent of their duty to ensure respect with particular private actors, based both on specific activities (such as arms production or provision of military services), as well as actor-based criteria. Another prominent challenge today is the role of new and emerging technologies in warfare. Hitoshi Nasu takes the topic of artificial intelligence as a case study of ensuring respect, providing expert insight into its potential application in military operations, and the considerations that States must bear in mind. Marnie Lloydd explores the topic of foreign fighters, another phenomenon in recent conflicts, asking how States should think about CA1 in relation to these fighters, and the practical difficulties with its application in this context. The collection additionally brings a fresh perspective on many long-standing challenges. Kelisiana Thynne examines the issue of detention within non-international armed conflicts and how States, not directly involved in a conflict, are able to encourage compliance with IHL by those States that are. Linda Ngesa focuses on the obligation to ensure respect for the protections of internally displaced persons, particularly with reference to instruments on the African continent. On the topic of weapons, Eve Massingham submits that, by being strong advocates for the rule against indiscriminate effects, the rule against superfluous injury or unnecessary suffering and the rule against causing widespread, long-term and severe damage to the natural environment, States can play a leadership role in this space.

Foreword ix IHL, as a branch of law, cannot be disconnected from the realities to which it is meant to apply, and I am pleased to see that each author maintains a practical focus throughout. In addition, the collection outlines an understanding of ‘ensure respect’ in many day-to-day governmental processes, such as enacting implementing legislation, and diplomatic interactions, in the chapters by Lara Pratt and Sarah McCosker respectively. Moreover, the collation of practical examples cements the collection’s utility in clarifying how to address and implement the obligation under CA1. The topic of ensuring respect for IHL is in need of scholarship, and this contribution to the debate is certainly long overdue. With a practical and forwardlooking approach, I anticipate that Ensuring Respect for International Humanitarian Law will further the process of reflections by many, from practitioners to academics, on how States’ actions can contribute to, or detract from, ensuring respect for IHL.

References Cameron, L, Demeyere, B, Henckaerts, JM, La Haye, E and Niebergall-Lackner, H, ‘The updated Commentary on the First Geneva Convention – a new tool for generating respect for international humanitarian law’ (2015) 97 (900) International Review of the Red Cross 1209. Döermann, K and Serralvo, J, ‘Common Article 1 to the Geneva Conventions and the obligation to prevent international humanitarian law violations’ (2014) 96 (895/896) International Review of the Red Cross 707. Droege, C and Tuck, D, ‘Fighting Together and International Humanitarian Law: Ensuring respect for the law and assessing responsibility for violations’ (ICRC Humanitarian Law and Policy Blog, 17 October 2017), available at: https://blogs.icrc.org/ law-and-policy/2017/10/17/fighting-together-international-humanitarian-law-ensur ing-respect-law-assessing-responsibility-violations-2-2/ (last accessed 2 July 2019). Droege, C and Tuck, D, ‘Fighting Together: Obligations and opportunities in partnered warfare’ (ICRC Humanitarian Law and Policy Blog, 28 March 2017), available at: https:// blogs.icrc.org/law-and-policy/2017/03/28/fighting-together-obligations-opportunities-pa rtnered-warfare/ (last accessed 2 July 2019).

Contributors

Petra Ball is a Senior Adviser in the IHL program of Australian Red Cross. Petra completed an Arts degree at Adelaide University, majoring in Indonesian and Politics, then a post graduate qualification in Administration, working subsequently for commercial firms in Sydney and in London. After working in Adelaide with Oxfam for a number of years, Petra joined Australian Red Cross and the IHL program in 2006. Petra has represented the Australian Red Cross at International Movement meetings and in 2017 Petra travelled to support the dissemination efforts of the Solomon Islands Red Cross. Professor Jonathan Crowe is a Professor of Law at Bond University. His main research interests lie in the fields of legal philosophy, constitutional law and theory, IHL and dispute resolution. He is the author or editor of nine books and more than ninety book chapters and journal articles on a range of legal and philosophical issues. His work has appeared in numerous leading international and Australian journals, including the Modern Law Review, the Oxford Journal of Legal Studies, the Melbourne University Law Review, the Sydney Law Review, the Melbourne Journal of International Law and the Australian Journal of Legal Philosophy. He is the co-author of Jonathan Crowe and Kylie Weston-Scheuber, Principles of International Humanitarian Law (Edward Elgar, 2013) and a long-serving member of the Queensland IHL Advisory Committee of the Australian Red Cross. Catherine Drummond is a consultant in international law and a PhD candidate at the University of Cambridge. She was formerly an Associate at Freshfields Bruckhaus Deringer where she represented and advised clients in relation to disputes before international courts and tribunals, including the International Court of Justice, European Court of Human Rights, the International Criminal Court, the United Nations Human Rights Committee and arbitral tribunals. Catherine regularly lectures and publishes in public international law, and her consultancy work has included advising on the negotiation and implementation of the Arms Trade Treaty and providing training to the Australian Defence Forces. Catherine completed a dual Bachelor of Laws and Arts (Peace and Conflict Studies and International Relations) at the University of Queensland and a Masters of Law specialising

List of contributors xi in public international law at the University of Cambridge where she was the Whewell Scholar in International Law and a General Sir John Monash Scholar. Dr Helen Durham AO has been Director of International Law and Policy at the ICRC since 2014. She has over 20 years of experience in the Red Cross and Red Crescent Movement and is admitted as a Barrister and Solicitor in the Supreme Court of Victoria. Helen has been a Legal Adviser to the ICRC Delegation of the Pacific; Head of Office for ICRC Australia and held various roles with Australian Red Cross including Director of International Law and Strategy and National Manager of IHL. Helen has a PhD in IHL and international criminal law, is a Senior Fellow at Melbourne Law School and worked as the Director of Research at the Asia Pacific Centre for Military Law. She has completed missions in the field with ICRC including Myanmar, Aceh, the Philippines as well as widely in the Pacific and has been involved in international legal negotiations in New York, Rome and Geneva. In 2014 she was inducted into the Victorian Honour Roll of Women, in 2015 she was awarded as an Australian Centenary Peacewoman and in 2017 she was appointed as an Officer of the Order of Australia. Marnie Lloydd (PhD candidate (Melbourne), LLM (Geneva), MA (Bochum), First Class LLB(Hons) and BA (Wellington)) specialises in the areas of humanitarian assistance and international law related to armed conflict. Currently based with the Laureate Program in International Law at Melbourne Law School, she previously worked for over 12 years as a Delegate and Legal Advisor with the ICRC. She has also provided expert legal consultation to the UNHCR and managed international legal research projects for the European Centre for Minority Issues. Marnie is admitted to the bar in New Zealand. Dr Eve Massingham is a Senior Research Fellow in the Law and the Future of War team at the University of Queensland School of Law. She has worked in the field of IHL for ten years with the International Red Cross and Red Crescent Movement throughout East and Southern Africa and in Australia. Eve holds a PhD from the University of Queensland and, among other qualifications, an LLM from King’s College London where she attended as a Chevening Scholar. She is an Australian qualified lawyer and has published a number of book chapters and articles on IHL. Eve has also served as an Australian Army Reserve Officer. Annabel McConnachie has worked with the IHL team at Australian Red Cross as a volunteer and staff member since 2003. Primarily involved with dissemination activities, she led the project developing a series of advocacy publications in collaboration with Pacific National Red Cross Societies for highlevel engagement with parliamentarians. Annabel holds a BA (Hons) in law and history from Keele University and a Master of International Relations from Macquarie University in Sydney, where she lectured and convened units about human rights, international law and forced migration for ten years.

xii List of contributors Dr Sarah McCosker is an international lawyer whose principal fields of expertise are IHL, international human rights law, international dispute settlement, and the relationships between international law and diplomacy. Sarah is a partner of Lexbridge, the first specialist international law firm and consultancy in the AsiaPacific region. In this capacity, she currently serves as a Special Legal Counsel to the Australian Department of Defence. Sarah has also previously worked as an international law adviser in the Legal Division of the ICRC in Geneva, and the Australian Government’s Office of International Law in the Attorney-General’s Department. Sarah holds a Doctor of Philosophy, a Master of Philosophy and Bachelor of Civil Laws from the University of Oxford, all specialising in international law. She also holds double First Class Honours degrees in law and arts from the University of Queensland. Dr Kenneth Wyne Mutuma is based at the University of Nairobi’s School of Law. He has more than ten years teaching experience and lends his knowledge and experience in IHL to academia, government and civil society in both East and Southern Africa. Ken has previously served as a legal officer for the Nairobi and Pretoria Delegations of the ICRC. In addition, he has worked with the Nelson Mandela Foundation developing the capacity of governmental bodies and civil society in the areas of conflict resolution and ethical leadership. Ken holds several academic qualifications including a PhD on the challenges of outsourcing war to private entities. Professor Hitoshi Nasu is Professor of International Law at the University of Exeter, publishing widely in the field of public international law with a particular focus on international security law and the law of armed conflict. Prior to his current appointment, he held academic posts at the Australian National University, where he was also Co-Director of the Centre for Military and Security Law and the Australian Network for Japanese Law. Currently, he is also an adjunct senior fellow of S. Rajaratnam School of International Studies at Nanyang Technological University in Singapore and managing co-director of the Woomera Manual on the International Law of Military Space Operations. Linda Isabel Ngesa is the Regional Humanitarian Affairs Adviser for the ICRC Nairobi Regional Delegation. She works on humanitarian diplomacy processes between the ICRC and Regional Economic Communities and International Organisations in the region. Previously Linda worked at the International Bar Association (London), the International Criminal Court (Netherlands) and the International Criminal Tribunal for Rwanda (Tanzania). She is an advocate of the High Court of Kenya and graduated with honours from London School of Economics and Political Science with a Masters degree in International Human Rights. Dr Lara Pratt is a Senior Lecturer and Assistant Dean at the University of Notre Dame in WA, Australia. She teaches and researches in public international law, IHL and human rights. Lara has championed the University of Notre Dame’s various international and humanitarian law initiatives including the introduction of ‘Law and War’ as an elective unit of study, and introduced an IHL Moot (run with the support of

List of contributors

xiii

Australian Red Cross). In addition, Lara convenes an international immersion program where law students visit Phnom Penh, Cambodia to engage with NGOs and civil society organisations. Lara is also a member of the Divisional Advisory Board and the IHL Advisory Committee of the Australian Red Cross in WA, and regularly presents at their IHL seminars in Perth. Lara holds a PhD from Macquarie University where her research focused on comparative Bills of Rights. Leanne Smith, Director of the Whitlam Institute since 2017, is an international human rights lawyer by training with a Masters in Public Policy from the Woodrow Wilson School of Public and International Affairs at Princeton. Leanne has worked in the Australian judicial system, for the Australian Human Rights Commission, in the international NGO sector, regional human rights organisations, as an Australian diplomat (DFAT) and in various roles for the UN in New York and in the field, most recently as Chief of Policy and Best Practices for UN Peacekeeping Operations. Leanne has published a number of articles on Australian national identity, Australian foreign policy and international human rights, rule of law and development as well as the UN and women, peace and security. She is a visiting fellow at the ANU Asia-Pacific College of Diplomacy and the UNSW Australian Human Rights Centre, and a member of the Kaldor Centre for International Refugee Law Advisory Committee. Professor Dale Stephens joined the University of Adelaide Law School in 2013. He is currently Director of the Adelaide Research Unit on Military Law and Ethics and has had more than 20 years’ experience teaching and researching IHL. He is Chair of the South Australian Red Cross IHL Committee and is an active participant in all SA Red Cross IHL engagement activities. He is a Board Member and Editor of Woomera Manual on the International Law of Military Space Operations. He has researched and written extensively on issues of IHL and his most recent co-edited books include Military Law in Australia and The Law of Naval Warfare. He has previous Commonwealth Government service where he has held senior legal advisory positions and has been part of Australian delegation teams participating in treaty negotiations. He is a Fellow of the Academy of Australian Law and holds an LLM and SJD from Harvard Law School. Kelisiana Thynne (LLM Sydney, LLB (Hons) ANU) is a Legal Advisor in Geneva with the ICRC’s Advisory Services. She has worked for ICRC as a legal adviser for over ten years in South East Asia, Afghanistan and the Pacific. Kelisiana has also worked for the Australian government as the Director of Capability and Research Manager at the Australian Civil-Military Centre and as a Senior Legal Officer in the Office of International Law of the Australian Attorney-General’s Department. She has worked on IHL, international criminal law and international human rights law in various capacities in the last 15 years. Nathalie Weizmann is Senior Legal Officer with the United Nations Office for the Coordination of Humanitarian Affairs where her work focuses on IHL as it relates to the protection of civilians and humanitarian activities. Before joining

xiv List of contributors the UN, she was Senior Director of the Counterterrorism and Human Rights Project at Columbia Law School’s Human Rights Institute, carrying out research and writing on legal and policy issues relating to U.S. national security, IHL and international human rights law. Before this, she was a legal adviser with the International Committee of the Red Cross, both at Geneva headquarters and in the field, examining issues ranging from judicial guarantees and procedural safeguards of persons deprived of their liberty, to autonomous weapons and responsible arms transfers, and representing the ICRC in Arms Trade Treaty negotiations. She has also worked for various human rights NGOs, the Inter-American Commission on Human Rights, and in private legal practice with Ogilvy Renault (now Norton Rose Fulbright) in Canada. Nathalie is a Member of the Board of Editors of Just Security blog and occasionally publishes and gives guest lectures in her areas of expertise. She is a graduate of McGill University’s Faculty of Science and Faculty of Law, and of the Graduate Institute for International and Development Studies in Geneva. Parisa Zangeneh is a PhD student in international law at the Irish Centre for Human Rights at the National University of Ireland Galway, where she is supported by the Hardiman Scholarship. From 2017 to early 2019, Parisa was a consultant at the Cornell Center for the Death Penalty Worldwide and researches the law and application of the death penalty in countries around the world. Parisa received her LLM from the School of Oriental and African Studies, her LLB from the University of Edinburgh, and her BA from McGill University, and she has completed internships in Chambers at the International Criminal Court, the Mechanism for International Criminal Tribunals, the Special Court for Sierra Leone, the Special Tribunal for Lebanon, and the International Criminal Tribunal for the former Yugoslavia. Yvette Zegenhagen joined the Australian Red Cross IHL program in 2011 and has been the National Manager since 2014. Yvette previously worked as an Adjunct Teaching Fellow at Bond University Law Faculty and as a commercial litigator in Melbourne. Yvette is currently the chair of the Asia-Pacific National Society Legal Advisers’ Network and recently was the ad-interim common law legal adviser for the ICRC in Geneva. Yvette undertook her LLB and Bachelor of International Relations at Bond University as an Australia Day Scholar, holds a Masters in Community and International Development from Deakin University and has also received instruction through the Institute of IHL in San Remo and the Geneva Centre for Security Policy. Yvette is an Australian qualified lawyer and has published on IHL topics including nuclear weapons and counter-terrorism legislation.

Abbreviations and common list of references

Pictet Commentary 2016 Commentary

APs Commentary

API

APII

APIII

APs CA1 CIHL Study

GCI

GCII

Pictet, J. S. et al (eds) (1960) Commentary on the Geneva Conventions. Geneva: ICRC. ICRC (2016) Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 2nd edition, Cambridge: CUP Sandoz, Y., C. Swinarski and B. Zimmermann (eds) (1987) Commentary on the Additional Protocols. Leiden: Martinus Nijhoff. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978) Protocol II Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of Non-International Armed Conflicts, 8 June 1977, 1125 UNTS 609 (entered into force 7 December 1979) Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem, 8 December 2005, 2404 UNTS 261 (entered into force 14 January 2007). API, APII and APIII collectively Common Article 1 of the Four Geneva Conventions of 1949 and Additional Protocols I and III Henckaerts, J-M. and Doswald-Beck, L. (eds), Customary International Humanitarian Law, Volume 1: Rules (ICRC, 2005) Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950) Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at

xvi Abbreviations and common list of references

GCIII

GCIV

GCs ICRC IHL UN UNGA UNSC

Sea, 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950) Geneva Convention Relative to the Treatment of Prisoners of War, 12 August 1949, 75 U.N.T.S. 135 (entered into force 21 October 1950) Geneva Convention Relative to the Protection of Civilian Persons in Times of War, 12 August 1949, 75 U.N.T.S. 287 (entered into force 21 October 1950) GCI, GCII, GCIII and GCIV collectively International Committee of the Red Cross International humanitarian law United Nations United Nations General Assembly United Nations Security Council

1

Common Article 1: an introduction Eve Massingham and Annabel McConnachie

On 24 October 2019, before the UNSC, the United States (US) Mission’s Senior Policy Advisor stated: We remain deeply troubled by reports that Turkish supported Opposition forces [in northern Syria] deliberately targeted civilians. If verified, these actions may constitute war crimes, and we urge our Turkish partners to immediately investigate these incidents and hold accountable any individuals or entities involved. Turkey is responsible for ensuring its forces and any Turkish-supported entities act in accordance with the law of armed conflict (emphasis added) (Barkin, 2019). This statement is about encouraging another State, and non-State actors, to comply with the laws of armed conflict. The subject matter of this book is an examination of a provision of international law which obliges all States Party to the GCs to ensure that parties to an armed conflict respect IHL. The law of armed conflict, also known as IHL, protects those not, or who are no longer, taking part in hostilities. It also limits the means and methods of warfare. The core elements of IHL, the GCs and the APs, are discussed in more detail by Crowe in Chapter 2. The GCs and APs, in conjunction with customary IHL, establish a rule, applicable in both international and non-international armed conflict whereby IHL must be respected. In addition, States must ‘ensure respect’ for IHL (CA1; CIHL Study Rule 139; Nicaragua, para. 220). Specifically, CA1 provides that ‘[t]he High Contracting Parties undertake to respect and to ensure respect for the […] Convention [and Protocol] in all circumstances’. As will be seen in the discussion of the drafting history below, the meaning of CA1 was not well articulated at its inception and has not been fully settled. Debate has long existed as to whether the intention behind CA1 was to restate existing principles of international law or create specific new obligations (Meron, 1987, p. 348; Sassòli, 2002, p. 421). CA1 has been described as a ‘soap bubble’ doing nothing other than reminding States of their obligation to respect the GCs and which might include, ‘an unspecified recommendatory meaning … to induce other contracting states to comply’ (Focarelli, 2010, p. 125). It has also been labelled an ‘innocuous sort of opening phrase’ and, as such, not capable of imposing an international legal obligation upon the High Contracting Parties (HCPs) to ensure compliance with the law

2 Eve Massingham and Annabel McConnachie (Kalshoven, 1999, p. 60). However, CA1 has also been called a ‘ripening fruit’ that emerged from a ‘tiny seed’ (Kalshoven, 1999, p. 3) and ‘the nucleus for a system of collective responsibility’ having quasi-constitutional status (Boisson de Chazournes and Condorelli, 2000, p. 68). There is no dispute that all States are obligated, by virtue of CA1, to guarantee respect for the GCs within their own jurisdiction, referred to by Geiss as the ‘internalcompliance dimension’ of CA1 (2015, p. 420). That this includes ensuring respect for this law ‘by persons under its authority and within its jurisdiction’ is not disputed (Boutruche and Sassòli, 2016, p. 6). States discharge this obligation by complying with the duties to implement and adhere to the rules in good faith (APs Commentary, p. 34; Dörmann and Serralvo, 2014, p. 709). As the obligation is one that applies ‘in all circumstances’ it includes actions taken during times of peace, as well as in times of war. As Massingham has noted elsewhere, many of the actions required by States to respect IHL are set out in the text of the GCs and APs (2018, p. 208). However, what is less clear is what CA1 means by ‘ensure respect … in all circumstances’. Specifically, whether it means that third States have obligations in relation to IHL violations and if so, what might those obligations look like. As is discussed in more detail below (and further in Massingham, 2018), the extent of the legal obligation CA1 encompasses has been established through subsequent practice by States and international organisations (Boutruche and Sassòli, 2016, p. 3) and ‘is today unanimously understood as referring to violations by other States’ (Sassòli, 2002, p. 421). It is indeed a ‘nucleus for a system of collective responsibility’ (Boisson de Chazournes and Condorelli, 2000, p. 68) as it falls to all States party to the Conventions to remain vigilant and address violations as they occur, and it extends to the contents of the GCs in their entirety (Geiss, 2015b, p.118). It is clear that CA1 does not authorise the application of military force against another State (Kessler, 2001, p. 500). However, the third State component of CA1 provides an extensive ‘general external-compliance dimension’ (Geiss, 2015, p. 421) creating a legal obligation for all States, ‘in all circumstances’ to make sure potential violators of IHL – whether State or non-State – comply with the rules of IHL (Boutruche and Sassòli, 2016, p. 3). The ICRC’s 2016 publication of its updated Commentary to GCI reignited interest in the meaning of CA1 and reaffirmed support for the view that ‘it goes beyond an entitlement for third States to take steps to ensure respect for IHL. It establishes not only a right to take action, but also an international legal obligation to do so’ (Dörmann and Serralvo, 2014, p. 723). Concern has been expressed at the extent of the ICRC’s contribution to the discourse and some are wary of the move towards an expansive view of CA1 (Egan, 2016; see also, Aly, 2019). However, even where reservations are noted, there is an indication of a ‘willingness to consider an interpretation of Common Article 1 of the Geneva Conventions that entails positive obligations to ensure respect of the law of armed conflict by partner states and nonstate actors’ (Hathaway and Manfredi, 2016). Overall therefore, there has been a ‘firm consensus on a modern interpretation that involves third State interest and action in the application of the GCs by parties involved in an armed conflict’ (Breslin, 2017, p. 13). This is now widely recognised and considered the dominant view

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(Geiss, 2015, p. 419), even if the full scope of it is not completely agreed. As such, today, ‘the question … is not so much whether [CA1] imposes a binding obligation, but rather what type of obligation lies beneath it’ (emphasis added) (Dörmann and Serralvo, 2014, p. 723). What these obligations might look like in practice and their scope is the focus of this book. However, before delving into the specifics of different thematic areas, this chapter recalls the key legal components of treaty interpretation. The Vienna Convention on the Law of Treaties (VCLT) provides principles for treaty interpretation which can aid understanding of a phrase or article. It is possible to discern meaning firstly, from the subsequent practice of the application of CA1 (VCLT Art. 31(3)(b)); secondly, by considering other relevant rules of international law applicable in the relations between States (VCLT Art. 31(3)(c)) and finally, by taking into account the drafting history of CA1 (VCLT Arts. 31 (4) and 32). These interpretative tools reinforce the view that CA1 is not redundant but rather imposes a specific legal obligation on third States, vis-à-vis States and more broadly to other actors involved in armed conflict, to help them to ensure respect for IHL (Sassòli, 2002, p. 421: Kessler, 2001, p. 505).

Subsequent practice in the application of CA1 There is 50 years’ worth of State practice clarifying the meaning of ensure respect, expressing both a collective and individual responsibility to encourage compliance by State and non-State groups and an expansive responsibility to State and non-State actors. In 1968, Resolution XXIII of the Teheran Conference on Human Rights, noted the external-compliance meaning attributable to ensure respect within CA1. The resolution was adopted with no opposing votes from the 84 member States present (representing two-thirds of the membership of the UN in 1968). It noted that States ‘sometimes fail to appreciate their responsibility to take steps to ensure the respect of these humanitarian rules in all circumstances by other States, even if they are not themselves directly involved in an armed conflict’ (emphasis added). Further, the UNSC and UNGA have called on third States to respond to identified violations of IHL in very specific circumstances. For example, between 1990 and 2004, the HCPs were called upon to ensure respect by Israel, the occupying power, for its obligations under CA1; with the very clear instruction for all third States ‘to continue to exert all efforts to ensure respect for [GCIV] provisions’ by Israel (emphasis added). The 2004 resolution referred to the ICJ Wall advisory opinion to underscore the obligations that third States hold to ensure other States respect IHL (UNSC Res. 681 (1990); UNGA Res. 58/97 (2003); UNGA Res. 59/122 (2004)). Boutruche and Sassòli note that the series of resolutions relating to Israel’s conduct in the Palestinian occupied territories between 1997 and 2001 develop the case for a clear understanding of an external-compliance element to CA1. They also conclude that the ‘selective nature of this practice’ does not diminish its capacity to influence the process of interpretive evolution of CA1 (2016, p. 10). Specific obligations under CA1 for third States not to engage in particular conduct has also been detailed by the ICJ. The Nicaragua judgment held that encouraging violations of IHL constitutes a breach of the CA1 obligation to ensure respect for IHL and that this obligation was customary in nature (para. 220). As identified in UNGA

4 Eve Massingham and Annabel McConnachie Resolution 59/122 (2004), in the Wall advisory opinion the ICJ held that all States were ‘under an obligation … to ensure compliance by Israel with IHL as embodied in that Convention’ and were not ‘to recognize the illegal situation resulting from the construction of the wall in the Occupied Palestinian Territory…’ or to ‘render aid or assistance in maintaining the situation created by such construction’ (paras. 158, 159). This finding was made considering both the erga omnes nature of the obligation of Israel to ‘respect the right of the Palestinian people to self-determination, and certain of its obligations under international humanitarian law’ (para. 155) and the CA1 obligation (para. 158). Higgins, in her separate opinion, felt that characterisation of CA1 as erga omnes was perhaps less relevant in light of the longstanding view (quoting from Pictet’s 1952 Commentaries) that should a State fail in its IHL obligations, the HCPs ‘may, and should, endeavor to bring it back to an attitude of respect’ and that HCPs ‘should not be content merely to apply its provisions themselves, but should do everything in their power to ensure that the humanitarian principles underlying the Conventions are applied universally’ (Wall, 2004, p. 217, para. 39). Several commentators have noted the ICRC’s consistent entreaties to HCPs to ensure respect of the GCs by taking action to stop violations by others (Kessler, 2001, p. 504; Breslin, 2017, p.14) and that these types of statements have been adopted by other international organisations. The failure to object to these reminders to take action has led one commentator to conclude that such acquiescence is indicative of a contribution towards the development of a formal understanding and acceptance of the expansive external-compliance meaning of CA1 (Breslin, 2017, pp. 14–15). More recently, in response to the humanitarian crisis as a result of the conflict in Syria, the UNSC has issued a number of resolutions enabling States and international organisations to respond to the crisis without the explicit consent of the Syrian State authorities (ie. UNSC Res. 2165 (2014); and UNSC Res. 2449 (2018)). This practice illustrates how ‘ensure respect’ for IHL may manifest. Each member of the UNSC, in authorising the delivery of humanitarian assistance in this context, is simultaneously acting as a HCP of the GCs and responding, under CA1, to ensuring respect for the Conventions by the parties to the conflict. Zimmerman concludes that members of the UNSC are obligated to ensure respect for the GCs when considering resolutions aimed at preventing or halting violations of IHL, and a failure to do so will attract State responsibility (2017, p. 22). The EU also has a similar approach and in 2014, responding to the humanitarian situation in Syria the EU noted, in a statement to the UNGA, that CA1 ‘… is a collective obligation on all of us not only to respect but also to ensure that the parties to the conflict respect their humanitarian obligations. We need to ensure actual enforcement of the obligations’ (Dörmann and Serralvo, 2014, p.722 at fn.78).

Considering other relevant rules of international law Comparison of the ensure respect terminology of CA1 with similar provisions in international human rights law (IHRL) has been suggested to argue in favour of it representing only an internal-compliance dimension (Geiss, 2015, p. 423; Focarelli, 2010, p. 138). However, this may not be the case. Similarly worded provisions to the obligation to ensure respect in CA1, could be considered in light of

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Article (3)(c) VCLT. For example, Article 2(1) of the International Covenant on Civil and Political Rights (ICCPR) provides that States undertake ‘to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant’. Initially this provision was considered to limit the ICCPR to the internal affairs of a State. However, a modern interpretation identifies a clear positive duty beyond the incorporation and implementation of the terms of the ICCPR into domestic legislation. This duty includes a State ensuring that private actors are prevented from ‘impeding another individual’s enjoyment of his rights’. States are under a positive obligation to ‘prevent, punish, investigate and redress harm’ should a third actor violate another’s protected rights. Subsequent developments have expanded the jurisdictional element of this treaty. General Comment 31 clarifies, in a very similar vein to the obligation of ensure respect in CA1, that ‘every State Party has a legal interest in the performance by every other State Party of its obligations’ and that should a third State draw attention to another State’s breach of protected rights in the ICCPR, this should be ‘considered as a reflection of legitimate community interest’ (UNHRC, General Comment 31 (80) para. 2). States are also not bound only to protect their own citizens or those within their own territory. An extraterritorial nature to the ICCPR is recognised where a State party has power or effective control over other individuals, most commonly when acting as an armed force outside the State’s territory (whether as a State armed force or as a troop contributing nation to a UN Peacekeeping operation). The European Court of Human Rights has also rejected the notion of human rights treaties application being territorially limited (El Masri). It would therefore suggest that this terminology of ensure respect can, indeed, have an external-compliance aspect. Reinforced by the fact that IHL is inherently extraterritorial in its application, the consideration of other relevant rules of international law would lend weight to the external-compliance aspect of CA1. Conceptually similar in many ways to the idea of ensure respect in CA1 are the notions of rules of State responsibility. Article 41 of the 2001 International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) provides that States shall cooperate to bring to an end, through lawful means, any serious breaches by States of any obligations which arise under a peremptory norm of general international law. Articles 4 and 8 have been declared customary international law (Bosnia Genocide), and as Hathaway et al have thoroughly examined, ARSIWA provides codification of the ICJ and ICTY tests of effective control and overall control respectively (2017, pp. 548–560) and identify that these tests ‘have traditionally been understood as mutually inconsistent’. However, they go on to conclude that CA1 does present an opportunity to complement these approaches to State responsibility and may clarify the State attribution doctrine which presents the chance to ‘embrace a broader and more integrated understanding of state responsibility doctrine’ (2017, p. 560).

6 Eve Massingham and Annabel McConnachie

Drafting history of CA1 A number of commentators have referenced how the drafters in 1949 had no intention of inferring anything other than an obligation to act in good faith with respect to the contents of the GCs through the wording used in CA1. The debate about whether or not the phrase ‘to ensure respect’ should mean more than had been in the minds of the drafters is but one approach that can be taken. The drafters themselves appear to have been concerned, when considering the phrase ‘ensure respect’, with the notion that the terms of the treaty should be respected by the whole population within a State, including potential future rebel forces. It was therefore likely that the original drafters did not consider that they were imposing more than an internal-compliance requirement on the States party to the convention to disseminate the rules of the GCs. However, this strictly originalist interpretation of the law is not the only method of defining the meaning of a phrase within a treaty: subsequent practice and evolving interpretations need to be taken into account and this results in a broader understanding of the phrase ‘ensure respect’. Within a few years of the GCs being opened for signature, Jean Pictet published the first ICRC Commentary about the GCs. He concluded that CA1 ‘ensure respect’ was included to ‘emphasize and strengthen the responsibility’ of the HCPs and to enable all States party to the GCs to act should another State fail to fulfil its obligations. In such a circumstance, a third State ‘may, and should, endeavor to bring [the State] back to an attitude of respect for the Convention’ (Pictet Commentary, p. 26). In 2016, the ICRC published the first revised Commentary to the GCs since Pictet’s Commentaries were first published in 1952. As noted above, the 2016 Commentary unequivocally supports the view that there is an external-compliance dimension to CA1. Despite the suggestion that the original ICRC Commentaries have influenced the debate (Focarelli, 2010, p. 127; Geiss, 2015, p. 425) State practice, although selective, is relevant to CA1’s evolution (Boutruche and Sassòli, 2016, p.10). As previously stated, there has been discussion that the interpretation rendered by the ICRC goes further than some States may be prepared to accept (Egan, 2016; see also, Aly, 2019). However, even as Brian Egan, a US State Department Legal Adviser, expressed concerns about the ICRC’s ‘expansive’ view, he flagged an acceptance of limited positive responses by third States to ensure respect for IHL by partner States and non-State actors (2016). The issue of whether the potentially offending States or non-State actors fell within the third States’ sphere of influence was clearly important to this consideration. Nevertheless, this moderate view whilst not accepting the ‘expansive interpretation’ provided a cautious acknowledgement that the US would not partner with a State or non-State group which violates IHL and that this position was taken ‘as a matter of international law’ (Hathaway and Manfredi, 2016). This interpretation of CA1 is reflected in the October 2019 comment at the beginning of this chapter by the US Mission’s Senior Policy Advisor in the UNSC (Barkin, 2019).

Due Diligence A significant focus of the ICRC’s 2016 contribution to the discussion of the nature of the obligation to ensure respect in CA1 is around the concept of due diligence. In

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2007, the ICJ considered this concept with respect to Article 1 of the Convention on the Prevention and Punishment of the Crime of Genocide which imposes an obligation on States parties to ‘undertake to prevent and punish’ cases of genocide. The observations about the capacity of a third State to respond and what constitutes due diligence by the ICJ in the Bosnia Genocide judgment are highly informative with regards to CA1. As the ICJ noted, specifically about the issue of due diligence, a State cannot be under an obligation to succeed, whatever its circumstances, in preventing the commission of genocide: the obligation of States parties is rather to employ all means reasonably available to them, so as to prevent genocide as far as possible (para. 430). This suggests two separate points which can be applied to the concept of ensure respect. The first, that to ensure respect is not to be measured by the outcome of the intervention. A State might employ ‘all means reasonably available’ and yet be unable to halt or prevent the violations. The obligation to ensure respect is therefore one of means or conduct, rather than one of result. The second, that those seeking to ensure respect are only obliged to undertake those steps ‘reasonably’ available to them in that instance, and appropriate given the third State’s influence in relation to the parties to the conflict. Tzevelekos provides a very useful summary of the principle, for the state to escape responsibility for lack of diligence, it needs to demonstrate that it did everything that was possible to fight wrongfulness. To comply with diligence, states need to suitably use the pertinent means at their disposal… due diligence generates obligations of means… (2013, p. 73). As Massingham has discussed elsewhere (2018, p. 211) a third State, geographically removed from the conflict region and without strong ties to any of the parties to the conflict, would have very limited means of halting or preventing violations of IHL from occurring. As Dörmann and Serralvo would assert this State ‘can only be under an obligation to exercise due diligence in choosing appropriate measures’ to encourage the parties to the conflict to comply with the law (2014, p. 724). This might mean, individually or in concert with other States, releasing a statement denouncing the actions of the parties, or supporting UNGA resolutions calling on parties to respect IHL. Whereas, a State with close political, economic and/or military ties (for example, through equipping and training of armed forces or joint planning of operations) to one of the belligerents has a stronger obligation to ensure respect for IHL by its ally. (Sassòli, 2002, p. 421) Broadly speaking responses to CA1 obligations may be termed negative or positive. On the negative side, a third State is required to refrain from encouraging violations of IHL (Nicaragua, para. 220) and aiding or assisting violations of IHL (2016 Commentary, para. 158). Kessler takes this further by asserting States are obligated not to have any

8 Eve Massingham and Annabel McConnachie form of involvement or participation in violations (2001, p. 503). On the positive side States are required to both stop ongoing violations or prevent potential future violations of IHL (Dörmann and Serralvo, 2014, pp. 728–732). Boutruche and Sassòli contend that all States are obligated to take some positive action in the face of violations of IHL. Such action may depend upon the seriousness of the breach, the capacity of the third State, as well as the aforementioned influence (2016 Commentary, para. 165; Boutruche and Sassòli, 2016, p. 16). It should be noted that States’ highly selective reaction (or inaction) to breaches may suggest, as Judge Lauterpacht proposed, that there is a practice of ‘permissibility of inactivity’ (1993, para. 115). However, there is support for the contrary view that CA1 provides that, as a minimum, States are not allowed the ‘right of indifference’ (Sandoz, 1992 cited in Breslin, 2017, p. 21). What is significant therefore, and perhaps what makes the CA1 external-compliance obligation difficult to identify in concrete terms, is that the relative political, military or economic power of any third State to the parties to the conflict will be highly relevant to the measures to be adopted. Relative power will be dynamic and therefore a third State’s capacity to persuade a party to a conflict to restrain behaviour may vary over a short period of time. However, it is the third State’s ability to influence which needs to be assessed when determining whether the State has taken all the necessary steps available to discharge their duty to ensure respect for CA1.

Ensuring respect for IHL: State responses to CA1 Focarelli, raises the point that if CA1 imposes an obligation to ensure respect, it results in 19[6] breaches of CA1 every time the Conventions are breached – which is not the practice of States and seems implausible (2010, p. 171). Conversely, Boutruche and Sassòli, in their Expert Opinion of 2016, argue that this is precisely the case and ‘CA1 requires third States to take measures, even if this means in practice making this provision one of the most oft violated IHL norms’ (p. 3). The contributors to this volume have taken their own approach to defining CA1 but each has examined whether there have been State actions within their thematic area which indicate how States can or do respond to potential, suspected or confirmed violations of IHL. These State responses are then considered in the light of the external-compliance aspect of CA1 and whether these responses are attributable to the requirement to ensure respect. There is a wide spectrum of activities which will enable a State to comply with CA1: from actions which may be considered distant temporally or geographically from armed conflict to those activities that deal with the immediacy of conflict: to prevent or halt violations. For example, the requirements to promote respect for IHL by disseminating the contents of the GCs and supporting greater understanding through the development of domestic policies or legislation. In addition, exchange of information or drafting new treaties, contributing to the building of a culture of respect for the law, through to more coercive activities such as the application of sanctions. This range of options require, as a minimum, that States have knowledge of other States actions with respect to IHL (see further Kessler, 2001, p. 506). Without such information, States

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cannot fulfil their due diligence obligation or be capable of responding to prevent or halt violations where appropriate.

Conclusion It is not necessarily a simple task for States to implement or act on all aspects of the CA1 obligation. Indeed, CA1 may not capture the full extent of any State’s legal obligations, and is but one of a number of international legal obligations that a State must abide by in any particular case. Moreover, even if the obligations within CA1 are clearly understood, and efforts are made to implement the law, this does not mean that there will be perfect compliance with the law. CA1 is not ‘the panacea for IHL’s eternal dilemma of ensuring compliance for its provisions’ (Geiss, 2015, p. 440). However, CA1’s undertaking for States to ensure respect for the applicable law in all circumstances offers ‘immense possibility’ particularly in relation to the idea of ‘collective responsibility’ alluded to by Boisson de Chazournes and Condorelli (2000, p. 68). It might also close ‘the gap in state responsibility for non-state actors in armed conflict situations’ (Hathaway et al, 2017, p. 544). A greater understanding and dissemination of this requirement under IHL will remove any ambiguity about the possibility that ‘outsourcing war crimes to armed groups’ (Amnesty International, 2019) will allow evasion from international responsibility or that third States can remain bystanders to situations where IHL is being, or may be, violated. This book seeks to consider a range of actions and tools available for States to fulfil their obligation to ensure respect for IHL under CA1. Irrespective of where the legal arguments ultimately fall, the practical steps required along the spectrum – from provision of humanitarian support and creating norms conducive to respect for the law, to restraint in the face of violations and action designed to prevent or repress IHL violations – demonstrate how all States are capable of participating in actions to ensure respect for CA1.

References (additional to the common list) Treaties Convention on the Prevention of Genocide and Punishment of the Crime of Genocide, 78 UNTS 277 (entered into force 12 January 1951). International Covenant on Civil and Political Rights, 999 UNTS 171 (entered into force 23 March 1976). Vienna Convention on the Law of Treaties, 8 ILM 679 (entered into force 27 January 1980).

10 Eve Massingham and Annabel McConnachie Cases Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, Order of 13 September 1993, ICJ Rep, Separate Opinion of Judge Lauterpacht. [Lauterpacht, 1993]. Case concerning application of the Convention on the prevention and punishment of the crime of genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Judgement) (2007) ICJ Rep. [Bosnia Genocide]. El Masri v The Former Yugoslav Republic of Macedonia (2012) Eur Court HR. [El Masri]. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136. [Wall]. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, (Judgment) [1986] ICJ Rep. [Nicaragua].

Documents International Law Commission (ILC). (2001) Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries. UN Doc A/56/10. UNSC Res. 681, 1990. UNGA Res. 58/97, 2003. UNGA Res. 59/122, 2004. UNSC Res. 2165, 2014. UNSC Res. 2449, 2018. UNHRC, General Comment 31 (80). Resolution XXIII of International Conference on Human Rights, Held in Teheran, Iran (22 April – 13 May 1968).

Secondary sources Aly, H. (13 December 2019) Negotiations at Red Cross conference shrouded in global politics. The New Humanitarian: https://www.thenewhumanitarian.org/news/2019/ 12/13/Red-Cross-IHL-conference-global-politics. Amnesty International. (18 October 2019) Syria: Damning Evidence of War Crimes and Other Violations by Turkish Forces and Allied Armed Groups: https://www.amnesty.org.au/syriadamning-evidence-of-war-crimes-and-other-violations-by-turkish-forces-and-allied-armedgroups/. Barkin, M. (24 October 2019) Remarks at a UN Security Council Briefing on the Humanitarian Situation in Syria: https://usun.usmission.gov/remarks-at-a-un-securitycouncil-briefing-on-the-humanitarian-situation-in-syria–21/. Breslin, A. (2017) A Reflection on the Legal Obligation for Third States to Ensure Respect for IHL. Journal of Conflict & Security Law, 22 (1), 5–37. Boisson de Chazournes, L. and L. Condorelli. (2000) Common Article 1 of the Geneva Conventions Revisited: Protecting Collective Interests. International Review of the Red Cross, 82 (837), 67–86. Boutruche, T. and Sassòli, M. (2016) Expert Opinion on Third States’ Obligations vis-à-vis IHL Violations under International Law, with a Special Focus on Common Article 1 to the 1949 Geneva Conventions: https://www.nrc.no/globalassets/pdf/legal-opinions/ eo-common-article-1-ihl–boutruche–sassoli–8-nov-2016.pdf.

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Dörmann, K. and J. Serralvo. (2014) Common Article 1 to the Geneva Conventions and the Obligation to Prevent International Humanitarian Law Violations. International Review of the Red Cross, 96 (895/896), 707–736. Egan, B. (2016) US State Department Legal Adviser Speech at American Society of International Law: https://www.justsecurity.org/wp-content/uploads/2016/04/Egan-ASIL-sp eech.pdf. Focarelli, C. (2010) Common Article 1 of the 1949 Geneva Conventions: A Soap Bubble?, The European Journal of International Law, 21 (1) 125–171. Geiss, R. (2015) Common Article 1 of the 1949 Geneva Conventions: Scope and Content of the Obligation to ‘Ensure Respect’ – ‘Narrow but Deep’ or ‘Wide and Shallow’? In H. Krieger (Ed.), Inducing Compliance with International Humanitarian Law: Lessons from the African Great Lakes Region (pp. 417–441). Cambridge: Cambridge University Press. Geiss, R. (2015b) The Obligation to Respect and Ensure Respect for the Conventions. In A. Clapham, P. Gaeta and M. Sassòli (Eds.), The 1949 Geneva Conventions: A Commentary (pp. 111–134). Oxford: Oxford University Press. Hathaway, O. A. and Manfredi, Z. (2016) The State Department Adviser Signals a Middle Road on Common Article 1. Just Security, accessed 23/11/2019: https://www.justsecurity.org/30560/state-department-adviser-signals-middle-road-common-article–1/. Hathaway, O. A.; Chertoff, E.; Dominguez, L.; Manfredi, Z. and Tzeng, P. (2017) Ensuring responsibility: Common Article 1 and State Responsibility for Non-State Actors. Texas Law Review, 95 (3), 539–590. Kalshoven, F. (1999) The Undertaking to Respect and Ensure Respect in All Circumstances: From Tiny Seed to Ripening Fruit. Yearbook of International Humanitarian Law, 2, 3–61. Kessler, B. (2001) The Duty to Ensure Respect under Common Article of the Geneva Conventions: Its Implications on International and Non-International Armed Conflicts. German Yearbook of International Law, 44, 498–516. Massingham, E. (2018) The Obligation To Respect and Ensure Respect For IHL: A Potential Source of Assistance in Combatting Humanitarian Cross Boarder Challenges Created by Armed Conflict. In L Wolff and D Ireland-Piper (Eds.) Global Governance and Regulation: Order and Disorder in the 21st Century: Abingdon: Routledge. Meron, T. (1987) The Geneva Conventions as Customary Law. American Journal of International Law, 81 (2), 348–370. Sassòli, M. (2002) State Responsibility for Violations of International Humanitarian Law. International Review of the Red Cross, 84 (846), 401–434. Tzevelekos, V. (2013) Revisiting the Humanisation of International Law: Limits and Potential. Erasmus Law Review 1, 62–76. Zimmerman, A. (2017) Humanitarian Assistance and the Security Council. Israel Law Review, 50 (1), 3–23.

2

The Geneva Conventions and their Additional Protocols Jonathan Crowe

Introduction IHL can be defined as the body of international law governing the conduct of armed conflict. It protects those not, or no longer, taking part in the hostilities and limits the means and methods of warfare. The GCs and APs are the central international treaties regulating IHL. These documents, in conjunction with customary IHL, establish a rule, applicable in both international and noninternational armed conflicts (IAC and NIAC), whereby States must not only respect IHL, but also ensure respect for IHL. This requirement is stated explicitly in CA1. This provision, which appears identically in all four conventions, states that ‘[t]he High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances’ (see also API, Art. 1(1) and APIII, Art. 1(1)). The wording does not appear in APII, although CA1 itself applies to Common Article 3 (CA3) of the GCs and therefore has application in NIAC. The existence of an armed conflict is often said to be a prerequisite for IHL to operate (Tadic, para. 67). However, it should be noted that the obligation to respect and ensure respect for IHL, as enshrined in CA1, also obliges States to act during times of peace and when not directly involved in a conflict. Specifically, States are obliged not only to respect IHL within their own territory and jurisdiction at all times, but also to ensure respect for this body of law by encouraging and influencing other States and non-State actors to abide by its requirements. This requires States to actively consider the operation of IHL both before a conflict comes into existence and after its conclusion, as well as considering IHL in their dealings with other States and non-State groups which may be involved in ongoing armed conflicts. The contributors to this volume consider the ways in which the requirement to ensure respect for IHL confers States with legal obligations in specific domains of conduct. This chapter sets the scene for those discussions by considering the historical development and key principles of IHL, focusing particularly on the GCs and APs. Together with the opening chapter, this aims to provide the necessary framework for understanding the significance of the other contributions in this volume.

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The Geneva Conventions and their Additional Protocols The GCs were preceded by several earlier Geneva conventions, beginning in 1864, which sought to address the treatment of vulnerable parties during armed conflict, particularly the sick and wounded. The 1864 Geneva Conference culminated in the Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, which conferred protected status during armed conflicts upon ambulances, hospitals and medical personnel, imposed a duty on forces to care for wounded combatants and acknowledged and protected the distinctive emblem of ‘a red cross on a white ground’. The duty to care for the wounded was imposed on all parties regardless of affiliation. The 1864 Geneva Convention was followed by several further treaties attempting to broaden its scope. The 1899 Hague Convention adapted the 1864 agreement to protect wounded or shipwrecked sailors. A major revision of the 1864 regime occurred in the 1906 Geneva Convention and this was adapted in the 1907 Hague Convention to cover naval activities. The 1929 Geneva Convention then extended specific protections to prisoners of war. However, the events of the Second World War (1939–1945) and other major armed conflicts of the period, such as the Spanish Civil War (1936–1939) revealed an urgent need for further revision and expansion of the law. This major review was undertaken at an international conference instigated by the International Committee of the Red Cross (ICRC) in collaboration with the Swiss government in Geneva in 1949. The first three GCs, drafted at this conference, superseded previous Geneva treaties. GCI protects wounded and sick combatants in conflicts on land, superseding the agreements of 1864 and 1906. GCII deals with wounded, sick and shipwrecked combatants at sea, replacing the previous Hague treaties of 1899 and 1907, while GCIII deals with prisoners of war, surpassing the earlier agreement of 1929. By contrast, GCIV on the Protection of Civilian Persons in Time of War broke new ground by extending detailed protections to civilians caught up in military hostilities. Although the treatment of civilians in wartime had been covered to some extent in earlier treaties, GCIV, like the 1929 Convention on prisoners of war, represented a considerable advance on the previous rules. International awareness of the need for revisions to IHL that resulted from UN and ICRC activities during the 1960s culminated in a further diplomatic conference in Geneva in 1974. The delegates refined the ICRC documents in four annual sessions between 1974 and 1977, producing two treaties designated as API and APII to the GCs of 1949. The Protocols were adopted at the 1977 session and many States ratified them later that year. API updated and extended the rules relating to the conduct of IAC. It covers issues relating to both the means and methods of warfare and the protection of vulnerable parties. APII, meanwhile, is directed at NIAC, making it the first instrument devoted exclusively to that area, and continuing the extension of IHL that began with the adoption of CA3. Like CA3, API and APII reinforce the principle that certain activities, such as murder, torture, taking of hostages and summary execution, are prohibited in both IAC and NIAC. A number of other protections are common to conflicts of

14 Jonathan Crowe both types. The wounded, sick and shipwrecked must be respected and protected in all circumstances and measures must be taken to locate and collect them (API, Arts. 10, 33; APII, Arts. 7, 8). Humanitarian relief activities must be permitted regardless of the type of conflict (API, Arts. 69–71; APII, Art. 18). Attacks on the civilian population and objects needed for their survival are absolutely prohibited (API, Arts. 48, 50–60; APII, Arts. 13–16). Special protection is also accorded to medical units and transport, which may not be attacked or destroyed (API, Arts. 8, 9, 12, 21–31; APII, Art. 11). Some of these protections are more detailed in API than APII, but the same principles appear in both contexts. The Geneva Convention of 1864 established the red cross emblem to symbolise the neutral status granted by IHL to medical services and relief societies. By the end of the nineteenth century, the red cross, the red crescent and the red lion and sun were all in use by States to signify the protected status of medical and other humanitarian objects. The GCs recognised all three emblems (GCI, Art. 44), although the red lion and sun has since fallen into disuse. Although the emblems were not intended to have any religious or sectarian connotations, they have been viewed in that light by some parties (Provost, 2007). Accordingly, a third AP to the GCs was adopted in 2005, establishing a third emblem: the red crystal. This emblem is designed to be utilised in the same way as the red cross and red crescent emblems without the danger of any religious or sectarian perceptions diluting its humanitarian function.

The Common Articles The GCs contain a number of common articles appearing identically in all of them. CA1, which contains the requirement to respect and ensure respect for IHL, has already been mentioned and is the focus of this book. Common Article 2 deals with the application of the conventions; it provides that the conventions apply to ‘all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them’, as well as to ‘all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.’ The provision further stipulates that if all the parties to a conflict are not parties to the GCs, those who are will continue to be bound by them in their mutual relations (although the significance of this is reduced by the fact that the GCs are currently ratified by all recognised States). CA3 is an important provision dealing with NIAC. Prior to 1949, IHL had been exclusively concerned with regulating armed conflicts involving two or more nations. Civil wars between a State and a non-State group operating in its territory were thought to be domestic matters outside the reach of international law. In response to this issue, the 1949 Geneva Conference decided to insert into each of the four updated treaties a common provision dealing with NIAC, which has

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become known as CA3. The provision contains fundamental rules that are stated to apply ‘as a minimum’ to armed conflicts that are not international in character. CA3 represented a critical step in the development of IHL, as it was the first time an international instrument had established guidelines for the conduct of internal armed conflicts. It remained the sole provision expressly covering such conflicts until 1977. Other articles appearing in similar form in all four GCs include the grave breaches provisions and those dealing with dissemination. The grave breaches provisions define certain violations of IHL as particularly serious; these include ‘wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, and extensive destruction and appropriation of property, not justified by military necessity’ (GCI, Art. 50; GCII, Art. 51; GCIII, Art. 130; GCIV, Art. 147). These violations give rise to special obligations on States to criminalise breaches under their domestic law and take steps to suppress violations and bring offenders to justice (GCI, Art. 49; GCII, Art. 50; GCIII, Art. 129; GCIV, Art. 146). The dissemination provisions provide that State parties shall ‘undertake, in time of peace as in time of war, to disseminate the text of the present Convention as widely as possible in their respective countries’, including by both military instruction and, where possible, civil education of the wider community (GCI, Art. 47; GCII, Art. 48; GCIII, Art. 127; GCIV, Art. 144).

The Geneva Conventions and the Law of Armed Conflict The GCs and APs, despite their importance, are only one part of the broader body of IHL. IHL is traditionally divided into Hague law and Geneva law, named after the two main sets of treaties. Hague law takes its name from the 1899 and 1907 Hague Conventions and the accompanying Hague Regulations, which are directly concerned with the means and methods of warfare. There is now also a range of more specific treaties regulating or banning particular weapons, such as landmines, chemical weapons and cluster munitions. Geneva law, by contrast, is contained primarily in the GCs and their APs. These conventions, as noted above, specify minimum standards of treatment for vulnerable groups, such as the sick and wounded, prisoners of war and civilians. IHL, in turn, forms part of a wider body of international rules dealing with armed conflicts. As noted previously, the existence of an armed conflict is often said to be a prerequisite for IHL to operate. IHL, in this sense, is primarily concerned with regulating the conduct of armed conflicts, rather than their commencement. It is therefore traditionally described using the Latin term jus in bello (law in war). The law relating to the commencement of armed conflicts, by contrast, is known as the jus ad bellum (law to war). It is also sometimes called the jus contra bellum (law against war), since its primary aim is to stop wars from starting in the first place. This is a separate body of rules, although its interaction with IHL can give rise to complicated questions in both theory and practice (Greenwood, 1983).

16 Jonathan Crowe The conduct of armed conflicts is not only regulated by IHL, but also implicates other bodies of international law, such as international human rights law (IHRL) and international criminal law (ICL). Influential discussions by the International Court of Justice (Nuclear Weapons, paras. 25–26; Wall, para. 106; DRC v Uganda, paras. 216–217) and the International Law Commission (ILC) (2006, pp. 25–8) have helped to forge a consensus that IHL and IHRL should be viewed as part of an integrated body of rules governing armed conflicts. The prevailing view is now that the two fields of law can be reconciled by drawing on the maxim lex specialis derogat legi generali (the specialised law overrides the general law) (Nuclear Weapons, para. 25; Wall, para. 106). In wartime, IHRL is the lex generalis (general law); it gives way to the lex specialis (specialised law) of IHL. In other words, during armed conflicts, the former set of norms is amended by the latter to the extent that they are in tension. The upshot of this view is that IHL and IHRL must both be considered when analysing a situation of armed conflict (Wall, para. 106; DRC v Uganda, paras. 216–217). A related point could potentially be made about the relationship between IHL and ICL. The point in this context is not so much that one field of law gives way to the other in cases of tension, but rather that they are mutually supporting, at least so far as serious violations of IHL are concerned. The content of international criminal standards in this area draws heavily on the norms of IHL, while the mechanisms and procedures of ICL have furnished IHL with an important method of promulgation and enforcement, particularly since the Second World War. There is, then, increasing reason to speak of an integrated international law of armed conflict that is not reducible to IHL or any other traditional area, but includes international norms with a range of different sources (Crowe and John, 2017).

Accountability of Actors under IHL IHL encourages a clear and reliable division between combatants and non-combatants. This reflects the fundamental role played by the principle of distinction. The principle of distinction requires combatants to distinguish at all times between military targets and civilian objects and stipulates that only military targets may be the object of attack (API, Art. 48). This principle is undermined, although not extinguished, if attacking forces cannot readily distinguish combatants from other parties. The importance of the distinction between combatants and non-combatants is reflected in Article 43(2) of API, which provides that ‘[m]embers of the armed forces of a Party to a conflict … are combatants, that is to say, they have the right to participate directly in hostilities’. This stipulation makes it clear that IHL regards combatants as the primary agents of warfare. The classic definition of combatant status under IHL is found in Article 4 of GCIII. That provision sets out the categories of people who are entitled to prisoner of war status. The first category comprises members of the regular armed forces of a party to the conflict. The second category covers members of other armed groups who:

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are under responsible command; bear a fixed, distinctive sign recognisable at a distance; carry arms openly; and respect the requirements of IHL.

A broadly similar definition, albeit with some differences, is found in Articles 43 and 44 of API. That definition covers all armed forces or groups under the command of a party to the conflict who are subject to an internal disciplinary system and distinguish themselves from the civilian population or, where this is not possible, carry arms openly whenever engaging in or preparing to engage in an attack (API, Arts. 43(1), 44(3)). The main difference between the definitions is that whereas GCIII requires combatants to systematically distinguish themselves from civilians, API recognises that in some cases they may only do so when launching an attack. The types of situations envisaged in API where it is not possible for combatants to distinguish themselves from civilians include resistance movements in occupied territories, wars of national liberation and civilians spontaneously taking up arms as the last line of defence (levee en masse) (APs Commentary, p. 509). The emphasis placed on the need for responsible command or an internal disciplinary system in the definitions of combatant status reflects the important role of military command structures in ensuring respect for IHL. The international law system is heavily reliant on armed groups to both ensure that their members are familiar with their obligations under IHL and bring violators to account through their internal disciplinary processes. Both States and individuals can, however, potentially be held directly accountable for breaches of IHL under international law. The liability of States for breaches of IHL is governed by the general rules of State responsibility under public international law, as codified in the ILC’s Draft Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA). These articles were formally endorsed by the UNGA in Resolution 56/83 of 2002. Article 4(1) of ARSIWA provides that ‘[t]he conduct of any State organ shall be considered an act of that State under international law’. ARSIWA then goes on to clarify that ‘[a]n organ includes any person or entity who has that status in accordance with the internal law of the State’ (ARSIWA, Art. 4(2)). This will include, for example, the State’s official armed forces (CIHL Study, Rule 149, pp. 530–32). States are similarly responsible for the conduct of a person or entity who ‘is empowered by the law of that State to exercise elements of the governmental authority’ and is acting in that capacity at the relevant time (ARSIWA, Art. 5).1 State responsibility under ARSIWA is not necessarily confined to official State organs or persons granted governmental authority under law. Article 8 of ARSIWA provides that a State is also responsible for the conduct of any person or group acting under the instructions of, or under the direction or control of, 1

The conduct of a State organ or a person or entity empowered by the state will be regarded as an act of the State if the person or entity is acting in an official capacity at the time, even if the specific act under consideration exceeds authority or contravenes instructions: ARSIWA, Art. 7.

18 Jonathan Crowe that State. A State can also be responsible in some circumstances for an act committed by another State. This will occur where the first State knowingly aids and assists, directs and controls, or coerces the second State to commit the relevant act (ARSIWA, Arts. 16–18). The responsibility of individuals for violations of IHL is governed by ICL. Individual criminal responsibility does not attach to all violations of IHL, but only particularly serious violations (including but not limited to the grave breaches explicitly recognised as such in the GCs). Article 5 of the Rome Statute of the International Criminal Court (Rome Statute) sets out the international crimes over which the International Criminal Court has jurisdiction. These are the crime of genocide, crimes against humanity, war crimes and the crime of aggression. Each of these crimes can be carried out in wartime, but the most direct overlap with IHL concerns the category of war crimes, which draws its content substantially from the GCs and customary IHL. Article 8 of the Rome Statute lists four categories of war crimes:    

grave breaches of the GCs; other serious violations of the laws and customs of IAC; serious violations of CA3 of the GCs applicable in NIAC; and other serious violations of the laws and customs of NIAC.

Fundamental Principles of IHL Combatants have a number of basic obligations under IHL. They must distinguish themselves from the civilian population wherever possible, generally by wearing a fixed, distinctive sign. They must carry arms openly whenever mobilising or launching an attack (API, Art. 43(3)). They must respect the rules of IHL, although a failure to do so does not make them subject to reprisals or deprive them of prisoner of war status (API, Art. 43(2)). They must also be subject to a system of responsible command which enables violators to be held accountable (API, Art. 43(1)). The conduct of combatants beyond these basic duties is governed by a web of distinct but mutually supporting legal doctrines. These doctrines provide the legal framework within which military commanders and others must make operational decisions. Humane Treatment One of the fundamental doctrines of IHL underpinning the GCs is the principle of humane treatment. This is arguably the central principle of Geneva law (and perhaps of IHL as a whole). CA3 of the GCs gives powerful expression to this principle in setting the minimum standards of treatment applicable in NIAC. It provides that civilians ‘shall in all circumstances be treated humanely’, without any adverse distinction founded on race, colour, religion, sex, birth, wealth or any other similar criteria (see also API, Art. 9(1); APII, Art. 2(1)). The provision then sets out the fundamental guarantees applicable to persons affected by all types of armed conflict. These guarantees have since been reiterated and extended by provisions in API and APII (API, Art. 75; APII, Arts. 4–6).

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The acts prohibited under CA3 include violence to life and person, taking of hostages, outrages upon personal dignity (in particular humiliating and degrading treatment) and sentences imposed without due process of law. IHL further provides that persons prosecuted for offences related to the armed conflict must be tried according to recognised principles of judicial procedure (GCs, Art. 3; API, Art. 75(4); APII, Art. 6). IHL also sets out special protections for groups rendered particularly vulnerable during armed conflict. The detailed protections for the sick and wounded, interned civilians and prisoners of war set out in the GCs might be placed in this category. Other groups afforded special protection include women, children and journalists. For example, women are to be treated ‘with all consideration due to their sex’ (GCI and II, Art. 12; GCIII, Art. 14) and in no circumstances less favourably than men (GCIII, Arts. 14, 88). Female detainees should be held in separate quarters and supervised by women (API, Art. 75(5); APII, Art. 5(2)(a)). The Principle of Distinction A further fundamental principle of IHL is the principle of distinction, mentioned above in relation to combatant status. Military commanders must distinguish at all times between military targets and civilian objects; only legitimate military targets may be attacked. Article 48 of API makes it clear that this is an absolute prohibition, stating that parties ‘shall at all times distinguish between civilian objects and military objectives and … shall direct their operations only against military objectives’ (see also APII, Arts. 13–14). Military attacks may never be directed at civilian persons or objects, regardless of any military advantage. The principle of distinction also plays an important role in protecting civilians from the harmful effects of armed conflict and is crucial for humanitarian workers, such as medical personnel and Red Cross/Red Crescent officials. The principle makes it absolutely clear that there is never any excuse for directly targeting such persons. Anything less than this would seriously undermine the already tenuous security such workers enjoy when going about their humanitarian duties. The principle also protects combatants who are placed hors de combat by reason of injury, surrender or capture. People in these categories no longer pose any direct military threat and are therefore no longer legitimate objects of an armed attack. Superfluous Injury The principle of distinction allows attacks on combatants who are not hors de combat, but even these attacks have legal limits. Many of these can be traced back to the prohibition on inflicting superfluous injury or unnecessary suffering. Armed forces are proscribed from inflicting injury on opposing combatants beyond what is necessary to remove them from active combat and secure a military advantage. According to Article 22 of the Hague Regulations, ‘[t]he right of belligerents to adopt means of injuring the enemy is not unlimited’ (see also API, Art. 35(1)). Article 35(2) of API then states that ‘[i]t is prohibited to employ weapons,

20 Jonathan Crowe projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering’ (see also Hague Regulations, Art. 23). The ICRC study on customary IHL describes the prohibition on inflicting superfluous injury or unnecessary suffering as a fundamental rule applicable in both IAC and NIAC (CIHL Study, Rule 70). The rule was first codified in the St Petersburg Declaration of 1868. The main aim of that declaration was to prohibit explosive bullets, but its Preamble affirms the following basic principles: That the progress of civilization should have the effect of alleviating as much as possible the calamities of war; That the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy; That for this purpose it is sufficient to disable the greatest possible number of [combatants]; That this object would be exceeded by the employment of arms which uselessly aggravate the sufferings of disabled [combatants], or render their death inevitable; That the employment of such arms would, therefore, be contrary to the laws of humanity. Military Necessity The prohibition on causing unnecessary suffering is closely linked to the doctrine of military necessity. According to this principle, an armed group making an attack is permitted to use only that degree of force required to achieve the anticipated military objective that will result in minimum loss of life and property. Military necessity is sometimes depicted as a permissive doctrine; that is, as permitting a party to do whatever is necessary to achieve the desired military outcome. However, it is better viewed as a restrictive doctrine. A party mounting an attack may do what is necessary to achieve the objective and no more. Treaties contain numerous expressions of the doctrine. According to the Preamble of Hague Convention IV of 1907, the treaty aims to ‘diminish the evils of war, as far as military requirements permit’. Article 23 of the Hague Regulations forbids parties from seizing or destroying enemy property, unless ‘imperatively demanded by the necessities of war’. Similar terms are used in the GCs and APs. The first section of Part III of GCIV allows parties to ‘take such measures of control and security in regard to protected persons as may be necessary as a result of the war’ (GCIV, Art. 27; see also Art. 53). Article 54 of API likewise provides that civilian crops and livestock may not be destroyed or removed, except by parties in their own territory ‘where required by imperative military necessity’ (API, Art. 54(5)). Proportionality The principle of distinction provides that only military objectives may be directly targeted. However, an attack on a legitimate military objective may sometimes cause incidental damage to civilian persons or objects. These harmful side effects

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are regulated by the doctrine of proportionality. This doctrine prohibits attacks that may be expected to cause injury to civilian life or property that is excessive in relation to the anticipated military advantage. A clear statement of the doctrine can be found in Article 51(5)(b) of API, which prohibits 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’. The doctrine holds customary IHL status in both IAC and NIAC (CIHL Study, Rule 14). It places a duty on forces to assess the impact of an attack on civilian objects and refrain from disproportionate actions (API, Art. 57(2)). The doctrine of proportionality is closely linked to the notion of military necessity. Proportionality entails that an attack that causes incidental damage to civilian objects can be justified only where the damage is proportionate to a concrete and direct military advantage. The doctrine also resembles military necessity in another respect: both are subject to the principle of distinction. Proportionality can never be used to justify a direct attack on civilian persons or objects, even if it offers a military advantage. Indiscriminate Attacks The principle of distinction and the doctrine of proportionality are further supplemented by a general prohibition on indiscriminate attacks. Article 51(4) of API states that ‘[i]ndiscriminate attacks are prohibited’. Attacks are considered indiscriminate if they:   

are not directed at a specified military objective; employ a method that cannot be directed at a specific military objective; or apply a method or means of combat the effects of which cannot be limited to a specific military objective (API, Art. 51(4)).

The three limbs of this definition each cover a specific type of case. The first limb deals with attacks that are indiscriminate in the sense that they are not directed at a specific, identifiable military target. This limb therefore reinforces the principle of distinction. The second limb deals with attacks that use a type of weapon or a method of targeting that is incapable of being spatially limited to a specific military objective. Attacks that are ostensibly directed at a military objective will still be indiscriminate if the means or method of attack is incapable of being confined. The third limb covers attacks whose effects cannot be confined to a specific military objective. This overlaps with the second limb discussed above. However, it also covers attacks that may be capable of being confined to a military target at the time they are launched but will have subsequent effects extending beyond that objective. In other words, the second limb covers attacks that are spatially indiscriminate, while the third limb covers those that are temporally indiscriminate.

22 Jonathan Crowe Article 51(5)(a) of API specifically designates area bombardment as an indiscriminate method of attack. It is therefore prohibited. The provision applies to ‘an attack by bombardment or other means which treats several distinct military objectives as a single objective in an area that also contains civilian objects’. There is therefore a duty to target bombing at a specific military objective, rather than targeting multiple objectives in a way that includes civilian objects.

Conclusion This chapter has canvassed the role of the GCs and APs in the historical development of IHL, as well as providing an overview of the key principles contained in those conventions. It supplies a framework within which to consider the following chapters as the authors discuss the parameters and responses of States to their obligations under CA1 of the four GCs. Understanding the historical emergence of the key principles of IHL and the continuing evolution of this body of law provides a context for the contributors’ views on the ways in which the requirement to ensure respect for IHL confers States with legal obligations in specific fields of conduct. It helps to draw out the potential significance of different interpretations and applications of CA1.

References (additional to the common list) Cases Legality of the Threat or Use of Nuclear Weapons (International Court of Justice, Advisory Opinion, 8 July 1996). [Nuclear Weapons]. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (International Court of Justice, Advisory Opinion, 9 July 2004). [Wall]. Prosecutor v Tadic´, International Criminal Tribunal for the Former Yugoslavia (ICTY) (Appeals Chamber Decision on Jurisdiction, 2 October 1995). [Tadic]. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) (International Court of Justice, Judgment, 19 December 2005). [DRC v Uganda].

Secondary sources Crowe, J. and John, A. (2017) The Status of Private Military Security Companies in United Nations Peacekeeping Operations under the International Law of Armed Conflict. Melbourne Journal of International Law, 18, 16–44. Greenwood, C. (1983) The Relationship Between Ius ad Bellum and Ius in Bello. Review of International Studies, 9, 221–234. International Law Commission (2000) Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law. Geneva: International Law Commission. Provost, R. (2007) The International Committee of the Red Widget? The Diversity Debate and International Humanitarian Law. Israel Law Review, 40, 614–647.

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Ensuring respect for IHL in the international community Navigating expectations for humanitarian law diplomacy by third States not party to an armed conflict Sarah McCosker*

Introduction It is widely recognised that the single most important challenge to IHL is lack of respect for it (ICRC Challenges Report, 2019, p. 55).1 Arguably one of the most frequently violated IHL obligations is CA1 (Boutruche and Sassòli, 2016, p. 26), requiring States ‘to respect and ensure respect’ for the GCs ‘in all circumstances’. The internal component of this obligation is clear; a State must guarantee respect for the GCs by its own government organs and persons under its authority or jurisdiction. The more complex aspects of CA1 concern its external, positive dimension – namely its implications for third States who are not party to an armed conflict. Specifically, what action does CA1 expect from such third States to exercise influence on parties to armed conflict, to induce parties to comply with IHL? There has been much discussion on this topic, re-enlivened following the 2016 launch of the ICRC’s updated Commentary on GCI. The 2016 Commentary concluded that CA1 comprises both a negative obligation on third States to not encourage, aid or assist parties to an armed conflict to commit violations of IHL, and also a positive obligation on third States, to ‘do everything reasonably in their power to prevent and bring such violations to an end’ (para. 154). This chapter focuses on the external, positive dimension of CA1, and concentrates on State action vis-à-vis other States, rather than in relation to non-State actors. At its heart, this aspect of CA1 concerns the relationships between international law, foreign policy and diplomacy – specifically, an expectation that States will use foreign policy and diplomacy proactively to encourage other States to uphold IHL. This chapter does not engage in depth with the debate concerning the status, scope and content of *

1

The views expressed in this chapter are those of the author in her personal capacity and do not necessarily reflect the views of any organisation or entity. The author wishes to thank Matthew Teh for his excellent research assistance. Throughout this chapter the term ‘respect’ for IHL is used interchangeably with ‘compliance’.

24 Sarah McCosker this aspect of CA1, which is examined in Chapter 1 of this volume, and elsewhere (see eg. Geiss, 2015a; Dörmann and Serralvo, 2014). Instead, the chapter seeks to adopt a practical approach focusing on two key issues. First, it examines the suite of possible actions States could consider taking, to use their influence to promote respect for IHL by other States. Second, it considers some of the practical implications of the positive external component of CA1 for the conduct of foreign policy and diplomacy. In particular, for a State that may wish to implement conscientiously the positive external component (regardless of any debate about its legal status), what might be some of the practical implications for the resourcing and organisation of this work within government? What would conscientious implementation mean for the way that international law work, foreign policy and diplomacy may need to be coordinated? And what might be some of the implications for the roles of international law advisers within relevant ministries? The chapter argues that these kinds of institutional implications would be beneficial for States and commentators to consider in more depth, when trying to navigate expectations arising out of this aspect of CA1 (whether those expectations have a legal, moral or policy basis). This would help inform and strengthen States’ capacities to implement this aspect of CA1.

The external positive dimension of CA1 Over recent decades, with globalisation, massive technological advances and the expanded reach of formal and social media, the behaviour of parties to armed conflict is much more open to public scrutiny and accountability than ever before, which increases reputation concerns for States (Breslin, 2017, p. 24). Serious violations of IHL by a State are no longer considered its internal affairs, but actions that necessitate a reaction by other States (Wolfrum and Fleck, 2008, p. 675). All this creates additional pressure on States to not be passive in the face of potential or actual IHL breaches. Accordingly, there is understandably a heightened expectation on States to be constantly vigilant to the actions of other States and to react accordingly. The scope and content of the external positive aspect of CA1 has been discussed earlier in this book, highlighting that it is understood as creating a ‘due diligence standard’ (2016 Commentary, para. 165; Dörmann and Serralvo, 2014, pp. 707, 724) and that the obligation is inherently context-dependent. There is no bright-line rule, but rather, ‘a sliding scale that adjusts state legal obligations based on their degree of connection and control’ vis-à-vis the State party to a conflict (Hathaway et al, 2017, p. 573; Dörmann and Serralvo, 2014, pp. 723–25, citing Bosnia Genocide, para. 430). The in-built indeterminacy of the external positive aspect of CA1 has generated discomfort for States and some differing interpretations. Only a handful of States have put forward a view publicly on CA1, and thus it is difficult to ascertain States’ views overall of the status of the external positive component. While many examples of State practice have been cited by the ICRC and commentators as evidence in support of the position that the external positive aspect of CA1 constitutes an obligation (eg. CIHL Study, Rule 144), often these examples do not reveal a State’s precise position on the legal status, scope or content of CA1. Instead, they are often just evidence of a

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State’s recognition of the importance of promoting respect for IHL generally, without the State making any explicit linkage to CA1. Despite the ongoing debate about the legal status, scope and content of the external positive aspect of CA1, it is clearly a legal tool that can be used by States in support and justification of action to promote IHL compliance by other States. Of more practical interest is the question of what kinds of measures are available to States to give effect to this aspect of CA1?

Examining the toolbox: what is the range of measures that can be taken by a State to induce another State to respect IHL? There is a very wide range of measures available, which can be organised along a spectrum increasing in diplomatic strength and political bite – from education and training, confidential dialogue and diplomatic protest, to public statements and resolutions in international fora, through to investigations, fact-finding and other more restrictive measures, such as sanctions and restrictions on arms exports (eg. Azzam, 1997; Gasser, 1993; Kalshoven, 1999; Palwankar, 1994; Kessler, 2001; Breslin, 2017). A State may use a combination of different tools along this spectrum, and may use them bilaterally, or in coordination with other States or with multilateral organisations. Some measures are based on raising awareness and demonstrating concern and disapproval, and therefore are fundamentally about peer-group conformity within the international community (ICRC, 2018, pp. 12, 32). Some measures focus more on providing assistance. Others exercise stronger forms of power and pressure. Overall, however, the common denominator is the exercise of influence, to bring an offending State back into an attitude of respect (Breslin, 2017, p. 22). Different commentators have described and organised this toolbox of actions in different ways (2016 Commentary, paras. 180–82; CIHL Study, Rule 144;2 Palwankar, 1994; EU Guidelines, 2005, updated 2009). The EU’s approach arguably represents the most detailed, proactive and sophisticated approach to implementation of CA1 demonstrated by a group of States so far. Noting that there are different ways of categorising these measures and overlaps between them, below is a discussion of the main types of measures open to States, together with some practical examples. Diplomatic protest Diplomatic protest is arguably the main way in which third States seek to influence the behaviour of belligerent States. Within this broad category are a number of different kinds of actions. The first is political dialogue.

2

The ICRC Customary Law Study cites examples of measures, including diplomatic protest, collective measures, universal jurisdiction over grave breaches and the investigation of war crimes: CIHL Study p. 512; practice relating to Rule 144: Henckaerts and Doswald-Beck (2005), Volume II: Practice, 3289–302.

26 Sarah McCosker Political dialogue: confidential and public dimensions Political dialogue is the first measure included in the EU list of actions (EU Guidelines, 2009, para 16(a)), and is probably the measure most frequently used by the EU (Breslin, 2010, pp. 399–402; EU Report 2019, pp. 11–12). Political dialogue may be in written or oral form and may be confidential or public. Confidential dialogue and interventions (such as diplomatic démarches) enable States to raise concerns regarding IHL compliance directly with the relevant parties. This facilitates cooperation and negotiation instead of, or prior to, a more confrontational approach (Breslin, 2017, p. 31). In the same vein are good offices and mediation, which may also be offered to belligerent States to encourage them to comply with IHL (UK LOAC Manual, para 16.1(F)). Some examples of political dialogue from the EU Report 2019 include:   

 



The activities of the EU Special Representative (EUSR) for the South Caucasus and the crisis in Georgia to advocate for compliance with IHL, both in the context of the Geneva International Discussions and in bilateral contacts (p. 11). In Azerbaijan, the EUSR raising EU concerns about the humanitarian impact of the Nagorno-Karabakh conflict with the parties (p. 12). The EU’s activity in raising IHL-related issues regarding Ukraine – for example as a topic in the annual Human Rights Dialogue; as part of the EU’s bilateral political dialogue with Ukraine at different levels; and in different negotiating contexts (including in 2018 at the 4th meeting of the EUUkraine Association Committee; 19th EU-Ukraine Summit); 3rd EUUkraine Association Council and Political and Security Committee political dialogue (in both 2017 and 2018) (p. 12). Raising concerns with Russian interlocutors at all levels (through the EU Delegation in Moscow) (p. 12). Regarding Yemen, the EU Member States approved the Terms of Reference of a démarche to be conducted by the EU Delegations to Yemen, Saudi Arabia and the UAE on humanitarian access to Yemen, which was conducted in December 2018 (p. 12). In the Middle East Peace Process, the EUSRs on the Middle East Peace Process promoted respect for IHL (as well as human rights and the rule of law): in their regular confidential contacts with a range of both Israeli and Palestinian interlocutors, … including on the issues of settlements, protection of civilians, and humanitarian access, in order to promote compliance by all States and non-State actors in the area (p. 12).

Many aspects of humanitarian law diplomacy, which might be interpreted broadly as action in furtherance of CA1, are confidential, and not in the public domain. As observed by a US government representative, ‘[p]ublic explanations of legal positions are an important part of legal diplomacy. … More frequently, however, it is through private consultations that governments seek to understand each other’s legal rationale for military operations’ (Egan, 2016, p. 11).

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Accordingly, ‘part of … legal diplomacy is carried out with foreign counterparts behind closed doors’ (Egan, 2016, p. 14). Discussions of implementation of CA1 understandably focus primarily on public written records of bilateral and multilateral diplomacy, such as records of meetings, public statements and other activities undertaken through international organisations and international fora. However, many significant efforts made by third States to encourage belligerent States to respect IHL may occur off record, out of the public eye. Public statements Public statements and denunciations of relevant IHL violations are another common way by which third States may seek to ensure respect for IHL by belligerent States. This may be done in numerous ways, such as through speeches, declarations (eg. see the Final Declaration of the International Conference for the Protection of War Victims, Geneva (30 August – 1 September 1993);3 ‘Declaration made at the African Parliamentary Conference on International Humanitarian Law for the Protection of Civilians during Armed Conflict’, Niger (18–20 February 2002)), conference presentations, diplomatic démarches or appeals (eg. the Council of Europe has invited member States to ‘appeal’ to warring parties to respect the Geneva Conventions: Council of Europe, Parliamentary Assembly Res. 984 (30 June 1992)), and resolutions. Public statements may be general, calling for respect for IHL generally (EU Guidelines, 2009, para 16(b)), or more specific and contextualised. Examples of general statements related to IHL include:   

3

4

The 1991 Hague Statement on Respect for Humanitarian Principles issued by the Presidents of the six republics of the former Yugoslavia, in which they undertook ‘to respect and ensure respect for International Humanitarian Law’. Article 3 of the 2000 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law.4 The 2010 N’Djamena Declaration on Ending Recruitment and Use of Children by Armed Forces and Groups, in which five African States made various pledges in relation to the implementation of IHL. This included a pledge to establish a Follow-up Committee for the Declaration.

This specifically referenced CA1 and included an undertaking by Participants to act in cooperation with the UN and in conformity with the UN Charter to ensure full compliance with IHL in the event of genocide and other serious violations of the law. This provides: ‘The obligation to respect, ensure respect for and enforce international human rights and humanitarian law includes, inter alia, a State’s duty to: (a) Take appropriate legal and administrative measures to prevent violations; (b) Investigate violations and, where appropriate, take action against the violator in accordance with domestic and international law; (c) Provide victims with equal and effective access to justice irrespective of who may be the ultimate bearer of responsibility for the violation; (d) Afford appropriate remedies to victims; and (e) Provide for or facilitate reparation to victims’.

28 Sarah McCosker 



The 2018 G7 Statement on ‘Promoting Implementation of IHL’ in which G7 foreign ministers affirmed, inter alia, their commitment to practical measures aimed at promoting effective implementation of IHL (G7 Statement). The statements issued on the 60th and 70th Anniversaries of the GCs (see Council of the European Union, 2009; UNSC, 2019).

Targeted or contextualised public statements relate to specific conflicts, usually condemning known violations of IHL (EU Guidelines, 2009, para 16(b); Ferraro, 2002). Statements and action in international fora Diverse kinds of measures may be made in and through international fora. One of the most common measures is through drafting or voting on resolutions in international bodies. Arguably the three fora where this occurs most often are the UNGA, UNSC, and the UN Human Rights Council (HRC). The UNSC The UNSC has played an important role in ensuring respect for IHL, condemning violations and calling upon parties to respect their obligations. The UNSC first invoked the GCs in 1967 and has since made express and repeated references to them. UNSC resolutions often appeal to both parties to abide by applicable IHL, or appeal to ‘leaders’ to ensure their group or faction complies with IHL (Massingham, 2018, p. 209; CIHL Study; Dörmann and Serralvo, 2014). UNSC resolutions are usually contextualised. Some examples include calls relating to the conflicts in Syria (UNSC Res 2222 (2015)); Libya (UNSC Press Statement on Libya, 2011); the Democratic Republic of the Congo (UNSC Res 2198 (2015)); the Central African Republic (UNSC Res 2196 (2015)); and the Israeli-Palestinian conflict. Regarding the latter, both the UNSC and UNGA have relied on CA1 to call on third States to react to Israeli violations of GCIV in the Occupied Palestinian Territories (Boutruche and Sassòli, 2016, p. 10; eg. see UNSC Res 681 (1990) OP. 5; UNGA Resolutions ES-10/2 (1997); ES-10/3 (1996), ES-10/4 (1996), ES-10/6 (1999), and Report of the Chairman, 1998; Lanz et al, 2014). Notably, it has been argued that Russia and China have breached their obligation to prevent war crimes in Syria, and violated CA1, by vetoing two UNSC resolutions demanding all sides to the Syrian conflict cease all forms of violence and human rights violations in Syria (Heieck, 2017, regarding UNSC Res. S/2012/77 (2012) and UNSC Res S/2012/538 (2012)). The UNSC may also host special sessions or other events in which more general statements about respect for IHL may be made – such as the special session held in August 2019 to mark the 70th anniversary of the GCs (UNSC, 2019).

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The UNGA The UNGA has also been the locus of diverse diplomatic action by third States, acting either individually or in concert. Such action includes proposing, drafting and voting on resolutions, whether in the plenary or in UNGA Committees, such as the 6th Committee This has included both general and contextualised measures to promote respect for IHL. An example of the former is the UNGA Resolution on the UN Decade of International Law, which reminded ‘all States of their responsibility to respect and ensure respect for IHL in order to protect the victims of war’ (UNGA Res. A/RES/48/30 (1993), para 4). Just one illustration of contextualised measures is the UNGA resolution on the human rights situation in the Crimean peninsula (Ukraine) which included many references to IHL (UNGA Res. A/C.3/73/L.48 (2018)). Another is the process launched by the UNGA between 1997 and 2001, which gave States an opportunity to consider various measures to give effect to their CA1 obligation in the context of IHL violations committed by Israel in the Occupied Palestinian Territories (Boutruche and Sassòli, 2016, p. 10; Fux and Zambelli, 2002; UNGA Res. 63/96 (2008)). International human rights bodies Given the absence of an intergovernmental forum specifically dedicated to IHL, third States sometimes raise IHL compliance issues in international human rights bodies or mechanisms, to seek to bring influence to bear on parties violating IHL. The primary venue for this in recent years has been the HRC. Often HRC resolutions, like many UNGA and UNSC resolutions, call for parties to respect both IHL and international human rights law (IHRL) – given that armed conflict often gives rise to violations of both bodies of law. IHL compliance can also be considered as part of the Universal Periodic Review process (UNHRC Res. 5/1 (2007), Annex, para. 2). Examples include strong references to IHL in country-specific resolutions on Syria, Yemen and Myanmar (EU Report, 2019, p. 10). These resolutions sometimes foresee the creation of special procedures (commissions of inquiry, fact-finding missions, investigations) to respond to situations of serious violations of IHL and IHRL and report back to the HRC (EU Report, 2019, p. 10). In addition to resolutions, States may make statements before the HRC. For example in 2009, the Ambassador and Permanent Representative of Australia referred to the armed conflict in Gaza and reiterated Australia’s expectation on ‘all parties to abide by and respect human rights and international humanitarian law’ (Australia, 2009). Another possible measure is to promote respect for IHL during interactive dialogues with Special Procedures and the UN High Commissioner for Human Rights, including in the context of the HRC – a measure used regularly by the EU (EU Report, 2019, p. 10). Education, training and capacity-building Another important means of ensuring respect is education, training and capacitybuilding. This can include funding training in third States (EU Guidelines, 2009,

30 Sarah McCosker para. 16(h)). This is also related to separate duties in the GCs on IHL dissemination. An example is the EU’s military training mission for the Somali security forces in Uganda, as part of a package of political, security and development engagement – with the training covering IHL in addition to IHRL and refugee law (EU Factsheet, 2010). Establishment of monitoring and peacekeeping missions Creating peacekeeping and other expert operations or missions are other measures by which States may seek to ensure respect for IHL. This might include: monitoring of the conduct of parties to an agreement, for example by aerial surveillance by a third party, or by an international presence on the ground, to verify, among other things, that violations of the law do not take place. (UK LOAC Manual, 2004, para. 16.1) Protection of civilians is often a key task of such missions (Breslin, 2017, p. 35; Wills, 2009). It has been argued that prevention and suppression of IHL violations should be considered at the stage of drafting the mandate of such missions, and that ideally, this should include provision for collecting information that may be useful in war crimes investigations and for sharing with international or domestic criminal mechanisms (Breslin, 2017, p. 35). Inquiries, investigations and fact-finding States can investigate alleged violations of IHL and/or cooperate with or support proposed or existing investigations or fact-finding missions. High-level formal inquiries into alleged violations may be conducted by commissions established by individual States, by international commissions established by the UNSC or other bodies, or by the International Humanitarian Fact-Finding Commission (IHFFC, 2019). However, like the formal inquiry procedure in the GCs (Arts. 52, 53, 132, 149 of GC1, GCII, GCIII and GCIV, respectively), which has never been actually launched, the IHFFC has significant limitations and has never been triggered. In practice States have tended to set up inquiries or fact-finding missions outside the context of the IHFFC.5 Investigations are a vital component for promoting respect for IHL, but until recently there was no detailed international standard for States to consider or use to measure existing processes (Lubell, Pejic and Simmons, 2019). To address this, the ICRC and the Geneva Academy of International Humanitarian Law and Human Rights have recently launched ‘Guidelines on Investigating Violations of International Humanitarian Law: Law, Policy and Good Practice’ (Geneva Academy and ICRC, 2019; ICRC Challenges Report, 2019, pp. 56–57).

5

Eg. EU Georgia Mission, 2008. The Report of the Mission includes an evaluation of the application of IHL to the conflict and of alleged violations of IHL by both parties.

