Yearbook of International Humanitarian Law, Volume 22 (2019) [1st ed.] 9789462653986, 9789462653993

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Table of contents :
Front Matter ....Pages i-xii
Front Matter ....Pages 1-1
Evolution of the International Humanitarian Law Provisions on Sieges (Agnieszka Szpak)....Pages 3-27
Towards a Better Understanding of the Concept of ‘Indiscriminate Attack’—How International Criminal Law Can Be of Assistance (Harmen van der Wilt)....Pages 29-42
Double Trouble: The ‘Cumulative Approach’ and the ‘Support-Based Approach’ in the Relationship Between Non-State Armed Groups (Marten Zwanenburg)....Pages 43-61
The Rebel with the Magnifying Glass: Armed Non-State Actors, the Right to Life and the Requirement to Investigate in Armed Conflict (Joshua Joseph Niyo)....Pages 63-106
A Bird’s-Eye View on Compliance with the Law of Armed Conflict 70 Years After the Adoption of the Geneva Conventions (Jann K. Kleffner)....Pages 107-124
Not the Usual Suspects: Religious Leaders as Influencers of International Humanitarian Law Compliance (Ioana Cismas, Ezequiel Heffes)....Pages 125-150
Front Matter ....Pages 151-151
Appellate Deference Versus the De Novo Analysis of Evidence: The Decision of the Appeals Chamber in Prosecutor v Jean-Pierre Bemba Gombo (Aniel de Beer, Martha Bradley)....Pages 153-185
Year in Review 2019 (Kilian Roithmaier, Taylor Woodcock, Eve Dima)....Pages 187-280
Back Matter ....Pages 281-306
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Yearbook of International Humanitarian Law, Volume 22 (2019) [1st ed.]
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Yearbook of International Humanitarian Law 2019

Yearbook of International Humanitarian Law Volume 22

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

Terry D. Gill Robin Geiß Heike Krieger Christophe Paulussen •





Editors

Yearbook of International Humanitarian Law 2019

123

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

Robin Geiß School of Law University of Glasgow Glasgow, UK

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

Christophe Paulussen Research Department T.M.C. Asser Instituut The Hague, The Netherlands

The views expressed in this Yearbook are not necessarily those of the members of the Editorial Board, the Board of Advisors to the Editorial Board, the Board of Recommendation and/or those institutions they represent, including the T.M.C. Asser Instituut and T.M.C. Asser Press. ISSN 1389-1359 ISSN 1574-096X (electronic) Yearbook of International Humanitarian Law ISBN 978-94-6265-398-6 ISBN 978-94-6265-399-3 (eBook) https://doi.org/10.1007/978-94-6265-399-3 Published by T.M.C. ASSER PRESS, The Hague, The Netherlands www.asserpress.nl Produced and distributed for T.M.C. ASSER PRESS by Springer-Verlag Berlin Heidelberg © T.M.C. ASSER PRESS and the authors 2021 No part of this work may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher, with the exception of any material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. Cover illustration: 25 kms from Ruweishid. Jordanian Red Crescent Camp for refugees fleeing the war in Iraq. An ICRC tracing service is also in place. A few tents have collapsed during a storm the day before Photo: Franҫois de Sury. Date: 26/04/2003. Copyright: ICRC, Geneva. Reference: V-P-JO-E-00061 This T.M.C. ASSER PRESS imprint is published by the registered company Springer-Verlag GmbH, DE part of Springer Nature The registered company address is: Heidelberger Platz 3, 14197 Berlin, Germany

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

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

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

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

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

v

Editorial

The year 2019 marks the 70th anniversary of the four Geneva Conventions. The four Conventions represent an outstanding step forward in the development of international humanitarian law. While the First and the Third Geneva Convention could build on pre-existing law, the Second and the Fourth Convention created new protection regimes. In particular, the creation of Common Article 3 of the Conventions and the Fourth Geneva Convention relative to the Protection of Civilian Persons in Times of War represents a watershed moment of legal reform. Nearly universally ratified, the Conventions continue to set the standard for humanitarian treatment in times of war together with the three Additional Protocols of 1977 and 2005, respectively. Yet, law reform is not confined to single watershed moments in the conclusion of new treaties but constantly unfolds over time. Interpretation adapts international agreements to new challenges. On the basis of subsequent practice, it allows to keep legal obligations in line with changing practices of states and—to some extent— other actors. Systematic interpretation gives room to integrate input from other legal regimes and thereby further the development of a treaty. Moreover, customary international law may allow the creation of new rules where the momentum for the conclusion of a new treaty cannot be reached. Academic debates are an important part of these processes. They help to identify where change took place or where it may become necessary, and they contribute to defining the limits for change. After all, international humanitarian law, like all law, is exposed to various claims by different actors that may pursue diverging or even opposed political interests. Changes in the way wars are waged as well as technological developments or the rise of new actors constantly change battlefield realities. In light of these dynamics, it is a continuous challenge to assess whether humanitarian rules still remain adequate or whether law reform is needed and if so, through which channels it should be brought about. The Geneva Conventions and the debates surrounding them provide ample proof for these processes, and the present volume of the Yearbook of International Humanitarian Law focuses on pertinent examples.