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Cooperation and coordination with international bodies Whether a particular diplomatic initiative to promote respect for IHL is feasible or effective will often depend on concerted action with other States. For example, a State may seek to initiate a resolution in the UNGA, but whether and how it goes forward will depend on support by other States. Cooperation with international bodies is another action listed in the EU Guidelines for States to ensure respect for IHL.6 This includes working cooperatively with bodies such as the UN, the ICRC, and the International Criminal Court (ICC). The latter may involve, for example, State missions collecting information that may be of use for war crimes investigations (see eg. EU, 2006, Art.7; discussed in Breslin, 2010, pp. 405–406). This also relates to another available action, which is to ensure no impunity for war crimes, either through encouraging penal legislation for violations of IHL at the domestic level, or by support of the ICC (listed in the EU Guidelines, 2009, para. 16(g)). Collective measures of international coordination include accountability mechanisms such as establishing ad hoc courts and tribunals (discussed further in Zangeneh’s Chapter 16), recourse to the ICC, imposition of international sanctions, establishment of peacekeeping missions, and the use of universal jurisdiction (Breslin, 2017, p. 34, citing Petrovic, 2015). Accordingly, arguably a State would not fulfil its CA1 duty to ensure respect if a State failed to arrest a suspect wanted by the ICC for violations of IHL amounting to war crimes, or to oppose actively the investigation of violations, through any mechanism, without sufficient reason (Breslin, 2017, p. 34). Mainstreaming IHL in crisis management operations Another important measure is to mainstream IHL as a key consideration in crisis management. For example, the EU Guidelines highlight the importance of ‘preventing and suppressing violations of IHL by third parties … where appropriate, in the drafting of mandates of EU crisis-management operations’ (EU Guidelines, 2009, para 16(f); Breslin, 2010, p. 405). Another illustration is the Australian Department of Foreign Affairs and Trade’s ‘Humanitarian Strategy’, which provides the policy framework for Australia’s humanitarian action generally in relation to conflict, disasters and other humanitarian crises, as well as to prevent and strengthen preparedness for the occurrence of such situations (DFAT, 2016). Notably, ‘respect for international law’ is one of ten guiding principles underpinning the strategy, including respect for IHL, international refugee law and IHRL (DFAT, 2016, p. 6, principle 2).

6

Also, API Art 89 enjoins State Parties to API, in situations of serious violations of the GCs or API, to act either jointly or individually in cooperation with the UN and in conformity with the UN Charter.

32 Sarah McCosker International Conference of the Red Cross and Red Crescent Movement In the absence of an intergovernmental forum specifically dedicated to IHL compliance, arguably the most significant forum that enables discussion of IHL issues is the quadrennial International Conference of the Red Cross and Red Crescent (IC), which brings together all States parties to the GCs together with all components of the Red Cross and Red Crescent Movement. As the supreme deliberative body of the Movement, it offers several measures for promoting respect for IHL – including resolutions through the drafting committee (eg. 24th IC, Res.VI, section 119; 25th IC, Res.I, section 120); individual and collective pledges by States, and follow-up reports on implementation of pledges;7 statements, workshops and other initiatives – including the major intergovernmental process on strengthening respect for IHL, launched at the 31st IC in 2011. Co-facilitated by the ICRC and Switzerland between 2011 and 2018, the process sought to develop the foundations for strengthened compliance mechanisms at the intergovernmental level. After many years of consultations, the process ended up centring around the proposal to create an intergovernmental forum for non-politicised discussion of IHL implementation. Regrettably, largely due to geo-political tensions States failed to reach consensus on an outcome (see procedural report of the process (2015–2019) in ICRC Factual Report, 2019). This demonstrates the ongoing high sensitivities for many States of issues regarding IHL compliance, with many States being deeply mistrustful of processes that could potentially give third States increased scope for criticism of parties’ conduct in armed conflict. The inability of States to achieve practical results through this intergovernmental process gives heightened importance to the ongoing role of the quadrennial IC as a forum for discussion of IHL compliance, and to the roles to be played by individual States in promoting respect for IHL, pursuant to CA1. Stronger, restrictive measures Stronger, more coercive or punitive measures may also be taken by States, such as sanctions, or suspension of licences for exporting arms and other materials to the countries involved (EU Guidelines, 2019, para. 16(d); Goodman, 2018). Other coercive measures may include expulsion of diplomats, severance of diplomatic relations, the suspension of trade or other agreements; and freezing of capital. Withholding of diplomatic recognition and withdrawal of diplomatic representation is a very common approach taken, and is ‘a stigmatising action to exert pressure on the state involved in violations’ (Breslin, 2017, p. 32). Two examples are the withdrawal of many States’ diplomatic representation from Syria due to the intensification of the conflict there, and the expulsion by several Western States of

7

Eg. during the 32nd IC (2015), the EU and its member States made several pledges aimed at strengthening IHL compliance. The EU drafted a report on the implementation of these pledges, submitted to the 33rd IC in December 2019.

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Syrian ambassadors following a massacre at Houla that caused global outrage (Breslin, 2017, p. 32, citing Guardian article, 2012). Sanctions States may have recourse to different kinds of sanctions, such as imposing autonomous sanctions or supporting UN sanctions (eg. EU Council, 2004, para 5; Breslin, 2010, pp. 402–403). These could include diplomatic sanctions, suspension of cooperation with a third country, boycotts of sporting or cultural events, trade sanctions, financial sanctions, visa bans, flight bans, and restrictions on admission (see eg. EU Council, 2005). For example, sanctions imposed by the EU have included the freezing of funds and economic resources for individuals who violated certain principles of IHL in the Democratic Republic of the Congo, restrictions on admission to the EU for individuals who have violated IHL, and freezing of funds and resources of certain persons indicted by the ICTY (see eg. EU, 2019). It has been noted however that the imposition of financial or economic pressure needs to be considered carefully, due to the risk of adverse humanitarian effects for the relevant civilian population (discussed in Breslin, 2010, p. 404, citing inter alia Cohen, 2009 and De Vries and Hazelzet, 2005). Restrictions on arms exports Another important source of leverage open to third States is to restrict arms exports to parties to armed conflict (EU Guidelines, 2009, para 16(i); Brehm, 2008). States Parties to the Arms Trade Treaty (ATT) and the Cluster Munitions Treaty have specific obligations in this regard. For example, parties to the ATT must refrain from authorising weapons transfers if there is a clear or substantial risk of the arms being used to commit or facilitate serious violations of IHL (ATT, 2014, Arts. 2 (Prohibitions), 6 and 7 (Export and Export Assessment), in particular Art. 7(1)(b)(i); see Massingham, 2016). This means that, although it can be difficult to assess risk of transferring arms in relation to potential versus ongoing violations, ‘at the very minimum assessments must be made, information on the end-users and end-uses of transfers sought out, and transparency in decision making maintained’ (Breslin, 2017, p. 33). Arms transfers to States involved in IHL violations may potentially violate both the negative and positive aspects of the external obligation of CA1. In recent years this topic has been the subject of particular discussion in relation to arms transfers in the context of the conflicts in Syria (see Ruys, 2014) and in Yemen. It has been argued, for example, that continued US support for the Saudi-led military campaign in Yemen (in the form of munitions, intelligence and mid-air refuelling), violates both the negative and positive duties of CA1 (Hathaway et al, 2019, p. 68). This is because the US has provided this support despite knowing of credible allegations that Saudi Arabia has violated IHL (Hathaway et al, 2019, p. 69). Concerns about the US potentially being liable for aiding and abetting war crimes have been raised in the US House Foreign Affairs Committee hearing on the ongoing arms sales from the US to Saudi Arabia (US, 2019, cited in

34 Sarah McCosker Hathaway, 2019), and have been the subject of considerable debate. The Yemen conflict has also given rise to a significant recent UK court decision as mentioned by Massingham in Chapter 8 of this volume (Campaign Against Arms Trade, 2019). This case is particularly notable because it shines a light on internal government processes for assessing risks of potential IHL violations by another State. It also demonstrates that domestic law issues related to judicial review of executive decisionmaking can directly raise issues relating to respect for IHL. The Court’s detailed examination of the decision-making processes of the UK government provides a window into some of the behind-the-scenes diplomatic activity that may be undertaken by third States when seeking to promote respect for IHL by parties to armed conflict. Similar litigation has been brought in Canada, seeking judicial review of the Canadian government’s export of light-armoured vehicles to Saudi Arabia and explicitly citing CA1 (see cases brought by Daniel Turp, eg. Notice of Application before the Federal Court, 2016, para. 28). However these cases have been dismissed by the Federal Court, Federal Court of Appeal and the Supreme Court of Canada (Turp, 2017, paras 6–7), with the Supreme Court dismissing in 2019 a 2018 application for leave to appeal (Canadian Press article, 2019). The cases have sparked significant public debate, prompting calls for cancellation of arms exports to Saudi Arabia, particularly considering Canada’s recent accession to the ATT (Jaramillo and Epps, 2019). Although the UK and Canadian litigation have had different outcomes, they provide, together with the tensions in the US Congress about arms transfers to Saudi Arabia, a cautionary tale for governments seeking to implement CA1 conscientiously. They show that through civil society advocacy, there is the potential for close scrutiny by the legislative and judicial branches of government of an executive government’s implementation of CA1 and corresponding ATT obligations. This scrutiny can give rise to detailed assessment of the way in which a third State government evaluates risks of IHL violations and puts processes in place to address those risks. This brings us to a discussion of some of the practical considerations for governments seeking to implement the positive external aspect of CA1.

Practical implications: institutional structuring, resourcing and prioritisation8 Given that this aspect of CA1 is an obligation of process and not result, it is important to consider more specifically what kinds of government processes a State may need to put in place to implement it. The diverse range of measures open to a third State to ensure respect for IHL is considered above. It would clearly be useful for States to have a detailed understanding of the range of measures open to them, supported by practical tools such as lists, explanations of the circumstances most suited for the use 8

These practical perspectives are informed by the author’s significant experience as a government international law adviser, and extensive study of the diplomatic and legal services of diverse countries (see McCosker, 2016, McCosker, 2013 and McCosker, 2009).

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of each kind of measure, precedents from the third State’s use of particular measures in the past, and notes about lessons learned from these experiences. The development of such tools would be usefully informed by the information in the EU Guidelines and its two annual reports produced so far. However, to be able to undertake measures effectively requires first a degree of institutional preparedness within government. Putting aside the debate about the legal character of this aspect of CA1, what many States may find useful is a clearer picture of what ‘best practice’ (or even just ‘good’ practice) looks like. That is, if a State wished to implement conscientiously, in good faith, the positive external aspect of CA1, to the ‘due diligence standard’ posited by the ICRC, what would be the practical implications on a day-to-day level for a government? If the standard to which due diligence is required is ‘the average general standard of behaviour by the … “well-organized” State’ (Pisillo-Mazzeschi, 1992, p. 45), what would actually constitute a ‘well-organized’ State? What kinds of institutional structures and capacities may need to be strengthened to enable States to take both reactive and proactive action in the face of another State’s actual or potential IHL violations? Monitoring by a third State of the activities of States Parties to armed conflicts often occurs by different parts of the government of that third State, but for many States, it is very likely that this is not necessarily done in a systematic, structured way with CA1 explicitly in mind. Best practice implementation of the external positive aspect of CA1 would arguably necessitate a State conducting a review of its existing practices, identifying all relevant government stakeholders and decision-makers, and then designing a multi-step process for them to follow. Below are some actions that could be considered important elements of such a process:

Identification of government decisionmakers and stakeholders

Development of policy and guidance materials

Monitoring of armed conflicts & informationgathering on parties' behaviour

Identification and analysis of IHL violations

Deciding on and implementing appropriate measures

Consultation & coordination with other States and international bodies

Evaluation of impact of measures, and undertaking further action if needed

Figure 3.1 Key steps for best practice implementation of the positive external component of CA1

36 Sarah McCosker 









Develop an internal document explaining the government’s policy and legal positions regarding CA1, and practical guidance material on the process for implementing CA1 and the respective roles of stakeholders. This would arguably necessitate designating areas within government with key responsibility for managing this body of work, including the relevant ministers with overall decision-making responsibility. Develop strong capacities to monitor actual or potential armed conflicts taking place in the world, to gather reliable information on parties’ behaviour and to share information across relevant parts of government. In addition, monitor and map the various relationships of influence relevant to those parties, to help the government evaluate the extent to which it may be able to exercise influence over the parties. Identify IHL violations or risks of potential violations, and then have these reviewed by government lawyers with specialist IHL expertise. These legal experts would produce advice, including a risk analysis to help explain the level of risk of potential IHL non-compliance and the degree of seriousness of the actual or potential IHL violation. Arguably this legal advice/risk analysis would feed into a broader risk analysis process which would also be informed by policy assessments. This might include, for example, consideration of other risks of the third State’s actions – such as risks to the third State’s reputation, the bilateral relationship with the relevant party engaged in an armed conflict, and relationships with other States. Develop mechanisms to evaluate what specific measures may be most appropriate to influence a particular State’s behaviour and decide which measures to take. Ideally there would be follow-up action to evaluate the impact, and adapt and/or undertake further measures if needed. All the above steps would benefit from having good systems in place for consulting and coordinating with other States. States need to consider not just the impact of their actions in isolation, but also the potential cumulative effect of several States taking combined action. Consideration would need be given to how to ensure efficiency, for example adopting strategies for certain countries to take the lead on particular measures, and for others to lend their support to such initiatives.

The above is just an outline of the basic steps that would be desirable for a State to take if it wished to implement the positive external component of CA1 in a thorough manner. Such steps would require careful design, to facilitate good coordination between legal, policy and diplomacy experts from across relevant government ministries. The roles of lawyers within different stages of the process within government require careful consideration. This has broader implications for the structuring and resourcing of its government legal services across different ministries. Different stages of the process would benefit from legal input – not just in advising on IHL violations, but also in advising on the legal risks of particular measures being considered by a State, and on helping to review the State’s draft external messaging about those measures (both confidential and public messaging) and advising on potential legal consequences. A State may wish to craft such measures very carefully – in particular any explanation about why it is taking a particular measure. Lawyers could help advise

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on whether or not to mention CA1 explicitly, and on specific caveat language that could be included to protect the State from particular risks. It should be noted that all the steps outlined above will of course be affected by timing factors. For example, it may be possible for a State to work systematically through each step, but the process may need to be streamlined where developments are occurring at a high tempo, necessitating quick decisions about how to respond to a serious actual or alleged breach of IHL.

Conclusions More effective implementation of CA1 will arguably depend less on a how a government interprets CA1 legally, than on the practical question of whether the government is willing and able to dedicate more of its time and resources to promoting respect for IHL through diplomacy and foreign policy. Contemporary interpretations of CA1 generate significant expectations for States to conduct proactive and reactive humanitarian law diplomacy. As discussed in this chapter, States have a wide range of tools at their disposal to exercise intergovernmental leverage to promote respect for IHL – and many States do so very actively. However, a State’s ability to react effectively to potential or actual IHL violations requires considerable investment of thought, time and resources in developing government capacities and institutions accordingly. This is not a task for government legal experts alone; it requires multi-disciplinary inputs and thoughtful coordination across several different areas of government. This may include ministries of foreign affairs, defence and justice, and within each of these, many different subject matter areas. In addition to legal experts this could include diverse policy desks (specific country expertise, regional expertise, and particular thematic expertise—such as in humanitarian diplomacy; aid and development; crisis management; media and communications). Implementing systematically the kinds of steps outlined above is a challenging undertaking, even for developed States who take IHL implementation very seriously. Some States may already have good processes. Many States, however, would likely require major review and reorganisation of current practices, and significant extra resourcing. For most States, this would necessitate deprioritising, and reallocating resources away from, other important government work. Much of this is simply not realistic or practicable for many States, within limited budgets and capacities. At this stage, many States are not set up institutionally to keep a careful watching brief on numerous armed conflicts around the world, to identify and assess parties’ compliance with IHL and to undertake extensive proactive diplomacy to promote respect for IHL. Most States primarily dedicate their government resources to managing their own compliance with IHL (the internal component of CA1), rather than the additional proactive work to ensure respect for IHL by other States (the external component). In part, this prioritisation is also likely to be influenced by risk assessment; for example, the ongoing debate about the status, scope and content of the external component of CA1 means that non-compliance with the external component would generally raise less legal and policy risk for a third State than non-

38 Sarah McCosker compliance with the internal component. Most States would therefore prioritise their humanitarian law diplomacy, to focus on a more limited range of conflicts and intergovernmental relationships. This is likely to be largely based on pragmatic considerations about allocation of resources, strategic priorities and risk management. These kinds of institutional implications would be beneficial for States and commentators to consider in more depth, when trying to navigate expectations arising out of this aspect of CA1 (whether those expectations have a legal, moral or policy basis). This would help inform and strengthen States’ capacities to implement this aspect of CA1. Looking to the future, it would also be useful to encourage increased information-sharing and capacity-building among States on how to create the governmental conditions, culture and capacities to implement CA1 more effectively. For example, it would be useful for States to share ideas at the peer-to-peer level about good government practices for monitoring and responding to actual or potential IHL violations by other States, and lessons learned from their own experiences. There is still a long way to go for States to be in a position to realise more fully the ambitious humanitarian vision embodied in the positive external aspect of CA1, a vision which in part can be understood as reflecting the erga omnes character of many IHL obligations. It is clear that the interpretation of CA1 has evolved over time and is continuing to evolve through ongoing State practice. Debates about the external positive aspect of CA1 shine a light on the complex relations between international law, policy and diplomacy, and can be understood as one illustration of the broader evolutions that are being seen across different fields of international law, not just in IHL, but also in areas such as human rights law, trade law, environmental law and climate change. In all these fields, there is greater awareness of the inherent interconnectedness of State behaviour in the international community, and increasing expectations on States to seek to influence each other to uphold norms of international law – in particular where those norms reflect shared values and interests. Ultimately building IHL-compliant behaviour is about socialisation – ‘the process by which norms and rules become socially accepted and then fulfilled on the battlefield’ (Carbonnier, 2018, p. 6). CA1, and its evolution in interpretation, can be understood as part of an ongoing process of socialisation of IHL at the intergovernmental level, and has become an important tool in an increasingly prominent discourse of humanitarian law diplomacy.

References (additional to the common list) Treaties Arms Trade Treaty (opened for signature 3 June 2013, entered into force 24 December 2014) [ATT].

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Cases Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), ICJ, Judgment, 26 February 2007 [Bosnia Genocide]. Court of Appeal of England and Wales, The Queen (on the application of Campaign Against Arms Trade) and the Secretary of State for International Trade and Amnesty International, Human Rights Watch, Rights Watch UK and Oxfam International, Case No.T3/2017/2079 (20 June 2019) [Campaign Against Arms Trade]. Notice of Application before the Federal Court, Daniel Turp v Minister of Foreign Affairs (21 March 2016), para 28: https://theintercept.com/wp-uploads/sites/1/2016/03/ Turp-Lawsuit-1.pdf. Turp v The Minister of Foreign Affairs 2017 FC 84.

Documents 24th International Conference of the Red Cross and Red Crescent, Resolution VI [24th IC Res. IV]. 25th International Conference of the Red Cross and Red Crescent, Resolution I [25th IC Res. I]. G7/8 Foreign Ministers Meetings, ‘Promoting Implementation of International Humanitarian Law’ (Toronto, 23 April 2018), available at: http://www.g7.utoronto.ca/foreign/180423-humanitarian.html [G7 Statement]. UNSC Res. 2222 (2 May 2015). UNSC Res. 2198 (29 January 2015). UNSC Res. 2196 (22 January 2015). UNSC Res. 681 (1990). UNSC Res. S/2012/77 (4 February 2012) (vetoed). UNSC Res. S/2012/538 (19 July 2012) (vetoed). UNSC Press Statement on Libya (22 February 2011) UN Doc SC/10180, AFR/2120. UNGA Res. ES-10/2 of 5 May 1997, ES-10/3 of 30 July 1997, ES-10/4 of 19 November 1997, ES-10/6 of 24 February 1999 and the Report of the Chairman of an Experts’ meeting held on the Fourth Geneva Convention in Geneva, 27–29 October, 1998. UNGA Res. A/RES/48/30 (30 December 1993) (Resolution on the UN Decade of International Law). UNGA Res. A/ C.3/73/L.48 (22 December 2018). UNGA Res. 63/96, UN Doc.A/RES/63/96 (18 December 2008). UNHRC Res. 5/1 (18 June 2007). Ambassador and Permanent Representative of Australia (2009) 12th Session, Item 7 (29 September 2009) [Australia, 2009].

Secondary sources Azzam, F. (1997). The Duty of Third States to Implement and Enforce International Humanitarian Law, 66 Nordic Journal of International Law, 55. Boutruche, T. and Sassòli, M. (2016) Expert Opinion on Third States’ Obligations vis-à-vis IHL Violations under International Law, with a Special focus on Common Article 1 to

40 Sarah McCosker the 1949 Geneva Conventions (8 November 2016): https://www.nrc.no/globalassets/ pdf/legal-opinions/eo-common-article-1-ihl–boutruche–sassoli–8-nov-2016.pdf. Brehm, M. (2008). The Arms Trade and States’ Duty to Ensure Respect for Humanitarian and Human Rights Law. Journal of Conflict and Security Law, 12 (3), 359–387. Breslin, A. (2010) Ensuring Respect: The European Union’s Guidelines on Promoting Compliance With International Humanitarian Law. Israel Law Review, 43 (2), 381–413. Breslin, A. (2017). A Reflection on the Legal Obligation for Third States to Ensure Respect for IHL, 22 (1) Journal of Conflict and Security Law, 5–37. Cohen, A. (2009). Economic Sanctions in IHL—Suggested Principles (2009) 42 Israel Law Review, 117. De Vries, A.W. and Hazelzet, H. (2005). The EU as a New Actor on the Sanctions Scene in P. Wallensteen and Carina Staibano (eds), International Sanctions: Between Words and Wars in the Global System, Ch.7. Dörmann, K. and Serralvo, J. (2014). Common Article 1 to the Geneva Conventions and the Obligation to Prevent International Humanitarian Law Violations, International Review of the Red Cross, 96 (895/896), 707–736. Ferraro, T. (2002). Le Droit Humanitaire dans la Politique Étrangère et de Sécurité Commune de l’Union Européene (2002) 84 IRRC 435 Fux, P.Y. and Zambelli, M. (2002). Mise en œuvre de la Quatrième Convention de Genève dans les territoires palestiniens occupés: historique d’un processus multilatéral (1997–2001), IRRC 847, 661–691. Gasser, Hans-Peter (1993). Ensuring Respect for the Geneva Conventions and Protocols: The Role of Third States and the United Nations in Meyer, M. (ed) Effecting Compliance: Armed Conflict and the New Law. London: British Institute of International and Comparative Law, Vol 2. Geiss, R. (2015a). Common Article 1 of the 1949 Geneva Conventions—Scope and Content of the Obligation to “Ensure Respect” – “Narrow but Deep” or “Wide and Shallow”? In H. Krieger (ed.), Inducing Compliance with International Humanitarian Law: Lessons from the African Great Lakes Region (417–441). Cambridge: Cambridge University Press. Geiss, R. (2015b), The Obligation to Respect and Ensure Respect for the Conventions. In A. Clapham, P. Gaeta and M. Sassòli (eds.), The 1949 Geneva Conventions: A Commentary (111–134). Oxford: Oxford University Press. Goodman, R. (2018), ‘Options for Congress to Respond to Saudi Transgressions: Here’s What Works According to Former Senior U.S. Officials’ Just Security (22 October 2018): https://www.justsecurity.org/61172/effective-ineffective-congressional-responses-sau di-arabia-arm-sales-sanctions-khashoggi/. Hathaway, O. (2019), The Missing State Department Memo on US Officials’ Possible Aiding and Abetting Saudi War Crimes, Just Security (24 July 2019): https://www. justsecurity.org/65041/the-missing-state-department-memo-on-us-officials-possibleaiding-and-abetting-saudi-war-crimes/. Hathaway, O., Chertoff, E., Dominguez, L., Manfredi, Z., and Tzeng, P. (2017). Ensuring Responsibility: Common Article 1 and State Responsibility for Non-State Actors 95 Texas Law Review, 539–590. Hathaway, O., Haviland, A., Kethireddy, S.R., Yamamoto, A.T., (2019). ‘Yemen: Is the US Breaking the Law?’ 10 Harvard National Security Journal, 1–74. Heieck, J. (2017). The Duty to Prevent War Crimes: Transforming Russia’s Veto Power in the Security Council? (26 July 2017): https://ssrn.com/abstract=3009504 or http:// dx.doi.org/10.2139/ssrn.3009504.

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Henckaerts, J.-M. and Doswald-Beck, L. (eds) (2005). Customary International Humanitarian Law, Volume II: Practice. Cambridge: Cambridge University Press. Kalshoven, F. (1999). The Undertaking to Respect and Ensure Respect in All Circumstances: From Tiny Seed to Ripening Fruit, Yearbook of International Humanitarian Law, 2, 3–61. Kessler, B. (2001). The Duty to “Ensure Respect” under Common Article 1 of the Geneva Conventions: Its Implications on International and Non-International Armed Conflicts. German Yearbook of International Law, 44, 498–516. Lanz, M., Max, E. and Hoehne, O. (2014). The Conference of High Contracting Parties to the Fourth Geneva Convention of 17 December 2014 and the Duty to Ensure Respect for International Humanitarian Law, 96 IRRC, 1115–1133. Levrat, N. (1989). ‘Les conséquences de l’engagement pris par les Hautes Parties contractantes de “faire respecter” les Conventions humanitaires’ in F. Kalshoven. F and Sandoz, Y. (dir.) Mise en oeuvre du droit international humanitaire, Dordrecht, Martinus Nijhoff, pp. 263–296. Lubell, N., Pejic, J. and Simmons, C. (2019). Just Security https://www.justsecurity.org/ 66190/guidelines-on-investigating-violations-of-international-humanitarian-law-law-p olicy-and-good-practice/(16 September 2019). Massingham, E. (2018) The Obligation to Respect and to Ensure Respect for International Humanitarian Law: A Potential Source of Assistance in Combating Cross-border Challenges in the 21st Century in Ireland-Piper, D. and Wolff, L. (eds). Global Order/Disorder: Governance and Regulation in the 21st Century. London: Routledge, 207–218. McCosker, S. (2013). ‘The Intersecting Professions of the International Law Adviser and Diplomat in a Rising Asia’, European Society of International Law 2013 5th Research Forum: International Law as a Profession Conference Paper No.9/2013. McCosker, S. (2016). The Intersecting Professions of the International Law Adviser and Diplomat in a Rising Asia: Australia, India and Malaysia in A. Zidar and J.P. Gauci (eds), The Role of the Legal Adviser in the Domain of International Law. Brill: British Institute of International and Comparative Law, 96–127. Palwankar, U. (1994). Measures Available to States for Fulfilling their Obligations to Ensure Respect for International Humanitarian Law, IRRC, 298, 9–26. Petrovic, J. (ed) (2015). Accountability for Violations of International Humanitarian Law: Essays in Honour of Tim McCormack. London and New York: Routledge, 2015. Pisillo-Mazzeschi, R. (1992). The Due Diligence Rule and the Nature of the International Responsibility of States, German Yearbook of International Law, 35, 9–51. Ruys, T. (2014). Of Arms, Funding and “Non-lethal Assistance”—Issues Surrounding ThirdState Intervention in the Syrian Civil War, 13(1) Chinese Journal of International Law, 13–53. Wills, S. (2009). Protecting Civilians: The Obligations of Peacekeepers. Oxford: Oxford University Press. Wolfrum, R. and Fleck, D. (2008). Enforcement of International Humanitarian Law in D. Fleck (ed), The Handbook of International Humanitarian Law (2nd ed.), 675–722.

Press Black, Ian and McGreal, Chris (2012) Syrian Diplomats Expelled Across World as Outrage Over Houla Massacre Grows, Guardian (London, 29 May 2012). Jaramillo, C. and Epps, K. (2019). Canada Joins the Arms Trade Treaty—but Will it Cancel the Saudi Deal?: https://www.opencanada.org/features/canada-joins-the-arms-

42 Sarah McCosker trade-treaty-but-will-it-cancel-the-saudi-deal/ (1 October 2019): https://www.opencanada.org/features/canada-joins-the-arms-trade-treaty-but-will-it-cancel-the-saudideal/. The Canadian Press (2019) High Court Won’t Hear Appeal Over Sale of Armoured Vehicles to Saudi Arabia, The Canadian Press, 11 April 2019: https://www.cbc.ca/ news/politics/scc-armoured-vehicles-saudi-arabia-1.5094141.

Other sources Australian Department of Foreign Affairs and Trade (DFAT) (2016). Humanitarian Strategy: https://dfat.gov.au/about-us/publications/Pages/humanitarian-strategy.aspx [DFAT 2016] Carbonnier, G (2018) (ICRC Vice-President). ‘Foreword’, in ICRC, Roots of Restraint in War. Geneva: ICRC, 6–7. Council of Europe, Parliamentary Assembly Res 984 (30 June 1992). Council of the EU General Secretariat, COJUR, second Report on the EU Guidelines on Promoting Compliance with IHL: July 192017–December 2018 (published June 2019) [EU Report 2019] ‘Declaration made at the African Parliamentary Conference on International Humanitarian Law for the Protection of Civilians during Armed Conflict’, Niger (18–20 February 2002). Egan, B. (2016). (US State Department Legal Adviser): https://www.justsecurity.org/wpcontent/uploads/2016/04/Egan-ASIL-speech.pdf. EU Council (2004). Basic Principles on the Use of Restrictive Measures (Sanctions) 10198/ 1/04 REV 1, Brussels (7 June 2004) EU Council’s Independent International Fact-Finding Mission on the Conflict in Georgia: EU Council Decision 2008/901/CFSP (2 December 2008), O.J. L323/66, http:// www.ceiig.ch/Index.html [EU Georgia Mission]. EU Council (2005) Guidelines on Implementation and Evaluation of Restrictive Measures (Sanctions) Framework of the EU Common Foreign and Security Policy 15114/05, Brussels (2 December 2005). EU, ‘Factsheet: EU Military Mission to Contribute to the Training of the Somali Security Forces (EUTM Somalia), April 2010 EUTM/04: http://consilium.europa.eu/showPage. aspx?id=1870&lang=en, Council Decision 2010/197/CFSP (31 March 2010), O.J. L 87/ 33 [EU Factsheet, 2010]. EU (2019) ‘EU Sanctions Map’: https://sanctionsmap.eu/#/main. EU Political and Security Committee political dialogue (1 December 2017, 7 May 2018, 23 November 2018) EU Guidelines on Promoting Compliance with International Humanitarian Law (adopted in 2005 and updated in 2009) [EU Guidelines]. EU (2006) Exchange of Information, in the Agreement between the International Criminal Court and the European Union on Cooperation and Assistance, O.J. L 115/50 Geneva Academy and ICRC (2019). Guidelines on Investigating Violations of International Humanitarian Law: Law, Policy, and Good Practice (N. Lubell, J. Pejic and C. Simmons) (September 2019). ICRC (2018). Roots of Restraint in War. Geneva: ICRC. ICRC (2019). International Humanitarian Law and the Challenges of Contemporary Armed Conflicts: Recommitting to Protection in Armed Conflict on the 70th

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Anniversary of the Geneva Conventions: Report, 33IC/19/19.7 (October 2019): https://rcrcconference.org/app/uploads/2019/10/33IC-IHL-Challenges-report_EN. pdf [ICRC Challenges Report]. ICRC (2019). Factual Report on the Proceedings of the Intergovernmental Process on Strengthening Respect for IHL (Resolution 2 of the 32nd International Conference of the Red Cross and Red Crescent) 33IC/19/9/1: https://rcrcconference.org/app/uploads/ 2019/10/33IC-IHL-Compliance-factual-report-_en.pdf [ICRC Factual Report]. International Humanitarian Fact-Finding Commission, (IHFFC) 2019. https://www.ihffc. org/index.asp?Language=EN&page=home. Massingham, E. (2016). The Obligation to Respect and to Ensure Respect in All Circumstances Pursuant to Common Article 1 of the Four Geneva Conventions of August 1949 and Additional Protocols I and III: An Australian Weapons Law Perspective (Doctoral Thesis, UQ (2016)), Ch 6, 153–174. McCosker, S. (2009). Law and Diplomacy in International Dispute Settlement (Doctoral Thesis, Oxford, 2009). 1991 Hague Statement on Respect for Humanitarian Principles issued by the Presidents of the six republics of the former Yugoslavia. Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law (2000). N’Djamena Declaration on Ending Recruitment and Use of Children by Armed Forces and Groups (2010). 4th meeting of the EU-Ukraine Association Committee (5 October 2018) Human Rights Dialogue (31 May 2018) 19th EU-Ukraine Summit (9 July 2018), 3rd EU-Ukraine Association Council (8 December 2017, 17 December 2018) Final Declaration of the International Conference for the Protection of Victims of War, Geneva (30 August – 1 September 1993) UNSC (2019). Geneva Conventions More Crucial Than Ever, Humanitarian Experts Stress, as Security Council Marks Seventieth Anniversary of Key Instruments, 8596th Meeting, UNSC /13917 (13 August 2019): https://www.un.org/press/en/2019/ sc13917.doc.htm. UK Ministry of Defence (2004). Manual of the Law of Armed Conflict. Oxford: Oxford University Press [UK LOAC Manual].

4

Parliamentary scrutiny committees’ contribution to the obligation to respect and ensure respect for IHL Lara Pratt

Introduction As we have seen, CA1 (GCI-IV, API and APIII, Art. 1), together with various other sources establishes an obligation for States to ‘respect and to ensure respect’ for IHL (see eg. as embedded in particular treaties such as Convention on the Rights of the Child, Art. 38(1), or as regarding customary international law, Nicaragua, p. 220 and CIHL Study Rule 139). This broad obligation does not merely require the compliance with rules during times of armed conflict. States have, for example, an obligation to pass legislation which gives domestic effect to their IHL obligations (see eg. GCI, Arts. 44 and 54 and GCII, Art. 50). Parliaments also have a key role in fulfilling States’ education (dissemination) obligations (Focarelli, 2010, pp. 127, 159). These peacetime obligations have been described as ‘essential factor[s] in guaranteeing respect for international humanitarian law in times of armed conflict’ (Boisson De Chazournes and Condorelli, 2000). Parliaments have a vital role in contributing to these activities and thus contributing to achieving a ‘respect’ for IHL within a State (Jabre et al, 2016, p. 4). Parliaments may additionally have other, related functions which engage with the obligation to ‘respect and ensure respect’, such as having a voice in funding and purchasing decisions related to military resources (Jabre et al, 2016, p. 4). These legislative actions also have a likely impact on a State’s compliance with the broader obligation to ensure respect (see in particular CIHL Study Rule 144). Thus, while the core focus of legislation may be to regulate actions taking place within a State’s own territory, through legislative action such as criminalising investment in prohibited weapons development or through allowing courts to exercise extraterritorial jurisdiction over war crimes, legislatures may indirectly impact on IHL compliance and respect outside the State. This chapter explores Australia’s experience with parliamentary scrutiny committees’ engagement with IHL in order to comment on the challenges with ‘respecting and ensuring respect for’ IHL within the legislative process. First, by an examination of the relationship between parliaments and the obligation to respect and ensure respect: in both the internal-compliance and external-compliance dimensions as discussed in Chapter 1. Followed by a brief comment about National IHL Committees, which although not the subject of this chapter, are a distinct but complementary mechanism which may inform lawmakers about IHL

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obligations (and referenced in Chapter 12 by Ball and Zegenhagen). The role that committees within parliamentary structures may have in ensuring that international obligations are met will be discussed, drawing on some of the commentary regarding committees with similar aims regarding compliance with international human rights law. Finally, the way in which committee scrutiny may contribute to the (greater or lesser) degree with which IHL appropriately informs a State’s laws will then be considered with examples from Australia highlighting both the potential benefits and inherent weaknesses of parliamentary IHL consideration.

Parliaments and the obligation to respect and ensure respect There is little doubt that parliaments have a significant impact on whether, and to what extent, States meet their obligations to ‘respect and ensure respect’ for IHL. The details of the obligation to respect and ensure respect have been discussed in Chapter 1. However, briefly the internal-compliance aspect of the obligation means that ‘the State is under an obligation to do everything it can to ensure that the rules in question are respected by its organs as well as by all others under its jurisdiction’ (Boisson de Chazournes and Condorelli, 2000). Drummond in Chapter 5 examines whether, and how far, this obligation extends to private corporate actors within and beyond the State. The external-compliance aspect relates to States’ obligations to participate in IHL more broadly and while there remains some debate, it is suggested that in order to fulfil their duty to ‘ensure respect’ States have obligations with regard to supporting other States in meeting their IHL obligations (see eg. for discussion Dörmann and Serralvo, 2014). It is suggested in this chapter that parliaments contribute to meeting both the internal facing and externally focused obligation not just through the actual passage of legislation, but also though the process, in particular the legislature’s scrutiny function. As will be discussed below, because parliaments’ primary consideration tends to be the domestic law of the particular jurisdiction, there appears to be greater success in using parliamentary processes to ensure compliance with the internal focused obligation. In addition to the broad obligation to ‘respect and to ensure respect’ for IHL in ‘all circumstances’, the fundamental role of parliaments can be seen in some of the specific obligations found in IHL. The most obvious being, the obligation to enact legislation. This legislation may be to facilitate the penalisation of violations of IHL (GCI Art. 49, GCII Art. 50, GCIII Art. 129, GCIV Art. 146, API Art. 86, as well as specific obligations such as in the 1954 Hague Convention for the Protection of Cultural Property Art. 28 and as recounted in the Rome Statute of the International Criminal Court (Rome Statute) preamble) or may relate to peacetime measures which are designed to either educate or prepare so that IHL is more likely to be complied with in the event of armed conflict (GCI Art. 47, GCII Art. 48, GCIII Art. 127, GCIV Art. 144, API Art. 83; 1954 Hague Convention for the Protection of Cultural Property Art. 3 and 7; 1980 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, Art. 6).

46 Lara Pratt Further, parliaments may engage with specific IHL obligations linked to the broad obligation to respect through oversight of military spending and procurement (see eg. the United States Subcommittee on Defence or, as will be discussed later, the Australian Senate Standing Committee on Foreign Affairs Defence and Trade). In this way, parliamentarians may have a direct role in approving ‘the study, development, acquisition or adoption of a new weapon’ (as discussed in Chapter 8 by Massingham) which should only be committed to where the weapon is compatible with the rules of IHL (API Art. 36). Increasingly, legislative decisions which may at first appear to be internally focused necessarily acquire an external aspect. For example, legislative refusal to permit investment in the development of certain weapons, or to engage in (arms) trade with particular States results in internally focused legislation but inevitably also has an external element through bringing political or economic pressure to bear on non-compliant States. However, a parliament has the potential to contribute to a State’s meeting of the obligation to respect and ensure respect in a diversity of other situations. Importantly, parliamentarians play a fundamental role in developing a political awareness of, and enthusiasm for, IHL which can have both impact internally and externally to the State (Jabre et al, 2016, p. 9). Depending on the functional operation of the particular parliament, there may be scope to make recommendations to the executive branch (albeit generally not binding) encouraging wider engagement with global IHL initiatives (see eg. European Parliament, 2018). Such actions, which demonstrate a commitment to ‘respect and ensure respect’ are indicative of a political commitment to IHL obligations from within the legislative branch. Where such a will is lacking, there is little chance that real progress will be made in achieving meaningful ‘respect’ for IHL amongst all States (Kellenberger, 2009). While a positive attitude towards IHL is important, as Pellandini (2014, p. 1044) has stated: Political will alone, however, is insufficient. It must be translated into legislative and regulatory measures, policy directives and other mechanisms aimed at creating a system that will ensure the law is complied with and violations are dealt with appropriately. Coordination among State entities, government departments, armed forces and civil society is a sine qua non of an effective system. Thus, while this chapter examines the role that parliamentary committees can have in translating well-meaning enthusiasm for IHL into a more systematic consideration of IHL during the legislative process, it is important to recognise (and will be discussed later in the chapter) that such parliamentary committees are not a panacea for all instances of disrespect for IHL. They contribute to, rather than secure, IHL respect within the laws of the State and allow the foundation for greater and more influential interaction to ensure respect for IHL beyond a State’s borders.

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The role of National IHL Committees Before commencing, it is important to distinguish between “National IHL Committees” and parliamentary committees. The ICRC encourages the creation of National IHL Committees within each of the High Contracting Parties to the GCs (ICRC, 2019, pp. 5–6). The exact composition and mandate of a National IHL Committee will depend on the State in which it is located. However, National IHL Committees tend to include representatives from relevant governmental departments such as foreign affairs, defence and justice as well as having a relationship with National Red Cross and Red Crescent Societies (See eg. ICRC Advisory Service, 2018). In addition, National IHL Committees are ‘generally – though not exclusively – linked to the executive branch of government’ (ICRC, 2019, p. 9). One of the major roles that National IHL Committees have is to review existing legislation and advise on the drafting of new legislation (re: Mexico see eg. Salazar Albornoz, 2015, p. 1058; re. Belgium see eg. Casier and Janssens, 2015, pp. 1083–1086). Their overall function is, however, to ensure that IHL as a whole, including developments thereof, is taken into account by the national authorities, that knowledge of it is widespread among those with related responsibilities and that it is implemented effectively within national law and policy. (ICRC, 2019, p. 14) National IHL Committee membership tends to come from within the public service and is therefore not staffed by parliamentarians per se, although there may be some representation on an ongoing or ad hoc basis (the composition of each National IHL Committee can be seen in the Table of National Committees and Other National Bodies on International Humanitarian Law, 2018). By virtue of informing legislation that the executive places before parliament, these Committees will have an indirect effect on their parliament’s engagement with IHL. National IHL Committee recommendations are not binding on the executive and, importantly, public information about the extent to which any recommendations are complied with is lacking as it is not necessarily public or publicised. That is not to imply that the work of the National IHL Committees is entirely unknown. Some National IHL Committees self-publish reports on their activities (for example, Switzerland’s Interdepartmental Committee for IHL). In addition, proposed laws have been publicly attributed to the efforts of National IHL Committees (an indicative list can be found in ICRC, 2019, pp. 15–17) and dissemination initiatives have been undertaken (see eg. ICRC, 2019, pp. 17–19). The full extent of recommendations made to executives, and governmental compliance with such recommendations, is difficult to determine as much of the consultation occurs in the drafting (non-public) rather than scrutiny (public) stages of the legislative process.

48 Lara Pratt

Parliamentary committees Parliamentary committees are staffed by the elected members of the legislature of a given State. Parliamentary committees specialise in specific areas of policy or administration of government and they undertake more detailed inquiries into proposed Bills and related matters (such as the domestic implications of ratifying particular treaties) than would be practical within the full legislative assembly. Broadly speaking, ‘[t]he desired outcome of …scrutiny is to produce better law’ (Smookler, 2006, p. 522). While the exact power held by a particular parliamentary committee will depend on the jurisdiction, there is generally no obligation for either the executive or the legislature to follow any recommendations made by committees. Thus, their primary role is to inform those involved in the lawmaking process. It is difficult to measure the exact impact of a parliamentary committee, and that includes in relation to an issue such as respect for IHL (see eg. Donald, 2017 pp. 86–87). In short, parliamentary committee involvement cannot be said to guarantee that legislative outcomes will comply with IHL obligations. Parliamentarians are rarely legal experts and thus (as will be discussed below) on areas of law which may be unsettled, they will make recommendations, informed by submissions but based on a diversity of non-legal considerations. In addition, even if a committee makes recommendations about improving a State’s IHL engagement, their status remain just that – a non-binding recommendation. Some lessons can be drawn from the experience of parliamentary committees regarding human rights. As with IHL, international human rights law places both general and specific obligations to ‘respect’ individual rights found within international law (see eg. International Covenant on Civil and Political Rights, Art. 2). As some States (including but not limited to Australia, Canada and the United Kingdom (UK)), have shifted towards human rights specific scrutiny of legislation, much has been written about the role that parliamentary committees can play in improving the rights-quality of legislation and have the potential to contribute to a wider and more complex understanding of human rights both among parliamentarians and the wider community (see eg. Feldman, 2004; Williams, 2004). This has been referred to as contributing to a ‘culture’ of human rights (Hiebert, 2006). Similarly, parliamentary committees could be utilised to contribute to a culture of respect for IHL. The potential benefits of parliamentary committees derive primarily from the (generally) public nature of parliamentary committee work. Placing the discourse and scrutiny in the public sphere at least creates a layer of (potential) political accountability for lawmakers (Kinley, 1999 p. 160). Effective committee scrutiny can encourage parliamentarians to at least consider the implications of proposed legislation and give rise to debate on key, scrutinised issues (see eg. Kinley, 1999, p. 160; Klug, 2006 pp. 56–57). Admittedly, this does not necessarily result in proposed legislation being amended, and political consequences for advocating legislation which does not best represent the State’s obligations relies on publicity regarding the outcomes of parliamentary committee inquiries and there has been concern raised that lawmakers have demonstrated an overall reticence to substantively amend legislation even where relevant matters are

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raised during the committee process (Tolley, 2009; Walter, 2012). Where committees do not in fact result in legislation reflecting IHL best practice, they have the capacity to contribute to a wider understanding of the discussed issues, relevantly, IHL and to act as a mechanism for IHL dissemination both directly (to parliamentarians) and indirectly (to the wider public) (Walter, 2012). There are clearly some differences between human rights and IHL scrutiny. Primarily, some jurisdictions require that all proposed legislation must first go through some level of (usually executive) scrutiny as to rights-compatibility prior to being put before parliament. Where rights are embedded within a constitutional instrument, this may take the form of requiring some kind of confirmation that the bill is constitutionally sound prior to it being presented to parliament (see eg. the role of the Section Administrative of the French Counseil d’Etat as discussed in Bell, 2010, pp. 664–671). Alternatively, legislative processes may require that those proposing legislation make some form of declaration or statement as to rights compatibility (see eg. Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), s. 8 and Human Rights Act 1998 c. 42 (UK), s. 19). Either of these mechanisms push those responsible for drafting legislation to expressly and publicly acknowledge human rights implications of the proposed legislation. Such measures have been used in encouraging human rights compliance because of a growing recognition of the potential for such a wide range of legislative issues which may have an incidental impact on human rights (Kinley, 1999, p. 163). The types of legislation which may engage a State’s IHL obligations to ‘respect and ensure respect’ is perhaps wider than may be expected, in particular as IHL interacts with issues of technology (Droege, 2013; ICRC, 2018) and private businesses (ICRC, 2006). However, a procedural requirement that every piece of legislation be scrutinised for IHL-compatibility before submission to parliament does not exist and is not suggested here, but a coherent and consistent approach to identifying and then scrutinising selected IHL-relevant legislation would increase the potential benefits that parliamentary scrutiny can bring. There has been a move towards human rights specific scrutiny committees – for example UK Parliament’s Joint Committee on Human Rights, Australia’s Parliamentary Joint Committee on Human Rights and the Standing Committees on Human Rights in each of the houses of the Canadian Parliament. While it is not suggested in this chapter that an IHL-specific committee is necessary, or even desirable, in any particular parliament, some lessons concerning the benefits of the centralisation of responsibility can be seen. It must be remembered that members of the executive and parliamentarians are politicians and do not necessarily have knowledge or expertise as to a State’s international obligations. Thus, even where there is an in-principle political will to comply with a State’s obligations, the likelihood is that lawmakers will not always succeed with in fact doing so. This may be for self-interested reasons or simply due to the lack of knowledge to predict the IHL consequences (see with regard to human rights, eg. Kavanagh, 2006, pp. 181–183). The presence of a topic-specific scrutiny committee (whether rights or otherwise) will not make parliamentarians “experts”. However, the regular exposure to matters within that field as well as

50 Lara Pratt submissions from experts and interested parties promotes a more robust understanding of the State’s obligations and thus encourages a better quality of legislation (Ryle, 1994, p. 195; Williams, 2004, pp. 84–85).

The Australian experience with IHL parliamentary scrutiny Australia’s parliamentary committees have been described as ‘setting the benchmark for legislative scrutiny’ (Argument, 2011, pp. 117, 127). This is not to suggest that Australia has nothing to learn from other jurisdictions (Argument, 2011) but instead that Australia provides a useful exemplar when seeking to understand the potential impact of parliamentary committees. It is apparent that committee based scrutiny of how legislative activities impact on Australia’s IHL obligations has occurred in an ad hoc manner. There is therefore a diversity of examples of different ways in which scrutiny may – or may not – realise the potential of ‘respect[ing] and ensuring respect’ for IHL. The Australian legal system features a bi-cameral Parliament, the House of Representatives and the Senate within the Westminster tradition, where the effective Executive (excluding the Queen and her representative, the Governor-General) is drawn from the majority within the Parliament. Both Houses of Parliament must agree to a Bill for it to become legislation. Australia is a federal system and, while laws which engage Australia’s IHL obligations may be the subject of consideration by State or Territory legislatures, s. 51 (xxix) of the Constitution of Australia gives the Commonwealth Parliament power over external affairs (which includes implementing international law obligations). This chapter only considers the practice of the Commonwealth Parliament. In principle, any parliamentary committee may be faced with matters relating to IHL, and there is nothing precluding bills being scrutinised by more than one committee (although there is a preference for not duplicating such scrutiny without cause) (Oliver, 2004; Working Party of Representatives of Scrutiny of Legislation Committees throughout Australia, 1996). This decentralised approach to considering IHL means that the detail and attention given to IHL may vary and be differently prioritised depending on the committee considering the specific legislation. Three parliamentary committees will be considered below as having engaged with Australia’s obligation to ‘respect and ensure respect’ – the Parliamentary Joint Standing Committee on Treaties (JSCOT); the Parliamentary Joint Committee on Intelligence and Security (JCIS); and the Senate Standing Committee on Foreign Affairs Defence and Trade (Senate FAC). As will be discussed, although each of these committees have undertaken inquiries which engage with Australia’s IHL obligations, the extent and quality of their engagement with IHL has differed. The Parliamentary Joint Standing Committee on Treaties (JSCOT) JSCOT has responsibility under its current Resolution of Appointment (2010) for ‘matters arising from treaties’. This includes consideration of the potential implications of ratification of treaties, and commentary on legislation to give effect to treaties. Given the plethora of IHL treaties to which Australia has acceded, it is

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unsurprising that JSCOT has had cause to engage with Australia’s IHL obligations. Proposed legislative implementation measures associated with meeting treaty obligations may come before JSCOT. In one obvious example, in 2001/2002, JSCOT inquired into issues relating to Australia’s accession to the Rome Statute (Terms of Reference, 2002). This inquiry involved consideration of both the desirability of ratification and the implications of the enacting legislation. The inquiry involved significant public engagement with over 250 submissions publicly available from experts and interest groups (JSCOT, 2002) as well as evidence presented at hearings. Among many IHL issues, JSCOT was required to consider how the proposed legislation may interact with Australia’s broader IHL obligations. For example, several submissions highlighted a potential ambiguity which was subsequently addressed in the Explanatory Memorandum (see eg. Parliament of Australia, 2004). That is, the effect of repealing some previous war crimes legislation, combined with the prospective nature of the Bill, would have created a temporal “gap” which meant Australia no longer met its broader IHL obligations to prosecute. This would mean some crimes committed between 1957 and 2002 which previously could have been prosecuted, under legislation to be repealed, could no longer be (McCormack, 2002, TR249). Australia could find itself compliant with the prospective obligations under the Rome Statute while no longer meeting the obligations applying to historic crimes under other IHL treaties such as GCI-IV to which Australia had long been a party. Australia had shown no intention to in fact prosecute crimes within this time period, and thus the potential discrepancy and the effectiveness of the Explanatory Memorandum in resolving the potential gap was not tested in court. The importance of a comprehensive IHL-based scrutiny was clear. The specific examination of the implementing legislation drew attention to ensuring that the obligations within the Rome Statute were implemented into Australia within the broader IHL context. This allowed a technical legal matter which had significant implications for Australia’s ability to meet its IHL obligations to be identified before the legislation was passed. The International Criminal Court (Consequential Amendments) Act 2002 (Cth) was an overt example of IHL-related legislation that involved a complex engagement with both substantive and procedural IHL issues. However, JSCOT has not followed this example and given such detailed IHL analysis to all treaties, even when these directly engage Australia’s IHL obligations to ‘respect and ensure respect for’ IHL. The publicly available JSCOT reports on the Convention on Cluster Munitions (CCM) (in 2009) and the Arms Trade Treaty (ATT) (in 2014), which recommended ratification of the respective treaties, highlight the inconsistent level of IHL-related scrutiny undertaken by JSCOT. The 2009 JSCOT Report into the CCM recommended ratification (para 3.76). The JSCOT Report acknowledged that the treaty engaged Australia’s obligation to ‘ensure respect’ by drawing on submissions which noted that ratification served purposes including “delegitimising” the use of cluster munitions (JSCOT, 2009, paras. 3.19, 3.26). Unlike the ATT Report discussed below, the JSCOT Report on the CCM concluded that Australia would likely require legislative action in

52 Lara Pratt order to meet its obligations under the treaty (para. 3.77). Further, it was noted that ambiguities in the wording of the CCM meant careful drafting of legislation was required to avoid a circumstance where Australia could participate in actions which could arguably comply with the letter of the CCM while not complying with its broader IHL aims (JSCOT, 2009, para. 3.77) and by implication, with Australia’s broader IHL obligations. The 2009 JSCOT Report did not, however, proceed to make specific recommendations as to the content of any implementing legislation with that being left to be addressed in other Committees (in particular Senate FAC, as will be discussed below). The ATT is a treaty which specifically engages State Parties’ IHL obligations (Commonwealth Secretariat, 2017, p. 534; ICRC, 2017). In particular, the obligation to ensure respect is found in the prohibition on exporting (or allowing the export of) arms where there is a risk that the arms could be used to ‘commit or facilitate a serious violation of international humanitarian law’ (ATT, Art. 6(3) and 7). State Parties to the ATT are required to prohibit arms export to States that struggle or fail to meet their own obligation to respect IHL. Whereas the inquiry into the CCM gave clear, if limited, consideration into Australia’s IHL obligations, JSCOT’s inquiry into the ATT made only nominal mention of IHL. Specifically, the JSCOT Report acknowledged that Article 7 of the ATT requires that States take steps to ensure that exported arms are not used to violate IHL in other countries (JSCOT, 2014, para. 3.28). The JSCOT Report offers no substantive consideration of the mechanisms that would ensure that Australia meets this obligation. The Report simply accepts that ‘no new legislation’ was required (JSCOT, 2014, para. 3.44) and that ‘the legislative framework established by the Customs Act 1901 (Cth), the Defence and Strategic Goods List and the Customs (Prohibited Exports) Regulations (Cth) (1958) already meets Australia’s obligations under the Treaty’ (JSCOT, 2014, paras, 3.44–3.45; National Interest Analysis, 2013, para. 36). This conclusion as to Australia’s existing compliance with ATT obligations appears to have been accepted with little scrutiny and served to effectively end the discussion as to how well Australia’s existing mechanisms served to meet its obligations. It is perhaps unsurprising, therefore, that Australia has subsequently faced criticism that suggests that the existing mechanisms are insufficient and possible breaches of obligations under the ATT have occurred (Hutchinson, 2018; Satana, 2019; Welch et al, 2018; Welch et al, 2019). Joint Committee on Intelligence and Security (JCIS) JSCOT is not the only committee that has been required to consider the IHL implications of legislation. While JSCOT examined the original legislation regarding the Rome Statute in 2002, when amending the legislation (Criminal Code Amendment (War Crimes) Bill 2016 (Cth)) it fell within the ambit of other parliamentary committees in 2016 both the Senate Standing Committee for the Scrutiny of Bills and JCIS were involved in the close examination of the amendments.

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Unlike the 2002 legislation, where the issue was one of potential ambiguity on the technical aspects of the legislation, the IHL issue in the 2016 legislation impacted on whether the legislation would in fact reflect the rules of IHL. The 2016 amendments related (among other things) to a debated and technical aspect of IHL – when members of armed groups are targetable in non-international armed conflicts (NIAC). From one perspective, the need for the amendments demonstrate an awareness of, and respect for, IHL as they were prompted by those faced with making decisions about targeting and being concerned about the need for clarity to assist with decision-making within the confines of IHL rules (Turnbull, 2016, p. 237). The amendments were specifically intended to give ‘legal certainty’ to decision-makers when making targeting decisions in NIAC (Dutton, 2016, p. 11). There were several IHL compatibility issues that were raised as concerns during the committee process. One of which related to the provisions which ‘clarified’ the categories of person(s) who could lawfully be targeted, or, more to the point, where the targeting of the person would not constitute a war crime. The amendments to the Criminal Code Act 1995 (Cth) (Criminal Code) preclude ‘members of an organised armed group’ from the definition of civilian (s. 268.125) and limited several war crimes to where the targets/victims are ‘neither taking an active part in the hostilities nor are members of an organised armed group’. As was pointed out to the JCIS by Professor Ben Saul, mere membership in the group is not representative of the general IHL position regarding lawful targeting (Saul, 2016b, p. 1). While the law (especially with regard to NIAC) is not wholly settled on this matter, the increasingly accepted position is that when dealing with non-State armed forces, a person must either be directly participating in hostilities at the time they are being targeted, or alternatively, have a continuous combat-related function which permits them to be targeted at other times (Melzer, 2010). There is some suggestion that non-State armed groups can be viewed on a spectrum and the more ‘State-like’ the forces are, the more likely an individual will be targetable at all times, irrespective of function (Melzer, 2008, p. 315ff, summarised in Saul, 2016b, p. 1). Regardless, both approaches acknowledge that non-State armed forces do not automatically attract the same risks (and rights) as State militaries. The final text, which was adopted in the Criminal Code Amendment (War Crimes) Act 2016 (Cth) which amended the Criminal Code, did not reflect either of the above positions. Instead, the text treated members of non-State armed forces in the same way as State militaries: membership would make individuals targetable at all times notwithstanding their function. Despite the concerns raised, this approach to defining membership is a ‘valid view … of the law’ in an admittedly contested area (McCormack, 2016, p. 3), thus the approach taken does not represent a departure from IHL per se. It is notable that the JCIS Report’s Recommendations did not reflect the ICRC’s Interpretative Guidance on the matter – a source which had been given specific acknowledgement in the Second Reading Speech for the Bill within a few sentences of the stated intention to align the legislation with Australia’s IHL obligations (JCIS, 2016, paras. 2.18, 2.28). It is also notable, that the relevant amendments represent a departure from the text of the Rome Statute (McCormack, 2016, p. 3). While there is no in-principle

54 Lara Pratt objection to departing from the exact text of the Rome Statute, especially where such a departure adds clarity, this departure gains significance when considering the Committee’s approach on another point that will be addressed briefly below. The JCIS relied heavily on the Explanatory Memorandum promoting a ‘constrained’ approach consistent with IHL obligations. It is notable that the Attorney General conceded ‘there is nothing on the face of the legislation’ requiring it be interpreted narrowly and in a manner consistent with IHL (Reid cited in Raymond and Tomaras, 2016, p. 25). Rather than focusing on the individual member of the nonState group, the Explanatory Memorandum (pp. 8–9) distinguishes between a nonState group which may have many constituent parts (administrative, quasi-judicial, and military) and defines ‘non-State armed group’ as the military or armed element of that larger non-State entity. The Committee elected not to recommend an amendment and instead accepted that the definition on the basis that it aligns with the approach taken by key coalition partners (JCIS, 2016, para. 2.29). While the conclusion is not contrary to IHL per se – it is an interpretation of the IHL rules available to the JCIS and the issue remains one of some dispute – it is a particularly broad interpretation of targetable member of a non-State armed group which provides military forces the greatest leeway in defining ‘membership’ for the purpose of targeting. There were other elements of the Bill that met with IHL-related commentary. For example, the way in which proportionality (the requirement that the expected harm caused by military attacks not be excessive in relation to the anticipated military advantage) was expressed as focused only on launch of an attack whereas IHL best practice requires that the assessment of proportionate harm is re-assessed while the attack is in progress (Saul, 2016b, pp. 2–3). Interestingly, significant weight was given to retaining language consistent with the Rome Statute (as well as declining to expand the crimes to address identified deficits in the Rome Statute) (JCIS, 2016, para. 2.59ff), notwithstanding the IHL obligations could have been better represented with amendments to the legislation. As noted above, the JCIS had already demonstrated a willingness to depart from the Rome Statute language when categorising members of non-State groups as combatants. Thus, it can be seen that while the involvement of a parliamentary committee did expose the legislation to IHL-related scrutiny, and demonstrated an overall respect for IHL, there was scope for a more thorough engagement. While the Committee did consider IHL, its ultimate recommendations appeared to prioritise considerations other than IHL best practice. This is not to say that Australia is non-compliant with its obligations, only that when given the opportunity to better meet its obligations through legislation, the committee process did not do so. Senate Standing Committee on Foreign Affairs Defence and Trade (Senate FAC) The final committee for consideration is the Senate FAC. Australia has two Committees on Foreign Affairs Defence and Trade – a joint committee involving both Houses of Parliament and a Standing Senate Committee (which is divided

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into legislation and references). This chapter focuses on the Senate FAC and considers two IHL matters: the inquiry into the implementation of obligations under the CCM in 2011, and the 2015 inquiry into the use of unmanned platforms. JSCOT recommended (as discussed above) that Australia accede to the CCM but with careful legislative action to ensure compliance with both the letter and the spirit of the law. The Criminal Code Amendment (Cluster Munitions Prohibition) Bill 2010 (Cth) was introduced to parliament and came before the Senate FAC in 2011. The Bill, which has since been adopted, introduced several new offences into the Criminal Code but notably did not fully address the concerns raised by the JSCOT Report. With regard to the obligation to ensure respect for IHL two main issues arose. Firstly, that the legislation did not clearly criminalise investment in the development of cluster munitions (JSCOT, 2009, paras. 3.58– 3.60; Senate FAC, 2011, chapter 6). Secondly, what had been referred to as the ‘interoperability’ provisions created a defence to offences which permitted personnel to contribute to the use of cluster munitions in the context of coalition operations (JSCOT, 2009, paras. 3.41–3.57; Senate FAC, 2011, Chapter 4) and did not prohibit Australian territory being used for stockpiling by foreign entities (JSCOT, 2009, para. 3.59; Senate FAC, 2011, Chapter 5). The 2011 Senate FAC Report recommended that the Bill be passed (and it was) despite acknowledging the controversy surrounding these, and other, aspects of the legislation. It is difficult to determine why the Senate FAC was prepared to accept the legislation in its current form given that several of the issues were raised prior to the drafting of the legislation. In particular the CCM prohibits ‘assist[ing], encourag[ing] and induc[ing]’ in the use or development of cluster munitions in all circumstances (CCM, Art. 1) while not defining ‘assist’, ‘encourage’ or ‘induce’. In addition, while it is not prohibited to engage in coalition actions with non-party States which do use cluster munitions, such coalitions do not absolve States parties of their obligation to refrain from using or assisting in the use of such weapons (CCM, Art. 21). Despite concerns being raised that ‘assist’, ‘encourage’ and ‘induce’ are ambiguous and needed clarification to ensure that implementing legislation guarantees both the letter and spirit of the CCM, particular weight was given to the retention of CCM language with little clarification within the Bill (Senate FAC, 2011, paras. 3.27; 4.15–6). It is perhaps significant that the provisions which have raised the greatest controversy with regard to the CCM implementing legislation are those which engage with the external dimension of Australia’s obligation to ensure respect for IHL by other States. For example, because it is prohibited to develop cluster munitions in Australia itself, the lack of a specific prohibition on investment is relevant largely because Australians could engage in investment in foreign companies which operate in jurisdictions which have not signed the CCM. The legislation as adopted leaves what the Australian Council of Superannuation Investors (ACSI) referred to as ‘a major loophole’. ACSI advised that unless there was a clear prohibition against corporations investing directly or indirectly in companies identified as producing cluster munitions ‘capital from Australian investors or Australian companies in unit trusts, superannuation funds and other forms will continue to be used indirectly in the production of cluster bombs around the world’ (ACSI, 2011).

56 Lara Pratt In addition, ‘many submissions raise concerns with the Bill arguing particularly that the drafting of the interoperability provisions could provide an avenue by which Australia could participate in actions that may contravene the humanitarian aims of the Convention’ through the comprehensive defences (Neilsen, 2011). As the ICRC submission to the inquiry stated, an Australian participating in a coalition action could be ‘closely involved in planning cluster munitions strikes and [be] part of a decision to use the weapons’ (ICRC, 2011). Thus rather than creating barriers to the use of cluster munitions in coalition environments, the Australian position (accepted by the Senate FAC) was to prioritise potential coalition relationships with Australian personnel prohibited from themselves using or expressly requesting the use of cluster munitions, but in coalition environments would otherwise not be prohibited from assisting in the use of cluster munitions. In 2014/2015 the Senate FAC undertook an inquiry into ‘[t]he potential use by the Australian Defence Force of unmanned air, maritime and land platforms’ (Senate FAC, 2015). The inquiry involved consideration of unmanned platforms (ie. drones or other mechanisms which have various autonomous functions) with a range of autonomous functions short of targeting and considered the potential for lethal autonomous weapons (LAWS) whereby software is used for lethal targeting decision-making without human interference (Davidson, 2018, p. 5). LAWS, which are truly without human intervention once programmed, at that time were not in existence but were conceived of and in development stages (Senate FAC, 2015, para. 5.25). IHL was included in the Committee’s mandate through section 1.2(e) which referred to ‘domestic and international legal ethical and policy considerations’ (Senate FAC, 2015, para. 1). Ultimately, the Senate FAC recommended investment in unmanned platforms (Senate FAC, 2015, Chapter 8). Notably, the Senate FACs recommendations demonstrated a stronger engagement with and respect for IHL than the two Committees noted above. This can be seen in two categories of recommendation. Firstly, with regard to LAWS, the Senate FAC acknowledged the plethora of legal and ethical issues that could potentially arise (Senate FAC, 2015, paras. 5.20–5.35). Whereas JCIS (discussed above) responded to the ambiguity in IHL by adopting the broadest possible interpretation of the rule, the Senate FAC took a more conservative IHL-focused approach. The Senate FAC recommended that Australia actively pursue opportunities to clarify the law and develop regulatory frameworks ahead of the realisation of fully autonomous weapons (Senate FAC, 2015, para. 8.33). Secondly, while concluding that the use of unmanned platforms which had automatic functions short of targeting could comply with IHL, the Committee recognised that the use of such platforms had the potential to challenge defence personnel with new situations which engaged their IHL obligations. Therefore, it was recommended that the Australian Defence Force proactively engage in training, and once the platforms were in use, keep the government apprised of ‘measures taken to address any identified gaps [in] training and dissemination programs’ in IHL (Senate FAC, 2015, para. 8.14). The reason that the Senate FAC gave such attention and priority to IHL in its recommendations is not clear. Certainly, there was a greater diversity of submissions made to the inquiry than was seen in any of the above-mentioned

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Committee investigations. This perhaps emphasised the potential ambiguity and IHL challenges arising from the problem before the Senate FAC in a way that the two direct submissions to JCIS failed to do (the second submission to JCIS inquiry discussed above was from the ICRC and referred to the Interpretative Guidance without commenting on the proposed legislation specifically). In addition, unlike the JCIS experience above, the Senate FAC was tasked with recommending procurement rather than passing legislation which related to criminal accountability. Thus, it is also possible that the willingness to engage with more restrictive interpretations of IHL and to make recommendations which could further limit military decision-makers’ ability to conduct operations (ie. through tighter regulations on LAWS) arose because, in short, the stakes were lower. Regardless, the Senate FAC’s forward-looking IHL analysis prior to authorising purchase and development of autonomous platforms demonstrates that embedding IHL scrutiny in the parliamentary processes can encourage a better respect for IHL within the jurisdiction.

Conclusion This chapter has offered a brief overview of how parliamentary committees may be used to facilitate a State meeting its obligation to respect and to ensure respect for IHL in all circumstances. What is significant is that parliamentary scrutiny has the potential for robust IHL scrutiny, the reality is that considerations other than IHL compliance (or IHL best practice) may be prioritised in the recommendations made by a committee. Notably, in each of the examples, the government position, which was argued to be IHL compliant, was given significant weight. Thus, while Australia has been fortunate that the majority of these inquiries have involved input from experts in IHL, and while their comments and concerns have been noted, it has not resulted in significant amendments to the legislation. Of note, where the matter before the scrutiny committee interacts with other States, whether through trade or in coalition environments, the various committees do appear to have erred towards adopting a position which is unlikely to generate pressure on other States to comply. One key challenge appears to relate to the decentralisation of the process leading to very different standards of IHL-based scrutiny in different inquiries. Australia’s experience has demonstrated that scrutiny committees do encourage significant engagement with IHL as part of the legislative process. In that sense, the committees significantly contribute to the dissemination/educative aspects of the internally focused obligation to respect IHL. It is significant that all of the committee’s recommendations purport to be compatible with Australia’s IHL obligations. While there is a clear preference for government-proposed interpretation of those obligations (which tends towards the least restrictive interpretation), it is important that the government position is not simply accepted as IHL compatible, the committee process requires that the government justify their claims of IHL compatibility. Although allowing publication and accepting of diverse submissions increases the likelihood that legislative decisions will consider the obligation to ensure respect, it must be conceded that this has not always been achieved.

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References (additional to the common list) Treaties Arms Trade Treaty (ATT), 2 April 2013 [2014] ATS 42 (entered into force 24 December 2014). Convention on Cluster Munitions (CCM), 30 May 2008, 2688 UNTS 39, (entered into force 1 August 2010). 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, 10 October 1980, 1342 UNTS 137, (entered into force 2 December 1983). Convention on the Rights of the Child, 20 November 1989, 1577 UNTS 3, (entered into force 2 September 1990). Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict, 9 May 1954, 249 UNTS 240, (entered into force 7 August 1956). International Covenant on Civil and Political Rights, 16 December 1966, 1057 UNTS 407 (entered into force 23 March 1976). Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002).

Cases Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) [2004] ICJ Rep 136. [Nicaragua].

Legislation and official documents Criminal Code Act 1995 (Cth) Criminal Code Amendment (War Crimes) Act 2016 (Cth) Dutton, The Hon P. MP, Minister for Immigration and Border Protection (2016, 12 October). Australian House of Representatives Hansard. European Parliament (2018). European Parliament recommendation of 5 July 2018 to the Council on the 73rd session (2018/2040(INI)). Explanatory Memorandum, Criminal Code Amendment (War Crimes) Bill 2016 (Cth) International Criminal Court (Consequential Amendments) Act 2002 (Cth) Klug, F. (2006). Report on the Working Practices of the JCHR, Twenty-third Report of Session 2005–2006. Appendix 1. HL 239/HC1575. Retrieved from: https://publica tions.parliament.uk/pa/jt200506/jtselect/jtrights/239/239.pdf. McCormack, T. (2002, 9 April). Committee Hansard, Joint Standing Committee on Treaties (Australia). National Interest Analysis (2013) ATNIA 19 with attachment on consultation. Retrieved from: https://www.austlii.edu.au/au/other/dfat/nia/2013/19.html. Parliament of Australia (2004) Government Response to the Joint Standing Committee on Treaties Inquiry into the Statute of the International Criminal Court. Retrieved from: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Completed_ Inquiries/jsct/reports. Parliamentary Joint Committee on Intelligence and Security (JCIS) (2016, November). Advisory Report on the Criminal Code Amendment (War Crimes) Bill 2016. Retrieved

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from: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Intelligen ce_and_Security/WarCrimesBill/Report_1. Parliamentary Joint Standing Committee on Treaties (JSCOT) (2009, 12 March and 13 May). Report 138. Retrieved from: https://www.aph.gov.au/Parliamentary_Business/ Committees/House_of_Representatives_Committees?url=jsct/13may2009/report.htm. Parliamentary Joint Standing Committee on Treaties (JSCOT) (2002, 14 May). Report 45 Inquiry into the 1998 Statute of the International Criminal Court. Retrieved from: http s://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_ Committees?url=jsct/icc/report.htm. Parliamentary Joint Standing Committee on Treaties (JSCOT) (2014, 26 March). Report 138. Retrieved from: https://www.aph.gov.au/Parliamentary_Business/Committees/ Joint/Treaties/Treaties_tabled_11_December_2013/Report. Resolution of Appointment (2010, 29 September). establishing the Parliamentary Joint Standing Committee on Treaties, Australian House of Representatives. Saul, B. (2016b, 7 November). Committee Hansard, Parliamentary Joint Committee on Intelligence and Security. Senate Standing Committee on Foreign Affairs Defence and Trade (2007, 31 May). Cluster Munitions (Prohibition) Bill 2006 (Report). Retrieved from: https://www.aph.gov. au/Parliamentary_Business/Committees/Senate/Foreign_Affairs_Defence_and_Trade/ Completed_inquiries/2004–07/cluster_bill_2006/index. Senate Standing Committee on Foreign Affairs Defence and Trade (2011, 25 March). Provisions of the Criminal Code Amendment (Cluster Munitions Prohibition) Bill 2010 (Report). Retrieved from: https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Foreign_Affairs_Defence_and_Trade/Completed_inquiries/2010–13/ ccabcmp2010/report/index [Senate FAC]. Senate Standing Committee on Foreign Affairs Defence and Trade (2015, 25 June). The Potential Use by the Australian Defence Force of Unmanned Air, Maritime and Land Platforms (Report). Retrieved from: https://www.aph.gov.au/Parliamentary_Business/ Committees/Senate/Foreign_Affairs_Defence_and_Trade/Defence_Unmanned_Pla tform/Report [Senate FAC]. Terms of Reference (2002). Joint Standing Committee on Treaties. Turnbull, The Hon M. MP, Prime Minister (2016, 1 September). Australian House of Representatives Hansard.

Secondary sources Argument, S. (2011). Legislative Scrutiny in Australia: Wisdom to Export?, Statute Law Review, 32(2), 116–148. Australian Council of Superannuation Investors (ACSI) (2011). Submission 4 to the Submission to the Senate Foreign Affairs, Defence and Trade Committee on the Criminal Code Amendment (Cluster Munitions Prohibition) Bill 2010. Retrieved from https:// www.aph.gov.au/Parliamentary_Business/Committees/Senate/Foreign_Affairs_Defen ce_and_Trade/Completed_inquiries/2010–13/ccabcmp2010/submissions. Bell, J. (2010). What Is the Function of the Conseil d’Etat in the Preparation of Legislation?, International and Comparative Law Quarterly, 49(3), 661–672. Boisson de Chazournes, L., and Condorelli, L. (2000). Common Article 1 of the Geneva Conventions Revisited: Protecting Collective Interests, International Review of the Red

60 Lara Pratt Cross, 82(837), 67–87. Retrieved from: https://www.icrc.org/en/doc/resources/ documents/article/other/57jqcp.htm. Casier, F., and Janssens, A. (2015). Belgium’s Interministerial Commission for Humanitarian Law: Playing a Key Role in the Implementation and Promotion of IHL, International Review of the Red Cross, 96(895–896), 1075–1091. Commonwealth Secretariat (2017). The Arms Trade Treaty and International Humanitarian Law: A Commonwealth Perspective, Commonwealth Law Bulletin, 42(1–2), 533–544. Davidson, N. (2018, 31 January). Autonomous Weapon Systems under International Humanitarian Law, United Nations Office for Disarmament Affairs Occasional Paper No. 30. Donald, A. (2017). Parliaments as Compliance Partners in the European Convention on Human Rights System, in Saul, M., Føllesdal, A., and Ulfstein, G. (eds), The International Human Rights Judiciary and National Parliaments: Europe and Beyond, Cambridge, Cambridge University Press, 75–109. Dörmann, K., and Serralvo, J. (2014). Common Article 1 to the Geneva Conventions and the obligation to prevent international humanitarian law violations, International Review of the Red Cross, 9, 707–736. Droege, C. (2013). Get off My Cloud: Cyber Warfare, International Humanitarian Law, and the Protection of Civilians, International Review of the Red Cross, 94(886), 533–578. Feldman, D. (2004). The Impact of Human Rights on the UK Legislative Process, Statute Law Review, 25(2), 91–115. Focarelli, C. (2010). Common Article 1 of the 1949 Geneva Conventions: A Soap Bubble?, European Journal of International Law 21(1), 125–171. Hiebert, J. L. (2006). Parliament and the Human Rights Act: Can the JCHR help facilitate a culture of rights?, International Journal of Constitutional Law, 4(1), 1–38. Hutchinson, S. (2018). Defence exports and the Arms Trade Treaty – is Australia missing in action?, The Lowy Institute. Retrieved from: https://www.lowyinstitute.org/the-interpreter/defence-exports-and-arms-trade-treaty-australia-missing-action. ICRC Advisory Service on International Humanitarian Law (2018). National Committees and Similar Bodies on International Humanitarian Law. Retrieved from: https://www. icrc.org/en/document/table-national-committees-and-other-national-bodies-international-humanitarian-law. ICRC (2006). Business and International Humanitarian Law: An Introduction to the Rights and Obligations of Business Enterprises under International Humanitarian Law. Geneva, Switzerland: International Committee of the Red Cross. ICRC (2011). Submission 9 to the Submission to the Senate Foreign Affairs, Defence and Trade Committee on the Criminal Code Amendment (Cluster Munitions Prohibition) Bill 2010. Retrieved from https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Foreign_Affairs_Defence_and_Trade/Completed_inquiries/2010–13/ ccabcmp2010/submissions. ICRC (2017). Understanding the Arms Trade Treaty from a Humanitarian Perspective, Geneva: International Committee of the Red Cross. ICRC (2018, 7 December) Digital Trails Could Endanger People Receiving Humanitarian Aid, ICRC and Privacy International Find. International Committee of the Red Cross (News Release). Retrieved from: https://www.icrc.org/en/document/digital-trailscould-endanger-people-receiving-humanitarian-aid-icrc-and-privacy.

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ICRC (2019). National Committees and Similar Entities in International Humanitarian Law: Guidelines for Success. Switzerland, International Committee for the Red Cross. Jabre, K., Babic, N., and Bouvier, A. A. (2016). International Humanitarian Law (Handbook for Parliamentarians No 25). Geneva: Inter-Parliamentary Union and the ICRC. Kavanagh, A. (2006) The Role of Parliamentary Intention in Adjudication under the Human Rights Act 1998, Oxford Journal of Legal Studies 26(1), 179–206. Kellenberger, J. (2009, 26 September). Ensuring Respect for International Humanitarian Law in a Changing Environment and the Role of the United Nations, address delivered at the Ministerial Working Session at the 60th Anniversary of the Geneva Conventions. Retrieved from: https://www.icrc.org/en/doc/resources/documents/ statement/geneva-conventions-statement-260909.htm. Kinley, D. (1999). Parliamentary Scrutiny: Duty Neglected? In Alston, P. (ed) Promoting Human Rights through Bills of Rights: Comparative Perspectives, Oxford: Oxford University Press, 158–186. McCormack, T. (2016). Submission 1 to the Joint Committee on Intelligence and Security Inquiry into the Criminal Code Amendment (War Crimes) Bill 2016. Retrieved from https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Intelligence_and_Security/WarCrimesBill/Submissions. Melzer, N. (2010). ICRC Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law, Geneva: International Committee of the Red Cross. Melzer, N. (2008). Targeted Killing in International Law, Oxford: Oxford University Press. Neilsen, M. (2011, 1 March). Criminal Code Amendment (Cluster Munitions Prohibition) Bill 2010, Bills Digest 72 2010–11. Oliver, D. (2004). Constitutional Scrutiny of Executive Bills, Macquarie Law Journal, 3, Retrieved from: http://www5.austlii.edu.au/au/journals/MqLJ/2004/3.html. Pellandini, C. (2014). Ensuring national compliance with IHL: The role and impact of national IHL committees. International Review of the Red Cross 96(895–896), 1043–1048. Raymond, C. and Tomaras, J. (2016, 23 November). Criminal Code Amendment (War Crimes) Bill 2016, Bills Digest 43 2017–17. Ryle, M. (1994). Pre-legislative Scrutiny: A Prophylactic Approach to Protection of Human Rights, Public Law, 192–197. Salazar Albornoz, M. (2015). The work of Mexico’s Interministerial Committee on International Humanitarian Law, International Review of the Red Cross 96(895–896), 1049–1059. Satana, D. (2019, 29 January). Australia Must Halt all Military Exports to Saudi Arabia, Australian Institute of International Affairs. Retrieved from: https://www.internationalaffairs.org.au/australianoutlook/australia-must-halt-military-exports-saudiarabia/. Saul, B. (2016). Submission 1 to the Joint Committee on Intelligence and Security Inquiry into the Criminal Code Amendment (War Crimes) Bill 2016. Retrieved from https:// www.aph.gov.au/Parliamentary_Business/Committees/Joint/Intelligence_and_Security/WarCrimesBill/Submissions. Smookler, J. (2006). Making a Difference? The Effectiveness of Pre-Legislative Scrutiny, Parliamentary Affairs, 59(3), 522–535.

62 Lara Pratt Table of National Committees and Other National Bodies on International Humanitarian Law (2018). International Committee of the Red Cross. Retrieved from: https://www. icrc.org/en/document/table-national-committees-and-other-national-bodies-international-humanitarian-law. Tolley, M. C. (2009). Parliamentary Scrutiny of Rights in the United Kingdom: Assessing the Work of the Joint Committee on Human Rights, Australian Journal of Political Science, 44, 41–55. Walter, J. (2012). Democratic Ambivalence?: Ministerial attitudes to party and parliamentary scrutiny. In Dowding K. and Lewis C. (eds.), Ministerial Careers and Accountability in the Australian Commonwealth Government, 67–94. Welch, D., Taylor, K., Oakes, D., and Trigger, R. (2018, 13 December). Documents reveal Australia’s Secret Arms Deals with Nations Fighting Yemen’s Bloody War, ABC News. Retrieved from: https://www.abc.net.au/news/2018–12-13/australias-secret-backingfor-nations-fighting-bloody-yemen-war/10600912. Welch, D., Taylor, K., and Trigger, R. (2019, 20 February). Australian Government under Fire Over Export of Weapons System to War Crime-accused Saudi Arabia, ABC News. Retrieved from: https://www.abc.net.au/news/2019–02-20/australian-firm-eos-weapons-systems-bound-for-saudi-arabia/10825660. Williams, G. (2004). The Case for an Australian Bill of Rights: Freedom in the War on Terror, St Leonards: University of New South Wales Press. Working Party of Representatives of Scrutiny of Legislation Committees throughout Australia (1996). Position paper for the Senate Standing Committee for the Scrutiny of Bills. Retrieved from: https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Scrutiny_of_Bills/Legislative_Scrutiny_Resources/index.

5

Ensuring respect for IHL by, and in relation to the conduct of, private actors Catherine Drummond*

Introduction The relationship between private actors1 and armed conflict is increasingly complex. Private actors may be victims of violations of IHL, perpetrators or facilitators of war crimes, or through their business operations provide economic incentives that sustain conflict. They may have both positive and negative impacts. Businesses that operate in times of conflict can provide stability and economic security for local workers but may also secure guarantees of safety for their operations by financing or materially assisting armed groups in return. Similarly, private security and military companies (PSMCs) might provide protection for the delivery of humanitarian aid, but could also commit IHL violations if they engage in hostilities. There is a growing interest in better defining what responsibilities companies have when operating in connection with armed conflict. Parallel to this interest is an increasing focus on the need for States to proactively regulate private actors to prevent corporate-related IHL violations. One relevant obligation on States is the duty to ensure respect for IHL located in CA1 to the GCs, Article 1(1) to API and III, and customary international law (Nicaragua, para. 220; Wall, para. 158). It is well-accepted that this duty obliges States to ensure respect for IHL in its entirety, which includes taking measures to prevent private actors within their jurisdiction from directly violating IHL. It is less clear, however, how far this duty requires States to regulate the commercial conduct of private actors, especially those operating outside the State’s jurisdiction, and how that translates into concrete measures in any given case. This chapter examines the scope and content of the duty to ensure respect for IHL as regards the conduct of private actors. It argues that good faith compliance with the obligation requires States to undertake a scoping exercise to ascertain the extent of their duty in relation to private actors in any given * 1

I am grateful to Arezou Farivar, Eve Massingham and Annabel McConnachie for their comments on a draft of this chapter. In this chapter, “private actors” means natural persons that are not employed by or otherwise part of the State and legal persons that are not created by or pursuant to statute and operated for public purposes. The focus is on companies and corporate officials acting in relation to commercial interests.

64 Catherine Drummond situation. It proposes two types of inquiries: a general (activity-based) exercise and a specific (actor-based) exercise. The combination of these two approaches provides a practical framework to guide States to fulfil their duty to ensure respect for IHL vis-à-vis private actors and facilitates the adoption of appropriate tools with which to do so.

The obligation to ensure respect for IHL and its application in relation to private actors Scope As has been explained in Chapter 1, the duty to ensure respect for IHL is generally understood as having an internal and an external component.2 The regulation of private actors forms part of both components. The internal dimension obliges States to ensure that private actors respect IHL. This includes both those integrated into the armed forces (or whose conduct is otherwise attributable to the State in accordance with international law: International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts (ILC, ARSIWA), Arts. 5, 8, 9, 11) and those part of the population over which the State exercises jurisdiction. A State has jurisdiction over private actors operating on its territory and those operating abroad but subject to its extraterritorial jurisdiction (Boisson de Chazournes and Condorelli, 2000, p. 72). The external dimension obliges States to ensure respect by others not subject to their jurisdiction,3 particularly persons or groups engaged in foreign armed conflicts. How far this external dimension extends depends on the relationship between the State and the actor in question, and is addressed in the following sub-section. Two points on the scope of CA1 regarding private actors are worth noting at the outset. The first concerns whose conduct the State is obliged to ensure respects IHL. The second is what type of conduct is caught by CA1. 2

3

Two minority views worth distinguishing are that, first, the duty to ensure respect has no autonomous legal content and is merely an introduction to more specific IHL obligations set out in the GCs/APs (Focarelli, 2010, p. 170) and second, if it has any autonomous legal content, it is limited to the internal dimension (Kalshoven, 1999, pp. 13–16, 60; Zych, 2009, p. 270). The clear strength of doctrinal opinion rejects these positions. See the persuasive defences of the prevailing view: ICRC, 2016, paras. 120, 155–156; Geiss, 2015b, pp. 120–123; Dörmann and Serralvo, 2014, pp. 710–722; Brehm, 2008, pp. 370–371; Kessler, 2001, pp. 504–505. States operating on another State’s territory are not subject to the jurisdiction of the territorial State and thus the external component of the duty would operate between the States, just as it would between States operating jointly on the territory of another State. Kessler also suggests that a third State has an obligation to ensure other third States comply with their duty to ensure respect for IHL (2001, p. 513, citing the UK’s denunciation of Liberia’s support for rebels in the Sierra Leone civil war). See also the 1968 International Conference on Human Rights in Tehran Resolution, referring to the duty to ‘ensure the respect of these humanitarian rules in all circumstances by other States’ (cf. States parties to a conflict) (emphasis added).

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First, the duty to ensure respect for IHL vis-à-vis private actors is not limited to ensuring respect by private actors. There is a distinction between, on the one hand, persons or entities bound by IHL whose conduct the State is obliged to ensure respects IHL (ie. a party to a conflict or a private actor engaged in hostilities, such as a member of a PSMC) and, on the other, persons or entities whose conduct States may take measures against in order to ensure respect by those bound by IHL (ie. any private actor whose conduct may facilitate an IHL violation, such as an arms dealer). Where a private actor is engaged in hostilities and may commit an IHL violation directly, it is their conduct that the States must ensure respects IHL. However, where a private actor facilitates the commission of IHL violations by a party to a conflict, the State is obliged to ensure that the party to the conflict respects IHL, but may do so by taking measures directed towards the private actor. Second, the duty to ensure respect for IHL is not limited to taking measures directly against conduct that violates IHL. As civilians, private individuals (including corporate officials) are bound only by the criminalised provisions of IHL. Legal persons, such as companies, are not bound by IHL at all. If the duty to ensure respect for IHL vis-à-vis private actors were limited to stopping or preventing violations by private actors it would narrow significantly the rules of IHL for which States are bound to ensure respect to only those which private actors are able to violate directly. It would mean that private actors could interfere with protections guaranteed by IHL, such as obstructing medical transports (which does not constitute a violation), and States would not be obliged by CA1 to prevent such interference.4 It would also mean that States are not obliged to regulate lawful business conduct that does not violate or interfere with IHL but may still contribute to the commission of IHL violations. The ordinary language of CA1, however, obliges States to ensure respect for IHL in its entirety (Geiss, 2015b, p. 118). The purpose of the duty clearly envisages States adopting measures to control otherwise lawful conduct that interferes with, or facilitates the violation of or interference with, IHL. That the rule in CA1 operates in this way is supported by the fact that it is not a rule of derivative responsibility: the wrongfulness of the State’s conduct in breaching the duty to ensure respect for IHL is not dependent on the wrongfulness of the private actor’s conduct (cf. ILC, ARSIWA, Art. 16; cf. Aust (2015, p. 458)). States should thus consider all conduct of private actors that is causally connected to a (potential) violation of or interference with IHL. General content The terms of the duty to ensure respect in CA1 and Article 1(1) of API and APIII, as explained in Chapter 1, do not offer guidance as to what exactly 4

The obligation to protect medical transports in Article 35 GCIV and Article 21 API would itself oblige the State to ensure private actors do not interfere unjustifiably with such transports (CIHL Study Rule 29; 2016 Commentary, para. 2387), but that does not prevent CA1 from also obliging the State to take such actions.

66 Catherine Drummond ensuring respect requires. It is generally understood to both proscribe conduct (negative obligations) and require States to take active measures in certain situations (positive obligations). There are two accepted examples of prohibited conduct: States must not encourage the violation of IHL in circumstances where such violations are likely or foreseeable (Nicaragua, paras. 220, 255–256; 30th International Conference of the Red Cross and Red Crescent, 2007, Res. 3, para. 2) nor knowingly aid or assist violations of IHL (2016 Commentary, para. 158). These prohibitions are commonly discussed only as part of the external aspect of the duty, ie. in the context of third States being required not to encourage or aid/assist parties to a foreign conflict to violate IHL (compare, eg. 2016 Commentary, paras. 150 and 154; see also Geiss, 2015b, pp. 130–132). However, taking private actors as the reference point reveals that the prohibitions are not so limited in two respects. First, the prohibitions are not limited to encouraging or aiding/assisting parties to a conflict. It would be contrary to the object and purpose of the duty to ensure respect for IHL in its entirety in all circumstances if States were prohibited from encouraging or aiding/assisting parties to a conflict to violate or interfere with IHL, but free to encourage or assist private actors to do so. This means the prohibitions apply vis-à-vis private actors in both the internal dimension of CA1 (ie. those subject to the State’s jurisdiction, even if operating abroad) and the external dimension (those outside the State’s jurisdiction in the circumstances discussed below). Second, as noted above, the scope of the duty is not limited to encouraging or aiding/assisting violations of IHL but would also include conduct that interferes with or facilitates the violation of or interference with IHL, which is particularly relevant in the context of corporate conduct. As to the positive obligation, States must take appropriate action directed towards the achievement of two purposes: stopping continuing violations of or interferences with IHL and preventing future such conduct (30th International Conference of the Red Cross and Red Crescent, 2007, Res. 3, para. 2; Dörmann and Serralvo, 2014, pp. 728–732). This obligation is one of conduct rather than result and requires that States act with due diligence. In considering the appropriately analogous obligation to prevent genocide, the International Court of Justice (ICJ) considered that due diligence obliged States parties to the Genocide Convention to ‘employ all means reasonably available to them, so as to prevent genocide so far as possible’ and that a State would fail to meet that standard of conduct where it ‘manifestly failed to take all measures to prevent genocide which were within its power, and which might have contributed to preventing the genocide’ (Bosnia Genocide, para. 430). Although what is required varies depending on the circumstances, factors guiding the assessment include the seriousness of the violation, the State’s capacity to influence the perpetrator and the means reasonably available to the State (Bosnia Genocide, para. 430; 2016 Commentary, para. 165; Dörmann and Serralvo, 2014, p. 725). The capacity to influence will depend on proximity and the strength of political, military and/or financial ties between the State and the relevant actors (Bosnia Genocide, paras. 430, 434). Private actors may be direct perpetrators, but more often they will simply be links in the chain between the State and those violating or interfering with IHL. They may be close to the perpetrator, such as Guus Kouwenhoven, a Dutch

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businessman convicted in the Netherlands of aiding and abetting war crimes for supplying weapons and other resources to Charles Taylor during the Liberian civil war in return for preferential treatment for his timber companies (De Vos, 2017). Other private actors may be further removed but still contribute to IHL violations, such as Lafarge, the French parent company of a Syrian subsidiary that allegedly paid bribes to ISIS to keep its cement factory operating during the Syrian civil war (Agence France-Press, 2018; Alderman, Peltier and Saad, 2018). In some cases, the relevant private actor will appear even more remote, such as when the United Kingdom (UK) government informed a British insurer, Standard Club, that a cargo vessel insured by it was en route from Russia to Syria to deliver three Mi-25 attack helicopters to the Assad regime following the well-documented use of heavy artillery against civilians. Standard Club withdrew the insurance, forcing the vessel to return to port without delivering its cargo (Spencer, Blomfield and Millward, 2012). The perceived remoteness of the connection between a State, private actors and the potential violations of IHL does not mean that the duty to take positive steps is not engaged. The State may only have influence over one of many links in the chain, but that may be sufficient to stop or prevent violations of or interferences with IHL. The importance of the State being aware of the private actors forming part of the chain can therefore not be overstated. When is the obligation triggered? Negative prohibitions are always engaged; States are constantly prohibited from encouraging or aiding/assisting violations of or interferences with IHL. The positive obligation arises in connection with the foreseeability of IHL being violated or interfered with. In international law, positive obligations to prevent an outcome are anchored to the risk or foreseeability of that given event occurring because compliance can only be contemplated by reference to a potential breach. Guidance for the threshold of risk can be drawn from Bosnia Genocide. The ICJ held that ‘a State’s obligation to prevent, and the corresponding duty to act, arise at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed’ (para. 431). Assuming the same standard applies, the relevant threshold for triggering the duty to ensure respect for IHL is a ‘serious risk’ of a violation of or interference with IHL based on actual or constructive knowledge. Where a continuing violation of IHL has commenced, the duty to ensure respect continues for so long as the breach does. The capacity to influence the relevant actor is a further precondition to triggering the positive obligation. If there is no capacity to influence, the duty would likely not require the taking of any positive action (Tonkin, 2009, p. 787; Kessler, 2001, p. 505). The State will necessarily have the capacity to influence those subject to its jurisdiction (internal dimension). The extent to which a State can influence those outside its jurisdiction (external dimension) depends on the specific relationship in the circumstances.

68 Catherine Drummond

The need for a scoping exercise The duty on States to inform themselves of what their obligation requires There is a general presumption in international law that States know what is required of them by their obligations. Vagueness in the framing of the obligation or ignorance of the law is no defence to a breach. This presupposes that States actively take steps to inform themselves of the extent of their obligations. This is particularly important for due diligence obligations where the content and scope of the obligation varies according to the circumstances. Such an inquiry is the ‘in concreto assessment’ that the ICJ in the Bosnia Genocide case expressed as being ‘of critical importance’ for compliance with the obligation to prevent genocide (para. 430). It applies to all due diligence obligations. Thus, good faith compliance with the duty to ensure respect for IHL requires that States undertake such an assessment – here explained as a scoping exercise – to define the parameters of their obligation. What a scoping exercise might look like Few have engaged with this aspect of CA1, and those that have deal with it in no further detail than a passing suggestion that CA1 ‘establishes at least an obligation to remain vigilant’ (Sandoz, 1992, p. 219) or requires a continuous monitoring of violations of IHL coupled with ‘the omission of any act which might support such violations’ (Fleck, 2006, p. 182) or the determination of ‘appropriate measures to be adopted to ensure respect for IHL’ (Brehm, 2008 p. 375; Geiss, 2015a, p. 435). When it comes to private actors, more than monitoring of violations is required. In order to properly appreciate the multifaceted connections between private actors and violations of or interferences with IHL, States should identify private actors with a relationship to conflict or a situation of occupation, assess when those relationships or the activities facilitated by them give rise to a serious risk of IHL violations or interferences, and decide what measures can be taken in order to ensure respect for IHL. Two overarching inquiries would be prudent: a general (activity-based) inquiry and a specific (actor-based) inquiry. The activity-based inquiry would examine those activities likely to give rise to a serious risk of IHL violations and address them through the adoption of general legislative and administrative measures. The actor-specific inquiry – which would be the crux of the scoping exercise – would monitor all ongoing or potential conflicts/occupations and identify actor-specific risks that should be addressed through the enforcement of general measures in relation to particular actors and/or initiating further actor-specific measures, such as the exertion of influence through direct representations. Both are based on risk assessments using the ‘serious risk’ threshold. The structure of this scoping exercise mirrors what Pisillo-Mazzeschi considers a number of due diligence obligations to prevent require: the possession of a legal and administrative apparatus directed towards respect for the relevant norm on prevention, and the use of that apparatus with diligence required by the circumstances

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(1992, pp. 26, 35). This two-pronged approach also protects the State: the general measures provide States with the tools they need to take action in specific cases, in particular the legal basis on which to enforce controls on private actors whose rights might otherwise be infringed. This is a key distinction between measures directed towards other States or parties to the conflict and measures directed towards private actors: private natural and juridical persons have rights under many domestic, regional and international frameworks that may be infringed by the taking of purely reactive measures that restrict their conduct. The existence of the obligation to ensure respect for IHL may be no defence to a State facing a lawsuit or arbitration for infringing the rights of private persons. Similarly, in the converse, insufficiency of domestic legal frameworks will be no justification for a failure to comply with an international obligation of due diligence (Alabama Claims, p. 131). This reinforces why a scoping exercise utilising both general and specific levels of analysis can assist States to develop a sophisticated and proactive approach to regulating the conduct of private actors. Activity-based inquiry The first inquiry involves asking what activities are likely to give rise to a serious risk of interferences with or violations of IHL and identifies what general measures can be adopted to mitigate those risks vis-à-vis private actors subject to the State’s jurisdiction. Some such activities by private actors can be divided between those that take place in a conflict or situation of occupation and those that do not: 

Private actors operating in a conflict/occupation where: a b c

d



they may directly participate in hostilities, such as PSMCs; they may make payments to parties to the conflict to protect the operation of its business – as in the Lafarge example given above; they may provide material or other assistance that facilitates the commission of IHL violations – such as the Swedish company, Lundin Petroleum, which allegedly built and refurbished infrastructure used by government forces in its violent displacement of civilians during the Sudanese civil war (European Coalition on Oil in Sudan, 2010, pp. 5, 75– 79; New Europe Online, 2018); or they may benefit from a right granted by an investment regime to full protection and security of the business, and the State may fulfil this obligation through excessive (especially military) force in which the private actor may be implicated – cases involving extraction companies fitting this fact pattern have been brought (albeit unsuccessfully) under the Alien Tort Claims Act and/or Torture Victim Protection Act in the US (eg. Kiobel v Royal Dutch Petroleum; Doe v Exxon Mobil; Doe v Unocal; Sarei et al. v Rio Tinto).

Private actors operating outside a conflict/occupation may be directly or indirectly providing material, financial or other assistance that facilitates interferences with or violations of IHL. Although broad this may include:

70 Catherine Drummond a

b

c

Activities with an obvious connection to armed conflict, such as providing the physical means for the commission of IHL violations (eg. weapons) and developing new military or dual-use technologies (eg. augmented reality headsets (Wong, 2019)). Activities with a less direct connection to conflict. In 2012 and 2014, French authorities opened investigations into two French companies, Amesys and Qosmos, for complicity in war crimes and crimes against humanity for supplying surveillance technology to the governments of Libya and Syria (International Federation for Human Rights, 2014). In 2013, Dutch authorities investigated Lima Holdings for involvement in war crimes for renting cranes and aerial platforms used in the construction of the wall separating Israel from the West Bank (Parket, 2013). Also, in 2013, Swiss prosecutors opened an investigation into a gold-refining company, Argor-Heraeus, for receiving pillaged Congolese gold from rebel-affiliated intermediaries (Trial International, 2016). In 2015, the US undertook inquiries into how ISIS acquired so many Toyota Hilux trucks (Mosk, Ross and Hosenball, 2015). Although all closed without charges against the companies or corporate officials, these offer examples of activities that could be the subject of legislative and regulatory regimes. Other indirect connections could include the transport industry (regarding the hire or chartering of vessels for delivery of weapons and other material assistance) and service companies whose staff operate such vessels. Insurance companies, which are becoming increasingly subject to multilateral sanctions regimes, should also be prohibited by law from insuring activities that support or facilitate IHL violations. Even the tourism industry may facilitate the sustainment and extension of IHL violations, such as companies promoting accommodation and experiences in the Israeli settlements in the Occupied Palestinian Territories (Amnesty International, 2019).

It is beyond the scope of this chapter to offer detailed guidance on the types of measures that might address the risk of these activities contributing to violations of or interferences with IHL, but some general comments can be made. First, States are already obliged to adopt criminal legislation to repress grave breaches and suppress other acts contrary to IHL (GCI–IV, Arts. 49/50/129/146; API, Arts. 85–86; CIHL Study, Rule 158). In many countries these frameworks were designed for individual perpetrators but equally apply to legal persons through the recognition of corporate criminal liability. It is therefore possible in many jurisdictions for companies – rather than their individual directors – to be prosecuted for war crimes. States should evaluate the way in which their criminal law frameworks apply to both natural and legal persons, taking particular care to guard against the adoption of a mental element for corporate responsibility that renders the use of this means of control illusory.5 5

There are three common ways to hold a corporation criminally responsible: (1) vicarious liability for the acts of employees (eg. Norway: O’Connor, 2012, pp. 1012–1013); (2) identification liability: the company is responsible only if the criminal acts were those of persons that were the directing mind and will of the company (eg. UK: JCHR,

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Second, States must develop means of addressing relevant conduct falling short of the commission or culpable contribution to war crimes. This should include regulatory regimes that prohibit certain conduct and impose criminal or civil liability for non-compliance. It may involve adopting legislation (a) prohibiting companies incorporated or headquartered in the State’s territory from concluding goods/services contracts where such contracts are likely to facilitate or support an IHL violation, (b) rendering contracts concluded by such companies or governed by that State’s applicable law (irrespective of the domicile of the contracting parties) automatically void, and (c) preventing the enforcement of such contracts within the territory of that State. It could include the creation of an offence of interfering with the enjoyment of rights guaranteed by IHL applicable to private actors operating at home or abroad. States could also consider providing information about the risk of facilitating IHL violations when operating abroad. The UK, for example, maintains the Overseas Business Risk portal to provide country-by-country risk-mitigation information to businesses operating overseas (FCO, 2019), but it focuses almost exclusively6 on political and human rights-related risks. An opportunity exists to use this platform, and others like it, to communicate the State’s expectations about conflict-connected corporate conduct abroad. Finally, while some measures might be general enough to apply to all businesses subject to the State’s jurisdiction, others will have to be specific to the particular activity. For example, when assessing the risk posed by the transfer of weapons which may be used to commit IHL violations, States should examine what domestic frameworks are necessary to (a) combat unlawful weapons that are the subject of comprehensive prohibition treaties that by their nature are liable to violate IHL, (b) prohibit and suppress the illicit trade in weapons, and (c) regulate the lawful trade in weapons where there is a serious risk of their being used for the commission of IHL violations. Relatedly, the relevant threshold of risk for the triggering of the duty to ensure respect for IHL is a ‘serious risk’ of IHL violations. Any higher risk threshold – such as the obligation to prohibit the export of certain conventional weapons where there is an ‘overriding risk’ that they will be used to commit or facilitate a serious violation of IHL required by the Arms Trade Treaty (ATT) (Arts. 7(1)(b) and 7(3)) – may not be sufficient to meet the requirements of the rule in CA1. On the other hand, the European Union (EU) standard of a ‘clear risk’ might be thought to be comparable or even lower than a ‘serious risk’, and so measures in EU countries to implement Criteria 2 of the EU Council Common Position 2008/944/CFSP

6

2017, pp. 59–60); and (3) organisation liability: the organisation is responsible for strict liability offences or where the relevant mental element can be established through organisational conduct (eg., Australia, where a corporation can be held to have authorised conduct through the existence of a permissive corporate culture: Ivory and John, 2017, pp. 1185). It is significantly harder to prosecute based on point (2). On Israel, the portal states: ‘Settlements are illegal under international law … There are therefore clear risks related to economic and financial activities in the settlements, and we do not encourage or offer support to such activity’ (FCO, 2019).

72 Catherine Drummond 2008 may be sufficient for the purposes of complying with CA1 as regards the export of arms. This is indicative of a broader issue concerning the overlap between the duty to ensure respect for IHL and other obligations States have under customary international law or specific treaty regimes: States must distinguish between their specific obligations and what is required of each of them in order to appreciate what measures will comply with one obligation as opposed to the other, or which may go to both. Without domestic measures regulating the conduct of private actors in their conflict-connected business, few limitations will operate to constrain behaviour that contributes to the commission of IHL violations. Individuals, including corporate officials, are subject only to international criminal liability for a narrow category of acts that constitute or culpably contribute to war crimes, and legal persons, including corporations and other business entities, are presently subject to no direct obligations under international law. Moreover, even if States have implemented the patchwork of other international law rules with a similar purpose to CA1, this will not suffice to capture all relevant private activities because their coverage is not the same as CA1. Specific IHL rules directed towards ensuring better compliance with IHL (eg. the repression and suppression provisions mentioned above) do not cover all relevant corporate conduct. International human rights law (IHRL) does not oblige States to regulate either the extraterritorial conduct of private actors that may cause or contribute to the commission of IHRL violations (which can also constitute IHL violations) or the territorial conduct of private actors that may cause or contribute to extraterritorial human rights (and IHL) violations.7 The customary prohibition on aiding or assisting internationally wrongful acts in Article 16 ARSIWA would not capture aid or assistance given to private actors because it addresses only aid or assistance given to other States. Moreover, it sets a higher standard than the rule in CA1 because it requires intent rather than knowledge (Crawford, 2013, p. 407 cf. 2016 Commentary, para. 159; Sassòli, 2002, p. 413) and that an internationally wrongful act has occurred rather than is merely likely to occur (ILC, ARSIWA, commentary para. 5 to Art. 16 cf. Nicaragua, para. 256). The customary obligations to cooperate to end a serious breach of a

7

There is an ongoing debate concerning the scope of States’ extraterritorial IHRL obligations and whether there are relationships more remote than effective physical control that bring an individual within the jurisdiction of the State. It focuses on effective control over activities that cause extraterritorial human rights violations (Advisory Opinion on the Environment, 2017, para. 104(h)) or effective control over the enjoyment of a right of persons outside the State’s territory which may be violated if ‘impacted in a direct and foreseeable manner’ by the State (HRC: General Comment 36, 2018, para. 63). Notwithstanding an increasing willingness on the part of treatymonitoring bodies to recommend that States regulate the extraterritorial conduct of companies domiciled in their territory (eg. fns 65, 67, 68 and 75 of CESCR: General Comment 24, 2017), there is no clear basis to conclude that States presently have such obligations.

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peremptory norm and not to recognise or assist the maintenance of a situation arising from such a breach (ILC, ARSIWA, Art. 41) are applicable to IHL violations and may require adopting measures directed at private actors, but they are often only relevant in cases involving continuing situations, such as an illegal occupation, and thus would not capture the full spectrum of relevant private actor conduct for the purpose of ensuring respect for IHL more generally. Finally, specific treaty regimes that address a particular risk will by definition apply only to situations dealt with by the treaty. In all other cases, the conduct of private actors that contributes to IHL must be captured by other means. This is why a whole-of-private actor approach to domestic regulation is important. Actor-based inquiry The second part of the scoping exercise involves mapping the various dimensions of the State’s relationship with a particular conflict/occupation and corporate actors connected to it. Relevant inquiries include: Identify conflicts/occupations and parties: 

Where are the actual or potential armed conflicts/occupations taking place in the world and who are the parties to them?

Identify relevant private actors and relationships of influence in each conflict/ occupation:  

What private actors over which the State exercises jurisdiction (ie. territorial or extraterritorial based on nationality) have a connection to the conflict/occupation and/or parties to it? What private actors outside its jurisdiction, but with which the State has a relationship, are connected to the conflict/occupation and/or parties to it? What is the nature of the relationship between the State and the private actor? Is it one of influence? If so, what are the bases for leverage that the State can exercise over the actors’ conflict/occupation-connected conduct?

For each actor, identify potential risks and reasonably available measures: 



Is there a serious risk of the identified actor engaging in conduct that may constitute or contribute to a violation of or interference with IHL? In particular, is the private actor engaging in any of the activities identified in the general activity-based inquiry? This will require asking further questions specific to the actor involved. For example, as regards a particular PSMC: is it contracted in an offensive or defensive capacity? Are its personnel permitted by the contract and/or local laws to carry arms? Does it or any of its personnel have a history of violating IHL? Does it have adequate training and IHL compliance policies in place?

74 Catherine Drummond

 

Has it complied with all domestic regulatory frameworks for PSMCs abroad in a conflict/occupation? If there is a serious risk, are the applicable general measures appropriate and being applied diligently? Are there further steps that could be taken that might contribute to preventing IHL violations? Where the risk level may be nearing a ‘serious risk’, what specific measures can be taken to monitor, stabilise and/or prevent the risk level from increasing to an unacceptable level?

By whom and when should the scoping exercise be done States should undertake a scoping exercise on an ongoing basis. A standing list of conflicts and private actors connected to them should be maintained and re-evaluated regularly. The scoping exercise should be tasked to a standing agency or office that has relevant expertise in IHL. That body should also coordinate with other government departments (such as those responsible for import/export controls, corporate finance etc.) to gather relevant information and implement necessary measures. Practical considerations Various practical considerations arise from the proposed scoping exercise, including the differing capacities of States to do a detailed scoping exercise and whether (at least some) States will be disinclined to undertake an information-gathering exercise that would provide them with the very knowledge that may trigger their obligation to act (an issue not unique to this type of obligation of prevention). Two considerations worth discussing in further detail relate to jurisdiction and access to information. Jurisdiction Under international law, a State can exercise prescriptive and enforcement jurisdiction on its territory and can exercise prescriptive jurisdiction extraterritorially on the basis of certain permissive rules including, among other things, nationality. Thus, on the basis of territoriality, a State can exercise jurisdiction over the conduct of private actors operating on its territory, irrespective of their nationality or domicile. On the basis of nationality, a State can exercise jurisdiction over its individual nationals and legal persons that are incorporated or headquartered in its territory,8 including when they operate extraterritorially. This extraterritorial dimension gives rise to two questions. First, is nationality a sufficient connection for States to regulate any conduct of its nationals abroad, including commercial conduct? The general regulation of 8

Common law countries tend to regulate companies based on incorporation, whereas civil law countries tend to regulate based on headquarters or registered “seat”.

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commercial conduct of nationals abroad may interfere with the foreign sovereign’s right to regulate commerce within its own territory (Mann, 1990, p. 9) and thereby contravene the prohibition on intervention in the internal affairs of other States (Nicaragua, paras. 202–205).9 Where, however, there is an international consensus on the illicit character of the activities, nationality-based jurisdiction is often exercised without protest (Ryngaert, 2008, pp. 656–657). This is the case for crimes, particularly serious crimes like murder and terrorist offences (Shaw, 2017, pp. 496–497), and is equally the case for gross violations of human rights and IHL. But how far removed from the IHL violation might corporate conduct be before it would engender protest as an exorbitant exercise of jurisdiction? Although not entirely clear, it appears that where the purpose of the legislation is directed towards addressing conduct universally considered to be unlawful, even remotely connected commercial conduct could validly be restricted or regulated (Bianchi, 1992, p. 398), especially where the territorial sovereign does not impose conflicting obligations on the private actor. Second, can a State restrict or regulate the commercial conduct of a foreign subsidiary of a company incorporated in its territory? The doctrine of separate legal personality renders subsidiaries distinct from their parent companies (Barcelona Traction, para. 41) and subject only (insofar as nationality jurisdiction extends) to the jurisdiction of their respective State of nationality. There are grounds for holding parent companies liable for or in respect of the conduct of their subsidiaries (abuse of the corporate form, agency theory, enterprise liability, due diligence or parental duty of care) but each comes with its own challenges and the available approach varies between legal systems (see Skinner, 2015; Petrin and Choudhury, 2018; Muchlinski, 2010). Such techniques of exercising indirect extraterritorial jurisdiction are generally tolerated provided there is a sufficiently close connection to the home State of the parent company, usually satisfied by parental control of the subsidiary’s activities, parental assumption of responsibility over a certain risk, or the existence of a duty of care or due diligence in respect of the subsidiary’s activities.10 This type of exercise of indirect extraterritorial jurisdiction creates a relationship of influence between the State of the parent company and a foreign subsidiary. Where that relationship of influence is grounded in legislation, the State can enforce its own law directly rather than being dependent on third-party victims to bring a claim, for example, in tort. This is a means by which States could exercise influence over private conduct abroad in order to stop or prevent interferences with or violations of IHL. States should not hide behind the primacy of territoriality in order to refrain regulating conflict-connected corporate activities abroad. 9

Regarding the (non)existence of a broader rule of reasonableness restricting jurisdiction, see Ryngaert, 2015, pp. 145–187. 10 This is distinct from the purported exercise of jurisdiction by the US directly over foreign subsidiaries owned or controlled by US nationals, residents or persons in the US, particularly in anti-trust law and export control regulations. This practice has long been met with protest from other States, including the adoption of blocking legislation that requires non-compliance with US law (Mann, 1990, pp. 41–43; Ryngaert, 2008).

76 Catherine Drummond The very fact of overlapping claims to jurisdiction is a reason that tends towards more effective compliance with IHL: the territorial State of the conflict may not be in a position to properly enforce its own laws owing to a lack of effective control over territory or otherwise being engaged in a conflict (Ruggie, 2011, para. 6). All States that can regulate corporate conflict-connected conduct abroad should do so in order to ensure respect for IHL universally. Access to information The scoping exercise depends on the State obtaining from private actors information about where they or their subsidiaries are operating, what contracts or connections they have with persons or entities connected to the conflict and what types of activities they are engaging in. Much of this information may be obtained from the imposition of mandatory reporting requirements by States on companies incorporated or operating in their territory. Companies may be obliged to include information about their conflict-connected conduct in their annual reports. For example, the UK Companies Act and EU Non-Financial Reporting Directive require certain listed, large and/or banking and insurance companies to disclose annually certain nonfinancial information, including relating to human rights and the environment (see Companies Act, ss.414CB, 414C(7); Directive 2014/95/EU, Art. 19a). Parent company reports must include information for the entire corporate group, which includes foreign subsidiaries (Companies Act, s.414A(3)). Many IHL violations will also constitute human rights abuses, and so any involvement with or contribution to IHL violations would arguably be a disclosable matter. Alternatively, companies may be required to report relevant information directly through a designated channel. One such example is the name-and-shame requirement under US law that publicly-traded companies purchasing certain minerals from the Democratic Republic of the Congo or its neighbours must file an annual disclosure report detailing the due diligence they exercise to prevent sourcing conflict minerals (Dodd-Frank Act, s.1502; 17 CFR s.240.13p-1). The report must also identify products made with minerals that could have directly or indirectly financed or benefited armed groups. The legislation extends to any company publicly listed on a US stock exchange, irrespective of its place of incorporation or headquarters. It operates to reduce corporate funding of conflict, albeit with no specific connection to IHL violations, but may serve to ensure respect for IHL. A similar example is the UK Modern Slavery Act, which requires commercial organisations carrying on a business in the UK with a turnover of at least £36 million to publish an annual slavery and human trafficking statement that outlines the steps taken to ensure modern slavery is not taking place in their business or supply chains (Modern Slavery Act, s.54). It captures UK businesses, foreign parent companies operating in the UK, and foreign subsidiaries operating outside the UK that are part of a corporate group which operates (even in part) from the UK (UK Home Office, 2017, paras. 3.11–3.13). A similar reporting mechanism that requires private actors to report on conflictconnected business activities may be a basis on which States can obtain information to feed into the scoping exercise. States should be attuned to the types of private actors

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any reporting requirements capture, whether large or small, whether incorporated in the territory or not. Such reporting could be private or public, the latter offering clear advantages for civil society scrutiny and corporate self-correcting action motivated by the desire to avoid reputational risk. The mechanism could also permit reporting by others, which could facilitate the receipt of information from NGOs, whistle-blowers and business partners. In March 2019, for example, business partners of the world’s second largest sugar maker, Tereos, filed a criminal complaint in France alleging that Tereos had been supplying an artificial sweetener to Syria knowing it could be (and may have been) used to make rocket propellant when mixed with potassium nitrate (France 24, 2019). Information obtained through corporate self-reporting and third-party reporting should be collated with information feeding in through treaty-specific regimes, such as the record-keeping and reporting requirements under the ATT (Arts. 12–13) and Firearms Protocol (Art. 7). States should cooperate with one another to share information in relation to conflictconnected private actors. This is particularly important in situations involving corporate group conduct where the exertion of jurisdiction over the whole corporate group is at odds with the diffusion of regulatory competence in the international system. Such cooperation may dovetail with existing cooperation regimes in other treaties (eg. ATT, Art. 15; Firearms Protocol, Arts. 12–13). States should also reflect on their mutual legal assistance arrangements with other States and international organisations, including the International Criminal Court which has repeatedly expressed an interest in sharing information relevant to the national prosecution of private actors doing business with armed groups (Gallmetzer, 2010, pp. 953; OTP, 2016, para. 7).

Conclusion Taking private actors as the reference point to examine the duty to ensure respect for IHL highlights issues of scope and application largely overlooked in other doctrinal literature. It illustrates that the duty to ensure respect for IHL is directed towards stopping and preventing interferences with IHL as well as violations, and that this can and should include the regulation of lawful commercial conduct. The negative prohibitions are not limited to encouraging or aiding/assisting parties to a conflict but extend to encouraging or aiding/assisting any person or entity to violate or interfere with IHL, including private actors irrespective of whether they are within the State’s jurisdiction (internal) or not (external). Whether the positive obligation to take active measures in certain situations has been engaged is not necessarily a question of the closeness of the State’s relationship to a situation of armed conflict or the parties to it. In many cases, the connection between the State and the ultimate perpetrator will be indirect, with private actors forming mere links in a chain. The State may only have influence over one of many links, but that may be sufficient to stop or prevent violations of IHL. This illustrates the need for States to understand the multifaceted and perhaps somewhat remote connections between private actors and conflict that might turn out to be crucial in preventing IHL violations. In order to properly appreciate such connections, States should and are arguably obliged to undertake a scoping exercise to inform themselves of what their obligation to

78 Catherine Drummond ensure respect for IHL requires in any given case. This chapter explained why two overarching inquiries, a general activity-based inquiry and a specific actor-based inquiry, would form an appropriate structure for such an assessment. As so few obligations at the international level are imposed directly on private actors, the onus on States to regulate such actors through legislative and enforcement measures is more important than ever. The proposed scoping exercise allows States to map risks and relationships, and provides a practical framework to guide the adoption of appropriate tools to ensure respect for IHL by and in relation to the conduct of private actors. As it is impracticable to focus on ascertaining where precisely the bright line is drawn between doing enough and not doing enough, prudent States should take a broad view of relevant conflict-connected private conduct and focus on proactive measures.

References (additional to the common list) Treaties other than the GCs and APs. Arms Trade Treaty, opened for signature 3 June 2013 (entered into force 24 December 2014) [ATT]. Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition, supplementing the United Nations Convention against Transnational Organized Crime. Annexed to Resolution 55/255, UN Doc A/RES/ 55/255, 8 June 2001 [Firearms Protocol].

Cases Alabama claims of the United States of America against Great Britain (1872) XXIX RIAA pp. 125–134 [Alabama Claims]. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), ICJ, Judgment, 26 February 2007 [Bosnia Genocide]. Barcelona Traction Light and Power Company, Ltd. (Belgium v. Spain), ICJ, Judgment, 5 February 1970 [Barcelona Traction]. Doe v Exxon Mobil Corporation 654 F 3d 11 (DC cir, 2011) and 527 Fed Appx 7 (DC cir, 2013). Doe v Unocal 395 F 3d 932 (9th cir, 2002). Kiobel v Royal Dutch Petroleum 133 S Ct 1659 (USSC, 2013) and 621 F 3d 111(2d cir, 2010) and 456 F Supp 2d 457 (SDNY, 2006). Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ, Advisory Opinion, 9 July 2004 [Wall]. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), ICJ, Judgment (Merits), 27 June 1986 [Nicaragua]. Sarei et al. v Rio Tinto Plc et al. 671 F 3d 736 (9th cir, 2011) and 722 F.3d 1109 (9th cir, 2013). State Obligations in Relation to the Environment in the Context of the Protection and Guarantee of the Rights to Life and to Personal Integrity (Advisory Opinion), Inter-American Court on Human Rights, Series A No 23, 15 November 2017. Retrieved from http://www.corteidh.or. cr/docs/opiniones/seriea_23_esp.pdf (available in Spanish only, but see http://www.

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corteidh.or.cr/docs/opiniones/resumen_seriea_23_eng.pdf for an official English summary) [Advisory Opinion on the Environment].

Legislation Companies Act 2006 (UK) (as amended by the Companies Act 2006 (Strategic Report and Directors’ Report) Regulations 2013 and the Companies, Partnerships and Groups (Accounts and Non-Financial Reporting) Regulations 2016 (UK)). Directive 192014/95/EU of the European Parliament and of the Council 22 October 2014, amending Directive 2013/34/EU as regards disclosure of non-financial and diversity information by certain large undertakings and groups, OJ L 330, 15 November 2014, pp. 1–9. Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111–203, 124 Stat. 1376 (2010) (codified at 15 U.S.C. § 78o) [Dodd-Frank Act]. EU Council Common Position 2008/944/CFSP of 8 December 2008 defining common rules governing control of exports of military technology and equipment, OJ L 335, 13 December 2008, pp. 99–103. Modern Slavery Act 2015 (UK). US Code of Federal Regulations (CFR) Chapter 17, Part 240: General Rules and Regulations, Securities and Exchange Act 1934, s240.13p-1: Requirement of Report Regarding Disclosure of Registrant’s Supply Chain Information Regarding Conflict Minerals (SEC, 77 FR 56362, 12 September 2012) [17 CFR 240].

Documents 30th International Conference of the Red Cross and Red Crescent (30 November 2007). Resolution 3: Reaffirmation and Implementation of International Humanitarian Law: Preserving Human Life and Dignity in Armed Conflict. Retrieved from https://www. icrc.org/en/doc/resources/documents/resolution/30-international-conference-resolution-3–2007.htm. Office of the Prosecutor of the International Criminal Court (OTP) (15 September 2016). Policy Paper on Case Selection and Prioritisation. Retrieved from https://www.icc-cpi. int/itemsdocuments/20160915_otp-policy_case-selection_eng.pdf. United Nations Committee on Economic, Social and Cultural Rights (2017). General Comment No 24: State Obligations under the International Covenant on Economic, Social and Cultural Rights in the Context of Business Activities. UN Doc E/C.12/GC/24 [CESCR: General Comment 24, 2017]. United Nations Human Rights Committee (2018). General Comment No 36: Article 6 of the International Covenant on Civil and Political Rights, on the Right to Life. UN Doc CCPR/C/GC/36 [HRC: General Comment 36, 2018]. International Conference on Human Rights (12 May 1968). Resolution XXIII: Human Rights in Armed Conflict. Retrieved from http://hrlibrary.umn.edu/instree/1968a.htm. International Law Commission (ILC) (2001). Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries. UN Doc A/56/10 [ILC, ARSIWA]. Ruggie, J. (27 May 2011). Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and other Business Enterprises. UN Doc A/HRC/17/32.

80 Catherine Drummond Secondary sources Alderman, L., Peltier, E. and Saad, H. (10 March 2018). ‘ISIS Is Coming!’ How a French Company Pushed the Limits in War-Torn Syria. The New York Times. Retrieved from https://www.nytimes.com/2018/03/10/business/isis-is-coming-how-a-french-company-pushed-the-limits-in-war-torn-syria.html?module=inline. Amnesty International (2019). Destination Occupation: Digital Tourism and Israel’s Illegal Settlements in the Occupied Palestinian Territories. Retrieved from https://www. amnesty.org/download/Documents/MDE1594902019ENGLISH.PDF. Aust, H. (2015). Complicity in Violations of International Humanitarian Law. In H. Krieger (Ed.), Inducing Compliance with International Humanitarian Law: Lessons from the African Great Lakes Region (442–469). Cambridge: Cambridge University Press. Bianchi, A. (1992). Extraterritoriality and Export Controls: Some Remarks on the Alleged Antimony between European and U.S. Approaches. German Yearbook of International Law, 35, 366–434. Boisson de Chazournes, L. and Condorelli, L. (2000). Common Article 1 of the Geneva Conventions Revisited: Protecting Collective Interest. International Review of the Red Cross, 82(837), 67–86. Brehm, M. (2008). The Arms Trade and States’ Duty to Ensure Respect for Humanitarian and Human Rights Law. Journal of Conflict and Security Law, 12(3), 359–387. Crawford, J. (2013). State Responsibility: The General Part. Cambridge: Cambridge University Press. De Vos, D. (24 April 2017). Corporate Accountability: Dutch Court Convicts Former ‘Timber Baron’ of War Crimes in Liberia. Retrieved from https://me.eui.eu/dieneke-de-vos/ blog/corporate-accountability-dutch-court-convicts-former-timber-baron-of-war-crimesin-liberia/ (reviewing Prosecutor v Kouwenhoven, Gerechtshof’s-Hertogenbosch, 21 April 2017, ECLI:NL:GHSHE:2017:1760, NJFS 2017/153 (available in Dutch only)). Dörmann, K. and Serralvo, J. (2014). Common Article 1 to the Geneva Conventions and the Obligation to Prevent International Humanitarian Law Violations. International Review of the Red Cross, 96(895/896), 707–736. European Coalition on Oil in Sudan (2010). Unpaid Debt: The Legacy of Lundin, Petronas and OMV in Block 5A, Sudan 1997–2003. Retrieved from http://www.ecosonline.org/ reports/2010/UNPAID_DEBT_fullreportweb.pdf. Execs from Swedish Oil Company to be Charged for War Crimes in Sudan (22 October 2018). New Europe Online. Retrieved from https://www.neweurope.eu/article/execs-from-swedish-oil-company-to-be-charged-for-war-crimes-in-sudan/ [New Europe Online]. Fédération internationale droit l’homme / International Federation for Human Rights (11 April 2014). FRANCE: Judicial Investigation will Target Qosmos for Complicity in Acts of Torture in Syria. Retrieved from https://www.fidh.org/en/region/europe-central-asia/france/ 15226-france-judicial-investigation-will-target-qosmos-for-complicity-in-acts-of. Fleck, D. (2006). International Accountability for Violations of the Ius in Bello: The Impact of the ICRC Study on Customary International Humanitarian Law. Journal of Conflict and Security Law, 11(2), 179–199. Focarelli, C. (2010). Common Article 1 of the 1949 Geneva Conventions: A Soap Bubble? European Journal of International Law, 21, 125–171. France 24 (2019) French Sugar Giant Accused of ‘Complicity in Acts of Terrorism’ for Alleged Syria Sorbitol Supply (20 March 2019). France 24. Retrieved from https:// www.france24.com/en/20190320-france-sugar-giant-tereos-syria-supply-weapons.

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Gallmetzer, R. (2010). Prosecuting Persons Doing Business with Armed Groups in Conflict Areas: The Strategy of the Office of the Prosecutor of the International Criminal Court. Journal of International Criminal Justice, 8, 947–956. Geiss, R. (2015a). Common Article 1 of the 1949 Geneva Conventions—Scope and Content of the Obligation to ‘Ensure Respect’—‘Narrow but Deep’ or ‘Wide and Shallow’? In H. Krieger (Ed.), Inducing Compliance with International Humanitarian Law: Lessons from the African Great Lakes Region (417–441). Cambridge: Cambridge University Press. Geiss, R. (2015b). The Obligation to Respect and Ensure Respect for the Conventions. In A. Clapham, P. Gaeta and M. Sassòli (Eds.), The 1949 Geneva Conventions: A Commentary (111–134). Oxford: Oxford University Press. Ivory, R. and John, A. (2017). Holding Companies Responsible? The Criminal Liability of Australian Corporations for Extraterritorial Human Rights Violations. UNSW Law Journal, 40, 1175–1199. Kalshoven, F. (1999). The Undertaking to Respect and Ensure Respect in All Circumstances: From Tiny Seed to Ripening Fruit. Yearbook of International Humanitarian Law, 2, 3–61. Kessler, B. (2001). The Duty to ‘Ensure Respect’ under Common Article 1 of the Geneva Conventions: Its Implications on International and Non-International Armed Conflicts. German Yearbook of International Law, 44, 498–516. Agence France-Press (28 June 2018). Lafarge Charged with Complicity in Syria Crimes Against Humanity. The Guardian. Retrieved from https://www.theguardian.com/ world/2018/jun/28/lafarge-charged-with-complicity-in-syria-crimes-against-humanity. Mann, F.A. (1990). Further Studies In International Law. Oxford: Clarendon Press. Mosk, M., Ross, B. and Hosenball, A. (6 October 2015). US Officials Ask How ISIS Got So Many Toyota Trucks. ABC News. Retrieved from https://abcnews.go.com/International/us-officials-isis-toyota-trucks/story?id=34266539. Muchlinski, P. (2010). Limited Liability and Multinational Enterprises: A Case for Reform? Cambridge Journal of Economics, 34, 915–928. O’Connor, S. (2012). Corporations, International Crimes and National Courts: A Norwegian View. International Review of the Red Cross, 94(887), 1007–1025. Parket, L. (14 May 2013). No Further Investigation into Crane Rental Company. Openbaar Ministrie (Prosecution). Retrieved from https://www.om.nl/vaste-onderdelen/ zoeken/@31796/no-further/. Petrin, M. and Choudhury, B. (2018). Group Company Liability. European Business Organization Law Review, 19, 771–796. Pisillo-Mazzeschi, R. (1992). The Due Diligence Rule and the Nature of the International Responsibility of States. German Yearbook of International Law, 35, 9–51. Ryngaert, C. (2008). Extraterritorial Export Controls (Secondary Boycotts). Chinese Journal of International Law, 7, 625–658. Ryngaert, C. (2015). Jurisdiction in International Law (2nd ed.). Oxford: Oxford University Press. Sandoz, Y. (1992). ‘Droit’ or ‘Devoir d’ingerence’ and the Right to Assistance: The Issues Involved. International Review of the Red Cross, 32(288), 215–227. Sassòli, M. (2002). State Responsibility for Violations of International Humanitarian Law. International Review of the Red Cross, 84(846), 401–434. Shaw, M. (2017). International Law (8th ed.). Cambridge: Cambridge University Press. Skinner, G. (2015). Parent Company Accountability: Ensuring Justice for Human Rights Violations. Retrieved from http://www.bhrinlaw.org/documents/pcap-report-2015. pdf.

82 Catherine Drummond Spencer, R., Blomfield, A. and Millward, D. (19 June 2012). Britain Stops Russian Ship Carrying Attack Helicopters for Syria. The Telegraph. Retrieved from https://www.telegraph.co.uk/news/worldnews/middleeast/syria/9339933/Britain-stops-Russian-shipcarrying-attack-helicopters-for-Syria.html [The Telegraph, 2012]. Tonkin, H. (2009). Common Article 1: A Minimum Yardstick for Regulating Private Military and Security Companies. Leiden Journal of International Law, 22, 779–799. Trial International (16 May 2016). Argor-Heraeus SA and Hussar Limited. Retrieved from https://trialinternational.org/latest-post/argor-heraeus-sa-and-hussar-limited/. UK Foreign and Commonwealth Office (FCO) (2019). Overseas Business Risk. Retrieved from https://www.gov.uk/government/collections/overseas-business-risk. UK Home Office (2017). Transparency in Supply Chains etc: A Practical Guide. Retrieved from https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/649906/Transparency_in_Supply_Chains_A_Practical_Guide_2017.pdf. UK House of Lords and House of Commons Joint Committee on Human Rights (29 March 2017). Human Rights and Business 2017: Promoting Responsibility and Ensuring Accountability. Retrieved from https://publications.parliament.uk/pa/ jt201617/jtselect/jtrights/443/443.pdf [JCHR, 2017]. Wong, J. (22 February 2019). ‘We Won’t be War Profiteers’: Microsoft Workers Protest $480m Army Contract. The Guardian. Retrieved from https://www.theguardian.com/ technology/2019/feb/22/microsoft-protest-us-army-augmented-reality-headsets. Zych, T. (2009). The Scope of the Obligation to Respect and to Ensure Respect for International Humanitarian Law. Windsor Yearbook of Access to Justice, 27, 251–270.

6

Ensuring respect for IHL by Kenya and Uganda in South Sudan A case study Kenneth Wyne Mutuma

Introduction South Sudan has been embroiled in conflict for the past five decades, first as part of its civil war to secede from Sudan, (Rolandsen and Daly, 2016, p. 151) which culminated in the signing of the Comprehensive Peace Agreement (CPA) and its subsequent independence (Biel, 2010, p. 29), and later between the government and different armed groups (Knopf, 2016; Brosche, 2019, pp. 1–19) within the newly created State. It was assumed that the end of the lengthy civil war between the Khartoum government in the north and the Sudan People’s Liberation Army (SPLA) in the south, which revolved predominantly around marginalisation and skewed resource allocation (Adeola and Segun, 2018, p. 80; Johnson, 2003, p. 184) would herald a new era of peace and cohesion (Soderlund and Briggs, 2014, p. 73). Instead, since 2013, the country has been engulfed in a brutal ethnic based conflict, which has pitted the majority Dinka against the Nuer (as well as other tribes) over Dinka hegemony and alienation of other tribes from national resources (Enough Forum, 2014, pp. 3–6; Jok, 2018; Schomerus and Vries, 2018, pp. 423–454) and seen suffering and gross human rights and humanitarian violations committed by both sides (UN Human Rights Council (UNHRC), 2018, pp. 12–20). These violations have happened despite the fact that South Sudan is a party to all major IHL treaties and many of these international obligations have been domesticated (UNHRC, 2018, p. 4). The lack of accountability for serious violations of IHL in the face of existing legal commitments has been said to be the foremost factor for the perpetuation of the current conflict (UNHRC, 2018, p. 4). The link between the absence of the application of IHL obligations by the parties in South Sudan and the perpetuation of the conflict, calls for a deeper examination around how the legal obligations of State parties to IHL treaties can be better respected and enforced. This chapter explores one aspect of that, considering how influential neighbours, Kenya and Uganda, are obligated by CA1 to take measures aimed at stopping or preventing violations by the parties to the conflict. The chapter adopts the view that CA1 is a distinct mechanism going beyond the content of rights erga omnes and the obligations arising under the International Law Commission (ILC) Draft Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA). Unlike the general right of third States

84 Kenneth Wyne Mutuma to take action based on erga omnes obligations (UNHRC, 2018, p. 4), CA1 places a duty, and not simply a right, to take action to ensure respect for IHL. Furthermore, and in contrast with ARSIWA, CA1 imposes positive obligations on State parties requiring them to take some actions to stop violations of IHL (UNHRC, 2018, p. 4). This unique aspect of CA1 may present an opportunity through which Kenya and Uganda are obligated to exercise due diligence and take action to ensure respect for IHL in South Sudan.

Kenya and the conflict in South Sudan Like South Sudan, Kenya is a party to all the major IHL treaties. It has ratified the GCs and their APs (Geneva Conventions Act, 1968) and is accordingly bound by the obligations therein, including CA1. Although Kenyan troops have not lent direct support to any of the parties to the conflict within South Sudan, its geopolitical position within the region and in relation to South Sudan, as well as various forms of interaction with the parties to the conflict, may give rise to obligations incumbent on third States, including those under CA1. Further, although Kenya has professed neutrality in the conflict between the parties (Kisero, 2014), in more recent times there is evidence to suggest that Kenya has built a closer political and economic relationship with the government of South Sudan (Kuol, 2018). For these reasons Kenya may be said to have a stronger obligation to ensure respect for IHL in a situation where South Sudanese forces lie at the centre of myriad accusations of violating the laws of war. Such an obligation should not be viewed as one-sided given the fact that opposition forces also benefit, albeit indirectly, from the economic and political interaction between Kenya and the territory of South Sudan (Obala, 2012, pp. 3–4), and in this way are susceptible to similar influences aimed at ensuring their respect for IHL. What does exercising due diligence mean in terms of Kenya’s obligations under CA1 (Dörmann and Serralvo, 2014, p. 724; Kuol, 2018)? The subsequent paragraphs explore possible measures that Kenya may exercise in line with these obligations.

Preventing South Sudanese from profiting from IHL violations The geographic proximity of Kenya to South Sudan, as a neighbour with access to the sea and sharing a common border with a country that is landlocked, means that Kenya is a conduit of a large number of the imports into South Sudan (Obala, 2012, pp. 3–4). These imports are mainly commercial goods and services and have been alleged to include arms and military hardware (Obala, 2012, p. 3). While an equal amount of the imports in South Sudan come from its other southern neighbour, Uganda, all goods originate from the port of Mombasa in Kenya, given that Uganda is also landlocked and receives its imports through Mombasa (Atieno, 2019). Furthermore, Kenya’s comparative advantage as a route for imports must be seen in light of the tense relationship existing between South Sudan and its other viable option through its northern neighbour, Sudan. The history of conflict between the countries and more recently of their separation has

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meant that South Sudan will only look to the north as a conduit when absolutely necessary (Taylor, 2016). This means that Kenya, as a third State not involved in the conflict of South Sudan, remains strategically placed to influence the course of action among the parties given the geographic leverage it holds. This point is well illustrated by recent allegations that the Chinese arms manufacturer China North Industries Corporation (Norinco) dispatched two large shipments of arms to Juba via the Kenyan port city of Mombasa (Kelley, 2018). The shipments were consigned to the Ministry of Defence (South Sudan) and comprised more than 27 million rounds of small calibre ammunition (Africa News, 2018). This particular case illustrates the importance of CA1 as a critically important avenue for controlling the inflow of illicit arms through countries, such as Kenya, which are not a party to the Arms Trade Treaty (ATT). Regarding economic relations, Kenya remains a strategic partner with South Sudan. Kenya is widely known as the economic powerhouse of the East Africa and, according to various reports, its trade with South Sudan continues to grow (Obala, 2012). Both governments are keen on deepening trade ties which explains why Kenya, with the aid of a loan from the World Bank, is constructing infrastructure to link its coastal town of Lamu with Juba in order to support the movement of goods to and from South Sudan (Gitonga, 2011). Furthermore, South Sudan remains one of the largest export destinations for Kenyan goods in Africa (Ngigi, 2013). Kenya possesses the most developed financial sector in the region and its banking system serves as a centre and conduit for the regions financial transactions (Rotich, 2016). South Sudan remains a fertile ground for Kenyan banks and many of its financial transactions are conducted through Kenyan owned banks both within and without its territory (Oluoch, 2018). Kenyan banks are among the largest operators in South Sudan with the Kenya Commercial Bank controlling 50% of the market share of the banking industry (Wanjohi, 2018). In this regard, it has been alleged that many of the leaders of South Sudan use Kenyan banks for alleged illicit financial transactions (Wanjohi, 2018). The activities of General Reuben Riak, a senior security official in South Sudan, illustrates how individuals continue to move large sums of money through Kenyan banks (Kelley, 2016). Riak, who is on the UN sanctions list and oversaw army logistics, has moved millions of shillings through his KCB dollar account (Kelley, 2016). Such actions have prompted concerns by some UN officials and even the UNSC that South Sudanese officials are using Kenya banks to hide illicit money (Kelley, 2016). It is not only the banking sector that is of direct economic importance in terms of the relations between the two countries and its potential to hold actors in the conflict to account. Kenya has an advanced and profitable real estate sector that has become the convenient target for many leaders of South Sudan trying to launder the proceeds of illicit wealth and plunder acquired during the armed conflict (Kelley, 2016). In describing this interaction one commentator has colourfully contrasted Nairobi and Juba by stating that the former is a satellite city for playboys to blow off blood money obtained from the latter city where they draw blood (Wafula and Namu, 2018). It has been alleged that many top government

86 Kenneth Wyne Mutuma officials of South Sudan have taken advantage of the neutrality of Kenya to seize the opportunity to direct the loot obtained in their country to high-end property and businesses in Nairobi (Wafula and Namu, 2018). Investigations confirm that both President Salva Kiir and his former chief of staff, Paul Malong Awan, have several homes in Nairobi’s exclusive suburbs (Wafula and Namu, 2018). Paul Malong Awan is currently on the UN’s sanction list for war crimes including targeting civilians, torture, rape and forced displacement although he has not been formally charged or indicted for his alleged role in the South Sudanese war (Wafula and Namu, 2018). This attempt by perpetrators to invest in real estate in an effort to cleanse the money plundered in the course of the war remains a major concern to the region. Intergovernmental bodies such as the East African Community (EAC) have discussed and attempted to address the money laundering issue in the region through the EAC monetary and fiscal affairs committee although these efforts cannot bear notable results without cooperation from all members concerned (IC Joint, 2012). Although the legality of acting on the basis of allegations yet to be proved may be raised, it is likely domestic courts would adopt an approach similar to that they have taken against the property of suspects accused of corruption (Rajab, 2019). In such cases the idea has been to prevent delays inherent in the criminal justice system to be used as a cover for the alienation of such property. Such delays are likely to be compounded given the legal technicalities and practical hurdles arising from questions of the jurisdiction of domestic courts over the suspects. In practical terms, terminating assistance would mean taking specific measures targeting individuals accused of violations in various ways. An example would be by regulating Kenyan financial institutions to make it difficult for such leaders to launder money through Kenyan banks. This would entail the use of policy financial tools that target the individual and their support systems eg. frontmen and businesses (both in and out of South Sudan). It would also include anti-money laundering measures targeting the banking system, requiring banks to put in place effective monitoring or face penalties. To supplement the actions in the banking sector, similar action ought to be directed to real estate transactions involving implicated South Sudanese. Indeed the Kenyan government operates a transparent property registration system that indicates property ownership and the Proceeds of Crime and Anti-Money Laundering Act, 2009 allows for asset forfeiture where it is evident that such property is the result of the proceeds of crime. As mentioned earlier, Kenya’s real estate and banking sectors are valuable conduits for looted resources by South Sudan’s leaders. Through these channels South Sudan’s criminals can launder funds and enter the international financial system (Wanjohi, 2018). This presents a unique opportunity to apply pressure on such individuals by freezing their funds and property through the banking system. It is imperative that swift action is taken along these lines if Kenya is to avoid the tag of being a destination for the proceeds of tainted money from South Sudan.

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Peacebuilding Kenya has played a central role in resolving the conflict in Sudan both as a mediator as well as a supporter of development efforts following the creation of the newly independent State (Oluoch and Asiimwe, 2018). It has hosted several mediation and conciliation sessions and encouraged peace accords between the different warring factions (Oluoch and Asiimwe, 2018). Kenya has a special place in the history of South Sudan, especially with respect to the 2005 CPA upon which the country’s independence was founded and through this has established considerable goodwill with the South Sudanese (Oluoch and Asiimwe, 2018). From the Machakos Peace Accord 2002, Naivasha Peace Deal 2005, to the signing of the CPA at the Nyayo Stadium in 2005, Kenya has been involved with the delicate peace negotiations in South Sudan. Although much of the mediation has been undertaken under the auspices of Intergovernmental Authority on Development (IGAD) (Vhumbunu, 2019), Kenya has taken a leading role because of its international stature as a neutral State not directly participating in the armed conflict, compared to other neighbours who have openly taken sides in the conflict (Kisero, 2014). More recent efforts under The Nairobi Round, chaired by Kenya’s President Uhuru Kenyatta, have contributed to developing a peace agreement based upon power-sharing (Oluoch, 2018). However, it has been suggested that Kenya’s decision to deport some of South Sudan’s opposition officials undermines its stature as a neutral party (Washington Post, 2016). Furthermore, Kenya’s role as a mediator has been undermined by its economic interest, which has often made it reluctant to pressure South Sudan’s President Kiir and implement sanctions and travel bans (Mutambo, 2018). Notwithstanding these concerns, Kenya’s involvement as a mediator and peacebuilder provides a powerful avenue for exercising diplomatic pressure upon warring factions in furtherance of their obligations to respect IHL. There is considerable scope for Kenya to exercise further, sustained diplomatic pressure. Its long-term pivotal role in the mediation and conflict resolution process amplifies the impact it can have in this respect. Kenya could engage in confidential negotiations with the parties in the armed conflict to encourage respect for IHL (ICRC, 2004, p. 3). This approach may sit well with Kenya’s preference to be viewed as neutral in the conflict. However, such neutrality should not be at the expense of violations of IHL and where it is evident that IHL continues to be violated, Kenya should consider exerting diplomatic pressure including lodging protests with the High Commission of South Sudan as well as making public denunciations of the actions by any violating party. Kenya has yet to make such a public denunciation specifically targeting individuals involved in atrocities or their immediate commanders, despite the availability of information implicating such individuals (Anyanzwa, 2019). Kenya could also make use of regional bodies in its peacebuilding mission. The scope of employing mechanisms under the EAC remains to be explored despite it being a unique regional mechanism. The EAC is the most viable avenue for peacebuilding available to both Kenya and Uganda as the two most powerful

88 Kenneth Wyne Mutuma players in the region. The recent admission of South Sudan into the EAC to boost its regional and economic standing may present an opportunity through which founding members like Kenya can use respect of IHL as a critical element of membership (Nation Reporter, 2016). Kenya also has the option of turning to measures taken in cooperation with appropriate international organisations. For example, it could employ existing mechanisms of IHL under the International Humanitarian Fact-Finding Commission (IHFFC) (API, Art 90). Through Article 90 of API, the IHFFC is authorised to enquire into grave breaches of the GCs and to facilitate the restoration of an attitude of respect for IHL. It should be pointed out however that while third States may call for the involvement of the IHFFC in a specific conflict, an IHFFC enquiry remains subject to the acceptance of the parties to the conflict (Dörmann and Serralvo, 2014, p. 726). Due to this limitation, Kenya may want to consider the use of mechanisms available under other branches of international law such as the UN Human Rights Council and Africa Commission on Human and Peoples Rights. Although the mandate of these bodies is tied to human rights (Doswald-Beck and Vite, 1993, p. 293) they provide an avenue for redress for victims given the complementary protection between IHL and human rights (Dörmann and Serralvo, 2014, p. 726). Kenya may also petition the UN Security Council (UNSC) to refer the situation in South Sudan to the International Criminal Court (ICC) for investigation by the Prosecutor (ICC Project, n.d.). Although South Sudan is not a party to the Rome Statute of the International Criminal Court (Rome Statute), the UNSC remains one of the avenues upon which the ICC can be seized of a matter, as was illustrated in the case of Omar Al Bashir, President of Sudan (The Prosecutor v Omar Hassan Ahmad Al Bashir, ICC-02/05–011/09). While theoretically possible, this avenue is unlikely due to the currently strained relationship between Kenya and the ICC following the unsuccessful indictment of Kenya’s president and deputy president (Silverman, 2016).

Preventing and punishing war crimes The fact that war crimes in South Sudan may qualify as contravention of jus cogens (UN, 2018) means that they are the concern of every state (Diakonia IHL Resource Centre, 2016, p. 4). On these grounds all members of the international community, including Kenya, have a legal interest in ensuring the protection of such rights on the behalf of victims. This is despite the fact that such victims are not their nationals and the State in question has not suffered direct harm as a consequence of the actions of the belligerent parties (Diakonia IHL Resource Centre, 2016, p. 4). In line with their duty under CA1 State parties ought to take measures to prevent and punish war crimes. As several war crimes are alleged to have taken place, it is incumbent on neighbouring States like Kenya to exercise jurisdiction over violations committed by individuals linked to the South Sudanese government or other armed factions. Although these violations have occurred within the territory of South Sudan, violations such as war crimes attract universal jurisdiction (2016 Commentary, para. 2863) such that the courts of every State

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may exercise jurisdiction over the perpetrators of such crimes (2016 Commentary, para. 2863). Irrespective of the nationality of the perpetrator or the territory where the crime was committed, any country can assume jurisdiction to prosecute such crimes. It has been suggested that many of the alleged South Sudanese war criminals move with impunity in Kenya. Although some suggest that prosecuting such individuals may undermine Kenya’s role as a mediator in the conflict, this raises questions around the extent to which the interest of justice can be undermined by the pragmatist view that prioritises the pursuit of peace at all costs. It would be within the rights of a Kenyan national court to try South Sudanese nationals implicated in perpetrating many of the present-day atrocities committed on South Sudanese soil (Weill, 2012). It has been argued that the punishment of such individuals acts as a deterrent as it communicates the idea of a law with “teeth”. This may prevent further violations of IHL by armed factions. However, although Kenya has shown willingness to exercise universal jurisdiction in other instances such as in Attorney General v Mohamud Mohammed Hashi & 8 others [2012] eKLR, a case on piracy, trying of war crimes committed outside of Kenyan soil presents a unique problem when considering the practicability of conducting investigations. The unwillingness of the territorial State to aid in the investigations compounded by lack of a special prosecution unit makes it nearly impossible to exercise universal jurisdiction on war crimes (ICC Legal Tools, 2001). However, these problems can be overcome when the burden of conducting investigations is borne by the international community under the guidance of bodies like the UN (ICC Legal Tools, 2001).

Preventing trade in arms By knowingly serving as a conduit for arms and ammunition flowing into South Sudan, Kenya may indirectly be responsible for the atrocities committed by the parties and thus can be construed as rendering aid or assistance to a party to the conflict. This would be highly plausible where Kenya continues to use its territory for such purposes in violation of the recently imposed UNSC arms embargo and the much older 1995 arms embargo that the European Union has maintained against South Sudan and Sudan (UN News, 2018). If Kenya is found to be complicit in assisting South Sudan to evade these embargos it will attract international responsibility. The importation of the two large shipment of arms by Norinco discussed above (Taylor, 2016) would arguably attract such responsibility although there is a question whether these arms were purchased prior to the present UNSC embargo (Taylor, 2016). Thus far, there has been no evidence of Kenya’s direct military involvement in the conflict. Similarly, while allegations persist of Kenya’s involvement in arms trafficking, no evidence has been offered to support the same (Kelley, 2018). In this regard, the duty under CA1 is relevant since, unlike the negative obligations flowing out of the ASRIWA where third parties must refrain from certain actions, the duty under CA1 imposes positive obligations upon a State like Kenya (ICRC, 2004). Essentially, such obligations demand that Kenya as a party to the GCs

90 Kenneth Wyne Mutuma should undertake actions to ensure that IHL is respected by belligerents operating in South Sudan. CA1 anticipates a responsibility in which Kenya is obligated to take initiatives aimed at stopping and preventing violations of IHL in South Sudan (ICRC, 2004). This responsibility could be enhanced if Kenya ratified the ATT, which specifically prohibits the transfer of arms where there is a serious risk of violations of international human rights law or IHL. This would require a State to assess the potential for such arms to undermine the peace, security and to generally facilitate serious violations of IHL.

Uganda and the conflict in South Sudan Uganda is a party to the major IHL treaties, and has domesticated the GCs (Geneva Conventions Act, 1964). In addition, it also has enacted the International Crimes Act, 2010 which specifically penalises war crimes. Like Kenya, it sits in a position of geographical significance and is currently listed as the number one source of imports to South Sudan (Reuters, 2017). It enjoys rich cultural, economic and political ties with South Sudan (Nicolaisen et al, 2015). Uganda is also host to the largest number of South Sudanese diaspora, many of whom own properties and businesses in the capital city, Kampala (BBC News, 2017). Uganda’s friendly immigration policy has facilitated a situation where many South Sudanese study, work, trade and embed their lives in the fabric of Ugandan society (Deutsche Welle, 2019). In addition, South Sudan’s capital of Juba is home to many business and professional enterprises operated by Ugandan nationals (Lindrio, 2016). Although the actual value of Ugandan investment may be surpassed by Kenya, the number of its nationals in South Sudan has been suggested to be the highest (Lindrio, 2016). Unlike Kenya however, Uganda in the past has been a party to the conflict in South Sudan and not merely a third State. During the Sudanese civil wars 1963– 1972, 1983 and 2005 (BBC News, 2019), it was involved and supported the SPLA against the Khartoum forces, which were allied with Egypt (Taylor, 2016). Ugandan forces had close ties with Sudan People’s Liberation Movement (SPLM) under John Garang, while Khartoum responded by supporting the Lord’s Resistance Army (LRA) rebel group waging war against the Uganda government forces (Taylor, 2016). The CPA in 2005, reinforced relations between Uganda and an autonomous South Sudan, as Uganda saw the region as a buffer against hostile incursions by Khartoum and the rebels it supported (BBC News, 2019). The situation changed with the internal conflict of 2013. Ugandan forces intervened in support of the government of South Sudan and engaged in aerial bombardment that halted rebel advances towards Juba (Nicolaisen et al, 2015). Its forces have also been involved in training South Sudanese forces (Nicolaisen et al, 2015), which precluded its participation as a mediator under the IGAD peace process (although it has engaged in other diplomatic initiatives) (Van Laer, 2018). Although the status of Uganda in South Sudan has evolved to one of a third State no longer involved as a party to the conflict, its past participation in the conflict gives it leverage in terms of the influence that it can bring to bear on the

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government in Juba for the purposes of CA1. Uganda has a close relationship with the government of South Sudan and has fought alongside it in the past 30 years (Nicolaisen et al, 2015). Unlike other neighbouring states, Uganda’s past military involvement has increased its sway over the government in Juba (Taylor, 2016). Its support, or withholding of support, is likely to yield greater impact in terms of ensuring respect by the government of South Sudan as envisaged under CA1. This influence is not limited to the government alone. Although its support for the Juba government has meant that its relations with SPLM – in opposition (SPLMIO) has been poor, from 2014 Uganda has attempted to launch a peace initiative by maintaining contact with both sides and even allowed the SPLM-IO to open offices in Uganda (Taylor, 2016). In particular, the current isolation of Juba by the international community continues to give Uganda considerable influence with all parties engaged in the current conflict.

Measures pertaining to the internal element of CA1 As noted, the involvement of Uganda in the conflict in South Sudan has involved periods where its forces have intervened on the side of the government of South Sudan. At other times Uganda has provided military support through training or facilitating the supply of crucial military arms and equipment (Holland, 2018). The ceasefire (as at the time of writing) is no guarantee that Uganda’s role in this capacity has come to an end as it has in the past mutated from a third State to a party to the conflict when its perceived national interests were at stake. Thus, Uganda will be a party to the conflict should its troops once again cross into South Sudan in support of one of the armed actors involved in the conflict. This would extend to situations where Uganda is indirectly involved (by providing military support or training) where such involvement meets the threshold defined in Tadic and Nicaragua of ‘overall control’ and ‘effective control’ as the grounds for establishing an appropriate nexus of involvement by an external third State and in a non-international armed conflict (NIAC). If Uganda is again drawn into the conflict in South Sudan, the internal components of CA1 come into play. Essentially this addresses the individual State’s obligation to respect IHL by ensuring that its forces, State organs and population conduct themselves in accordance with such respect (Final Record of the Diplomatic Conference of Geneva of 1949, p. 53). In this capacity it is obligated to comply with rules of IHL in its own operations (CIHL Study Rule 139). The precise content of rules applicable would depend upon the classification – whether international or non-international (Zamir, 2017). If Uganda has based its entry on consent obtained from the South Sudan government, it is likely that its engagement will be viewed as part of a NIAC where the rules are extracted from Common Article 3 of the GCs, the provisions of APII and customary international law. Ugandan forces operating in South Sudan would be expected to adhere to these legal requirements in as far as the protection of the victims of armed conflict and the principles governing the conduct of hostilities. This unique relationship as a partner to a conflict – as mentioned above – provides opportunity to encourage respect for IHL by the South Sudanese.

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Preventing South Sudanese from profiting from IHL violations Uganda, like Kenya, maintains close economic ties with South Sudan (Nicolaisen et al, 2015), which can be leveraged to fulfil its positive obligations under CA1. Its intimate socio-economic and political interaction with South Sudanese leaders provide ample leverage for employing forms of punitive bilateral trade and investment measures in order pressurise the administration in South Sudan to comply with IHL (GCIV, Art. 147). Possible measures could include imposing targeted sanctions on individuals implicated in committing atrocities – such as barring or confiscating their acquisition of property, blocking their importation of personal items such as luxury cars (GCIV, Art. 147) and implementing anti-money laundering mechanisms within its local financial institutions in order to prevent their use as conduits of illicit funds (Trusell, 2018). A coordinated and joint approach by South Sudan’s neighbours (in this case Uganda and Kenya) in this regard, may have significant impact on the conduct of commanders (Anyanzwa, 2019). For instance, such financial pressure may occasion better respect for IHL if sanctions are directly linked to respect for IHL.

Peacebuilding One avenue towards fulfilling its duty under CA1 would be for Uganda to exercise meaningful diplomatic pressure upon the government of South Sudan. Its historical position as a major supporter of the government whose military involvement has been credited with enabling the government to retain key positions during its war with the opposition forces, may give it an edge in this regard. Given these close ties, it may be able to engage in discreet communication urging South Sudanese government forces to refrain from IHL violations (ICRC, 2004, p. 3). Such measures if unheeded could be followed with stronger diplomatic actions such as protests with the consulate, recall and expulsion of diplomatic representation and public denunciations generally (against the government as a whole) and specifically (against individuals implicated in atrocities). To date there has been no indication that such diplomatic options have been exercised by Uganda despite their potential to influence the conduct of the parties on the ground (International Crisis Group, 2019) and in particular their likelihood to reduce the scale of atrocities committed by a government that is unwilling to lose a crucial ally.

Preventing and punishing war crimes Based on the principle of universal jurisdiction, Uganda has the right to exercise jurisdiction for crimes amounting to war crimes or crimes against humanity (ICRC, 2004). In this regard, Uganda has had experience in adjudicating crimes of a similar nature committed on its territory by the LRA forces (ICC, 2004a). Its national courts can employ this experience to try suspected perpetrators from South Sudan who have committed similar crimes (Human Rights Watch, 2011). It is important however, that such trials provide an impartial adjudicating platform

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despite Uganda’s past partisan involvement in the conflict and the concerns raised in respect to the contrasting approach taken by its domestic courts when dealing with violations committed by Uganda government forces and those committed by LRA rebels. It is therefore crucial that Ugandan judiciary adjudicating over violations of IHL in South Sudan remain separate from the executive. Failure to do so would undermine the prerequisite for impartiality ingrained in the rule of law and the foundational premise that international justice is aimed at seeking justice, not simply for immediate victims but for the whole international community (Barcelona Traction, para. 33). In addition to its national courts, Uganda has the option of reporting South Sudan to regional and international forums capable of exercising appropriate measures in response to ongoing IHL violations. As both Uganda and South Sudan are members of the EAC, this regional platform could be employed through the peace and security mechanisms, appeal to the East African Court of Justice and in the last resort, suspension as provided by Article 146 and 147 of the Treaty for the Establishment of the East African Community 1977, which allows for a party State to be suspended for failure to observe the fundamental principles of the treaty, of which the protection of human rights is a component. The risk of exclusion from this regional entity and the loss of economic and social standing may be one of the most viable options of incentivising compliance with IHL (Nation Reporter, 2016). Since both Uganda and Kenya are members of the EAC, they could employ a concerted effort towards ensuring compliance. In terms of international interventions, as mentioned earlier in the context of Kenya, this could mean calling upon the IHFFC to enquire into grave breaches of IHL committed and measures that can be taken to facilitate an attitude of respect for the law (API, Article 90). The greatest limitation to the IHFFC is requirement of consent by the parties to its involvement, which may not be forthcoming (Dörmann and Serralvo, 2014, p. 726). In this regard, Uganda could appeal to alternative platforms such as human rights related mechanism (UNHRC and the African Commission Human Rights) to provide the necessary redress for victims given the interlink between IHL and gross violations of human rights (DoswaldBeck and Vite, 1993). Theoretically, it could also petition the UNSC to refer the situation of South Sudan to the ICC (ICC Project, n.d.). Indeed, as a State Party to the Rome Statute, Uganda referred its internal situation with the LRA to the ICC for investigation (ICC, 2004b). Like Kenya, the recent past has seen a change of attitude in Uganda towards the ICC and it is unlikely to exercise this alternative given the obvious duplicity it would stand accused of in being willing to refer a State to a forum it is currently resisting (Silverman, 2016).

Preventing trade in arms and other forms of military support Even with departure of its troops from South Sudan, Uganda has remained close to the conflict by acting as a conduit for the supply of arms and provision of training to the South Sudanese forces (Africa News, 2018). As earlier noted, in certain instances such support may qualify a State to be deemed as a party to the conflict with a nexus to one of the belligerent parties. Such assistance may

94 Kenneth Wyne Mutuma establish the necessary attributable link with IHL violations. While there remains debate on the standard for establishing the nexus, it is doubtful whether Uganda’s involvement at present meets either standard – that laid out by the International Court of Justice’s higher test of effective control in the Nicaragua case or the lower test by the International Criminal Tribunal of the former Yugoslavia of overall control test established in the Tadic case. It is submitted that the operation of SPLM forces remain outside the prompting or directions of Kampala and establishing this nexus may be difficult (BBC News, 2019). Falling outside the considerations of being a party to the conflict means that the external element of CA1 remains important for addressing situations where Uganda aids or assists a faction with arms, which in the end may commission violations of IHL. In these circumstances it is bound by both the negative and positive nature of the obligation under CA1. The negative duties coincide with the obligations derived from ARSIWA and apply to situations where Uganda is rendering aid or assistance to one of the parties to the conflict (ARISWA, Art. 16). To avoid being in breach of its duty in this situation, Uganda should refrain from aiding or assisting a party perpetrating IHL violations where there is reasonable expectation that such support will engender violations. To the extent that Uganda facilitates the supply of arms to SPLM forces, the actions of which are associated with IHL violations, may indicate Uganda’s culpability in this context.

Conclusion The violations witnessed in the conflict in South Sudan, as in the case of many conflicts around the world, are not an indication of the absence of law (indeed South Sudan is a party to the major IHL treaties) but rather a failing when it comes to respect for those laws and the capacity to enforce compliance. This problem is particularly acute in conflicts that revolve around ethno-identities, which subvert the conventional notion of war and its objectives (Medecins Sans Frontieres, 2019). In such conflicts, the deliberate targeting of individuals due to their identity (irrespective of their involvement in the conflict) provides an environment for the pervasive violation of IHL. If not accompanied by effective prevention and enforcement mechanisms this can result in large scale atrocities like those that have been witnessed in South Sudan. In this situation, third States like Kenya and Uganda could play a critical role towards encouraging and ensuring greater respect for IHL rules. In this regard, CA1 foresees an internal and external duty for such States. The external aspects are relevant as they impose a duty upon such States to take measures aimed at increasing IHL respect by the warring parties. This duty is not simply a negative duty reflective of the responsibility that third States attract when they aid or assist another State committing violations of IHL but also includes a positive duty to take steps to stop or prevent such violations in the first place. Positive steps, as noted above, are not tied to the achievement of specific results, although they may require the third State to take actions that indicate due diligence in trying to achieve the desired outcome of ending or preventing IHL violations.

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Kenya and Uganda have a major role to play, because of their political and economic capacity and influence over South Sudan, and arguably have more they could do to discharge their obligations under CA1. This includes engaging diplomatic measures, adopting coercive measures against leaders responsible for how the war is prosecuted and appealing to regional and international mechanisms capable of making appropriate interventions. Furthermore, as neighbouring countries their cooperation is essential if international arms embargos are to be successful. As Kenya is not a State party to the ATT, perhaps CA1 is the most viable avenue to control the flow of weapons to South Sudan through the Kenyan ports. Given the direct involvement that Uganda has had with the conflict in the past, the internal dimension of CA1 that demands compliance of IHL by its forces, organs and population cannot be understated and the influence that Uganda can exert on a partner within a conflict cannot be ignored. While it may be debatable whether the above actions would achieve their desired result, it is important to reiterate that the measure towards discharging the obligation under CA1 is not outcome-based but revolves around demonstrating the willingness to adopt measures to promote respect for the law in line with a given sphere of influence. In taking the above steps, both Kenya and Uganda will have moved closer to discharging the burden presumed under CA1 in relation to South Sudan.

References (additional to the common list) Treaties Geneva Conventions Act, 1964 (Uganda). Geneva Conventions Act, 1968, Chapter 198 of the Laws of Kenya. Proceeds of Crime and Anti-Money Laundering Act, 2009, Chapter 59B of the Laws of Kenya. Treaty for the Establishment of the East African Community, 1977.

Cases Barcelona Traction, Light and Power Company, Limited (Belgium v Spain) (Second Phase, Judgment) [1970] ICJ Rep. 32. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), ICJ, Judgment (Merits), 27 June 1986 [Nicaragua] Prosecutor v Omar Hassan Ahmad Al Bashir, ICC-02/05–011/09 Prosecutor v Tadic, International Criminal Tribunal for the Former Yugoslavia (ICTY) Appeals Chamber Decision on Jurisdiction, 2 October 1995.

Documents Diakonia IHL Resource Centre (2016) Everyone’s Business: Third Party Responsibility and the Enforcement of International Law in the oPt. Draft Articles on Responsibility of States for Internationally Wrongful Acts, November 2001, Supplement No. 10 (A/56/10), chp.IV.E.1, Art. 16. [ARSIWA].

96 Kenneth Wyne Mutuma Final Record of the Diplomatic Conference of Geneva of 1949 (Vol. 2, B, p. 53). (n.d). ICC (2004a) Uganda: Situation in Uganda, (ICC–02/04). The Comprehensive Peace Agreement between the Government of the Republic of the Sudan and the Sudan People’s Liberation Movement/Sudan People’s Liberation Army (2005). The Machakos Protocol, The Agreement Between the Government of Sudan and the Sudanese People’s Liberation Movement/Army Recognising South Sudan’s Right to Self Determination (20 July 2002) [Machakos Peace Accord]. UN (2018) Third report on peremptory norms of general international (jus cogens) by Dire Tladi, Special Rapporteur (12 February 2018) UN Doc A⁄CN.4⁄714.

Secondary sources Africa News (29 November 2018) How Uganda, Sudan Armed factions in South Sudan conflict – Report, available at https://www.africanews.com/2018/11/29/howuganda-sudan-armed-factions-in-south-sudan-conflict-report/. Adeola, O. U. and Segun, J. (2018) The South Sudan War: Causes and Implications for National Integration. AKSU Formal OJ Social and Management Sciences, 1(8), 79–96. Anyanzwa, James (21 April 2019) River of Dollars Flowing From South Sudan Into Kenya, Uganda, The East African, available at https://www.theeastafrican.co.ke/news/ea/ River-of-dollars-flowing-from-south-sudan-into-kenya-uganda/4552908–50808987mpgk/index.html accessed on 5 June 2019. Atieno, Winnie. (9 April 2019) Uganda Remains Biggest Client of the Port of Mombasa, The East African. BBC News (14 April 2019) Sudan Profile- Timeline, available at https://www.bbc.co.uk/ news/world-africa-14095300 accessed on 5 June 2019. BBC News (17 August 2017) Uganda Receives One Million South Sudan Refugees, available at https://www.bbc.com/news/world-africa-40959953 accessed on 3 June 2019. Biel, M. R. (2010). The Role of African & Arab Elites in Building a New Sudan. In After the Comprehensive Peace Agreement in Sudan. Woodbridge, UK: James Currey. Brosche, J. (2019) Ethno-communal Conflict in Sudan and South Sudan. In The Palgrave Handbook of Ethnicity, 1–19. Deutsche Welle (16 May 2019) Uganda’s Unique Refugee Policy | DW | 16.05.2019. DW. COM, available at https://www.dw.com/en/ugandas-unique-refugee-policy/av48747298 accessed on 31 May 2019. Dörmann, K. and Serralvo, J. (2014) Common Article 1 to the Geneva Conventions and the Obligation to Prevent International Humanitarian Law Violations, IRRC, 96, p. 724. Doswald-Beck, L. and Vite, S. (1993) International Humanitarian Law and Human Rights Law, International Review of the Red Cross, 293. Enough Forum (2014) Military Dynamics of South Sudan’s Civil War, 3–6 Gitonga, M. (29 December 2011) New Railway Planned to Boost Lamu-Sudan Link, Daily Nation. Holland, Hereward (29 November 2018) Uganda Helped South Sudan Breach EU Arms Embargo- Monitoring Group, Reuters, available at https://af.reuters.com/article/ idAFKCN1NY0R4-OZATP accessed on 5 June 2019. Human Rights Watch (July 2011) Thomas Kwoyelo’s Trial before Uganda’s International Crimes Division: Questions and Answers.

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IC Joint (2012). Baseline Study on Anti-money laundering and countering the financing of terrorism in IGAD sub region, available at: https://www.files.ethz.ch accessed on 30 September 2019. ICC Legal Tools (2001). Universal Jurisdiction: The Duty to Enact and Enforce Jurisdiction – Chapter Fourteen (Overcoming Obstacles to Implementing Universal Jurisdiction), available at https://www.legal-tools.org. ICC Project (n.d.). How the ICC Works, available at https://how-the-icc-works.aba-icc. org/ accessed on 6 June 2019. ICRC (25–27 June 2004) Improving Compliance with International Humanitarian Law, Background Paper prepared for Informal High-Level Expert Meeting on Current Challenges to International Humanitarian Law, Cambridge. International Criminal Court (ICC) (29 January 2004b) ICC-President of Uganda Refers Situation Concerning the Lord’s Resistance Army (LRA) to the ICC [Press release]. International Crisis Group (13 March 2019) Salvaging South Sudan’s Fragile Peace Deal, available at https://www.crisisgroup.org/africa/horn-africa/south-sudan/270-salvaging-south-sudan-peace-deal accessed on 6 June 2019. Johnson, D. H. (2003) The Root Causes of Sudan’s Civil War. Oxford: James Currey, 184. Jok, J. M. (2018) South Sudan’s Elusive Peace: Between Local Drivers of Violence and the Actions of External Actors In Amir Idris (ed) A South Sudan: Post Independence Dilemmas. New York: Routledge. Kelley, K. J. (2018). Kenya, Uganda Accused of Prolonging South Sudan War. The East African. Kelley, K. J. (13 September 2016) Kiir, Machar Accrue Millions as Conflict Rages in South Sudan, Daily Nation, available at https://www.nation.co.ke/news/africa/Kiir-andMachar-acquire-millions/1066–3378542-format-xhtml-10tyqbj/index.html. Kisero, Jaindi (10 May 2014) Kenya’s Winning Neutral Stance in South Sudan, The East African, available at https://www.theeastafrican.co.ke/news/ea/Kenya-winning-neutral-stance-in-South-Sudan-/4552908–2310244-format-sitemap-eaq2ayz/index.html. Knopf, K. A. (2016) Ending South Sudan’s Civil War, Council of Foreign Relations, available at https://www.cfr.org/sites/default/files/pdf/2016/11/CSR77_Knopf_South%20Sudan.pdf. Kuol, L. (10 April 2018) Sudan, Kenya Discuss Bilateral Relations and Regional Cooperation, Sudan Tribune. Lindrio, P. (2016) Ugandan Traders Start Over After Leaving Business behind in South Sudan, Global Press Journal. Medecins Sans Frontieres (2019). Doctors Without Borders | The Practical Guide to Humanitarian Law, Guide-humanitarian-law.org, available at https://guide-humanitarian-law.org/content/article/3/non-international-armed-conflict-niac/ accessed on 6 June 2019. Mutambo, A. (14 May 2018) Why Kenya will not to impose sanctions on South Sudan Yet Daily Nation. Nation Reporter (2 March 2016) South Sudan Admitted into EAC, Daily Nation, https:// www.nation.co.ke/business/South-Sudan-admitted-into-EAC/996–3100314-acaobi/index. html accessed on 2 June 2019. Ngigi, George (30 June 2013) Kenyan Exports to South Sudan hit Sh25 Billion Business, Daily Africa, available at https://www.businessdailyafrica.com/markets/539552–18997 66-gplaqqz/index.html. Nicolaisen, F., Heggli Sagmo, Tove and Rolandsen, Ostein (23 December 2015) South Sudan – Uganda Relations, the Cost of Peace, Accord.

98 Kenneth Wyne Mutuma Obala, L. M. (2012) South Sudan and Kenya, Aljazeera Centre for Studies, pp. 3–4. Oluoch, Fred (4 February 2018) Kenyan, Ugandan Banks Targeted in Fresh Sanctions on Juba Warlords, The East African, available at https://www.theeastafrican.co.ke/news/ ea/Asset-freeze-South-Sudan-warlords/4552908–4290638-format-sitemap-4puto8z/ index.html. Oluoch, Fred and Asiimwe, Dicta (14 July 2018) All Look to Nairobi to Play Neutral and Finally Seal South Sudan Peace Deal, The East African, available at https:// www.theeastafrican.co.ke/news/ea/Nairobi-talks-South-Sudan-peace-deal/4552908– 4663128-t90da8/index.html. Rajab, Ramadhan (2019). State to Seize Assets of Corruption, The Star Newspaper, available at https://www.the-star.co.ke/news/2019–05-17-state-to-seize-assets-of-corruption-suspects/ accessed on 30 September 2019. Reuters (21 February 2017) Uganda to Import Gold from South Sudan, South Sudan News Agency, available at https://southsudannewsagency.org/index.php/2017/02/21/ uganda-import-gold-south-sudan/ accessed on 3 June 2018. Rolandsen, O. H., and Daly, M. W. (2016). Independent South Sudan. A History of South Sudan, 151–159. Rotich, Henry (13 September 2016) Centre Key in Making Nairobi a Regional Hub Business, Daily Africa available at https://www.businessdailyafrica.com/analysis/ columnists/Centre-key-in-making-Nairobi-a-regional-hub/4259356–337972811860m0/index.html Schomerus, M. and de Vries, L. (2018) A State of Contradiction: Sudan’s Unity Goes South In de Vries, L., Englebert, P. and Schomerus, M. (eds) Secessionism in African Politics. Palgrave Macmillan, 423–454. Silverman, J. (2016) The Justice Conundrum: Africa’s Turbulent Relationship with the ICC. Havard International Law Journal, available at https://harvardilj.org/2019/02/the-justice-conundrum-africas-turbulent-relationship-with-the-icc/ accessed on 6 June 2019. Soderlund, W. C. and Briggs, D. E. (2014) The Independence of South Sudan: The Role of Mass Media in the Responsibility to Prevent. Waterloo, Ontario: Wilfred Laurier University Press, 73. Taylor, M. (2016). From Conflict to Cooperation? Sudan, South Sudan and Uganda. Crisis Group, available at https://www.crisisgroup.org/africa/horn-africa/south-sudan/ conflict-cooperation-sudan-south-sudan-and-uganda accessed on 5 June 2019. Trusell, Jeff (10 June 2018) US-based Group Calls for Action against Money Laundering in South Sudan, Sudan Tribune. UN News (2018) Security Council imposes arms embargo on South Sudan, https://news. un.org/en/story/2018/07/1014622. UN Human Rights Council (UNHRC) (2018) Report of the Commission on Human Rights in South Sudan, (Human Rights Council Thirty-seventh session 26 February– 23 March 2018 Agenda item 4) A/HRC/37/CRP.2. Van Laer, Thijs (November 2018) We Do Not Honour Agreements: Dialogue and Peace Agreements in South Sudan, IRRI. Vhumbunu, Clayton Hazvinei (11 February 2019) Reviving Peace in South Sudan through the Revitalised Peace Agreement Understanding the Enablers and Possible Obstacles. African Centre for the Constructive Resolution of Disputes. Wafula, Paul and Namu, John Allan (7 October 2018) Exclusive: Elites Who Loot South Sudan to Live Large in Nairobi, Standard Digital Media, available at https://www.standardmedia. co.ke/article/2001298144/exclusive-elites-who-loot-south-sudan-to-live-large-in-nairobi.

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Wanjohi, Weston (25 October 2018) Kenya Must Help Juba Must Help Recover Stolen Wealth, Standard Digital, available at https://www.standardmedia.co.ke/business/ article/2001300300/kenya-must-help-juba-recover-stolen-wealth. Washington Post (2016) Kenya Deports South Sudan Opposition Official Despite Threats Against Him, available at https://www.washingtonpost.com/world/africa/kenya-deportssouth-sudan-opposition-official-despite-threats-against-him/2016/11/04/738d2f5a-cca54f2d-ab1db14771ca9f02_story.html?noredirect=on&utm_term=.c268c9baff62. Weill, Sharon (2012) The Role of National Courts in Applying International Humanitarian Law: From Apology to Judicial Activism. Oxford: Oxford University Press. Zamir, N. (20 February 2017). Classification of Conflicts in International Humanitarian Law. Retrieved 5 June 2019, available at https://www.elgaronline.com/view/ 9781785367892/12_chapter2.xhtml.