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Editorial

One example for changing battlefield tactics lies in a shift to urban warfare and the corresponding increase of sieges in recent conflicts. In her contribution “Evolution of the International Humanitarian Law Provisions on Sieges”, Agnieszka Szpak analyzes the development over time of the pertinent legal rules and highlights the role of both customary international law and United Nations Security Council Resolutions as instruments to prompt such a development. The impact of international criminal law on the interpretation of international humanitarian law is dealt with in the contribution by Harmen van der Wilt “Towards a Better Understanding of the Concept of ‘Indiscriminate Attack’—How International Criminal Law Can Be of Assistance”. He starts from the observation that in relation to the means and methods of warfare and the protection of civilians Additional Protocol I closed a protection gap but that enforcement remains problematic because of complex mens rea issues. As a redress, he suggests borrowing from international criminal law doctrine and its differentiation between several categories of mens rea. The spread of non-international armed conflicts after the end of the Cold War challenged the Geneva Conventions and Additional Protocol II not least because of their limited outreach. A remedy was seen to lie in a turn to customary international law. The contributions by Marten Zwanenburg and Joshua Joseph Niyo analyze specific challenges arising in the context of these conflicts. In his contribution “Double Trouble: The ‘Cumulative Approach’ and the ‘Support-Based Approach’ in the Relationship Between Non-State Armed Groups”, Zwanenburg addresses the highly controversial question under which circumstances a non-international armed conflict exists and who are the parties to such a conflict. He engages with the diverging approaches put forward by the International Committee of the Red Cross and supports the so-called cumulative approach. Joshua Joseph Niyo demonstrates how international human rights law can contribute to change, development, and specification of international humanitarian law. In his contribution “The Rebel with the Magnifying Glass: Armed Non-State Actors, the Right to Life and the Requirement to Investigate in Armed Conflict”, he analyzes how both legal regimes can mutually re-enforce each other and focuses, in particular, on the right to life and investigation duties. While compliance with international humanitarian law has always been seen as its quintessential Achilles’ heel, recent conflicts have even worsened the overall perception. For some years now, armed conflicts seem to be characterized by a systematic and strategically motivated disregard for the rules of international humanitarian law. Thus, many debates on occasion of the 70th anniversary of the Geneva Conventions addressed the particular challenges stemming from non-compliance. Against this backdrop, Jann Kleffner provides us with “A Bird’s-Eye View on Compliance with the Law of Armed Conflict 70 Years After the Adoption of the Geneva Conventions”. He maps the various existent compliance mechanisms and makes a plea for contextualizing compliance as well as moderating expectations as to what can be achieved. To underpin his argument, he zooms in on three specific challenges: the prevalence of non-international armed conflicts, the culture of repression and the individualisation of victimhood based on the human rights paradigm. Subsequently, Ioana Cismas and Ezequiel Heffes look

Editorial

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into the role that religious leaders may play in the enhancement of compliance with international humanitarian law. In their contribution “Not the Usual Suspects: Religious Leaders as Influencers of International Humanitarian Law Compliance”, they make a case for engaging with societal actors which may contribute to inducing compliance. In particular, they analyze what makes religious leaders influential among their constituencies and how compliance can benefit from this influence. In the second part of the Yearbook, Aniel de Beer and Martha Bradley analyze the 2018 decision of the International Criminal Court’s Appeals Chamber in Prosecutor v Jean-Pierre Bemba Gombo. Their contribution “Appellate Deference Versus the De Novo Analysis of Evidence: The Decision of the Appeals Chamber in Prosecutor v Jean-Pierre Bemba Gombo” focuses on the International Criminal Court’s procedural and evidentiary law issues and criticizes that the Appeals Chamber has analyzed the evidence of the case de novo in order to arrive at a conclusion different from the one reached by the Trial Chamber. The Yearbook closes with its “Year in Review 2019” in which Kilian Roithmaier, Taylor Woodcock and Eve Dima report on events which were particularly relevant for international humanitarian law and international criminal law in the year 2019. The year 2019 also marks change for this Yearbook. Kilian Roithmaier, who has acted as Editorial Assistant for Volume 21 (2018) and Volume 22 (2019), will leave the T.M.C. Asser Institute. Thanks are due for his diligent support. Also Christophe Paulussen will move on to tackle new tasks. Christophe Paulussen worked first as Assistant Managing Editor (Volumes 15 (2012)—17 (2014)) and then as Managing Editor (Volumes 18 (2015)—22 (2019)) for the Yearbook. We are grateful to him for the rigour, patience, and perseverance with which he cared for the Yearbook and handled authors, reviewers, and editors. We are glad that he will continue to care for the Yearbook as member of the Board of Advisors from Volume 23 (2020) onward.

Contents

Part I

70th Anniversary of the Geneva Conventions

1 Evolution of the International Humanitarian Law Provisions on Sieges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Agnieszka Szpak 2 Towards a Better Understanding of the Concept of ‘Indiscriminate Attack’—How International Criminal Law Can Be of Assistance . . . . . . . . . . . . . . . . . . . . . . . . . Harmen van der Wilt 3 Double Trouble: The ‘Cumulative Approach’ and the ‘SupportBased Approach’ in the Relationship Between Non-State Armed Groups . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Marten Zwanenburg 4 The Rebel with the Magnifying Glass: Armed Non-State Actors, the Right to Life and the Requirement to Investigate in Armed Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Joshua Joseph Niyo

3

29

43

63

5 A Bird’s-Eye View on Compliance with the Law of Armed Conflict 70 Years After the Adoption of the Geneva Conventions . . . . . . . . . 107 Jann K. Kleffner 6 Not the Usual Suspects: Religious Leaders as Influencers of International Humanitarian Law Compliance . . . . . . . . . . . . . . . 125 Ioana Cismas and Ezequiel Heffes

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Part II

Contents

Other Articles

7 Appellate Deference Versus the De Novo Analysis of Evidence: The Decision of the Appeals Chamber in Prosecutor v Jean-Pierre Bemba Gombo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153 Aniel de Beer and Martha Bradley 8 Year in Review 2019 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187 Kilian Roithmaier, Taylor Woodcock and Eve Dima Table of Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281 Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287

Part I

70th Anniversary of the Geneva Conventions

Chapter 1

Evolution of the International Humanitarian Law Provisions on Sieges Agnieszka Szpak

Contents 1.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2 Legality of Sieges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2.1 International Armed Conflicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2.2 Non-International Armed Conflicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.3 United Nations Security Council Resolutions’ Impact on the Legal Regulation of Sieges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.4 Concluding Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4 7 8 18 20 23 24

Abstract The international regulations on siege warfare have evolved from lenient to increasingly restrictive, both with regard to the conduct of hostilities and to humanitarian assistance to victims of war. Siege warfare is not forbidden but heavily restricted, in particular by the prohibition of starvation of the civilian population, the latter commonly considered as customary in character. Together with the evolution of international humanitarian law, the evolution of armed conflicts, once fought on battlefields and now increasingly in urban areas and among the civilians, results in sieges being a lawful method of warfare but only when directed against combatants. This chapter examines the legality of sieges in the light of international humanitarian law. Apart from the analysis of international humanitarian law, a possible impact of the United Nations Security Council Resolutions on the law and practice of siege warfare is signaled. The aim of this chapter is to show historical and current regulations of international humanitarian law on siege warfare and in this way identify the evolution of the law on sieges. Keywords Siege · International humanitarian law · Prohibition of starvation · Relief operations · International armed conflict · Non-international armed conflict