7

Ensuring respect and targeting Dale Stephens*

Introduction Targeting decisions are among the gravest and most serious decisions that must be made during armed conflict. The Law of Armed Conflict (LOAC) provides multiple legal controls and restraints on the manner in which such targeting can be lawfully undertaken. The designation of targets as lawful, consideration of the means and methods that will then apply to reduce civilian casualties, assessment of the proportionality equation that seeks to balance concrete and direct anticipated military advantage with expected civilian loss and, of course, the overall obligation to exercise constant care, all factor into this complex decision-making calculus. Most international armed conflict (IAC) and a significant number of non-international armed conflicts occur in the context of a coalition of military forces fighting on at least one side. Hence the steps necessary to ensure lawful targeting in a national context alone are amplified significantly when there are other partner States involved in that armed conflict and there is a need to align legal and policy requirements. Into this mix is the obligation to ensure respect of the GCs applicable to armed conflict. This chapter will examine that obligation primarily in the context of coalition (or otherwise referred to as combined) operations. A case will be made that ensuring respect obligations, both in their positive and negative aspects, are actually being realised in contemporary coalition operations. This realisation comes not from a specific application of the ensure respect obligation per se, but rather indirectly, through the requirements of ensuring effective legal interoperability through a combined military action and the maintenance of coalition unity. In advancing this argument, a case will be made that the inherent and unavoidable indeterminacy of the law in conjunction with deeper socio-political factors that animate registers of legitimacy, compel an alignment of legal and policy goals in a coalition force. This, indirectly, results in the exercise of restraint in battlespace targeting. In turn, this effectively realises the values and goals inherent in the ensure respect obligation. The chapter will close with a brief look at the future of warfare and the capacity of *

The views expressed in this chapter are those of the author in his personal capacity and do not necessarily reflect the views of any organisation or entity.

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States to rely upon developments in military capability in the conduct of military operations conducted in outer space to give a greater practical expression to the ensure respect obligation in relation to third-party actors.

Targeting process For professional military forces, engaging in armed conflict particularly in the context of targeting, is a highly calibrated and process-driven exercise. Given the nature of modern weapon systems, the near certainty of joint and combined military action in IAC and the ever-present geopolitical realities of any warfare, it is not surprising that this would be the case. Targeting doctrine of most western countries reflects, in more or less ways, the approach taken by the Australian Defence Force (ADF) in accordance with ADF doctrine as outlined in the Defence Operations Series Publication ADDP 3.14 Targeting, and reference will therefore be made to this doctrine in this section. Broadly speaking, in accordance with Australian military doctrine, targets can comprise objects and persons, including geographic areas, military forces, installations, fortifications, ships, aircraft, tanks, military equipment, a system, individuals and groups. ADDP 3.14 at paragraph 1.7 observes that ‘[t]he importance of a target is dependent on how it relates to an adversary’s critical vulnerabilities and how achieving a desired effect on the target will support achievement of the joint commander’s objectives’. Moreover, ADDP 3.14 at paragraph 1.8, enumerates five specific characteristics for target definition and classification. These characteristics are: physical (what a target physically is), functional (what a target does), cognitive (how some systems think), environmental (the effect of the environment on the target) and time (a targets vulnerability to detention, attack or other type of engagement). All these elements provide the basis for target detection, location, identification and classification for surveillance, analysis, strike and assessment. The conduct of targeting can be undertaken in two main contexts, namely deliberate or dynamic targeting. Deliberate targeting is scheduled and pre-planned, whereas dynamic targeting is unplanned, unanticipated and often encompasses targets of opportunity. Both deliberate and dynamic targeting can be time sensitive (ADDP 3.14 Targeting, 2009, para. 1.13). Consistent with the nature of categorisation already resident within LOAC, the conduct of the targeting planning process anticipates the creation of a number of categories or lists that then guide military action. Hence there is usually a Joint Target List (JTL) that sets out those targets which meet the commander’s objectives and may be engaged (ADDP 3.14 Targeting, 2009, para. 4.15). A Joint Prioritised Target List (JPTL) (ADDP 3.14 Targeting, 2009, para. 4.15) is then often drawn from the JTL to identify the priority of targets to be attacked that meet strategic, operational and tactical goals. There is also the No-Strike List (ADDP 3.14 Targeting, 2009, para. 4.15) that enumerates those targets that are protected under LOAC. Targets may also be placed on the No-Strike List as a result of applicable Rules of Engagement (ROE) and any Chief of Defence Force (CDF) issued Targeting Directive (TD) in relation to a particular operation that

102 Dale Stephens set further policy restrictions on what may be targeted in addition to the restrictions within LOAC. A CDF TD ‘provides direction for the conduct of Defence targeting activities in support of an operation’ (ADDP 3.14 Targeting, 2009, para. 2.6). Importantly, in the context of combined (ie. coalition) military operations, a CDF TD will also provide guidance on how Australia might abstain from the participation in targeting operations as a result of applicable legal obligations, or more critically, where Australia may not be able to ‘sway the coalition consensus’ (ADDP 3.14 Targeting, 2009, para. 7.6) on prosecuting a particular target on broader policy grounds. There is also often a Restricted Target List that outlines particular restrictions on how a target is to be attacked and which also includes an outline of sensitive, but lawful, targets that require particular authorisation at a specific command or political level before such an attack may be executed (ADDP 3.14, Targeting, 2009, para. 4.15). Designation of a target that is outlined on a JTL requires considerable intelligence and operational evaluation. Within the ADF, planning tools including the joint planning process and joint military appreciation process are applied to identify, evaluate and prioritise potential targets in any armed conflict (ADDP 3.14 Targeting, 2009, para. 4.4). Critical to the evaluation of the target development phase is the application of a formal collateral damage estimation methodology (CDE). A CDE is a multi-level classification process that ‘provides the commander with empirically derived collateral damage estimation and mitigation tools designed to support command decision-making and weigh military necessity against collateral damage risk’ (ADDP 3.14 Targeting, 2009, para. 4.16). It is here that particular weapons characteristics, as measured against the specific anticipated target, are assessed using empirical and evaluative models of predicted outcome. Critically, after an attack, doctrine also anticipates an extensive assessment process that is undertaken to evaluate the actual effects of an attack against the planned effects. Such evaluation incorporates battle damage assessment, weapons effectiveness assessment and mission assessment (ADDP 3.14 Targeting, 2009, para. 4.30). It should be clear from the description of the processes above that the operational planning and execution processes mandated by ADF targeting doctrine provide a sound basis for durable and successful compliance with LOAC. Hence placement on a JTL necessarily requires consideration and assessment of the principle of distinction. The CDE process self-evidently implicates proportionality requirements under LOAC. The planning and evaluation process also necessarily invokes precautions obligations and constant care requirements of LOAC. Critically, in addition to these broad operational-legal connections, there is also contained within ADF targeting doctrine a specifically dedicated LOAC compliance mechanism that underpins all ADF targeting, namely the Legal Targeting Appreciation (LTA) process. Hence, ADDP 3.14 makes plain at paragraph 3.32 that in relation to, deliberate targeting, a [LTA] is produced to assist planners in identifying the legal issues applicable to a specific target under consideration for attack. The

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LTA is likely to be produced by a legal officer located at the operational level in conjunction with the target selection process. The LTA will cover compliance with LOAC, the ROE and TD (if issued). In respect of dynamic targeting, there will always have been specific briefings on the ROE and TD to guide in situ decision-making. In fact, LOAC restrictions are built into both the ROE and TD that will have been internalised by the individual ADF member responsible for the execution of the relevant attack. Moreover, there is every likelihood that an LTA may be undertaken in a dynamic targeting context if the opportunity arises (ADDP 3.14 Targeting, 2009, para. 3.34). The layered planning and execution requirements described above ensures that, procedurally, legal considerations are given critical attention and incorporation into the targeting process. The broader question relevant to this chapter however is working out how the obligation to ensure respect may be realised through these processes in the context of coalition operations. This issue requires a deeper analysis of the nature of the obligation and the reconciliation of this obligation with the inevitable indeterminacy of law. While the articulated targeting process incorporates multiple moments of legal input, the broader question of the requirements of the law itself remain unanswered. This fundamental question will be assessed below.

Targeting, indeterminacy and ensuring respect The content of the ensure respect obligation that is reflected in CA1 has been described as comprising both negative and positive obligations (2016 Commentary, pp. 48–60). Regarding the negative obligation, it has been argued that this requires that a State not encourage violations of LOAC nor aid and assist in violations of LOAC by parties to a conflict. More controversially, in respect of the positive obligation imposed by CA1, it has been advanced that a State is under a duty to other States to ‘prevent violations where there is a foreseeable risk that they will be committed and to prevent further violations in case they have already occurred’ (2016 Commentary, p. 52). Without venturing an opinion on the full accuracy of the apparent positive aspect of the obligation, it is nonetheless possible to see a form of operational fusion between these two obligations in the context of combined operations in a time of armed conflict. This fusion manifests itself in a number of formal and informal ways. This is done most particularly in the broader context of achieving a durable legal and military interoperability between forces, which has been a hallmark of combined operations for decades. The need for interoperability is necessary for mission effectiveness in terms of allocation of tasking, including targeting, and hence does require close attention to the legal obligations each contributing State must observe. In addition, however, there is also the requirement to align interpretations of key terms located within LOAC to ensure a fidelity to meaning in the context of coalition operations. This fidelity invokes both legal and policy priorities and is where the ensure respect obligation of CA1 finds effective expression.

104 Dale Stephens LOAC obligations, indeterminacy and interpretation In the formal sense it has been rightly pointed out (Reid, 2016) that when countries have signed and ratified different treaties, it is difficult for one party to assert compliance on another party of terms that are themselves not binding on that other party. Indeed, it may be that the adherence to a norm that is being pressed by one party as part of an ‘ensuring respect’ assertion, may well be the one that was specifically rejected by the other State in not signing nor ratifying a relevant treaty in the first place. In such circumstances, there seems an obvious limit to the extent of any positive obligation to ensure respect that may be pressed. This will normally be manifested in the context of specific weapons systems such as cluster munitions or anti-personnel mines that are prohibited to those parties that have ratified the relevant treaties and not to those who have not (assuming of course the absence of any other customary international legal norm that may apply to prohibit the use of these, or any other, weapon system). Alternatively, it may relate to specific targets themselves, such as the prohibition contained in Article 56 of API relating to attacks on dams, dykes and nuclear electrical generating stations. This prohibition on such target sets is not binding on States that are not party to API, indeed this prohibition contained in API is the reason why some countries, such as the United States, did not ratify API in the first place (Schmitt, 2000, p. 459). On the other hand, when it comes to targeting generally, there is widespread acceptance of the application of many of the requirements for lawful targeting as either manifested in treaty law or under customary international law (CIL), and hence room for an agreed assimilation of meaning. The difficulty in this latter case is navigating the ambiguity and greyness of applicable terms in a manner that ensures effective legal interoperability. Hence, key terms such as ‘military objective’ and sub-elements such as the meaning of ‘nature’, ‘purpose’, ‘use’ and ‘location’ are all subject to margins of appreciation as to meaning. Similarly, broader critical concepts such as ‘proportionality’, ‘precautions’ and ‘constant care’ that are also found in LOAC are also subject to multiple interpretative approaches. In this regard, ensuring respect may not only be viewed in the context of violating the law, but in aligning interpretations of the content of the law, especially when such alignment results in greater humanitarian outcomes consistent with achieving military goals. In a general sense LOAC, specifically in the context of targeting, seeks to reconcile two conflicting visions namely military advantage/military necessity with humanitarian protection/human dignity. These visions are not easily reconciled and hence there is an inevitable competition of approach to resolving outcomes. Such a conundrum leads to an inevitable indeterminacy. This is not of an ontological nature, but rather of a sociological or practical kind. This phenomenon has been interrogated by Luban (2013). He contextualises his approach through deployment of similar but subtly differentiated descriptive terms, namely the ‘LOAC’ and ‘IHL’ to frame his perspective. Critically these are just descriptive terms used by Luban to illustrate his point. They are not legal definitions that he is providing (because the terms are the same as a matter of law) rather they

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are used to express a subtle but key point of differentiation. Hence, the point of these differing illustrative terms is to categorise a more military-favourable interpretative approach by using the mere descriptive terms LOAC as against a more humanitarian emphasis in interpretation by using the mere descriptive term IHL. Under this dichotomy, Luban highlights the methodological approach that might be taken under each heading (emphasising again that these headings are only descriptive terms used by Luban to illustrate his point). Hence, when undertaking a LOAC approach, the interpreter is likely to accord greater weight to the significance of the Lotus case (Lotus 1927) which is resistant to finding implied restrictions on State behaviour. Under this approach, sources of the law such as widely ratified treaties and well accepted statements of CIL are favoured over ‘soft law’. Accordingly, under this approach greater focus is given to ascertaining relevant State practice and the identification of the accompanying opinio juris. Such a perspective draws more heavily upon what States actually do rather than what they say, a point long shared by other authors (D’Amato, 1988, p. 259). In contrast, IHL devotees (under the Luban descriptive formula) are more willing to accept the normative impact of soft law instruments. To be less discerning of identifying relevant opinio juris, and of course less accepting of the significance and interpretative implications of the Lotus case. Under this banner, focus is primarily made on what States say rather than what they do to discern law generative State practice. In adopting such a methodology there tends to be a greater chance of humanitarian priorities being favoured in any interpretative exercise. The clash then is of resolving interpretative contradictions and hence navigating the indeterminacy inherent in the law. Luban (2013, p. 337) notes that the result is practical indeterminacy – not in the sense that anything goes, that any legal answer is as good as any other, but in the more significant sense that the law can be understood through either of two structured systems that stand in opposition to each other. Both have ample support within recognized sources of law; neither is frivolous or tendentious on its face, although, of course, both can be used tendentiously. Luban observes that the methodology that is selected (and both are prima facie acceptable) will necessarily condition the type of legal outcomes thus reached. This claim by Luban about the law, and in particular the law applicable to armed conflict, is not new. Indeterminacy has long been recognised as inevitable and is realised not only through the ambiguity of language, but also in the context of identifying the applicable norm that will govern a particular legal resolution. Despite concerted efforts by early international scholars to construct a unifying model of international legal discourse, the fact is that the law remains porous, fragmented and diffuse. This requires a conscious and self-aware approach to interpretation, accepting that the law and legal method is not innately neutral. McLaughlin, for example, employs context as the variable factor which ensures operational-legal advice is ‘best placed to achieve its anticipated effects’ (2011,

106 Dale Stephens p. 110). Such a rhetorical manoeuvre seeks to overcome issues of practical indeterminacy by truthfully recognising relevant external influences on mission planning and execution. Socialisation of norms and approaches Given the nature of legal indeterminacy described above, achieving successful legal interoperability thus requires alignment, or at least understanding, of the methodological approaches taken to interpretation of LOAC provisions by coalition members as well as accommodation of desired policy outcomes. While States participating in a coalition will always be bound to the legal interpretations that are generated internally through their own national system of legal assessment, there is still often tremendous space in which coalition partners may achieve greater alignment of common goals. Recall in the Australian doctrine publication on targeting there is acknowledgement that while abstention is sometimes required (so called ‘red cards’) because of a specific legal or policy prohibition on targeting, there are also opportunities to ‘sway the coalition consensus’ (ADDP 3.14 Targeting, 2009, para. 7.6). The fact is that while certain countries participating in a coalition may not be bound by applicable treaty provisions that other participants are bound by, there is still the need to preserve the unity of the coalition. This in turn allows scope for swaying consensus (as ADDP 3.14 Targeting, 2009, notes) on the targeting decisions that are made. This point regarding underlying values and the maintenance of a coalition unity has been noted by prominent academic commentators like Schmitt, who observes that lawful, but contentious decisions, regarding targeting are seldom taken. Hence Schmitt observes: Law can even shape war for those not party to a particular normative standard. For instance, Additional Protocol I, which the United States has not ratified, prohibits most attacks on dams, dikes and nuclear electrical generating stations. Despite U.S. opposition to this particular provision, there have been no U.S. attacks on any of these target sets since the Vietnam War; should it conduct such an attack it would be condemned … Apprehension over condemnation certainly influences the policy choice of whether to engage in such strikes … [I]t would be hard to imagine … U.S. forces in a coalition intentionally conducting an operation that would violate Protocol I … if any significant coalition partners were parties to the treaty. The realities of coalition-building and maintenance would simply not allow it. (2000, p. 459) Australian targeting doctrine encourages ADF legal officers in a coalition operation to develop professional relationships with their partner coalition legal advisors in order to understand both legal and policy differences and to seek resolution of these differences where possible (ADDP 3.14 Targeting, 2009, para. 3.41 and 3.42). The differences where resolution may be achieved apply across the entire

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range of LOAC provisions. The inherent indeterminacy of those provisions requires agreement as to meaning be achieved as much as possible in order to allow for the conduct of coalition operations consistent with the law and other applicable national policy stipulations. In relation to the question of interpretative consistency and the maintenance of coalition unity, the key concept term of proportionality provides a useful example of both legal indeterminacy and the need for coalition agreement. Hence approaching the determination and meaning of proportionality enables opportunities for ensuring respect in the conduct of targeting operations. The concept of proportionality finds expression in Article 57 (2)(b) of API and provides that ‘[a]n attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated’ should be cancelled or suspended. The principle is also contained in Article 57(2) (b) of API which is listed under the chapeau of Precautions in attack. The principle of proportionality plainly reflects a legal standard whose factors concerning collateral damage to property and incidental injury to civilians need to be balanced and weighed against anticipated ‘concrete and direct military advantage’. The principle is one that is not easily applied. Dinstein notes that there has always been a fundamental conundrum balancing anticipated military considerations against civilian losses, as they are ‘dissimilar considerations’ (2004, p. 50). Case law in the form of the seminal 2003 Galic trial decision has not been particularly illuminating in ascertaining the thresholds for this test. In that instance, the Tribunal determined that [i]n determining whether an attack was proportionate it is necessary to examine whether a reasonably well-informed person in the circumstances of the actual perpetrator, making reasonable use of the information available to him or her, could have expected excessive civilian casualties to result from the attack (Galic, 2003, p. 58) While reasonableness provides a prima facie satisfactory test, it is also a threshold that can be illusory. Hence, Koskenniemi has noted that all legal terms (like reasonableness) can provide limited definitive guidance and conceptually can operate to elevate the subjective to the objective so as to appear a natural outcome (2005, p. 597). In addition to the flexibility of the reasonableness standard, the appeal case of Gotovina also makes clear that there is no mathematical formula that will apply to any resolution of this key LOAC term (Gotovina (Appeal) 2012). Hence, even with the benefit of a CDE methodology that can provide an estimation of anticipated loss, the determination of whether a particular attack is disproportionate is open to a wide level of discretion. In the absence of any mathematical formula, determinations of proportionality thus turn on questions of justification both under the law and in accordance with broader policy considerations. It is in this context that Ministerial consultation may be undertaken in any

108 Dale Stephens targeting profile; at least where anticipated civilian losses reach a particular threshold. Accordingly, in resolving this apparent conundrum and ensuring continued coalition solidarity, there is a requirement to ensure that an acceptable loss is agreed under both policy and legal limits. This will normally turn on both legal calculation as well as broader considerations of legitimacy, hence ensuring ample opportunity for coalition unity and, indirectly, achievement of a defensible, ensuring respect objective.

Constructivism, virtue ethics and institutional credibility In shaping coalition targeting preferences, and hence ensuring respect, it is becoming clear that deeper questions of identity and cultural commitment to legitimacy can, and do, influence restraint in decision-making under the law (Stephens, 2019). In this context the determination of key legal issues in targeting, such as acceptable proportionality, adequate precautions and the contextual definition of military objective, can derive from such foundations. Such registers of legitimacy manifest themselves through various social-cultural pathways and provide the basis for the exercise of legal discretion. These pathways will be briefly examined below. Constructivism Constructivism is a concept derived from international relations theory that seeks to explain why countries act in the manner they do. Hence the theory provides that national identities are shaped by a prevailing culture that underpins international structures. To this end, international law has a prominent place in the formation of such an identity and contributes towards the application of a logic of appropriateness (as opposed to a logic of consequence) to guide behaviour (Checkel, 1998, p. 326). Under the constructivist mantle, psychological factors can permit ‘shaping’ of perspectives through a conscious and/or subconscious acknowledgement of global military isomorphism (Goldsmith and Levinson, 2009, p. 1828). Constructivism is invoked to explain why LOAC has enjoyed such success. Examples abound of this success in terms of the universal ratification of LOAC treaties, the de-emphasis on reciprocity under LOAC, and the enhancement of legal principles which are based upon ‘elementary consideration of humanity’ (Corfu Channel Case), morality (Kalshoven, 2006, p. 67) and/or interstitial norms (Lowe, 2000, p. 207) that have greater sway in influencing any legal assessment. As a result of constructivism, military forces are imbued with a sense of professional identity that draws on the dictates of the law itself, to shape appropriate behaviour in the context of armed conflict. It allows for the socialisation of perspectives within the battlespace. Additionally, such socialisation also critically occurs outside the battlespace in the context of staff courses, foreign exchanges and the development of iterative engagements with other professional military forces through standing alliances such as NATO and/or through multi-lateral

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military exercises. In these forums and contexts where professional military behaviour is actualised, weapons choice and targeting assessments are rehearsed in accordance with an exemplar of identified professional military behaviour. Virtue ethics Virtue ethics provides another foundation for assessing professional military behaviour and understanding the influences that may shape coalition thinking in the context of approaching legal indeterminacy, especially in the field of targeting. Hence, unlike deontology or utilitarianism, which are forms of external moral guidance ‘where [an] agent has to bring his will and action in line with universal moral laws … or to maximize the common good’ (van Baarda, 2008, p. 3), virtue ethics deals with an internalised code of personal conduct. Osiel notes that ‘virtue is a property of our character, not our relation to others, even if evidenced in such relations’ (2009, p. 352). Osiel points to a form of virtue ethics as the motivating factor that led US Judge Advocate General (JAG) Officers to push back on particularly narrow interpretations of LOAC that were being developed by the Bush Administration during the early years of the war on terror (2009, pp. 329–361). This stance was driven by a sense of perceived erosion of the humanitarian balance represented in LOAC and was also driven by a deeper sense of commitment to professional conduct by the JAG Corps culture. Indeed, epistemic communities exist within military legal cultures in a number of countries, Osiel particularly notes that US JAG Corps’ views concerning the veracity and application of LOAC found receptive audiences in military legal cultures in other countries, especially those from Europe and Australia (2009, p. 349). Institutional credibility The maintenance of public support during the conduct of military operations and thus the retention of institutional credibility is a key goal of modern professional military forces. LOAC includes tremendous licence for the application of destructive power. However, its full exercise is unlikely to be often utilised. Deciding whether something is merely legally colourable in justification of a particular military action may actually threaten reputational damage and this calculation is never lost on military commanders. Questions concerning public support, institutional standing, ethical orientation, selfimage, internal discipline and numerous other inchoate factors are recognised as having crucial impact on military standing. In his assessment of the resistance undertaken by a number of senior US military lawyers to aspects of the Bush Administration’s legal interpretations relating to torture in the war on terror, Hatfield noted, The military lawyers deferred to the law as an accumulation of hard-won institutional wisdom. They believed the law against torture to be a realitybased warning to keep us from being doomed to learn the same lessons (usually referred to as ‘those from Vietnam’) again and again (2006, p. 521)

110 Dale Stephens The Vietnam War and its consequences have had a long-term impact in the institutional memory of military forces that were engaged in that conflict, including Australia. The public controversies that surrounded the deployment and conduct of that war represented a convulsive moment in the historical experience of military forces that were engaged in that conflict. In the decades since, there was an acknowledged need to restore a professional ethos within the military and to renew public trust in the institution of the military. These lessons about the loss of institutional credibility by the armed forces were highlighted in the early 2000s in the wake of the initial reactions to the war on terror that were promulgated by the Bush Administration. This necessarily generated a reaction from those military officers who had served during the Vietnam War era and were committed to ensuring that public trust in the military was never again eroded (Graham, 2009). These views were shared by many serving JAG Officers. In her study of the U.S. JAG Corps response to questionable determinations by the Bush Administration concerning LOAC applicability during the early years of the war on terror, Dickinson observed a culture dedicated to ensuring that the values of the law were maintained and that institutional credibility in the US Armed Forces was preserved (2010, p. 21). Social agency, interpretation and ensuring respect LOAC sets the outer boundaries of permissible behaviour during a time of armed conflict. At the edges of these boundaries the law is unmistakably clear. Hence, for example, no targeting of civilians, no attacking those who are hors de combat and no attacking hospital ships engaged in their normal role. Stepping back from these direct prohibitions, the application of the law becomes less self-evidently clear. Issues relating to proportionality as discussed above, and the manifest reliance upon ‘reasonableness’ is one example of discretionary scope. However, there is a wide range of interpretative variables that, in good faith, apply to condition lawful action across the board. This is manifested in construing terms like ‘feasible’, ‘military advantage’ and ‘direct part in hostilities’ which are central to the lawful application of lethal force in multiple contexts and yet are susceptible to various shades of contextual meaning. This indeterminacy is nothing new and, as Luban has described above, different legal outcomes may be possible based upon orthodox methodological choices made in the interpretative enterprise. Additionally, despite the law providing outer boundaries that distinguishes lawful from unlawful, there is almost always additional internal policy directions that further condition and restrict the application of force during armed conflict. As outlined in above, targeting doctrine and process readily accepts that additional policy constraints will be applied. Hence otherwise lawful targets may well be placed on a No-Strike List or Restricted Target List. In the context of coalition operations which this chapter is focused upon, there is the ever-present goal of ensuring sustainable interoperability between forces. While interoperability is often examined in the context of military systems and equipment, there is also a legal interoperability that must also be achieved for a coalition to remain durable. It is in this context that the ensuring respect

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obligation is best realised. It would be wrong to conclude that interoperability and ensuring respect are the same thing because they are not. Hence, it would also be quite wrong to conclude that when a State lawfully applies force in a targeting context in circumstances where another coalition partner may not do the same action because of an applicable treaty prohibition, that there is somehow a breach of the ensuring respect obligation. However, where there is room for interpretative choice in the meaning of LOAC terms, then there exists the possibility of realising an alignment of common outcomes in a coalition operation. This is done to further effective interoperability and thus indirectly provide a realisation of the ensure respect goals of CA1. In the context of a coalition operation there is significant opportunity for coalition partners to seek to align targeting priorities and also apply particular restraints in targeting. As outlined above, there are multiple socio-political factors that can influence the manner in which a military officer of a particular State may approach the legal interpretative enterprise and also navigate the imposed policy constraints. Issues such as a formed sense of national identity, of the application of virtue ethics and/or goals to maintain public institutional trust may all factor in that determination. There is no clear firewall between these socio-political factors and to some extent there is a level of confluence between all three, however, one or all may ground the approach taken in assessing target choices under the law. It is evident that in the 2003 Iraq War that Australian approaches to targeting did influence the Coalition choices made. Commanding US General Tommy Franks in fact acknowledged that ‘the targeting approach of the total coalition was more conservative than it might have been largely because of the attitude the ADF took’ (as quoted in ADDP 3.14 Targeting, 2009, p. 7–4). Whether this is a manifestation of maintaining coalition unity, realising effective interoperability, an assertion of internal and external legitimacy and/or an expression of the ensure respect obligation, the result is the same which is a particular interpretative and policy approach taken by one coalition partner has a decisive effect on other partners.

The future of warfare and ‘ensure respect’ While LOAC has traditionally focused on land, sea and air warfare, it is becoming abundantly clear that cyberspace (Tallinn Manual 2.0, 2017) and outer space (Woomera Manual) are also likely environments for future possible armed conflict. With respect to space operations, it is notable that the first Gulf War of 1991 is usually cited as the first space war. This is stated not because warfare actually occurred in space, but rather that land, sea and air operations relied so heavily on space assets (Greenemeier, 2016). In a telling statistic, in 1991 during the first Gulf War 8% of munitions were guided by space-based GPS, whereas in 2003 that figure had increased to 62% (Hays, 2013). Space has become a significant enabler for war fighting capacity and also a potential environment itself for the conduct of warfare. Indeed, US Air Force Chief of Staff General David Goldfein has stated that ‘we must expect that war, of any kind, will extend into space in any future conflict, and we have to change the way we think and prepare for that eventuality’ (Klimas and Bryan, 2018).

112 Dale Stephens Space-based assets have numerous military functions including communications satellites; intelligence, surveillance and reconnaissance (ISR) satellites and nuclear early-warning satellites. Unlike the terrestrial domain and the airspace that exists over sovereign territory, there is no national sovereignty of space (Outer Space Treaty 1967 (OST), Article 2). Accordingly, there is no legal prohibition on ISR satellites orbiting over countries and collecting optical, infrared, X-ray or other data from such orbits. In this context, there would seem to be ample opportunity for third State countries to observe apparent violations of LOAC as the result of such ISR satellite surveillance. Already, there are private projects that are undertaking such surveillance to accumulate data for apparent war crimes violation. The Satellite Sentinel Project was one such project that was launched in 2010 with the aim of deterring a return to full-scale civil war in Sudan, as well as deterring and collecting evidence of war crimes. The emergence of both low-cost small satellites and cube satellites promises much in terms of worldwide ISR and the information gathered may prove useful for detecting war crimes and preventing their future commission. Existing mechanisms such as the Fact-Finding Commission established under Article 90 of API, require consent and cooperation in order to undertake any relevant factfinding and their record of success has been modest. In contrast, satellite surveillance can offer independent and real-time data that is not dependent on physical access to territory nor consent from warring parties. Uniquely under international law, Article VI of the OST establishes international responsibility for national activities of States, even when such activities are carried out by non-governmental parties. Hence there is some basis to conclude that States may, through their authorisation of space activities (even if conducted by non-governmental entities), require formal access to ISR information that reveals the commission of war crimes. Upon receipt of such information States may, under the ensure respect obligation, arguably have a positive duty to forward such information to a body such as the ICRC re: humanitarian concerns, or perhaps the International Criminal Court under possible obligations owed to the Court. Such action may be understood as part of States ‘due diligence’ obligations under CA1 (2016 Commentary, p. 53, para. 166). While this is all speculative, it does offer a tangible means through existing technology and a permissive legal regime to advance the ensure respect obligation of the GCs.

Conclusion It has been a theme of this chapter that the ensure respect obligation contained within CA1 does find its realisation in the context of targeting during coalition operations. That realisation is manifested less through a conscious invocation and assertion of the legal obligation under CA1, than through the normal requirements that apply to all combined operations, namely the need for effective legal interoperability. Thus, the inevitable requirement for achieving maximum consistency in legal interpretation is one manifestation of ensuring respect that is

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achieved in the context of coalition operations. The multiple procedures and layers of iterative assessment resident in targeting doctrine and planning stipulations, of the kind represented by ADDP 3.14, provides a bureaucratic type process where differences in a combined operation are identified and then, as constructively as possible, resolved. Hence, the self-imposed restraint that applies to ensure interoperability and sustain the unity of the coalition acts to ensure a workable consensus of targeting priorities and limitations. Strict lawful exceptions and discretions that are possible under differing treaty obligations in armed conflict are always conditioned by policy dictates, but also by deeper registers of socio-political motivation that act to ensure a sense of internal and external legitimacy. Hence, the ensure respect obligation is effectively realised through the imperatives that are applicable in maintaining the focus and ultimate success of coalition operations. Such military and political incentives may, paradoxically, prove a more durable foundation for ensuring respect than an externally imposed legal obligation that itself may be subject to clever interpretative deconstruction and possible marginalisation.

References (additional to the common list) Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, 27 January1967, 18 U.S.T. 2410, T.I.A.S. No. 6347, 610 U.N.T.S. 205 [Outer Space Treaty].

Cases Corfu Channel Case U.K. v. Albania, 1949 ICJ, 4. Prosecutor v Stanislav Galic, (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber, Case No IT-98–29-T of 5 December 2003). Prosecutor v Ante Gotovina, Ivan Cermak, Mladen Markac (Appeals Chamber), (International Criminal Tribunal for the Former Yugoslavia, Appeals Chamber, Case No IT-Case No. IT-06–90-A of 16 November 2012). The Case of the S.S. Lotus (France v Turkey) P.C.I.J. Ser. A. No 10, 1927.

Secondary sources ADDP 3.14 Targeting (2009) found at: http://www.defence.gov.au/foi/docs/disclosures/021_1112_Document_ADDP_3_14_Targeting.pdf. D’Amato, A. (1988) ‘The Theory of Customary International Law’, 82 Am. Soc’y Int’l Proc (1988) 242–260. Checkel, J. T. (1998) ‘The Constructivist Turn in International Relations Theory’, 50(2) World Politics 324–348. Dickinson, L. (2010) ‘Military Lawyers on the Battlefield: An Empirical Account of International Law Compliance’, 104 AJIL 1–28. Dinstein, Y. (2004) The Conduct of Hostilities Under the Law of Armed Conflict. Cambridge: Cambridge University Press.

114 Dale Stephens Goldsmith, J. and Levinson, D. (2009) ‘Law For States: International Law, Constitutional Law, Public Law’, 122 (7) Harvard Law Review 1791–1868. Graham, D. (2009) ‘A Long, Hard Fall from the Pedestal’, 54 Joint Force Quarterly 30. Greenemeier, L. (8 February 2016) ‘GPS and the World’s First “Space War”’ Scientific American’, available at: https://www.scientificamerican.com/article/gps-and-theworld-s-first-space-war/. Hatfield, M. (2006) ‘Fear, Legal Indeterminacy, and the American Lawyering Culture’, 10 Lewis and Clark Law Review 511–529. Hays, P. (2013) ‘A Day Without Space: Economic and National Security Ramifications’, available at: http://marshall.org/wp-content/uploads/2013/08/Day-without-SpaceOct-16–2008.pdf. Kalshoven, F. (2006) ‘The Respective Roles of Custom and Principle in the International Law of Armed Conflict’, 2 Acta Societatis Martensis, 48–68. Klimas, J. and Bryan, B. (April 2018) ‘Space War is Coming – and the U.S. is not Ready’, Politico at https://www.politico.com/story/2018/04/06/outer-space-war-defenserussia-china–463067. Koskenniemi, Martti (2005) From Apology to Utopia Cambridge: Cambridge University Press. Lowe, V. (2000) ‘The Politics of Law-Making: Are the Method and Character of Norm Creation Changing?’ in Michael Byers (Ed.) The Role of Law In International Politics Oxford: Oxford University Press. Luban, D. (2013) ‘Military Necessity and the Cultures of Military Law’, 26 Leiden Journal of International Law, 315–349. McLaughlin, R. (2011) ‘“Giving” Operational Legal Advice: Context and Method’, 50 Military Law and Law of War Review 99–125. Osiel, M. (2009) The End of Reciprocity Cambridge: Cambridge University Press. Reid, John. (2016) Ensuring Respect: The Role of State Practice in Interpreting the Geneva Conventions, ILA Reporter http://ilareporter.org.au/2016/11/ensuringrespect-the-role-of-state-practice-in-interpreting-the-geneva-conventions-john-reid/. Satellite Sentinel Project available at: http://www.satsentinel.org. Schmitt, M. (2000) ‘The Law of Armed Conflict as Soft Power: Optimizing Strategic Choice’, 75 International Law Studies, 455–482. Schmitt, M. and Vihul, L. (eds) (2017) (2nd ed) The Tallinn Manual 2.0 on the International law Applicable to Cyber Operations Cambridge: Cambridge University Press. Stephens, D., (2019) ‘Roots of Restraint in War: The Capacities and Limits of Law and the critical Role of Social Agency in Ameliorating Violence in Armed Conflict’, 10 Journal of International Humanitarian Law 58. The Woomera Manual on the International Law of Military Space Operations https://law. adelaide.edu.au/woomera/home [Woomera Manual]. van Baarda, Th. A. (2008) ‘Moral Ambiguities Underlying the Laws of Armed Conflict: A Perspective from Military Ethics’, 11 Yearbook of International Humanitarian Law 3.

8

Weapons and the obligation to ensure respect for IHL* Eve Massingham

Introduction IHL places restrictions on the means and methods of conducting warfare, and in particular, on the types of weapons that can be employed by warring parties. There are two aspects to this: general restrictions within the GCs and APs and restrictions specific to certain types of named weapons within several other international treaties. The core legal framework of IHL, the GCs, and specifically AP1 thereto, adopts a principled approach to ensure that weapons with particular consequences are prohibited. While not specifically naming weapons or categories of weapons, API notes that ‘methods or means of combat which cannot be directed at a specific military objective’ are prohibited (Art. 51(4)). This principle of distinction forms part of customary IHL and is applicable in both international and non-international armed conflicts (CIHL Study Rule 1). API also prohibits ‘weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering’ and those ‘methods or means of warfare which are intended, or may be expected to cause widespread, long-term and severe damage to the natural environment’ (API, Art. 35). In addition, since the late 19th century, weapons-specific legal frameworks have been developed to place precise restrictions on certain types of weapons. These include prohibitions on chemical and biological weapons, anti-personnel mines, cluster munitions and more recently – although not yet in force – nuclear weapons. Some of these specific weapons treaties also go beyond the general prohibitions on use within the GCs and APs to provide for elimination of these weapons through prohibitions on production, acquisition, stockpiling and transfer of the weapons. A number of these treaties (most notably the anti-personnel mines treaty) also consider the humanitarian impact of the past use of these weapons by making provisions for the removal of unexploded ordnance and for compensation to victims.

*

This chapter draws significantly on work undertaken for the authors PhD thesis: The obligation to respect and to ensure respect in all circumstances pursuant to Common Article 1 of the Four Geneva Conventions of August 1949 and Additional Protocols I and III: An Australian Weapons Law Perspective (University of Queensland, 2016).

116 Eve Massingham There are a number of actions that States can, and do, take to respect and ensure respect for IHL in relation to weapons used or produced by those actors within their control and/or influence. In fact, the means and methods of warfare selected by a party to a conflict play a significant role in whether that party is able to respect and ensure respect for IHL. The connection between weapons law and ensuring respect for IHL has been made particularly clear in the last 20 years. In 2003, the States party to the GCs adopted Final Goal 2.3 – Reduce the human suffering resulting from the uncontrolled availability and misuse of weapons at the 28th International Conference of the Red Cross and Red Crescent, which directly linked CA1 to controls on weapons. In February 2014, Juan Manuel Gomez Robledo, Deputy Minister of Foreign Affairs of Mexico and Chair of the Second Conference on the Humanitarian Consequences of Nuclear Weapons, spoke about the need to conclude a legally binding instrument prohibiting the use of nuclear weapons. He noted ‘[i]n our view, this is consistent with our obligations under international law, including those derived from the [Non Proliferation Treaty] as well as from CA1 to the Geneva Conventions’ (Speech delivered at the Second Conference on the humanitarian impact of nuclear weapons, Nayarit, Mexico, 14 February 2014). Dörmann and Serralvo (2014, pp. 732–735) also make strong linkages between CA1 and the Arms Trade Treaty (ATT). It is clear from this chapter, but also from other contributions to this book, that some actions can simultaneously support respecting and ensuring respect for IHL, containing internal-compliance aspects but also an outward-facing, external-compliance element. Steps that States take to respect IHL are often necessary to equip that State to credibly and successfully assist other States to respect IHL (ie. ensure respect). This is very clear when we examine States’ responses to weapons and IHL. What it means to respect and ensure respect for IHL will be discussed in relation to five aspects with respect to weapons. Each aspect is undertaken to respect IHL internally but has, to varying degrees, broader external-compliance and norm-setting implications. First of all, the obligation to undertake a legal review of weapons and their compatibility with IHL; secondly, the conduct that States must adopt as parties to specific weapons treaties – such as the requirement not to assist other States to violate that treaty; thirdly, the importance of appropriate IHL training and IHL-inclusive policies around weapons when deployed; fourthly, the development of import/export controls for weapons and associated materials; and finally, the prosecution of individuals violating weapons laws.

Weapons reviews A key element of the obligation in CA1, in so far as it pertains to the approach of States to the use of weapons in armed conflict, is the requirement to conduct a legal review of weapons to ensure IHL compliance. Article 36 of API provides:

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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. While Article 36 is only binding on States party to API, it has been argued that the concept behind it, that States conduct a legal review to ensure their weapons comply with IHL, constitutes a customary international law obligation binding on all States (see further Blake and Imburgia, 2010, pp. 163–166; Boothby, 2009, p. 341). It is a concept that has attracted increasing attention considering the challenges that technological developments such as cyber warfare, autonomous weapons, non-lethal weapons and nanotechnology are posing for IHL principles (Backstrom and Henderson, 2012, p. 483). It is, however, an idea that has not been well implemented by most States to date (ICRC, 2006, p. 5). The 1987 Commentary to API notes that when adopted, Article 36 was quite contentious. Some States asserted its inclusion be a condition precedent to their acceptance of the treaty as a whole, while other States felt it an inappropriate clause in so far as it ‘seemed to imply disarmament’ – an issue outside the scope of the treaty negotiations (APs Commentary, p. 422). The idea for the facilitation of compliance with Article 36 was originally that a Committee of State Parties be established to consider the legality of the use of new weapons. However, this proposal did not gain the required two-thirds majority and was not incorporated into the Protocol (APs Commentary, pp. 422–423). A predecessor of sorts to the Article 36 concept can be found in the St Petersburg Declaration (1868): [t]he Contracting … Parties reserve to themselves to come hereafter to an understanding whenever a precise proposition shall be drawn up in view of future improvement which science may effect in the armament of troops, in order to maintain the principles which they have established, and to conciliate the necessities of war with the laws of humanity. Hays Parks (2005, p. 57) also asserts that the good faith obligation with respect to treaties would have obliged State parties to various IHL instruments to ensure that those military weapons and munitions used by the respective States were compliant with the laws, and as such Article 36 codified an existing good-faith obligation. The APs Commentary (p. 423) further notes: [t]his obligation was defined by the Rapporteur of Committee III as follows: The determination of legality required of States by this article is not intended to create a subjective standard […]. Determination by any State that the employment of a weapon is prohibited or permitted is not binding internationally, but it is hoped that the obligation to make such determinations

118 Eve Massingham will ensure that means or methods of warfare will not be adopted without the issue of legality being explored with care. […] A State is not required to foresee or analyse all possible misuses of a weapon, for almost any weapon can be misused in ways that would be prohibited. Two further points made in the APs Commentary include that States are not obliged to make their Article 36 findings public (APs Commentary, p. 423) and that the obligation concerns the normal use of the weapon (and not any possible misuse) (AP Commentary, p. 427; see also Blake and Imburgia, 2010, pp. 163– 166; Boothby, 2009, p. 341). There is no agreed format for the conduct of Article 36 reviews (in Chapter 19 of his book Boothby (2009) outlines a suggested approach) and although many suggest an independent and objective system of review would be the best approach, States have not been interested in such an approach to date (Dinstein, 2004, p. 80; Jevglevskaja, 2018, p. 199). Over the years the ICRC has taken a number of measures in an attempt to encourage States to adopt formal systems for compliance with Article 36. The 27th International Conference of the Red Cross and Red Crescent in 1999 and the 28th Conference in 2003 both ‘called on states to establish mechanisms and procedures to determine the conformity of weapons with international law’ (Lawand, 2006, p. 926). The 2006 ICRC publication, A Guide to the Legal Review of New Weapons, Means and Methods of Warfare, was designed to assist States to establish weapons review mechanisms. It looks at both the interpretation of Article 36 as well as providing some guidance for States as to the procedural issues which need to be considered in having a legal review. Lawand (2006, p. 927) notes that: The obligation to review the legality of new weapons implies at least two things. First, a state should have in place some form of permanent procedure to that effect, in other words a standing mechanism that can be automatically activated at any time that a state is developing or acquiring a new weapon. Second, for the authority responsible for developing or acquiring new weapons such a procedure should be made mandatory, by law or by administrative directive. Other than these minimum procedural requirements, it is left to each State to decide what specific form its review mechanism will take (Lawand, 2006, p. 927). However, to date this method of regulation has proved somewhat lacking in effectiveness as only a handful of States have such mechanisms in place (ICRC, 2006, p. 5; Boothby, 2009, p. 341; McCormack, 2006; Jevglevskaja, 2018, p. 209). The respect part of this obligation would appear to be clear: States must undertake this analysis. The ensure respect part of the obligation has a number of potential aspects to it. States could share their weapons reviews. While there may be sensitive military and security information in some aspects of some reviews, this will not always be the case, and certainly aspects of them could be shared to contribute to an understanding of and a culture of compliance with Article 36. States could also support other States in conducting Article 36 reviews. This could

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include sharing expertise on processes and procedures to enable such reviews to be undertaken or the exchange of staff to support capacity building. Some information about processes and procedures was shared with the ICRC by States for the purposes of the creation of their 2006 Guide to the Legal Review of New Weapons, Means and Methods of Warfare, and there is a significant amount of academic writing about this topic (Boothby, 2009, chapter 19; Coupland, 1999; Daoust et al, 2002; Blake and Imburgia, 2010; Oswald, 2001). Guidance is also found in the Nuclear Weapons (Advisory Opinion). However, it is not a topic States have been overly forthcoming on, nor overly engaged with. In addition, States could regulate weapons manufacturers within their jurisdictions and require that Article 36 (or similar) analysis processes be undertaken by the manufacturers directly so that they do not develop weapons that are in violation of weapons law provisions. States could also do more to promote the idea that the means and methods of warfare are not unlimited. This is particularly the case in relation to the current discourse on new weapons technologies, including drones, cyber warfare, and the increasing automation of warfare. New weapons technologies pose some questions about how their use can ensure compliance with the rules of IHL. It may be that the development of some of these technologies results in specific treaties or agreements that clearly articulate the application of IHL principles to their use. In the meantime, the value and significance of Article 36 of API is very clear. It is through promoting both the application of existing IHL principles to new weapons technology and legal review processes that States can demonstrate compliance with their CA1 obligations to respect and ensure respect for IHL in the weapons law field.

Specific weapons treaty obligations Weapons treaties include a wide range of obligations that States party have in relation to third States. In order to ensure respect for IHL, States’ obligations may include encouraging States to adopt the treaty; supporting States in meeting their obligations under that treaty; and refraining from encouraging other States to act in violation of the treaty. Article 6(1) of the Anti-personnel Mine Ban Treaty notes that ‘each State Party has the right to seek and receive assistance, where feasible, from other States Parties to the extent possible’. Further, Article 6(3) requires that States ‘in a position to do so shall provide assistance for the care and rehabilitation, and social and economic reintegration, of mine victims and for mine awareness programs’ and ‘assistance for mine clearance and related activities’. Article 6 of the Convention on Cluster Munitions (CCM) requires States to provide technical, material and financial assistance, including assistance with the implementation of the Convention, to State parties affected by cluster munitions. Similar provisions can be found in, for example, Article 7 of the Treaty on the Prohibition of Nuclear Weapons; Article 8 of Protocol V to the Convention on Certain Conventional Weapons; and Article 11(3) of Protocol II to the Convention on Certain Conventional Weapons as amended.

120 Eve Massingham A particularly interesting aspect from a CA1 perspective is Article 21 of the CCM. Article 21(1) of the CCM requires States to ‘encourage States not party to this Convention to ratify, accept, approve or accede to this Convention’. Article 21 further provides: Relations with States not party to this Convention … 3 Notwithstanding the provisions of Article 1 of this Convention and in accordance with international law, States Parties, their military personnel or nationals, may engage in military cooperation and operations with States not party to this Convention that might engage in activities prohibited to a State Party. 4 Nothing in paragraph 3 of this Article shall authorise a State Party: (a) (b) (c) (d)

To develop, produce or otherwise acquire cluster munitions; To itself stockpile or transfer cluster munitions; To itself use cluster munitions; or To expressly request the use of cluster munitions in cases where the choice of munitions used is within its exclusive control.

This provision is concerned with ensuring that State parties, when working with counterparts from States not signatory to the CCM, will not be acting in violation of the convention if those counterparts use cluster munitions in their operations. A fairly broad interpretation of this provision has been taken in some jurisdictions (see Box 8.1 regarding Australia). The ICRC has expressed the view that domestic implementing legislation which would ‘permit the armed forces to be directly involved in the use, possession and transport of cluster munitions taking place in the context of military cooperation and operations’ is of increasing concern to the fulfilment of the objective ‘to put an end for all time to the suffering and casualties caused by cluster munitions’ and the universality of the CCM (ICRC, 2012).

Box 8.1 Australia and the Convention on Cluster Munitions (CCM) The interoperability component of Article 21 of the CCM lies at the heart of the Australian approach to the CCM. Australia has enacted domestic legislation through the Criminal Code Amendment (Cluster Munitions Prohibition) Act 2012 (Cth) to implement its international obligations under the CCM. The implementation of this legislation was not without controversy. The approach taken creates tension with the obligation to respect and ensure respect for IHL under CA1, as well as the CCM itself. The implementation of the interoperability provisions in Article 21, through section 72.41 of the Act and the provisions in section 72.42 of the Act, means that Australia can support the use of weapons by other States which do not comply with IHL principles and specifically permits the presence of cluster munitions on a military base, an

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aircraft, or ship in Australian territory by foreign nationals of non-State parties. The effect of this is to allow countries that are not party to the CCM to use Australian soil to stockpile, retain, or transfer cluster munitions. In taking this approach, no distinction is made by Australia as to whether those weapons stockpiled, retained, or transferred on Australian soil are lawful or inherently unlawful weapons. Taylor (2011) asserts that without Article 21(3) Australia may not have joined the CCM because it would have limited the ability of the Australian Defence Force to operate with coalition partners. Shifrin (2011) writes: Australia wants to be able to fight with US forces wherever and whenever … If that means allowing Australian officers … [to] sometimes plan operations involving the use of cluster munitions or … assist US military personnel transporting cluster munitions so be it. The Cluster Munitions Coalition noted that Australia took up the task of trying to assist other nations to continue to use cluster munitions (2005). In this regard, Australia cannot be said to have lived up to its obligation under CA1 to ensure respect for IHL ‘in all circumstances’. Australia, as a coalition partner with other States in a number of military operations, has capacity and influence over its coalition partners in relation to cluster munitions use. This is because Australian policies can make it either harder or easier for third party States to use these weapons when operating with Australians. Australia’s approach here has been dissected further in other chapters – see particularly in Chapter 4 of this volume where Pratt noted that the Australian Foreign Affairs Committee accepted the implementing legislation despite concerns about these provisions. In this way, Australia has not sought to exercise this influence in accordance with its legal obligation under CA1. (Although the view of Stephens in Chapter 7 of this volume is also noted where he gives examples of Australian attitudes to targeting decisions influencing, in particular, the US to take a more ‘conservative’ view.) Had Australia considered CA1 in its approach to Article 21, it could have worked to respect and ensure respect IHL by arguing for an amendment of Article 21. A clarification that Article 21 only applied in circumstances where the cluster munitions being used by the non-State party were not the sort of cluster munitions that fell foul of compliance with principles of IHL, regardless of the CCM definition of cluster munitions, would have been appropriate. Instead, no specific reference is made in Article 21 to compliance with the principles of IHL. This therefore arguably allows Australia (as well as other States party to the CCM) to assist third States to deploy weapons which breach the rules of IHL, preventing those non-State parties from being hampered by the existence of the CCM in their use of cluster munitions.

122 Eve Massingham The ATT, which is a different creature to the weapons prohibition treaties mentioned, has a very significant ‘ensure respect for IHL’ aspect. The ATT seeks to preclude conventional arms – including small arms and light weapons and their ammunition – from ending up in the hands of actors who may use those weapons in violation of international law. Potential violations may include using those weapons to commit war crimes, crimes against humanity, crimes against peace or other serious human rights abuses, such as sexual and gender-based violence. It is not a treaty designed to prohibit the possession of or use of any particular type of weapon or ammunition, but rather to prevent transfers and diversion of such equipment to those who have a propensity to use them in violation of international law. It requires States transferring weapons to conduct a risk assessment against strict criteria to analyse the likelihood of such violations resulting from the arms transfer. States must not authorise transfers where such acts will occur (Art. 6), nor where there is an overriding risk that they might (Art. 7). As such, through effectively implementing Articles 6(3) and 7, States are helping to ensure respect by denying access to weapons that would be used to violate IHL. Indeed, IHL was considered as an obvious inclusion in the ATT by many States by virtue of the CA1 obligation (Dörmann and Serralvo, 2015, p. 733). The very existence of the Treaty on the Prohibition of Nuclear Weapons, and the support by the 122 States who voted in favour of it, including the current 81 signatories and 36 State Parties (UN – Status of the Treaty – as at May 2020), is an example of both respecting and ensuring respect for IHL. As stated above, the rules of IHL prohibit the use of weapons that have indiscriminate effects (API, Art. 51); cause superfluous injury or unnecessary suffering (API, Art. 35(2)); and/ or are intended, or may be expected, to cause widespread, long-term, and severe damage to the natural environment (API, Art 35(3)). Nuclear weapons have generated much controversy in this regard, but the prevailing view is that they violate all of these three principles. It is acknowledged that this statement may have previously been able to be questioned in light of the 1996 finding by the International Court of Justice (ICJ) that while: the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law … the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake. (Nuclear Weapons (Advisory Opinion) [105]) However, it is no longer possible to maintain the argument that these weapons could be lawful in any circumstances under IHL, considering the extensive evidence available today, on all aspects of health, environmental, climate, and emergency response capacity. This has been made very apparent to the international community through the process of three international conferences on the Humanitarian Impacts of Nuclear Weapons held during 2013 and 2014 in Oslo, Nayarit and Vienna.

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The design feature of nuclear weapons, and indeed reason for existence, is to have a magnitude to their explosion thousands of times greater than that caused by conventional weapons (Siracusa, 2008, p. 5). The United States Strategic Bombing Survey of the Effects of the Atomic Bomb on Hiroshima and Nagasaki (United States Government, 1946, p. 6) which provides an assessment of the impact of a “small” nuclear weapon by today’s standards, provides conclusive evidence of this, in so far as their effects cannot be contained in space or time. In addition to being unable to discriminate between soldiers and civilians, they also cause unnecessary suffering to combatants and their health effects are clearly intergenerational. They also destroy or degrade the environment – causing widespread, long-term and severe damage to the environment.1 As such, States that support the prohibition on nuclear weapons make a clear contribution to the notion of ensuring respect for IHL by ensuring these weapons do not exist in order to violate IHL. The development of new weapons technologies may pose challenges in terms of the application of the principles of IHL. What is imperative is that these principles continue to be applied to new weapons technologies and not compromised because the technology may not fit neatly into the conceptions States, militaries and international humanitarian lawyers have about rules. The rules were designed 1

Although, this was a case of the weapons being directed against civilians, even if the weapons were directed only at a very remote military location, because of the inability to contain the radioactive fallout material which is highly likely to extend across international boundaries and impact on precipitation and contaminate soil, they will have impacts which continue for generations and which cannot distinguish between military and civilians (McKinzie, 2014; Australian Red Cross, 2011). There can be no serious argument about whether nuclear weapons cause superfluous injury and unnecessary suffering. The ICJ noted that horrendous suffering is not necessarily unnecessary suffering (Dissent of Justice Higgins, Legality of the threat or use of nuclear weapons (Advisory Opinion) [1996] ICJ Rep. 585). Effects of the weapon clearly included massive numbers of immediate deaths (from the explosion and from collapse of buildings and flying debris) and also some 20–30% of the population experiencing burn injuries (United States Government, 1946, p. 15). The radiation diseases, including blood cancers, which continue to cause unnecessary suffering to the Japanese population and those victims of nuclear testing put this weapon in a class of its own. The US concluded in 1946 that the radiation negatively affected reproduction and ‘[o]f women in various stages of pregnancy who were within 3,000 feet of ground zero, all known cases have had miscarriages’ (1946, p. 19). Causing intergenerational health effects constitutes suffering which is unnecessary – and this applies equally to civilians and to military personnel (whom the prohibition on unnecessary suffering is intended to protect). This is because conventional weapons could also achieve the military objective, without causing intergenerational suffering. Comprehensive health information about the effects of radiation, including its disproportionate effects on women and children are now known such that the unnecessary suffering is clearly identifiable (Olsen, 2006). Studies have shown alarming consequences for the environment, global climate, rainfall, temperatures and food production from modelling of a ‘small scale’ nuclear war (Australian Red Cross, 2011). The ability for the civilian population to use the environment to provide for the necessities of life is compromised by nuclear fallout for generations and as such these weapons fall foul of this principle.

124 Eve Massingham to be adaptable to a range of technological developments in weaponry and have application to all technologies discussed in this chapter. In order to respect and to ensure respect for IHL, it is imperative that legal weapons review processes are applied to these weapons and that States ensure that IHL underpins their thinking about these weapons.

Military training and military manuals, doctrine and policy Dissemination of the rules of armed conflict is the obligation of all governments pursuant to the GCs and APs. States must disseminate the texts as widely as possible, including to military and medical personnel, ‘so that the principles thereof may become known to the entire population’ (GCI Art. 47; GCII Art. 48; GCIII Art 127; GCIV Art. 144; API Art. 83; APII Art. 19). This includes the rules on the means and methods of warfare articulated therein. Further, pursuant to API Article 82, State parties are required to ‘ensure that legal advisers are available, when necessary, to advise military commanders at the appropriate level on the application of the Conventions and this Protocol and on the appropriate instruction to be given to armed forces’. Military doctrine must also be reflective of compliance with IHL. These are clearly articulated provisions that go to the obligation to respect IHL. But third States can also use their capacity and influence with other States – including in partnered warfare operations – to improve IHL compliance through exporting military training and military manuals, doctrine and policy that are IHL compliant. As Droege and Tuck (2017) point out, in relation to partnered operations ‘States can take concrete steps to ensure respect for IHL’ when they: train and instruct the Parties to armed conflict on IHL and other relevant laws and standards; monitor their partners’ conduct, including through joint, afteraction reviews, and assist them to develop and implement robust processes for accountability in case of serious violations of IHL; share and develop best practices and learn, as necessary, from one another’s mistakes; encourage the Parties to engage with neutral, impartial humanitarian organizations. An extension of this is that joint training exercises can be a key contributor to ensuring respect. They allow States the opportunities, outside the theatre of war, to resolve any complications involved in fighting together. If the parties have differing legal obligations, through joint training States may be able to use their capacity and influence to hold all parties to the highest standard possible. The practice of States additionally tends to include allowing States not specifically involved in an exercise to participate or observe an exercise (Department of Defence (Australian Government), 2019) such that this could also be an opportunity to contribute further to ensuring respect. As Stephens discusses in more detail in Chapter 7 of this volume, doctrine should encourage officers in a coalition operation ‘to understand both legal and policy differences and to seek resolution of these differences where possible’ (p. 106). This applies across many areas of military conduct, including the choice of weapons of warfare.

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States not in a formal fighting partnership, but who have ongoing relations, may also assist others to disseminate IHL information. This allows the assisting State to ensure respect for IHL by supporting another State and may contribute to the doctrine of respect for IHL within the receiving State. This mutual support may be facilitated through military exchange programs which regularly see military personnel seconded to other nations. For example, the US Department of Defense reports on exchanges ‘designed to support overall U.S. policy and strategy toward China. They are carefully tailored to clarify and develop areas of cooperation where it is in our mutual interest and to manage and reduce risk’ (Department of Defense (United States), 2018). Focusing on the dissemination of IHL as part of the objectives of such exchanges would be another example where the actions of third States to ensure respect for IHL improves the prospects of States caught up in conflict to respect IHL.

Import and export controls on weapons and weapons development materials States should also consider the legality of any weapons that they export in line with the obligation to respect and ensure respect for IHL (Daoust et al, 2002, p. 342). Given the centrality of weapons to the conduct of armed conflict, it is important for the fulfilment of a State’s CA1 obligations that it is not facilitating the use of inherently unlawful weapons by third States through its imports and exports. This topic is one that has attracted international attention in light of the humanitarian crisis in Yemen with a number of countries accused of selling weapons to parties accused of war crimes. In June 2019, the Court of Appeal in the United Kingdom (UK), quashed the decision of the UK Secretary of State ‘not to suspend export licences for the sale or transfer of arms or military equipment to Saudi Arabia’, noting that the government has a legal obligation to make an assessment as to whether Saudi Arabia had committed IHL violations in Yemen – a task that had not been concluded ‘in accordance with the correct legal approach’ (The Queen (on the application of the Campaign Against the Arms Trade) v Secretary of State for International Trade, para. 167). This topic is also making news in other jurisdictions. For example, reports of Australian remote controlled systems being sold to the United Arab Emirates Armed Forces was the subject of an ABC investigation, which highlighted concerns over the granting of defence export licences by Australia (Welch, 2019). The US also continues to make such sales (Associated Press, 2019). The requirement for import and export controls may also come directly from a variety of international treaty law obligations such as the Biological and Chemical Weapons Conventions. See for example Article 3 of the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, which prohibits, by any State Party, the ‘transfer to any recipient whatsoever … [of] any of the agents, toxins, weapons, equipment or means of delivery’ covered by that convention. That same article also prohibits any assistance or encouragement to others to manufacture said agents, toxins, weapons, equipment or means of delivery. Abiding by these rules are clear examples of ways in which States can both respect and ensure respect for IHL.

126 Eve Massingham In addition, certain international bodies contribute to ensuring respect for IHL by working to strengthen and harmonise export controls on certain materials that could be used to violate IHL. The Australia Group,2 which includes over 40 nations as well as the European Union, states its principal objective as being ‘to use licensing measures to ensure that exports of certain chemicals, biological agents, and dual-use chemical and biological manufacturing facilities and equipment, do not contribute to the spread of [chemical and biological weapons]’ (Australia Group, 2007). The Missile Technology Control Regime initiated by the Canadian, French, German, Italian, Japanese, UK and US governments in 1987 ‘share the goals of non-proliferation of unmanned delivery systems capable of delivering weapons of mass destruction’. The work of the Missile Technology Control Regime is around the coordination of national export licences to ensure that systems capable of delivering weapons of mass destruction are not exported (Missile Technology Control Regime). Participating States in the Nuclear Suppliers Group implement in their domestic setting the Nuclear Suppliers Group Guidelines. These Guidelines are complementary to other legal frameworks pertaining to nuclear weapons, such as the Nuclear Non-Proliferation Treaty, and require that transfers of the relevant goods and materials are only authorised if the transferring State is ‘satisfied that the transfer would not contribute to the proliferation of nuclear weapons’ (Nuclear Suppliers Group). States should examine CA1 obligations in the import and export control legal frameworks. They could do this by establishing CA1 as a type of check and balance on the import and export decisions they make. The activity-based enquiry approach suggested by Drummond in Chapter 5 of this volume offers a range of suggestions as to how this could be done. This would help to ensure that States’ weapons import and export control decisions do not help to facilitate the failure by other States to respect IHL.

Criminalisation of weapons law violations In addition to robust legislation and comprehensive education about that legislation, effective weapons laws require the application of penalties for violations. States must have systems to investigate and, where appropriate, prosecute violations of these laws. The GCs and APs are incorporated into domestic legislation in most countries and thus establish the possibility of prosecutions for international crimes. Further, some States have specific provisions articulating weapons law offences. State practice listed in the CIHL Study references the national legislation of 30 States that specifically criminalise the use of weapons which cause indiscriminate suffering (Rule 70). For the rule against weapons with inherently indiscriminate effects, 12 examples of State practice are listed (Rule 71). For example, under Australian law (Criminal Code Act (1995) Cth), significant penalties of up to 25 years imprisonment (which can be compared with penalties for other war crimes in division 268, 2

The Australia Group was formed in June 1985 in Brussels when, following the finding by the United Nations of the use of chemical weapons during the Iran-Iraq war, the Australian Government proposed an international meeting of nations interested in strengthening and harmonizing export controls (Australia Group, 2007).

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such as 17 years for outrages upon personal dignity and 15 years for pillaging), apply to the weapons-specific war crimes of:   

employing poison or poisoned weapons (s. 268.55) employing prohibited gases, liquids, materials or devices (s. 268.56) employing prohibited bullets (s. 268.57).

Similarly, employing lawful weapons in an unlawful manner, for example destruction and appropriation of property (s. 268), attacking civilians or civilian property (ss. 269.35 and 36), attacking personnel or objects involved in a humanitarian assistance or peacekeeping missions (s. 268.37) and attacking undefended places (s. 268.39) are all criminalised through this legal framework. The existence of such legislation, and prosecution of a State’s own nationals for violations of such weapons laws, is of course a matter of internally respecting IHL. However, the application of such provisions is very limited across almost all jurisdictions. As such, even if the legal frameworks exist, few countries have a good record of ensuring respect for IHL by bringing those who violate it to justice. That said, States can also demonstrate that they are ensuring respect for IHL by supporting hybrid, regional and international efforts to prosecute IHL violations. As is outlined in Chapter 16 by Zangeneh, there are some increasingly positive signs with the development of courts and tribunals capable of prosecuting IHL violations. States with the resources to carry out and/or support these prosecutions should be doing so pursuant to a range of obligations, including CA1, and therefore making a valuable contribution to the evolving international norm.

Conclusion Weapons are prohibited and regulated for humanitarian reasons, but in a way that is compatible with military necessity. The weapons that are prohibited, or around which discussions about their prohibition are ongoing, are weapons where their military utility has been shown to be limited and the humanitarian arguments against their use are clear. Complying with the obligation to respect and ensure respect for IHL in the choice of weapons therefore does not prevent the achievement of those actions which are militarily necessary. Warring parties that engage in activities that are consistent with the notion of respecting and ensuring respect for the principles of weapons law, as enshrined in the GCs and their APs, various weapons law instruments and customary IHL, have a significant opportunity to prevent violations of IHL while still achieving their military objective. Approaching weapons law through a prism of CA1 demonstrates a variety of actions that States can, and indeed do, take to both respect and ensure respect for IHL. In order to respect IHL in relation to weapons law, States can become a party to all major international weapons law treaties; conduct legal weapons review processes; place emphasis on training for its military personnel in relation to weapons law; and can investigate and prosecute those who violate IHL. However, it is clear that much more can be done, particularly when it comes to ensuring respect for IHL by States with the capacity to influence others. Such States should:

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advocate for legal weapons reviews globally and where possible publish their findings in relation to such reviews to contribute to global expertise on weapons reviews and global consensus on weapons review findings; meet their weapons law treaty obligations not to encourage or support other States that are in violation of, or at risk of violating, those treaties; have stringent import and export controls to ensure that they are neither creating nor sustaining a market for weapons that inherently violate IHL and that weapons manufacturers within their jurisdiction are not developing and selling weapons that are inherently indiscriminate; support other States with IHL training and doctrine/policy development that upholds weapon law principles and obligations; and establish and support mechanisms or tribunals to investigate and prosecute those persons who have allegedly breached IHL – including those who have violated the provisions restricting the means and methods of warfare.

By being strong advocates for the rule against indiscriminate effects, the rule against superfluous injury or unnecessary suffering and the rule against causing widespread, long-term and severe damage to the natural environment, States can play a leadership role in this space. CA1 can be an effective vehicle for this advocacy. As Dörmann and Serralvo (2015) note: Further State practice and academic research is still needed to elucidate the scope of this international legal obligation. Yet, it is clear that greater acknowledgement of Common Article 1 obligations, and the equivalent under customary international law, can help improve respect for IHL. In a world ravaged by armed conflict, and with non-compliance amongst the most critical contemporary challenges to IHL, the importance of this duty should not be underestimated. Third States, thanks to their (often) more neutral stance, are in a privileged position to ensure that IHL rules are universally respected. States are clearly not doing all they can to comply with the obligation to respect and ensure respect for IHL and much more needs to be done before States can be said to have a consistent and principled approach to respecting and ensuring respect with regard to weapons. In doing so they would be making a valuable contribution to the creation of an international norm around effective IHL compliance, and this goal should be encouraged.

References (additional to the common list) Treaties Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, opened for signature 3 December 1997, 2056 UNTS 241 (entered into force 1 March 1999).

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Arms Trade Treaty, opened for signature 3 June 2013, (entered into force 24 December 2014). [ATT]. Convention on Cluster Munitions, 30 May 2008, 48 ILM 357 (entered into force 1 August 2010) [CCM]. Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, 10 April 1972, 1015 UNTS 163, 11 ILM 309 (entered into force 26 March 1976). 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 on 10 October 1980, 1342 UNTS 7 (entered into force 2 December 1983). Nuclear Non-Proliferation Treaty, 1 July 1968, 29 UNTS 161 (entered into force 5 March 1970). Treaty on the Prohibition of Nuclear Weapons, opened for signature 20 September 2017.

Cases Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226. The Queen (on the Application of the Campaign Against the Arms Trade) v Secretary of State for International Trade [2019] EWCA Civ 1020.

Legislation Criminal Code Act 1995 (Cth) Australia. Criminal Code Amendment (Cluster Munitions Prohibition) Act 2012 (Cth) Australia.

Documents Red Cross Red Crescent, International Conference on the Red Cross and Red Crescent Declaration, Agenda for Humanitarian Action, Resolutions (28th Conference, Geneva, 2–6 December 2003). Robledo, Juan Manuel Gomez ‘Chair’s Summary’ (Speech delivered at the Second Conference on the humanitarian impact of nuclear weapons, Nayarit, Mexico, 14 February 2014).

Secondary sources Associated Press, ‘Donald Trump Vetoes Bills Prohibiting Arms Sales to Saudi Arabia’ (July 2019): https://www.theguardian.com/us-news/2019/jul/25/donald-trump-vetoes-billsprohibiting-arms-sales-to-saudi-arabia (all sites last accessed 13 January 2019). Australia Group, The Origins of the Australia Group (2007) http://www.australiagroup. net/en/origins.html. Australian Red Cross, (2011) Nuclear Weapons: A Unique Threat to Humanity (Australian Red Cross) 7–9. Backstrom, A. and 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’, 886 International Review of the Red Cross, 886, 483. Blake, D. and Imburgia, J. (2010) ‘“Bloodless Weapons”? The need to conduct legal review of certain capabilities and the implications of defining them as “weapons”’, The Air Force Law Review 66, 163–166.

130 Eve Massingham Boothby, W. (2009)Weapons and the Law of Armed Conflict (Oxford University Press). Coupland, R. (1999) ‘Review of the Legality of Weapons: A New Approach The SIrUS Project’. Cluster Munition Coalition (2005) ‘Closing Press release Dubrovnik Review Conference’ (Press Release, 11 September 2005): http://www.stopclustermunitions.org/en-gb/ media/news/2015/closing-press-release-dubrovnik-reveiw-conference.aspx. Daoust, I., Coupland, R. and Ishoey, R. (2002) ‘New Wars, New Weapons? The Obligation of States to Assess the Legality of Means and Methods of Warfare’, 846 International Review of the Red Cross 345–363. Department of Defence (Australian Government) Exercise Talisman Sabre 2019 (2019) http://www.defence.gov.au/exercises/ts19/. Department of Defence (United States), Annual Report to Congress – Military and Security Developments Involving the People’s Republic of China, (16 May 2018): https://media. defense.gov/2018/Aug/16/2001955282/-1/-1/1/2018-CHINA-MILITARYPOWER-REPORT.PDF. Dinstein, Y. (2004) The Conduct of Hostilities under the Law of International Armed Conflict (Cambridge University Press). Dörmann, K. and Serralvo, J. (2014) ‘Common Article 1 to the Geneva Conventions and the Obligation to Prevent International Humanitarian Law Violations’, International Review of the Red Cross, 96 (895/896), 707–736. Dörmann, K. and Serralvo, J. (2015) ‘The Obligation to Prevent Violations of International Humanitarian Law’, Intercross blog (24 September 2015). Droege, C. and Tuck, D., ‘Fighting Together: Obligations and Opportunities in Partnered Warfare’, 28 March 2017, ICRC Law and Policy Blog: https://blogs.icrc.org/law-andpolicy/2017/03/28/fighting-together-obligations-opportunities-partnered-warfare/. Hays Parks, W. (2005) ‘Conventional Weapons and Weapons Reviews’ 8 Yearbook of International Humanitarian Law, 55–142. ICRC (2006) ‘A Guide to the Legal Review of New Weapons, Means and Methods of Warfare’, (ICRC, January 2006). ICRC (2012) Convention on Cluster Munitions Interoperability and National Legislation The View of the International Committee of the Red Cross (12 September 2012): http:// www.icrc.org/eng/assets/files/2012/cluster-munitions-interoperability-icrc-2012–0912.pdf. Jevglevskaja, N. (2018) ‘Weapons Review Obligation under Customary International Law’, 94 International Law Studies, 186–221. Lawand, K. (2006) ‘Reviewing the Legality of New Weapons, Mean and Methods of Warfare’, 88 (864) International Review of the Red Cross, 925–930. McCormack, T. (2006) Report Commissioned by the Group of Government Experts of the States Parties to the Convention on Certain Conventional Weapons. McKinzie, M. (2014) ‘Calculating the Effects of a Nuclear Explosion at a European Military Base’ (Paper presented at Vienna Conference on the Humanitarian Impact of Nuclear Weapons, Vienna, 8 December 2014). Missile Technology Control Regime, The Missile Technology Control Regime https://mtcr. info/mtcr/. Nuclear Suppliers Group, About the NSG: https://www.nuclearsuppliersgroup.org/en/ about-nsg. Olsen, M. (2006) War of Human Consequences: Health Consequences of the use of nuclear weapons. Paper presented at Vienna Conference on the Humanitarian Impact of Nuclear

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Weapons, Vienna, 8 December 2014) citing U.S. National Academy of Science, ‘Biological Effects of Ionizing Radiation (BEIR VII Phase 2)’. Oswald, Bruce, (2001) ‘The Australian Defence Force Approach to the Legal Review of Weapons’, Australian and New Zealand Society of International Law 2001 Proceedings Papers, 63. Shifrin, Noam, (2011) ‘Legislative Cluster Bomb’ ABC (online), (19 July 2011): https:// www.abc.net.au/news/2011–07-19/shifrin–australia27s-legislative-cluster-bomb/ 2800864. Siracusa, Joseph M. (2008) Nuclear Weapons: A Very Short Introduction (Oxford University Press). Taylor, Naj (2011) ‘An Inventory of Australian WikiLeaks Cables Relating to Cluster Munitions Negotiations’, Crikey, (28 November 2011): http://blogs.crikey.com.au/ this-blog-harms/2011/11/28/an-inventory-of-australian-wikileaks-cables-relating-tocluster-munitions/. United States Government (1946) The United States Strategic Bombing Survey: The Effect of Atomic Bombs on Hiroshima and Nagasaki (Washington, US Government Printing Office). UN Treaty on the Prohibition of Nuclear Weapons – Status of the Treaty: http://disarmament.un.org/treaties/t/tpnw. Welch, D. ‘Fighting Yemen’s Dirty War, an Arab Military is Buying a Weapons System Made in Canberra’, ABC news, (July 2019): https://www.abc.net.au/news/2019–0725/australian-company-sending-weapons-systems-directly-to-uae/11322974.

9

Artificial Intelligence and the obligation to respect and to ensure respect for IHL Hitoshi Nasu

Introduction Artificial Intelligence (AI) is a discipline of science and engineering of building intelligent machine, which is one that can achieve a specific task in a complex and uncertain environment. In 1950, Alan Turing proposed the ‘Imitation Game’ as a method of inquiring whether a computer thinks like a human being (Turing, 1950, pp. 433–435). Although there is no universally agreed definition of AI to date, the technology is increasingly used in a wide range of tasks such as image recognition, speech recognition, natural language processing, health care and drug discovery. Its application for military purposes is no exception to this trend, with many technologically developed nations heavily investing in the development and military applications of AI. The United States (US), in its 2008 National Defense Strategy, commits itself to broad investment in military application of autonomy, AI, and machine learning, including rapid application of commercial breakthroughs, to gain competitive military advantages (US National Defense Strategy: Sharpening the American Military’s Competitive Edge, 2018, p. 7). The People’s Republic of China (PRC) released an Artificial Intelligence Development Plan on 20 July 2017, outlining the national policy to take the lead in AI technology by 2030 including its application for the enhancement of national defence and the protection of national security (People’s Republic of China, New Generation Artificial Intelligence Development Plan, 2017, Section II(4)). The Russian Military Industrial Committee, a body responsible for Russia’s military industrial policy, has reportedly set a target of integrating AI and robotic technologies into 30% of military equipment by 2025 (Institute of Land Warfare, 2017, p. 1). Its technological application in the context of armed conflict has been anticipated, which has caused significant scholarly and public debate concerning the legality of lethal autonomous weapons systems. Most notably, questions related to emerging technologies in the area of lethal autonomous weapons systems were discussed at the 2014–2016 Informal Meetings of the States Parties to the Convention on Certain Conventional Weapons. However, AI technology has the potential for far wider applications in military use, such as target recognition, deception, communication, and the research and development of new weapons. Apart from the legality of specific lethal use, consideration therefore must extend to the general legal obligation, under CA1 of the 1949 GCs and API as reflective

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of customary international law (CIL) (CIHL Study Rule 139), to respect and ensure respect for IHL so as to address a wide range of challenges and opportunities that AI uniquely presents. This chapter specifically considers practical measures that States can employ to implement their obligation to respect and to ensure respect for IHL as modern science and technology advances in the area of AI. To that end, it first surveys unique capabilities that AI could potentially offer to enhance military operations. It then examines weapons review and export control as the means to implement the obligation to respect and ensure respect for IHL, while identifying challenges that AI poses. Weapons review would fall squarely within the internal compliance aspect of ‘respect’ for IHL, whereas export control addresses the obligation to ‘ensure respect’ by acting in due diligence. It concludes with a brief observation regarding practical challenges to the implementation of the general obligation to respect and to ensure respect for IHL as AI technology becomes mature and readily available for use in hostilities.

The role of Artificial Intelligence in future warfare Many transformative technologies such as nuclear power, information technology and autonomous navigation systems were originally developed for military purposes, which then found commercial application, for example, in nuclear energy production, the commercial use of the Internet and drones respectively. Unlike these technologies, AI is largely driven by industrial research as a general-purpose technology, with the potential to deliver diverse capabilities that influence both military and economic power (Horowitz et al, 2018, pp. 3–5). The shift in advanced technological development from military to commercial settings is evident in the area of autonomous systems development, such as driverless cars. While it emerged from a military research programme at the US Defense Advanced Research Projects Agency in 2004 (DARPA, 2004), its progress was rather slow and rudimentary compared to the commercial development that proliferated a decade later (Cummings, 2017, pp. 9–12). At the current stage of development AI is a product of three enabling technological advances: (1) availability of ‘big data’ sources; (2) increases in computer processing power; and (3) innovation in machine learning methods (National Science and Technology Council, 2016, p. 6). Machine learning is a method of data analysis that uses algorithms to build a computerised programme to improve its predictive performance at certain tasks based on observed data (Ghahramani, 2015; Mitchell, 1997). Of particular significance is a method of statistical learning called ‘Deep Learning’, which uses multi-layered algorithms modelled upon the human brain. Although the Deep Learning draws inspiration from the human brain as the theoretical basis, critical differences exist between the human brain and artificial neural networks (Hawkins, 2017). For example, the latter requires, for it to function, an accurate and large volume of datasets, which are processed according to algorithm-based statistical operations to produce probabilistic outputs (UK Government Office for Science, 2017, pp. 6–7). The algorithm-based probabilistic reasoning based on highly complicated statistical operations or

134 Hitoshi Nasu geometric relationships that humans cannot visualise creates a ‘black box’ problem – it is difficult for humans to predict the decision or output that AI produces, or understand its decision-making process (Bathaee, 2018, pp. 897–906; Castelvecchi, 2016). AI is not, at the current stage of development, a technology that makes a machine think like a human, but rather one that enables algorithmbased computerised programme to perform certain tasks in a complex and uncertain environment, often with greater accuracy and efficiency than human beings. The potential applications of AI are envisaged in such areas as intelligence, surveillance and reconnaissance (ISR), logistics and transport, multi-domain command and control, cyber defence, information manipulation, target recognition, and weapons development (Congressional Research Service, 2019, pp. 9–15; Fiott and Lindstrom, 2018, pp. 4–6). For example, the US Department of Defense initiated Project Maven in developing advanced computer algorithms that would enhance the ability to extract objects from massive volumes of satellite and drone surveillance data feeds (Pellerin, 2017). China has reportedly been developing and using advanced facial recognition technology to track and control the Uighurs, the ethnic Muslim minority group in the western region of Xinjiang (Mozur, 2019). Many of these applications are dual-use, meaning that they can be used for both military and civilian purposes, designed to enhance existing capabilities with algorismbased probabilistic reasoning, which enables certain complex tasks to be performed with greater accuracy and efficiency. For example, algorithms developed to search and categorise holiday photos can be repurposed to scour spy satellite imagery (Simonite, 2017). Medical algorithms developed for drug discovery and clinical testing could be proven useful in identifying previously unknown causes of disease (Fleming, 2018, S56), which could be manipulated to develop harmful substances that target a particular group of people with specific biological profiles. As a technology built on computer algorithms, AI is relatively transparent and accessible in that algorithms can be shared in the form of software or scientific papers, which can be incorporated into an existing system (Congressional Research Service, 2019, p. 3). AI does not necessarily take the form of a tangible object to trade as product and, therefore, is easily transferrable and amenable to rapid diffusion. It is also scalable in that the system can be easily replicated in great numbers to perform the same task (Brundage et al, 2018, pp. 16–17). Powerful machine learning techniques such as Deep Learning require large datasets to achieve high performance and computing resources to train machines (Horowitz et al, 2018, pp. 5–6). However, AI may proliferate when technologically less capable actors can make use of previously trained systems. It is likely to take decades before science advances to develop general AI with advanced forms of cognitive reasoning capable of application across an undefined range of parameters. However, in the short to medium term, the industry is expected to develop and produce a range of narrow and specific AI systems, whether these are specifically designed for military purposes or capable of military application. With the progressive development of AI, there will be the need to revisit the relevant rules of IHL in determining how those rules that have been developed to regulate the

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conduct of States and individuals might extend to the use of AI as it starts assuming the tasks that human beings traditionally performed on the battlefield.

Means to implement the obligation to respect and ensure respect The obligation to respect and ensure respect for IHL in all circumstances is primarily derived from CA1 of the 1949 GCs and API, but is also widely considered as reflective of CIL derived from ‘the general principles of humanitarian law to which the Conventions merely give specific expression’ (Nicaragua, 1986, para. 220). As discussed in Chapter 1 of this volume, the scope of its application, as well as the specific nature of the obligation, has been the subject of considerable debate. However, there is no disagreement regarding the non-reciprocal and general character of the obligation, which means, at the very least, that the obligation applies irrespective of reciprocal acceptance or implementation of obligations by the other parties to the conflict. It is also widely accepted that this obligation encompasses both a negative duty of States to refrain from violating IHL, including the obligation not to encourage, aid or assist the commission of violations (Nicaragua, 1986, para. 220), and a positive duty to undertake all measures necessary to comply with their obligations under applicable rules of IHL in peacetime or in situations of armed conflict (Geiss, 2015, pp. 117– 120, 130–132). It is an obligation of conduct to be exercised with due diligence to prevent and suppress breaches of IHL, with the choice of means dependent upon the attendant circumstances (2016 Commentary, para. 150; Geiss, 2015, pp. 127–128; Kessler, 2001, pp. 506–507). There is no disagreement on the internal compliance aspect of this obligation even with the introduction of new technologies, such as AI. The contentious question rather concerns whether this duty of due diligence applies only to military forces and private individuals within a State’s own jurisdiction or extends to individuals under the control or authority of that State, or even to other States engaging in an armed conflict (compare, for example, 2016 Commentary, paras. 155–156; with Kalshoven, 1999). AI, as the technology that allows certain tasks to be performed as a substitute for human labour, can be characterised as an object to which this obligation applies, as well as the means to facilitate compliance with applicable rules of IHL. While the means to implement this general obligation is context-dependent, there are also various specific duties, such as giving orders and instructions to ensure observance of the GCs, ensuring that legal advisers are available to military commanders and disseminating the texts of the Conventions (API, Arts. 80(2), 82 and 83). These specific duties are instrumental to the implementation of various rules of IHL in good faith (Focarelli, 2010, pp. 151–154). AI may provide additional tools, for example in combat simulation for military training, to facilitate the implementation of these specific duties as part of the general obligation to respect and ensure respect for IHL. On the other hand, there is a limited range of options to control new technologies, such as AI, to the extent that these would come within the scope of this general obligation. The remainder of this chapter focuses on weapons review and export control as the specific means to implement this

136 Hitoshi Nasu obligation in relation to the study, development, acquisition, adoption, use and transfer of AI technology. Weapons review With respect to new technologies in general, as Massingham discusses in Chapter 8, an obligation to conduct legal review may arise in order to ensure lawfulness of their employment in warfare under the applicable rules of international law. Article 36 of API specifically provides 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. This obligation, in relation to new weapons and means of warfare, is also implicit in any weapons law obligations under CIL that prohibits, for example, weapons of a nature to cause superfluous injury or unnecessary suffering or of an indiscriminate nature, as well as those that each State may have under various treaties it is party to (Copeland, 2014, pp. 47–52). Therefore, the core obligation to conduct a legal review of weapons as a means to ensure compliance with any applicable rule of weapons law is reflective of CIL, even though Article 36 of API, in and of itself, may not satisfy the requirements for such status (Jevlevskaja, 2018). Concerns over automation in conducting warfare were already looming at the background during the drafting of API, with weapons review under Article 36 envisaged as the solution by placing responsibility within the domestic governance of nations (APs Commentary, 1987, paras. 1476–1478). Thus, any incorporation or integration of AI into the existing weapons system or weapons development programmes to build new capabilities will be subject to the obligation to conduct a weapons review. However, the relevance of weapons review to the regulation of the study, development, acquisition or adoption of AI as the means to implement the obligation to respect and to ensure respect is rather limited for the following three reasons. First, only a handful of States are known to have systematic approaches to the legal review of new weapons (ICRC, 2006, p. 934 fn 8; Fry, 2006, pp. 473–479). The research and development of AI is currently pursued in many different countries, including those that have not traditionally been known for weapons manufacturing and therefore may not have well-developed weapons review processes in place. Many technology companies engaging in the research and development of AI independently from any military funding programmes or procurement are not subject to government regulation requiring weapons review. This means that many computerised programmes and associated innovations in AI, including those designed for hostile purposes or with potential military applications, will be left unchecked.

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Second, given the dual-use nature of AI technology, many applications of AI may not qualify as ‘weapons’ or ‘means of warfare’ for the purpose of this legal review obligation. These terms are not defined in Article 36 of API, however, ‘weapons’ are widely considered to mean any instrument of warfare that is ‘used, designed, or intended to be used to cause injury to, or death of, persons or damage to, or destruction of, objects’ (Tallinn Manual 2.0, 2017, Rule 103 para. 2; cf Air and Missile Warfare Manual, 2009, Rule 1(ff); Blake and Imburgia, 2010, pp. 168–172; Hays Parks, 2005, pp. 115–119). The ‘means of warfare’ encompasses both stand-alone weapons, such as guns, bombs and other munition, and weapon systems including delivery systems, such as ballistic missiles and unmanned aerial vehicles (Danish Ministry of Defence Command Denmark, 2016, p. 380). AI is not an independent weapon system of its own, but rather is more likely to form part of a weapon system (New Zealand Defence Force, 2017, section 7.4.6; see also Schmitt, 2006, p. 142). The obligation to conduct weapons review arises only when AI is incorporated or integrated into a particular application to serve its designed or intended function. This presents an issue regarding the extent to which States are reasonably expected to exercise due diligence in relation to the AI that has been developed outside the military industry but can be converted for military use by other actors. Third, in the course of weapons review, the legality of a new weapon is examined only in light of the broad and general circumstances in which the weapon is intended for use (Boothby, 2016, pp. 346–347). This means that it does not cover a particular use of a weapon, which is to be assessed against the targeting rules of distinction, proportionality, and precautions in the operational context of a particular attack (US Department of Defense, 2015, section 6.5.9.3). Moreover, for the use of AI as a method of warfare in a particular operational context, the legal review of AI itself is of limited value. For example, AI-enabled satellite imagery analysis could be employed for the purpose of target selection, but at least as far as the CIL obligation is concerned, that particular method of warfare does not attract a positive duty to conduct legal assessment as a means to ensure its compliance with IHL (cf Tallinn Manual 2.0, 2017, Rule 110 para 5). The analysis may differ under Article 36 of API due to the inclusion of methods of warfare in the review obligation (see Backstrom and Henderson, 2012, pp. 490–495; McClelland, 2003, pp. 405–406). These limitations qualify the practical significance of weapons review in relation to AI, as a means to implement the obligation to respect and ensure respect for IHL. Nevertheless, it provides an essential process to ensure that AI-enabled weapon systems are capable of complying with IHL rules; in other words, their ability to function within the parameters set by legal requirements when the systems are used as intended (Boothby, 2018, pp. 145–147; Boothby, 2016, pp. 348–349). This aspect of weapons review will be critical as a means to extend the general obligation to respect and ensure respect to the incorporation or integration AI into weapon systems.