A. Szpak (B) Department of International Security, Faculty of Political Science and Security Studies, Nicolaus Copernicus University, Toru´n, Poland e-mail: [email protected] © t.m.c. asser press and the authors 2021 T. D. Gill et al. (eds.), Yearbook of International Humanitarian Law 2019, Yearbook of International Humanitarian Law 22, https://doi.org/10.1007/978-94-6265-399-3_1

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A. Szpak

1.1 Introduction Although sieges are very often reminiscent of past wars, especially those of the Middle Ages,1 they are a method of warfare still used in contemporary armed conflicts. The siege tactics were actually invented by the Assyrians in the first millennium BC.2 When thinking about famous—or rather infamous—sieges (as they always resulted in humanitarian catastrophe), what comes to mind are Vienna, Paris, Leningrad,3 Sarajevo,4 Grozny and more recent—and perhaps less known—cases like Aleppo, Homs and Ghouta (all three in Syria). One may add the siege operations in Luhansk and Donetsk in Ukraine in 2014.5 The contemporary relevance of sieges is evidenced by their increased use in the armed conflict in Syria—a civil war that broke out in 2011 and resulted in a humanitarian crisis. The siege tactics have been used on a very high scale. Sieges have impeded the deliveries of humanitarian assistance and have also been accompanied by attacks against civilians.6 Usually the main victims of sieges are not combatants but civilians: “[i]n fact, experience indicates civilians are likely to experience the deprivations of isolation, physical, psychological, or electronic, far sooner and to a greater extent than their military co-besieged.”7 Nowadays we can observe accelerated urbanization, which means that as urbanization develops, armed conflicts become more urbanized as well. Even after the termination of an armed conflict, long lasting destruction of infrastructure that provides indispensable services, including hospitals, may still afflict the population. It very severely hinders sustainable urban development. Moreover, during protracted armed conflicts, bombardments with explosive weapons and other attacks on urban areas may cause massive displacement of people and set back a country’s development by decades. Urban environment as a ground of military operations is complex and challenging as there is always a greater risk of collateral damage, and in general civilians always suffer the most, no matter whether they are direct victims or collateral damage.8 As Sean Watts indicates, the practicalities of strategy and tactics

1 Campbell

2005; Gravett 1990. 2005, p 4. 3 Forczyk 2009; Glantz 2001. 4 The siege of Sarajevo was adjudicated in the Gali´ c case by the International Criminal Tribunal for the former Yugoslavia (ICTY). Stanislav Gali´c was the commander of the Sarajevo Romanija Corps in the Bosnian Serb Army, from September 1992 in the rank of Major General. Gali´c carried out a campaign of shelling and sniper attacks on Sarajevo with the intention of spreading terror among the civilian population. These attacks, which occurred every day for many months (1992–1994), led to the deaths of hundreds of women and men of all ages, including children, and injuries to thousands of people. Gali´c was found guilty of the crime of spreading terror among the civilian population in violation of the laws and customs of war and murder and other inhuman acts as part of crimes against humanity and sentenced to life imprisonment. For more details, see ICTY 2019. 5 Watts 2014, p 4; van den Boogaard and Vermeer 2019, p 166. 6 Power 2016, pp 1–4. 7 Watts 2014, pp 3–4; van den Boogaard and Vermeer 2019, p 168. 8 Hills 2004, Preface; Watts 2014, pp 3–4. 2 Campbell

1 Evolution of the International Humanitarian Law Provisions on Sieges

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have consistently necessitated urban combat as city areas frequently include locations of great strategic importance, such as crossroads, ports or riverfronts. Access to transit routes and proximity of resources are the main factors that make these places great locations for urban settlement; however, the same factors make such cities also high-value targets of military operations.9 But as military operations conducted in complex urban environment have often turned out to be time-consuming, risky and involving a lot of resources, it should not come as a surprise that commanders in the past and of today have decided not to enter urban areas and resorted to sieges instead. The aim of such tactic was to reduce enemy resistance or force the opponent to surrender.10 The motives for resorting to sieges, still relevant in contemporary armed conflicts, include the necessity to avoid high casualties among the attacking forces which are frequent in case of urban warfare as well as the need to redirect or conserve forces and resources for subsequent military operations. Another motive is the desire to avoid block-by-block urban attacks, very destructive for both sides.11 As the chapter deals with the evolution of the law of sieges, it is necessary to define the subject matter of the legal regulations. The literature offers several definitions. For example, Laurie Blank claims that a siege is a method of warfare that “seeks to completely isolate the defending party and all persons within the besieged area— physically, psychologically and electronically. Indeed, it can be an essential tactic to force the enemy to surrender or otherwise submit.”12 What is worth emphasizing is the element of electronic isolation, also pointed out by Sean Watts.13 The latter author adds that “[e]lectronic warfare and network attacks can reduce enemy capacity to command and control besieged forces and can also distort the enemy’s operational awareness to the advantage of the besieging force.”14 Beth Van Schaack indicates that siege warfare is a tactic developed during the Middle Ages that involves surrounding a garrison or a populated area with the goal of driving out the enemy forces by deteriorating their defenses and cutting them off from reinforcements and vital supplies. Although sieges are costly and time-consuming, they may under certain circumstances be easier than engaging the enemy directly in open battle or going house to rout out the adversary.15

This definition additionally takes into account the costs of sieges and the abovementioned motives for resorting to sieges instead of directly fighting in urban areas. According to James Kraska, “[s]iege warfare is an operational strategy to facilitate capture of a fortified place such as a city, in such a way as to isolate it from relief in

9 Ibid.,

p 2. p 3.

10 Ibid., 11 Ibid.

12 Blank

2019. 2014, pp 3, 4. 14 Ibid., p 3. 15 Van Schaack 2016. 13 Watts

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the form of supplies or additional defensive forces.”16 Jeroen C. van den Boogaard and Arjen Vermeer define siege warfare slightly differently, as “a method of warfare where an urban area may not be easily accessible, or is heavily defended, which requires the attacking force to conduct a sustainable military operation to achieve control over the urban area.”17 Finally, Yoram Dinstein also defines siege using the element of “encircling an enemy military concentration, a strategic fortress or any other location defended by the enemy, cutting if off from channels of support and supply.”18 He then stresses that “the essence of siege warfare lies in an attempt to capture the invested location through starvation.”19 Here, expressly, a new element in the definition of siege appears—that of starvation or rather an intent to starve the besieged. Dinstein adds that starvation continues only as long as the besieged forces do not surrender.20 This element will be important in the context of legality of siege warfare. Christa Rottensteiner also highlights that “[t]he foremost goal of sieges […] was not to inflict suffering on the civilian population, which was seen as an inevitable ‘by-product’, but to bring about the surrender of the enemy army.”21 To summarize, the necessary elements of a siege include isolation/encirclement of the besieged with the aim of forcing the enemy to surrender. Suffering of the civilians should be only a by-product of the siege, while the intent to starve the besieged will affect the legality of a siege, depending on who the besieging party intends to starve—combatants or civilians. Following this introduction, the chapter will analyze the legality of sieges in the light of international humanitarian law (IHL). Two types of armed conflicts will be examined—international and non-international armed conflicts. Then, the following section will examine a possible impact of the United Nations (UN) Security Council Resolutions on the law and practice of siege warfare. Finally, in the concluding remarks the author will briefly indicate the evolution of regulations on siege operations. The aim of this chapter is to identify historical and current regulations of siege warfare and in this way identify the evolution of the law on sieges: from more legal leniency in this regard to numerous restrictions on siege warfare. The thesis of this chapter is that the legal regulations on sieges have evolved from rather lenient to more restrictive ones, reflecting the more expansive role of the principle of humanitarianism. The main research method used is that of legal analysis, which is used to interpret textual material and decipher its meaning. The legal analysis includes examination of the content of legal acts and other documents like UN Security Council Resolutions. The chapter also adopts a critical analysis of the relevant literature in the field of international humanitarian law.

16 Kraska

2009. den Boogaard and Vermeer 2019, p 165. 18 Dinstein 2004, p 133. 19 Ibid. 20 Ibid., p 136. 21 Rottensteiner 1999. 17 Van

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1.2 Legality of Sieges The law regulating sieges is international humanitarian law (or international law of armed conflicts). Its main sources are treaties and custom, the former embracing, inter alia and foremost, the Hague Conventions of 1907, the Geneva Conventions of 1949 and the Additional Protocols to Geneva Conventions of 1977. Together the rules of the law of armed conflicts applicable to sieges may be divided into the rules on the conduct of warfare (so-called ‘Hague Law’) and the rules on the treatment of victims of war (so-called ‘Geneva Law’). This classification is purely academic as rules of both kinds may be found together, for example in Additional Protocol I on the Protection of Victims of International Armed Conflicts.22 Both Hague and Geneva branches of IHL contain provisions referring to sieges although none of them expressly prohibits it. As the legal character of armed conflicts is of great importance—because the rules applicable to both types of armed conflict often differ—the following section will first identify rules applicable to international armed conflicts, and then to non-international armed conflicts. The motivation and rationale for the development of the rules on siege warfare constitute the rising awareness and the need to more strongly protect civilians and the civilian population (the main victims of armed conflicts). The beginnings of siege warfare customary regulation did not include many humanitarian concerns. Generally, when the besieged force did not accept the demand to surrender or surrender conditions, they were considered fully liable for damage and suffering inflicted by the besiegers, which might have included mass destruction of property, deprivation, pillage or even civilian deaths. Civilians had to wait centuries before the beginnings of international legal protection from being targeted during a siege.23 As will be seen in the following analysis, this rationale is clearly reflected by the gradual restriction of the international humanitarian law regulations on siege warfare, consonant with the rule that the right of the parties to the conflict to choose methods or means of warfare is not unlimited (Article 22 of the Hague Regulations24 and Article 35 of Additional Protocol I). The evolution of the provisions on siege warfare contributed to the reinforcement of the principle of distinction. Actually, in the period following the 1977 Additional Protocols,25 IHL

22 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), opened for signature 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978) (AP I). 23 Watts 2014, p 5. 24 Convention (II) with Respect to the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, opened for signature 29 July 1899, 87 CTS 227 (entered into force 4 September 1900) (Hague Convention II); Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, opened for signature 18 October 1907, International Peace Conference, The Hague, Official Record 631 (entered into force 26 January 1910), Article 22 (Hague Convention IV). 25 AP I, above n 22; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-international Armed Conflicts (Protocol II), opened for signature 8 June 1977, 1125 UNTS 609 (entered into force 7 December 1978).

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A. Szpak

rules have strengthened the principle of distinction, thus outlawing military actions where civilians become lawful targets, more specifically.26

1.2.1 International Armed Conflicts 1.2.1.1

From the Lieber Code to the Hague Conventions

The first written source of international humanitarian law (even though, strictly speaking, it was applicable to a non-international armed conflict; however, it still was the first modern codification of the laws of war, and was also widely endorsed as applicable to international armed conflicts), the Instructions for the Government of Armies of the United States in the Field (the so-called ‘Lieber Code’) of 1863,27 allowed the besieging commander to drive the civilians back to the besieged area even when they wanted to leave such a place (Article 18). Article 17, of relevance here, actually accepted as legal the starvation of “the hostile belligerent, armed or unarmed”, which meant that civilians could also be starved. The aim was to contribute to “the speedier subjection of the enemy”. These provisions reflected the law applicable to international armed conflicts as well. Fortunately, the laws of armed conflicts evolved through the ages, and these provisions are today outdated as they were replaced by the regulations of the four Geneva Conventions and their Additional Protocols. Before the adoption of Geneva Law, siege warfare was rather considered as a matter of conduct of hostilities and not a humanitarian issue.28 Today it is usually intertwined with the possibility or necessity of deliveries of humanitarian aid, which will be discussed later. Regulations that refer to besieged areas may also be found in Article 27 of the Hague Convention II of 189929 and Article 27 of the Hague Convention IV of 1907.30 The same provisions were included in the Brussels Declaration of 187431 and the Oxford Manual on the Laws of War on Land of 1880.32 All these provisions stipulated that every necessary measure must be taken in order to spare, as far as possible, hospitals and cultural and scientific property, on condition they are not used for military purposes. The besieged are obliged to mark such property and buildings with a distinctive and visible sign, of which the enemy should be informed. This provision is based on the principle of distinction between civilian objects and military 26 Van

den Boogaard and Vermeer 2019, p 169. 1863. 28 Watts 2014, p 5. 29 Hague Convention II, above n 24. 30 Hague Convention IV, above n 24. 31 Project of an International Declaration concerning the Laws and Customs of War, opened for signature 27 August 1874, https://ihl-databases.icrc.org/ihl/INTRO/135. Accessed 16 April 2019 (not yet entered into force), Article 17. 32 The Institute of International Law 1880, Article 34. 27 Lieber

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objectives and aimed at protecting certain categories of objects. On the other hand, this obligation is softened by the words “as far as possible”, which makes it a strong recommendation rather than obligatory behavior for the besieging forces. Its implementation will depend on their capabilities and resources.33 Moreover, its effective implementation depends on the fulfilment by the besieged forces of their obligation to mark the protected buildings in advance and inform the enemy of it.