138 Hitoshi Nasu Exports control There is no obligation to regulate arms export under CIL (Nicaragua, 1986, para. 269), nor is it explicitly provided in the GCs or the APs. Nevertheless, there is a range of arms control regimes that can be considered instrumental to the implementation of the obligation to ensure respect for IHL. The Arms Trade Treaty (ATT) prohibits any transfer of conventional arms as defined therein if it is known that the arms or items would be used in, most relevantly, the commission of genocide, crimes against humanity, grave breaches of the 1949 Geneva Conventions, attacks directed against civilian objects or civilians protected as such, or other war crimes as defined by international agreements to which it is a Party. (Art. 6) In any event, States parties are required to assess the potential that the arms or items could be used to commit or facilitate a serious violation of IHL (ATT, Art. 7). Thus, these measures are considered as instrumental to the implementation of the general obligation to ensure respect for IHL. Indeed, the ICRC’s 2016 Commentary to GCI makes reference to arms transfers, as an example of the negative duty under CA1 of the GCs, observing that Common Article 1 requires High Contracting Parties to refrain from transferring weapons if there is an expectation, based on facts or knowledge of past patterns, that such weapons would be used to violate the Conventions. (2016 Commentary, para. 162) However, there are inherent complexities in the assessment of risks that exported items in question might be used in the commission of a serious violation of IHL as the basis for decisions to prohibit or suspend arms export to a third country (Brehm, 2008, pp. 375–379). The difficulty is illustrated in the dispute regarding the legality of the arms export by the United Kingdom (UK) to Saudi Arabia on the grounds of allegations that Saudi Arabia has committed grave breaches of IHL. In its decision to dismiss the challenge, the UK High Court justified its deferential approach to the government’s export decision as follows: The picture was acknowledged to be far from a black and white. The decision involved balancing a series of complex and competing factors. Such self-evidently finely balanced judgements are paradigm matters for evaluation and decision by the Executive in conformity with the scheme established by Parliament. (R (Campaign Against Arms Trade) v Secretary of State for International Trade [2017] EWHC 1726, para 209)

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By contrast, while acknowledging that export licensing decisions for the sale of arms always require fine judgements, the Select Committee on International Relations in the UK House of Lords observed that ‘given the volume and type of arms being exported to the Saudi-led coalition, we believe they are highly likely to be the cause of significant civilian casualties in Yemen, risking the contravention of international humanitarian law’ (UK House of Lords Select Committee on International Relations, 2019, para. 73). In addition, the range of weapons regulated under the ATT is limited to certain categories of conventional arms only (ATT, Art. 2). This means that dual-use technologies, such as AI, are not subject to the arms control obligations under the ATT unless they form part of the conventional arms. On the other hand, the Wassenaar Arrangement addresses broader coverage of items, as an international forum established in 1995 to promote transparency and greater responsibility in transfers of sensitive dual-use goods and technologies, as well as conventional arms (Wassenaar Arrangement, 1995, section I). While legally non-binding, the Wassenaar Arrangement has established a cooperative regime to facilitate information exchange for enhanced transparency, coordination of national control policies, and commitment to national control of all items set forth in the List of Dual-Use Goods and Technologies (including Sensitive List and Very Sensitive List), as well as those on the Munitions List. The Lists are reviewed regularly to reflect technological developments and ongoing studies of experience gained in the field of dual-use goods and technologies (Wassenaar Arrangement, 1995, section III para 3). Regulatory reach of those participating States already extends to several types of computer algorithms of certain functions which include: 

 



signal processing algorithms used for, inter alia, acoustic-optic devices (Wassenaar Arrangement, Dual-Use List, 2018, section 3-A-1 para c.3), digital data recorders (Wassenaar Arrangement, Dual-Use List, 2018, section 3-A-2), and radar systems, equipment and assembles specifically designed for airborne operation (Wassenaar Arrangement, Dual-Use List, 2018, section 6-A-8 paras g and k); image enhancement algorithms for the processing of externally derived information-bearing images (Wassenaar Arrangement, Dual-Use List, 2018, section 4-A-3); real-time algorithms to analyse component sensor information to predict and pre-emptively mitigate impending degradation and failures of components within an ‘active flight control system’ (Wassenaar Arrangement, Dual-Use List, 2018, section 7-E-4 para b.3); and real-time algorithms to identify component failures and reconfigure force and moment controls to mitigate degradations and failures of ‘active flight controls system’ (Wassenaar Arrangement, Dual-Use List, 2018, section 7-E-4 para b.4).

It is reasonable to expect that any future improvement of these algorithms with the benefit of machine learning will remain subject to the exports control regime within the States participating in the Wassenaar Arrangement. With respect to other computer algorithms whose intended function is not listed, there is a shared

140 Hitoshi Nasu understanding that exporters should be required to inform national regulatory authorities if they are aware that non-listed dual-use items in question are intended, entirely or in part, for a military end-use (The Wassenaar Arrangement, 2003). National authorities also retain the right to adopt and implement regulatory measures to restrict exports for other reasons of public policy, such as national security. For example, the export of dual-use technology from the US is subject to regulatory control under the Export Controls Reform Act 2018, which repealed and replaced the Export Administration Act 1979 with a view to extending regulatory reach to emerging and foundational technologies that are essential to its national security (National Defense Authorization Act for Fiscal Year 2019). In the European Union, Council Regulation (EC) No 428/2009 has established a regulatory regime for the control of exports, transfer, brokering and transit of dualuse items, with the adoption of a common list based on the Wassenaar Arrangement’s List of Dual-Use Goods and Technologies. In Australia, the Wassenaar Arrangement’s List is incorporated into the Defence and Strategic Goods List, which provides the basis upon which the Minister may grant or revoke a permit for a specified supply on grounds of the security, defence or international relations of Australia (Defence Control Act 2012 (Cth), as amended by the Defence Trade Controls Amendment Bill 2015, sections 11(4) and (9)). However, the national requirement for regulatory control is more likely to be driven by national security interests, rather than as an implementation of the obligation to ensure respect for IHL. This means that while national security sensitive algorithms may well be subject to regulatory control, other AI-enabled dual-use technologies that do not cause an immediate national security concern could be transferred even if there is a foreseeable risk that these might be used to facilitate breaches of IHL, such as autonomous vehicles for the delivery of explosives for detonation targeting civilians in a densely populated area. It is particularly challenging, in this respect, to regulate the transfer of computer algorithms due to the inherent complexities in export control of intangible transfer, which necessarily involves a great deal of uncertainty as to the range of end-use options and the likelihood of intended use.

Concluding observations The implementation of the general obligation to respect and ensure respect for IHL poses practical challenges with regard to the study, development, acquisition, adoption, use or transfer of AI technology. Weapons review, as a means of implementing that obligation, is limited in scope to the AI that is incorporated or integrated into a particular application to be used, designed or intended to be used to cause injury or death to a person, or destruction or damage, to an object. Export control, on the other hand, may extend to dual-use technologies, such as AI, yet the regulatory regime tends to be based on national security concerns, rather than compliance with IHL. This appears to leave a critical gap in the implementation of the positive duty to ensure that the use of AI does not involve any breach of IHL, especially when it is transferred to third parties involved in an armed conflict.

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The gap exists where AI is studied, developed, acquired or adopted without being designed or intended to be used to cause injury or death to a person, or destruction or damage to an object, but is capable of application that facilitates a serious violation of IHL. This problem is relevant to many dual-use technologies, but may exacerbate with the rise of AI due to the potentially wider variety of unintended applications for hostile purposes. The data-driven probabilistic reasoning unique to machine learning as one of the critical techniques that drive the current progress for AI means that the same computer algorithm can be employed in a variety of ways by feeding a different set of data depending on the purpose of application. Although there is no easy solution to this issue, the Wassenaar Arrangement’s Participating States recognise the importance of post-export monitoring with reference, for example, to the imposition of a requirement on industry, academia, and individuals to keep records, for an appropriate period of time, that clearly identify all controlled technology transferred, the dates between which it was transferred, and the identity of the end-user of all intangible transfers of technology for which licenses have been issued that may be inspected by, or otherwise provided to, export control authorities upon request (Waasenaar Arrangement, 2006). In cases where it is feasible, post-export monitoring is a practical measure that can be usefully employed to mitigate these concerns in implementing the general obligation to ensure respect for IHL.

References (additional to the common list) Treaties Arms Trade Treaty, adopted 2 April 2013, 3012 UNTS (entered into force 24 December 2014).

Cases Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Rep. 14. R (Campaign Against Arms Trade) v Secretary of State for International Trade [2017] EWHC 1726.

Documents Council Regulation (EC) No 428/2009, OJ L 134 (29 May 2009) 1. Danish Ministry of Defence and Defence Command Denmark, Military Manual on International Law Relevant to Danish Armed Forces in International Operations (September 2016). Defence Control Act 2012 (Cth), as amended by the Defence Trade Controls Amendment Bill 2015. Manual on International Law Applicable to Air and Missile Warfare (Program on Humanitarian Policy and Conflict Research at Harvard University, 2009).

142 Hitoshi Nasu National Defense Authorization Act for Fiscal Year 2019, Public Law No: 115–232 §1758. New Zealand Defence Force, DM69 Manual of Armed Forces Law: Vol 4 Law of Armed Conflict (2nd ed., 2017). People’s Republic of China, New Generation Artificial Intelligence Development Plan (2017). Retrieved from: http://www.gov.cn/zhengce/content/2017–07/20/content_5211996.htm (English translation by Graham Webster, Rogier Creemers, Paul Triolo, and Elsa Kania at https://www.newamerica.org/cybersecurity-initiative/digichina/blog/full-translation-chinas-new-generation-artificial-intelligence-developmentplan–2017/). Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations (prepared by the International Group of Experts at the Invitation of the NATO Cooperative Cyber Defence Centre of Excellence, 2017). US Department of Defense, Law of War Manual (June 2015, as updated in December 2016). US National Defense Strategy: Sharpening the American Military’s Competitive Edge (2018), summary retrieved from: https://dod.defense.gov/Portals/1/Documents/ pubs/2018-National-Defense-Strategy-Summary.pdf. Waasenaar Arrangement, (2006) Best Practices for Implementing Intangible Transfers of Technology Controls, adopted by the 2006 Plenary Meeting of Wassenaar Arrangement. Wassenaar Arrangement, (2003) Statement of Understanding on Control of Non-Statement of Understanding on Control of Non-Listed Dual-Use Items, Plenary Meeting of the Wassenaar Arrangement. Retrieved from: https://www.wassenaar.org/app/ uploads/2015/07/Non-listed_Dual_Use_Items.pdf Wassenaar Arrangement (1995) Export Controls for Conventional Arms and Dual-Use Goods and Technologies, signed 19 December. Wassenaar Arrangement, List of Dual-Use Goods and Technologies (as of December 2018).

Secondary sources Backstrom, A. and 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. Bathaee, Y. (2018) The Artificial Intelligence Black Box and the Failure of Intent and Causation. Harvard Journal of Law & Technology 31, 889–938. Blake, D. and Imburgia, J.S. (2010) “Bloodless Weapons”? The Need to Conduct Legal Reviews of Certain Capabilities and the Implications of Defining Them as “Weapons”. Air Force Law Review 66, 157–203. Boothby, W.H. (2018) Highly Automated and Autonomous Technologies. In W.H. Boothby (ed.), New Technologies and the Law in War and Peace. Cambridge: Cambridge University Press, 137–181. Boothby, W.H. (2016) Weapons and the Law of Armed Conflict. 2nd ed. Oxford: Oxford University Press. Brehm, M. (2008) The Arms Trade and States’ Duty to Ensure Respect for Humanitarian and Human Rights Law. Journal of Conflict & Security Law 12, 359–387. Brundage, M. et al. (2018) The Malicious Use of Artificial Intelligence: Forecasting, Prevention, and Mitigation. Retrieved from: https://arxiv.org/ftp/arxiv/papers/1802/ 1802.07228.pdf. Castelvecchi, D. (2016) Can We Open the Black Box of AI. Nature 538, 20–23.

Artificial Intelligence

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Congressional Research Service (2019) Artificial Intelligence and National Security. US Congress. Retrieved from: https://fas.org/sgp/crs/natsec/R45178.pdf. Copeland, D.P. (2014) Legal Review of New Technology Weapons. In H. Nasu and R. McLaughlin (eds.), New Technologies and the Law of Armed Conflict. TMC Asser, 43–55. Cummings, M.L. (2017) Artificial Intelligence and the Future of Warfare. Chatham House. Retrieved from: https://www.chathamhouse.org/publication/artificial-intelligence-and-future-warfare. Defense Advanced Research Projects Agency (DARPA) (2004) Grand Challenge 2004: Final Report. Retrieved from: https://www.esd.whs.mil/Portals/54/Documents/FOID/ Reading%20Room/DARPA/15-F-0059_GC_2004_FINAL_RPT_7–30-2004.pdf. Fiott, D. and Lindstrom, G. (2018) Artificial Intelligence: What Implications for EU Security and Defence? European Union Institute for Security Studies. Retrieved from: https://www. iss.europa.eu/content/artificial-intelligence-–-what-implications-eu-security-and-defence. Fleming, N. (2018) Computer-Calculated Compounds: Researchers Are Deploying Artificial Intelligence to Discover Drugs. Nature 557, S55–S57. Focarelli, C. (2010) Common Article 1 of the 1949 Geneva Conventions: A Soap Bubble? European Journal of International Law 21, 125–171. Fry, J.D. (2006) Contextualized Legal Reviews for the Methods and Means of Warfare: Cave Combat and International Humanitarian Law. Columbia Journal of Transnational Law 44, 453–519. Geiss, R. (2015) The Obligation to Respect and to Ensure Respect for the Conventions. In A. Clapham, P. Gaeta and M. Sassòli (eds.), The 1949 Geneva Conventions: A Commentary. Oxford: Oxford University Press, 111–134. Ghahramani, Z. (2015) Probabilistic Machine Learning and Artificial Intelligence. Nature 521, 452–459. Hawkins, J. (2017) What Intelligent Machines Need to Learn from the Neocortex. IEEE Spectrum. Retrieved from: https://spectrum.ieee.org/computing/software/what-intelligent-machines-need-to-learn-from-the-neocortex. Hays Parks, W. (2005) Conventional Weapons and Weapons Review. Yearbook of International Humanitarian Law 8, 55–142. Horowitz, M.C., Allen, G.C., Kania, E.B. and Scharre, P. (2018) Strategic Competition in an Era of Artificial Intelligence. Center for a New American Security. Retrieved from: https://www.cnas.org/publications/reports/strategic-competition-in-an-era-of-artificial-intelligence. Institute of Land Warfare (2017) Integrating Army Robotics and Autonomous Systems to Fight and Win. Association of the United States Army, ILW Spotlight 17–12. Retrieved from: https://www.ausa.org/publications/integrating-army-robotics-and-autonomous-systems. ICRC (2006) A Guide to the Legal Review of New Weapons, Means and Methods of Warfare: Measures to Implement Article 36 of Additional Protocol I of 1977. International Review of the Red Cross 88, 931–956. Jevlevskaja, N. (2018) Weapons Review Obligation under Customary International Law. International Law Studies 94, 186–221. Kalshoven, F. (1999) The Undertaking to Respect and Ensure Respect in All Circumstances: From Tiny Seed to Ripening Fruit. Yearbook of International Humanitarian Law 2, 3–61. Kessler, B. (2001) The Duty to Ensure Respect under Common Article 1 of the Geneva Conventions: Its Implications on International and Non-International Armed Conflicts. German Yearbook of International Law 44, 498–516.

144 Hitoshi Nasu McClelland, J. (2003) The Review of Weapons in Accordance with Article 36 of Additional Protocol I. International Review of the Red Cross 85, 397–415. Mitchell, T. (1997) Machine Learning. New York: McGraw-Hill. Mozur, P. (2019) One Month, 500,000 Face Scans: How China Is Using A.I. to Profile a Minority. New York Times (14 April). Retrieved from: https://www.nytimes.com/ 2019/04/14/technology/china-surveillance-artificial-intelligence-racial-profiling.html. National Science and Technology Council (2016) Preparing for the Future of Artificial Intelligence. Office of Science and Technology Policy. Retrieved from: https://obamawhitehouse.archives.gov/sites/default/files/whitehouse_files/microsites/ostp/NSTC/ preparing_for_the_future_of_ai.pdf. Pellerin, C. (2017) Project Maven to Deploy Computer Algorithms to War Zone by Year’s End. US Department of Defense. Retrieved from: https://dod.defense.gov/News/ Article/Article/1254719/project-maven-to-deploy-computer-algorithms-to-war-zoneby-years-end/. Schmitt, M.N. (2006) War, Technology and the Law of Armed Conflict. In A.M. Helm (ed.), The Law of War in the 21st Century: Weaponry and the Use of Force. US Naval War College, International Law Studies Vol. 82, 137–182. Simonite, T. (2017) For Superpowers, Artificial Intelligence Fuels New Global Arms Race. The Wired (8 September). Retrieved from: https://www.wired.com/story/for-superpowers-artificial-intelligence-fuels-new-global-arms-race/. Turing, A.M. (1950) Computing Machinery and Intelligence. Mind 236, 433–460. UK Government Office for Science (2017) Artificial Intelligence: Opportunities and Implications for the Future of Decision Making. Retrieved from: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/ 566075/gs-16–19-artificial-intelligence-ai-report.pdf. UK House of Lords Select Committee on International Relations (2019) Yemen: Giving Peace a Chance. HL Paper 290 (16 February).

10 The obligation to ensure respect for IHL in the peacekeeping context Progress, lessons and opportunities Leanne Smith

Introduction Ensuring respect for IHL represents the efforts by third States (those not party to a conflict) to bring parties to a conflict back to a position of respect for the law, either by preventing potential breaches, encouraging compliance, or reporting and investigating violations. All peacekeeping troop contributing countries (TCCs) are third States and any interactions that their troops have with parties to a conflict presents an opportunity to influence greater compliance with IHL and demonstrates one method of ensuring respect for IHL. This chapter seeks to draw out the complexities inherent in ensuring respect for IHL in the peacekeeping context – who holds the obligation to ensure respect, and to whom? What are the obligations of peace operations’ missions across their multidimensional mandates to ensure respect for IHL? What are TCCs’ obligations concerning the actions and behaviour of third-party actors, as well as their own troops? What responsibility falls to the UN to ensure respect for IHL? Must missions, across the breadth of their mandates, ensure respect for IHL in their dealings with host State governments, institutions, civil society, national security forces and non-State armed actors? What about their obligations regarding other TCCs in the same mission? What about regional organisation troops? This Chapter will explore the relationship between humanitarian actors and peacekeepers as well as provide background on the broader peacekeeping context. It will examine the distinction between UN peacekeepers responsibilities to themselves respect IHL – for example, in the context of their mandate to protect civilians – from their obligation to ensure respect for IHL in the way they deal with peacekeeping partners. It will make the case for a stronger policy and training framework within UN Peacekeeping,1 in cooperation with partners, in 1

UN peacekeeping operations were formally operated through the UN Office of Special Political Affairs prior to 1992 when the Department of Peacekeeping Operations (DPKO) was established. On 1 January 2019 the DPKO changed its name to the Department of Peace Operations (DPO). In this article UN Peacekeeping is used to represent these departments. However, DPKO is used in relation to the author’s role with the organisation prior to 2017.

146 Leanne Smith order to more clearly articulate peacekeepers obligation to ensure respect and to raise awareness and understanding of that obligation. Finally, it is hoped that it will be possible to point the way to existing entry points for strengthening policy and training in the current UN Peacekeeping system and provide examples from the realm of international human rights law (IHRL), where an evolution in cooperation between the UN Office of the High Commissioner for Human Rights (OHCHR) and UN Peacekeeping on policy development has led to changed culture and improved protections.

Ensuring respect for IHL in the peacekeeping context The obligation to respect and ensure respect for IHL has been defined and analysed by other authors in this volume with both authority and experience. This chapter, therefore, starts from a point of acceptance of the premise that, [t]he duty to ensure respect (for IHL) entails an obligation for states not involved in conflict to ensure that parties to an armed conflict respect IHL, and that the duty is one of due diligence in that states must make reasonable efforts employing the tools available to exert pressure on the relevant parties. (Breslin, 2017, p. 6) As Breslin has argued, the UNSC decision to mandate a UN peace operation is in itself a collective measure by the international community intended to ensure respect by parties to a conflict for IHL. But, of course, how a UN peace operation is able to fulfil that collective responsibility, [m]ust be considered at the mandate drafting stage of peacekeeping operations … Awareness raising in relation to IHL should also be incorporated in these missions, along with dissemination of the rules of IHL among parties concerned. (Breslin, 2017, pp. 34–35) Exploration of ways to implement the obligation to ensure respect for IHL by peacekeepers is potentially an area for greater collaboration between UN Peacekeeping and the ICRC. This obligation is, like the responsibility to protect civilians in the peacekeeping context, in part a positive obligation. Given the nature of UN peace operations and the influence they can have on host States, it can be argued that ‘[w]ith this capacity to influence comes a greater responsibility – to ensure respect for IHL’ (Droege and Tuck, 2017). There is room for greater exploration within the UN of the ways in which peacekeepers can meet their obligation to ensure respect for IHL. There is also an opportunity to highlight the ways in which peacekeepers already do so, and with IHRL as an example in this regard, there may be benefit in better articulating the obligation within existing peacekeeping policy and training materials.

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The peacekeeping context and the protection of civilians as a priority mandate for peacekeepers Under the UN Charter, the UNSC is responsible for the maintenance of international peace and security and one tool it has at its disposal for that purpose is the deployment of a UN peace operation. Missions have traditionally been deployed under Chapter VI of the UN Charter (Pacific Settlement of Disputes). However, as conflict has changed, missions are increasingly considered to have mandates beyond Chapter VI when deployed into very volatile conflict settings (such as Mali or the Democratic Republic of the Congo (DRC)). Chapter VII contains provisions related to ‘Action with Respect to the Peace, Breaches of the Peace and Acts of Aggression’. Chapter VII mandated missions then, provide a legal basis for stronger action by the mission. In addition, Chapter VIII of the UN Charter provides for the involvement of regional arrangements and agencies, such as the European Union or African Union, in peacekeeping, provided such activities are consistent with the purposes and principles outlined in Chapter I of the UN Charter. This is a growing area of partnership for the UN in its peace operations (UN, Mandates and the Legal Basis for Peacekeeping). Peacekeeping principles Most readers of this volume will be familiar with the humanitarian principles – humanity, neutrality, impartiality and operational independence. To examine the relationship peacekeepers have with the IHL obligation to ensure respect, it is also important to understand the peacekeeping principles. Peacekeeping missions are deployed by the UN Secretariat following a mandate from the UNSC and under peacekeeping doctrine. Core to that doctrine are the three principles of peacekeeping under which operations are deployed:   

only with consent of the parties to the conflict (more often the host country in the context of intra-State conflict); operating impartially between the parties in implementation of the mandate (for example, against whom it is prepared to use force if mandated); and non-use of force except in self-defence and defence of the mandate (protection of civilians (POC) is the most common mandate usage) (UN, Principles of Peacekeeping).

Part of the challenge for modern peace operations is that the conditions necessary for a peace operation to be effective rarely exist. For example, in many cases rather than having a political agreement to support or a military ceasefire to monitor, there is quite simply no peace for the peacekeepers to keep. This of course impacts how effective UN Peacekeeping can be as a tool for the maintenance of international peace and security.

148 Leanne Smith Multidimensional mandates Over the decades, UN Peacekeeping missions’ mandates have expanded and evolved to meet the changing needs of countries and communities affected by conflicts. This has seen missions move away from the traditional “blue helmet” military observer missions supporting a peace agreement between countries emerging from conflict, to multidimensional missions, consisting of all kinds of civilian and uniformed expertise often much more focused on resolving internal challenges within a country to help it on the path to stability. Depending on the specific set of challenges, UN peacekeepers are often mandated to play a catalytic role in a range of peacebuilding activities. These range from disarmament, demobilisation and reintegration of ex-combatants to mine action and security sector reform. It may also include police, corrections and judicial capacity development and other rule of law-related activities such as, protection and promotion of human rights. UN peacekeepers might also provide electoral assistance; support for the restoration and extension of State authority; promotion of social and economic recovery and development and even, protection of cultural heritage. UNSC mandates also reflect a number of cross-cutting, thematic responsibilities that are the responsibility of all UN peace operations including responsibilities for women, peace and security; children and armed conflict; and POC in armed conflict. POC as a priority for all peacekeepers – uniformed and civilian It is important to remember that the consent of the host State is a defining feature of peace operations’ ability to protect civilians. Unlike operations deployed under the Responsibility to Protect doctrine, peacekeeping missions cannot deploy to protect civilians without the consent of the host State. The consent requirement can make the relationship between the mission and the host State particularly challenging. This is because there have been situations in several peacekeeping mission contexts where attacks against civilians have also been perpetrated by host State security forces, putting the peacekeeping mission in a position of needing to criticise or withdraw support from the host State whose permission it relies on to carry out all its other work. For example, in the DRC violations by the host State led to the establishment of the Human Rights Due Diligence Policy (HRDDP) described below in this chapter. Perhaps POC is the most relevant mandate of peacekeeping operations affected by the obligation to respect and ensure respect for IHL. This mandate to protect civilians brings peacekeepers and humanitarian actors closer together in terms of a shared responsibility, but in some ways fiercely separates them, particularly in relation to increased use of force by peacekeepers. In such a context, tensions between supporting humanitarian access and maintaining humanitarian independence regularly come into conflict. POC in the peacekeeping context is of course narrower than the comprehensive IHL usage of the term ‘protection’ (Forsythe, 2001, p. 675). It has become one of

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the top mandated priorities for most UN peace operations today. This is reflected in the 2018 Action for Peacekeeping Declaration of Shared Commitments on UN Peacekeeping Operations which has been endorsed by 150 UN member States: … to support tailored, context-specific peacekeeping approaches to protecting civilians, in relevant peacekeeping operations, emphasizing the protection of women and children in those contexts; and to implement protection of civilians mandates of peacekeeping missions, including through using all necessary means when required, in accordance with the UN Charter, mission mandates, and applicable international law (para. 10) It is very important to note that under the 2015 Policy on Protection of Civilians in United Nations Peacekeeping, the POC is a mission-wide responsibility of all peacekeepers – civilian and uniformed – regardless of their function. Missions’ POC strategies are based around three interdependent tiers of activity that go far beyond use of force and include short-term and long-term, political, physical and institution/capacity building contributions to protection. These mutually reinforcing tiers that are non-linear include: protection through political process; protection from imminent threat of physical violence; and establishing a protective environment. Together they form the basis for each mission to develop a comprehensive POC strategy.

The broader relationship between IHL actors and UN Peacekeepers Humanitarian actors and UN peacekeepers work side by side in many conflict settings serving the same communities. The relationship between humanitarian actors – including UNDP, UNHCR, UNICEF, WFP as well as ICRC, Red Cross and Red Crescent National Societies, Médecins Sans Frontières, Save the Children, Oxfam and others delivering humanitarian assistance – and peace operations has come a long way since the post-Cold War shift from more traditional “blue helmet” UN ceasefire monitoring mandates (UN, Peacekeeping Our History) to today’s multidimensional peace operations. The partnership continues to evolve in response to the changing nature of conflict. The internalisation of conflict within States rather than across borders, the rise of non-State armed actors, indiscriminate and deliberate targeting of civilians in conflict, cross-border criminality and the advent of new technologies in warfare and surveillance are but some of the changes that have altered the environment and the relationship. Conflicts, as one form of humanitarian emergency, give rise to significant needs for humanitarian assistance. Civilian populations in and after armed conflicts are often deprived of basic necessities – food, water and shelter – and have no access to health care and other essential services. IHL provides for relief to be delivered by humanitarian organisations, subject to the consent of the host State. In order to carry out their tasks, humanitarian organisations must be granted rapid and unimpeded access to the people affected. This has been discussed in more detail by

150 Leanne Smith Weizmann and Ngesa in Chapters 13 and 14 respectively in this volume. Part of the core mandate of the peacekeeping mission in Mali, United Nations Multidimensional Integrated Stabilization Mission in Mali (MINUSMA), particularly in the early days, was to support the Malian authorities in extending a security umbrella to the north of the country to allow the delivery of humanitarian assistance, as well as the protection of cultural heritage (UNSC Res. 2100 (2013)). As mentioned, UN peacekeepers are deployed to conflict or post-conflict scenarios by decisions of the UNSC under UN Charter Chapters VI, VII or VIII primarily to support peace processes and provide the security umbrella to allow the peace to take hold, but also to provide humanitarian and development assistance to be delivered in order to help societies and communities rebuild. In many ways, peacekeepers and humanitarian actors understand each other in this context of mutual service and engage with each other in multiple fora through international coordination, host State structures, in multilateral and host State capitals and out in the deep field. Increasingly in some scenarios, however, humanitarian actors and peacekeepers – particularly uniformed peacekeepers – find themselves with differing mandates, cultures and modes of operation that put them at odds. This is particularly the case when the UNSC has mandated a peace operation to protect civilians, including through use of force. By far, humanitarian actors’ primary concern about peacekeepers in these settings is that they themselves, when authorised to use force under a Chapter VII UNSC mandate, do so with respect for IHL. The prospect of peacekeepers using force to protect civilians can fundamentally shift the way humanitarian actors and peacekeepers relate to each other and consequently their effectiveness in working together for the communities they have been sent to serve. Since the rise of multidimensional peace operations, with a range of civilian experts within these missions, new opportunities for engagement and shared responsibilities have arisen between missions and the wide range of humanitarian actors. These multidimensional missions have also been tasked with more complex and diverse mandates. In the case of the peacekeeping mission to Mali established under UNSC Res. 2100 (2013) for example, UN peacekeepers were for the first time tasked with the responsibility to protect cultural heritage under IHL (Smith, 2016a, pp. 14). For some time, the UN has recognised the need to better coordinate its interventions across the range of its mandates. In 2013, the UN Secretary-General’s Integration Steering Group established a policy handbook on integrated UN assessment and planning with the intention to … maximise the individual and collective impact of the context-specific peace consolidation activities of the UN system. While there are important systemic constraints to integration within the UN, it is crucial that, at a minimum, the political, peacekeeping, humanitarian, human rights and development entities of the organization share a common analysis and agree on a set of common strategic objectives for peace consolidation as a starting point for planning and implementing their responses in conflict and post-conflict settings (2013, section A (2)).

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This approach to coordination of UN efforts means that, in a State hosting a peace operation, all UN agencies fall under the leadership of the Special Representative of the Secretary-General (SRSG) of that peace operation. Often a Humanitarian Coordinator (HC) and/or a Resident Coordinator (RC) for Development activities will be integrated into the mission as Deputy SRSGs under the peace operation’s SRSG to achieve more integrated operations and effective results. Although open to debate, in the author’s experience, one particularly effective coordination tool at mission level is the Humanitarian Cluster system. Clusters operate at the global and country level and are designated by the Inter-Agency Standing Committee (IASC). They bring together humanitarian organisations, both UN and non-UN, in each of the main sectors of humanitarian action needed for a State in crisis. The RC and/or HC and the Humanitarian Country Team (HCT) manage a humanitarian response through these clusters. Protection clusters bring together protection partners who have the necessary expertise, resources, access and capacity. They are integral to the cluster approach adopted by the IASC for non-refugee humanitarian crises. UNHCR leads the Global Protection Cluster (GPC) (UNOCHA, 2012). For peacekeepers – particularly in missions with a protection mandate – the Protection Cluster offers a practical forum for uniformed and civilian peacekeepers to share information, understand humanitarian contexts and mandates. They allow all stakeholders to participate and all parties can explore how their mandates intersect, operational challenges and opportunities to enhance effectiveness. At the level of multilateral organisation headquarters, policy issues emanating from the changing environments outlined are debated and discussed across UN departments and agencies in many ways – for example through the UN Secretary-General’s Policy Committee, the IASC, in the context of UNSC briefings, mandate setting and renewals, and in a range of fora provided by member States, think tanks and academic institutions. Each provides an opportunity for the discussion of respect and ensuring respect for IHL. One regular policy forum well placed to pursue the topic which is the focus of this volume is the annual Policy Dialogue between ICRC and the Department of Peacekeeping Operations. There, in-depth questions around the scope of IHL and the complexities of peace operations are regularly addressed by relevant experts from both sides.

Doctrine and practice in applying IHL and ensuring respect for IHL in UN policy A number of questions arise when one examines the application of IHL and the obligations to respect and ensure respect for IHL in context of UN peace operations. This chapter will not examine in detail the debate about the broad applicability of IHL to peacekeepers for their own actions (on or off duty), but will briefly outline just some aspects of that debate in this section before moving on to the more specific focus of peacekeepers’ obligation to ensure respect for IHL. Still the highest-level policy statement on IHL and UN peacekeepers is the Secretary-General’s Bulletin on the Observance of UN Forces of International Humanitarian Law (UN Secretary-General’s Bulletin) promulgated in 1999. It provides that,

152 Leanne Smith The fundamental principles and rules of international humanitarian law set out in the present bulletin are applicable to United Nations forces when in situations of armed conflict they are actively engaged therein as combatants, to the extent and for the duration of their engagement. They are accordingly applicable in enforcement actions, or in peacekeeping operations when the use of force is permitted in self-defence. The promulgation of this bulletin does not affect the protected status of members of peacekeeping operations under the 1994 Convention on the Safety of United Nations and Associated Personnel or their status as noncombatants, as long as they are entitled to the protection given to civilians under the international law of armed conflict (para. 1). The UN Peacekeeping Operations Principles and Guidelines (UN, 2008) uphold and affirm the requirement for peacekeepers to ‘have a clear understanding of the principles and rules of international humanitarian law and observe them in situations where they apply’ (p. 15). There has been no shortage of debate, however, on how this UN SecretaryGeneral’s Bulletin is to be interpreted and implemented in the particular context where peacekeepers are authorised to use force to protect civilians. Issues related to TCC sovereignty, privileges and immunities and getting States to provide troops for peacekeeping operations without certainty of protected status are but some of the challenges that have thwarted a clearer picture of peacekeepers’ own responsibilities to respect IHL. Added to this are the developments in the UNSC mandating pre-emptive use of force to protect civilians (as it did with the Force Intervention Brigade (FIB) in DRC in 2013). Certainly, in relation to the mandate and operation of the FIB, questions were raised at the policy level about whether the UN Secretary-General’s Bulletin provided adequate guidance for the UN to deal with offensive operations and their potential impacts. CA1 encompasses two separate requirements: to respect IHL (described elsewhere in this volume as the internal-compliance aspect) and to ensure respect for IHL (the external-compliance aspect). Happold explores some of the complexity as to whether CA1 applies at all to UN peacekeepers, This is not a matter beyond doubt. The first difficulty is the question of attribution: who is responsible for the conduct of UN peacekeepers? If it is the United Nations itself, rather than the troop contributing States, then another issue arises: how is the UN bound by the obligations codified in Common Article 1 of the GC? (2015, p. 3) Happold’s view is that although States who contribute troops to peacekeeping operations are bound by CA1 of the GCs, their obligation is qualified by the level of control that the UN exercises over their forces during operations. In his view, TCCs have no positive obligation to ensure respect for IHL – if such a duty exists, he places it solely with the UN (2015, p. 3). It is informative, therefore, to look to recent debates and policy developments around sexual

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exploitation and abuse by UN peacekeepers for guidance on where the line between UN obligation and TCCs obligation falls. When violations occur when not operating in an official capacity (so called ‘off-duty acts’), but still under UN control, responsibility appears to lie with the TCC. Although the UN in such cases retains operational command (from the SRSG and Force Commander through the National Contingent Commander) TCCs retain administrative authority, training responsibility, and criminal and disciplinary jurisdiction over their own troops (Happold, 2015, p. 7). Even if the offending act occurred under UN command and control in the line of duty, due to the doctrine of state sovereignty that underpins the UN system, although the UN can repatriate that individual or battalion, any prosecution and enforcement action lies with the TCC. In any case, and perhaps as a result of having a policy practitioner’s perspective, the author asserts, as with IHRL in the peacekeeping context, A more practical approach might be to regard peacekeepers as bound to comply with international humanitarian rules at all times, regardless of whether international humanitarian law is formally applicable, an approach that many peacekeeping missions have tended to adopt anyway. The problems that have arisen have occurred in the areas of accountability, training and commitment, rather than in any disagreement as to expected standards of troop behaviour. (Wills, 2015, p. 373) To the extent that the UN can influence the behaviour of TCCs, the UN model Status of Forces Agreement (SOFA) includes a commitment to the host State that the UN peacekeepers will uphold international law, including IHL (Engdahl, 2010, p. 516). From an institutional change perspective, however, the question is how much that approach adopted by ‘many peacekeeping missions’ is reflected in doctrine, policy and training. All of the above relates largely to a UN peacekeeper’s own obligation to respect IHL. However, this volume focuses on States’ responsibility to ensure respect for IHL and in this chapter how that operates in peacekeeping missions. In this context the more important questions to explore are what are the peacekeeping missions’ obligations across its multidimensional mandates to ensure respect for IHL? What are TCCs’ obligations concerning the actions and behaviour of third party actors – ie. not their own troops? Must missions, across the breadth of their mandates, ensure respect for IHL in their dealings with host State governments, institutions, civil society, national security forces and non-State armed actors? What about obligations regarding other TCCs in the same mission? What about regional organisation troops or private security firms? Happold takes the view that TCCs have no positive obligation to ensure respect for IHL – if such a duty exists, he places it solely with the UN (2015, p. 3). In contrast, Engdahl notes,

154 Leanne Smith ‘[t]he duty to ensure respect…perhaps of direct interest for multinational operations…clearly involves a duty to report any suspected violations of IHL to the proper authorities’ (2010, p. 517). Engdahl examines the 2005 incident of torture by French forces deployed by the UNSC in support of the UN-led Mission in the Democratic Republic of the Congo (MONUC) in Bunia, as part of the Artemis operation. He considers the response of Swedish Special Units who were part of the same operation and observed the torture but failed to report it. Although UN policy and experience has come some way since 2005, the recommendations suggested by the Swedish Armed Forces are still relevant. They included:    

clearer instructions on the duty of all personnel to report crimes under international law; guidance on how to act when higher officials commit crimes or fail to report crimes; guidance on the role of the legal adviser in a mission in supporting reporting; and improvements to training and education before deployment (Engdahl, 2010, p. 524).

It is hoped that the more recent UN response to the failure to report cases of sexual exploitation and abuse by UN missions is another example which will lead to stronger accountability frameworks (https://peacekeeping.un.org/en/standards-ofconduct). The question remains as to how these issues have been, and continue to be, addressed by UN Peacekeeping.

Relevant scenarios for the application of the obligation to ensure respect for IHL and lessons from the development of human rights policies in peacekeeping This section will focus on the constructive and practical evolution of entry points for meeting this obligation to ensure respect for IHL in the peacekeeping context. What are the tools at a peace operation’s disposal? From utilising the SRSG’s good offices diplomatic role, to implementing institution building and capacity development mandates. From monitoring and reporting responsibilities with partner UN agencies, through to withdrawing support – military, political, financial, institutional – and potential military intervention, as some might describe the POC mandate to use force or the example of the FIB. Lessons from human rights in UN Peacekeeping It has been observed that, particularly in relation to UN Peacekeeping’s own obligation to respect IHL, ‘Many abuses violate applicable international human rights law, which in some respects may provide a better avenue for accountability than international humanitarian law’ (Wills, 2015, p. 352).

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In considering the failure of IHL to better articulate the scope of the obligation for peacekeepers to ensure respect for IHL, Breslin points to the growing support for third party promotion of human rights in conflict settings as well as the development of the POC mandate in peacekeeping operations. She accepts this development as an overall positive one, ‘[t]he influence of the human rights system is further relevant in terms of the potential for utilizing existing human rights mechanisms and structures to bring influence to bear on parties violating fundamental rules of IHL’ (2017, pp. 26–27). As former Chief of Policy and Best Practice for the then Department of Peacekeeping Operations (DPKO) and Department of Field Support (DFS), the author’s own experience confirms these assessments in relation to peacekeeping policy. The following examples of existing policies supporting IHRL demonstrate how UN Peacekeeping has the capacity to develop strategies and policies to support the obligation to ensure respect for IHL. In a number of instances below, the policies extend to respect and adherence to not only IHRL and refugee law but IHL. Human Rights in United Nations Peace Operations and Political Missions Policy (PK/G/2011.20) This joint OHCHR and DPKO policy revised in 2011 provides guidance on the integration of human rights standards into UN Peacekeeping: including political and integrated peacebuilding offices. It summarises how OHCHR, DPKO, Department of Political Affairs (DPA) and DFS must collaborate on this integration. It defined ‘the purpose, roles, and scope of activity of human rights components of peace operations and political missions as well as human rights roles and responsibilities of senior mission leadership and other components of peace operations and political missions’ (UN, 2011). It clarified the lines between the need for independence for OHCHR reporting and integration to ensure effectiveness of effort and human rights mainstreaming. The long struggle to develop a joint policy that both protected the independence of the human rights mandate while ensuring that it was mainstreamed and integral to UN Peacekeeping reflected many of the same issues that arise in the relationship between IHL and UN Peacekeeping. The joint policy reflects that human rights represent both a core pillar and a crosscutting mandate of UN work, and that DPKO/DFS are committed to upholding and strengthening human rights standards and protection in the context of UN Peacekeeping. Through the efforts of peacekeeping operations, DPKO/DFS support the implementation of human rights mandates in many parts of the world, in close consultation with human rights colleagues working in these missions. The Human Rights Due Diligence Policy on UN Support to non-UN Security Forces (HRDDP) (PK/G/21844) The HRDDP was finalised in 2011 and following a review in 2012 was supplemented with a HRDDP Guidance Note in 2015. The Policy applies to all UN entities

156 Leanne Smith providing support to non-UN security forces – this could of course include regional organisation forces, national forces of host States and non-State armed actors operating with force within that State (footnote Policy clause B (7)). The Core Principles of this Policy directly support the UN obligation to ensure respect for IHL. Support by United Nations entities to non-UN security forces must be consistent with the Organisation’s purposes and principles as set out in the Charter of the UN and with its obligations under international law to respect, promote and encourage respect for international humanitarian, human rights and refugee law. (UN, 2015a) The Policy provides that such support should help recipients achieve compliance with such law, and as such is intended to develop capacity to meet international legal obligations of partners or host States. This aspect goes to the positive obligation to ensure respect for IHL. Support can include training, mentoring, advisory services, capacity and institution building, financial support, logistical support and operational support, for example. However, it goes further and requires that UN entities including peacekeepers who are providing or planning to provide such support must exercise due diligence by first communicating the policy to national authorities or other partners, assessing the risk of grave violations of IHL by providing or not providing support and exploring mitigating measures, monitoring behaviours during the support and in the event of grave violations, intervention and suspension of support. This aspect of the policy also supports the negative obligation to refrain from assisting violations of IHL. The application of this Policy has been challenging and produced some unintended outcomes. In the case of the DRC for example, the shift in focus from MONUC (a peace support mission) to MONUSCO in 2010 (a stabilisation mission) raised some challenging questions, ‘… how can the UN have a mandate both to protect civilians and stabilize the state – when it is agents of that state that need stabilizing in order to bring about protection?’ (Paddon and Lacaille, 2011, p. 12) In DRC in the context of the withdrawal of UN support to government security forces for violations of IHRL or IHL under this Policy, the decision to suspend operational support at times led to an inability to monitor the behaviour of the national forces and the potential for increased human rights violations. The choice is not easy, and certainly not limited to the UN Peacekeeping context of the DRC, ‘[o]ften, the difficult question is whether a State would exercise a greater influence to prevent violations by more presence and increased engagement or, conversely, by distancing itself from its ally or partner’s actions’ (Droege and Tuck, 2017).

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Human rights screening of UN personnel policy In December 2012, following high-profile cases where a TCC had contributed a national to a senior position within a peacekeeping mission and it had been later revealed that the national concerned had been involved, or alleged to have been involved, in a violation of international law (Lynch, 2011), the Human Rights Screening of UN Personnel Policy (HRS Policy) was approved. The HRS Policy outlines the principles and methodology by which the UN will pursue human rights screening of personnel. It requires States that nominate or provide personnel to serve with the UN to screen their personnel and to certify that they have not committed, or are alleged to have committed, criminal offences and/or violations of IHRL and IHL. It requires individuals who seek to serve with the UN to attest that they have not committed, or are alleged to have committed, criminal offences and/or violations of IHRL and IHL. In terms of the obligations on the UN itself, it requires the UN Secretariat to establish an information exchange mechanism about prior human rights conduct of candidates/nominees for UN service. Through this HRS Policy, the UN is endeavouring to ensure that States, and particularly its TCCs to peace operations, are respecting IHL as well as IHRL. In the author’s experience, it has resulted in the UN suspending acceptance of particular TCC troops. This has been difficult, politically and operationally, in the context of the need to secure sufficient troops to support peacekeeping missions, but nevertheless the HRS Policy is adhered to and thus IHL respected. These three UN Peacekeeping policies demonstrate how UN Peacekeeping ensures respect for IHL by its TCCs as well host States and regional partners. UN Peacekeeping has a comprehensive knowledge management system that includes other similar policies, guidance and training materials, rules of engagement and standard operating procedures from the universal to mission specific and sector specific. Many of these contain reference to respect for IHL (see further the UN Peacekeeping Resource Hub Core Pre-deployment). Further research is warranted into how many of these guidance documents already provide support to the obligation to ensure respect for IHL as part of its comprehensive approach to respecting international law, particularly IHRL. Specific IHL reporting mechanisms in peacekeeping – child protection and conflict-related sexual violence Aside from these broad human rights policies that have respect for IHL as part of their core object, there are other more issue specific thematic mandates in UN Peacekeeping that are of direct application to the obligation to ensure respect for IHL. Since 2001, following UNSC Resolutions 1261 (1999), 1314 (2000) and 1379 (2001), UN Peacekeeping has been mandated with the responsibility of child protection. Through its Child Protection Advisers (CPAs) in each mission, and its policy team at HQ, UN Peacekeeping works to minimise the impact of conflict on children. These children may be subject to abduction, military recruitment, killing and maiming. UN Peacekeeping mainstreams child protection policies across all

158 Leanne Smith civilian and military components of the mission. This includes monitoring and reporting to the UNSC on violations of children’s rights, which then exerts pressure on armed forces and groups and informs response and preventive action. CPAs negotiate with armed groups to stop violations of children’s rights and the Head of Peacekeeping Missions use their good offices with the government to advocate for the concerns of children. In Darfur, for example, the African Union – United Nations Hybrid Operation in Darfur (UNAMID) successfully advocated against the death penalty of former child soldiers. CPAs also build the capacity of national counterparts to strengthen their ability to deal with child protection concerns. In South Sudan, for example, the United Nations Mission in South Sudan (UNMISS) co-located a child protection officer with the SPLA to support the implementation of the action plan to end the recruitment and use of children. Other efforts include domestic law reform, public awareness raising and in-mission training of all UN Peacekeepers. All this work is coordinated with and in the support of the Special Representative of the Secretary-General for Children in Armed Conflict. In relation to IHL protections, the Monitoring and Reporting Mechanisms for Child Protection have been particularly effective. These have been expanded to other thematic areas such as Conflict Related Sexual Violence where UN Peacekeeping is also mandated to act along the same lines as with Child Protection and in support of the Special Representative on Sexual Violence in Conflict. An example of how the impact of the monitoring and reporting mechanisms have been effective in ensuring the partners of UN Peacekeeping ensure respect for IHL can be seen from how UN Peacekeeping manages its partnership deployments with national militaries, regional and sub-regional organisations. In the case of the deployment of MINUSMA in 2013, the challenge of re-hatting regional forces from countries that had been listed for the recruitment of child soldiers into their armed forces into UN Peacekeeping missions presented an opportunity for the UN to seek affirmative action and commitments from these countries to establish policies that would ensure children were no longer part of their armed forces. Chad was one such country that took positive action (Charbonneau, 2013). While these mechanisms for both child protection and conflict-related sexual violence already provide a commitment to ensuring respect for IHL in the peacekeeping context, it might be worth reviewing the policies and training materials associated with these thematic mandates to see how much they specifically reference this obligation as part of the context for their mandate. This would lead to awareness raising for peacekeepers about the source of their obligation.

Capacity development mandates as an opportunity to ensure respect for IHL in peacekeeping In 2016, this author conducted an internal analysis of UNSC mandate language across the 16 UN Peacekeeping missions at that time, which showed at least 64 separate mandated tasks related to institution-building and capacity development.

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These include capacity development for national border control/customs/coastguard; rule of law: police; corrections; judiciary; electoral institutions; national human rights institutions; extension of State authority/local administration/governance; administration of natural resources; national dialogue and reconciliation; and resettlement and internally displaced persons (Smith, 2016b). Many of these mandates represent opportunities for UN Peacekeeping to work with a number of partners to ensure respect for IHL. The establishment in 2007 of the UN Peacekeeping Office of Rule of Law and Security Institutions brought together the key mandate functions relevant to IHL – police, judicial, legal and corrections, mine action, security sector reform and disarmament, demoblisation and reintegration (DDR). IHL training in UN Peacekeeping Through its Policy, Evaluation and Training Division, the UN Peacekeeping manages a comprehensive system of pre-deployment and in-mission training which is delivered by the State contributing troops or police. This is a key entry point for raising awareness and understanding of all UN peacekeepers’ obligation to ensure respect for IHL – whether they are civilian, military or police. The integration of policy development, guidance and training materials and lessons learnt makes UN Peacekeeping’s knowledge management and institutional learning a particularly effective system. As Engdahl suggested, ‘[t]he perhaps most fundamental condition for securing compliance with IHL is the proper training and education of military forces’ (2010, p. 519). All UN Peacekeeping training, mandatory and recommended, includes reference to IHL. The department has developed Core Pre-Deployment Training Materials (CPDTM) that are mandatory for all civilian and uniformed peacekeepers (UN, Peacekeeping Resource Hub). Troop and Police Contributing Countries need to comply with the Pre-Deployment Training (PDT) and national authorities must certify that each rotation went through the corresponding training programme. The PDT materials include cross-cutting themes and priorities such as conduct and discipline, sexual exploitation and abuse, the protection of civilians, human rights, gender mainstreaming, conflict-related sexual violence, child protection, and environmental protection. Module 1 of those CPDTMs includes a session on the Legal Framework for UN Peacekeeping. This session focuses on IHRL and IHL. It acknowledges the difference of views amongst international legal scholars about the interface between IHL and IHRL. It examines the GCs and APs as well as the UN Secretary-General’s Bulletin on IHL. The session helps peacekeepers identify who is protected under IHL and focuses on compliance with Rules of Engagement and Directives on Use of Force. There is room to explore in further detail how these training materials address the obligation for all peacekeepers to ensure respect for IHL, beyond their responsibility to respect IHL themselves. In addition to the CPTMs, UN Peacekeeping has corresponding specialised training materials (STMs) for each deploying military function (UN Staff Officers, UN Military Officers, Infantry Contingents, Special Forces, Aviation, Engineers, and 14 more, including police experts and formed police units). All STMs include a mandatory legal framework module (Smith, 2019).

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Conclusion Despite the complexities around legal personality and the applicability of IHL and where direct accountability lies, this chapter demonstrates that UN peacekeepers do have responsibilities to respect, and ensure respect, for IHL. This is, of course, central to the success of a peace operation’s broader goals of supporting political agreement, building peace and security, and enabling peacebuilding for host countries and communities. Any failure by peacekeepers to uphold respect for international law only damages their reputation – there is no clearer example of that than in the recent cases of sexual exploitation and abuse by UN peacekeepers. Ensuring respect for IHL requires first and foremost, a clear understanding of the requirements of IHL in a peacekeeping context. Like IHRL, it requires an acceptance that such accountabilities lie with all actors in peace operations – we cannot look away. Awareness, training and guidance on how to respond, strong underlying relationships with humanitarian partners and leaders who are champions of change are key to strengthening adherence to IHL. Despite differences in mandates, the evolution of collaboration between OHCHR and DPKO to ensure respect for IHRL through changes to policy, training, practice and reporting provides strong precedent for similar better understanding, reciprocal support between DPKO and humanitarian partners as well as better protection of IHL in peacekeeping contexts.

References (additional to the common list) Documents UNSC Res. 1261 (1999). UNSC Res. 1314 (2000). UNSC Res. 1379 (2001). UNSC Res. 2100 (2013). UN Secretary-General’s Bulletin on the Observance of UN Forces of International Humanitarian Law, 1999.

Secondary sources Breslin, A. (2017) ‘A Reflection on the Legal Obligation for Third States to Ensure Respect for IHL’, Journal of Conflict & Security Law 22(1), 5–37. Charbonneau, L. (26 June 2013) ‘UN to make sure Chad has no child soldiers in Mali’, Reuters. Droege, C. and Tuck, D. (October 2017) ‘Fighting Together and International Humanitarian Law: Ensuring Respect for the Law and Assessing Responsibility for Violations (2/2)’ ICRC Humanitarian Law and Policy Blog retrieved from https://blogs.icrc. org/law-and-policy/2017/10/17/fighting-together-international-humanitarian-lawensuring-respect-law-assessing-responsibility-violations-2–2/.

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Engdahl, O. (2010) ‘Compliance with International Humanitarian Law in Multinational Peace Operations’, 78 Nordic Journal of International Law, 513–526. Forsythe, D. P. (2001). ‘Humanitarian Protection: the International Committee of the Red Cross and the United Nationals High Commissioner for Refugees’, 83 International Review of Red Cross 843, 675–697. Happold, M. (2015). Comment – obligations of States contributing to UN peacekeeping missions under Common Article 1 of the Geneva Conventions. In H. Krieger (Ed.), Inducing Compliance with International Humanitarian Law: Lessons from the African Great Lakes Region, Cambridge: Cambridge University Press. Lynch, C. (11 November 2011), ‘Is Nepal Sending Accused Criminals to Serve in UN Peacekeeping Missions’, Foreign Policy retrieved from: https://foreignpolicy.com/ 2011/11/11/is-nepal-sending-accused-criminals-to-serve-in-u-n-peacekeeping-missions/. Paddon, E. and Lacaille, G. (2011), Stabilising the Congo, Oxford: Refugee Studies Centre. Smith, L. (2016a) ‘Keeping the Peace by Protecting Culture: The Role of Peacekeepers in Prevention and Response’, Australian Red Cross International Humanitarian Law Magazine 2, 14–17. Smith, L. (2016b) Institution-Building as a Bridge Between Peacekeeping and Peacebuilding – Connecting the Security and Peace Nexus, International Forum for the Challenges of Peace Operations: Policy Brief 2016:1 retrieved from https://www.un.org/pga/70/ wp-content/uploads/sites/10/2016/01/PolicyBrief2016_1_Institution_building_Leanne_Smith.pdf. Smith, L. (18 April 2019) Interview with Rafael Barbieri, UN Integrated Training Service, United Nations Peacekeeping (on file with the author). UN, (2008) UN Peacekeeping Operations Principles and Guidelines retrieved from https://peacekeeping.un.org/sites/default/files/peacekeeping/en/capstone_eng.pdf. UN, (2011) Human Rights in United Nations Peace Operations and Political Missions retrieved from https://issat.dcaf.ch/download/127368/2601658. UN, (2013) Policy on Integrated Assessment and Planning retrieved from https://unsdg. un.org/sites/default/files/UN-Policy-on-Integrated-Assessment-and-Planning_FINAL_9-April-2013.pdf. UN, (2015a) Human Rights Due Diligence Policy on United Nations Support to NonUnited Nations Security Forces retrieved from http://hrbaportal.org/wp-content/ files/Inter-Agency-HRDDP-Guidance-Note-2015.pdf. UN, (2015b) Operational Readiness assurance and Performance Improvement Policy, Department of Peacekeeping Operations retrieved from http://dag.un.org/bitstream/ handle/11176/387382/2015.16%20Operational%20Readiness%20Assurance%20and% 20Performance%20Improvement%20Policy.pdf?sequence=1&isAllowed=y. UN, (2015c) Policy on Protection of Civilians in United Nations Peacekeeping, retrieved from http://providingforpeacekeeping.org/wp-content/uploads/2017/08/2015–07Policy-on-PoC-in-Peacekeeping-Operations.pdf. UN, (2018) Action for Peacekeeping Declaration of Shared Commitments on UN Peacekeeping Operations, retrieved from: https://peacekeeping.un.org/sites/default/files/ a4p-declaration-en.pdf. UN, Mandated and the Legal Basis for Peacekeeping, retrieved from: https://peacekeeping.un.org/en/mandates-and-legal-basis-peacekeeping. UN, Peacekeeping Resource Hub Core Pre-deployment Training Materials, retrieved from: http://research.un.org/en/peacekeeping-community.

162 Leanne Smith UN, Peacekeeping Our History, retrieved from https://peacekeeping.un.org/en/ourhistory. UN, Principles of Peacekeeping, retrieved from: https://peacekeeping.un.org/en/principles-of-peacekeeping. UNOCHA, (2012) OCHA on Message, The Cluster Approach, retrieved from https:// www.unocha.org/node/3213. Wills, S. (2015). Ensuring Peacekeepers’ Respect for International Humanitarian Law. In H. Krieger (Ed.), Inducing Compliance with International Humanitarian Law: Lessons from the African Great Lakes Region, Cambridge: Cambridge University Press.

11 The obligation to ensure respect in relation to detention in armed conflict Kelisiana Thynne*

Introduction In 2001, detention was not a priority for States as they prepared to go to war in Afghanistan. As a result, mistakes were made and serious violations of IHL were committed. Almost 20 years later, detention operations are key to the forwardplanning and exercises of modern militaries. Many militaries now have detention policies as a key strategic component of any military operation (Saugy and Rodenhäuser, 2018). However, there are a number of challenges with detention operations, not least of which is the lack of concrete law around detention in noninternational armed conflicts (NIACs) and the inherent nature of detention being the sole responsibility of a State with few oversight opportunities by other States to ensure the laws are respected. There are many rules of IHL in relation to detention which a State (and indeed a non-State armed group (NSAG)) must follow in both international armed conflict (IAC) and NIAC. A snapshot would include: the protection of prisoners of war under GCIII and API Articles 41, 44, 45, 75, 76 and 77; the protection of those deprived of their liberty, for whatever reason in conflict (for example, security threat or criminal prosecution), under Common Article 3 and APII Articles 4–6; and applicable customary international law rules (amongst others, Rules 87 (humane treatment), 99 (prohibition of arbitrary deprivation of liberty), 118 (provision of basic necessities to persons deprived of their liberty), and 126 (visits to persons deprived of their liberty)). Many human rights principles are also applicable to detention in armed conflict, such as Articles 9 and 10 of the International Covenant on Civil and Political Rights dealing with the freedom from arbitrary deprivation of liberty and the rights of persons detained. There have been many debates over the years as to the application of the various laws to different categories of detainees. While the law for those detained in IAC is extensive and relatively clear, in NIAC the treaty law remains limited. When it comes to the further step of ensuring respect for IHL by third parties regarding detention, States require guidance. Indeed, most of the literature and reports into violations *

This chapter was written in a personal capacity and does not necessarily reflect the views of the ICRC.

164 Kelisiana Thynne of IHL related to detention speak of the direct obligation of the detaining States and do not address the third-party duty of ensuring respect for IHL (Pejic, 2005 and 2011; Borelli, 2005; Goodman, 2009). The first chapter of this book has outlined the extent of the obligation to ensure respect. It is noted that the obligation is external facing and looks to what States must to do to encourage compliance with IHL by other States and NSAG. Drummond expands on the internal and external focused obligations that States may have to private actors more generally in Chapter 5. It is suggested that CA1 establishes a right to act, as well as a legal obligation to do so. States not directly involved in a conflict must ‘do everything reasonably in their power’ to ‘ensure respect’ for the Conventions (2016 Commentary, para. 118), and exercise due diligence (based on their capacity and influence) in ensuring that other States respect IHL. Dörmann and Serralvo (2014, p. 735) have argued that there are four areas where States must be diligent in ensuring respect for IHL. The first is internally focused in their own State and thus is not addressed as part of ensure respect in the context of external engagement. The three further requirements are more applicable. A duty ‘not to encourage persons or groups engaged in an armed conflict to act in violation of the Geneva Conventions, nor to knowingly aid or assist in the commission of such violations’; ‘an obligation to put an end to ongoing IHL violations’ and ‘the duty to prevent breaches of IHL from occurring’. They note specifically in relation to detention that the duty to ensure respect by others can assist in clarifying the law around transfer of detainees (Dörmann and Serralvo, 2014, p. 735). This threestep, mutually reinforcing cycle of correcting previous and ongoing violations; preventing potential and imminent violations and encouraging greater compliance with IHL and thus preventing future violations by strengthening the normative framework, will be considered in this chapter. States have a direct requirement to correct IHL violations in their own territory (Thynne, 2019) and a due diligence obligation where the violations are in the territory of and/or perpetrated by other States. Concerning genocide prevention and drawing on a range of international legal sources, Heieck (2018) has posited that due diligence requires some degree of knowledge on the part of the State that there exists a serious risk that a relevant harm might occur and “a degree of linkage” between the relevant actors engaged in wrongful conduct and the State whose international responsibility is in question. Similarly, Dörmann and Serralvo (2014, p. 724) have suggested that ‘third States can only be under an obligation to exercise due diligence in choosing appropriate measures to induce belligerents to comply with the law’ depending on the ‘influence they may exert’. Specifically concerning the duty to ensure respect in regard to IHL violations in detention, the duty to be diligent involves taking reasonable steps to make oneself aware; to investigate the circumstances; to question the perceived facts surrounding detention facilities; to delve further into what is happening in those places to the detainees; and to take active steps to stop any violations or stop engagement with those States. If this duty is dependent on knowledge, then it will arise where a direct link exists between States in a partnered operation or where a State is aiding or assisting another in an armed conflict. The chapter presents two case studies below where correction has, or should have, occurred in such circumstances.

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There is also a clear responsibility under CA1 which would require positive action of prevention on the part of a third State not partnered in an operation. In this regard, the ICRC in its updated Commentary to GCI has stated that ‘there is a positive legal duty to ensure respect for the Conventions’ (para. 173). This includes the obligation to put a stop to violations when States are aware of them occurring or potentially occurring (Dörmann and Serralvo, 2014, p. 728). This chapter examines two examples where third States may have an obligation to prevent violations in relation to detention operations. Finally, all third States, however distant geographically or lacking in influence, must also engage in good faith negotiations for the development and interpretation of the rules which will allow greater clarity for the law and thus potentially prevent violations of IHL (2016 Commentary, para 182). Indeed, in 1968, the UNGA Resolution 2444(XXII) called on the UN Secretary-General in consultation with the International Committee of the Red Cross and other appropriate international organizations, to study: … (b) The need for additional humanitarian international conventions or for other appropriate legal instruments to ensure the better protection of civilians, prisoners and combatants in all armed conflicts [emphasis added]. Braithwaite’s theory about pyramids of sanctions and support in the context of his work on ‘responsive regulation’ is relevant in this context (2011, p. 481). Responsive regulation involves listening, engaging with and creating responsibility of businesses, NGOs, and even States to ensure that they are regulated in accordance with appropriate normative frameworks. It is only when normative frameworks fail to solve specific problems that immediate correction and prevention measures are needed. Accordingly, in this context, pyramids of support for States should be created to ensure better ways of solving problems and fostering capacity building for those with a tendency to fall behind in the application of the normative framework (Braithwaite, 2011, pp. 480–481) in this case IHL. CA1 and third States’ responsibility to ensure respect is part of that pyramid of support. This chapter finally explores two examples where the normative framework setting has failed. Thus, the corrective and preventative approaches under the duty to ensure respect remain imperative and must be vigorously pursued as a useful mechanism to protect against or halt IHL violations.

Ensuring respect method 1: Correction: due diligence in partnered and assisting detention operations This section looks at the obligation to correct existing violations of IHL related to detention. This duty attaches to States who partner with an offending State or who assist an offending State to commit the violation. The situations of International Security and Assistance Force (ISAF) and detention in Afghanistan and of extraordinary rendition are discussed.

166 Kelisiana Thynne a. Afghanistan: partnered operations Partnered operations cover a huge range of activities in modern (and indeed ancient) warfare (Droege and Tuck, 2017). The ICRC Commentary to GCI (2016 Commentary, para. 167) proposes that ‘the duty to ensure respect for the Geneva Conventions is particularly strong in the case of a partner in a joint operation’, and that a State is in a ‘unique position to influence’ compliance with IHL when planning, financing, equipping, arming or training another’s armed force. In Afghanistan, there was a close relationship between the coalition forces and the government of Afghanistan. The North America Treaty Organisation (NATO) led ISAF in Afghanistan was primarily a non-combat force to train and equip the Afghan security forces to fight against the Taliban (Declaration by North Atlantic Treaty Organization and the Islamic Republic of Afghanistan, 2006). With ISAF, it was clear that State sovereignty would continue to operate in the detention field. Troop contributing forces would detain as part of their operations and transfer those detainees to the Afghan government – technically within 96 hours (Standard Operating Procedure 362). At the time, under the Afghan Constitution, the Afghan government could only hold persons who had committed criminal offences and not for security reasons. This meant that when an ISAF contributing force detained someone, they had to decide if they had enough evidence to pass with that person so they could be held in pre-trial detention by the Afghan government. Within that arrangement, each troop contributing country had their own “national caveat” which allowed for a longer time they could detain someone before transferring the person to the Afghan government (Serdar case, para. 4). States which wish to transfer detainees from their control to that of another State or NSAG are obliged to consider whether there is a risk of the detainee being subject to torture, cruel, inhuman or degrading treatment or arbitrary deprivation of life or persecution – under the principle of non-refoulement. If there is such a risk, they cannot transfer them (Droege, 2008, pp. 697–698). This obligation applies as a matter of human rights law and IHL in IAC and NIAC (2016 Commentary, paras. 714–715). Post-transfer monitoring of the individual is recommended to alleviate concerns about the direct responsibility of a State for the treatment of the transferred detainee (2016 Commentary, para. 716). Some ISAF States have criticised the position that they have an obligation to assess transfers of detainees on the territory of one State as part of a non-refoulement obligation (Bellinger and Padmanabhan, 2011, pp. 237–238). But the duty to ensure respect for IHL in detention operations by partners is much broader than the actual transfer of detainees. It aims to ensure respect for the law whether or not transfers are undertaken. CA1 also entails an obligation to provide training, monitoring and support to a government or NSAG in a partnered operation to ensure that their detention operations do not violate IHL. In 2011, the United Nations Assistance Mission in Afghanistan (UNAMA) conducted a study into conditions and treatment of detainees in Afghan detention places. It found, among other violations to detainees, multiple instances of torture, beatings, suspension from iron bars, electric shocks, twisting of genitals and

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removal of toe and fingernails, across a range of facilities in Afghanistan (UNAMA, 2011, p. 16). There are allegations that ISAF knew or ought to have known about violations in detention before the 2011 report. Indeed, in July 2011, several troop contributing countries halted transfers to Afghan detention facilities in line with their non-refoulement obligations (UNAMA, 2011, p. 5). The duty under CA1 to be diligent obligated States to inquire into the situation of other detainees and assist the offending State to improve treatment and conditions for future detainees. After the UNAMA report, ISAF developed a six-phase plan to improve detainee safeguards. The plan included inspection of facilities, remediation training in human rights and detainee treatment, formal certification by the ISAF Commander, supporting accountability actions taken by the government, monitoring detainees long-term, and ‘ensuring transparency and communication among ISAF and government detention operations’ (ISAF, 2011). While primarily noting the need to uphold human rights and ensure that the country is stable as a counterinsurgency measure, ISAF’s six-phase plan would also have been able to ensure that IHL was not violated in detention. Not only did it include training on detention practices, but there was follow-up to the training, including monitoring and individual check-ups for detention officers who had undertaken the training. ISAF coalition together had the capacity and influence to put in place an effective system to ensure respect for IHL. By 2013 facilities had improved, although few of the persons who visited the detention facilities as part of this plan had human rights or law enforcement training and not enough resources were put in to make it effective (UNAMA, 2013, pp. 79– 80). Some of the challenges also included the fact (also raised above) that detention is inherently an issue of State sovereignty and the ISAF forces had little ability to make the Afghan government accountable for their actions (UNAMA, 2013, p. 80). In 2014, the ISAF mission ended and with it the ability to continue the direct monitoring and training programme. In 2016, the NATO Resolute Support Mission started investigations of allegations of Gross Violations of Human Rights by Afghanistan Ministry of Defence and Ministry of Interior personnel. While there was not necessarily the ability to follow-up directly with monitoring and training, coercive measures could have been used to enforce investigations against the Afghan government. The NATO alliance governments could institute sanctions including removal of funding of these Ministries’ activities; as the United States (US) already has the power to do under the “Leahy” law (UNAMA, 2017, p. 56). Tying respect for IHL to funding for projects is a practical way to ensure respect for IHL in line with the appropriate responses outlined by Dörmann and Serralvo (2014, p. 735). The fact that UNAMA found in 2017 the highest recorded level of torture in all places of detention since it started conducting the studies in 2011 (UNAMA, 2017, pp. 31–32) partly demonstrates that the partners, who mostly left in 2014, had some role to play in ensuring compliance with IHL while they were present in Afghanistan. As soon as they stopped engaging in the conflict and associated training and support, their influence on ensuring respect for IHL diminished, although in fact the duty to ensure respect remained as long as their involvement in support of the conflict continued.

168 Kelisiana Thynne The ISAF response to the allegations of ill-treatment in National Security Detention Centres in Afghanistan provides an example of what States should do to ensure respect for IHL: stop transfers of detainees, provide training, assess the training and provide monitoring services of all the detention facilities, not just of the individual detainees who have been transferred. If these lessons were learned from the ISAF experience, it would ensure greater respect for IHL in detention in partnered operations. b. Extraordinary rendition: assistance Extraordinary rendition is the transfer without legal process of a detainee to the custody of a foreign government for purposes of detention and interrogation (Open Society Foundation, 2013). The US practised this form of transfer by either working with other States to transfer persons of interest or using facilities in other States where human rights norms, applicable to their own State, would not apply. In 1986, President Reagan signed an order (The White House, 1986) allowing the Central Intelligence Agency (CIA) to have responsibility for clandestine operations against terrorists and for intelligence sharing with foreign governments. From 1993 to 2001 the US State Department documented 13 terrorist-related renditions. While this practice was hidden and classified for a long time, the El-Masri case brought the notion of extraordinary rendition into the public domain (Eur. Ct. H.R. (13 Dec. 2012)). El-Masri was unsuccessful in his claim against the CIA due to the classified nature of the rendition, but he sought to prove that he was abducted, detained, and subjected to cruel and degrading treatment, all as part of the US’ extraordinary rendition programme, from Macedonia, via Afghanistan and then Albania (he later won damages through the European Court of Human Rights against Macedonia). A report from Open Society documents 136 persons who were detained by States for the US in the war against al-Qaeda. Many of them were eventually transferred to Guantanamo Bay as “unlawful combatants”. The report also documents 54 States which supported the US after 2001 to engage in renditions of alleged terrorist suspects. It was found that the US policy was to ‘allow transfers of detainees to foreign governments solely for the purpose of detention and interrogation, including to governments known to employ torture’ (Open Society Foundation, 2013, p. 15). Clearly these States were assisting the US government in unlawful detention practices and also conducting such unlawful practices themselves. Each State had direct responsibility not to engage in secret detention and conduct amounting to torture or assistance of these practices (for example, Macedonia had to pay reparations for its role in the El-Masri case). Each State had non-refoulement obligations under international human rights law (Borelli, 2004, p. 331). But in addition, each of these States had an obligation under CA1 to ensure respect for IHL by the US and to refuse to provide the assistance requested to undertake such practices. Open Society made six important recommendations for States that have been assisting the US with this programme. Primarily to ‘refuse to participate in CIA extraordinary rendition’ which goes to the State’s direct accountability. States are

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commended for issuing an apology and paying compensation (Open Society Foundation, 2013, pp. 61–62). Some recommendations directly relate to a State’s duty under CA1 to ensure respect for IHL by disclosing information ‘relating to human rights violations associated with CIA secret detention and extraordinary rendition operations’ and ‘conduct effective and thorough investigations (including, where appropriate, criminal investigations) … and holding legally accountable, officials who authorized, ordered, assisted, or otherwise participated in these abuses’ (Open Society Foundation, 2013, p. 10). The disclosure of information ensures that there is more public information about detention practices and less chance of violations being hidden, and indeed of detainees remaining hidden. It also accords with the obligation under IHL to clarify the fate and whereabouts of missing persons and the obligation to prevent people from going missing in the first place. For example, in relation to detention, each party to an armed conflict has the obligation to record the personal details of persons deprived of their liberty (GCIII, Arts 120–121; GCIV, Arts 129–131; CIHL Study, Rule 123). Sharing information and making it public would ensure that there is knowledge around rendition practices leading to deterrence as well as condemnation for the IHL violations. The investigation and prosecution of those involved can ensure that there is no culture of impunity around rendition, and that there is justice for those who suffered IHL violations. These are steps which States should undertake in the future if they are assisting in IHL violations around detention to meet their CA1 obligation.

Ensuring respect method 2: Prevention of IHL violations: the obligation to take reasonable steps There is a preventative responsibility to ensure respect, which is linked to third States with no involvement in the activity of the offending State. This section addresses two situations, Syria and the US, where this responsibility applies. a. Syria In Syria, numerous NSAGs have been fighting against each other and against the government of the Syrian Arab Republic, with support (in varying degrees) from several other States. These States, as in the earlier example in Afghanistan with ISAF, have the direct ability to influence the actions of their partners and/or those they support in armed conflicts in their detention operations. The obligations of partners in this type of close association has been addressed in the examples above. Here, however, the Syrian example serves to indicate what third States, not involved in the conflict, can do to ensure respect for IHL by Syria, NSAGs and other parties to the conflict. The UN-mandated Independent International Commission of Inquiry on the Syrian Arab Republic (2018) (Commission of Inquiry) has provided recommendations as to what the international community can do to stop and prevent the violations in detention in Syria. They have documented the situation in relation to

170 Kelisiana Thynne detention including violations of international human rights law and IHL by government forces, anti-government forces, Syrian Democratic Forces (SDF), People’s Protection Units (YPG), Asayish (Kurdish civilian police), Jabhat Fatah al-Sham and the Islamic State in Iraq and the Levant (ISIL) (Independent International Commission of Inquiry on the Syrian Arab Republic, 2018). IHL violations include arbitrary arrest and detention, enforced disappearances, mock trials, mass executions, torture, rape and other sexual violence. The Commission of Inquiry has proposed that in regard to enforced disappearances and the right of the family to know about the fate of the missing, ‘the international community should facilitate: the creation of a new independent mechanism with an international mandate to coordinate and consolidate claims regarding missing persons’ (Independent International Commission of Inquiry on the Syrian Arab Republic, 2018, para. 24). They go on to propose that ‘United Nations agencies and major donors among Member States and regional organisations should ensure the provision and facilitation of reconstruction funding, while providing that assistance is contingent upon adherence to these commitments’ (Independent International Commission of Inquiry on the Syrian Arab Republic, 2018, para. 27). The commitments that they refer to are addressed to the parties to the conflict to ensure that, among other things, persons are released, persons have visits from their families and ICRC if they remain in detention, and that in any peace agreement justice is done for war crimes related to detention practices. The linkage of funding for reconstruction to ensuring that violations of IHL in detention operations in Syria cease is a particularly novel, but sensible, idea to ensure respect for IHL and, again, in line with the types of actions that should be taken under the recommendations of Dörmann and Serralvo (2014, p. 735). Third States might not have so much influence individually, but as a collective, they could put pressure on non-complying States. In the Syrian context, UNSC resolutions 2254 (2015) and 2258 (2015) call on all parties to the conflict to release any arbitrarily detained persons, particularly women and children. Debates at the UNSC and in other international regional forums could provide a valuable form of influence to ensure respect for IHL by preventing or stopping violations. b. United States of America The US has conducted many detention operations around the world, including Bagram Air Base in Afghanistan, Abu Ghraib in Iraq and Guantanamo Bay in US territory on Cuba which have resulted in documented cases of torture and IHL violations (Jackson, 2015; Ross, 2007). Persons were transferred from one secret location to another, they were beaten, water-boarded, kept in extreme temperatures, had little or no access to family members and had no understanding of the reasons for their detention. Human rights NGOs have condemned the practices of the US in numerous reports and provided constructive recommendations (Human Rights First, 2009; Open Society, 2012). Many States were complicit in the actions of the US (see for example above in relation to extraordinary rendition), but even if they were not, each third State had

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an obligation to ensure respect for IHL by the US. Initially there may not have been an obligation for States to take any measures under CA1 but their duty to exercise due diligence would have been triggered once the situation became apparent. In 2010, when the New York Review of Books leaked a 2007 ICRC report into Guantanamo Bay, all States not party to the conflict or partnered with or supporting the US in that conflict, but with capacity and influence over the US, should have taken steps to both condemn the actions of the US and try to put a stop to the violations under their CA1 obligations. Human rights bodies of the UN attempted to hold the US accountable for its actions. In 2005, the Committee against Torture outlined a list of questions which it wanted the US to answer on their detention activities around the world (UN Committee against Torture, 2005). The US responded in detail to those questions and the Committee highlighted the following as positive changes to their practices and laws (2006): Detainee Treatment Act of 2005 which prohibits cruel, inhuman, or degrading treatment and punishment of any person, regardless of nationality or physical location, in the custody or under the physical control of the State party … new Army Field Manual for intelligence interrogation, applicable to all its personnel, which, according to the State party, will ensure that interrogation techniques fully comply with the Convention. However, they were not convinced, among other things, that the secret facilities had been shut down or that adequate training was given to detention officers. The Universal Periodic Review (UPR) process by the UN Human Rights Council allows States to pose questions of the State that is being reviewed. The scope of the UPR allows for the review of a States’ obligations in respect all ‘applicable international humanitarian law’ (Human Rights Council Res. 5/1 (2007)), even though it is essentially a human rights process. This would appear to provide a clear avenue for States not a party to a conflict to raise issues under CA1. In 2010, only the Czech Republic and Denmark got close to questioning or condemnation of detention practices by asking the US to consider ratifying the Optional Protocol to Convention Against Torture (CAT) and removing reservations to CAT and the International Covenant on Civil and Political Rights. In the 2010 interactive dialogue, the Republic of Korea, the UK and Spain asked the US to close Guantanamo; some also questioned the US on breach of human rights while countering terrorism. In the 2015 interactive dialogue, more States questioned US detention practices, including Paraguay acknowledging the invitation to the Special Rapporteur on Torture to visit Guantanamo; the UK and Bosnia and Herzegovina urged for the closure of the detention centre and Belgium noted ‘with appreciation the support by the US delegation for recommendations to close without delay the Guantanamo detention facility and to provide solutions for remaining detainees in line with international human rights law, in particular the ICCPR’. The US did respond to the questions directly and reiterated that there were plans (at that stage) to close the facility. No mention was made in either report of Abu Ghraib or

172 Kelisiana Thynne Bagram Air Base. Therefore, there has been very little direct condemnation of the US for its detention practices. International relations play a part, with the US being one of the permanent five members of the UNSC and with its position of power in the world. Partly, however, it is also diplomacy – questioning a State at the UPR on whether it will close a detention centre is as far as States seem prepared to go to ensure respect for IHL when they are aware of violations and yet not directly implicated.

Ensuring respect method 3: Future prevention: normative frameworks The instances of violations of IHL in relation to detention outlined above have led to States and international organisations to decide that corrective and preventative approaches have not been working. Specifically, this is because there is not a sufficient regulatory framework for situations which were then unusual but have become the norm (multinational operations) and in NIAC. As has been explored in the introduction to this chapter, in this case they effectively decided to move from a pyramid of sanctions to a pyramid of support (Braithwaite, 2011, p. 480). This section considers two approaches to developing a normative framework to support future prevention. a. Copenhagen Guidelines In 2007, as a response to the challenges that States were facing in detention operations in Afghanistan, the Danish Government launched a process to develop guidelines on how to conduct detention operations in multinational military operations, both peacekeeping and UN-mandated. The ambition of the process was to develop one common platform for the handling of detainees in UN-mandated international military operations that could be used as a template in the future (Winkler, 2010, p. 496). Oswald and Winkler (2014, p. 135) have noted that ‘Denmark recognised that when the host state has a poor human rights record or lacks appropriate law and order infrastructure, coalition forces might face strategic consequences when considering when to hand over detainees’. Not only strategic consequences follow: the obligation to ensure respect also comes into play. One of the ways of ensuring respect is indeed by negotiating a framework for good practice on how to conduct detention operations and detention transfers in the future. The process was “closed door” – by invitation only for 17 States that had faced challenges and a few observer organisations, such as the ICRC and Human Rights Watch. In 2012 the Copenhagen Guidelines were released publicly. Winkler, who was the Danish Ambassador responsible for the process has said ‘[t]here was a general desire to bring operational clarity and identify relevant best practice guidelines for use in military operations’ (Winkler, 2010, p. 497). The Guidelines have been criticised for being negotiated behind closed doors and therefore favouring what powerful militaries might need to achieve in their overall military operations rather than considering the situation of the detainees (Brannagan, 2010, p. 505). They have also been criticised as not attempting to fill

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the gaps between the laws applicable in IAC and NIAC and maintaining a very legalistic approach (Brannagan, 2010, p. 517). Any attempt to bridge any gaps is noted as a matter of policy and not of law, so States are not bound by any acceptance of the Guidelines. In the context of rendition, Amnesty International (2012, p. 2) has criticised the Guidelines as not providing for contexts where certain States have not ratified all the relevant IHL treaties, such as API and II, and enforcing certain principles as customary international law, or at least as a matter of policy. Amnesty International suggests that human rights have not been considered in complementarity to IHL. They also note that the [Guidelines] do not recognise that complaints of torture or other cruel, inhuman or degrading treatment must be investigated by independent and impartial authorities, that victims of such abuses have the right to an effective remedy, and that those responsible for such abuses must be brought to justice. (2012, p. 3) In the context of CA1, this is perhaps the most salient criticism – that there is no provision under the Guidelines to ensure respect for IHL by ensuring that those who breach it are subject to investigation and prosecution. It is interesting to note that Winkler (2010, p. 498) has stated that one of the needs for the Copenhagen Guidelines is to ensure the efficiency of military operations and create stability and peace. While the intention of the Guidelines is good, and could go some way to addressing violations of IHL in detention operations, when the overall objective is more about military necessity than humanitarian concerns – rather than balancing these two principles – the final outcome may not go far enough to ensure respect for IHL. b. ICRC Strengthening IHL Project In 2008 and 2009, the ICRC convened several meetings to discuss detention laws in response to a number of experts suggesting that a minimum set of guidelines was required for all situations of security detention in NIAC and that guidelines of a non-binding nature should be developed (Davidson and Gibson, 2009; Chatham House and ICRC, 2008). Through Resolution 1 of the International Conference of the Red Cross and Red Crescent in 2011, all States parties to the GCs mandated the ICRC to start a process, that would eventually be State led, to develop an outcome which clarified the law around detention in NIAC. The ICRC approached this process as a humanitarian organisation. Several consultations were held with States regionally and in Geneva between 2012 and 2018. It was agreed that the law for detention in NIACs needed further work in the following areas: conditions of detention; protection for especially vulnerable groups of detainees; grounds and procedures for internment; and transfers of detainees from one authority to another. The idea had been to move from enforcement of existing law to compliance with broader interpretations of the law and thereby ensure that States were better supported

174 Kelisiana Thynne in their detention operations and detainees were treated more humanely. However, despite good engagement by States, the working modalities could not be agreed, and the process stalled (ICRC webpage). The ICRC has said ‘following the Formal Meeting, the ICRC is reflecting on the best way to continue efforts to strengthen the protection of persons deprived of their liberty in relation to armed conflict. This will involve consultation with States’ (ICRC webpage). Therefore, it seems that there was not enough political will by States to clarify and strengthen the laws around detention in NIAC. This would indicate that States are not willing to uphold their obligation to ensure respect by creating a stronger framework for compliance for IHL in this process.

Conclusion Detention is a challenging issue for States in peacetime let alone during times of armed conflict. The rights and status of detainees are often neglected. If convicted of a crime, they have little public sympathy and, if detained by a military, they are deemed the enemy and in many cases of NIAC nowadays, they are simply called “terrorists”. If States fail to reach agreement on how to start the process of negotiations on a new framework for detention in NIAC, detainees will continue to be subject to violations of IHL. This chapter has highlighted instances where States have committed, or are alleged to have committed, serious violations of IHL against detainees. It has not sought to address the legal issues associated with these violations but rather to demonstrate where other States do or should exercise their obligation to ensure respect for IHL by the offending State through correction, prevention or future normative frameworks. Of course, there are mixes of prevention and correction in each scenario outlined above, and the obligation in relation to detention is highly dependent on States developing a normative framework and then being prepared to enforce it through compliance measures or sanctions. The two recent examples where States have attempted to create normative frameworks, the Copenhagen Guidelines and ICRC Strengthening IHL Project, have failed to live up to their potential. The recourses to preventative or corrective measures have not all been successful in the examples given. However, some of these measures attempted by States partnered with or assisting offenders, provide useful examples which may work in other contexts to correct future violations. The corrective approaches include the need to:       

investigate the detention violation allegations and hold perpetrators accountable; stop funding aid and development projects of States unless they halt violations; stop the transfer of weapons which fuel the conflict; train State detention officials; visit and monitor places of detention for their conditions; provide or enforce reparations for victims; and/or enforce UN sanctions against offending States. Preventative approaches include the need to:

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disclose information about IHL violations; create mechanisms for truth and discovery of missing persons; condemn through UN resolutions; condemn through questioning in UN or other forums; support legal and policy development; and/or provide funding for detention facilities to ensure that they are compliant with IHL norms.

The challenge remains that detention is a matter for the State. States will guard their sovereignty over detention even when partnering with other States in armed conflict. Where a clear obligation to ensure respect for IHL exists and recognised steps are identified as outlined above, these steps are often not able to be taken by the partnering/assisting and third States because the offending State refuses to accept outside interference or oversight of their actions. Third States may have good intentions to fulfil their obligations under CA1, but be blocked in the process, although care must be taken to identify that third States are only obliged to take all reasonable measures to encourage respect for IHL and cannot be held accountable for a failure by the offending State to amend their behaviour. Nonetheless, the checklist of potential actions provided in this chapter should give enough room for third States to exercise their obligation to ensure respect for IHL in relation to detention until better normative frameworks can be developed to further support compliance.

References (additional to the common list) Cases Case of El-Masri v. The Former Yugoslav Republic of Macedonia, Eur. Ct. H.R. (13 December 2012). Serdar Mohammed (Claimant) and Ministry of Defence (Defendant) and between: (1) Mohammed Qasim (2) Mohammed Nazim (3) Abdullah Pil Claimants and Secretary Of State for Defence [2014] EWHC 1369 (QB): https://www.judiciary.uk/wp-content/ uploads/2014/05/mohammed-v-mod.pdf (accessed 13 March 2019).

Documents Declaration by the North Atlantic Treaty Organization and the Islamic Republic of Afghanistan, 6 September 2006: https://www.nato.int/cps/en/natohq/official_texts_50575. htm?selectedLocale=en. International Conference of the Red Cross and Red Crescent, Resolution 1 of the 31st International Conference, 2011. ICRC, 2007 Report on 14 Individuals in Guantanamo Bay, leaked to New York Review of Books 2010: https://www.nybooks.com/media/doc/2010/04/22/icrc-report. pdf. ICRC’s Project on Strengthening Legal Protection in Armed Conflict webpage: https:// www.icrc.org/en/document/detention-non-international-armed-conflict-icrcs-workstrengthening-legal-protection-0 [ICRC webpage].

176 Kelisiana Thynne Respect for Human Rights in Armed Conflicts, Resolution 2444 (XXIII) of the United Nations General Assembly, 19 December 1968. Standard Operating Procedures Detention of Non-ISAF Personnel NATO/ISAF Unclassified SOP 362 31/08/2006 4th edition: https://info.publicintelligence.net/ISAF-DetaineeSOP.pdf. The White House, US National Program for Combating Terrorism 1986: https://fas.org/ irp/offdocs/nsdd/nsdd-207.pdf. UN Committee against Torture, List of Issues to be Considered During the Examination of the Second Periodic Report of the United States of America (CAT/C/48/Add.3) CAT/C/ USA/Q/2 Thirty-fifth session 7–25 November 2005. UN Committee against Torture, Consideration of Reports Submitted by States Parties Under Article 19 of the Convention Conclusions and Recommendations of the Committee Against Torture United States of America CAT/C/USA/CO/2 Thirty-Sixth Session 1–19 May 2006. UN Human Rights Council, Resolution 5/1 Institution-building of the United Nations Human Rights Council, 9th meeting, 18 June 2007. UN Human Rights Council, Universal Periodic Review United States of America: https:// www.ohchr.org/EN/HRBodies/UPR/Pages/USindex.aspx.

Secondary sources Amnesty International, ‘Outcome of Copenhagen Process on detainees in International Military Operations Undermines Respect for Human Rights’ 23 October 2012 AI index: IOR 50/003/2012. Bellinger III, J. B. and Padmanabhan, V. M., ‘Detention Operations in Contemporary Conflicts: Four Challenges for the Geneva Conventions and Other Existing Law’ (2011) 105 (2) American Journal of International Law 237–238. Borelli, S., ‘The Rendition of Terrorist Suspects to the United States: Human Rights and the Limits of International Cooperation’, in A. Bianchi (ed.), Enforcing International Law Norms Against International Terrorism (Oxford: Hart Publishing, 2004). Borelli, S., ‘Casting Light on the Legal Black Hole: International Law and Detentions Abroad in the “War on Terror”’ (2005) 87 No. 857 International Review of the Red Cross. Braithwaite, J., ‘The Essence of Responsive Regulation’ (2011) 44 UBC Law Review 475–520. Brannagan, C. A., ‘The Copenhagen Process on the Handling of Detainees in International Military Operations: A Canadian Perspective on the Challenges and Goals of Humane Warfare’ (2010) Vol. 15 No. 3 Journal of Conflict & Security Law, 501–532. Chatham House and ICRC, ‘Expert Meeting on Procedural Safeguards for Security Detention in Non-international Armed Conflict’, London, 22–23 September 2008, (2009) 91 No. 876 International Review of the Red Cross. Davidson, T. and Gibson, K., ‘Security Detention: Experts Meeting on Security Detention Report’ (2009) 40 Case W. Res. J. Int’l L. 323. Dörmann, K. and Serralvo, J., ‘Common Article 1 to the Geneva Conventions and the Obligation to Prevent International Humanitarian Law Violations’ (2014) 96 (895/896) International Review of the Red Cross 707–736. Droege, C., ‘Transfers of Detainees: Legal Framework, Non-refoulement and Contemporary Challenges’ (2008) 90 No. 871 International Review of the Red Cross. Droege, C. and Tuck, D., ‘Fighting Together: Obligations and Opportunities in Partnered Warfare’, 28 March 2017, ICRC Law and Policy Blog: https://blogs.icrc.org/law-and-policy/2017/ 03/28/fighting-together-obligations-opportunities-partnered-warfare/ (accessed 13 March 2019).

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Goodman, R., ‘Editorial Comment: The Detention of Civilians in Armed Conflict’, (2009) 103 American Journal of International Law 48. Heieck, J., A Duty to Prevent Genocide: Due Diligence Obligations among the P5 (Cheltenham: Edward Elgar Publishing, 2018). Human Rights First, ‘Fixing Bagram Strengthening Detention Reforms to Align with U.S. Strategic Priorities’, November 2009. Independent International Commission of Inquiry on the Syrian Arab Republic, Detention in the Syrian Arab Republic: A Way Forward, 8 March 2018: https://www.ohchr.org/ Documents/HRBodies/HRCouncil/CoISyria/AWayForward_DetentionInSyria.pdf. ISAF, ‘ISAF Outlines Proactive Detainee Safeguards’, International Security Assistance Force HQ Public Affairs, 10 October 2011: https://www.dvidshub.net/news/printable/78273. Jackson, R. B., ‘Interrogation and Treatment of Detainees in the Global War on Terror’ in The War on Terror and the Laws of War: A Military Perspective (Oxford: Oxford University Press, 2015). Open Society, ‘Remaking Bagram: The Creation of an Afghan Internment Regime and the Divide over U.S. Detention Power’, Regional Policy Initiative, 6 September 2012. Open Society Foundation, Globalizing Torture: CIA Secret Detention and Extraordinary Rendition 2013. Oswald, B. and Winkler, T., ‘The Copenhagen Process: Principles and Guidelines on the Handling of Detainees in International Military Operations’ (2014) 83 Nordic Journal of International Law 128–167. Pejic, J., ‘The Protective Scope of Common Article 3: More than Meets the Eye’ (2011) 93 Number 881 International Review of the Red Cross. Pejic, J., ‘Procedural Principles and Safeguards for Internment/ Administrative Detention in Armed Conflict and Other Situations of Violence’ (2005) 87 No. 858 International Review of the Red Cross. Ross, J., ‘Black Letter Abuse: The US Legal Response to Torture Since 9/11’ (2007) 89 No. 867 International Review of the Red Cross. Saugy, L. and Rodenhäuser, T., ‘5 Operational Realities of Detention in Contemporary Armed Conflict’ 30 November 2018, ICRC Law and Policy Blog: https://blogs.icrc.org/ law-and-policy/2018/11/30/5-operational-realities-detention-contemporary-armed-conflict/ (accessed 13 March 2019). Thynne, K., ‘Implementation of International Humanitarian Law in Southeast Asia: Challenges in the Prevention of Violations’ in Asia-Pacific Perspectives on International Humanitarian Law (Cambridge: Cambridge University Press, 2019). UNAMA, Afghanistan Treatment of Conflict-Related Detainees: Implementation of Afghanistan’s National Plan on the Elimination of Torture, Office of the United Nations High Commissioner for Human Rights, April 2017, Kabul: https://unama.unmissions.org/ sites/default/files/treatment_of_conflict-related_detainees_24_april_2017.pdf. United Nations Assistance Mission in Afghanistan (UNAMA), Afghanistan Treatment of Conflict-Related Detainees in Afghan Custody One Year On, United Nations Office of the High Commissioner for Human Rights, January 2013, Kabul: https://www.ohchr.org/ Documents/Countries/AF/UNAMA_treatment_of_conflict_detainees.pdf. United Nations Assistance Mission in Afghanistan (UNAMA), Treatment of ConflictRelated Detainees in Afghan Custody, UN Office of the High Commissioner for Human Rights, October 2011, Kabul, Afghanistan: https://unama.unmissions.org/sites/ default/files/october10_2011_unama_detention_full-report_eng.pdf. Winkler, T., ‘The Copenhagen Process on Detainees: A Necessity’ (2010) 78 Nordic Journal of International Law 489–498.

12 Common Article 1 and counter-terrorism legislation Challenges and opportunities in an increasingly divided world Petra Ball and Yvette Zegenhagen* Introduction On 20 September 2001, United States (US) President George W. Bush asserted in his address to a Joint Session of Congress: ‘[e]ither you are with us or you are with the terrorists’ (Bush, 2001). In this statement, the President set a clear divide between those supporting the action and approach of the US following the attacks in New York nine days earlier, and those supporting “terrorism” (Wynn-Pope et al, 2015 p. 242). UNSC Res. 1373 (2001) followed shortly thereafter which invoked Chapter VI of the UN Charter and called on member States to implement domestic measures to ‘refrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts’ (UNSC Res. 1373 (2001) para. 2(a)). The resolution did not contain any wording to ensure that ordinarily lawful actions to protect persons in armed conflict (such as providing humanitarian assistance to anyone injured on the battlefield) were excluded from the operation of any new measures. In the wake of UNSC Res. 1373 (2001), ‘a wave of far-reaching antiterrorism laws swept across the globe’ (Wynn-Pope et al, 2015, p. 243). At the global level, States’ obligations under IHL have been afforded greater consideration in several subsequent UNSC counter-terrorism resolutions (for example, UNSC Res. 1456 (2003) and more recently UNSC Res. 2464 (2019)). However, UNSC Res. 1373 (2001) laid the foundation for inadequate domestic legislation across the world, many pieces of which, even today, often only include references to IHL principles or humanitarian exemptions as an afterthought. This “with us or against us” approach has resulted in a ‘blurring of the lines between armed conflict and terrorism, with potentially adverse effects on IHL’ (ICRC, 2015, p. 17). Two areas in particular stand out in this regard. First, the oft cited “chilling effect” on principled humanitarian action (Adelsberg, Pitts and Shebaya, 2012–2013, p. 282; Burniske and Modirzadeh, 2017, p. 6). Secondly, the creation of a counter-terrorism framework where any action taken by certain parties to a non-international armed conflict (NIAC) within the meaning of IHL is categorised as “terrorist”, resulting in an undermining of the concept of equality *

This chapter was written in a personal capacity and does not necessarily reflect the views of the Australian Red Cross.

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of belligerents. Disparity between belligerents, as a factor in contemporary asymmetric conflict more generally, has contributed to a revival of strategies that undermine, if not violate, IHL outright (Geiss, 2006, p. 767). It is important to acknowledge that there are differing interpretations of the breadth of State obligations to ensure respect for the GCs and APs pursuant to CA1. States have a clear requirement under CA1 to ensure respect for the GCs and APs by those within their State structure – including their military and government – but also their own citizens. In addition, as seen within Chapter 1 of this volume, as well as the reflections of other authors of the volume, many view the understanding of ‘ensuring respect’ as extending States’ obligations in a specific manner beyond their own borders to States and groups over whom a third State may have influence. In this interpretation of CA1, the current counter-terrorism paradigm can undermine States’ obligations in relation to both respecting and ensuring respect for the GC and APs. States should consider this interpretation when developing counter-terrorism frameworks at the international level. It would assist lawmakers and the judiciary (in common law systems) to prevent domestic counter-terrorism legislation, or interpretation thereof, being created in a manner that does not strike an appropriate balance between security concerns and the protection of fundamental principles of IHL. Examples and case studies on this topic draw from the Australian context. As a middle power with a dualist, common law legal tradition, the Australian experience provides a useful example for a number of other States. Australia is also a particularly relevant case study for this topic given it has ‘exceed[ed] the United Kingdom, United States and Canada in the sheer number of new antiterrorism laws that it has enacted since 9/11’ (Roach, 2011, p. 310). Roach further notes, ‘this degree of legislative activism is striking compared even to the United Kingdom’s active agenda and much greater than the pace of legislation in the United States or Canada’ (2011, p. 310). Indeed, in the decade following September 11 and the adoption of UNSC Res. 1373 (2001), Australia enacted a total of fifty new federal laws directly related to counter-terrorism, with many others enacted in various States and Territories of Australia (Williams, 2011, p. 1137).

Impartial humanitarian action in a “with us or against us” global order Development and status of principled humanitarian action under IHL In order to identify measures available to States to respect and ensure respect for the GCs and APs in relation to protecting principled humanitarian action in counter-terrorism frameworks, it is important to outline briefly the relevant obligations found in the GCs and APs. For a more detailed overview of legal obligations contained in IHL in relation to humanitarian activities more broadly, see Chapter 13 by Weizmann. The idea of impartial medical assistance on the battlefield has a long history, with the concept (albeit not the term) first appearing in the 1864 Geneva Convention (Art. 6). This principle of impartial assistance to all wounded persons on the battlefield has

180 Petra Ball and Yvette Zegenhagen become a cornerstone of IHL, applicable to military forces and humanitarian organisations alike (GCI, Arts. 12, 15; GCII, Art. 12; GCIV, Art. 27). This principle of impartial humanitarian assistance has been rearticulated and developed alongside the rest of the GCs and APs over the course of more than a century (GCI-III Arts. 3(2); GCIV Arts. 3(2), 10, 11, 59, 61; API Arts. 5, 9(2)(c), 22(2)(b), 60(2), 70(1); APII Arts. 18(1),18(2)). Of particular importance for the purposes of this chapter, is Article 3 common to the four GCs (CA3). CA3 provides a “right of initiative” for an impartial humanitarian body to care for the wounded and sick, and Article 18 of APII, which allows National Red Cross and Red Crescent Societies to ‘offer their services for the performance of their traditional functions in relation to the victims of the armed conflict’. Article 18 states that: if the civilian population is suffering undue hardship owing to a lack of the supplies essential for its survival, such as foodstuffs and medical supplies, relief actions for the civilian population which are of an exclusively humanitarian and impartial nature and which are conducted without any adverse distinction shall be undertaken subject to the consent of the High Contracting Party concerned. These articles are especially relevant given their application to NIACs. They show that States have understood the importance of impartial humanitarian assistance during times of armed conflict, regardless of whether the conflict is characterised as international or non-international in nature. Over 150 years since the adoption of the first Geneva Convention in 1864, impartial humanitarian assistance for the sick and wounded in times of armed conflict has remained a cornerstone of IHL. The unique universality of the GCs makes these obligations all the more definite. It is important to highlight, as Weizmann notes in Chapter 13, that: IHL treaty provisions applicable in international armed conflict (IAC) explicitly set out obligations for all States, whether or not they are party to the conflict, to consent to, and allow and facilitate, the free passage of relief consignments. This is made clear by treaty references to all ‘Contracting Parties’ or each ‘High Contracting Party’. Since the adoption of UNSC Res. 1373 (2001), States have tried to incorporate safeguards for impartial humanitarian activities into subsequent global and regional counter-terrorism regimes (for example, EU Council Directive on Combating Terrorism, Directive 541, 2017; United Nations Global Counter-Terrorism Strategy, 2006; and UNSC Res. 2462 (2019)). However, this has not necessarily translated into a domestic legal framework that neatly balances the two. Where the rubber hits the road: counter-terrorism legislation and protecting the humanitarian space in the Australian context Consistent with many other jurisdictions, prior to September 2001 Australia did not have a coherent counter-terrorism legal regime. Laws were dated and ranged

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from acts dealing with crimes committed on aircraft (see Civil Aviation (Offenders on International Aircraft) Act 1970 (Cth), which has now been replaced by the Crimes (Aviation) Act 1991 (Cth)) to legislation dealing with the recruitment and training of mercenaries (Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth)). Because the counter-terrorism regime in Australia is so extensive, it contains plenty of lessons to draw upon across a broad spectrum of provisions. In particular, there are two key areas in the Australian context that reflect a broader concern across many jurisdictions around the world. That is, a lack of exemptions for certain kinds of training that are humanitarian in nature and an increasingly riskaverse approach to financing of humanitarian activities. Training In Australia, an absence of clear and consistent training exemption clauses within several areas of the Criminal Code Act 1995 (Cth) (Criminal Code) presents challenges for Australian humanitarian organisations. This includes association with and training of terrorist organisations; or even simply travelling to ‘declared areas’ in a foreign country. Areas are designated ‘declared areas’ if the government is satisfied that a listed terrorist organisation is engaging in a hostile activity in that area. There is also a very broad definition given for a terrorist organisation (Criminal Code, 102.1(1)). The Criminal Code makes it an offence to associate with a terrorist organisation – something that is unique among most developed-States’ counter-terrorism regimes. Under section 102.8 of the Criminal Code, a person commits an offence if, on two or more occasions, he or she intentionally associates with another person who is a member of, or a person who promotes or directs the activities of, a terrorist organisation. However, subsection 102.8(4) explicitly identifies several exemptions to this provision, including association for the sole purpose of ‘providing aid of a humanitarian nature’ (Criminal Code, s. 102.8(4(c)). The provision does not, however, include any reference to the provision of training of a humanitarian nature, leaving a gap in the activities undertaken by many humanitarian organisations operating in NIACs. In addition, section 102.5 makes it an offence to intentionally provide training to, receive training from, or participate in training with, a terrorist organisation. There is no definition given in the legislation for “training”, creating ambiguity regarding what would constitute a crime under this section. Further, this provision is general in scope and does not contain an exemption for training that would form part of an exclusively humanitarian mission, for example the provision of first aid or medical training; or dissemination of IHL. Insofar as this relates to the dissemination of IHL, it is important to note that this is in direct opposition to the obligation placed on both States and National Societies and the ICRC to disseminate the laws of war (GCI, Art. 47; GCII, Art. 48; GCIII, Art. 127; GCIV, Art. 144 and Statutes of the International Red Cross and Red Crescent Movement, Art. 3(2)). The limitations of these provisions have not gone unnoticed. In 2013, the Council of Australian Governments (COAG) Review Committee included a

182 Petra Ball and Yvette Zegenhagen recommendation in its review of Australia’s counter-terrorism legislation. It recommended an amendment to section 102.5 of the Criminal Code to ‘specifically exclude training for purposes unconnected with terrorist acts, such as training in [IHL], human rights treaties, conflict mediation and first aid’ (COAG Review Committee, 2013, p. 24). Unfortunately, the recommendation was not supported by COAG, which decided that ‘while training provided in the context of humanitarian activities raises unique policy considerations, the practical difficulties of implementing a wholesale exemption in favour of such aid remain significant’ (COAG, 2013, p. 7). The Independent National Security Legislation Monitor noted this recommendation and COAGs subsequent dismissal of it in his 2017 report regarding sections 119.2 and 119.3 of the Criminal Code relating to declared areas (Renwick, 2017, pp. 32–33). Section 119.2 of the Criminal Code is also drafted very broadly and makes it a criminal offence for Australian citizens and residents to enter or remain in a ‘declared area’, where the person knows or should have known the area is a declared area. This provision originated from the Australian government’s concern that ‘Australians who travel to conflict zones would return … with skills and intentions acquired from fighting or training with terrorist groups’ (Australian Government). The offence carries absolute liability and a penalty of imprisonment for up to ten years applies (Criminal Code, s. 119.2(1) and (2)). Similar to section 102.8, the provision does include an exemption for those remaining ‘solely for legitimate purposes’, which includes providing ‘aid of a humanitarian nature’. Following the report of the National Security Legislation Monitor an additional exemption was included for persons performing an official duty for the UN, an agency of the UN or the ICRC (Criminal Code, s. 119.2(3) (e)). Whilst this goes some way to alleviating training concerns for some humanitarian agencies, it still leaves a vacuum for a wide variety of other humanitarian actors who are likely to be providing training-related activities that are solely of a humanitarian nature. This was noted by the Centre for Military and Security Law at the Australian National University in its submission to the National Security Legislation Monitor where they proposed an exemption that would be broad enough to capture all training by humanitarian organisations that was for a “humanitarian purpose” (2017, para. 10). These various provisions of the Criminal Code limit humanitarian actors from engaging with certain groups in circumstances where these groups are either in control of the civilian population in need or at least have access to them. If the access required for the humanitarian assistance from impartial humanitarian organisations is conditional upon providing certain training that is humanitarian in nature (for example, first aid) it is imperative that it is not prohibited by counter-terrorism laws. The ambiguity of the definition of training under section 102.5 of the Criminal Code remains untested but was briefly discussed in the Supreme Court of Victoria (R v. Vinayagamoorthy, 2010). In 2004, Dr. Whitehall, then chairperson of paediatrics and child health at the University of Western Sydney, travelled to Sri Lanka. He was there when the Boxing Day tsunami devastated the country. Whilst in Sri Lanka, Dr. Whitehall provided paediatric training to young medical

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students who were from the medical wing of the proscribed terrorist organisation, the Liberation Tigers of Tamil Eelam (LTTE). Despite not being the subject of the case, Justice Coghlan pondered whether Dr. Whitehall was guilty of an offence saying ‘technically he might be. I suspect he knows not of this offence, but … we manage to turn a blind eye’ (Hagan, 2010). Simply hoping that law enforcement and the judiciary turn a blind eye to activities that may fall foul of the legislation through lack of definitional clarity or identified exemptions is clearly not a satisfactory approach for many humanitarian organisations, which are faced with ongoing uncertainty regarding the scope and limits of these provisions vis-à-vis their activities. This example, if taken to its conclusion, could not just limit training of a humanitarian nature but ultimately impartial medical assistance more broadly. This creates a disturbing conflict with the principle of impartial medical assistance enshrined in the GCs and reiterated by States since the first Geneva Convention of 1864. The benefit of IHL is the reciprocity of care and treatment for those hors de combat including the wounded or sick on the battlefield (GCI, Art. 12; GCII, Art. 12; GCIII, Art. 16). The principle of good treatment and respect by all parties to a conflict for each other’s combatants is key to the conduct of armed conflict being consistent with international law. If one side criminalises such care and assistance the delicate balance of IHL is challenged, and the humanitarian system that has for so long supported the victims of armed conflict will come under threat (Wynn-Pope et al, 2015, p.252). Financing Measures to combat financing of terrorism under Australian legislation are increasingly also impeding humanitarian operations and assistance. These are included under the Criminal Code, contractual obligations for humanitarian organisations and UN sanctions regimes. Under section 102.6 of the Criminal Code, it is an offence to intentionally, directly or indirectly, receive funds from, or make funds available to, a terrorist organisation. There is no exemption based on humanitarian grounds in the legislation. These provisions carry serious penalties according to whether the acts were carried out in the knowledge that the group was a terrorist organisation (25 years’ imprisonment) or whether an individual was reckless in failing to ascertain this information (15 years’ imprisonment) (Criminal Code, ss. 102.6(1) and (2) respectively). Australia claims extraterritorial jurisdiction over this section and can prosecute non-citizens with the consent of the Attorney-General. This is similar to equivalent legislation in the US. The drafting of these provisions could mean that a humanitarian agency that was compelled to pay for access into a region controlled by a designated terrorist organisation to legitimately deliver humanitarian assistance to the civilian population, would be in breach of the law. These provisions therefore pose significant challenges for Australia’s humanitarian community and the ability of humanitarian actors to engage effectively and pragmatically in complex environments.

184 Petra Ball and Yvette Zegenhagen While this provision of the Criminal Code has not been tested in court, in October 2012, the Israel Law Centre (Shurat HaDin) claimed that World Vision Australia (World Vision) channelled AusAID money to fund a proscribed terrorist organisation through a Palestinian NGO, the Union of Agricultural Work Committees (UAWC). Whilst an AusAID examination concluded that there was no evidence to support this allegation (cited in Wynn-Pope et al, 2015, p. 249, fn. 84), the issue escalated again in 2016 when Israel claimed that Shin Bet (the Israel Security Agency) had determined that World Vision was channelling funds to the PFLP (Popular Front for the Liberation of Palestine) and arrested a local humanitarian worker managing the project for World Vision. Government funding to World Vision in Gaza was immediately suspended. Once again, the Australian government found no evidence of diversion of funds. World Vision funding in Gaza remains suspended until the court case in Israel against the World Vision employee is complete. As at the beginning of 2020, the Palestinian employee remains in detention. If Australia had found the allegations against World Vision to be true, the fact that the funds were intended solely for a humanitarian purpose would not have been a valid defence under section 102.6 of the Criminal Code. Yet even without wrongdoing, the allegations have had significant humanitarian consequences with World Vision operations halted in Gaza. Either way, principled humanitarian assistance is severely hampered as humanitarian assistance is unable to be provided where it is needed most. In addition to the 2012 allegations made by Shurat HaDin against World Vision Australia, there were also allegations against the broader Australia Middle East NGO Cooperation Agreement (AMENCA), which is a $35.4 million programme supporting Australia’s overall contribution to the Palestinian Territories (Department of Foreign Affairs and Trade (DFAT), 2014, p. 2). Even though the Australian government confirmed that the allegations were baseless, the experience created an extremely risk-averse environment for Australian government funding to humanitarian organisations. A subsequent independent review into risk management mechanisms in relation to counter-terrorism resulted in a number of observations surrounding onerous contractual obligations placed on Australian aid agencies in the humanitarian space (DFAT, 2014). This included expecting humanitarian organisations to know the persons or organisations that are being directly assisted; to make sure that people or organisations being directly assisted are not on either of the lists before assistance is provided; to make sure that directly funded persons or organisations are aware of and obliged to comply with these laws; to make sure that directly funded persons or organisations in turn are obliged to make sure that their distribution of the funds or support is made on the same basis. (DFAT, 2014, p. 7) The independent review also determined that each agreement for AMENCA NGO partners included ‘a clause committing the partner NGO to counter-terrorism’ (DFAT, 2014, p. 8). In 2013, DFAT also introduced a series of

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contractual amendments, including a spot-check system, designed to check up on the due diligence and financials of partner NGOs. This mechanism includes a system in which second-tier partners carry out regular checks of names of individuals and organisations against the DFAT Consolidated List (DFAT, 2014, p. 9). These requirements create uncertainty as to the extent to which humanitarian organisations can associate and cooperate with other organisations. These organisations (such as partner NGOs) may themselves be involved in breaches of the Criminal Code, either under the express counter-terrorism provisions or through other means, such as provisions aimed at combating organised crime. The requirements can jeopardise impartial humanitarian assistance by disallowing the distribution of aid and assistance in circumstances where funding might potentially reach those on the DFAT Consolidated List. The spot-check requirements could additionally lead humanitarian organisations who receive DFAT funding to be perceived as performing an intelligence collection function for the government, which could in turn put the safety of humanitarian workers at risk. Future reviews by DFAT regarding diversion of funding by humanitarian organisations must result in measures that adequately balance the need for principled humanitarian action with security concerns of the State. Any obligations for humanitarian organisations should be proportional to the risk targeted; reasonable; and effective. This reflects policy standards by inter-governmental groups such as the Financial Action Task Force (FATF). Finally, in Australia, UN sanctions regimes are predominantly given effect under the Charter of the United Nations Act 1945 (Cth) (UN Charter Act). Pursuant to the UN Charter Act, the Foreign Minister lists proscribed persons or entities for the purposes of implementing UNSC resolutions. Any breach of these laws triggers up to ten years’ imprisonment as well as substantial fines (Australian Government). Section 21 of the UN Charter Act makes it an offence to directly or indirectly make any assets available to proscribed persons or entities as listed by the Foreign Minister. An individual does not need to have intended to support terrorism to violate this law (UN Charter Act, 1945, s.21(2)) and no humanitarian exemption is provided. The Victorian Supreme Court highlighted the implications of an absence of a humanitarian exemption in this legislation in R v. Vinayagamoorthy. The case, which was noted above for the reflections of Justice Coghlan, centred around three Tamil Australians who were prosecuted under the UN Charter Act for providing resources to the LTTE. The defendants pled guilty to the charges but insisted that the funds and materials were exclusively humanitarian. The Court accepted that their motivations were ‘to assist the Tamil community in Sri Lanka’ and acknowledged that ‘the only real vehicle to do so was by dealing with the LTTE’. Whilst the Court did not find their contributions to be ‘solely confined to humanitarian work’, (para. 59) it nonetheless considered the ‘humanitarian bent’ of their acts. In ‘the interests of justice’, they were released on recognisance release orders (paras. 67 and 69). The Court’s decision could not be informed by a humanitarian exemption in the Criminal Code, but rather the defendants had to rely on the Court’s own discretion in sentencing. While common sense prevailed in this decision, it is unacceptable for humanitarian agencies to rely on hopeful optimism that if prosecuted, a Court would come to the same determination.

186 Petra Ball and Yvette Zegenhagen Implications for CA1 obligations and practical opportunities for improvement The counter-terrorism prohibitions outlined above result in the criminalisation of core activities of humanitarian organisations and their personnel that enjoy protection under the IHL regime, weakening a State’s implementation of its CA1 obligations. Whether inadvertent or not, the operational impact is that humanitarian organisations need to either break domestic counter-terrorism laws and put their personnel at risk of criminal charges or limit the location and scope of their activities in such a way that undermines impartial humanitarian work as envisaged and protected under IHL. In summary, several counter-terrorism measures currently: 1 2 3 4

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criminalise certain humanitarian activities including the provision of medical care; prevent engagement with certain parties to a conflict and therefore limit the space in which humanitarian actors can operate in a principled manner; hamper rapid or even principled humanitarian response to those in need due to increased administrative burden and donor requirements; divert humanitarian assistance away from areas where needs are greatest, to reach locations or particular environments that the government deems acceptable; and create a perception of partisanship or partiality, which can endanger the safety of humanitarian staff and programme beneficiaries as well as impede access to affected populations.

It is also worth noting that the training and financing counter-terrorism measures outlined above become impractical when there is no distinction made between the political wing and civil bureaucracy of a group. The military wing, as is the case with many non-State groups that are party to a conflict, may also be exercising effective control over particular areas and populations. This creates a blunt instrument for humanitarian organisations to work within, as seen in both the World Vision financing example and the hypothetical example related to training raised by the presiding Judge in the Victorian Supreme Court case. This not only risks the safety, dignity and well-being of those in most need in conflict zones, but also has the potential to jeopardise the safety of humanitarian workers whose acceptance by all parties to the conflict is often predicated on their impartiality, neutrality and independence. Creating a parallel legal regime where Australian organisations and personnel must operate in ways that undermine such fundamental principles of IHL is clearly in conflict with a State’s obligation to respect the GCs and APs; as well as ensure respect for the GCs and APs amongst its own population. One of the best ways of reversing this trend is for both humanitarian organisations and policy-makers to engage more closely and proactively in the development of counter-terrorism provisions. By hearing directly from humanitarian organisations that operate within counter-terrorism frameworks, a government is,

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first and foremost, taking very practical steps to comprehensively uphold its own obligation to respect IHL by seeking to understand and consider potential implications on impartial humanitarian action. Meaningful input into counter-terrorism policy and legislative development by the humanitarian sector is predicated however, on the sector’s understanding and awareness of IHL. Dissemination to the humanitarian sector can enhance its collective investment in IHL and supports the State’s obligation to disseminate the GCs to the entire population (GCIV Art. 144). In Australia, this obligation is taken seriously. One clear example of this is the support provided to Australian Red Cross to carry out IHL dissemination work to a range of key stakeholders within the Australian populace, including the humanitarian sector. This demonstration of a government respecting their legal obligation to disseminate IHL and ensuring respect for IHL amongst its own population in turn facilitates humanitarian organisations’ engagement on these issues. With confidence in their capacity to influence positively, the humanitarian sector can take greater responsibility for proactively engaging with consultation processes that focus on counter-terrorism’s interrelation with IHL principles, protections and obligations. The result is a more robust consideration, debate and implementation of all CA1 obligations. There will always be a degree of risk for humanitarian organisations operating in conflict zones. States need to acknowledge and accept this risk instead of creating a legal regime that simply criminalises the activities of those providing a critical function in some of the most dangerous and complex environments on earth.

“Different strokes for different folks”: The challenges of criminalising lawful acts under IHL for parties to a conflict that don’t serve the national interest The second section of this chapter turns to counter-terrorism laws that also aim to mitigate national security concerns, but in effect run counter to existing principles in the GCs and APs, and ultimately impinge on a State’s ability to comprehensively fulfil CA1 obligations. This section will again draw on case studies from the Australian context. While similar examples can be found in other jurisdictions (for example, the United Kingdom Counter-Terrorism and Security Act, 2015, Chapter 2; British Nationality Act, 1981, c. 61, section 40(2); and the Danish Criminal Code, 1930, Chapter 13), as noted in the introduction, Australia has been particularly active in developing its counter-terrorism legislation. Equality of belligerents under IHL IHL makes it clear that acts of terror and those designed to instil terror are unlawful (API Art. 51(2) and APII Art. 4(2)(d)). Similarly, national security and counter-terrorism legislation also make acts of terror unlawful (see for example the Criminal Code Amendment (Terrorism) Act 2003 (Cth), Chapter 5.3, subsections 100.1 (1) and (2)). However, the continued need to distinguish between the legal frameworks governing IHL and terrorism is extremely important because, despite

188 Petra Ball and Yvette Zegenhagen commonalities, they differ fundamentally in their purpose and nature. Australia states that its ‘national security and terrorism laws aims (sic) to prevent acts of terrorism and prosecute those involved in terrorism’ (Attorney-General’s Department). IHL on the other hand, aims, for humanitarian reasons, to limit the effects of armed conflict. The GCs and APs (and IHL more broadly) are, at their core, a set of laws created to balance military necessity with the dictates of humanity, and prohibit, inter alia, acts of violence directed against civilians and civilian objects (GCI-IV, Art 3; API, Arts 48– 58; CIHL Study, Rules 1, 2 and 6). In contrast to the non-dichotomous nature of violence criminalised in counter-terrorism legislation, the nature of the GCs and APs is to regulate both lawful and unlawful acts of violence carried out by parties to a conflict. Another significant point of difference between the essential nature of IHL and that of counter-terrorism legislation is that IHL is silent on the legal status of the belligerents, whereas counter-terrorism legislation is not. Under IHL, the application of IHL by belligerents does not affect the legal status of those parties (GCI-IV, Art 3; API, Arts 4, 43). This is for the very good reason that once the fighting is underway, there can be no derogation or uneven application of the lawful protections and obligations in the conduct of hostilities based on the alleged legality/illegality of the parties’ resort to force. This applies regardless of whether the arms bearer is part of a State or non-State group, or whether, in contrast to domestic counter-terrorism legislation, the action is to advance a political, religious or ideological cause (Criminal Code, s. 100.1(1)). Where the rubber hits the road part II: counter-terrorism legislation and upholding fundamental principles of IHL in the Australian context Terrorist organisations Part 5.3 of the Criminal Code deals with terrorism and as described above, Division 102 provisions relate to terrorist organisations. In Australia, an organisation may be deemed to be a terrorist organisation in a number of ways, including by a court; by being “listed” by the government under the Criminal Code regulations; or if the Australian Federal Police is satisfied on reasonable grounds that it directly or indirectly engages in preparing, planning, assisting or fostering the doing of a terrorist act or advocates terrorism (Criminal Code, s. 102.1(2)). The Criminal Code identifies the offences relating to terrorist organisations and criminalises membership of; directing the activities of; recruiting for; training or receiving training from; acquiring funds for, from or to; providing support to and association with a terrorist organisation (Criminal Code, Chapter 5, Part 5.3, Divs. 101, 102, 103). Foreign fighters Division 117 of Australia’s Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (Cth) (Foreign Fighters Act), focuses on foreign incursions and recruitment. It also makes it an offence in Part 5.5 of the Criminal Code for an Australian citizen to enter a foreign country and engage in – or have the intention

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to engage in – a hostile activity in that or any other foreign country (Foreign Fighters Act, Divs. 117 and s. 119.1). A person engages in a hostile activity in a foreign country if they engage in conduct with the intention of: overthrowing that or any other country’s government (or part of that or any other country); engaging in any activity that falls within subsection 100.1(2) of the Criminal Code; intimidating the public; causing injury or death to public officials; or unlawfully destroying or damaging government property (Foreign Fighters Act, s. 117.1). Importantly, the ‘hostile’ acts in subsection 100.1(2) are not terrorist acts unless they are made with the intention of advancing a political, religious or ideological cause; and the action or threat is done with the intention of coercing, or influencing by intimidation, a government within Australia or a foreign country; or intimidating the public or a section of the public (Criminal Code, s. 100.1(1)). The Foreign Fighters Act makes it an offence to enter into or remain in a declared area, where, under the legislation, it has been determined that a listed terrorist organisation is engaging in a hostile activity in that area of the foreign country (s. 119.2). However, section 119.8 provides exceptions to the offences regarding service in or with a specified armed force (s. 119.1); entering into and remaining in a declared area (s. 119.2) and; in relation to the recruitment to serve in or with a specified armed force (s. 119.7). In these situations, the Minister may, by legislative instrument, declare these exceptions if they are satisfied that it is ‘in the interests of the defence or international relations of Australia’ to do so. The implication is that the legality of the act turns on the person performing it, and where the act takes place. This runs counter to the basis for legality under IHL, which rests upon the act itself. Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth) The Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth) (Citizenship Act) was introduced as a result of concerns about Australians travelling overseas to fight for or otherwise assist terrorist organisations. Its purpose is to revoke the citizenship of Australians with dual nationality or citizenship, who, ‘through certain conduct incompatible with the shared values of the Australian community, demonstrate that they have severed that bond and repudiated their allegiance to Australia’ (Citizenship Act, s. 4). This includes where the person is a member of a declared terrorist organisation or acting on instruction of, or in cooperation with, a declared terrorist organisation (Citizenship Act, s. 33AA 1(4)). This legislation is being utilised and has highlighted a myriad of complexities. For example, Australian-born Neil Prakash travelled to Syria in 2013 to become a “fighter” for Islamic State. In 2016, Prakash crossed from Syria into Turkey where he was arrested and found guilty in 2019 of being a member of a terrorist organisation under Turkish law. He is currently serving a seven-year prison sentence in Turkey with release likely in 2021. In December 2018, utilising the Citizenship Act, the Australian government ceased Prakash’s citizenship on the grounds that he also held Fijian citizenship – a status denied by both Prakash and Fijian immigration authorities. The revocation of Prakash’s citizenship by Australia caused the

190 Petra Ball and Yvette Zegenhagen Turkish judges, at his trial in March 2019, to express some confusion as to what would happen to Prakash upon his release and if indeed he had been rendered stateless (Tlozek, 2019). Australian Federal Police had previously sought to extradite Prakash to face six terrorism-related charges; a request denied by the Turkish government before Prakash’s trial (Tlozek, 2018). It is worth noting that credible grounds existed in 2016 for Australia to investigate Prakash’s involvement in international crimes and offences such as sexual slavery and inciting genocide (Hutchinson, 2016). Implications for CA1 obligations and practical opportunities for improvement These pieces of legislation make it illegal for someone who is a member of a certain party to a conflict to kill an enemy soldier in accordance with principles of IHL. Equally disturbingly, the laws may also criminalise people from providing impartial medical assistance as a member of the medical wing of a particular party to an armed conflict, as provided for under the GCs and APs. At the time of writing, cases before the Australian courts are examining the applicable counterterrorism laws regarding engagement in the medical wing of a party to an armed conflict considered a terrorist group; decisions are currently pending. It is therefore unclear whether CA1 or other IHL implications are being considered. In addition, Australian fighters in foreign forces are potentially committing a crime under Australian law for a range of politicised reasons regardless of whether their conduct complies with the GCs and APs. This includes: being a member of a party to an armed conflict that Australia has declared to be a terrorist organisation; entering a part of a country where these groups are known to be active; or, in the arguably subjective assessment of leaders of the day, fighting with or in the services of a particular force not positively declared to be ‘in the interests of the defence or international relations of Australia’ (Criminal Code, ss. 102.3 (1) (a), 119.2 (1) (a), 119.8 and 119.9). In this regard, Australia’s domestic counter-terrorism regime creates a legal framework at odds with IHL, underscoring the need to have IHL and particularly CA1 front of mind when drafting counter-terrorism legislation. As noted above, under IHL, it is the act and not the perpetrator that determines whether there is a violation of the law. The criminalising of acts under international and domestic counter-terrorism laws, on the basis of where they take place, who takes part in them and because they are ‘done or the threat is made with the intention of advancing a political, religious or ideological cause’ erodes the central tenet of equality of belligerents found in IHL. Such domestic criminalisation creates conflicting obligations for States at the international level and arguably, in the specific case of its counter-terrorism laws, a State’s capacity to uphold its CA1 obligation to respect the GCs and APs. In the Australian context, upholding the above domestic counter-terrorism laws at the expense of the principle of “equality of belligerents” not only undermines Australia’s obligation to respect the GCs and APs, but also its efforts to ensure respect for them more broadly. Creating inequality of belligerents can contribute

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to the asymmetry of conflict more generally, in which ‘obstacles seen as insurmountable could make both sides feel inclined and ultimately compelled vastly to expand their perception of what is necessary to overcome the enemy’ (Geiss, 2006, p. 767). The ICRC also notes this trend, explaining that designating acts that are not unlawful under IHL as “terrorist” may also discourage IHL compliance by non-State armed groups party to a NIAC. Any motivation they may have to fight in accordance with IHL would likely erode if, irrespective of the efforts they may undertake to comply with it, all of their actions are deemed unlawful. (ICRC, 2015, p. 18) When Australia, through its domestic counter-terrorism laws, erodes the “equality of belligerents” principle because of its own ideological leanings, through haste, or simple lack of care in drafting legislation and consideration of existing binding international frameworks, it arguably paves the way for parties to a conflict to similarly abrogate from that principle’s obligations for their own reasons. This could include ideology or a perceived deficit in capacity to comply with IHL, or simply an assessment of achieving military outcomes expedited by ignoring humanitarian norms. Undermining belligerent equality is opening ‘a “Pandora’s box” that could threaten the legitimacy and effectiveness of IHL, and might lead to lower – not greater – compliance with its norms’ (Shany, 2011, pp. 432–433). In this way, Australia’s treatment of belligerents means it is not taking all measures available to it to ensure respect for the GCs and APs. In Chapter 1, Massingham and McConnachie identify that enacting legislation to provide effective sanctions for breaches of IHL is an important duty for States to demonstrate respect for IHL. Australia’s ongoing amendments to its Criminal Code, for example in 2002, to provide for fair trials of the grave breaches of API, have facilitated that obligation (International Criminal Court (Consequential Amendments) Act 2002 (Cth) (Schedule 1)). However, the Citizenship Act poses challenges to Australia’s obligations in this regard. In rescinding the citizenship of its nationals on the basis that it reduces the risk of future threats posed in Australia by that citizen, Australia is arguably prioritising domestic counter-terrorism measures above the pre-existing obligation to suppress and repress all acts contrary to the provisions of the GCs and APs and to search for and prosecute alleged war criminals (GCIV, Art 146; API, Art 86; Lloydd, Chapter 15). Grave breaches of the GCs and other serious violations of IHL, by their nature, attract the ambit of universal jurisdiction. This means that States are obligated to bring such alleged criminals before their own courts regardless of their nationality (GCIV, Art. 146). This status is not granted to crimes under counter-terrorism legislation per se and prima facie, Australia could be focused on prosecuting less egregious crimes at the expense of those of a more serious nature. Australia’s preference over the last several decades has been to extradite its citizens accused of war crimes back to the countries in which the crimes were allegedly committed and which at the time, was the country of the alleged criminal

192 Petra Ball and Yvette Zegenhagen (Skillen and Zegenhagen, 2020, p. 496). It is unclear how it would proceed in a case, such as Prakash, in which the accused is no longer its own citizen and has in fact no real connection with any country other than Australia (Skillen and Zegenhagen, 2020, pp. 496–497). It is clear, however, that in rescinding a person’s citizenship on the basis of counter-terrorism-related crimes, in distancing itself from that person, the implications of the Citizenship Act are consistent with its general approach of making alleged war criminals the obligation of another State. If Australia relies on third States to investigate and prosecute possible violations of IHL, it is at risk of failing to ‘ensure respect’. Further, should a possible war criminal be ill-treated by that third party’s detaining authorities, Australia could fail to ensure respect for fundamental IHL guarantees (GCI-IV, Art. 3; GCIII, Art. 130; GCIV, Arts. 5/147; API, Arts. 75/85; APII, Arts. 4–6). In this way, Australia’s counter-terrorism legislation promotes a less than robust implementation of CA1 obligations. In relying on other States to do this work, Australia is at odds with the general understanding that a State expresses its own statehood through its authority over its citizens and its primary jurisdiction over offences that are also within the jurisdiction of the International Criminal Court. If Australia is failing to lead by leaving it to other States to (possibly) investigate and prosecute IHL violations, then arguably on a policy level, Australia, and countries like it, run counter to their own rhetoric around the value of a ‘rules based, global order’ that supports security interests (for example, Australian Department of Defence, 2016, White Paper, pp. 45; Australian Department of Foreign Affairs and Trade, 2017, White Paper). This inconsistency exacerbates CA1 obligations to ensure respect by undermining the ability to influence others to respect the GCs and APs in both specific and general circumstances.

Overall challenges and opportunities across the counter-terrorism regime There are a range of relatively easy practical initiatives that States, and civil society actors, can undertake in order to improve the ways in which counter-terrorism legislation is considered, adopted and applied in a domestic context. Drawing largely from the Australian experience, the following could improve a State’s capacity to fulfil its CA1 obligations more comprehensively in relation to counter-terrorism measures. National IHL Committees (as mentioned by Pratt in Chapter 4) can be a forum through which States discuss challenges in balancing security and policy considerations as well as IHL obligations. Many National IHL Committees include academics and other IHL experts as well as National Red Cross and Red Crescent Society members, with ICRC acting as observers. This can provide lawmakers and bureaucrats a useful forum for robust and constructive dialogue in ensuring more effective domestic counter-terrorism measures. States might consider creating a National IHL Committee, or if one already exists, utilising it to table discussions relating to counter-terrorism and IHL.

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Compulsory training for public servants on IHL is also an important way of ensuring that those drafting counter-terrorism laws have due regard for humanitarian imperatives and other basic principles of IHL. Voluntary reporting by States on their domestic implementation of IHL is something with which a number of States have long engaged. A good example is the United Kingdom (Foreign and Commonwealth Office, 2019) which has recently adopted this practice. This is an excellent way for States to review strengths, challenges and opportunities to improve their CA1 obligations in a transparent and productive manner. The United Kingdom drew on their National IHL Committee and relied on a strong partnership with the British Red Cross to complete their first voluntary report. Voluntary reporting was a topic of discussion between States and the International Red Cross and Red Crescent Movement at the 33rd International Conference of the Red Cross and Red Crescent in December 2019 with seven regionally diverse States cosigning a shared voluntary ‘pledge’ to undertake such studies over the next four years. Not only does a voluntary report improve a State’s respect for IHL, it also positively encourages others to do likewise and could spark further debate on IHL implementation amongst States hence also contributing to a State ensuring respect for IHL as well. At a global level, States have the opportunity to champion robust inclusion of IHL and principled humanitarian action in regional and global policy frameworks. This has already proven effective in recent UNSC resolutions that contain greater reflection on both these areas (for example in UNSC Res. 2462 (2019)). Civil society has a critical role to play in assisting a State respect and ensure respect for the GCs and APs. National Red Cross and Red Crescent Societies, law societies, academic and humanitarian organisations can all contribute more actively in lawmaking processes as counter-terrorism legislation is developed. Civil society should not underestimate the impact it can have in improving the legislative landscape (for example, the Centre for Military and Security Law within the Australian National University submission to the National Security Legislation Monitor mentioned above which resulted in improved humanitarian exemptions in Division 119 of the Criminal Code). Of course States too should ensure that any proposed legislation is assessed against other legal obligations, such as those in the GCs and APs, ensuring lawmakers and those that interpret the law (for example, the judiciary) are well informed of the legal frameworks when executing their roles critical to respecting GCs and APs domestically. In common law systems, such as Australia’s, the judiciary has a critical role to play in the interpretation of domestic laws and in ensuring respect for IHL. Whilst due regard must be paid to international laws, the judiciary, prosecutors and defenders are not necessarily familiar with IHL, nor the intricacies of balancing obligations found in the GCs and APs with those found in the domestic counterterrorism legislation that they are interrogating through the court system. Again, academics and National Red Cross and Red Crescent Societies (or in the absence of a National Society, the ICRC) have a useful role to play in this regard. Briefings and seminars for relevant members of the judiciary are important and ideally could

194 Petra Ball and Yvette Zegenhagen include legal staff of the appropriate courts who assist judges and often go on to work as prosecutors and defence counsel. Though there is not a strong tradition of this in Australia, there may also be opportunities for sufficiently qualified individuals or organisations to be proactive in submitting amicus curiae briefs to the court in relation to relevant counter-terrorism cases, so that all parties have access to relevant information, expertise and insights on IHL principles and potential conflicts with counter-terrorism legislation. Finally, it is worth acknowledging that counter-terrorism legislation developed in Australia and elsewhere is created in a very particular domestic and global political environment. Often decision-makers will look to counter-terrorism measures to solve any number of political or policy challenges. It is therefore imperative that parliamentarians are aware of how counter-terrorism regimes sit within a broader set of legal obligations of the State, including, importantly IHL and CA1 obligations. Several IHL handbooks for parliamentarians have been developed globally, within the Pacific and most recently for parliamentarians within the Commonwealth and provide an excellent starting point for a range of IHL experts and civil society actors (including humanitarian organisations) to engage with decisionmakers on this delicate topic.

Conclusion Both international and national counter-terrorism laws and IHL serve to support international peace and security (UNSC Res. 2178 (2014)). The above exploration of recent Australian counter-terrorism legislation reveals that States – unintentionally or not – are failing to strike a sufficient balance between the two areas of law and frictions emerge in a way that does not demonstrate a strong, robust and meaningful application of their CA1 obligations. Further, if counter-terrorism legislation and practice lead to a weakening of a State’s capacity to respect the GCs and APs, then it may also result in the decline of a State’s credibility and moral authority to influence others to also respect the Conventions. This could ultimately decrease a State’s ability to take all practical measures to fulfil its obligation to ensure respect for the GCs and APs. Australia’s legislation provides a cautionary tale, but also opens the door to considering a range of positive practical steps that States can undertake to remedy this at local, regional and global levels. These include: the utilisation of National IHL Committees and the “safe space” it creates for robust discussion on draft counter-terrorism legislation; disseminating IHL to civil servants, specific members of the judiciary and decision-makers; opening up of court culture to incorporating expert legal opinion from authoritative third parties; and embracing the creation of fora, such as the International Conference of the Red Cross and Red Crescent Movement, for States to share their experience of implementing IHL at the domestic level. Ultimately the authors hope that recommitting and reinforcing the importance of IHL within counter-terrorism legislation will lead, not only to better humanitarian outcomes, but greater compliance with IHL, not just by States, but by non-

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State armed groups that are the subject of counter-terrorism legislation. Striking the right balance between the objectives of these two legal frameworks will serve to realise the obligations of CA1 to both respect and ensure respect for humanitarian imperatives set out in the GCs and APs.

References (additional to the common list) Cases Supreme Court of Victoria, R v. Vinayagamoorthy, VSC 148, 31 March 2010.

Legislation Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth). Civil Aviation (Offenders on International Aircraft) Act 1970 (Cth). Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (Cth). Crimes (Aviation) Act 1991 (Cth). Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth). Criminal Code Amendment (Terrorism) Act 2003 (Cth). Criminal Code Act 1995 (Cth). International Criminal Court (Consequential Amendments) Act 2002 (Cth).

Documents Attorney-General’s Department, National Security and Counter-terrorism Law, available at: https://www.ag.gov.au/NationalSecurity/Counterterrorismlaw/Pages/default.aspx. EU Council Directive, (EU) 2017/541 of 15 March 2017 on Combating Terrorism and replacing Council Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA. UNSC Res. 1373 (28 September 2001). UNSC Res. 1456 (20 January 2003). UNSC Res. 2178 (2014). UNSC Res. 2462 (28 May 2019). The United Nations Global Counter-Terrorism Strategy, UN Doc A/RES/60/288 (8 September 2006).

Press Bush, G. (Address, Joint session of Congress, 20 September 2001), available at: http:// edition.cnn.com/2001/US/09/20/gen.bush.transcript/. Hagan, K. ‘“Terror Arrest” at Gunpoint: Police Warned’, Sydney Morning Herald (online, 5 February 2010), available at: www.smh.com.au/national/terror-arrest-at-gunpointpolice-warned. Tlozek, E. ‘Australian Islamic State Recruiter Neil Prakash Sentenced to Jail in Turkey’, The Age (online, 16 March 2019) available at: https://www.abc.net.au/news/2019– 03-16/neil-prakash-sentenced-to-jail-in-turkey/10907510.

196 Petra Ball and Yvette Zegenhagen Tlozek, E. ‘Neil Prakash, Islamic State Terrorist, Stripped of Australian Citizenship’, ABC News (online, 29 December 2018) available at: https://www.abc.net.au/news/2018– 12-29/neil-prakash-stripped-of-australian-citizenship/10672806.

Secondary sources Adelsberg, S., Pitts, F. and Shebaya, S. (2012–2013). ‘Chilling Effect of the Material Support Law on Humanitarian Aid: Causes, Consequences, and Proposed Reforms’, Harvard National Security Journal 4 (2), 282–319. Australian Department of Defence, White Paper, 2016. Australian Department of Foreign Affairs and Trade, White Paper, 2017. Australian Government, Australian National Security, available at: https://www.nationalsecurity.gov.au/WhatAustraliaisdoing/Pages/DeclaredAreaOffence.aspx. Burniske, J. and Modirzadeh, N. K. (2017). ‘Pilot Empirical Survey Study on the Impact of Counterterrorism Measures on Humanitarian Action’. Harvard Law School Program on International Law and Armed Conflict, Counterterrorism and Humanitarian Engagement Project. Centre for Military and Security Law (1 May 2017). Submission to the Independent National Security Legislation Monitor. COAG (2013). Response to the COAG Review of Counter-Terrorism Legislation available at: http://www.coag.gov.au/sites/default/files/communique/COAG%20Response%20to% 20COAG%20Review%20of%20Counter-Terrorism%20Legislation%20-%20PDF.pdf. COAG Review Committee (2013). Review of Counter-terrorism Legislation available at: https:// www.ag.gov.au/Consultations/Documents/COAGCTReview/Final%20Report.PDF. Department of Foreign Affairs and Trade (DFAT) (2014). Risk Management Review of the Australia-Middle East NGO Cooperation Agreement, Final Report, May available at: https://www.dfat.gov.au/sites/default/files/aus-middle-east-ngo-coop-agreementamenca-risk-management-assessment-may-14.pdf. Foreign and Commonwealth Office (11 March 2019). Voluntary Report on the Implementation of International Humanitarian Law at Domestic Level available at: https://assets.publishing. service.gov.uk/government/uploads/system/uploads/attachment_data/file/784696/Volu ntary_Report_on_the_Implementation_of_International_Humanitarian_Law_at_Domestic_ Level.pdf. Geiss, R. (2006). ‘Asymmetric Conflict Structures’, International Review of the Red Cross, 88 (864) 757–777. Hutchinson, S. (2016) ‘Neil Prakash is More than Just a Terrorist’ The Interpreter, The Lowy Institute available at: https://www.lowyinstitute.org/the-interpreter/neil-prakash-more-just-terrorist. ICRC (2015). International Humanitarian Law and the Challenges of Contemporary Armed Conflicts available at: https://www.icrc.org/en/document/international-humanitarian-law-and-challenges-contemporary-armed-conflicts. Independent National Security Legislation Monitor (2017). Sections 119.2 and 119.3 of the Criminal Code: Declared Areas available at: https://www.inslm.gov.au/sites/default/files/ files/declared-areas.pdf. Renwick, J. (2017). Sections 119.2 and 119.3 of the Criminal Code: Declared Areas Independent National Security Legislation Monitor Report. Roach, K. (2011). The 9/11 Effect: Comparative Counter-Terrorism. Cambridge University Press.

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Shany, Y. (2011). ‘Debate: Should the Obligations of States and Armed Groups Under IHL Really be Equal? A Rebuttal to Marco Sassoli’, International Review of the Red Cross No. 882, 432–436. Skillen, G. and Zegenhagen, Y. (2020). ‘Implementation of International Humanitarian Law Obligations in Australia: A Mixed Record’ in Linton, S., McCormack, T. and Sivakumaran, S. Asia-Pacific Perspectives on International Humanitarian Law. Cambridge University Press. Williams, G. (2011). ‘A Decade of Anti-Terror Laws’, Melbourne University Law Review 35 (3) 1136–1176. Wynn-Pope, P., Kurnadi, F. and Zegenhagen, Y. (2015). ‘Legislating Against Humanitarian Principles: A Case Study on the Humanitarian Implications of Australian Counterterrorism Legislation’, International Review of the Red Cross 97(897/898), 235–261.

13 Ensuring respect for IHL as it relates to humanitarian activities Nathalie Weizmann*

Introduction In situations of armed conflict, humanitarian organisations and other actors often play a key role in the provision of humanitarian services for persons in need. To allow humanitarian activities to be carried out, IHL sets out a number of obligations for parties to an armed conflict. In addition, IHL addresses the role of third States in allowing humanitarian activities. Furthermore, third States may take additional steps, ranging from political commitments and diplomatic efforts to UNSC measures authorising humanitarian operations, monitoring impediments, and imposing sanctions. In practice, however, it can be difficult to determine whether such efforts are grounded in a legal obligation to ensure respect for IHL or are made as a matter of policy and good practice, as States do not necessarily specify the basis for such actions.

IHL obligations of parties to an armed conflict concerning humanitarian activities In order to identify the range of measures available to third States to ensure respect for IHL in relation to humanitarian activities, it is important to lay out the relevant IHL obligations of parties to an armed conflict. Humanitarian activities encompass both protection and assistance. Protection services can entail visits to persons deprived of their liberty or dialogue with authorities on their IHL obligations, with the aim of ensuring that parties to a conflict respect IHL (2016 Commentary, paras. 814–17). Assistance consists of all activities, services and the delivery of goods carried out primarily in the fields of health, water, habitat … and economic security … which seek to ensure that persons caught up in an armed conflict can survive and live in dignity. It can include the provision of food and medicine, repairs to water supply and treatment systems, construction of medical facilities, clearance of mines and unexploded *

The views expressed herein are those of the author and do not necessarily reflect the views of the United Nations.

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ordnance, and microeconomic or capacity-building initiatives designed to bolster livelihoods (2016 Commentary, para. 820). Humanitarian relief can be understood as a narrower subset of assistance, consisting of items essential for survival that typically include water, food, medical supplies, clothing, bedding, means of shelter, fuel for heating, and of items needed for religious worship. What constitutes assistance can often depend on the local conditions (2016 Commentary, para. 819). IHL contains rules relating to collective humanitarian relief operations, as well as some more general rules relating to broader humanitarian activities. The most specific rules of IHL relating to humanitarian activities focus on the narrower notion of relief. Whenever offers of collective humanitarian relief are made in situations of international armed conflict (IAC) (other than occupation) or non-international armed conflict (NIAC), consent is required from the State party in whose territory the humanitarian relief is carried out (pursuant to API Art. 70, APII Art. 18, Akande and Gillard, 2016, section D). Consent may only be withheld for valid and compelling reasons. These can include imperative considerations of military necessity; however, consent should not be withheld beyond what military necessity demands and the consequent suffering of civilians should not be disproportionate (Akande and Gillard, 2014, pp. 10–11). Although IHL does not define the term ‘military necessity’, it is commonly understood as reflecting the parties’ security concerns. Consent may not be withheld arbitrarily when civilians are inadequately provided with essential supplies and when the relief operations are exclusively humanitarian and impartial in character and conducted without any adverse distinction (CIHL Study Rule 55; Akande and Gillard, 2016, section E; AP Commentary, para. 2805; 2016 Commentary, paras. 832–39; Bothe, Partsch and Solf, 2013, p. 434). There are, in addition, two situations in which a State has no latitude to withhold consent. First, in situations of occupation, if the civilian population, in whole or in part, is not adequately provided with supplies essential to its survival, the occupying power has an absolute obligation to consent to impartial humanitarian relief operations (pursuant to GCIV Art. 59). Second, the UNSC may adopt a binding decision authorising humanitarian assistance in a given context and overriding the requirement of State consent. This has been the case with UN humanitarian assistance in Syria since 2014 (UNSC Res. 2165 (2014)). Expressing deep disturbance by ‘the continued, arbitrary and unjustified withholding of consent to relief operations’ and noting the UN Secretary-General’s view that ‘arbitrarily withholding consent for the opening of all relevant border crossings is a violation of [IHL]’, the UNSC, for the first time, overrode the State’s requirement of consent and decided to authorise UN humanitarian agencies and their implementing partners to use routes across conflict lines and certain border crossings in order to ensure that humanitarian assistance reached people in need throughout the country. Once consent to an offer of humanitarian relief has been obtained, all parties to the armed conflict must allow and facilitate rapid and unimpeded passage – over land, water, or by air – of humanitarian relief consignments, equipment and personnel (pursuant to API Art. 70; CIHL Study Rule 55). GCIV Art. 23 also requires that the parties allow the free passage of consignments of medical and hospital stores, objects necessary for religious worship, and consignments of

200 Nathalie Weizmann essential foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers and maternity cases. While GCIV Art. 23 also subjects this obligation to allow free passage to some limitations (eg. that there are no serious reasons for fearing that the consignments may be diverted from their destination), the consensus today is that it must be read in light of API Art. 70, which is understood to represent customary international law. Thus, all States bear this API Art. 70 obligation to allow and facilitate rapid and unimpeded passage of humanitarian relief, without the limitations set out in GCIV Art. 23 (Akande and Gillard, 2016, para. 88). Measures to allow and facilitate passage can include waiving, simplifying or expediting entry procedures for humanitarian personnel or customs inspection requirements, exemptions from taxes, duties and fees, and ensuring adequate staffing and schedules so that bureaucratic formalities can be met efficiently and expeditiously (Akande and Gillard, 2016, section F; Annex, SecretaryGeneral Report, U.N. Doc. S/2009/277, 2009). The obligation to allow and facilitate passage is subject to the parties’ right to prescribe measures of control, such as the search of consignments to verify that they are exclusively humanitarian, the use of prescribed routes at specific times so that relief convoys do not interfere with, and are not endangered by, military operations or measures to ensure that medical supplies and equipment comply with health and safety standards (pursuant to API Art. 70(3)(a) and AP Commentary, para. 2831; CIHL Study Rule 55). Such arrangements must not infringe the obligation to allow and facilitate rapid and unimpeded passage (AP Commentary, para. 2831). Moreover, only in exceptional cases can relief supplies be delayed or diverted from their intended destination (pursuant to GCIV Art. 60 and API Art. 70(3)(c)). And only in case of imperative military necessity can the activities of the relief personnel be limited, or their movements temporarily restricted (pursuant to API Art. 71(3); CIHL Study Rule 56). Parties to an armed conflict must also respect and protect humanitarian relief personnel during military operations (pursuant to API Art. 69 and 71; CIHL Study Rule 31). It is prohibited to direct attacks against them. Practice indicates that it is also prohibited to harass, intimidate, or arbitrarily detain them (CIHL Study Rule 31). The parties must also respect and protect objects that are used for humanitarian relief operations, such as supplies, installations, material, units or vehicles; their destruction, misappropriation and looting are equally prohibited (pursuant to API Art. 70; CIHL Study Rule 32). Refusing the passage of humanitarian relief intended for civilians in need, including by deliberately impeding humanitarian relief or restricting the freedom of movement of humanitarian relief personnel, may constitute a violation of the obligation to allow and facilitate rapid and unimpeded passage and of the prohibition of starvation (pursuant to API Art. 54(1); APII Art. 14; CIHL Study Rule 53). It may also be a war crime (pursuant to Arts. 8(2)(b)(xxv) and Arts. 8(2)(e) (xix) Rome Statute of the International Criminal Court. In relation to humanitarian activities more broadly, the GCs recognise that impartial humanitarian organisations may offer their services in both IAC and in NIAC, subject of course to State consent (pursuant to Common Article 9 to GCI,

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GCII and GCIII, GCIV Art. 10, Common Article 3 to the GCs, 2016 Commentary, para. 828). Furthermore, in IAC, Article 81 API states that parties to the armed conflict: shall grant to the [ICRC] all facilities within their power so as to enable it to carry out the humanitarian functions assigned to it by the Conventions and this Protocol in order to ensure protection and assistance to the victims of conflicts; the [ICRC] may also carry out any other humanitarian activities in favour of these victims, subject to the consent of the Parties to the conflict concerned. The same Article sets out an equivalent obligation on parties to the conflict to facilitate the assistance offered by Red Cross and Red Crescent organisations to victims of armed conflict. As for other humanitarian organisations, Article 81 requires that parties to the armed conflict, ‘as far as possible’, make facilities available to them, typically consisting of ‘permits for persons and goods, transport facilities for goods and other equipment, exemptions from import taxes and customs duties’ (AP Commentary, para. 3331). Facilities can also be for the rapid transfer of funds for humanitarian work or for the transmission of correspondence (17th Red Cross Conf., 1948, Res. XL).

IHL obligations of third States relating to humanitarian activities IHL treaty provisions applicable in IAC explicitly set out obligations for all States, whether or not they are party to the conflict, to consent to, and allow and facilitate, the free passage of relief consignments. This is made clear by treaty references to all ‘Contracting Parties’ or each ‘High Contracting Party’. The third States foreseen in these provisions will typically be States in whose territory humanitarian relief operations are initiated or transit. In situations of occupation, there is general agreement that a High Contracting Party, which can be a third State, does not have any latitude to withhold consent to humanitarian relief (Akande and Gillard, 2016, p. 38). The wording on this is clear; Article 59 GCIV states, ‘[a]ll Contracting Parties shall permit the free passage of these consignments and shall guarantee their protection’. Regarding other situations of IAC, Article 70(1) API requires ‘the agreement of the Parties concerned in such relief actions’. There is a divergence of views among legal experts as to whether the reference here to ‘Parties concerned’ refers only to parties to the armed conflict or also to third States where relief operations are initiated or transit. It has been proposed that the latter interpretation should prevail as it is in keeping with both the wording of the provision and general principles of international law: consent is required of parties to the armed conflict and of States where relief operations are initiated or transit (see for example Air and Missile Warfare Manual, commentary to Rule 100(a), para. 6; Akande and Gillard, 2016, p. 40). Importantly, third States not party to an armed conflict ‘are likely to be entitled to withhold consent to humanitarian relief operations in fewer situations than parties to an armed conflict’ (Akande and Gillard, 2016, p. 41) as they would not be in a

202 Nathalie Weizmann position to invoke ongoing combat operations or imperative considerations of military necessity as a State party to the conflict would. Their consent may not be withheld arbitrarily. In IAC, third States must also allow and facilitate rapid and unimpeded passage of humanitarian relief once consent is obtained. Article 70 API states, ‘The Parties to the conflict and each High Contracting Party shall allow and facilitate rapid and unimpeded passage of all relief consignments, equipment and personnel provided in accordance with this Section …’. It has been argued that ‘passage should be simpler and swifter through the territory of non-belligerent states than through that of parties to an armed conflict’ as the former will likely need to factor in fewer security considerations (Akande and Gillard, 2016, p. 44). Paragraph 5 of the same Article adds that each High Contracting Party concerned, including donors and transit countries, shall encourage and facilitate effective international coordination of relief actions taken under this provision. The relevant treaty rules applicable in NIAC, found in Common Article 3 to the GCs and Article 18 APII, are silent on the consent of third States and on their obligation to allow and facilitate passage. Nevertheless, it can be argued that the customary obligation to ensure respect for IHL applies vis-à-vis the parties’ customary obligation not to arbitrarily withhold consent to, and to allow and facilitate rapid and unimpeded passage of, impartial humanitarian relief for civilians in need (CIHL Study Rules 55 and 144; 2016 Commentary, para. 840). In support of the role that neighbouring third States should play, the Guiding Principles for humanitarian assistance annexed to UNGA Resolution 46/182 (1991) urge ‘[s]tates in proximity to emergencies … to participate closely with the affected countries in international efforts, with a view to facilitating, to the extent possible, the transit of humanitarian assistance’. In practice, a number of neighbouring third States have permitted humanitarian relief operations to begin in and transit their territory before reaching a State party to a conflict. In Sudan (before its division in 2011), for instance, deliveries of humanitarian assistance had been initiated in neighbouring Ethiopia, Kenya and Uganda. More recently, crossborder aid delivery has taken place from South Sudan. On humanitarian activities more broadly, Article 81 API requires all High Contracting Parties to facilitate in every possible way the assistance that Red Cross and Red Crescent organisations offer for victims of armed conflict in another country. With more nuanced wording, the same Article also requires all High Contracting Parties to make similar facilities available to other humanitarian organisations ‘as far as possible’. As mentioned above, these can include facilities for travel, transmission of correspondence, transfer of funds, and rapid movement of supplies, as well as exemptions from customs duties (17th Red Cross Conf., 1948, Res. XL).

Practical steps taken by third States Through diplomacy, advocacy and dissemination, third States have taken a range of steps to enable humanitarian activities in line with IHL. It can be difficult to determine whether such steps have been taken as a matter of law or policy, or

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whether any given measure has directly resulted in compliance with IHL and enabled humanitarian activities. But, taken together over months or even years, third States’ measures will typically serve to compound the pressure put on parties to an armed conflict to improve their behaviour. Several States have voluntarily reported relevant activities as a follow-up to the political commitments they made during the 2016 World Humanitarian Summit. For instance, Austria, Belgium, France, New Zealand and Spain committed to use their leverage and influence to prevent and end any arbitrary withholding of consent to impartial humanitarian relief or to facilitate and ensure safe humanitarian access to all people in need in armed conflict. Soon after the Summit, the UN established an online platform to allow the public to search these commitments and subsequent annual reports on their implementation. To illustrate, Denmark has reported that in Myanmar in 2017, the Danish-led Heads of Mission Group helped negotiate humanitarian access to Northern Rakhine for the ICRC and the Myanmar Red Cross. Spain has reported that it uses its leverage and influence at bilateral and multilateral levels to foster impartial humanitarian relief and access in contexts such as Palestine, Yemen, Nigeria and Mali (Agenda for Humanity reporting, 2018 and 2019). As another illustration of a third State’s use of influence in this regard, during a workshop held at UN headquarters in New York in December 2018, the Netherlands reported consistent diplomatic efforts at the highest levels in Bangladesh, Myanmar, the Democratic Republic of the Congo and Central African Republic to enable humanitarian assistance activities. They also described imposing strict donor conditions in order to assert that parties to an armed conflict cannot misappropriate humanitarian funds. Canada has spoken out on humanitarian access constraints in specific countries – including Syria, Myanmar, Ukraine, Mali and Iraq – by issuing statements calling for full, safe and unhindered humanitarian access, condemning incidents where humanitarian personnel and facilities have been attacked, and recalling legal obligations. Through its diplomatic channels, Germany has strongly condemned attacks on the humanitarian mission and has advocated in international fora for respect of IHL and humanitarian access. It has also supported principled humanitarian actors in their humanitarian negotiation efforts (UN OCHA, 2018 and 2019). In September 2019, France and Germany launched a collective ‘Call for Action’ setting out concrete measures and recommendations to improve compliance with IHL as it relates to humanitarian action. Measures include IHL dissemination and training, the adoption of appropriate domestic legislation, and preventing negative consequences of sanctions and counter-terrorism measures on humanitarian activities (Call for Action, 2019). More than 40 States have endorsed it.

Security Council measures Third States’ multilateral diplomacy can also play an important role in enabling humanitarian activities. As will be illustrated below, via the UNSC whose decisions are legally binding pursuant to Article 25 of the UN Charter, third States have

204 Nathalie Weizmann adopted a number of resolutions recalling the rules of IHL as they relate to humanitarian assistance, and encouraged a wide range of measures – by parties to an armed conflict and by other third States – to effectively ensure respect for them (Arendt, 2019). Some measures relate specifically to country situations, while others are found in thematic resolutions. Via the UNSC, third States have often given UN peacekeeping forces and political missions a role to play in facilitating humanitarian assistance. Targeted sanctions can serve to address the obstruction of humanitarian assistance by certain entities or individuals, however in other instances sanctions and counter-terrorism measures can inadvertently impede humanitarian activities unless safeguards are in place. A. Country-specific measures In a number of country-specific resolutions, the UNSC has not only recalled IHL as it relates to humanitarian assistance, but it has also requested intensified efforts to enable humanitarian activities, and has even taken decisive action to authorise humanitarian assistance in the absence of State consent. As mentioned above, upon determining in 2014 that the deteriorating humanitarian situation in Syria constituted a threat to peace and security in the region, the UNSC, for the first time, overrode the requirement of State consent and unanimously adopted a legally binding decision to authorise UN humanitarian agencies and their implementing partners to use routes across conflict lines and certain border crossings, with notification to the Syrian authorities, in order to ensure that humanitarian assistance reached people in need throughout the country (UNSC Res. 2165 (2014)). The resolution has been renewed on a regular basis, most recently in January 2020, albeit for only two of the original four named border crossings (UNSC Res. 2504 (2020)). Since 2014, the UN Secretary-General has reported regularly to the UNSC on successes and challenges in the implementation of this and subsequent resolutions renewing it. The UN and its implementing partners continue to deliver humanitarian assistance under this UNSC authorisation. While the UNSC has not taken such legally binding decisive action in any other country-specific resolution, in 2018, the UN Human Rights Council (UNHRC) adopted a resolution on the ‘Promotion and protection of human rights in the Bolivarian Republic of Venezuela’ that called upon: the Government of the Bolivarian Republic of Venezuela to accept humanitarian assistance in order to address the scarcity of food, medicine and medical supplies, the rise of malnutrition, especially among children, and the outbreak of diseases that had been previously eradicated or kept under control in South America. (UNHRC Res. 39/L.1/Rev. 1 (2018))

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Though not a situation of armed conflict, it is nevertheless interesting to note that, via the UNHRC, third States can also take steps to urge acceptance of humanitarian assistance when a territorial State has refused it. Short of overriding the requirement of State consent, the UNSC has requested parties to an armed conflict, and even the UN Secretary-General, to take action. In 2015, the UNSC adopted Resolution 2216 on Yemen, ‘[r]ecalling that arbitrary denial of humanitarian access and depriving civilians of objects indispensable to their survival, including wilfully impeding relief supply and access, may constitute a violation of international humanitarian law’ and ‘urg[ing] all parties to facilitate the delivery of humanitarian assistance, as well as rapid, safe and unhindered access for humanitarian actors to reach people in need of humanitarian assistance, including medical assistance’. The UNSC also requested that the UN Secretary-General: intensify his efforts in order to facilitate the delivery of humanitarian assistance and evacuation, including the establishment of humanitarian pauses, as appropriate, in coordination with the Government of Yemen, and call[ed] on Yemeni parties to cooperate with the Secretary-General to deliver humanitarian aid to those in need. (UNSC Res. 2216 (2015)) In 2018, once again on Yemen, the UNSC adopted a Presidential Statement calling on the parties ‘to allow and facilitate the safe, rapid and unhindered access for humanitarian supplies and personnel to all affected governorates’ and ‘to immediately facilitate access for … essential imports into the country and their distribution throughout in order to reach the entire civilian population’. The UNSC stressed ‘the importance of keeping [all Yemen’s ports] functioning and open to all commercial and humanitarian imports, including food, fuel and medical imports’ and called for ‘increased access to Sana’a Airport for lifesaving humanitarian supplies and movement of urgent humanitarian cases’ (UNSC Pres. Statement 2018/5, 2018). In contexts such as Palestine, Syria, Yemen, and the Lake Chad Basin, the UNSC has referred to specific arrangements to enable humanitarian assistance to be carried out, such as corridors, pauses, days of tranquillity, ceasefires and truces. In 2009, it called for the unimpeded provision and distribution throughout Gaza of humanitarian assistance, including of food, fuel and medical treatment, and welcomed initiatives aimed at creating and opening humanitarian corridors and other mechanisms for the sustained delivery of humanitarian aid (UNSC Res. 1860 (2009)). With respect to Syria, the UNSC has called upon all parties to immediately lift the sieges of populated areas, demanded that all parties allow the delivery of humanitarian assistance, and underscored the need for the parties to agree on humanitarian pauses, days of tranquillity, localised ceasefires and truces to allow humanitarian agencies safe and unhindered access to all affected areas in Syria (UNSC Res. 2139 (2014)). In 2018, the UNSC specifically called for a durable humanitarian pause for at least 30 consecutive days

206 Nathalie Weizmann throughout Syria, to enable the safe, unimpeded and sustained delivery of humanitarian aid and services, and medical evacuations of the critically sick and wounded (UNSC Res. 2401 (2018)). In 2017, in the context of the Lake Chad Basin, the UNSC urged all parties to facilitate safe, timely and unhindered access for humanitarian organisations to deliver lifesaving aid to affected people, and in particular in the case of governments, where applicable, through facilitating bureaucratic and administrative procedures such as the expediting of outstanding registrations, and importation of humanitarian supplies (UNSC Res. 2349 (2017)). B. Thematic resolutions The UNSC has also adopted a series of resolutions relating to the ‘protection of civilians’ and its subthemes, such as conflict and hunger, or children and armed conflict. While they may not be legally binding because they are not formulated as “decisions”, these resolutions nevertheless establish priority concerns and present an opportunity for third States on the UNSC to urge further action to enable humanitarian activities. In thematic resolutions adopted under its protection of civilians agenda, the UNSC has recalled the prohibition of unlawfully denying humanitarian access or intentionally obstructing humanitarian assistance to civilians. It has underlined the obligation of parties to a conflict to allow and facilitate unhindered access of humanitarian personnel to civilians, while ensuring their safety, security and freedom of movement. It has promoted respect for the principles of humanity, neutrality, impartiality and independence in humanitarian action, and called on neighbouring States to cooperate with humanitarian personnel and make available the necessary facilities for their operations (Arendt, 2019, pp. 20–23). In this manner, third States on the UNSC have adopted resolutions effectively aiming to ensure respect for IHL as it relates to humanitarian action. The UNSC has also condemned the use of violence or intimidation against humanitarian personnel and assets (Arendt, 2019, pp. 20–23) and adopted two thematic resolutions on the protection of UN and humanitarian personnel (UNSC Res. 1502 (2003) and UNSC Res. 2175 (2014)). Moreover, the UNSC has encouraged the UN Secretary-General to carry out systematic monitoring and analysis of humanitarian access constraints, to incorporate observations and recommendations into his briefings and country-specific reports, and to bring to the UNSC’s attention information concerning the deliberate denial of access to humanitarian assistance in violation of international law (UNSC Res. 1296 (2000) and UNSC Res. 1894 (2009)). The UN Secretary-General and the UN Under-Secretary-General for Humanitarian Affairs very regularly describe humanitarian access constraints to the UNSC. The annual UN report on the protection of civilians in armed conflict, country-specific reports, and periodic briefings to the UNSC commonly set out various factors hindering humanitarian activities and call for good practice to address them (Annex, Secretary-General Report, U.N. Doc. S/2009/277, 2009; Secretary-General Report, U.N. Doc. S/2019/820, 2019; Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator, 2019).

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Conflict and hunger The UNSC has also urged steps to enable humanitarian assistance in line with IHL in its recent resolution on conflict and hunger (UNSC Res. 2417 (2018)). Recognising that the denial of safe and unimpeded access of humanitarian personnel to civilians in armed conflicts may constitute a threat to international peace and security (see also UNSC Res. 1296 (2000)), this resolution has:   



  

called on all parties to the armed conflict to comply with their obligations under IHL, underlining the importance of safe and unimpeded access of humanitarian personnel to civilians in armed conflicts, called on all parties concerned, including neighbouring States, to cooperate fully with the UN Humanitarian Coordinator and UN agencies in providing such access, invited States and the UN Secretary-General to bring to its attention information regarding the unlawful denial of such access in violation of international law, where such denial may constitute a threat to international peace and security, strongly condemned the unlawful denial of humanitarian access and depriving civilians of objects indispensable to their survival, including wilfully impeding relief supply and access for responses to conflict-induced food insecurity in situations of armed conflict, which may constitute a violation of IHL, urged all parties to protect civilian infrastructure which is critical to the delivery of humanitarian aid, recalled that it can adopt sanctions that can be applied to individuals or entities obstructing the delivery of humanitarian assistance, or access to, or distribution of, humanitarian assistance, urged those with influence over parties to an armed conflict to remind the latter of their obligation to comply with IHL.

In one of its final paragraphs, UNSC Resolution 2417 requests that the UN Secretary-General report swiftly to the UNSC when the risk of conflict-induced famine and widespread food insecurity in an armed conflict occurs, with the intention of dedicating its full attention to such information when it arises (pursuant to UNSC Res. 2417, 2018, para. OP12). Such reporting – informally referred to as an “early warning” tool – has taken place on two occasions since the resolution was adopted: first in relation to South Sudan, and the second time in relation to Yemen. In July 2018, on behalf of the UN Secretary-General, the UN Under-Secretary-General for Humanitarian Affairs submitted a “white paper” to the UNSC, describing the impact of armed conflict on the availability of food in South Sudan, including as a result of constraints on humanitarian access and harm to humanitarian workers and assets. Among other recommendations, the UN Under-Secretary-General called on member States on the UNSC to use their influence to ensure parties’ compliance with IHL as it relates to humanitarian access and respect for humanitarian personnel and assets.

208 Nathalie Weizmann In late 2018, also via a written submission, the UN Under-Secretary-General brought to the attention of the UNSC the alarming state of food insecurity in Yemen, due to many factors including the warring parties’ misuse of humanitarian assets. Here as well, he called on UNSC members to work to enhance respect for IHL. As a precursor to Resolution 2417 on conflict and hunger, a 2017 Presidential Statement had been adopted one year earlier, when more than 20 million people in Yemen, Somalia, South Sudan and northeast Nigeria were facing the threat of famine. The UNSC deplored that certain parties had ‘failed to ensure unfettered and sustained access for deliveries of vital food assistance as well as other forms of humanitarian aid’ and reiterated calls on all parties ‘to allow the safe, timely and unhindered access for humanitarian assistance to all areas and to facilitate access for essential imports of food, fuel and medical supplies into each country, and their distribution throughout’. It also urged ‘all parties to protect civilian infrastructure which is critical to the delivery of humanitarian aid in the affected countries’. Here as well, the UNSC encouraged those with influence over parties to armed conflict to remind the latter of their obligation to comply with IHL (UNSC Pres. Statement 2017/14, 2017). Children and armed conflict Over the last 20 years, the UNSC has adopted several resolutions dedicated to children in armed conflict. Through these resolutions, third States have regularly referred to the importance of upholding IHL as it relates to humanitarian access to children in need, but they have also put in place a mechanism to monitor and report on challenges to the protection of children in armed conflict, including with respect to humanitarian access. In its first dedicated resolution on the topic (UNSC Res. 1261 (1999)), the UNSC called on all parties to an armed conflict to ensure the full, safe and unhindered access of humanitarian personnel and the delivery of humanitarian assistance to all children affected by armed conflict, and reaffirmed its readiness to continue to support the provision of humanitarian assistance to civilian populations in distress, taking into account the particular needs of children. A few years later, in 2005, the UNSC asked the UN Secretary-General to implement a ‘Monitoring and Reporting Mechanism on Grave Violations against Children in Situations of Armed Conflict’ (MRM) and decided to establish a related Working Group on Children and Armed Conflict (WGCAAC) composed of all 15 UNSC members. Today, the MRM documents six ‘grave violations’, including the denial of humanitarian access for children, in 20 situations of armed conflict. It is important to note, however, that the “grave violation” relating to the denial of humanitarian access does not necessarily amount to a breach of IHL, but rather encompasses a broader range of situations in which humanitarian access is impeded. On an annual basis, information collected through the MRM, including on the denial of humanitarian access for children, is published in a report of the UN Secretary-General. For instance, the report covering events in 2018 (Secretary-General Report, U.N. Doc. A/73/907–S2019/509, 2019) stated that 44 incidents of denial

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of humanitarian access had occurred in Afghanistan, mainly attributable to armed groups. As a result of these incidents, humanitarian activities were severely hindered. Interrupted vaccination campaigns reportedly prevented 840,000 children from receiving immunisations. In the same year in Yemen, 275 incidents of denial of humanitarian access were reported, including restrictions of movement, interference in the implementation of humanitarian assistance, violence against humanitarian personnel, assets and facilities and attacks on humanitarian water facilities (Secretary-General Report, U.N. Doc. A/73/907–S2019/509, 2019, p. 30). In addition to calling on States to allow safe, timely and unimpeded access for humanitarian assistance and the protection of humanitarian personnel and assets, the UN Secretary-General has called on parties to conflict to disseminate clear orders specifying that humanitarian assistance for children must be facilitated (Secretary-General Report, U.N. Doc. A/73/907–S2019/509, 2019, p. 36). In addition to informing reports by the UN Secretary-General, information reported by the MRM is reviewed by the WGCAAC, which can recommend measures to the UNSC to promote the protection of children in armed conflict. For instance, in July 2019, the WGCAAC recommended in its conclusions relating to Syria that the President of the UNSC transmit a letter addressed to the Government of Syria urging it to allow and facilitate safe, timely and unimpeded humanitarian access to populations in need, in particular in hard-to-reach areas and those areas that have been retaken by the government of the Syrian Arab Republic, including by lifting any impediments that could delay, reduce or prevent the delivery of humanitarian assistance, without adverse distinction (WGCAAC, AC.51/2019/1, 2019). The WGCAAC also issues public statements in which it may call on parties to an armed conflict to respect IHL as it relates to humanitarian activities. As an example, in July 2019, it called on all parties to the armed conflict in Myanmar to allow and facilitate safe, timely and unhindered humanitarian access to children, respect the exclusively humanitarian nature and impartiality of humanitarian aid and respect the work of all UN humanitarian agencies and their humanitarian partners. In particular, it urged the government of Myanmar to grant UN agencies, their partners, and NGOs immediate, safe and unhindered humanitarian access to Rakhine, Kachin and Shan states (WGCAAC 13904, 2019). C. Peacekeeping mandates and special political missions Through their role on the UNSC, third States can also require that UN peacekeeping mandates include the facilitation of humanitarian assistance. As of January 2020, seven peacekeeping mandates included provisions on the facilitation of humanitarian access and assistance: in Central African Republic, Mali, Democratic Republic of the Congo, Darfur, Lebanon, Abyei and South Sudan. Activities range from creating conditions conducive to the safe, timely and unhindered delivery of humanitarian assistance, to ensuring the safety, security and freedom of movement of humanitarian personnel (Arendt, 2019, pp. 43–44). In a number of peacekeeping mandates, activities relating to humanitarian assistance are considered priorities (Arendt, 2019, p. 44).