1.2.1.2

Geneva Conventions and Additional Protocol I

Currently, there is no explicit prohibition of sieges in international humanitarian law; however, there are provisions that restrict resorting to sieges. Rules found in international humanitarian law treaties—such as rules on targeting, proportionality, precautions, the prohibition of attacking civilians, humanitarian relief, and in particular starvation—have narrowed down the belligerents’ legal possibility to use the siege tactics. The most pertinent is the prohibition of starvation. And here the key question is: are sieges of places where civilians are present implicitly prohibited as a consequence of the prohibition of starvation? In practice, civilians are the first to suffer and to suffer most from deficiencies caused by the siege.34 As will be seen below, there is no straightforward no or yes answer. Prohibition of Starvation Article 54(1) of Additional Protocol I and Rule 53 of the International Committee of the Red Cross (ICRC) Study on Customary International Humanitarian Law35 provide for the prohibition of starvation of the civilian population as a method of warfare, while Article 54(2) and Rule 54 of the ICRC Study on Customary International Humanitarian Law provide for the prohibition of depriving the civilian population of goods indispensable to its survival. Article 54(2) may be regarded as specifying types of actions that are also contrary to Article 54(1) as they may result in starvation and threaten the survival of the civilian population. According to the provision: It is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works, for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party, whatever the motive, whether in order to starve out civilians, to cause them to move away, or for any other motive.36

In the framework of siege warfare, this provision seems to prohibit not only destruction of “objects indispensable to the survival of the civilian population” but also 33 Watts

2014, p 6. 2019. 35 Henckaerts and Doswald-Beck 2005. 36 AP I, above n 22, Article 54. 34 Gaggioli

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complete obstruction of deliveries of goods such as food or water as it could result in starvation; hence, the result of complete obstruction of deliveries of objects indispensable to the survival of the civilian population would be the same as in the case of the destruction of such objects. However, opposite views were expressed as well, like the one voiced by A.P.V. Rogers, who argued that Article 54(1) would not be violated by simply preventing the supplies from reaching the besieged area, for example by turning them back. Hence, only the attack, destruction or rendering such objects useless would be illegal.37 This reading of Article 54(2) is completely in opposition to paragraph 1 and makes it ineffective as this would actually allow starvation of civilians. Hence, a better attitude is to read Article 54 as a whole and take into account the aim of the provision, namely prohibition of starvation, no matter how it is caused. This would lead to a conclusion that preventing supplies of life-sustaining goods is illegal. However, if these indispensable objects are used by the enemy exclusively to support its armed forces or as direct support to military efforts, then attacks, destruction, removal or rendering such goods useless are allowed on condition that—in any case—the civilian population is not left with so little food or water as to put it at risk of hunger or force to relocate (Article 54(3)). Only exceptionally may any party to the conflict in the defense of its national territory against invasion derogate from those prohibitions—only “by a Party to the conflict within such territory under its own control where required by imperative military necessity” (Article 5(5)).38 Consequently, only the State on its own territory can destroy objects indispensable to the survival of the civilian population (it would amount to scorched-earth policy) so that they do not fall into enemy hands. This provision prohibits the occupying power from taking such actions as the occupant is not the sovereign. On the basis of Article 54 of Additional Protocol I, one may conclude that a siege whose purpose is to starve the civilian population is unlawful. This conclusion has also been drawn in the ICRC Study on Customary International Humanitarian Law.39 Slightly different formulas may be found in the San Remo Manual on International Law Applicable to Armed Conflicts at Sea of 1994 and the Manual on International Law Relating to Air and Missile Warfare of 2009; Articles 102(a) and 157(a) respectively state that “[t]he declaration or establishment of a blockade [in this case a siege] is prohibited if […] it has the sole [or primary in the latter document] purpose of starving the civilian population or denying it other objects essential for 37 A.

P. V. Rogers, quoted in Watts 2014, p 11. I, above n 22. 39 See comment on Rule 53 (Henckaerts and Doswald-Beck 2005, p 188): 38 AP

The prohibition of starvation as a method of warfare does not prohibit siege warfare as long as the purpose is to achieve a military objective and not to starve a civilian population. This is stated in the military manuals of France and New Zealand. Israel’s Manual on the Laws of War explains that the prohibition of starvation ‘clearly implies that the city’s inhabitants must be allowed to leave the city during a siege’. Alternatively, the besieging party must allow the free passage of foodstuffs and other essential supplies, in accordance with Rule 55.

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its survival.”40 With reference to the wording “sole or primary purpose”, it might be difficult to prove as there are no clear criteria for evaluating besieging party’s goals; however—as Gloria Gaggioli indicates—lack of attempts at evacuating civilians, or at least those most vulnerable, together with the denial of humanitarian aid should be enough to conclude that starvation of civilians is the purpose of the siege.41 Hence, the level of intentionality would require that the besieging party wants to starve the civilian population or, at least, accepts such consequences as a foreseeable result of its actions. Obligation to Evacuate Civilians More restrictions on siege warfare may be found in the Geneva Conventions I, II and IV and its Additional Protocol I, although not of such gravity as the prohibition of starvation. According to the Geneva Convention I, “local arrangements may be concluded between Parties to the conflict for the removal or exchange of wounded and sick from a besieged or encircled area, and for the passage of medical and religious personnel and equipment on their way to that area.”42 The Geneva Convention II provision in Article 18 is similar but refers to the evacuation by sea.43 Article 17 of Geneva Convention IV on civilians speaks about the removal of certain categories of people from besieged areas: the injured, the sick, the infirm, children, mothers of young children, and aged persons.44 On the basis of the above provisions one may notice that, first of all, parties should only attempt to conclude such agreements, which means that this is not obligatory. Secondly, only certain categories of civilians may benefit from this provision— a healthy adult civilian is not enumerated here.45 Hence, this obligation is rather 40 International