210 Nathalie Weizmann Special UN political missions established by the UNSC also play a role in facilitating humanitarian assistance. For instance, the UN Assistance Mission in Afghanistan and the UN Assistance Mission for Iraq have the mandate to coordinate and facilitate the delivery of humanitarian assistance (UNSC Res. 2405 (2018) and UNSC Res. 2421 (2018)). The UN Support Mission in Libya is also mandated to support, on request, the delivery of humanitarian assistance, in accordance with humanitarian principles (UNSC Res. 2434 (2018)). D. Sanctions and counter-terrorism measures As another illustration of the role of third States in ensuring respect for IHL as it relates to humanitarian activities, the UN Secretary-General has recommended greater consideration of the utility of targeted UNSC sanctions (Secretary-General Report, U.N. Doc. S/2018/462, 2018). In fact, the UNSC has noted on several occasions that the obstruction of humanitarian access and assistance may be the basis for sanctions (Arendt, 2019, p. 49). Today, six UNSC sanctions regimes concern situations of armed conflict: Somalia, Yemen, the Democratic Republic of the Congo, Mali, South Sudan and Central African Republic. These regimes explicitly provide that individuals and entities who have engaged in or supported acts that obstruct the delivery or distribution of, or access to, humanitarian assistance, may be subject to sanctions. Sanctions can serve to pressure parties or individuals to comply with IHL and make it more difficult for them to act in violation of it. For instance, UNSC Resolution 2216 (2015) imposes asset freezes and a travel ban on individuals or entities designated by the Sanctions Committee as engaging in or providing support for acts that threaten the peace, security or stability of Yemen. Such acts include ‘obstructing the delivery of humanitarian assistance to Yemen or access to, or distribution of, humanitarian assistance in Yemen’. (UNSC Res. 2216 (2015)). The equivalent criterion is laid out in UNSC Resolution 2374 (2017) on Mali. To illustrate, in July 2019, the Sanctions Committee established under UNSC Resolution 2374 imposed sanctions on Ahmed Ag Albachar, a member of the coalition of armed groups called the Coordination of Azawad Movements, for obstructing the delivery of humanitarian assistance to Mali, or access to, or distribution of, humanitarian assistance in Mali, explaining that: Albachar is manipulating humanitarian aid to fulfil his personal interests and the political interests of the [Haut conseil pour l’unité de l’Azawad] … by exercising terror, threatening NGOs and controlling their operations, all of which results in obstruction and hindrance of aid affecting beneficiaries in need in the region of Kidal (UNSC Mali Sanctions Committee, 2019) Separately, it is also important to highlight that economic and other types of sanctions imposed by third States (whether pursuant to UNSC, regional or national decisions) can have an unintended opposite effect: they can directly or indirectly impede

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humanitarian activities. For instance, the UNSC sanctions regime against AlQaida and ISIL, like other sanctions regimes, requires that States ensure that neither their nationals, nor anyone within their territory, makes any funds, financial assets or economic resources available for the benefit of a listed party, whether directly or indirectly, for so long as the party remains subject to the sanctions measures. Inadvertently, this can mean that incidental fees that humanitarian organisations may need to pay in order to reach people in need of humanitarian assistance (for example, to pay tolls or obtain permits), or even forms of humanitarian assistance that might indirectly reach entities or individuals who are subject to sanctions, might be considered to fall within the prohibited financial transactions set out in the sanctions regime. In a variety of ways, this can seriously jeopardise humanitarian assistance in areas where these listed entities or individuals operate. For example, humanitarian organisations may refrain from certain activities out of a fear of fines and prosecution for violating sanctions, donors can be hesitant to fund certain humanitarian activities, and banks may significantly restrict the financial services they offer to humanitarian organisations operating in these areas that they consider “highrisk”. This leads to a cascade of adverse consequences for humanitarian operations in such areas, including implementation delays, scaling back and even closure of humanitarian programmes (Gillard, 2017; O’Leary, 2018; Monit. Team ISIL-AQ 629, 2016; Monit. Team ISIL-AQ 35, 2017). With a view to avoiding this type of unintended adverse impact on humanitarian activities and ensuring that humanitarian activities are not impeded by such sanctions, the UNSC has foreseen safeguards for strictly humanitarian purposes. For instance, in the Central African Republic, an exemption from an arms embargo has been foreseen for supplies intended solely for humanitarian or protective use (UNSC Res. 2507 (2020)). This is also the case in other countries where UNSC sanctions are in place: the Democratic Republic of the Congo (UNSC Res. 2293 (2016)), Sudan (UNSC Res. 1556 (2004)), Libya (UNSC Res. 2095 (2013)) and South Sudan (UNSC Res. 2428 (2018)). With respect to sanctions applicable in Afghanistan, the UNSC decided in 2000 not to apply the flight ban to humanitarian flights operated by or on behalf of certain approved humanitarian organisations, including the UN and the ICRC (UNSC Res. 1333 (2000)). The UNSC has adopted economic sanctions requiring that all member States ensure that any funds, financial assets or economic resources are prevented from being made available by their nationals or by any individuals or entities within their territories, to or for the benefit of individuals or entities such as Al Shabaab (UNSC Res. 1844 (2008)). To help overcome some of the challenges faced by humanitarian actors in areas where such economic sanctions were in place, in 2010 the UNSC adopted an exemption for humanitarian assistance, deciding that these sanctions: shall not apply to the payment of funds, other financial assets or economic resources necessary to ensure the timely delivery of urgently needed

212 Nathalie Weizmann humanitarian assistance in Somalia, by the United Nations, its specialised agencies or programmes, humanitarian organisations having observer status with the United Nations General Assembly that provide humanitarian assistance, and their implementing partners including bilaterally or multilaterally funded non-governmental organisations participating in the United Nations Humanitarian Response Plan for Somalia. (UNSC Res. 1916 (2010)) This exemption was most recently renewed in 2019 (UNSC Res. 2498 (2019)). In connection with this sanctions regime, the Under-Secretary-General for Humanitarian Affairs submits a regular report to the UNSC on the delivery of humanitarian assistance in Somalia and any impediments thereto. In his 2019 report, he explained, [n]on-renewal of the humanitarian exemption would result in donor reluctance to fund humanitarian operations, and even small shifts in financial derisking would have a significant adverse impact on the ability to deliver assistance. In turn, the inability to deliver aid would deprive civilians of the essentials to survive while compounding the risk that the humanitarian situation will deteriorate. (Under-Secretary-General Rep. S/2019/799, 2019) Separate from sanctions, counter-terrorism measures imposed by the UNSC (or pursuant to regional or national decisions) can also unintentionally prohibit and criminalise impartial humanitarian activities for people affected by armed conflict. Here, too, incidental payments such as tolls or permit fees that humanitarian organisations may pay armed groups in order to reach people in need might be considered to fall within financial transactions prohibited in counter-terrorism instruments. In such a case the payment of such incidental fees could be subject to criminal prosecution. Beyond restricting financial transactions, broadly worded counter-terrorism measures that generally prohibit support or services to individuals or entities involved in terrorist acts can also potentially criminalise other activities of humanitarian organisations, such as impartial medical treatment and care for wounded or sick members of armed groups, even though this is lawful, and even required, under IHL. Much has been written about a range of unintended negative effects that counter-terrorism measures can have on humanitarian activities, such as a “chilling effect” that results in avoiding engagement with certain armed groups in order to limit exposure to criminal liability (Burniske and Modirzadeh, 2017). For these reasons, humanitarian organisations and governments regularly push for counter-terrorism measures to incorporate safeguards for humanitarian activities as foreseen by IHL, resulting in a range of formulations. Recently, the UNSC decided that all States must criminalise, in a manner consistent with their obligations under international law, including IHL, the wilful financing, with the intention or in the

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knowledge that they are to be used for the benefit of terrorist organisations or individual terrorists. The same resolution also contained the following safeguard: States, when designing and applying measures to counter the financing of terrorism, to take into account the potential effect of those measures on exclusively humanitarian activities, including medical activities, that are carried out by impartial humanitarian actors in a manner consistent with international humanitarian law. (UNSC Res. 2462 (2019)) Short of excluding the application of counter-terrorism measures to humanitarian activities, the UNGA in reaffirming the 2006 UN Global Counter-Terrorism Strategy, urged States: … to ensure, in accordance with their obligations under international law and national regulations, and whenever international humanitarian law is applicable, that counter-terrorism legislation and measures do not impede humanitarian and medical activities or engagement with all relevant actors as foreseen by international humanitarian law. (UNGA Res. 70/291 (2016)) To illustrate safeguards adopted outside the UN framework, the 2017 EU Council Directive on Combating Terrorism (Directive (EU) 2017/541, 2017) states in its preamble that: [t]he provision of humanitarian activities by impartial humanitarian organisations recognised by international law, including international humanitarian law, do not fall within the scope of this Directive, while taking into account the case-law of the Court of Justice of the European Union. In Canada, the Criminal Code states that terrorist activity: for greater certainty, does not include an act or omission that is committed during an armed conflict and that, at the time and in the place of its commission, is in accordance with customary international law or conventional international law applicable to the conflict, or the activities undertaken by military forces of a state in the exercise of their official duties, to the extent that those activities are governed by other rules of international law (pursuant to Revised Statues of Canada, 1985, c. C-46). While awareness of unintended consequences of sanctions and counter-terrorism measures on humanitarian action is increasing, challenges and tensions continue to arise, both in the course of adopting such measures and in addressing their adverse effects during implementation.

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Conclusion Under IHL, third States – typically where humanitarian relief operations are initiated or transit – have an obligation to consent to and allow and facilitate such operations for civilians in need. With respect to broader humanitarian activities, in IAC, third States also have the duty to facilitate in every possible way the assistance that Red Cross and Red Crescent organisations offer for victims of armed conflict in another country, and, as far as possible, make similar facilities available to other humanitarian organisations. Beyond these IHL obligations, third States have taken concrete steps to enable humanitarian activities, whether out of a legal obligation to ensure respect for IHL or as a matter of policy and good practice. Third States have used their influence and diplomatic relations to encourage parties to an armed conflict to allow humanitarian assistance, have spoken out against impediments to humanitarian activities, and have identified concrete steps that all States can take to enable humanitarian action. These concrete steps include IHL dissemination and training, the adoption of appropriate domestic legislation, preventing adverse consequences of sanctions and counter-terrorism measures on humanitarian activities, and collecting and analysing information on impediments. The UNSC has been proactive in its efforts to ensure respect for IHL in relation to humanitarian activities. In country-specific and thematic resolutions, it has recalled IHL obligations and called on parties to conflict, third States, and even the UN Secretary-General to take steps to enable humanitarian activities, end impediments, and prevent unintended consequences of its decisions on humanitarian operations. Through its mechanism dedicated to children and armed conflict, the mandates it gives peacekeeping operations and political missions, and targeted sanctions, the UNSC has put in place additional tools to address impediments and support ongoing efforts to carry out humanitarian activities in armed conflict. Together, the rules of IHL and this broad collection of State practice form a robust catalogue of measures that all States can take to ensure respect for IHL as it relates to humanitarian action.

References (additional to the common list)

Treaties Charter of the United Nations, 1 UNTS 16 (entered into force 24 October 1945). Rome Statute of the International Criminal Court, 2187 UNTS 90 (entered into force 1 July 2002).

Legislation Revised Statutes of Canada 1985, c. C–46.

Documents WGCAAC, Conclusions on Children and Armed Conflict in the Syrian Arab Republic, UN Doc. S/AC.51/2019/1 (18 July 2019).

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Call for Action to Strengthen Respect for International Humanitarian Law and Principled Humanitarian Action (launched 27 September 2019) https://onu.delegfrance.org/ IMG/pdf/humanitarian_call_for_action.pdf (accessed 18 November 2019) [Call for Action]. Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on Combating Terrorism and Replacing Council Framework Decision 2002/475/ JHA and Amending Council Decision 2005/671/JHA. Eighteenth Report of the Analytical Support and Sanctions Monitoring Team Submitted Pursuant to Resolution 2253 (2015) Concerning Islamic State in Iraq and the Levant (Da’esh), Al-Qaida and Associated Individuals and Entities, UN Doc. S/2016/629 (30 June 2016). Nineteenth report of the Analytical Support and Sanctions Monitoring Team submitted pursuant to resolution 2253 (2015) concerning ISIL (Da’esh), Al-Qaida and associated individuals and entities, UN Doc. S/2017/35 (30 December 2016) [Monit. Team ISIL-AQ 35]. Public Statement by Chair of Working Group on Children and Armed Conflict, UN Doc. SC/13904 (30 July 2019) [WGCAAC 13904]. Red Cross and Red Crescent, International Conference of the Red Cross and Red Crescent Resolution (Resolution XL, 17th Conference, Stockholm, August 1948). Report of the Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator pursuant to paragraph 49 of Security Council resolution 2444 (2018) on the delivery of humanitarian assistance in Somalia and any impediments to the delivery of humanitarian assistance in Somalia, UN Doc. S/2019/799 (7 October 2019). UNGA Res. 46/182 (19 December 1991). UNGA Res. 70/291 (19 July 2016). UNHRC Res. 39/L.1/Rev. 1 (26 September 2018). UNSC Pres. Statement 2017/14 (9 August 2017). UNSC Pres. Statement 2018/5 (15 March 2018). UNSC Res. 1261 (30 August 1999). UNSC Res. 1296 (19 April 2000). UNSC Res. 1333 (19 December 2000). UNSC Res. 1502 (26 August 2003). UNSC Res. 1556 (30 July 2004). UNSC Res. 1844 (20 November 2008). UNSC Res. 1860 (8 January 2009). UNSC Res. 1894 (11 November 2009). UNSC Res. 1916 (19 March 2010). UNSC Res. 2095 (14 March 2013). UNSC Res. 2139 (22 February 2014). UNSC Res. 2165 (14 July 2014). UNSC Res. 2175 (29 August 2014). UNSC Res. 2216 (14 April 2015). UNSC Res. 2293 (23 June 2016). UNSC Res. 2349 (31 March 2017). UNSC Res. 2374 (5 September 2017). UNSC Res. 2401 (24 February 2018). UNSC Res. 2405 (8 March 2018). UNSC Res. 2417 (24 May 2018). UNSC Res. 2421 (14 June 2018). UNSC Res. 2428 (13 July 2018).

216 Nathalie Weizmann UNSC Res. 2434 (13 September 2018). UNSC Res. 2462 (28 March 2019). UNSC Res. 2498 (15 November 2019). UNSC Res. 2504 (10 January 2020). UNSC Res. 2507 (31 January 2020). Secretary-General Report, U.N. Doc. S/2009/277 (29 May 2009). Secretary-General Report, U.N. Doc. S/2018/462 (14 May 2018). Secretary-General Report, U.N. Doc. A/73/907–S/2019/509 (20 June 2019). Secretary-General Report, U.N. Doc. S/2019/820 (15 October 2019). UN OCHA, (2018) Staying the Course: Delivering on the Ambition of the World Humanitarian Summit, Agenda for Humanity Annual Synthesis Report 2018 https://reliefweb.int/report/world/agenda-humanity-annual-synthesis-report-2018-staying-coursedelivering-ambition-world (accessed 18 November 2019). UN OCHA, (2019) Sustaining the Ambition, Delivering Change, Agenda for Humanity Annual Synthesis Report 2019 https://reliefweb.int/report/world/agenda-humanityannual-synthesis-report-2019-sustaining-ambition-delivering-change (accessed 13 December 2019). UNSC Mali Sanctions Committee, (2019) Measure MLI.004, 10 July 2019 https://www. un.org/securitycouncil/content/ahmed-ag-albachar. Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator, Briefing to the UN Security Council on the Humanitarian Situation in Yemen (17 October 2019) https://reliefweb.int/report/yemen/under-secretary-general-humanitarian-affairs-and-emergency-relief-coordinator-mark-23 (accessed 18 November 2019).

Secondary sources Akande, D. and Gillard, E., Arbitrary Withholding of Consent to Humanitarian Relief Operations in Armed Conflict (UNOCHA, 2014). Akande, D. and Gillard, E., Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict (UNOCHA, 2016). Arendt, L., Building a Culture of Protection: 20 Years of Security Council Engagement on the Protection of Civilians (UNOCHA, 2019). Bothe, M. Partsch, K.J. and Solf, W.A., New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949, 2nd edition (Brill Nijhoff, 2013). Burniske, J.S. and Modirzadeh, N.K., Pilot Empirical Survey Study on the Impact of Counterterrorism Measures on Humanitarian Action (Harvard Law School Program on International Law and Armed Conflict, 2017). Commentary on Manual on International Law Applicable to Air and Missile Warfare (Harvard Program on Humanitarian Policy and Conflict Research, March 2010). Gillard, E., Humanitarian Action and Non-State Armed Groups: The International Legal Framework (Chatham House, 2017). O’Leary, E., Principles under Pressure: The Impact of Counterterrorism Measures and Preventing/Countering Violent Extremism on Principled Humanitarian Action (NRC, 2018).

14 The nature of the obligation to ensure respect under IHL for people displaced as a result of armed conflict Linda Isabel Ngesa*

Introduction How States can best address the prevalence and vulnerabilities of internally displaced persons (IDPs) is currently one of the most serious global challenges. UNHCR figures (published June 2019) show 70.8m people of concern to the agency worldwide at the end of 2018 (the figures include refugees, asylum seekers, IDPs and stateless populations). Over 41m of those are IDPs, far outstripping the numbers of refugees and asylum seekers, collectively 29.4m (25.9m and 3.5m respectively) (UNHCR, 2019, p. 2). People can be displaced for a number of reasons, including because of natural disasters and development. However, armed conflict is a significant reason for displacement. The conflicts in Syria, Iraq, Yemen, South Sudan and the Democratic Republic of Congo are noted by UNHCR as being particularly responsible for the rise in IDP numbers over the last 10 years (UNHCR, 2019, p. 4). UNHCR has produced their Global Trends report for populations of concern since 2003 (first published in mid-2004). This report has identified that IDPs have outnumbered refugees since the end of 2006 – when there were 32.9m people of concern, 9.9m of whom were refugees and 12.8m of whom were IDPs (Green, 2008, p. 69). IDPs are defined as: persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situation of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State border (African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa, 2009 (Kampala Convention), Art. 1(k)) Legal frameworks for the protection of IDPs can be found in international and regional human rights law (including, but not limited to, the International *

This chapter was written in a personal capacity and does not necessarily reflect the views of the ICRC. I am most grateful for the support and assistance of Eve Massingham and Annabel McConnachie in helping to craft this chapter.

218 Linda Isabel Ngesa Covenant on Civil and Political Rights, and International Covenant on Economic, Social and Cultural Rights; the Convention against Torture and Convention on the Rights of the Child) as well as in IHL applicable to international and non-international armed conflicts (IAC and NIAC). In addition, more specific protections can be found in regional laws pertaining to IDPs, such as the Kampala Convention. These frameworks include a range of obligations, not just aimed at the primary State within which the IDPs are displaced but also at third States. This chapter will focus on the obligation to ensure respect for the protections available for IDPs. Specifically, whether the obligation to ensure respect for IHL within CA1 to the 1949 GCs, API and customary international law creates any additional responsibility for third States to assist IDPs as a result of armed conflict. This chapter is divided into four parts. Part 1, will discuss legal frameworks pertaining to IDPs, including the regional developments in Africa. Part 2, will discuss the legal protections under IHL for IDPs, including those which may diminish the need for flight and provide protection after displacement occurs. Part 3, will focus on ways in which third States can ensure respect for IHL – especially through providing assistance and support to IDPs beyond their borders. Finally, Part 4, will look at the specific mechanisms enshrined in the Kampala Convention for cooperation with other international organisations as a form of ensuring respect for IHL. Part 1: Legal frameworks for the protection of IDPs Unlike people who are able to flee across an international border and seek asylum from a third State, those who remain within their country of origin are subject to the protection of their own government. As Dieng states, those displaced within their own country are more often inadequately protected and unable to access international support despite suffering ‘tragedy similar to refugees’ (2017, p. 266). The need for separately articulated legislation has been clear and the search for an international document regulating matters on IDPs can be traced back to 1992 when the United Nations (UN) Commission on Human Rights entrusted the Special Representative of the Secretary-General on IDPs, Francis Deng, to examine existing international standards of human rights, humanitarian and refugee law, and their application to the protection of IDPs. A series of reviews and reports were produced culminating in January 1998, with Deng submitting the Guiding Principles on Internal Displacement (Guiding Principles) to the UN Economic and Social Council. The Guiding Principles capture existing laws, frameworks and working standards adapted to the specific situations of IDPs. They include principles relating to protection against displacement (Guiding Principles 5–9), during displacement (Guiding Principles 10–23) and to the provision of humanitarian assistance (Guiding Principles 24–27). Although States are not formally bound by the identified standards within the framework, it remains the only global document referencing IDPs. The Guiding Principles have operated to inform the development of further multilateral treaties. In 2006, the eleven member States of the Great Lakes Region (Angola, Burundi, Central African Republic, Congo, Democratic Republic of

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Congo, Kenya, Rwanda, Sudan, Tanzania, Uganda and Zambia) adopted the Protocol on the Protection and Assistance to Internally Displaced Persons as one of ten protocols to its Pact on Security, Stability, and Development in the Great Lakes Region (Great Lakes Protocol). This was the first legally binding instrument incorporating the Guiding Principles into international law. By acceding to this instrument, the Great Lakes States committed themselves to adopting and implementing the Guiding Principles through establishing the scope of the responsibilities of States and through setting up a regional mechanism for monitoring the protection of IDPs. Article 3(10) of the Great Lakes Protocol is particularly relevant. States who are unable to protect and assist IDPs are obliged ‘to accept and respect the obligation of the organs of the international community to provide protection and assistance to internally displaced persons’. National instruments in the region such as Kenya’s Prevention, Protection and Assistance to Internally Displaced Persons and Affected Communities Act (IDP Act) have incorporated the Guiding Principles. Section 11(6) of the Act requires the government to act in accordance Articles 3(6–8) and 10 of the Great Lakes Protocol and Principles 24–27 of the Guiding Principles. This means the government must accept international assistance if the capacity of the government to provide such protection and assistance is insufficient, inadequate or lacking. The Kenyan IDP Act also requires the government to ensure rapid and unimpeded access of humanitarian personnel to all IDPs. In October 2009, the African Union (AU) Special Summit of Heads of State and Government adopted the Kampala Convention. The Kampala Convention (which entered into force in 2012) boldly addressed a major gap in the IDP protection regime, by providing a binding legal framework covering an entire continent. The Kampala Convention sets out obligations for State Parties, armed groups, the AU, and humanitarian agencies with regard to all phases of displacement (Art. 2; Art. 3 (1)(c), (e), (f), (g) and (h); Art. 6). Different from the Guiding Principles, which recognised States as having the primary role to provide protection and assistance for IDPs, the Kampala Convention – while acknowledging that States have the primary duty and responsibility to care for their displaced - does not give them exclusive power. Cooperation and solidarity among States may be invoked at the request of the concerned State Party or the Conference of State Parties (Art. 5(2)). The Kampala Convention therefore allows for what was traditionally considered an internal problem, to be addressed at a regional platform, in effect, it seeks to ‘ensure respect’. Article 5(6) declares a duty for the affected State to reach out to external parties: State Parties shall provide sufficient protection and assistance to internally displaced persons and where available resources are inadequate to enable them to do so, they shall cooperate in seeking the assistance of international organisations and humanitarian agencies, civil society organisations and other relevant actors. Such organisations may offer their services to all those in need. (emphasis added)

220 Linda Isabel Ngesa While third States are not mentioned here, it is arguable that they could come within the term ‘other relevant actors’. Africa has led the way for IDP legal protections. These two instruments, while not without fault, and not without challenges of domestication into national laws and meaningful implementation, have demonstrated that agreements can be reached between States on protections for this most vulnerable of groups. Over the last decade the Kampala Convention has been ratified by around 50% of African States (AU, List of States Parties) and with a similar percentage having either laws or policies in existence or development pertaining to IDP protections (ICRC, 2016, p. 30). For example, Niger serves as a good practice example on domestication of the Kampala Convention. On 3rd December 2018, the National Assembly unanimously voted for the adoption of a national law for the protection and assistance of IDPs in Niger, in line with the Kampala Convention. Thereby, at least on paper, securing legal protection and assistance for the approximately 50,000 IDPs within Niger. These African developments have translated into some positive outcomes for IDPs in the region (ICRC, 2016). Progress has also been made towards similar instruments being considered in other parts of the world (Cotroneo, 2018, p. 30). While IDPs are present across the region for a variety of reasons, as noted above, it is clear that conflict is a huge driver of displacement. The development of these legal frameworks goes towards both respect and ensuring respect for IHL by requiring States to adopt laws to protect these people but also requiring regional member States to ensure respect for these laws and, in the process, for IHL. Part 2: Legal protections for IDPs under IHL IDPs, while not specifically mentioned in the GCs and APs are protected by IHL as civilians. The rules of IHL intended to spare civilians from the effects of hostilities, play an important role in preventing displacement, as it is often violations of these rules that cause civilians to flee their homes. Although it is acknowledged that the reasons for flight are not necessarily unitary, and there are many who for multiple reasons remain unable to flee, respect for the protection of civilians will reduce the impact of violence upon them and therefore their need to flee (Combaz, 2016, pp. 2–3). IDPs rights are specifically addressed therefore by Common Article 3, GCIV, Article 75 of API and Article 4 of APII. Of particular relevance are the prohibitions on attacking civilians or civilian property (GCIV Arts. 4, 27; API Arts. 51, 75; APII Arts. 4, 5; CIHL Study Rules 1, 7) and on indiscriminate attacks (API Arts. 48, 51(4), 52(1), 85; CIHL Study Rules 7, 11); the prohibition on starving civilians as a method of warfare (API Art. 54(1); APII Art. 14; CIHL Study, Rule 53) and on destroying objects indispensable to their survival; the prohibition on reprisals against civilians and civilian property (GCIV Art. 33(3); API Art. 52(1); CIHL Study Rule 147); the prohibition on using civilians as ‘human shields’ (GCIV Art. 28; API Art. 51(7); APII Art. 13(1); CIHL Study Rule 97); the prohibition on collective punishment (GCIV Art. 33; API Art. 75(2)(d); APII Art. 4(2)(b); CIHL Study Rule 103), which, in practice, often consists in destroying homes and thus leads to displacement.

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In addition, IHL expressly prohibits the displacement of civilians, and customary IHL prohibits any party to an armed conflict from compelling civilians to leave their places of residence. Temporary evacuations may be carried out only if ‘the security of the civilians involved or imperative military reasons so demand’ (API Art. 17 and GCIV Art. 49) but such evacuations are subject to strict conditions. All possible measures must be taken to ensure that family members are not separated and that the displaced population is received under satisfactory conditions of shelter, hygiene, health, safety and nutrition. Moreover, such evacuations must be temporary, and those affected have the right to return in safety to their homes as soon as the reasons for their displacement cease to exist (GCIV Art. 49; APII Art. 17; CIHL Study Rules 129–133). Specifically, under CIHL Study Rule 129, for both IAC and NIAC: Parties … may not deport or forcibly transfer the civilian population of an occupied territory, in whole or in part, unless the security of the civilians involved or imperative military reasons so demand … IHL also includes the prohibition of attacking, destroying, removing or rendering useless objects indispensable to the survival of the civilian population, including foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works. This prohibition is a norm of customary law and applies in both IAC and NIAC (CIHL Study Rule 54; API Art. 52; APII Art.14). Should displacement occur – whether it is lawful and temporary as above, or occurs unlawfully – there exists the obligation for all States and all parties to a conflict to allow the unhindered passage of relief supplies and the provision of assistance necessary for the survival of civilians (GCIV Arts. 23, 55; API Art. 70; APII Art. 18; CIHL Study Rule 55). These basic rules apply in both IAC and NIAC. Part 3: Ensuring respect for IHL with reference to IDPs When governments fail to respect IHL by failing to prevent IHL violations that may result in displacement or failing to provide protection and assistance for IDPs, a vacuum in protection is created. It is into this vacuum that third States may step by ensuring respect for IHL. As has been articulated in Chapter 1 of this book, the obligation to ensure respect requires that third States exercise due diligence to determine what, within their capacity and influence, they can do to prevent IHL violations – whether that be, in the case of IDPs, to try and help prevent displacement in the first place or to provide protection and assistance to IDPs. Clearly any efforts of third States that ensure compliance by warring parties with IHL would be the best solution. Additionally, the GCs and APs themselves suggest some mechanisms – although they have not often been used effectively. For example, a third State may exploit available diplomatic efforts such as offering its good offices or fact-finding to ensure respect for IDP rights during armed conflict. An offer of good offices by a third State may assist in illuminating the facts and bringing about a change in the belligerent’s behaviour. An offer of fact-finding may be useful for establishing the existence of actual violations of humanitarian law regarding IDPs (Gasser, 1993,

222 Linda Isabel Ngesa pp. 28–30). Third States can also insist on adherence with IHL rules through vigorous and continuous protests or public denunciation of violations (Palwankar, 1998, pp. 13– 15). Sadly though, it is so often the case that displacement is not prevented. However, the provision of humanitarian assistance is a clear way in which third States can proactively aid IDPs in order to ensure respect for IHL. For example, it is possible for third States to offer their services in the direct provision of humanitarian assistance, should the State within which the civilians are displaced be unable or unwilling to provide such assistance. Should this situation occur, the third States are obligated to act in a neutral and impartial manner in the delivery of that humanitarian assistance, and where there is an identified need for such assistance, international law provides that a State may not arbitrarily refuse it. In the context of displacement, these obligations mean that competent authorities must use all possible means at their disposal including requesting, accepting and facilitating international aid to provide IDPs with the minimum essential levels of food, water, shelter and medical care from the moment displacement occurs. During IAC, States are required to accept humanitarian assistance when the civilian population requires it and to allow the rapid and unimpeded passage of all relief consignments, equipment, and personnel, subject to verification and supervision (GCIV Art. 23). Article 70 of API mandates the authorising party to agree to a relief action which is humanitarian and impartial and conducted without any adverse distinction and in observance of the principles of non-discrimination, proportionality and impartiality. During NIAC, Common Article 3 affirms that ‘an impartial humanitarian body such as the International Committee of the Red Cross may offer its services to the parties to the conflict’. Article 18(2) of APII nonetheless requires that where civilians are suffering undue hardship, relief actions of a humanitarian and impartial nature shall be undertaken subject to the consent of the government in power. While the requirement for consent may sound advantageous to the government in power, it is important to note that parties to an IAC do not enjoy ‘absolute and unlimited freedom’ to refuse relief actions, rather, they may only do so for ‘valid reasons, not for arbitrary or capricious ones’ (APs Commentary, p. 819). Arbitrariness may be excluded where, for example, the State points out imperative military reasons. In addition, in NIAC where it is not possible to ascertain the authorities, consent is to be assumed because assistance to the victims is paramount (GCIV Art. 59, APII Art. 18). In both IAC and NIAC, rules on humanitarian access must be read together with the absolute customary law prohibition on starvation as a method of warfare (CIHL Study Rule 53; API Art. 54; APII Art. 14). In practice, humanitarian access is often impeded by armed groups or by governmental restrictions on the activities of humanitarian actors. In at least 13 States in 2004 – ranging from Burma to Zimbabwe – governments have supported direct attacks against IDPs. In Burma, an estimated 650,000 IDPs, most from the Karen minority, continue to be the target of forced relocation to depopulate ethnic minority areas and deny insurgents a civilian support base. In Sudan, the government-backed militias were also the main agent of displacement for an estimated 2m people in 2004. In other instances, governments are not stable or

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strong enough to protect the displaced. In Somalia, 400,000 people remain IDPs after 13 years of total State collapse in a country controlled by warlords and freelance gunmen. IDPs have also proven difficult to protect in such places as Burundi, Georgia and Timor Leste (Brinkman, 1998). UNSC Resolution 2139 (2014) made a binding demand to parties to the conflict in Syria and other relevant parties to allow humanitarian relief operations, effectively requiring them to consent to them (UNSC Res. 2139 (2014), OP. 6). In UNSC Resolution 2165 (2014) the Security Council went further, adopting a binding decision that UN humanitarian agencies and their implementing partners were authorised to use routes across conflict lines and specified border crossings to provide humanitarian assistance to people in need. In this case, and for the first time, consent was not required (UNSC Res. 2165 (2014), OP. 2). The UN Secretary-General told the UNGA in April 2000 that while national sovereignty does offer vital protection to small and weak States, ‘it should not be a shield for crimes against humanity’ (Annan, 2000). While for many actions discussed throughout this book State consent may be an important factor, this is particularly the case in relation to humanitarian assistance. The provision of humanitarian assistance by third States has the potential to be conceived as an interference in the domestic affairs of the receiving State. Indeed, third States have been reluctant to assume obligations towards IDPs for fear that their actions could be perceived as an interference in the internal affairs of another State; despite the provisions above which indicate that such relief aid cannot be arbitrarily refused. Further, the International Law Association’s Committee on IDPs contends that an ‘offer’ to provide assistance does not equate to a breach of the affected State’s sovereignty, as humanitarian assistance to IDPs is ‘justified under Articles 1(3), 13 (1)(b), 55(c) and 56 of the UN Charter’ (Committee on Internally Displaced Persons, 2000, p. 18). Nevertheless, the perception persists. However, the push towards the concept of “sovereignty as responsibility”, led by Francis Deng and Kofi Annan, has cemented the idea that sovereignty should be understood more broadly than conferring responsibilities upon governments to assist and protect persons in their territories. Where a government is not in control or the controlling authority is unwilling or unable to fulfil these obligations it risks undermining its legitimacy (Deng, 1995, p. 20). Should internal displacement of civilians occur in armed conflict, the international community should ensure that victims, receive assistance and protection and such action should not be regarded as an interference in either the domestic affairs of the State or the armed conflict and should not be considered as an unfriendly act, so long as it is undertaken in an impartial and non-coercive manner. (UN Secretary-General, 1998, para. 16) Limitations on State sovereignty also stem from the very fact that States have ratified human rights and humanitarian law treaties (Deng et al, 1996, pp. 7–8). States are bound to ensure and respect the relevant norms to the extent to which such treaties have been ratified and may not invoke internal law as a justification

224 Linda Isabel Ngesa for failure to do so (Vienna Convention on the Law of Treaties, Arts. 26–27). Under multilateral agreements a legal relationship exists between several States party to an agreement. Just as bilateral relationships give rise to a bilateral responsibility, multilateral relationships create multilateral obligations and permit a response to violations or actions to enforce violated provisions even if the State acting is not the subject of injury (Dominice, 1999, p. 356; Sachariew, 1989, pp. 182–184). The obligations created by the GCs and their APs require States to do whatever is reasonably within their means to ensure respect for the conventions by third States (2016 Commentary, paras. 153–154). A right of action, whether positive or negative, exists for all States party to the GCs and not only for the parties to a conflict. Treaties of a multilateral nature giving rise to multilateral obligations. Additional restrictions on sovereignty arise from membership to international organisations such as the UN. Infringement of fundamental rights, expressed in the practice of States and declarations by the UN organs clearly show that the breach of certain fundamental human rights such as genocide, apartheid, slavery or torture, and grave breaches of the GCs (GCI–IV, Arts. 50/51/130/ 147) and API (Arts. 11, 85) such as wilful killing, causing serious injury to body or health as well as extensive destruction and appropriation of property, not justified by military necessity not only violate treaties, but also the UN Charter and thus, recourse for their infringement is not limited domestically but can be addressed by the UN and other international actors. However, recent resolutions adopted by the UNSC have moved further from traditional norms regarding sovereignty as an absolute, to seeking to ensure humanitarian assistance to IDPs. This shift could be interpreted as a move towards a recognition that CA1 may require that States ensure respect for IHL by voting in support of relevant UNSC resolutions (Zimmerman, 2017). UNSC Resolution 2139 (2014), unanimously made a binding demand to parties to the conflict in Syria and other relevant parties to allow humanitarian relief operations, effectively requiring them to consent to them (UNSC Res. 2149 (2014) para 6). As was also discussed in Chapter 13 by Weizmann, in Resolution 2165 (2014), the UNSC went further, adopting a binding decision that UN humanitarian agencies and their implementing partners were authorised to use routes across conflict lines and specified border crossings to provide humanitarian assistance to people in need. In this case, and for the first time, consent was not required by the State into which the humanitarian assistance was being provided, merely notification by the authorised bodies to the Syrian authorities (UNSC Res. 2156 (2014), para. 2). Although the resolution was applicable to identified geographical areas, to a limited group of agencies and only to be operative for a period of 180 days, nevertheless it indicated that the capacity to prevent delivery of humanitarian assistance had limitations. It is clear therefore that the erosion of the concept of absolute sovereignty, indicated by the recent UNSC resolutions edge towards an emerging international responsibility norm in favour of intervention to protect civilians through the provision of humanitarian assistance.

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From 1999 to 2019, in over 40 of the 142 resolutions referencing displacement, the UNSC has addressed humanitarian access concerns and/or the provisions of humanitarian assistance to affected populations, often explicitly referring to IDPs. Resolutions have called on all parties to ensure, in accordance with relevant provisions of IHL, the full, safe and unhindered access of relief personnel to those in need and the delivery of humanitarian assistance including to IDPs. The UNSC has condemned violations of applicable international obligations associated with the intentional denial of humanitarian assistance or the failure to ensure full, safe and unhindered access of relief personnel as well as the delivery of humanitarian assistance to IDPs, and demanded that all parties put an end to such practices. The UNSC has expressed concern for the physical safety and killing of humanitarian workers and the hindering of their access to populations in need, including IDPs. In its resolutions, the UNSC has underlined the importance of safe and unhindered access of humanitarian personnel to civilians in armed conflict including IDPs, and the protection of humanitarian assistance to them (UNSC Res. 1265 (1999), para. 7). It has also called upon the relevant parties to ensure, in accordance with relevant provisions of international law, the full, safe and unhindered access of relief personnel to all those in need and delivery of humanitarian assistance, in particular to IDPs (UNSC Res. 1509 (2003), para. 8.) In Sudan, the UNSC condemned those parties to the conflict who failed to ensure full access of humanitarian assistance to IDPs in Darfur (UNSC Res. 1769 (2007)). In Georgia, the UNSC called on the parties to the conflict to facilitate and refrain from placing any impediment to humanitarian assistance to IDPs (UNSC Res. 1866 (2009), para. 4). Contravention of certain obligations of IHL under the GCs and API are deemed to be ‘grave breaches’ (GCI–IV Arts. 50/51/130/147; API Art. 85). Under CA1, third States can ‘ensure respect’ by either prosecuting those responsible for the displacement or in accordance with the principle aut dedere judicare, extradite a suspect who is on their territory (GCI–IV, Arts. 49/50/129/146; API Art. 85). When civilians are forcibly displaced during conflict, those responsible for their displacement, without evidence to the contrary, may be held accountable for the crime of forced displacement. Before going into detail about the prosecutorial options available to a third State, it is first important to review the meaning of forced displacement as an international crime. In IAC, the prohibition of the transfer or deportation of civilians is set forth in Article 49 of GCIV. Additionally, it is a grave breach of Article 147 of GCIV and Article 85(4)(a) of API to deport or transfer the civilian population of an occupied territory, unless the security of the civilians involved or imperative military reasons so demand. Under the Rome Statute of the International Criminal Court (Rome Statute), ‘the deportation or transfer [by the Occupying Power] of all or parts of the population of the occupied territory within or outside this territory’ constitutes a war crime in IAC (Art. 8(2)(b)(viii)). In NIAC, the prohibition of displacing the civilian population is articulated in Article 17 of APII. Under the Rome Statute, ‘ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand’, constitutes a war crime in NIAC (Art. 8(2)(e)(viii)). Under the Statutes of the International Criminal Tribunals for the

226 Linda Isabel Ngesa Former Yugoslavia (ICTY) (Art. 5(d)) and for Rwanda (ICTR) (Art. 3(d)), and of the Rome Statute (Art. 7(1)(d)), deportation or transfer of the civilian population constitutes a crime against humanity.1 The ICTY concluded that: Displacements within a State or across a national border, for reasons not permitted under international law, are crimes punishable under customary international law, and these acts, if committed with the requisite discriminatory intent, constitute the crime of persecution. (Prosecutor v. Krnojelac, 2003, [218]) The obligation not to breach the GCs means a State is under an obligation to ensure that the rules are respected by those within its jurisdiction: government and military authorities but also the population. This obligation is also strengthened by a positive obligation to ensure respect, meaning that regardless of whether or not a State is involved in a conflict, it must take all necessary steps to ensure the rules are followed by everyone and especially by parties to an armed conflict (Geiss, 2015, p. 119). This means that States ‘may, and should, endeavour to bring it back to an attitude of respect for the Convention’ (Pictet Commentary, p. 26). This duty extends to NIAC as well as IAC (Nicaragua [220]). Genocide, crimes against humanity and war crimes are the subset of modern offences over which there is universal jurisdiction at international customary as well as treaty law. The majority of States have agreed that these crimes require prosecution (Schabas, 2003, pp. 56–57). Part 4: Further steps to protect IDPs: cooperation with other States and international organisations as a form of ensuring respect for IHL As has been established throughout this volume, there is no clearly defined way in which ensuring respect for IHL must be done, but a number of ways have been suggested. Much may be dependent on the capacity and influence of the third States and is often part of a continuum with respect for IHL actions that a State must engage with. As detailed above, with respect to IDPs whose displacement is caused by conflict, there are a number of ways that third States can encourage compliance with IHL to reduce the plight of IDPs. In the first instance, prevention by an adherence to the rules which reduce the impact of hostilities on civilians and secondly, mitigation of the situation through the provision of humanitarian assistance by invoking the right to do so through the GCs or APs, or alternatively through resolutions enforcing that assistance in the UNSC. Additionally, specifically referenced in the Kampala Convention, third States can also ensure respect 1

In its case law, the ICTY has sought to distinguish between deportation, on the one hand, and forcible transfer, on the other. The ICTY Appeals Chamber held in Stakic that deportation requires ‘the forced displacement of persons by expulsion or other forms of coercion from the area in which they are lawfully present, across a de jure State border or, in certain circumstances, a de facto border’ Stakic Appeals Judgement, Case No. IT-97–24-A, Judgement, 22 March 2006, [278]’.

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for IHL by undertaking collaborative activities with other States and with relevant international organisations. Third States can prepare, in conjunction with relevant government authorities, and support activities geared towards the prevention of displacement and programmes planning for efficient coordination in the event of displacement. Such activities can include capacity-building and lobbying for the laws and policies that protect IDPs. Capacity-building would entail third States engaging with their government counterparts in other States to prevent and respond to situations of internal displacement, coordinating with national authorities in the development and implementation of programmes for IDPs, and supporting governments in their resource mobilisation for programmes that will protect and assist IDPs. Capacity-building could also require engaging with police officers and military officials within the third State and with others, this is because they are often required to secure the environment in order to facilitate safe and rapid humanitarian access or provide physical security of IDPs and affected populations during displacement. Third States like Niger – the first country to domesticate the Kampala Convention (Reliefweb, 2018) – can also achieve protection for IDPs by advocating for the adoption of laws and policies that secure IDP rights such as the Kampala Convention. Cooperation with international organisations is another important way that States can ensure respect for IHL. In addition to the GCs, the Kampala Convention also asserts a duty of the affected State to facilitate the ‘rapid and unimpeded access’ of humanitarian organisations for the provision of assistance. Additionally, Article 3(1)(j) of the Kampala Convention provides that: State Parties undertake to respect and ensure respect for the present Convention. In particular, State Parties shall: … ensure assistance to internally displaced persons by meeting their basic needs as well as allowing and facilitating rapid and unimpeded access by humanitarian organisations and personnel. CA1 has further been reinforced by the expanding role of humanitarian organisations which have stepped forward to address protection and assistance needs faced by IDPs. As part of its humanitarian reforms, the UN adopted the ‘cluster approach’ to enhance assistance and protection for IDPs. Under this approach, three clusters were established. UNHCR was tasked with overseeing protection, camp management, camp coordination and emergency shelter, the UN International Children’s Emergency Fund (UNICEF) was tasked with water, sanitation and nutrition, the World Food Programme focused on logistics, and the UN Development Programme dealt with recovery (Dieng, 2017, p. 267). The different organisations under the ‘cluster approach’ also work closely with national authorities where possible. In the Democratic Republic of Congo, for example, a working group dubbed, ‘Groupe de travail technique sur le déplacement’ convened representatives of national authorities, humanitarian and UN agencies to consult and engage on IDP issues (ICRC, 2016, p. 394). The Arusha Peace and Reconciliation Agreement 2000 for Burundi included provisions on protection and assistance of IDPs as well as responsibilities for humanitarian aid and access and

228 Linda Isabel Ngesa security for international personnel (ICRC, 2016, p. 397). Third States can further assist IDPs by supporting such organisations already involved in the provision and coordination of humanitarian assistance by providing financial and/or material support. In addition, third States could also provide practical support by offering logistic support (airports, ports, telecommunication network) and medical infrastructure (hospitals, personnel). As discussed above, and in further detail in this volume by Zangeneh in Chapter 16, under the GCs every State party has an obligation to search for persons alleged to have committed grave breaches of the GCs and to prosecute or extradite them (GCI Arts. 49/50/129/146; CIHL Study Rule 158). The Kampala Convention also provides that States parties shall prevent ‘war crimes and other violations of international humanitarian law’ (Art. 9(1)(b)) against IDPs and that States parties ‘shall declare as offences punishable by law acts of arbitrary displacement that amount to genocide, war crimes or crimes against humanity’ (Art. 4(6)).

Conclusion During armed conflict the systems that would otherwise protect the rights of civilians who have become displaced have often broken down. In most instances the government either lacks the capacity or willingness to protect and/or assist IDPs. Some authorities are not willing to admit their role in causing displacement, or that they may have lost control of part of their territory (see further, Brinkman (1998, pp. 6–7) for analysis of the effect that governments have often directly supported attacks against IDPs). In such contexts, governments may perceive external assistance as undermining their authority while potentially strengthening their adversaries. While it is true that the tensions between traditional notions of sovereignty and emerging norms of international responsibility toward populations at risk are not always easily reconcilable, IDPs in dire need of humanitarian assistance are increasingly understood as having certain rights and claims on the international community when their governments abdicate responsibility or where there is a collapse of the State system. As has been shown in this chapter, CA1 provides a legal avenue through which States can provide assistance to IDPs because by aiding IDPs third States are giving effect to the obligation to ensure respect for IHL. Further, the Kampala Convention provides another source of this obligation on the African continent. It designates States as having the primary duty and responsibility to provide protection and humanitarian assistance to IDPs (Art. 5(1)) but asserts that cooperation and solidarity among States may be invoked at the request of the concerned State party or the conference of State parties (Art 5(2)): the effect, in relation at least to conflict induced displacement, being ensuring respect for IHL. Additionally, recent resolutions of the UNSC have demanded access to affected IDPs without the direct consent of the State authorities, merely allowing for the notification to the relevant parties, which denotes that States have an implicit duty to accept international assistance. In both instances, third States are in a

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position to ensure respect for IHL by supporting moves to use the Kampala Convention as a template for further international multilateral legislation, and in support of UNSC resolutions which insist on the delivery of humanitarian assistance to populations of concern despite the failure of the relevant authorities to consent.

References (additional to the common list) Treaties African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa, 23 October 2009 (entered into force 6 December 2012). Protocol on the Protection and Assistance to Internally Displaced Persons, International Conference on the Great Lakes Region: Pact on Security, Stability and Development in the Great Lakes Region. (30 November 2006) [Great Lakes Protocol]. Rome Statute of the International Criminal Court, 17 July 1998 (entered into force 1 July 2002). Statute of the International Criminal Tribunal for the Former Yugoslavia (as amended on 17 May 2002), 25 May 1993. Statute of the International Criminal Tribunal for Rwanda (as last amended on 13 October 2006), 8 November 1994. Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 8 ILM 679 (entered into force 27 January 1980).

Domestic legislation Act No. 56 of 2012, The Prevention, Protection and Assistance to Internally Displaced Persons and Affected Communities Act, 2012 [Kenyan IDP Act].

Cases Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, (Merits) [1986] ICJ Rep. Prosecutor v. Krnojelac, Case No. IT-97–25-A, Judgement, 17 September 2003.

Documents Guiding Principles on Internal Displacement, 22 July 1998 [Guiding Principles]. Report of the Secretary-General on protection for humanitarian assistance to refugees and others in conflict situations, UN Doc S/ 1998/883 (22 Sept. 1998) [UN Secretary-General, 1998]. UN GA Res. 48/141 (1993). UNSC Res. 1265 (1999). UNSC Res. 1509 (2003). UNSC Res. 1769 (2007). UNSC Res. 1866 (2009). UNSC Res. 2139 (2014).

230 Linda Isabel Ngesa UNSC Res. 2149 (2014). UNSC Res. 2165 (2014).

Secondary sources Annan, Kofi (2000) Statement of UN Secretary-General Kofi Annan to the General Assembly, on presenting his Millennium Report, New York, 3 April 2000. Brinkman, I. (1998). Roberta Cohen and Francis M. Deng. Masses in Flight: The Global Crisis of Internal Displacement. Washington, DC: Brookings Institution Press. Combaz, E. (2016). Effects of Respect for International Humanitarian Law on Displacement. Birmingham: University of Birmingham. Committee on Internally Displaced Persons, (2000). Report and Draft Declaration for Consideration at the 2000 Conference, International Law Association Conference. Cotroneo, A. (2018). Strengthening Implementation of the Guiding Principles by Affected States. Forced Migration Review 59, 29–31. Deng, F. et al (1996). Sovereignty as Responsibility: Conflict Management in Africa. Washington DC: The Brookings Institution. Deng, F. (1995). Sovereignty, Responsibility and Accountability – A Framework of Protection, Assistance and Development for the Internally Displaced. Concept paper for the Brookings Institution – Refugee Policy Group Project on Internal Displacement. Dieng, A. (2017). Protecting Internally Displaced Persons: The Value of the Kampala Convention as a Regional Example. International Review of the Red Cross, 99 (904), 263–282. Dominice, C. (1999). The International Responsibility of States for Breach of Multilateral Obligations. EJIL. Vol. 10 (2), 353–363. Gasser, Hans-Peter. (1993). Ensuring Respect for the Geneva Conventions and Protocols: The Role of Third States and the United Nations. In Hazel Fox and Michael A. Meyer (eds), Armed Conflict and the New Law, Vol. II, Effecting Compliance. London: The British Institute of International and Comparative Law. Geiss, R. (2015). The Obligation to Respect and to Ensure Respect for the Conventions. In Andrew Clapham, Paola Gaeta, and Marco Sassòli (eds) The 1949 Geneva Conventions – A Commentary. Oxford: Oxford University Press. Green, R. (2008). A Chronology of International Organisations. London: Routledge. Heintze, H. (2009). Protecting Power. Max Planck Encyclopaedia of Public International Law. ICRC (2016). Translating the Kampala Convention into Practice: A Stocktaking Exercise. Geneva: ICRC. Palwankar, Umesh. (1998). Measures Available to States for Fulfilling their Obligation to Ensure Respect for International Humanitarian Law. IRRC, (298). Reliefweb (5 December 2018) Niger Become the First Country to Adopt the Niger Becomes the First Country in Africa to Adopt a National Law for the Protection and Assistance of Internally Displaced Persons, https://reliefweb.int/report/niger/niger-becomes-firstcountry-africa-adopt-national-law-protection-and-assistance. Sachariew, K. (1989). State’s Entitlement to Take Action to Enforce International Humanitarian Law. International Review of the Red Cross, 182–184. Schabas, WA. (2003). National Courts Finally Begin to Prosecute Genocide, the ‘Crime of Crimes’. Journal of International Criminal Justice 1 (1), 39–63. UNHCR (2019). Global Trends Forced Displacement in 2018. UNHCR Zimmerman, Andreas (2017) Humanitarian Assistance and the Security Council, Israel Law Review 50 (1), 3–23.

15 Challenges in the application of the obligation to ensure respect for IHL – foreign fighting as an example Marnie Lloydd

Introduction CA1 has been described as a ‘living provision […] the precise content of [which] is difficult to determine in the abstract’ but which ‘will be further concretized and operationalized in the decades ahead’ (2016 Commentary, para. 172). This chapter considers the obligation to respect and ensure respect for IHL regarding a particular case example – the threat of IHL violations being committed through foreign fighting. Specifically, it examines compliance with the duty to ensure respect for IHL by a parent State (meaning a State of nationality or permanent residence) regarding (would-be) foreign fighters leaving or having left from that territory to fight in a foreign armed conflict. As part of their grappling with the complex issues surrounding foreign fighting, are States considering how to ensure that fighters of all “persuasions” emanating from their jurisdiction are respecting IHL? This chapter argues that States must think about the duty to ensure respect for IHL when determining their administrative and legal policy on foreign fighting. The question, though, is how – and perhaps also how much – States need to think about CA1 to ensure they are fulfilling their ‘ensure respect’ duty in good faith. Although in the last five years, States have taken many steps, collectively and independently, to prevent the movement and activities of foreign fighters, especially ‘foreign terrorist fighters’ (UNSC Res. 2178 (2014), preamble para. 8), much of which would be in keeping with CA1, this chapter finds that CA1 is seldom explicitly considered. Moreover, specific features of foreign fighting affect the application of the obligation to ensure respect for IHL, pre-departure, during participation and post-participation. Rather than seeking to provide comprehensive operational guidance to States about actions that may or even should be taken in compliance with CA1, this chapter seeks to open the conversation about CA1 and foreign fighting by discussing the questions those specific features raise, and illustrating certain challenges in determining the application of the duty in relation to foreign fighting. Although consideration of CA1 turns upon the facts of each instance of foreign fighting as a diligence duty dictates, the questions raised nevertheless point to certain risks involved in calls for a “generous” response pursuant to CA1 when applied to potential foreign fighters, particularly due to the intense counter-

232 Marnie Lloydd terrorism framing of foreign fighter issues. This suggests a need to proceed carefully, to acknowledge foreign fighting as a more general category of potential humanitarian concern, ie. larger than only ‘foreign terrorist fighters’, and to give more intentional thought to the duty to ensure respect for IHL as a stand-alone duty, if CA1 is to be concretised in future regarding foreign fighting.

Foreign fighting, IHL and the obligation to ensure respect There is no definition of “foreign fighting” or “foreign fighter” in international law. This chapter uses the term “foreign fighter” to mean ‘an individual who leaves his or her country of origin or habitual residence to join a non-state armed group as a fighter in an armed conflict abroad’ (adapted from Krähenmann, 2014, p. 6). This includes individuals joining listed terrorist groups – the category given most attention currently – but also those joining other armed groups, whether fighting in support of or against government forces (eg. in Ukraine), or against another armed group (eg. ‘anti-ISIS fighters’ in Syria and Iraq, see Fritz and Young, 2017; Tuck et al, 2016), and regardless of motivation or payment. Foreign fighting is not a war crime in itself. It can, however, raise humanitarian concerns since foreign fighters of any background might violate IHL in the course of their participation in armed conflict (Heinsch, 2016, pp. 165–167). CA1 is relevant prima facie and States must, therefore, take into consideration their duty to ensure respect for IHL when determining administrative and legal policy on foreign fighting. The obligation to ensure respect for IHL sits alongside other international legal obligations of diligent prevention potentially applicable to instances of foreign fighting, such as duties pursuant to the non-toleration of unlawful harm or related to counter-terrorism (see eg. Krähenmann, 2016, pp. 232–235; Lloydd, 2017, pp. 545ff). In other words, international law seeks to protect States from a broader range of possible harms arising from foreign fighting than only IHL violations, especially threats to territorial integrity or political independence. The duty to ensure respect for IHL offers, however, a minimum overarching standard regarding foreign fighting, and one which applies in all circumstances. This means CA1 could be relied upon to require diligent prevention of conduct of humanitarian concern, even in situations in which more general duties under non-toleration of harm rules or the more specific anti-terrorism and mercenarism regimes might not clearly apply (see Lloydd, 2017, pp. 552–553).1 Finally, although CA1 involves negative obligations for a State to refrain from unlawful conduct (not to encourage; not to aid or assist), this chapter focuses on the possible positive obligations to ensure compliance with IHL. That is not to say that States might not breach CA1 in the negative sense by facilitating the movement and activities of foreign fighters with requisite knowledge of the risk of 1

Relatedly, it could be queried whether CA1 provides a preferable sole approach to the prevention of foreign fighting in as much as it might help avoid issues plaguing the legal categorisation of individual fighters or application of other prevention duties. I am grateful to Alberto Costi (Victoria University of Wellington) for raising this point with me.

Foreign fighting 233 violations being committed (see Boutin, 2017, p. 67; Corten and Koutroulis, 2013, pp. 77–91; Sassòli, 2019, para. 5.149). Indeed, at times, States have had policy interests in tolerating the movement of foreign fighters, for example to destabilise a neighbour (Krähenmann, 2016, p. 231) or as a “safety-valve” for troublemakers at home (Byman, 2017). Despite occasional allegations of facilitation, for example of Russian fighters into eastern Ukraine (Rácz, 2017), and differential discretional treatment by States of different types of fighters, particularly jihadist and non-jihadist (eg. Tayler, 2016, p. 459), the more common posture of States is not to overtly condone or offer support to foreign fighting. In addition, scholarship illustrates that establishing the material scope of the positive obligation is a core problem surrounding the duty to ensure respect for IHL (eg. Corten and Koutroulis, 2013, p. 84; Geiss, 2015b, p. 429ff; Boutruche and Sassòli, 2016, p. 13ff). For those reasons, after considering, below, the overarching issue of the seeming lack of intentional thought given to CA1 by States, the following section then considers the specific features of foreign fighting which create both practical and legal uncertainties surrounding how the positive aspects of the obligation to ensure respect might be applied.

The interplay of CA1 and other international obligations regarding foreign fighting State responses to foreign fighting are rarely taken explicitly to comply with the duty to ensure respect for IHL, even if in practice, they would be in keeping with CA1 or humanitarian concerns. Firstly, preventive measures are being taken by States as part of compliance with a range of due diligence obligations under international law potentially relevant to foreign fighting. In particular, and understandably given current security priorities and the UNSC’s Chapter VII requirement that States seek to prevent the movement and activities of ‘foreign terrorist fighters’ (UNSC Res. 2178 (2014)), the key contemporary focus of States both pre- and post-departure of fighters is on counter-terrorism actions. Anti-terrorism provisions could be read as implying concern about IHL violations in the form of terrorist activity without needing to state it explicitly. For example, the UNSC’s first ‘foreign terrorist fighter’ Resolution 2170 (2014, OP. 1–3) mentions serious violations of IHL. However, the more detailed UNSC Resolution 2178 (2014) only mentions acts of terrorism and the threat to international peace and security. Neither of these resolutions explicitly mentions CA1 or the customary duty to ensure respect for IHL. Since terrorist activity also occurs outside of armed conflict, counter-terrorism measures are anyway broader in scope than CA1. Nevertheless, a counter-terrorism focus ignores that war crimes could be at issue in other scenarios of foreign fighting. Secondly, in addition to complying with legal duties, a range of policy reasons draw States to respond to foreign fighting. Those reasons might include upholding the State’s claimed monopoly on the legitimate use of force, supporting positions of abstention from the intensification of violence, wanting to protect nationals from possible harm, or avoiding foreign policy discomfiture or consular

234 Marnie Lloydd headaches caused by nationals becoming involved in a foreign armed conflict. Relatedly, it can be observed in diplomatic positioning and domestic debate that the predominant concern of States is often security at home, ie. from the actions of would-be and returning foreign fighters, rather than necessarily the fighter’s conduct in a destination State and the respect for IHL more generally. For example, Højfeldt (2015, p. 30) explains that ‘[d]omestic criminal law is increasingly being applied to conduct [of foreign fighters] committed in times of armed conflict. The policy aim is no longer to repress war crimes, but to safeguard national security’. Thirdly, destination States have at times made formal démarches to international or regional organisations, complaining of the presence of foreigners who have entered illegally to fight, implying that parent and transit States have not taken sufficient action to prevent the movement of foreign fighters from their territories (Krähenmann, 2014, p. 49; Velebit, 2017). While attacks against civilians are mentioned in some documents (see eg. Syria’s complaint about foreign fighters A/69/912–S/2015/371), once again, these démarches do not specifically refer to CA1 but sometimes rather a concern about perceived interference in domestic affairs or support for terrorism (Krähenmann, 2014, p. 49). In sum, this means that State practice in terms of diligent prevention is taken under multiple headings and any potential CA1-specific response appears subsumed into other approaches. Although CA1 is a stand-alone binding obligation (2016 Commentary, para. 170; Boisson de Chazournes and Condorelli, 2000, p. 70; Zych, 2009, p. 255), these factors make it difficult to analyse the extent to which States may have taken CA1 into account, implicitly if at all, in their responses to foreign fighting (see also Zych, 2009, pp. 260–262 regarding lack of opinio juris).

Actions to ensure respect for IHL related to foreign fighting Foreign fighting straddles both the internal and external components of the obligation to ensure respect for IHL. The geographic movement of foreign fighters between different States’ territorial jurisdictions, and the change in their role vis-àvis the armed conflict, means that the analysis and application of CA1 changes in different phases of the fighters’ activities. Pre-departure The internal component of the obligation applies to the State’s organs and groups under its control, as well as its own population (2016 Commentary, para. 150; Dörmann and Serralvo, 2014, pp. 708–709; Geiss, 2015a, p. 118; Sassòli, 2019, para. 5.146). Individuals within the parent State intending to participate in a foreign armed conflict remain part of the general population, and a “private actor”. Drummond, in Chapter 5, has set out the general operation of the due diligence duty of States to ensure respect for IHL by private actors and it is not repeated here. The parent State’s obligation to ensure respect for IHL by its own population is an accepted aspect of CA1 and thus uncontroversial, legally speaking (2016 Commentary, para. 150; Boutruche and Sassòli, 2016, p. 6). Actions taken prior to the

Foreign fighting 235 would-be fighter’s departure also have the benefit of the parent State maintaining significant control over the individual, their communications and movements. However, pre-departure action raises some legal and practical issues, not least because the individual has not yet been involved in activities governed by IHL. First, on a practical level, although intelligence and monitoring has led to some aspiring foreign fighters being stopped or arrested before departure, it remains challenging for States to have detailed knowledge of foreign fighting in advance (Blackbourn et al, 2018, pp. 25–27, 66). At times the individuals themselves lack certainty over where they will go and which group they will join, or may change groups in situ (eg. Locks, 2016, pp. 22–24). This means that the State cannot assess the risk of IHL violations being committed by whichever party they join, including assessing whether the group lacks appropriate IHL training or has insufficient disciplinary structures, although as mentioned above, the State may wish to prevent the individual’s participation with any group for other legal or policy reasons. This can be contrasted with the State’s abilities to monitor and sometimes authorise the activities of personnel of private military and security companies (PMSC) as registered companies (see Tonkin, 2009; Cameron and Chetail, 2013, 244ff), and to some extent national enlistees with foreign State armed forces. In this sense, there are a number of typical “good practice” measures States may take regarding private actors, such as ensuring appropriate IHL dissemination, or approving foreign enlistment requests or PMSC contracts to operate overseas, that are unsuited to a foreign fighting scenario. There remain, however, a range of general measures States have taken to detect and dissuade recruitment and facilitation of departures regardless of identification of a specific individual or armed group. These include administrative and legislative responses on the domestic level such as increasing intelligence and monitoring powers, amending anti-terrorism provisions to include preparatory acts, enacting geographic travel restrictions through the use of declared area offences, or more specifically, prohibiting foreign fighting/foreign incursion more objectively. States have also issued public communications or travel advisory warnings to dissuade departures (see in general de Guttry et al, 2016, Part IV; Blackbourn et al, 2018; S/2015/939, Sect. I). A diligent response, then, requires in the first place a suitable administrative and legislative response (‘apparatus’) to the general phenomenon of foreign fighting of concern, which can then be diligently applied in specific cases once a parent State becomes aware of a national’s (intended) participation with a particular foreign armed group at risk of committing abuses (see Pisillo-Mazzeschi, 1992, p. 26 and discussion in Tonkin, 2009, pp. 795–796; Cameron and Chetail, 2013, pp. 257–258). Both aspects can be seen as part of a minimum duty to remain ‘vigilant’ to IHL violations (Sandoz, 1992). Second, States must appropriately balance the fact that pre-departure prevention actions risk penalising activities preparatory to foreign fighting that in any other situation would not be criminal offences (see Blackbourn et al, 2018, pp. 26–27; Gherbaoui, 2020). However, if ensuring respect for IHL works on the basis of diligent prevention, at least where there is foreseeability (2016 Commentary, paras. 145, 164; Geiss, 2015a, p. 117; Dörmann and Serralvo, 2014, pp. 729–730), it

236 Marnie Lloydd would nevertheless be too narrow an approach to argue that there must be a serious risk of the individual in question committing war crimes before she could be prevented from leaving the parent State, if the group itself was considered problematic, even if she had not yet been involved in any wrongdoing pursuant to IHL. Rather, CA1 can be considered broad enough to cover the prevention of individuals from participating in a group precisely because of the risk of IHL violations being committed by that group. Still, States must tread carefully: on the one hand, any actions of surveillance or administrative control must comply with the State’s legal obligations towards its population, including the rights of liberty and freedom of movement, and protection from discrimination and arbitrary deprivation of nationality (see generally UN Counter-Terrorism Implementation Task Force, 2018). On the other hand, a situation involving ‘gross and extensive violations of human rights and [IHL]’ has been found to support a finding that proposed movement restrictions on suspected foreign terrorist fighters were proportional to the protection of national security, public order and the rights and freedoms of others in terms of lawful limits on human rights (Orr, 2014, para. 20). It is the State’s response in the circumstances that must be legal, proportional and therefore, in practice graduated, depending on the circumstances (Geiss, 2015a, p. 125; Geiss, 2015b, p. 433). Third, the State needs some way of identifying the armed groups that are considered problematic. The familiar question of when precisely the State’s duty to ensure respect is triggered applies equally to the scenario of foreign fighting. These debates focus on the parameters affecting the foreseeability of violations and the positive measures to be taken, such as the imminence of the violation, the gravity of the offence, the means available to the State and the influence it holds (see eg. Geiss, 2015a, pp. 118, 123ff; Geiss, 2015b, p. 435; Boutruche and Sassòli, 2016, pp. 16, 26–30; 2016 Commentary, para. 165). How many foreign fighter departures must there be, to which types of groups or contexts, over what time period, in order for the parent State not to be acting diligently if it fails to take preventive action? As Geiss (2015a, pp. 126–127) argues, the CA1 obligation most likely involves a broad duty of prevention, but not a ‘proactive’ one as such. Applied to would-be foreign fighters, preventive action would be required where an individual is intending to join or has joined a group in relation to which ‘the prospective inobservance of IHL is marked by a certain degree of predictability’ (Dörmann and Serralvo, 2014, pp. 729–730; see also Geiss, 2015a, pp. 126–127, discussing by analogy Bosnian Genocide, para. 431: ‘arise at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed’), and/or the far rarer case in which the individual national is herself considered to pose a similar risk of the commission of war crimes. This would require continual monitoring. Closer monitoring could be expected where there is an armed conflict related in some way to the parent State (geographically close, in which the parent State is intervening in some way, or linked through minority population, dual citizens, shared culture, media interest etc), where the armed conflict is otherwise significant, for example, in terms of intensity or existing foreign fighter participation, or where the State is already aware that persons

Foreign fighting 237 from its territory have left to become foreign fighters (see also Geiss, 2015b, p. 435). Similarly, once a State becomes aware that persons from its jurisdiction have joined a particular armed group – including from complaints or information from the destination State – it could at least closely monitor the battlefield conduct of that specific group (see eg. Kessler, 2001, p. 509). There is no uniformity in State practice regarding those determinations, even in regard to the duty of diligent prevention of foreign terrorist fighters given the lack of settled definition of terrorism internationally; and particularly not regarding other types of foreign fighting. Within domestic legal frameworks, some States penalise involvement with listed terrorist groups only (which differ between States), often making membership of a terrorist group an offence in itself due to the difficulty in proving the terrorist intent of an individual’s acts preparatory to foreign fighting (Krähenmann, 2016, p. 239). Others rely also on formulations such as ‘declared area offences’ which prohibit presence in geographic zones in which terrorist groups are active (eg. Australia, Denmark, United Kingdom (UK)). Certain States prohibit foreign incursion more broadly, for example, Norway prohibits ‘illegitimate participation in military activity in an armed conflict abroad […] unless the person participates as member of a State’s armed force’ (Højfeldt, 2015, p. 30). As well as domestic decision-making, there are instances of the UNSC making the determination for States of problematic contexts, armed forces and groups, as well as types of fighters. The counter-terrorism obligations placed on UN member States regarding so-called ‘foreign terrorist fighters’ in UNSC Resolutions 2170 (2014) and 2178 (2014) present the key recent example. Earlier examples include UNSC Resolution 46 (1948) (OP. 1(b)) which sought to restrain the entry into Palestine of ‘armed bands and fighting personnel, groups and individuals’, UNSC Resolution 161 (1961) (OP. 2–3) which urged States to prevent the travel into Congo of non-UN ‘foreign military and paramilitary personnel and political advisors’ as well as mercenaries, and UNSC Resolution 2011 (1970) (OP. 14) calling for States ‘to strongly discourage their nationals from travelling […] to participate in activities on behalf of the Libyan authorities that could reasonably contribute to the violation of human rights’.2 Foreign fighters as a form of material military support? Pre-departure preventive actions in the form of risk assessments resemble to some extent actions taken to prevent risks from arms transfers. There is, indeed, international precedent for an approach which discusses support provided to an armed group in the form of foreign personnel similarly to support via weapons transfers. UNSC Resolution 2170 (2014) (OP. 7–10) includes in a sub-section calling upon States to ‘suppress’ the flow of fighters to listed terrorist groups, a paragraph reaffirming that States also need to prevent the transfer of ‘arms and related 2

UNSC Resolution 1970 (2011) was concerned with allegations of human rights rather than IHL violations as there was not at the time of its adoption a situation of armed conflict in Libya.

238 Marnie Lloydd materiel’ to the same entities. The previously mentioned UNSC Resolution 1970 (2011) (OP. 9) concerning Libya similarly requested States to prevent the sending of ‘armed mercenary personnel’ as part of the Libyan arms embargo. In this way, individuals intending to volunteer or enlist are considered as a kind of material military support for the particular armed actor. The United States (US), for example, relies upon the offence of providing ‘material support or resources’ to terrorist organisations to prosecute foreign fighters (Paulussen and Pitcher, 2018, pp. 16–17). The analogy is somewhat problematic, because, as Hin-Yan Liu (2011, pp. 294–295) has critiqued, it controversially includes people within an embargo about weapons and equipment. Still, similar arguments have been made comparing the regulation of the arms trade and PMSC services internationally, suggesting that risk assessments and operating licences/authorisations could be carried out for both in the same way (Cottier, 2006, pp. 658– 660; see also O’Brien, 2007, p. 46). Cameron and Chetail (2013, p. 283) comment that ‘[t]his requirement must be at least as compelling for military services as for military goods’. States are better able to monitor and control the operations of PMSC, as well as arms transfers from their territories, than they are clandestine individual departures to conflict zones. States also have an interest in the arms trade as an import/export commodity, through taxation etc. and are therefore more involved in relevant decision-making. This renders official authorisations generally irrelevant to foreign fighting,3 but the need for risk assessment holds. Despite the framework of rights applicable to humans, in a simplistic way, applying the same risk assessment and standard for both arms and foreign fighters is logical – if you cannot lawfully transfer weapons due to reasonable risks of their use in the commission of violations, then you should likewise seek to prevent those in your jurisdiction from joining those forces of concern. At least as a way to visualise the issue, the analogy with the limits within the arms trade can be a useful tool. Post-departure and direct participation in hostilities Individuals who are not prevented from departing then become fighters with an organised armed group in the destination State; a group with rights and obligations under IHL.4 Regarding CA1, the fighters become objects of the external 3

4

One could, at least in theory, envisage some kind of authorisation scheme for volunteering with a non-State armed group fighting on the government-side of a conflict, although States do not typically publicly condone any kind of non-State fighting. Australian foreign incursion legislation, for example, allows the government to authorise fighting with a non-State armed group in the interests of the defence or international relations of Australia (Criminal Code Act 1995 (Cth), Div. 119). Even so, CA1 issues would need to be considered. This chapter does not discuss when precisely the aspiring foreign fighter should be considered a member of the foreign armed group, to be directly participating, or to have a continuous fighting function. It also does not discuss the hypothetical scenario of an individual directly participating remotely, eg. via the Internet from within the

Foreign fighting 239 obligation of the parent State towards the parties to the conflict and simultaneously part of the destination State’s internal obligation towards those within its territorial jurisdiction. The armed group also has customary duties to ensure that its fighting forces comply with IHL, sourced from Common Article 3 of the GCs (2016 Commentary, para. 132). While the destination State or armed group in question may have a greater proximity and/or direct influence over the individual once she has started directly participating in hostilities, this does not contradict the potential significance of the parent State’s legal and political link to its national/resident (albeit some foreign fighters have intended to sever that bond through their submission to another authority). The parent State may retain greater capacity to influence the situation than it would regarding a ‘standard’ situation of external obligation with none of its nationals involved, even if it lacks control over those nationals once they have left its territorial jurisdiction (Zych, 2009, p. 270; Boisson de Chazournes and Condorelli, 2000, p. 72). If so, the parent State would have a corresponding obligation extending beyond the general obligation to ensure respect to the extent of this influence, which is not territorially limited (Tonkin, 2009, p. 787; 2016 Commentary, paras. 165–66; Cameron and Chetail, 2013, pp. 249–51). While individuals have been stopped before departure, and States do issue general travel warnings or reminders of laws prohibiting foreign fighting, the author is not aware of cases of national foreign fighters being contacted in situ while fighting and “recalled” home, especially with the lack of official consular relations with non-State armed groups. In the case of suspected involvement with terrorist activity, some parent State representatives have expressed a preference that their nationals do not return at all (see eg. Dworkin, 2017 regarding deaths on the battlefield, and below regarding repatriation). The case of Joanna Palani might provide one near-example in as much as she returned from fighting with Kurdish forces in Iraq and Syria to appear in court in Denmark regarding her passport confiscation and travel ban (Palani, 2018, pp. 334–337). By analogy, concerns have been raised by civil society about former high-level military officers from the US and Australian defence forces employed within the armed forces of the United Arab Emirates (UAE) (Tanter, 2018; Roston, 2018; Greene, 2016) including in one opinion mention of CA1 (Hamilton, 2017). Concerns are due to the allegations of serious IHL violations committed in Yemen by the Saudi-led coalition, including by UAE forces (see UN Human Rights Council, 2019). Australia faces similar dilemmas about Australian-South Sudanese dual nationals serving in South Sudan’s armed forces and opposition armed groups surrounding allegations of war crimes committed in that conflict (Cosier, 2016). For the purposes of this chapter, these examples of foreign enlistment raise the same question as was explored above, namely, whether in the circumstances, it could be argued that a parent State needs to take steps to prevent a national from parent State. Based on the most common scenario, it assumes that direct participation takes place once the individual has arrived in situ with the group.

240 Marnie Lloydd supporting an allegedly violating party, or (only) to take more traditional actions such as making diplomatic statements to bring the State or non-State party, ie. all fighters, back into compliance with IHL. Unless the national is an alleged war criminal herself, or a commander or “ringleader” of forces suspected of IHL violations, an added factor is that there is no evidence that forcing the foreign national to withdraw would have any effect on the party’s respect for IHL. Indeed, in contrast, hypothetical arguments have been made that the presence of a parent State’s national foreign fighter or foreign enlistee may help improve a problematic compliance situation given her human autonomous agency (see Liu, 2011, p. 313; Greene, 2016). Even so, a “recall” or revocation of authorisation would pass a strong message about the importance of IHL compliance because respect for IHL also requires a certain level of performative disapproval, or refrain from showing acceptance of a situation. These examples highlight the political stakes at play in one State deciding to place sanctions on another, or to withdraw authorisation for a citizen to serve with another State’s armed forces. Those political stakes are higher in the case of foreign enlistment with State armed forces than foreign fighting with a non-State armed group. This is especially so in a situation in which the parent State is in coalition with the destination State and operates from an airbase in its territory, as is the case with Australia, the US and the UAE (see eg. Brissenden, 2014). Must States take into account as a minimum, as Boutruche and Sassòli (2016, p. 29) propose, the factor of ‘[whether] existing partnerships and cooperation measures contradict the obligation to ensure respect’? Does the national’s senior position affect the responsibility? Does the issue of a UN report or national court decision identifying a risk of violations, or other States halting arms exports to the same actor, affect the responsibility?5 Political sensitivities aside, the practical dimensions are understandably more complex regarding foreign fighting with an armed group. Overall, CA1 appears broad enough to contemplate a parent State with influence over an individual using that influence to diligently seek to prevent or end the foreign volunteering/service. Less clear is whether a parent State must take action in relation to its national. What kind of leverage might the parent State have over individuals in practical terms once they are physically in another State’s jurisdiction and fighting with an armed group; where there may be no consular service available or no diplomatic ties with non-State actors (see von Hein, 2019); and/or where they may be fighting against their parent State if it is a member of an international coalition involved in the same conflict eg. the coalition against the Islamic State group?

5

eg. in June 2019, the UK Appeal Court found that the UK Government’s decisions to continue licensing arms transfers to Saudi Arabia were taken incorrectly in relation to the risk of IHL violations being committed in Yemen: CAAT v Secretary of State and others [2019] EWCA Civ 10203.

Foreign fighting 241 Possible actions post-participation or return – investigation and prosecution Assuming that there is little in practice that the parent State can do regarding the individual fighter once she has started participating with a foreign armed group, at the very least, the parent State has a duty under IHL to enact appropriate legislation to suppress IHL violations (GCI–IV Arts. 49/50/129/146; API Arts. 85, 86). Should there be indications that foreign fighters/foreign enlistees have committed violations, IHL requires that those violations are investigated and prosecuted, if appropriate, by their country of nationality or the territorial State (CIHL Study, Rule 158). As Zangeneh discusses within Chapter 16, this is part of how States can ensure respect for IHL. The extraterritorial application of criminal law and obtaining of evidence from a foreign conflict zone present real challenges requiring mutual legal and criminal assistance (see eg. S/2015/939, p. 17; S/ 2018/1177, para. 29; Blackbourn et al, 2018, pp. 21–22). Although prosecutions of foreign fighters have included war crimes charges, for example in Germany, the emphasis remains on terrorism, and reliance upon a range of offences including preparatory or supportive actions (Paulussen and Pitcher, 2018, pp. 16, 18, 35; Cuyckens and Paulussen, 2019, pp. 8, 18ff). At the time of writing, several States are faced with the challenge of how to respond to their national foreign fighters having been captured on the battlefield in Iraq and Syria. Several States have to date declined to repatriate these alleged foreign members of the Islamic State group for investigation and prosecution. Some have suggested prosecution in the region, including by an international or hybrid tribunal. In addition, certain States have revoked the citizenship of foreign fighters who are dual nationals (see Blackbourn et al, 2018, pp. 76ff and Ball and Zegenhagen in Chapter 12 of this volume). These responses are potentially detrimental to ensuring respect for IHL in terms of avoiding impunity for war crimes, as well as risking violation of international counter-terrorism duties which, like IHL, require investigation and prosecution of relevant offences (see, eg. S/2018/ 1177, paras. 24–25 and Guiding Principle 14). In line with that argument, in 2019, a German NGO took legal action against the German federal government regarding 74 German Islamic State group foreign fighters/supporters held by Kurdish forces as at May 2019, for whom 21 arrest warrants had been issued by the German Prosecutor’s Office, including for war crimes. The petition was based on Germany’s refusal of offers to repatriate and therefore failure to prosecute these persons (Muller, 2019).6 CA1 may also require States to take diligent actions, including offering consular services or diplomatic protection where relevant, to avoid potential IHL violations by the authorities detaining foreign fighters (indeed, any persons deprived of liberty in relation to the conflict) in as much as their treatment and conditions in detention or fair trial rights/due process might be inadequate. It may be preferable that war crimes investigations and prosecutions are carried out by the destination State (Breslin, 2017, p. 34). However, those States do not 6

No decision had been issued in this matter at the time of writing.

242 Marnie Lloydd necessarily wish to be left to deal with the foreign fighters. For example, Ukraine has reportedly shared information with Australia, Italy and the UK regarding nationals of those countries who have allegedly participated with the separatist forces in Donbas, asking the parent States to take action (Bucci, 2019). More significantly, the detaining authority may not have the capacity/resources to undertake appropriate and fair trials of alleged war criminals (Krähenmann, 2016, p. 250; Blackbourn et al, 2018, p. 85); nor, if the detaining authority is an organised armed group, a sufficient legal basis for lawful prosecutions (Tuck, 2011, pp. 765–766). In terms of minimum positive responses required by CA1, States must not avoid or refuse to help with a war crimes investigation or prosecution without good reason (Breslin, 2017, p. 34), since ‘States must make every effort to cooperate to the extent possible with each other in order to facilitate the investigation of war crimes and the prosecution of the suspects’ (CIHL Study Rule 161). They must not remain ‘indifferent’ (see Sassòli, 2019, para. 5.157) to the situation of the alleged war crimes of foreign fighters. Ball and Zegenhagen note the case of Neil Prakash and Australia’s response to date in Chapter 12.

Conclusion The challenges surrounding CA1 are related not only to the content of the obligation, ie. that the nature and scope of the obligation to ensure respect remains somewhat unsettled in the abstract. Rather, the specific features of foreign fighting discussed in this chapter also raise uncertainties as to its application, ie. its requirements are unsettled even in concrete cases. Such universal rules remain abstract and are debated, providing only a hint towards an appropriate approach, so that the required actions need to be determined in the course of their application; in this case, by the very States the rule seeks to govern. The imprecise nature of due diligence obligations allows States to be nimble in practice. Indeed, it has been noted that there has been increasing reliance on due diligence obligations regarding the regulation of private actors (Heathcote, 2012, pp. 305–306). As such, checklists of “good practice” actions reach certain practical limits. They risk being overly aspirational – for example, setting out detailed actions that may be taken in compliance with the obligation – or overly vague – for example, merely stating that the different possible measures adopted must be ‘considered adequate to ensure respect’ (2016 Commentary, para. 165). Despite its inherent difficulties of content and application, further operationalisation of CA1 can certainly be envisaged as new phenomena in warfare arise and it is considered how the duty to ensure respect for IHL might apply, or as norms on responses to violations develop (eg. Geiss, 2015a, p. 134 regarding countermeasures). See also comments about how decades of State practice have informed the ICRC 2016 Commentary on CA1 compared with the original 1958 Pictet Commentary (Boutruche and Sassòli, 2016, pp. 4, 7–13; Boutin, 2017, p. 67). There could also be further judicial decisions dealing with CA1 that help inform its material scope and application. Nonetheless, the promise of future concretisation deserves additional nuance applied to the scenario of foreign fighting at the current

Foreign fighting 243 time. Unless State practice sways towards greater intentionality in considering CA1, with a corresponding conversation in scholarship, notions of the minimum positive steps required are likely to remain unsettled. The application of the duty to ensure respect is challenged in the case of foreign fighting in particular because, outside of the intense focus on terrorism, States show only an implied concern with battlefield conduct of foreign fighters, and therefore with CA1, amid an array of due diligence prevention duties and policy interests into which any CA1 measures tend to be subsumed. More importantly, the trend in the humanitarian literature is ‘towards a broad and dynamic interpretation’ of CA1 (Tonkin, 2009, pp. 785–786), and much scholarship suggests that States should seek to respond as generously as possible in order to ensure universal respect for IHL. Yet, given that action taken to prevent or penalise foreign fighting, or types of foreign fighting, impacts not only the duty placed on the State but also the rights and freedoms of the individual concerned, it remains important to think constructively about the dilemmas foreign fighting poses for CA1. Writing about mercenaries, Henry Burmester (1978, p. 37) remarked that ‘[a] precise definition [of mercenaries] is of vital importance if such persons are to be deprived of certain legal rights and protections and if states are to be made subject to obligations with respect to them’. This note of caution remains pertinent today given the power of the counter-terrorism framing which most typically governs contemporary responses to foreign fighting (Lloydd, 2020). Certain measures taken to respond to foreign terrorist fighters have been criticised as eroding international legal protections and the rule of law (Tayler, 2016; Ní Aolain, 2018; Gherbaoui, 2020; see also S/2014/807, paras. 25–27; Paulussen and Pitcher, 2018, pp. 14–15). In this sense, actions by States taken “in the common good” regarding the prevention of foreign fighting and terrorism (likewise, turning a blind eye to other types of foreign fighting) nevertheless further these States’ own particular view of the world (Lloydd, 2017, pp. 563–564). The impact of preventive measures, particularly preventive criminal measures, is no minor issue that a wish to support a ‘dynamic’ humanitarian imperative based on CA1 can mask unless we can rely on all States to carry out their CA1 obligations fully and in good faith. If States were willing to step back and consider foreign fighting more generally as a broader category of potential humanitarian concern, as well as to give more explicit attention to CA1, CA1 might more effectively stand alone and do its own work, rather than becoming one tool subsumed within the powerful counter-terrorism narrative, with the risks it carries. CA1 reasoning does not tell the entire story. The political reality may still be a potential for unequal application of the law, in which a member state may selectively criminalize fighting by its nationals alongside parties to a conflict whom that state opposes, but not fighting by its nationals with parties it supports, even if both sides are engaged in unlawful conduct or listed as terrorist organizations. (Tayler, 2016, p. 459)

244 Marnie Lloydd Regardless of where States decide to draw the line morally, politically and legally regarding those foreign fighters considered objectionable and those who may be considered to be ‘shooting in the right direction’ (Tuck et al, 2016), as one strand of reasoning, CA1 would provide one avenue for an effective and proportionate response to preparatory steps to foreign fighting, and therefore, a useful tool. However weak CA1 has proven to be in terms of enforcement, it remains key and in practice somewhat novel. It is key because it demands that the parent State think about its nationals’ conduct “out there”, ie. potentially impacting the wellbeing of foreign populations. This is in sharp contrast to disowning or dissociating from such realities with arguments based solely on the relationship between the foreign fighter and the parent State, such as those commonly made today regarding allegiance, treason and citizenship-stripping.

References (additional to the common list) Treaties Criminal Code Act 1995 (Cth) (Australia).

Cases Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), ICJ, Judgment, 26 February 2007 [Bosnia Genocide]. CAAT v Secretary of State and others [2019] EWCA Civ 10203.

Documents UNGA and UNSC, Identical letters from the Syrian Arab Republic, UN Doc. A/69/912–S/ 2015/371 (1 June 2015). UNSC Res. 46 (17 April 1948). UNSC Res. 161 (21 February 1961). UNSC Res. 1970 (26 February 2011). UNSC Res. 2170 (15 August 2014). UNSC Res. 2178 (24 September 2014). UNSC Letter and Annex, UN Doc. S/2014/807 (1 November 2014). UNSC Letter and Annexes, Guiding principles on foreign terrorist fighters, UN Doc. S/2015/939 (23 December 2015). UNSC Letter and Annex, Addendum to the guiding principles on foreign terrorist fighters, UN Doc. S/2018/1177 (28 December 2018). UN Human Rights Council (2019). Situation of Human Rights in Yemen, Including Violations and Abuses Since September 2014, A/HRC/42/17 (9 August 2019).

Secondary sources Blackbourn, J., Kayis, D. and McGarrity, N. (2018). Anti-Terrorism Law and Foreign Terrorist Fighters. New York: Routledge.

Foreign fighting 245 Boisson de Chazournes, L. and Condorelli, L. (2000). Common Article 1 of the Geneva Conventions revisited: Protecting collective interests. International Review of the Red Cross 82 (837), 67–86. Boutin, B. (2017). Responsibility in connection with the conduct of military partners. Military Law & Law of War Review, 56, 57–92. Boutruche, T. and Sassòli, M. (2016). Expert Opinion on Third States’ Obligations Vis-à-vis IHL Violations under International Law, with a Special Focus on Common Article 1 to the 1949 Geneva Conventions. Breslin, A. (2017). A reflection on the legal obligation for third States to ensure respect for IHL. Journal of Conflict & Security Law 22 (1), 5–37. Burmester, H. (1978). The recruitment and use of mercenaries in armed conflicts. American Journal of International Law 72 (1), 37–56. Byman, D. (2017). Frustrated foreign fighters. Brookings, 13 July 2017. Retrieved from: https:// www.brookings.edu/blog/order-from-chaos/2017/07/13/frustrated-foreign-fighters/. Cameron, L. and Chetail, V. (2013). Privatizing War: Private Military and Security Companies under Public International Law. Cambridge: Cambridge University Press. Corten, O. and Koutroulis, V. (2013). The illegality of military support to rebels in the Libyan war: Aspects of jus contra bellum and jus in bello. Journal of Conflict & Security Law 18 (1), 59–93. Cottier, M. (2006). Elements for contracting and regulating private security and military companies. International Review of the Red Cross 88 (863), 637–663. Cuyckens, H. and Paulussen C. (2019). The Prosecution of Foreign Fighters in Western Europe: The Difficult Relationship between Counter-terrorism and International Humanitarian Law. Asser Institute Research Paper Series 04, October 2019. Retrieved from: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3471908. Dörmann, K. and Serralvo, J. (2014). Common Article 1 to the Geneva Conventions and the obligation to prevent international humanitarian law violations. International Review of the Red Cross 96 (895/896), 707–736. Dworkin, A. (2017). The problem with western suggestions of a “shoot-to-kill” policy against foreign fighters. Just Security, 13 December 2017. Retrieved from: https://www.justsecurity.org/49290/problematic-suggestions-western-shoot-to-kill-policy-citizens-fighting-isis/. Fritz, J. and Young, J.K. (2017). Transnational volunteers: American foreign fighters combating the Islamic State. Terrorism and Political Violence, DOI:10.1080/09546553.2017.1377075. Geiss, R. (2015a). The obligation to respect and ensure respect for the conventions. In A. Clapham, P. Gaeta and M. Sassòli (Eds.). The 1949 Geneva Conventions: A Commentary (pp. 111–134). Oxford: Oxford University Press. Geiss, R. (2015b). Common Article 1 of the 1949 Geneva Conventions—scope and content of the obligation to “ensure respect” – “narrow but deep” or “wide and shallow”? In H. Krieger (Ed.). Inducing Compliance with International Humanitarian Law: Lessons from the African Great Lakes Region (pp. 417–441). Cambridge: Cambridge University Press. Gherbaoui, T. (2020). Criminalising foreign fighter travel in order to prevent terrorism in Europe: An illegitimate assault on human dignity? In C. Paulussen and M. Scheinin (Eds.). Human Dignity and Human Security in Times of Terrorism (pp. 241–276). The Hague: T.M.C. Asser Press/Springer. de Guttry, A., Capone, F. and Paulussen, C. (Eds.) (2016). Foreign Fighters under International Law and Beyond. The Hague: T.M.C. Asser Press/Springer. Hamilton, R. (2017). Hundreds of foreigners are fighting for UAE in Yemen—how war crimes trials may deter them. Just Security, 16 March 2017. Retrieved from: https://www.justsecurity.org/40970/hundreds-foreigners-fighting-uae-yemen-how-war-crimes-trials-deter/.

246 Marnie Lloydd Heathcote, S. (2012). State omissions and due diligence. In T. Christakis, K. Bannelier and S. Heathcote (Eds.). The ICJ and the Evolution of International Law (pp. 295–314). New York: Routledge. Heinsch, R. (2016). Foreign fighters and international criminal law. In A. de Guttry, F. Capone and C. Paulussen (Eds.). Foreign Fighters under International Law and Beyond (pp. 161–185). The Hague: T.M.C. Asser Press. Højfeldt, H. (2015). Prohibiting participation in armed conflict. Military Law & Law of War Review 54, 13–38. Krähenmann, S. (2014). Foreign Fighters under International Law. Geneva: Geneva Academy of International Humanitarian Law and Human Rights. Krähenmann, S. (2016). The obligation under international law of the foreign fighter’s state of nationality or habitual residence, state of transit and state of destination. In A. de Guttry, F. Capone and C. Paulussen (Eds.). Foreign Fighters under International Law and Beyond (pp 229–258). The Hague: T.M.C. Asser Press/Springer. Kessler, B. (2001). The duty to ensure respect under Common Article 1 of the Geneva Conventions: Its implications on international and non-international armed conflicts. German Yearbook of International Law, 44, 498–516. Liu, H.Y. (2011). Mercenaries in Libya: Ramifications of the treatment of “armed mercenary personnel” under the arms embargo for private military company contractors. Journal of Conflict & Security Law 16 (2), 293–319. Lloydd, M. (2017). Persistent tensions? International legal perspectives on ‘other’ foreign fighters. German Yearbook of International Law 60, 539–573. Lloydd, M. (2020). Framing foreign fighting: Exploring the scope of prevention and the categorisation of fighters in international law. In C. Paulussen and M. Scheinin (Eds.). Human Dignity and Human Security in Times of Terrorism (pp. 207–238). The Hague: T.M.C. Asser Press/Springer. Locks, T. (2016). Fighting ISIS. London: Sidgwick & Jackson. Ní Aolain, F. (2018). Ensuring a human rights-compliant approach to the challenge of foreign fighters. Just Security, 7 November 2018. Retrieved from: https://www.justsecurity. org/61376/ensuring-human-rights-compliant-approach-challenge-foreign-fighters/. O’Brien, K.A. (2007). What should and what should not be regulated? In S. Chesterman and C. Lehnardt (Eds.). From Mercenaries to Market: The Rise and Regulation of Private Military Companies (pp. 29–48). Oxford: Oxford University Press. Orr, J. (2014). Consistency with the New Zealand Bill of Rights Act 1990: Countering Terrorist Fighters Legislation Bill. Legal advice to New Zealand Department of Justice, 12 November 2014. Retrieved from: https://www.justice.govt.nz/assets/Documents/ Publications/bora-Countering-Terrorist-Fighters-Legislation-Bill.pdf. Palani, J. (2018). Freedom Fighter: My War Against ISIS on the Frontlines of Syria. London: Atlantic Books. Pisillo-Mazzeschi, R. (1992). The due diligence rule and the nature of the international responsibility of states. German Yearbook of International Law 35, 9–51. Paulussen, C. and Pitcher, K. (2018). Prosecuting (Potential) Foreign Fighters: Legislative and Practical Challenges. ICCT Research Paper. Retrieved from: https://icct.nl/publication/prosecuting-potential-foreign-fighters-legislative-and-practical-challenges/. Rácz, A. (2017). The elephant in the room: Russian foreign fighters in Ukraine. In K. Re¸kawek (Ed.). Not Only Syria? The Phenomenon of Foreign Fighters in a Comparative Perspective (pp. 60–73). Amsterdam: IOS Press. Sandoz, Y. (1992). ‘Droit’ or ‘devoir d’ingérence’ and the right to assistance: The issues involved. International Review of the Red Cross 32 (288), 215–227.

Foreign fighting 247 Sassòli, M. (2019). International Humanitarian Law: Rules, Controversies, and Solutions to Problems Arising in Warfare. Cheltenham: Edward Elgar. Tanter, R. (2018). Australia, the United Arab Emirates and the war in Yemen (extended and footnoted version). Arena Magazine 155. Retrieved from: https://arena.org.au/ yemen-by-richard-tanter/. Tayler, L. (2016). Foreign terrorist fighter laws: Human rights rollbacks under UN Security Council Resolution 2178. International Community Law Review 18, 455–482. Tonkin, H. (2009). Common Article 1: A minimum yardstick for regulating private military and security companies. Leiden Journal of International Law 22, 779–799. Tuck, D. (2011). Detention by armed groups: Overcoming challenges to humanitarian action. International Review of the Red Cross 93 (883), 759–782. Tuck, H., Silverman, T. & Smalley, C. (2016). Shooting in the Right Direction: Anti-ISIS Foreign Fighters in Syria & Iraq. Institute for Strategic Dialogue. Retrieved from: https://www.isdglobal.org/wp-content/uploads/2016/08/ISD-Report-Shooting-inthe-right-direction-Anti-ISIS-Fighters.pdf. UN Counter-Terrorism Implementation Task Force (2018). Guidance to States on Human Rights-Compliant Responses to the Threat Posed by Foreign Fighters. New York: UN. Zych, T. (2009). The scope of the obligation to respect and to ensure respect for international humanitarian law. Windsor Yearbook of Access to Justice 27, 251–270.

Press Brissenden, M. (2014). Al Minhad Air Base: A closer look at Australia’s base for operations in the Middle East. ABC, 15 September 2014. Retrieved from: https://www.abc.net.au/ news/2014–09-15/al-minhad:-australias-base-of-operations-in-the-middle-east/5744620. Bucci, N. (2019). Five Australians free to return after fighting in Ukraine far-right “finishing school” alongside Russian nationalist militia. ABC, 23 April 2019. Retrieved from: https://www.abc.net.au/news/2019–04-23/five-australians-free-to-return-afterukraine-conflict/11004438. Cosier, C. (2016). Aussies in South Sudan conflict put Australian law to the test. Sydney Morning Herald, 14 July 2016. Retrieved from: https://www.smh.com.au/world/ do-these-six-australians-have-a-case-to-answer-20160622-gpozja.html. Greene, A. (2016). Former Australian soldiers caught up in Yemen’s civil war, concerns for human rights. ABC, 14 January 2016. Retrieved from: https://www.abc.net.au/news/ 2016–01-14/former-australian-soldiers-caught-up-in-yemen-civil-war/7087566. von Hein, M. (2019). Opinion: Syria cannot be Europe’s Guantanamo Bay prison. Deutsche Welle, 18 February 2019. Retrieved from: https://p.dw.com/p/3DbiD. Muller, N. (2019). Germany is Failing to Prosecute IS Foreign Fighters, Yazidis accuse. Deutsche Welle, 29 May 2019. Retrieved from: https://p.dw.com/p/3JMhx. Roston, A. (2018). This American is a general for a foreign army accused of war crimes in Yemen. Buzzfeed News, 7 May 2018. Retrieved from: https://www.buzzfeednews. com/article/aramroston/stephen-toumajan-general-us-uae-yemen-contractor. Velebit, V. (2017). Serb fighters in Ukraine continue to worry the West. European Western Balkans, 29 December 2017. Retrieved from: https://europeanwesternbalkans.com/ 2017/12/29/serb-fighters-ukraine-continue-worry-west/.

16 The external dimension of Common Article 1 and the creation of international criminal tribunals Parisa Zangeneh

Introduction Kalshoven describes CA1, enshrined in the GCs, API and APIII, as a ‘ripening fruit’ that has grown from a ‘tiny seed’ (1999). As is discussed in Chapter 1 of this book, since the adoption of the GCs and APs, the content and scope of the obligation both to respect and to ensure respect for IHL has evolved into a requirement with two distinct dimensions: internal and external. The internal dimension requires that States respect IHL within their own domains and that this be adhered to by their militaries, State organs, private actors, and their populations (Dörmann and Serralvo, 2014, pp. 708–709; Roberti di Sarsina, 2019, p. 26). In addition, the less clear external dimension of CA1 requires third States – States that are not parties to the conflict – to ensure respect for IHL by taking actions to bring States violating IHL, or at risk of doing so, back into a mode of compliance with IHL and to support all States in creating and maintaining an environment encouraging compliance with IHL (Dörmann and Serralvo, 2014, pp. 708–709; Focarelli, 2010, p. 134). There is no set list of actions that may satisfy the external obligation. However, international practice may be developing with respect to one aspect of the external dimension of CA1: the formation of, support for, and compliance with international criminal tribunals. This chapter argues that one way third States may discharge their CA1 obligations, and consequently one area where we can see the CA1 obligation ripen from a tiny seed to a fruit, is through participation in international efforts to establish institutions and mechanisms to investigate and prosecute violations of the GCs or other breaches of IHL that incur criminal liability (Roberti di Sarsina, 2019, pp. vii–viii, xii–xiii, chapter 2; see Meron, 2018, p. 434). This chapter suggests that after the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) were established in 1993 and 1994, respectively, the formation of international and hybrid criminal tribunals became more commonly accepted as enforcement mechanisms of IHL. Importantly, as both tribunals dealt with noninternational armed conflict (NIAC), and with the subsequent inclusion of NIAC in the International Criminal Court’s (ICC) jurisdiction (pursuant to the Rome Statute of the International Criminal Court, 1998 (Rome Statute)), international

International criminal tribunals

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practice has clearly expanded the CA1 obligation to international criminal institutions and mechanisms in cases of conflicts both of an international and non-international character (Roberti di Sarsina, 2019, pp. 16–19). The chapter examines CA1 as an obligation in IHL that can – in one respect – be discharged in good faith by support for the establishment of institutions and mechanisms for internal, regional, and international investigations and prosecutions (Meron, 2018, pp. 434, 438).

The obligation to prosecute violations of IHL Third States have an obligation to ensure respect for IHL, even if they are not parties to a conflict, and must take all actions possible, within reason, to discharge this duty (2016 Commentary, paras. 119–121). The obligation is satisfied by the conduct of the State, as opposed to the result of its actions, and States must act with due diligence and good faith (Massingham, 2018, p. 211; Roberti di Sarsina, 2019, pp. 24–25; Dörmann and Serralvo, 2014, pp. 709–711, 716, n. 40, 724– 725, 729–730, 735). Dörmann and Serralvo argue that the external component of CA1 imposes on third States ‘an international legal obligation to actively prevent IHL violations’ (2014, p. 709; Ramsden, 2018, p. 253) and that it imposes a positive obligation on States to take unilateral or collective action against States that breach IHL norms (Dörmann and Serralvo, 2014, p. 719; see also Sassòli, 2019, para. 5.153). Roberti di Sarsina argues that where the obligation is interpreted as legally binding, all High Contracting Parties (HCPs) are required to take all measures in their power against States that commit violations of IHL and a failure to do so incurs international responsibility (2019, pp. 27–28). Kalshoven expresses scepticism that the drafters intended to impose a legal obligation on all third States to bring other States ‘back to an attitude of respect’, but considers it more likely that the drafters intended that third States may choose to take an ‘active role’ (1999, p. 33). States may take an active role to discharge their obligations through diplomatic protest aimed at pressuring States and non-State actors to comply with IHL (2016 Commentary, esp. paras. 120, 143–149, 150–183). However, action may also be taken through collective measures (CIHL Study Rule 144; Focarelli, 2010, p. 138), such as the formation of and support for international criminal tribunals and investigations (CIHL Study Rule 144). Boisson de Chazournes and Condorelli observe that the UNSC’s establishment of the ICTY and ICTR ‘also falls within the purview of a collective willingness to ensure respect for international humanitarian law in cases where serious violations occur’, as well as the ICC, which was formed and established within the UN framework and relies on the UNSC as one of its jurisdiction-triggering mechanisms (2000, p. 79; Rome Statute, 1998, Art. 13(b)). An example of this collective willingness is examined below in the formation of the ICTY. A discussion of obligations to prosecute violations of IHL requires a brief consideration of the terminology of violations. Grave breaches and war crimes developed as two distinct concepts. However, violations or potential violations of either

250 Parisa Zangeneh will trigger the obligations of CA1, which reflects the overlapping development of international criminal law and IHL since the Second World War. Cassese defines war crimes as: ‘serious violations of customary or treaty rules belonging to international humanitarian law’ (2013, pp. 65–66). Oberg defines grave breaches as: ‘a limited set of particularly serious violations of the [GCs] that gave rise to special obligations of the States Parties for the enactment and enforcement of domestic criminal law’ (2009, p. 163). The GCs require HCPs to take measures to penalise and sanction those who violate the grave breaches regime and to search for persons alleged to have violated grave breaches (GCI, Art. 49; GCII, Art. 50; GCIII, Art. 129; GCIV, Art. 146). While the Rome Statute creates an impetus for States to investigate and prosecute international crimes, including grave breaches, the GCs do not contain an explicit requirement that violations of the grave breaches regime give rise to international criminal liability. States were to enact domestic legislation and to prosecute serious violations of the grave breaches regime (Oberg, 2009, p. 165) and were left to determine how breaches outside that regime would be penalised in domestic law (Oberg, 2009, p. 165). This distinction was significant in terms of the lack of clarity between categories of violations of IHL and potential lack of consistency for enforcement of IHL among States. Oberg argues that the distinction between war crimes and grave breaches (and potential violations of the GCs that are unlisted or not classified as such) has become less distinct in practice, which is marked by the categorisation of grave breaches as war crimes by API, which also gave grave breaches criminal penalties in international law (2009, pp. 167–169; API, Art. 85(5)). Despite this historic fusion and cross pollination between legal developments in Hague-based international criminal tribunals, the GCs and APs, and developments in practice, Judge Abi-Saab expressed his discontent with the manner in which the drafters of the ICTY Statute chose ‘to ignore [the historic] convergence and to treat the two categories separately’ and that ‘the baby thus went with the bath water’ (Abi-Saab Separate Opinion, Tadic Interlocutory Appeal, 1995). Established in 1993, the ICTY was the first ad hoc international criminal tribunal to try cases resulting from the conflict in the former Yugoslavia and the first created since the Second World War. In the Tadic Decision on the Interlocutory Appeal on Jurisdiction, the Appeals Chamber (AC) described the Tribunal as ‘a mechanism for the prosecution and punishment of the perpetrators of “grave breaches”’ (Tadic Interlocutory Appeal, 1995, para. 81). It considered that Article 3 of the ICTY Statute ‘may be taken to cover all violations of international humanitarian law other than the “grave breaches” of the four [GCs] falling under Article 2 [or the rest of the Statute]’ (Tadic Interlocutory Appeal, 1995, para. 87). In its most direct statement on this, the AC recalled that in the Nicaragua case, the International Court of Justice (ICJ) observed that CA1 had become part of the ‘general principl[es] of humanitarian law to which the Conventions merely give specific expression’, and this principle imposes an obligation on States and on international organisations such as the UN (Tadic Interlocutory Appeal, 1995, para. 93, citing the Nicaragua case, 1986, para. 220). The AC recalled that States drafted

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API–II with this general obligation in consideration, which is reflected in Article 89 of API: ‘[…] High Contracting Parties undertake to act, jointly or individually, in cooperation with the United Nations and in conformity with the United Nations Charter’ (emphasis added by the ICTY) (Tadic Interlocutory Appeal, 1995, para. 93). The ICTY’s jurisdiction covered grave breaches committed in IAC and IHL violations committed in IAC and NIAC. It follows that the Tribunal constituted an enforcement mechanism whose role was also to uphold respect for and to ensure respect for IHL, which States could discharge by honouring their obligations that were also imposed through the UN framework for the maintenance of international peace and security. Thus, when the Rome Statute was drafted, the merging of grave breaches, other violations of the GCs and war crimes became clearer as they were incorporated in the Rome Statute under Article 8, continuing the ICTY and ICTR’s example of extending IHL into situations of NIAC. The ICTR did not render its own version of Tadic, possibly because its sister institution had already delivered a conclusive decision. As a consequence, the act of debating and eventually including war crimes and grave breaches in the Rome Statute constituted State practice creating the Rome system of international justice as a clear path for the enforcement of IHL and the ICC as one of the main permanent institutions tasked with upholding IHL in armed conflict, including NIAC (Rome Statute, 1998, Art. 8(2)(c)).

CA1 and ICJ interpretations The ICJ explicitly referred to CA1 in the Nicaragua case providing some explanation of third States’ responsibilities to respect and to ensure respect for IHL (Nicaragua, 1986, para. 220). Nicaragua instituted proceedings against the United States of America (US), alleging American involvement in military and paramilitary activities against Nicaragua, in and outside of its borders (Nicaragua, 1986, paras. 1, 15). Even though Nicaragua did not refer to the GCs (Nicaragua, 1986, para. 217), the Court considered that the US’ actions ‘may be judged according to the fundamental general principles of humanitarian law’ (Nicaragua, 1986, para. 218). This included during NIAC under Common Article 3, as these minimum rules for IHL are identical in both IAC and NIAC (Nicaragua, 1986, paras. 218–219). The ICJ also considered that the US was bound under CA1 to ‘respect’ the Conventions and even ‘to ensure respect’ for them ‘in all circumstances’ [… and] is thus under an obligation not to encourage persons or groups engaged in the conflict in Nicaragua to act in violation of the provisions of Article 3 common to the four 1949 Geneva Conventions. (Nicaragua, 1986, para. 220; see also Schwebel Dissenting Opinion, 1986, paras. 219, 259) Kalshoven notes that Judge Ago doubted whether customary international law was an identical reflection of the GCs and the legal standards contained in the regional and international conventions; though Judge Ago did not explicitly

252 Parisa Zangeneh reference CA1, he cited the paragraph in the judgment stating the ICJ’s view on CA1 (1999, p. 56, n. 144; Ago Separate Opinion, Nicaragua, 1986, para. 6). Judge Jennings also expressed doubt whether the GCs constituted customary international law or that Common Article 3 constituted a ‘minimum yardstick’ for IHL in NIAC (Jennings Separate Opinion, Nicaragua, 1986, pp. 537–538). In the 2004 Wall Advisory Opinion, the ICJ stated ‘that every State party to that Convention, whether or not it is a party to a specific conflict, is under an obligation to ensure that the requirements of the instruments in question are complied with’ (Wall, 2004, para. 158; see Geiss, 2015, p. 418). In his dissenting opinion, Judge Kooijmans expressed his difficulty in anticipating the types of measures that CA1 might impose on States in practice, aside from abstaining from rendering aid or assistance in maintaining the illegal situation (Kooijmans Opinion, Wall, 2004, para. 1). Judge Kooijmans found it difficult to accept that HCPs are under an obligation to ensure that Israel complied with IHL, as the judgment did not state the grounds on which it based this finding (Kooijmans Opinion, Wall, 2004, paras. 46–47). He also quotes Kalshoven’s 1999 article: I have not found in the records of the Diplomatic Conference even the slightest awareness on the part of the government delegates that one might ever wish to read into the phrase ‘to ensure respect’ any undertaking by a contracting State other than an obligation to ensure respect for the conventions by its people ‘in all circumstances’. (Kooijmans Opinion, Wall, 2004, para. 47; Kalshoven, 1999, p. 28) Judge Kooijmans took issue with the fact that though the ICJ referenced CA1, it failed to interpret its terms, simply observing that CA1 derives from the GCs and from the general principles of IHL (Kooijmans Opinion, Wall, 2004, para. 49). He also criticised the ICJ’s reference to CA1, in which the court concluded that ‘[t]he United States [was] thus under an obligation not to encourage persons or groups engaged in the conflict in Nicaragua’ to act in violation of common Article 3 (Kooijmans Opinion, Wall, 2004, para. 49). In conclusion, Kooijmans stated: Although I am certainly not in favor of a restricted interpretation of common Article 1, such as may have been envisaged in 1949, I simply do not know whether the scope given by the Court to this Article in the present Opinion is correct as a statement of positive law. Since the Court does not give any argument in its reasoning, I do not feel able to support its finding. Moreover, I fail to see what kind of positive action, resulting from this obligation, may be expected from individual States, apart from diplomatic démarches. (Kooijmans Opinion, Wall, 2004, para. 50) From the above, it appears that the obligations imposed by CA1 on third States may be broadly construed, but the precise obligations are a matter of doctrinal controversy. The ICJ’s application of CA1 in the Wall decision may provide more

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clarity as to what is expected of States, it does not appear to be resolutely settled in international law, especially considering that separate and dissenting opinions do not necessarily outweigh the ICJ’s reasoning and conclusions.

CA1 and the formation of international criminal tribunals Geiss points to over 30 years of State and international organisation practice with respect to IHL that supports State compliance with the external dimension of CA1 (2015, pp. 424–425, 428–434; Kessler, 2001, pp. 504–505). The UNSC established a significant precedent with the formation of the ICTY (UNSC Res. 827 (1993)) and ICTR (UNSC Res. 955 (1994)). The idea of an international criminal tribunal prosecuting crimes under Geneva law is not new. In the early days of the Red Cross Movement, Gustave Moynier proposed the drafting of a statute for an international tribunal that could prosecute violations of the 1864 Geneva Convention and IHL (Schabas, 2017, p. 2; Hall, 1998, p. 57). In 1947, Nuremberg judge Henri Donnedieu de Vabres proposed the establishment of a permanent international criminal court (Hall, 1998, p. 57). The Moynier draft statute stipulated that all States participate or contribute ‘every facility’ to a permanent international criminal court. This arose as a controversial issue in the drafting of the Rome Statute, despite the fact that, as Hall noted at the time, there was a growing recognition that IHL obligations are erga omnes (1998, p. 69). In this sense, it can be said that erga omnes obligations to uphold IHL are restated in CA1, and that obligations for all States parties to the Rome Statute to fully and completely cooperate with the ICC are not only implicit in their CA1 responsibilities but may bind all States as being part of an erga omnes obligation to uphold IHL (see Geiss, 2015, p. 433). A year after the formation of the ICTY, the ICTR was established to try cases linked to the NIAC in Rwanda (Ferdinandusse, 2009, p. 738). This was an important development, given some State resistance to imposing the war crimes regime into conflicts not of an international character (Cullen, 2007, pp. 420– 423). The ad hoc tribunals gave effect to CA1 by providing a clear framework and purpose for third States to ensure respect for IHL by participation in and cooperation with the tribunals’ investigative, prosecutorial and judicial efforts. Akhavan (1996, p. 509) described third State support and cooperation as ‘vital’ to the operation of the ICTR. Both the ICTY and the ICTR were established under Chapter VII of the UN Charter, which contains the UNSC’s powers regarding actions that pose threats to the peace, breaches of the peace, and acts of aggression. This Chapter endows the UNSC with the power to order measures to enforce IHL. UNSC Resolutions 827 (1993) and 955 (1994) do not reference or reproduce CA1’s language demonstrating an intent to act under this provision in the tribunals’ establishment. Although the UNSC relied on Chapter VII as the legal basis for the tribunals, it required the cooperation of third States to carry out the work, and members of the UN were required to cooperate through their participation in the UN system. The UNSC thus established a nexus between Chapter VII and CA1 through

254 Parisa Zangeneh invoking the former in creating enforcement mechanisms mandated to try serious violations of IHL and international criminal law, satisfying the external dimension of the obligation to ensure respect for CA1. Geiss argues that even if the UNSC has become the international system’s primary IHL mechanism, its responses are ‘still rather sporadic’ (2015, p. 417). The formation of the ICTY and ICTR under the Chapter VII framework represented a watershed moment in the use of international criminal tribunals as enforcement mechanisms for serious violations of IHL. In this regard, the ICTY’s establishment was particularly significant, as it was the first international tribunal whose subject matter jurisdiction included grave breaches of the GCs (Roberts, 2009, pp. 743–744). Cooperation with ICTY and ICTR’s international investigations and prosecutorial efforts also provided third States and international organisations with a clear way to fulfil their duties to ensure respect for IHL. As the ICTY and ICTR carried out their judicial activities, international practice began to clarify that compliance with international criminal investigations and prosecutions could constitute positive obligations for third States in furtherance of their efforts to satisfy the broad legal obligation in CA1. However, the extent to which international law imposed an obligation on States to investigate and prosecute international crimes and serious violations of IHL remained unclear for some time (Ambos, 2009, pp. 29– 31). Ambos argues that the adoption of the Rome Statute of the ICC in 1998 ‘advanced the debate considerably’, as States Parties were further obligated to prosecute crimes under the ICC’s jurisdiction (2009, p. 31). The wording of the Preamble of the Rome Statute echoes the wording of Chapter VII’s title, setting out the UNSC’s power to take ‘action with respect to threats to the peace, breaches of the peace, and acts of aggression’, such as grave breaches, in the context of national action and international cooperation: Recalling that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes, Reaffirming the Purposes and Principles of the Charter of the United Nations, and in particular that all States shall refrain from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations. (Rome Statute, 1998, Preamble) The Preamble’s wording explicitly links grave crimes, such as those that constitute the most serious violations of IHL, to the duty of States to prosecute international crimes, the push to end impunity for such crimes, the language of upholding international peace and security, international cooperation, and the Purposes of and Principles of the UN Charter. Notably, the inclusion of such language, which was negotiated under the UN framework, in the context of the establishment of the ICTY and the ICTR under Chapter VII, may have been influenced by the drive to end impunity for serious violations of IHL and international crimes through the use of international criminal tribunals. In practical terms, this may suggest that the link formed between Chapter VII and CA1 in the establishment

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of the ICTY and ICTR may have been transposed to the ICC framework of international cooperation for investigations and prosecutions. Indeed, States parties are now required to adhere to the ICC’s efforts to investigate and prosecute international crimes, including grave breaches, and in so doing, they are arguably actively delivering on their CA1 obligation to respect and to ensure respect for IHL in the context of the ICC. This may additionally raise the question as to whether non-States parties of the Rome Statute may be obliged to cooperate with the Rome Statute and ICC under their CA1 obligations to ensure respect for IHL (see also Kress, 1998, p. 451)? The ICTY and the Tadic decision In the Tadic Decision on the Interlocutory Appeal on Jurisdiction, the AC asked an important question in considering its jurisdiction to hear challenges to the tribunal’s jurisdiction (Tadic Interlocutory Appeal, 1995, paras. 8, 13): whether it could use its inherent or incidental jurisdiction to examine the legality of its own creation by the UNSC for the purpose of determining what lay within its own jurisdiction regarding the immediate case (Tadic Interlocutory Appeal, 1995, para. 20). The tribunal asked three questions in considering the appeal: 1 2

3

whether there was a threat to the peace that justified the Chapter VII as the legal basis for the ICTY’s establishment; whether the UNSC was authorised to take discretionary measures to restore or to maintain peace, or whether it was bound to select an option from those in Articles 41 and 42 (mentioning possibly Article 40); and if the UNSC were bound to those options, how could an international criminal tribunal’s establishment be justified, since it is not one of the options contained in the Articles and ‘is of a different nature’ (Tadic Interlocutory Appeal, 1995, para. 27).

These questions do not touch on CA1 and a potential relationship between CA1 and Chapter VII of the UN Charter; however, they directly interrogate the establishment of an international tribunal as a measure taken under Chapter VII in response to a threat to international peace and security. As CA1 imposes the obligation to respect and to ensure respect for IHL on HCPs, it follows that UNSC action in this vein is in furtherance of CA1 obligations (see also UN Charter, 1945, Art. 39). The AC recalled that [t]he public revulsion against similar offences [to those committed during WWII] in the 1990s brought about a reaction on the part of the community of nations: hence, among other remedies, the establishment of an international judicial body by an organ of an organization representing the community of nations: the Security Council. (Tadic Interlocutory Appeal, 1995, para. 58)

256 Parisa Zangeneh The AC recalled that the UNSC established the ICTY in order to try those responsible for serious IHL violations related to the conflict with the purpose of re-establishing international peace and security. Both aims act together in the achievement of UN responsibilities under Chapter VII, and they also satisfy the requirement of ensuring respect for IHL (Tadic Interlocutory Appeal, 1995, para. 72). In conflicts such as that in the former Yugoslavia, in which States, particularly newly formed States, or armed groups may experience difficulties in creating competent, independent, and impartial judicial mechanisms, the creation of ad hoc tribunals forms an especially important precedent, as it provided third States with a form of collective measure to ensure respect for IHL, the formation of and support of an international tribunal, that could fill this type of gap. Furthermore, the AC considered what it means for a tribunal to be established by law (Tadic Interlocutory Appeal, 1995, paras. 41–48), although in the context of the ICTY’s formation, not whether the ICTY was formed expressly under CA1. The ICTY was established within the context of a clear threat to the maintenance of international peace and security, and it was established within the existing framework of the maintenance thereof as a direct response to the threat identified by the international community. This threat invoked the responsibility to respect and to ensure respect for IHL, and in this case, the UNSC implemented CA1 at the international level in forming the ICTY. The AC considered that an international court or tribunal could be established by a body that ‘has a limited power to take binding decisions. In our view, one such body is the UNSC when, acting under Chapter VII of the United Nations Charter, it makes decisions binding by virtue of Article 25 of the Charter’ (Tadic Interlocutory Appeal, 1995, para. 44). Therefore, the UNSC, acting under Chapter VII of the UN Charter, is endowed with the competence to form international courts and tribunals tasked with adjudicating cases pertaining to violations of IHL. At this stage, the AC implicitly affirmed that the creation of an international court or tribunal could be in furtherance of CA1, and set in motion a new paradigm in international practice: that CA1 could be implemented at the international stage through the formation of international criminal courts and tribunals, which therefore would allow States a means of satisfying their obligations of compliance through support and cooperation with such judicial bodies. An example of third State cooperation that may be considered practice discharging its CA1 obligation was noted in the decision: Germany surrendered Tadic to the Tribunal after a request for deferral submitted by the ICTY to Germany on 8 November 1994 (Tadic Interlocutory Appeal, 1995, para. 50). Additionally, as the UNSC established the Tribunal in the midst of a conflict of international and non-international characteristics, the UNSC empowered the ICTY to try violations of IHL in NIAC and IAC, and thus allowed States to discharge their CA1 obligations by supporting and cooperating with international criminal courts and tribunals in cases of NIAC and IAC (Tadic Interlocutory Appeal, 1995, paras. 77–78). It also found that individual criminal responsibility could be imposed for violations in IAC and NIAC, which strengthens the idea that States can discharge their CA1 obligations through support for such institutions (Tadic Interlocutory Appeal, 1995, paras. 128–136).

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CA1 and the proliferation of international courts and tribunals After the ICTY and ICTR’s establishment, the proliferation of international and hybrid courts marked an important development not only in the creation of international institutions to try those responsible for international crimes, but in the creation of a novel manner in which States may discharge their CA1 obligations through their participation in international justice. The UN’s practice in forming international courts after the ICTY and ICTR adopted a different approach, which also arguably straddled the internal and external dimensions of CA1. Instead of creating ad hoc tribunals exclusively run by the UN, the UN entered a phase of creating hybrid courts and tribunals, or institutions that contained some elements of national law and participation, that were established to prosecute international crimes. These hybrid institutions included the Special Court for Sierra Leone (SCSL, established in 2000) (Dickinson, 2003, pp. 299–300), the Extraordinary Chambers in the Courts of Cambodia (ECCC, established in 2003) (Pocar, 2004, p. 304), and the Special Tribunal for Lebanon (STL, established in 2009; Mettraux, 2009, p. 911). Significantly, the SCSL and the ECCC are both primarily situated at the seat of conflict: the SCSL in Freetown, Sierra Leone, and the ECCC in Phnom Penh, Cambodia. The participation and cooperation of national governments and the UN in the establishment of hybrid courts represented a new manner in which CA1 could be satisfied by a State involved in an armed conflict, thus satisfying the internal component to respect IHL. In addition, it simultaneously allowed third States to discharge their external obligation by cooperating with the hybrid courts. Third States and international organisations are able to support investigations, the establishment and funding of courts, provision of expertise, and if necessary, locations for the conduct of trials, such as in the cases of the SCSL (with respect to Taylor’s trial, which was the only case heard outside of Freetown) and the STL, in addition to providing facilities for detaining accused and sentenced individuals. Hybrid courts have also been formed in cooperation with regional organisations. The Extraordinary African Chambers (EAC), for example, was formed following a universal jurisdiction case in which Senegalese authorities indicted Hissene Habre, former ruler of Chad, for crimes against humanity, torture, and ‘other barbaric acts’ in February 2000 (Brody, 2015, p. 210; Høgestøl, 2016, p. 149; Arrest Warrant Case, 2012, para. 17). The Dakar Court of Appeal annulled the initial proceedings, and the decision was upheld by the Court of Cassation (Arrest Warrant Case, 2012, para. 18; FIDH, 2016). However, a group of Belgian citizens, originally from Chad, filed a case against Habre in a Belgian court in November 2000 (Brody, 2015, p. 211). This court issued an international arrest warrant for Habre in September 2005 (FIDH, 2016), and several extradition requests through diplomatic channels (HRW, 2012; Belgian MFA, 2012). In turn, Senegal referred the case to the AU in 2006 (Brody, 2015, p. 212). In 2009, Belgium applied to the ICJ in order to compel

258 Parisa Zangeneh Senegal either to try Habre or to extradite him for trial (Arrest Warrant Case, 2012, para. 12; FIDH, 2016). The ICJ ordered Senegal to either extradite or prosecute Habre in July 2012 (Arrest Warrant Case, 2016, paras. 121–122) and noted that the UN Committee against Torture had been seized of a communication from several people, including one of those who had filed a complaint in Senegal (Arrest Warrant Case, 2012, para. 27). The Committee found that Senegal had violated its obligations to prosecute or extradite Habre under the Convention against Torture (CAT) (Guengueng, 2006, paras. 9.3– 10; Arrest Warrant Case, 2012, para. 122). In 2006, the AU issued a decision in which it observed that the crimes of which Habre was accused fell within the AU’s competence and mandated that Senegal prosecute and try Habre ‘on behalf of Africa’ (Habre Decision, Jul. 2006, para. 5(ii)). The decision also requested that all member States cooperate with Senegal in this pursuit (Habre Decision, Jul. 2006, para. 5(iv)). In 2012, the AU and Senegal established the EAC inside the Senegalese judicial system in order to try Habre for the alleged crimes (Brody, 2015, pp. 212–214). He was convicted in 2016 (Høgestøl, 2016, p. 147). The EAC marked a new practice in formation of international criminal institutions: the cooperation between the AU and a national government in the conduct of a case involving allegations of international crimes. This may have implications for how third States can combine resources with each other or with regional and/or international organisations in the future to create ad hoc institutions, depending on the circumstances, to try international criminal cases, thus expanding the way CA1 may be satisfied (see Meron, 2018, pp. 434, 438). Recent developments in international criminal law indicate that new actors are emerging on the scene of international justice, which may have implications for international practices pertaining to the obligation to respect and to ensure respect for IHL. The Kosovo Assembly established the Kosovo Specialist Chambers (KSC) seated in the Netherlands in 2015 and funded by the European Union, Canada, Turkey, Norway, Switzerland, and the US (Kosovo Specialist Chambers, 2019). The KSC was established within Kosovo’s justice system by Article 162 amending the Constitution of the Republic of Kosovo and the Law on the Specialist Chambers and the Specialist Prosecutor’s Office (2015; Constitutional Amendment Art. 162, 2015). Both the KSC and the Specialist Prosecutor’s Office are tasked with investigating and prosecuting crimes under domestic law and international crimes, including war crimes (Muharremi, 2016). The collaboration of several States and the EU to establish an international criminal tribunal is perhaps the clearest example of third States fulfilling their obligations to ensure respect for IHL through the formation and use of an international (hybrid) tribunal. Significantly, the UN is not involved in the arrangement. As the KSC has not commenced its judicial activities, it is difficult to anticipate what may arise in practice. However, the very establishment of the KSC demonstrates clearly ways in which third States can exercise their obligations under CA1.

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Conclusion The application of CA1 has evolved far beyond what was envisaged at the time of drafting the GCs. In establishing the ICTY and the ICTR, the UNSC irreversibly changed the way States and international organisations could work together to discharge their obligation to respect and to ensure respect for IHL. Although the ICC currently faces challenges to its operations and, some may say, existence, its codification of a system of international criminal justice also irreversibly alters the manner in which CA1 may be applied in support of international criminal courts and tribunals. The post-ICTY/ICTR proliferation of international courts and tribunals has also changed how States can comply with CA1 and satisfy both their internal and external components of this obligation, with the creation of hybrid courts that fuse domestic legal elements into international institutions. Presently, it is unclear whether CA1 may oblige States not party to the Rome Statute to cooperate with the ICC. However, a significant addition to international practice is the cooperation between national governments and regional institutions in the formation of institutions designed to enforce IHL, such as the EAC and the KSC. With the KSC set to assume part of the judicial responsibility for alleged crimes committed during the Balkan wars, Kalshoven’s seed has grown, borne fruit, and that fruit continues to ripen.

References (additional to the common list) Treaties The Charter of the United Nations, signed on 26 June 1945, entered into force on 24 October 1945 [UN Charter]. Rome Statute of the International Criminal Court, signed on 17 July 1998, entered into force on 1 July 2002.

Cases Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction. Prosecutor v. Dusko Tadic. Appeals Chamber. Case No. (IT-94–91). International Criminal Tribunal for the former Yugoslavia. 2 October 1995. [Tadic Interlocutory Appeal] Decision on the Hissene Habre Case and the African Union. African Union. ASSEMBLY/ AU/3(VII). 1–2 July 2006. Decision on the Hissene Habre Case and the African Union. African Union. Assembly/AU/ 8 (VI) Add.9. 24 January 2006. Legal Consequences of the Construction of a Wal1 in the Occupied Palestinian Territory. Advisory Opinion. ICJ Reports 2004, p. 136, 9 July 2004 [Wall]. Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America). Merits, Judgment. ICJ Reports 1986, p. 14. 27 June 1986 [Nicaragua]. Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal). Judgment. ICJ Reports 2012, p. 422. 20 July 2012 [Arrest Warrant Case].

260 Parisa Zangeneh Suleymane Guengueng et al. v. Senegal. UN Committee against Torture. Communication No. 181/2001. UN Doc. CAT/C/36/D/181/2001. 17 May 2006 [Guengueng].

Domestic legislation Amendment of the Constitution of the Constitution of the Republic of Kosovo, No. 24, Article 162: The Specialist Chambers and the Specialist Prosecutor’s Office, No.05-D139, 3 August 2015, Kosovo. Law on Specialist Chambers and Specialist Prosecutor’s Office, Law No.05/L-053, 3 August 2015, Kosovo.

Documents UNSC Res. 827 (25 May 1993). UNSC Res. 955 (8 November 1994). Belgian MFA (2012). Sending of a fourth extradition request by Belgium to Senegal for Mr Hissene Habre. Kingdom of Belgium. Foreign Affairs, Foreign Trade and Development Cooperation. 18 January 2012. https://diplomatie.belgium.be/en/Newsroom/news/ press_releases/foreign_affairs/2012/01/ni_180112_extradition_habre.

Secondary sources Akhavan, P. (1996). The International Criminal Tribunal for Rwanda: The Politics and Pragmatics of Punishment. American Journal of International Law, 90, 3, 501–510. Ambos, K. (2009). The Legal Framework of Transitional Justice. In K. Ambos, J. Large, and M. Wierda (Eds.), Building a Future on Peace and Justice: Studies on Transitional Justice, Conflict Resolution and Development (pp. 19–103). Berlin, Germany: Springer. Boisson de Chazournes, L. and Condorelli, L. (2000). Common Article 1 of the Geneva Conventions Revisited: Protecting Collective Interests. International Review of the Red Cross, 82, 837, 67–87. Brody, R. (2015). Bringing a Dictator to Justice: The Case of Hissène Habré. Journal of International Criminal Justice, 13, 2, 209–217. Cassese, A. (2013). Cassese’s International Criminal Law. 3rd ed. Oxford, U.K.: Oxford University Press. Cullen, A. (2007). The Definition of Non-International Armed Conflict in the Rome Statute of the International Criminal Court: An Analysis of the Threshold of Application Contained in Article 8(2)(f). Journal of Conflict & Security Law, 12, 3, 419–445. Dickinson, L. A. (2003). The Promise of Hybrid Courts. American Journal of International Law, 97, 2, 295–310. Dörmann, K. and Serralvo, J. (2014). Common Article 1 to the Geneva Conventions and the Obligation to Prevent International Humanitarian Law Violations. International Review of the Red Cross, 96, 895–896, 707–736. Ferdinandusse, W. (2009). The Prosecution of Grave Breaches in National Courts. Journal of International Criminal Justice, 7, 4, 723–741. Focarelli, C. (2010). Common Article 1 of the 1949 Geneva Conventions: A Soap Bubble? European Journal of International Law, 21, 1, 125–171. Geiss, R. (2015). Common Article 1 of the Geneva Conventions; Scope and Content of the Obligation to ‘Ensure Respect’ – ‘Narrow but Deep’ or ‘Wide and Shallow’? In H.

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Krieger (Ed.), Inducing Compliance with International Humanitarian Law Lessons from the Great Lakes Region (pp. 417–441). Cambridge: Cambridge University Press. Hall, C. K. (1998). The First Proposal for a Permanent International Criminal Court. International Review of the Red Cross, 38, 322, 57–74. Høgestøl, S. A. E. (2016). The Habre Judgment at the Extraordinary African Chambers: A Singular Victory in the Fight Against Impunity. Nordic Journal of Human Rights, 34, 3, 147–156. Human Rights Watch (HRW) (2012). Belgium/Senegal: World Court to Hear Habre Trial Dispute. Retrieved from https://www.hrw.org/news/2012/02/16/belgium/senegalworld-court-hear-habre-trial-dispute. International Federation for Human Rights (FIDH) (2016). Chronology of the Hissene Habre Case. Retrieved from https://www.fidh.org/en/issues/litigation/litigationagainst-individuals/hissene-habre-case/chronology-of-the-hissene-habre-case. Kalshoven, F. (1999). The Undertaking to Respect and Ensure Respect in All Circumstances: From Tiny Seed to Ripening Fruit. In Yearbook of International Humanitarian Law (pp. 3–61). The Hague, the Netherlands: T.M.C. Asser Press. Kessler, B. (2001). The Duty to Ensure Respect under Common Article of the Geneva Conventions: Its Implications on International and Non-International Armed Conflicts. German Yearbook of International Law, 44, 498–516. Kosovo Specialist Chambers. (2019) Background. https://www.scp-ks.org/en/ background. Kress, C. (1998). Penalties, Enforcement and Cooperation in the International Criminal Court Statute (Parts VII, IX, X). European Journal of Crime, Criminal Law and Criminal Justice 6, 4, 442–460. Massingham, E. (2018). The Obligation to Respect and Ensure Respect for International Humanitarian Law: A Potential Source of Assistance in Combating Cross-border Challenges in the 21st Century. In D. Ireland-Piper, and L. Wolf (Eds.), Global Governance and Regulation: Order and Disorder in the 21st Century (pp. 207–218). London: Taylor and Francis. Meron, T. (1998). Is International Law Moving towards Criminalization? European Journal of International Law, 9, 1, 18–31. Meron, T. (2018). Closing the Accountability Gap: Concrete Steps Toward Ending Impunity for Atrocity Crimes. American Journal of International Law, 112, 3, 433–451. Mettraux, G. (2009). The Internationalization of Domestic Jurisdictions by International Tribunals. Journal of Intranational Criminal Justice, 7, 5, 2009, 911–926. Muharremi, R. (2016, May 26). The Kosovo Specialist Chambers and Specialist Prosecutor’s Office [Blog post]. Retrieved from https://www.asil.org/insights/volume/20/issue/ 11/kosovo-specialist-chambers-and-specialist-prosecutors-office. Oberg, M. (2009). The Absorption of Grave Breaches into War Crimes Law. International Review of the Red Cross, 91, 873, 163–183. Pocar, F. (2004). The Proliferation of International Criminal Courts and Tribunals a Necessity in the Current International Community. Journal of International Criminal Justice, 2, 2, 304–308. Ramsden, M. (2018). Common Article 1. In D. Djukic and N. Pons (Eds.), The Companion to International Humanitarian Law (pp. 252–254). Leiden, The Netherlands: Brill Nijhoff. Roberti di Sarsina, J. (2019). Transitional Justice and a State’s Response to Mass Atrocity Reassessing the Obligations to Investigate and Prosecute. The Hague, The Netherlands: T. M.C. Asser Press.

262 Parisa Zangeneh Roberts, K. (2009). The Contribution of the ICTY to the Grave Breaches Regime. Journal of International Criminal Justice, 7, 4, 743–761. Tonkin, H. (2009). Common Article 1: A Minimum Yardstick for Regulating Private Military and Security Companies. Leiden Journal of International Law, 22, 4, 779–799. Sassòli, M. (2019). International Humanitarian Law: Rules, Controversies, and Solutions to Problems Arising in Warfare. Cheltenham: Edward Elgar Publishing Limited. Schabas, W.A. (2003). Punishment of Non-State Actors in Non-International Armed Conflict. Fordham International Law Journal, 26, 4, 907–933. Schabas, W.A. (2008). The Special Tribunal for Lebanon: Is a ‘Tribunal of an International Character’ Equivalent to an ‘International Criminal Court’? Leiden Journal of International Law, 21, 2, 513–528. Schabas, W.A. (2017). Creation of the Court. In An Introduction to the International Criminal Court. Cambridge: Cambridge University Press. Spiga, V. (2011). Non-retroactivity of Criminal Law: A New Chapter in the Hissene Habre Saga. Journal of International Criminal Justice, 9, 1, 5–23. Steininger, S. (2018, March 14). The Kosovo Specialist Chambers A New Chapter for International Criminal Justice in the Balkans [Blog post]. Retrieved from https:// voelkerrechtsblog.org/the-kosovo-specialist-chambers/.

17 Common Article 1: emerging themes Eve Massingham and Annabel McConnachie

Introduction Within this volume the contributors have offered accounts of responses that States are and/or could be taking to ensure respect for different aspects of IHL. Whether those responses are being undertaken to comply with CA1 is often unclear. As Lloydd points out ‘any potential CA1-specific response appears subsumed into other approaches’ and ‘[a]lthough CA1 is a stand-alone binding obligation … these factors make it difficult to analyse the extent to which States may have taken CA1 into account’ (Chapter 15, p. 234). States rarely reference CA1 obligations and indeed, as is outlined in Chapter 1 and more so in contributions on this topic such as those by Geiss (2015) or Breslin (2017), States are not alone in this apparent oversight. The obligation to ensure respect for IHL common to all four GCs, API and III, is not one that has always been given much attention. Indeed, the ‘conspicuously little time and energy’ spent on this draft article at the 1949 Conference (Kalshoven, 1999, p. 27) appears to have set the tone for this provision for the following 50 years. However, in the last 20 years, there has been more attention paid to CA1 by commentators and many of these works have been referenced throughout this volume. The ICRC Commentaries published in 2016 sparked particular focus and engaged States on the topic. The impetus for this volume was to take stock of what has been contributed in the last 20 years and to begin an examination of what State responses, in practice, can be identified or perhaps suggested to give effect to the obligation to ensure respect for IHL. Kalshoven (1999) called CA1 a ‘ripening fruit’ that has emerged from a ‘tiny seed’. The 20 years that followed have seen the fruit continue to ripen. It has not, however, always experienced favourable growing conditions. As was mentioned in Chapter 1 of this volume some States have expressed concern with the ‘expansive’ 2016 ICRC interpretation of CA1 (Egan, 2016). Recently, at the International Conference of the Red Cross and Red Crescent in December 2019, there were those who expressed concern about the expansiveness of the ICRCs interpretation of CA1 and a lack of clarity about ‘where the limit is’ (see further Aly, 2019, although Aly in fact specifically cites an observation by American Red Cross rather than by a government official). That said, even in the eyes of

264 Eve Massingham and Annabel McConnachie those who do not accept an expansive CA1 interpretation, CA1 clearly has some meaning. The debate about the evolution of this legal interpretation will continue, however it is important to consider the responses that have occurred to date which inform this debate. This book seeks to articulate what giving effect to CA1 might look like across a range of specific areas of IHL. Whether these measures are being carried out to expressly satisfy CA1 or not, does not detract from the fact that States can, should and do take actions to ensure respect for IHL. By seeking the reflections of expert practitioners and academics about different aspects of IHL, this volume has collated a range of State responses which demonstrate respect for the law, and gives consideration to what further actions States could take to meet their obligations under CA1.

Approaches to the chapters The authors have taken different approaches to examine the behaviour of States with respect to CA1, but in each case they have interrogated whether it is possible to find ways to honour the requirement to ensure respect for IHL. These ways include both positive and negative actions, as defined by authors such as Dörmann and Serralvo (2014). Drummond, McCosker and Lloydd have sought to put a series of questions and suggestions (rather than ‘comprehensive operational guidance’) to States to ‘open the conversation’ (Lloydd, Chapter 15, p. 231) about actions that may, or even should, be taken in order to comply with CA1 obligations. These questions with respect to challenges, such as private actors and foreign fighting, whilst not new are certainly very much at the forefront of the changing nature of warfare. Drummond asks ‘what activities are likely to give rise to a serious risk of interferences with or violations of IHL’ and what are the ‘various dimensions of the State’s relationship with a particular conflict/occupation and corporate actors connected to it’. She seeks to identify ‘what general measures can be adopted to mitigate those risks vis-à-vis private actors subject to the State’s jurisdiction’ (Chapter 5, p. 69). Lloydd makes observations about the pre-departure, postdeparture and post-participation phases of foreign fighting to analyse what States may and should do during each identified phase (Chapter 15). McCosker specifically looks at the practical implications for States noting ‘to undertake measures effectively requires first a degree of institutional preparedness within government’ (emphasis added, Chapter 3, p. 35). McCosker asks ‘[w]hat kinds of institutional structures and capacities may need to be strengthened to enable States to take both reactive and proactive action in the face of another State’s actual or potential IHL violations?’ before arguing for the self-design of a process that would assist all States to act (Chapter 3, p. 35). Stephens, Massingham, Smith, Thynne, Weizmann and Zangeneh, have reflected on more traditional IHL processes – targeting, weapons, peacekeeping, detention operations, humanitarian assistance and international criminal law – to articulate how ensuring respect has evolved. In doing so they have reiterated the idea that while some of the responses by States may not be couched in CA1 terms,

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‘the result is the same’ (Stephens, Chapter 7, p. 111). Stephens speaks to how ensuring respect ‘may be realised through [the] processes’ of layered planning and execution of targeting decisions (Chapter 7, p. 103). He demonstrates how the military priorities of ‘maintaining coalition unity, realising effective interoperability … [and] internal and external legitimacy’ (Chapter 7, p. 111) have the same result as an action aimed at ensuring respect, particularly when it comes to targeting. Massingham argues that ‘by being strong advocates’ for the core weapons law principles ‘States can play a leadership role in this space’ (Chapter 8, p. 128), demonstrating how a State’s internally focused behaviour can have external influence. Smith observes that the ‘impact of the monitoring and reporting mechanisms have been effective in ensuring the partners of UN Peacekeeping ensure respect for IHL’ (Chapter 10, p. 158). Thynne proposes a three-step mutually reinforcing cycle of correcting previous and ongoing violations; preventing potential and imminent violations and encouraging greater compliance with IHL – thus preventing future violations in relation to detention operations (Chapter 11). Weizmann considers the approaches in many UNSC resolutions to ensuring respect, noting particularly the UNSC’s use of thematic resolutions which require monitoring and reporting on measures taken to respect and ensure respect for IHL (Chapter 13, pp. 206–209). Zangeneh looks at the ‘recent developments in international criminal law [that] indicate that new actors are emerging on the scene of international justice [and notes this] may have implications for international practices pertaining to the obligation to respect and to ensure respect for IHL’ (Chapter 16, p. 258). Finally, Pratt, Mutuma, Nasu, Ball and Zegenhagen, and Ngesa use case studies to illustrate the often unrealised potential within CA1. Pratt looks at the parliamentary system (using the common law context of Australia as an example) and demonstrates the potential of parliament to contribute to both respecting and ensuring respect for IHL (Chapter 4). Mutuma gives us a case study of two specific States to show in very clear and practical terms what it is that Kenya and Uganda can do to give effect to the obligation to ensure respect for IHL by their neighbouring State, South Sudan (Chapter 6). Nasu focuses in on a specific emerging legal technology – artificial intelligence – to illustrate examples of measures that could be taken to ensure that the use of this emerging technology is in compliance with IHL (Chapter 9). Ball and Zegenhagen examine Australia’s counter-terrorism regime and recommend how balancing the humanitarian obligations of IHL with national security requirements must be carefully considered to demonstrate respect for IHL (Chapter 12), whilst Ngesa has focused on the plight of internally displaced persons (IDPs) and how their situation can be better protected through unique regional instruments such as the African Union’s Kampala Convention (Chapter 14).

Themes emerging Originally it was intended that as a result of an examination of CA1 through multiple lenses, it would be possible to provide a defined and clear list of steps that States could take in a variety of situations to demonstrate they are ensuring respect for IHL. A number of commentators have spoken about the tools that States can and should

266 Eve Massingham and Annabel McConnachie utilise in order to realise the obligation to ensure respect for IHL. However, rather than a prescribed list of measures, what has emerged within this volume are three common themes to the responses which States can adopt to approach the obligation to ensure respect for IHL. Within these three, there are a range of more defined actions which have been suggested by the contributors. Whether a State considers the CA1 requirement to ensure respect to be a moral and political imperative to prevent and respond to breaches of IHL because of the consequences if they were not to do so; or whether a State acts from the belief that there exists a legal duty to take action (or indeed holds both views to be correct), these measures are equally relevant. What is clear is that, as Breslin (2017, p. 13) states, ‘there is no doubt that there is a firm consensus on a modern interpretation that involves third state interest and action in the application of the Geneva Conventions by parties involved in an armed conflict’. The first of these broad themes relates to those individual State actions, largely domestic in character, which set the example and encourage other States to respect IHL. The second relates to States taking responsibility, mostly at the regional and international level, to create a conducive environment within which all States are able to build respect for IHL. These first two groups of activities are not linked to any specific violation of the law, but rather are actions that States engage in at all times – both in times of peace and times of war. This is reflective of the fact that CA1 provides that States undertake to ensure respect ‘in all circumstances’. The third encompasses direct, coercive action which States can take to enforce the concept of respect for IHL in the face of a violation. What is quickly apparent is that these three broad themes overlap and are often mutually reinforcing and complementary. Individual State’s actions to encourage respect for IHL The most consistent theme that emerges from these chapters is that ensuring respect for IHL is not a discrete requirement of the GCs and APs. It cannot be neatly compartmentalised and defined in isolation. To ensure respect, as an externally facing obligation, a State needs to recognise that all actions taken to respect IHL within its own jurisdiction have a direct impact on its capacity and ability to ensure respect as a third State. Indeed, it is very difficult for a third State to ensure respect for IHL by other States or external actors, if that State does not undertake the measures recognised as essential within its own jurisdiction to respect IHL. A State’s individual actions to fully adopt and implement all aspects of IHL internally are critical for a State to enable it to look beyond its own borders and have the influence required to encourage other States to respect the law. For example, Pratt notes ‘[i]ncreasingly, legislative decisions which may at first appear to be internally focused necessarily acquire an external aspect’ (Chapter 4, p. 46). Lloydd points out, ‘[f]oreign fighting straddles both the internal and external components of the obligation’ (Chapter 15, p. 234). Ball and Zegenhagen conclude that ‘recommitting and reinforcing the importance of IHL within counter-terrorism legislation …

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will serve to realise obligations of CA1 to both respect and ensure respect for humanitarian imperatives’ (Chapter 12, p. 194–195). Massingham discusses how when the internal military doctrine of third States reflects compliance with IHL they ‘can use their capacity and influence with other States – including in partnered warfare operations – to improve IHL compliance through exporting military training and military manuals that are IHL compliant’ (Chapter 8, p. 124). The need to have “one’s own house in order” is particularly evident when looking at the aspects of IHL that pertain to interoperability – for example, detention operations discussed by Thynne (Chapter 11), the coalition operations mentioned by Stephens (Chapter 7) and peacekeeping operations within Smith’s chapter (Chapter 10). Stephens, for example, points out that ‘the inevitable requirement for achieving maximum consistency in legal interpretations is one manifestation of ensuring respect that is achieved in the context of coalition operations’ (Chapter 7, p. 112–113). This clearly requires respect for IHL by the State itself such that their contribution to the coalition interpretations is itself compliant with IHL. As Massingham (Chapter 8) and Nasu (Chapter 9) conclude, with respect to both conventional and emerging technologies (in the case of Nasu specifically artificial intelligence) there is a need to meet the respect obligations, such as in relation to import and export control of weapons and weapons-related technology in order to be an influence over others. The diplomatic repercussions of failing to live up to the internal obligations to respect IHL, would ensure that any efforts to encourage compliance by other States would be disregarded. Smith points out that the implementation of IHL and international human rights law (IHRL) policies within UN Peacekeeping enables the UN to seek IHL compliant behaviour from troop contributing countries within their own jurisdiction (expressly in relation to the prohibition against the recruitment of child soldiers) (Chapter 10, p. 157–158). The capacity of a State to adopt and domestically recognise all the relevant aspects of the GCs and APs is important to enable it to be taken seriously in any outward-facing action. However, this does not preclude a State from operating in both areas simultaneously. Whilst disseminating to groups identified within the State (armed forces, parliamentarians and decision-makers, the population generally) and enacting and implementing the law through appropriate policy choices, a State is also able to encourage other States to respect the law. Demonstrating an ongoing capacity to act positively to support IHL domestically encourages other States to do the same and creates a ‘mutually reinforcing’ relationship whereby respecting IHL results in ensuring respect. Building respect through legal and normative frameworks Building an environment conducive to respect for IHL is the second category of activities States can and are taking to ensure respect. This applies to acceptance of and compliance with legally binding obligations, as well as the role of States in creating new normative frameworks or developments in “soft law”. It also applies to actions such as training, capacity-building and the sharing of knowledge and information.

268 Eve Massingham and Annabel McConnachie It is well accepted that creating an environment conducive to building respect for IHL includes support for international laws which recognise and further develop those principles within the GCs or APs. Given that all States have signed the GCs it would seem self-evident that States should encourage and support further treaty law which identifies specific aspects of the GCs and strengthens those aspects through more detailed provisions. Both Pratt (Chapter 4) and Massingham (Chapter 8) make the observation with respect to the Arms Trade Treaty, that supporting the ideal that (otherwise lawful) weapons should not be provided to those who are using such weapons to violate IHL is a way of ensuring respect for IHL. A number of authors highlight the United Kingdom case in which the government has been forced to suspend weapons export licences for failing to investigate, in accordance with the correct legal procedures whether Saudi Arabia was committing breaches of IHL/war crimes in Yemen. Going beyond these binding international legal frameworks, support for normative frameworks, or developments in soft law is vitally important. This is a point that Thynne draws out in relation to detention, particularly as it pertains to situations of non-international armed conflict. She specifically considers two approaches to developing a normative framework – the Copenhagen Guidelines and the ICRC Strengthening IHL Project – to support the prevention of IHL violations as measures which would help ensure respect for IHL by third States. Thynne notes that where other third State measures have failed to ensure respect for IHL – for example, corrective and preventative approaches – this ‘is because there is not a sufficient regulatory framework’ (Chapter 11, p. 172). The ICRC Strengthening IHL Project has not come to fruition (see further McCosker, Chapter 3, p. 32) and so the search for better ways to ensure respect for IHL continues. Ball and Zegenhagen, in discussing counter-terrorism frameworks note that ‘States have the opportunity to champion robust inclusion of IHL and principled humanitarian action in regional and global policy frameworks’ (Chapter 12, p. 193). Smith outlines the role that peacekeepers play in (respecting) and ensuring respect for IHL with specific reference to a series of UN policies mainstreaming international law – notably IHRL (Chapter 10). Zangeneh notes a ‘significant addition to international practice is the cooperation between national governments and regional institutions in the formation of institutions designed to enforce IHL’ (Chapter 16, p. 259) and such developments create the groundwork on which later, legal advances are founded. Ngesa illustrates how the UN-commissioned report, the Guiding Principles on Internal Displacement, provided the impetus for the development of more specific regional legal documents, the Great Lakes Protocol and the Kampala Convention, thus allowing States to more formally recognise a collection of protections provided by IHL and IHRL. These laws extended a State’s legal obligation to seek the provision of humanitarian assistance from external parties for IDPs within their borders. This then obliged third States to provide that support which, in effect, amounted to ensuring respect for IHL. The creation of guidelines, regional protocols and treaties, and then national legislation, provides complementary avenues by which IHL obligations can be located and, in some cases enforced. Ngesa

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notes that giving effect to the provisions of the Kampala Convention is a way of both respecting and ensuring respect for IHL (Chapter 14). Domestic legal frameworks are also vitally important. Pratt gives examples where parliamentary committees have, and have not, taken action to align legislation with Australia’s IHL obligations (Chapter 4). However, Drummond reminds us that insufficiency in domestic legal frameworks will be no justification for a failure to comply with international obligations (Drummond Chapter 5, p. 69 citing Alabama Claims, p. 131). Mutuma looks to the banking sector and ‘its potential to hold actors in the conflict to account’ with the specific example of how Kenya could use its capacity and influence to ensure respect for IHL through domestic banking regulation (Chapter 6, p. 85). Ngesa talks of the incorporation by Kenya into domestic law of the Guiding Principles on Internal Displacement and how this means Kenya must accept international assistance if the capacity of the government to provide such protection and assistance is insufficient, inadequate or lacking. The Kenyan IDP Act also requires the government to ensure rapid and unimpeded access of humanitarian personnel to all IDPs. (Chapter 14, p. 219) Although the power of these frameworks is evident, it is not always sufficient to persuade States to behave in a particular way. For instance, Ball and Zegenhagen open with the observation that ‘the current counter-terrorism paradigm can undermine States’ obligations in relation to both respecting and ensuring respect for the GCs and APs’ (Chapter 12, p. 179). Thus, the normative framework which prioritises a humanitarian response is eclipsed by the need for States to appear firm on the issue of national security. More consideration should be given to how these two priorities are not necessarily mutually exclusive. As Lloydd counters, [in] domestic debate… the predominant concern of States is often security at home, ie. from the actions of would-be and returning foreign fighters, rather than necessarily the fighter’s conduct in a destination State and the respect for IHL more generally. (Chapter 15, p. 234) She cites Højfeldt who explains that ‘[d]omestic criminal law is increasingly being applied to conduct [of foreign fighters] committed in times of armed conflict. The policy aim is no longer to repress war crimes, but to safeguard national security’ (Lloydd, Chapter 15, p. 234 citing Højfeldt, 2015, p. 30). In addition to promotion of and compliance with legal frameworks, the sharing of knowledge and information in such a way as to create a conducive environment for IHL respect is also important. This can be achieved through a range of different methods. Stephens notes the value of understanding each other’s ‘methodological approaches taken to interpretation of LOAC’ (Chapter 7, p. 106) when operating in coalition environments. Massingham notes that States could share their

270 Eve Massingham and Annabel McConnachie weapons reviews (Chapter 8, p. 118) and Ball and Zegenhagen speak of ‘embracing … fora … for States to share their experience of implementing IHL at the domestic level’ (Chapter 12, p. 194), in both cases to enable others to benefit from this knowledge. Direct action to enforce respect The final theme that emerges is that of the responses a third State must take in the face of violations (or potential violations) of IHL occurring. As was discussed in Chapter 1 of this volume, the legal framework prohibits third States from encouraging or aiding and assisting violations of IHL; to do so constitutes a breach of the CA1 obligation to ensure respect for IHL (Nicaragua, para. 220). States are also obligated to take positive action in the face of violations of IHL (2016 Commentary, para. 165; Boutruche and Sassòli, 2016, p. 16). McCosker observes that ‘[t]here is a very wide range of measures available, which can be organised along a spectrum increasing in diplomatic strength and political bite’. McCosker details a range of these positive measures including types of diplomatic protest such as confidential dialogue and public statements, drafting or voting on resolutions in international bodies (which is also linked to creating a conducive environment, as discussed above), contributing to education, training and capacity building and investigating alleged violations of IHL (Chapter 3, p. 25). Mutuma notes a range of direct measures that Kenya, as a neighbour to a State party to a conflict, could take to ensure respect for IHL. These include stricter regulations for goods transiting through Kenya to South Sudan; better regulation of both the banking and real estate industry to reduce risks of money laundering and preventing individuals profiting from IHL violations (Chapter 6). Pratt also highlights how poor regulation of the investment industry – without clear domestic prohibitions against direct and indirect investment in manufacturers producing arms deemed illegal under IHL – leaves a major loophole in attempts to ensure respect for IHL (Chapter 4). Drummond suggests that better use of compulsory reporting could be developed by States to ensure respect and to more effectively identify those private actors not complying with IHL throughout their supply chain (Chapter 5). All third States are capable of taking some steps to ensure respect by other States and they are therefore obliged to undertake those minimal measures and indeed, in coming together to collectively take action. For instance, within the UN, States are obliged in situations which give rise to a consideration of actions which support IHL, to support those efforts. States must give serious consideration to UNGA and UNSC resolutions which enable IHL to be respected: insisting upon the unimpeded delivery of impartial humanitarian aid (Weizmann, Chapter 13) or supporting an investigation into alleged grave breaches/war crimes (Zangeneh, Chapter 16). States may also provide assistance to another State so that it is able to fulfil the duties required under IHL. In Chapters 13 and 14, Weizmann and Ngesa examine situations where this assistance to a population may occur, even where the consent of the State is not forthcoming. States might also ‘control’ or prevent violations (Kessler, 2001, p. 499): in both cases control and prevention are seen as steps relating to assistance with implementing the law or creating

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norms which help States to comply with IHL in the future. A number of chapters in this book identify situations where States are involved in these forward-looking compliance mechanisms (for example, Ngesa and Thynne, in Chapters 14 and 11).

Due Diligence In order to act as required by these common themes States must exercise appropriate due diligence. As discussed in some detail in Chapter 1 and mentioned by many of the contributors to this volume this concept is key to determining whether States responses to CA1 are adequate. Drummond notes: [the] general presumption in international law [is] that States know what is required of them by their obligations. Vagueness in the framing of the obligation or ignorance of the law is no defence to a breach. This presupposes that States actively take steps to inform themselves of the extent of their obligations. This is particularly important for due diligence obligations where the content and scope of the obligation varies according to the circumstances. (Chapter 5, p. 68) Throughout this volume States’ responses at either end of the spectrum have been documented. These actions have necessarily reflected the capacity and the influence of the State executing them to ensure respect in the circumstance under consideration. But exercising appropriate due diligence is not without challenges. Nasu, for example, observes the practical challenges associated with post-export monitoring of arms-related materials but notes that ‘where it is feasible’ it ‘can be usefully employed’ (Chapter 9, p. 141). What would not be acceptable would be for a State where arms-related materials are produced to “turn a blind eye” to the responsibility to consider what could be ‘usefully employed’ or to pit economic gain against the international obligation to ensure respect for IHL. Drummond (Chapter 5), has thoroughly detailed the steps that a third State can take in order to exercise due diligence comprehensively with respect to the obligation to ensure respect by private actors. This meticulous exposition of the inquiries that should be undertaken with respect to an activity-based or an actor-based review, provides insight into the level of detail which can be provided to demonstrate how the obligation to ensure respect within CA1 might be best observed. As noted in Chapter 1 of this volume, Kessler identifies that the range of options require, as a minimum, that States have knowledge of other States’ actions with respect to IHL (2001, p. 506). In order to give effect to their CA1 obligations, States need to be engaged in the global discourse and be cognisant of and responsive to international developments. But as Dörmann and Serralvo indicate, States can only be under an obligation to exercise due diligence in choosing appropriate measures to induce belligerents to comply with the law. This does

272 Eve Massingham and Annabel McConnachie not turn the duty to ensure respect into a vacuous norm, since States are under the obligation, depending on the influence they may exert, to take all possible steps, as well as any lawful means at their disposal, to safeguard respect for IHL rules by all other States. (emphasis added, 2014, p. 724) Clearly in some States there will be less capacity for due diligence than in others. This does not mean a State will necessarily have any obligation to intervene, and indeed cannot be responsible for the violations if it does all it reasonably can, but it needs to remain vigilant and engaged with the international community and to give a necessary and appropriate response to escalating situations. As McCosker notes, States should ‘[d]evelop strong capacities to monitor actual or potential armed conflicts taking place in the world, to gather reliable information on parties’ behaviour and to share information across relevant parts of government’ (Chapter 3, p. 36).

A toolbox of measures What we find in these broad themes is a toolbox of positive and negative measures that States can and do take to ensure respect for IHL. Drummond concludes that ‘as it is impracticable to focus on ascertaining where precisely the bright line is drawn between doing enough and not doing enough, prudent States should take a broad view of relevant conflict-connected private conduct and focus on proactive measures’ (Chapter 5, p. 78). McCosker observes that ‘a State may use a combination of different tools along this spectrum, and may use them bilaterally, or in coordination with other States or with multilateral organisations’ (Chapter 3, p. 25). Weizmann notes that ‘[t]ogether, the rules of IHL and this broad collection of State practice form a robust catalogue of measures that all States can take to ensure respect for IHL’ (Chapter 13, p. 214). Weizmann is referencing the humanitarian actions that are the subject of her chapter, but the sentiment applies across the board.

Conclusion This volume does not seek to suggest the notion of ensure respect is finally settled. Indeed, it acknowledges that it is not and it will continue to evolve. What it asks is, if you accept that there is both an internal and external aspect to the obligation to respect and ensure respect in CA1 – and in Chapter 1 support is put forward for this proposition – and for all States to ensure respect for IHL by others, what does this obligation look like? What does it mean in terms of parliamentary scrutiny, detention operations, targeting and weapons use, engagement with private actors, foreign fighting, peacekeepers, protections for IDPs, counter-terrorism legislation and international criminal law, for example? And even when States do not express such actions in CA1 terms – are these responses significant in achieving the goal of alleviating suffering in situations of armed conflict as enshrined within the GCs and APs? The contributors to this volume have given a range of examples which demonstrate that there is indeed a wide variety of responses that States can and do take to ensure respect for IHL. While we know it will

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not always be the case, it is often argued that, ‘States should seek to respond as generously as possible in order to ensure universal respect for IHL’ (Lloydd, Chapter 15, p. 243) and ‘implement conscientiously the positive external component (regardless of any debate about its legal status)’ (McCosker, Chapter 3, p. 24). We thank the authors for being willing to engage in this project. We hope that this volume is a useful contribution to the current discourse about the status of CA1 and ensuring respect for IHL, and that it encourages further scholarship as to the nature and scope of this important obligation.

References (additional to the common list) Cases Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, (Judgment) [1986] ICJ Rep. [Nicaragua]

Secondary sources Aly, H. (13 December 2019) Negotiations at Red Cross conference shrouded in global politics. The New Humanitarian available at https://www.thenewhumanitarian.org/ news/2019/12/13/Red-Cross-IHL-conference-global-politics. Breslin, A. (2017). A Reflection on the Legal Obligation for Third States to Ensure Respect for IHL. Journal of Conflict & Security Law, 22(1), 5–37. Boutruche, T. and Sassòli, M. (2016) Expert Opinion on Third States’ Obligations vis-à-vis IHL Violations under International Law, with a Special Focus on Common Article 1 to the 1949 Geneva Conventions. Dörmann, K. and J. Serralvo. (2014). Common Article 1 to the Geneva Conventions and the obligation to prevent International Humanitarian law violations. International Review of the Red Cross, 96 (895/896), 707–736. Egan, B. (2016). US State Department Legal Adviser Speech at American Society of International Law: Just Security available at https://www.justsecurity.org/wp-content/up loads/2016/04/Egan-ASIL-speech.pdf. Geiss, R. (2015). Common Article 1 of the 1949 Geneva Conventions: Scope and Content of the Obligation to ‘Ensure Respect’ – ‘narrow but deep’ or ‘wide and shallow’? In H. Krieger (Ed.), Inducing Compliance with International Humanitarian Law: Lessons from the African Great Lakes Region, Cambridge: Cambridge University Press. Hathaway, O. and Manfredi, Z. (2016) The State Department Adviser Signals a Middle Road on Common Article 1 Just Security, available at: https://www.justsecurity.org/ 30560/state-department-adviser-signals-middle-road-common-article–1/. Højfeldt, H. (2015). Prohibiting Participation in Armed Conflict. Military Law & Law of War Review 54, 13–38. Kalshoven, F. (1999). The Undertaking to Respect and Ensure Respect in All Circumstances: From Tiny Seed to Ripening Fruit. Yearbook of International Humanitarian Law, 2, 3–61. Kessler, B. (2001). The Duty to Ensure Respect under Common Article of the Geneva Conventions: Its Implications on International and Non-International Armed Conflicts. German Yearbook of International Law, 44, 498–516.

Index

actor-based inquiry 68, 73, 78 Additional Protocols (API, APII, APIII) see Geneva Conventions Afghanistan 163, 165–170, 172, 209–211 Africa Commission on Human and Peoples Rights 88 African Parliamentary Conference on International Humanitarian Law for the Protection of Civilians during armed conflict 27 Al Bashir, Omar 88 Al-Qaida/al-Qaeda 168, 211 algorithms 133–134, 139–140 Alien Tort Claims Act (US) 69 ammunition 85, 89, 122 Annan, Kofi 223 anti-personnel mines 104, 116 Anti-personnel Mine Ban Treaty 119 armed conflict 13, 29, 73, 83, 87–105, 113, 163–164, 188, 198, 201–210, 234, 236; groups vulnerable during armed conflict 9, 19, 27, 148, 178, 180–183, 201, 206–209; international armed conflict 1,12, 44, 100, 163, 180, 199, 218, 232; law of armed conflict (LOAC) 2, 15–16, 24–26, 30, 35, 100–112, 169, 183, 269; non-international armed conflict 1, 12, 53, 91, 100, 163, 178, 199, 218, 248, 268; not a party to armed conflict 23, 146, 190, 201–202 arms control 25, 33–34, 52, 89, 93–95, 122, 138–139, 211, 237–240; see also weapons import and export controls Arms Trade Treaty 33–34, 51–52, 71, 77, 85, 90, 95, 116, 122, 138–139, 268 Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) 5, 17–18, 64–65, 72–73, 83, 84, 94

artificial intelligence 132–141, 265, 267 asylum seekers 217 Australia 31, 44–46, 49–57, 90, 120–121, 127, 179, 180–194, 238 Australian Defence Force (ADF) 56, 101–103, 106, 111, 121, 239 Azerbaijan 26 Burma see Myanmar Bush, George W. 109–110, 178 Canada 34, 48, 179, 203, 213, 258 capacity to influence 3, 12, 24–26, 36, 66–67, 85, 127, 146, 187, 239, 249; see also due diligence children 19, 27, 123, 148, 149, 157–159, 170, 200, 204, 267; and armed conflict 208–209, 214 China 28, 85, 125, 132, 134 civil society 34, 46, 77, 145, 153, 192–194, 219, 239 civilian 19, 21, 148, 149, 180; casualties 100, 107, 139; civilian objects 107, 138, 188, 16, 19, 21–22; protection of civilians 30, 147, 149, 165, 206 climate change 38 cluster munitions 15, 51, 55–56, 104, 115, 119–121; Convention on Cluster Munitions 33, 51, 119, 120 coalition operations 55, 56, 100, 102, 103, 106–113, 121, 124, 267; (see also interoperability) collateral damage 102, 107 collective measures 31, 249 collective responsibility 2, 3, 9, 17, 146 combatants 13, 16–20, 152, 179, 183 companies 55, 63, 65, 70, 71, 74–77 compliance 2–9, 25–26, 29, 32, 37, 44, 45, 68, 93, 94, 95, 102–104, 116–118, 121,

Index 275 124, 128, 133, 135–137, 140, 145, 152, 159, 164, 166–167, 174–175, 191, 194, 203, 207, 221, 226, 231–233, 240, 248, 253, 265, 267 consent 91, 147, 148, 199, 202, 222; and humanitarian relief 180, 201, 202 constructivism 108 Convention on Certain Conventional Weapons 119, 132 Convention on the Rights of the Child 44, 218 Copenhagen Guidelines 172–174, 268 corrective measures 165, 172, 174, 268 Council of Europe 27 counter-terrorism 178–181, 186–195, 203, 210, 212–213; and domestic laws 182, 185, 188–189; international humanitarian law 152,205, 213; and training 181–182, 186, 188 crimes against humanity 18, 70, 92, 122, 223, 226, 228, 257 crimes against peace 122 customary international law 5, 44, 63, 72, 91, 104–105, 117, 128, 133, 135–138, 163, 173, 200, 213, 218, 226, 251–252 customary IHL 1, 12, 18, 20, 21, 115, 127, 221 cyber warfare 117, 119

European Union 4, 25–28, 31, 33, 71, 89, 126, 140, 147, 213, 258 extraordinary rendition 168–170 extraterritorial jurisdiction 44, 64, 75, 183

Democratic Republic of the Congo 28, 33, 76, 147, 154, 203, 209–211, 217, 219, 227 Deng, Francis 218, 223 denunciation 64, 87; IHL violations 7, 222 deontology 109 detention 163–175; detainees 166–168, 172, 174; detention operations 163, 165, 166, 170, 172, 267 diplomacy 23, 25–27, 31–34, 37–38, 87, 92, 214, 267, 270; and ensuring respect for IHL 26–27, 36, 45, 46, 84, 92, 120, 140, 145, 153, 172, 203, 224, 232, 259, 265 disarmament 117, 148, 159 displacement 69, 218, 220–222, 225, 227 dissemination 9, 15, 30, 44, 47, 49, 56–57, 124–125, 181, 187, 203 distinction 16, 19, 20–21, 115, 250 due diligence 6–7, 35, 66, 84, 164, 233, 242–243, 271

Hague Convention for the Protection of Cultural Property 45 Hague law 13, 15, 19, 20, 22, 117 Hague Statement on Respect for Humanitarian Principles 1991 27 human rights 29, 48, 49, 88, 155, 157, 167, 171; compliance 25, 26, 29, 45, 49, 76, 122; human rights violations 28, 72, 156, 169; international human rights law 4, 16, 29, 45, 48, 49, 72, 90, 146, 154–157, 170, 171, 190, 267, 268; and Parliamentary Committees 48, 49; Policy 148, 155 humanitarian: and access 203, 208, 209; and activities 198–199, 211, 214; and assistance 180, 199, 202, 204–205, 207, 209–214, 222–226; and duties 19; and intervention 224; and obligations 265; and relief 190, 200, 203; and objects 14; and organisations 185, 186, 211, 212, 227 hybrid courts 257, 259

East African Community 86, 93 environmental law 38 equality: of belligerents 178–179, 187, 190–191

Final Declaration of the International Conference for the Protection of War Victims 27 foreign fighting 231–242, 243, 269 fundamental principles of IHL 18, 186, 188 Geneva Conventions I, 12, 13, 15; Additional Protocols 1, 12–13; API 13–14, 16–22, 88, 104, 115–117, 135–136, 202, 222; APII 13, 91, 202, 220; APIII 13, 65; Common Article 1 vii, 2, 128; Common Article 3 91, 163, 222, 251; Commentary on the First Geneva Convention (2016) vii; GCI 2, 13–15, 200–201; GCII 13; GCIII 13, 16, 17, 163; GCIV 13, 199, 200, 201 genocide 7, 66; Bosnia Genocide Case 5, 7, 24, 64, 66, 67, 68, 236; convention 7, 66 good faith 6, 35, 63, 68, 110, 117, 165, 249; compliance 63, 68 Gulf War 1991 111

identity 94, 108, 141; military professionalism 108, 109 ignorance of international law 68, 271

276 Index IHL dissemination 30, 49, 187, 203, 214, 235 IHL obligations 23, 46, 50–52, 198 IHL training 116, 128, 159, 235 IHL violations 2, 9, 27, 29, 30, 33–38, 63–74 76, 77, 84, 92–94, 124–125, 127, 135, 164, 165, 169–170, 175, 221, 231–241, 249, 251, 256, 264, 268, 270 impartial 93, 179–182, 187, 199, 200–203, 206, 209, 213, 222, 270; impartiality 93, 206, 209 influence see capacity to influence inhumane treatment 15, 19, 166, 468, 171, 173 Intergovernmental Authority on Development 87 internally displaced persons viii, 159, 217–229, 265; Great Lakes Protocol on the Protection and Assistance to Internally Displaced Persons 219, 268; Guiding Principles on Internal Displacement 218, 268, 269; Kampala Convention 218, 219, 220, 226, 227, 228, 229, 265, 268, 269 International Committee of the Red Cross (ICRC) vii, 2, 4, 6, 13, 20, 23, 24, 30, 31, 32, 35, 47, 53, 56, 57, 112, 118–120, 146, 149, 151, 165, 170–174, 181, 191, 203, 211, 263, 268 International Conference of the Red Cross and Red Crescent 13, 14, 32, 66, 116, 118, 173, 193, 194, 263 International Court of Justice x, 3–5, 7, 16, 66, 94, 122–123, 250–253, 257–258 International Covenant on Civil and Political Rights 5, 48, 163, 171, 218 International Covenant on Economic, Social and Cultural Rights 218 International Criminal Law 16, 51–53, 181, 191, 238, 250, 254, 258, 264, 265, 272; International Criminal Tribunals 94, 225–226, 248–250, 253, 254, 255, 258; Rome Statute of the International Criminal Court 18, 51, 88, 225, 250, 251, 253, 254; International Humanitarian Fact-Finding Commission 30, 88, 93 International Security and Assistance Force 165 Iraq 170, 203, 210, 217, 239, 241; Iraq War 2003 111 Islamic State 170, 240, 241; ISIL 170, 211

Israeli-Palestinian conflict see Palestinian-Israeli conflict jurisdiction 64, 74–75, 89, 254, 255 jus ad bellum (law of war) 15 jus cogens 88 jus contra bellum (law against war) 15 jus in bello (law in war) 15 Kenya 84–90, 93–95; Proceeds of Crime and Anti-Money Laundering Act 2009 86 Kenyatta, Uhuru 87 Khartoum government 83, 90 Kiir, Salva 86, 87 knowledge 67, 157, 164; actual 67; constructive 67 Kosovo Assembly 258 Liberation Tigers of Tamil Eelam 183 Lord’s Resistance Army 90 Lotus case 105 Machakos Peace Accord 2002 87 material military support 237, 238 Medecins Sans Frontieres 97, 149 Middle East Peace Process 26 military advantage 19, 21, 54, 100, 104, 107, 110 military doctrine 101, 124, 267 military necessity 15, 20–21, 102, 104, 173, 188, 199, 200, 202, 224 military objective 19, 20–22, 104, 108, 115, 123 Missile Technology Control Regime 126 Myanmar see also Burma 29, 203, 209, 222 N’Djamena Declaration on Ending Recruitment and Use of Children by Armed Forces and Groups 2010 27 Naivasha Peace Deal 2005 87 nanotechnology 117 National IHL Committees 44, 47, 192, 194 National Red Cross and Red Crescent Societies 47, 180, 193 neutrality 84, 87, 147, 186, 206 Nicaragua judgment 3, 91, 94, 250–252 non-State actor 1, 3, 6, 9, 12, 23, 26, 240, 249; non-State armed group 53, 54, 163, 166, 169, 191, 232, 238 norm 5, 8, 9, 16, 38, 104, 105, 106, 108, 116, 127, 128, 164, 165, 168, 172, 174–175, 191, 221, 223, 224, 228, 242, 249, 271; normative framework 165, 172, 174, 175, 267–269

Index 277 North America Treaty Organisation (NATO) 108, 166, 167 nuclear weapons 115, 116, 122–123, 126; ICJ Advisory Opinion 119, 122, 123 Treaty on the Prohibition of Nuclear Weapons 119, 122; Nuclear Non-Proliferation Treaty 116, 126 obligation: collective 4; negative viii, 89, 103, 232; positive 5, 67, 103, 226, 249; to respect and ensure respect 175, 221, 263; under IHL 169 Palestine 184, 203, 205, 237; Occupied Palestinian Territory 4, 170; Palestinian 3, 4, 26, 29, 184 Palestinian-Israeli conflict 2, 26, 28, 70; and violations of GCIV 28; see also Israeli-Palestinian conflict partnered operations 124, 125, 166, 168 peacebuilding 87, 92, 160 peacekeeping 145–150, 153, 155, 157–159, 209 precaution 104, 108, 137 prisoners of war 13, 15, 19, 163 private actors 63–65, 67–69, 77 private security and military companies 63, 65, 69, 73, 74 proportionality 20–21, 54, 100, 102, 104, 107–108, 110, 137 refugee law 31, 155, 218 refugees 217 respect for IHL vii, 1, 2, 12, 23, 27–29, 31, 32, 34, 44–46, 48, 57, 116, 118, 122, 125, 127, 128, 133, 135, 136, 145, 150, 152, 154, 157, 160, 186, 187, 190, 191, 193, 221, 248, 251, 266–269 Riak, Reuben 85 Rules of Engagement (ROE) 101, 103, 157, 159 Russia 26, 28, 67, 132, 233 sanctions 33, 204, 210–212 Saudi Arabia 26, 33, 34, 125, 138, 268 self-defence 122, 147, 152 sexual and gender-based violence 122 soft law 105, 268 Somalia 208, 210, 212, 223 South Sudan 83–95, 158, 202, 207–211, 217, 239, 270; Comprehensive Peace Agreement 83, 87 sovereignty 112, 152, 153, 166, 167, 175, 223, 224, 228; as responsibility 223

space operations 101, 111, 112 St Petersburg Declaration 20, 117 Sudan 83, 84, 90, 91, 94, 158, 225 Syria 28, 169–170, 204, 205, 224 Tadic 91, 94, 250, 251, 255, 256 Taliban 166 targeting 100–103, 111 Taylor, Charles 67 Teheran Conference on Human Rights 3 terrorism 75, 178–179, 181–184, 188–190, 212–213, 232, 237–238; see also counter-terrorism third States 2, 3, 23, 25, 27, 28, 29, 32–34, 66, 83, 84, 88, 94, 119, 121, 124, 125, 128, 145, 164–165, 169, 170, 175, 192, 198, 201–206, 208–210, 214, 218, 220–228, 248, 249, 251–254, 256–258, 267, 268, 270 toolbox of measures 25, 272 torture 15, 109, 154, 166, 168, 170, 171, 258; Convention against Torture 218, 258; Torture Victim Protection Act 69 trade law 38 Turkey/Turkish 1, 189, 190, 258 Uganda 90–95 Ukraine 26, 203, 233, 242; EU-Ukraine Association Committee 26 United Kingdom 34, 48, 49, 67, 71, 76, 125, 126, 138, 139, 171, 179, 187, 193, 237, 242, 268 United Nations (UN) 155, 212; United Nations Charter 251, 256; United Nations General Assembly (UNGA) 165, 212; United Nations Human Rights Council 171; United Nations Peacekeeping 145–149, 153, 155; United Nations Security Council (UNSC) 28, 150, 178, 204–212, 225, 237, 256 UN International Children’s Emergency Fund 149, 227 United States of America 1, 69, 70, 75, 104, 106, 110, 123, 125, 132, 167, 170–172, 178, 179, 238, 251 universal jurisdiction 88, 89, 92, 226, 257 use of force 147, 149, 152, 233 utilitarianism 109 vagueness 68, 242, 271 Vienna Convention on the Law of Treaties 3, 5, 224 Vietnam War 106, 110

278 Index Wall Advisory Opinion 3, 4, 16, 63, 252 war crimes 18, 86, 88, 92, 112, 241–242, 250; and legislation 53, 63, 89, 90, 171, 192, 242 war on terror 109, 110 Wassenaar Arrangement 139–141 weapons 44, 71, 102, 115–128, 134, 136–137; anti-personnel mines 104, 115; autonomous 56, 117, 132, biological 115, 125, 126; chemical 15, 115, 125, 126; cluster munitions 15, 51, 55–56, 104, 115, 119–121; import and

export controls 52, 140; legal review 116–119, 124, 136, 137; non-lethal 117; transfer 33, 125, 237; see also arms control; see Arms Trade Treaty; see nuclear weapons Working Group on Children and Armed Conflict 208 World Food Programme 227 World Vision 184, 186 Yemen 26, 29, 33, 34, 125, 139, 203, 205, 207, 208, 209, 210, 217, 239

* The authors wish to thank Kirsten McRuvie for her work compiling this index.