Institute of Humanitarian Law 1994, Article 102(a); Program on Humanitarian Policy and Conflict Research 2009, Article 157(a). 41 Gaggioli 2019. 42 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, opened for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950), Article 15. 43 Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, opened for signature 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950), Article 18. 44 Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War, opened for signature 8 August 1949, 75 UNTS 287 (entered into force 21 October 1950), Article 17. 45 Mikos-Skuza 2018, p 326. By way of example, the American Law of War Manual (US Department of Defense 2015, Section 5.19) also states that It is lawful to besiege enemy forces. Commanders must seek to make arrangements to permit the passage of certain consignments and should seek to make arrangements for the passage of certain categories of civilians, and of religious and medical personnel. […] Although the commander of the force laying siege has the right to forbid all communications and access between the besieged place and the outside, the parties to the conflict should attempt to conclude local agreements for the removal of wounded, sick, infirm and aged persons, children, and maternity cases, or for the passage of ministers of all religions, medical personnel, and medical equipment on their way to such areas. Concluding such agreements is not compulsory.

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limited by being restricted to specific categories of persons, and quite weak as it is recommendatory rather than binding. In this context, Yoram Dinstein gives an example of the customary legal rule that took effect before adopting the Geneva Conventions. It allowed the besieging forces to drive back civilians escaping from the besieged area in order to speed up the surrender (as was stated with regard to the Lieber Code mentioned above). This rule was confirmed by the American Nuremberg Tribunal in the High Command case, where the Tribunal stated that Field Marshal von Leeb’s order to German forces to fire on Russian civilians fleeing from besieged Leningrad was lawful. The Tribunal explained that “[w]e might wish the law were otherwise but we must administer it as we find it.”46 The above-mentioned Article 17 of Geneva Convention IV changed that state of the law, although it still applies only to those categories of civilians considered most fragile. Today it is required for the parties to an international armed conflict to only attempt to remove from besieged areas certain categories mentioned above. Moreover, to stress it once again, the language used, i.e. “shall endeavor to conclude”, shows that this is a recommendation and not mandatory course of action. This provision is definitely connected with Article 54 of Additional Protocol I on the prohibition of starvation. Yoram Dinstein comments that this provision orders the parties to the conflict to differentiate between sieges of military fortresses and sieges of defended towns. In the latter, not only combatants may be affected but also civilians, and in such a case starvation is allowed to be used only against combatants.47 But how could that be effectively conducted if combatants and civilians are grouped together in the besieged area? The best solution is to allow the civilians to leave the besieged location or allow life-sustaining products’ deliveries. Here, however, comes a problem with the besieging party’s lack of control over the distribution to the civilian population in the besieged area. The question is why would the besieging party allow this assistance as it is more than likely to end up in the hands of the enemy? In this case the besieging party may make the distribution of this assistance conditional on the local supervision of a protecting power or the ICRC. This reading of Article 54 combined with Article 17 of Geneva Convention IV simply confirms the above conclusion that the prohibition of starvation is the most pertinent provision relating to sieges, and it clearly restricts resorting to it.

The Former US Field Manual on the Law of Land Warfare of 1956 (US Department of the Army 1956, Section 44(a), p 20) contained a contrary provision: [I]f a commander of a besieged place expels the non-combatants in order to lessen the logistical burden he has to bear, it is lawful, though an extreme measure, to drive them back, so as to hasten the surrender. Persons who attempt to leave or enter a besieged place without obtaining the necessary permission are liable to be fired upon, sent back, or detained. Fortunately, this provision has been changed. 2004, p 134; Van Schaack 2016. 47 Dinstein 2004, p 135. 46 Dinstein

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Humanitarian/Relief Actions What are the international humanitarian law regulations with reference to civilians that are present in the besieged area? It is quite obvious that a siege of, for example, a city may result in severe humanitarian consequences such as lack of food and water or lack of medical assistance. Humanitarian crises may be exacerbated by the refusal by the State affected by an armed conflict to allow humanitarian aid supplies or by the obstacles in this regard (for example attacks on humanitarian convoys). However, such consent should not be denied arbitrarily.48 Article 70 of Additional Protocol I on relief actions is relevant in this context. It broadens the category of beneficiaries of humanitarian assistance and its scope (compared to the above-mentioned provisions of the Geneva Conventions). It is also worth adding that according to the ICRC Study on Customary International Humanitarian Law, Article 70 of Additional Protocol I reflects customary international law.49 Article 70 states that the whole civilian population under the control of the enemy, not only in occupied territories but also other ones, who is not adequately supplied with food, water or medicines should be able to benefit from impartial and humanitarian relief actions which, however, may be undertaken only with the consent of the parties concerned. Here again “priority shall be given to those persons, such as children, expectant mothers, maternity cases and nursing mothers.”50 But the provision is addressed to all civilians and the civilian population. Felix Schwendimann comments that the precondition of consent “balances the interests of the civilian population and the interests of the receiving state”.51 It may also be argued that the requirement of consent was supposed to reassure States Parties that they will have control over the whole process of delivery of humanitarian assistance as one of their concerns is humanitarian assistance being used as a pretext or cover for interference in their internal affairs by external actors only claiming to be humanitarian, independent and neutral.52 But, as already mentioned, the consent should not be denied arbitrarily. According to the ICRC Commentaries on the Additional Protocols, the State cannot refuse consent if the conditions enumerated in Article 70 of Additional Protocol I are met.53 This has also been confirmed in the Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict.54 Although the ICRC Commentaries and the Oxford Guidance are not legally binding, they may be regarded as an authoritative interpretation of binding law that cannot be lightly set aside.

48 For

more details, see Akande and Gillard 2016, paras 22–26. and Doswald-Beck 2005, Rule 55. 50 AP I, above n 22. 51 Schwendimann 2011, p 998. 52 Mikos-Skuza 2018, p 325. 53 Sandoz et al. 1987, pp 819–820. 54 Akande and Gillard 2016, para 22. 49 Henckaerts

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Such relief actions are conditional—a besieging force (and other parties to the conflict, including the besieged party, as well as States Parties that allow the passage of relief consignments) (a) shall have the right to prescribe the technical arrangements, including search, under which such passage is permitted; (b) may make such permission conditional on the distribution of this assistance being made under the local supervision of a Protecting Power; (c) shall, in no way whatsoever, divert relief consignments from the purpose for which they are intended nor delay their forwarding, except in cases of urgent necessity in the interest of the civilian population concerned.55

This provision partly reflects the concerns of States Parties about using humanitarian assistance to support the military efforts of the enemy. According to Sean Watts, this provision seems to prefer evacuation over relief operations during the siege. This conclusion is based on the comparison of belligerents’ obligation in the frameworks of relief and evacuation: in the context of relief requirements, Article 70 states that the consent of the parties is necessary while international humanitarian law evacuation standards in the context of sieges and taking into account the prohibition of starvation are pretty much obligatory.56 Michael John-Hopkins also argues that even though the suffering and casualties among the civilian population are unavoidable consequences of urban warfare, it does not release the parties from their customary law obligations to constantly care for the safety and needs of civilians, which includes ensuring the protection of objects indispensable to the survival of civilian population and humanitarian assistance for civilians that need it.57 In this context, one should note that Rule 55 of the ICRC Study on Customary International Humanitarian Law provides that “[t]he parties to the conflict must allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need, which is impartial in character and conducted without any adverse distinction, subject to their right of control.”58 What if civilians want to stay when the besieging forces allow their removal? In that case there is no reason to treat them differently from combatants. Understandably, civilians do not want to leave their homes and belongings, but it would be unrealistic to demand from the besieging commander—willing to allow the removal of civilians— to protect them as civilians when they want to stay in a besieged area on their own peril.59 This approach was confirmed for example in the United Kingdom Joint Service Manual of the Law of Armed Conflict, which stipulates that in case the military authorities of the besieged do not consent to the evacuation of civilians or the civilians themselves want to stay in a besieged place, it is acceptable for the besieging commander to prevent the supplies from reaching the besieged area, all 55 AP

I, above n 22, Article 70; Kalshoven and Zegveld 2001, p 105. 2014, p 8. 57 John-Hopkins 2010, p 489. 58 Henckaerts and Doswald-Beck 2005, Rule 55. 59 In this way Dinstein 2004, p 136. 56 Watts

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the time on condition that the offer to allow civilians to leave the besieged area is open.60 Their voluntary stay in the besieged area places them in close proximity to military objectives (combatants and possibly military objectives) and puts them at risk of being indirectly attacked by the besieging force.61 Civilians’ proximity to combatants, who may be starved as a result of a siege, places the civilians in an analogous position; hence the besieging party “would be justified in preventing any supplies from reaching” the besieged area.62 In the case of civilians leaving the besieged area, naturally, after the siege has ended, civilians should be able to return to their homes. There is no clear obligation in this regard. The only obligation that may be applicable by analogy is Article 49 of Geneva Convention IV which states that in a case of evacuation of civilians they shall be transferred back to their homes as soon as hostilities in the relevant area have ended. Sean Watts emphasizes that from the point of view of the besieging forces, the evacuation or removal option may be more desirable than relief operations as relief action’s supplies may be transformed to military use and in this way the besieged force may prolong its resistance or tip the scales in its favor. Evacuation may also be preferable to relief operations from a humanitarian point of view as it gives a greater chance of ensuring satisfactory life support and medical care, while at the same time removing civilians from the area of hostilities.63 On the other hand, a forcible removal of civilians may constitute a war crime (Article 147 of Geneva Convention IV, Article 8(2)(a)(vii) and Article 8(2)(e)(viii) of the Statute of the International Criminal Court64 ) or a crime against humanity (Article 7(1)(d) of the Statute of the International Criminal Court). In the first case, deportation and transfer must take place without a legal title or for illegal purposes (legal purposes are the security of the civilians and imperative military reasons—see Article 49 of Geneva Convention IV and Article 17 of Additional Protocol II). Even in the case of a legally justified evacuation, which applies in the case of a siege, such a state should be temporary and displaced persons should be able to return to their homes as soon as the reasons for their evacuation cease. The situation is different if civilians have to stay because they are forced to by the commander of the besieged forces. In this case, Article 54 is applicable, which means that cutting off the supplies may not result in starvation of civilians. There are, however, contrary opinions. Dinstein asks: “if the civilians are coerced to stay where they are by the edict of the military commander of the garrison of the besieged town, why should the enemy be barred from destroying the foodstuffs and drinking water installations sustaining them?”65 According to this view, in such a case civilians are 60 UK

Joint Doctrine and Concepts Centre 2004, Section 5.34.9. 2014, p 9. 62 Ibid., p 18. 63 Ibid., p 18. 64 Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002) (ICC Statute). 65 Dinstein 2004, p 136. 61 Watts

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used as human shields66 (which is prohibited—Article 23 of Geneva Convention III, Article 28 of Geneva Convention IV, Article 51(7) of Additional Protocol I; Rule 97 of the ICRC Study on Customary International Humanitarian Law) and this absolves the besieging commander from its obligations from Article 54 of Additional Protocol I or customary law. According to Dinstein, the illegal use of human shields by a party to the conflict cannot offer an advantage to that party. Still, the consequences of illegal acts by the besieged commander cannot be borne by the civilians who did not make such a decision. Precautions Against the Effects of Attacks and the Principle of Proportionality Another provision that may be relevant for sieges is Article 58 of Additional Protocol I on precautions against the effects of attacks. Before delving into details of this provision, a question must be posed: can sieges be regarded as attacks? According to Article 49 of Additional Protocol I, attacks are “acts of violence against the adversary, whether in offence or in defense.” It seems clear that a siege encompasses an element of violence against the enemy (starvation) and, as such, qualifies as an attack.67 Assuming that siege warfare constitutes a method of warfare or a combination of various such methods, for example bombing and starvation, the rules of targeting and conducting military operations, such as the principle of distinction and proportionality, are applicable.68 Consequently precautions against the effects of attacks should also apply. Accordingly, parties to an international armed conflict are obliged “to the maximum extent feasible” to attempt to remove the civilians and civilian objects that they control from the vicinity of military objectives, and to avoid locating such objectives in or close to the densely populated zones. The parties must also take any other necessary precautionary measures in order to protect individual civilians as well as civilian population and civilian objects against the dangers caused by military operations.69 Hence, the besieged party should take all possible steps to remove the civilian population from the besieged area. There is, however, a certain inconsequence in Additional Protocol I. Its Article 54 prohibits starvation which—in case of a siege— could be complied with by removing civilians from the besieged area, also in compliance with Article 70. On the other hand, Article 54(2) prohibits starvation as “a method of forcing civilians to move away”, which makes the removal of civilians in breach of this provision.70 Nevertheless, this is only one of possible interpretations. Another—consonant with what has been written above—is that the aim of starvation is not to force the civilians to move away but to compel the besieged combatants to surrender. The decision to allow civilians to leave the besieged area in combination

66 Ibid. 67 For

more details, see Gaggioli 2019. 2019. 69 AP I, above n 22, Article 58. 70 Dinstein 2004, p 136. 68 Gaggioli

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with their right to return as soon as possible may serve as evidence of the intent to compel the besieged combatants to surrender rather than to force the civilians to leave. Commenting on Article 17 of Geneva Convention IV in connection to Articles 57– 58 of Additional Protocol I, El˙zbieta Mikos-Skuza argues that evacuation could be regarded as a precautionary measure that should be undertaken both by a besieging and a besieged party to a conflict. Still, neither Article 57 nor Article 58 of Additional Protocol I on precautionary measures in attack and precautions against the effects of attacks expressly speaks of evacuation as one of the possible measures undertaken to spare civilians and civilian objects.71 Still the idea is worth taking into account. Assuming that a siege qualifies as an attack, the principle of proportionality is also of relevance. Gloria Gaggioli pictures a complex situation of a siege where the besieging force prevents objects indispensable to the survival of the population (for example food, water, medicines) from entering the area. She then paints the scenario that such a besieging party does comply with Article 54 of Additional Protocol I, whose purpose is to not to starve the civilian population but convince the enemy to surrender by weakening it. And in the process, objects indispensable to the civilian population’s survival may not be attacked, destroyed, removed or rendered useless by the belligerent party. The latter only isolates the town and cuts the supply lines. Several weeks later, as the food reserves have been exhausted, the most vulnerable members of the civilian population fall victim to starvation while others risk their lives attempting to escape the besieged area. As the months pass, the humanitarian situation worsens to unbearable as the number of victims among the non-combatants is high, while the military benefit is not what it was expected to be as the besieged military continues to use any means of survival it controls. Thus, from a humanitarian perspective, should the continuation of such siege be considered disproportionate? The instinctive answer should be affirmative.72 Assuming that the principle of proportionality is applicable in such a case, the besieging commander should constantly monitor the siege in order to assess its conduct in the light of the principle of proportionality: whether the expected or real civilian losses are not excessive compared to the military advantage from the siege operation. What should be taken into account is the expected duration of a siege.73 To support such an argument, one may point to Article 102(b) of the San Remo Manual on International Law Applicable to Armed Conflicts at Sea of 1994 which states that “[t]he declaration or establishment of a blockade [here, analogously, a siege] is prohibited if: […] the damage to the civilian population is, or may be expected to be, excessive in relation to the concrete and direct military advantage anticipated from the blockade [here a siege]”.74 A similar provision may be found in the Manual on International Law Relating to Air and Missile Warfare of 2009. This provision is a reflection of the general international humanitarian law principle of proportionality. 71 Mikos-Skuza 72 Gaggioli

2018, p 326. 2019.

73 Ibid. 74 International

Institute of Humanitarian Law 1994.

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Statute of the International Criminal Court There is also one more legal document of relevance for siege warfare, namely the Statute of the International Criminal Court of 1998, according to which using starvation of civilians as a method of warfare is a war crime but only if committed in international armed conflicts (Article 8(2)(b)(xxv)).75 In my opinion, if relevant conditions are met, starvation may also qualify as genocide (Article 6) or a crime against humanity, for example of extermination or persecution (Article 7(1)(b) and (h)). To be considered as genocide, it would have to be committed with a special intent to destroy, in whole or in part, a national, ethnical, racial or religious group, by means of “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part”; as a crime against humanity, starvation must result in massive deaths as a necessary element of extermination; if it is to be labeled as persecution, it entails denying basic rights with the additional element of discrimination based on political, racial, national, ethnic, cultural, religious, or gender grounds76 (in both cases of crimes against humanity, they must be a part of systematic and widespread attack against the civilian population).

1.2.2 Non-International Armed Conflicts Observing contemporary armed conflicts, mostly of a non-international character, and taking into account the fact that more and more frequently they are fought in cities, one can draw a conclusion that there is a great risk that we will see more cases of sieges. For example, Aleppo in Syria has become a symbol of lawlessness and unimaginable human suffering. Here, once again, the prohibition of starvation of the civilian population is particularly relevant in the context of sieges. The international law on non-international armed conflicts is less developed than that on international armed conflicts, at least with reference to the treaty law. The possible lacunae are very often filled with customary law. Sean Watts argues that despite the fact that international humanitarian law obligations in international and non-international armed conflicts are still different, there are only few significant differences with regard to targeting and treatment obligations relevant to siege warfare.77 First of all, the four Geneva Conventions contain the so-called Common Article 3, the only provision then applicable to non-international armed conflicts. It established an obligation of humane treatment of persons not participating actively in hostilities or those who have stopped doing so. Common Article 3 does not directly refer to sieges—just like in international armed conflicts, there is no express prohibition of sieges in non-international conflicts—but puts some restrictions on siege warfare. 75 ICC

Statute, above n 64. Prosecutor v Zoran Kupreški´c et al., Judgment, 14 January 2000, Case No. IT-95-16-T, paras 621, 627. 77 Watts 2014, pp 1, 5. 76 ICTY,

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Most importantly, it commands the parties to an internal conflict to allow an impartial humanitarian body, such as the ICRC, to offer its services to the parties to the conflict (for example in the form of relief assistance). Moreover, the parties to the conflict “should further endeavor to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.”78 Such agreements may include relief agreements or evacuation agreements.79 Provisions of Common Article 3 were supplemented and developed in the Additional Protocol II on the Protection of Victims of Non-international Armed Conflicts. Article 14 of Additional Protocol II is worded almost verbatim to Article 54 of Additional Protocol I. It prohibits starvation of civilians and rendering objects indispensable to the survival of the civilian population useless. The difference consists in lack of exceptions to this prohibition as was envisaged in Additional Protocol I. According to the ICRC Study on Customary International Humanitarian Law, this provision reflects customary international law.80 All the remarks made above on the prohibition of starvation with reference to international armed conflicts are relevant here and will not be repeated. Another regulation that may apply in the context of sieges is Article 18 of Additional Protocol II on relief societies and relief actions. It is identical to Article 70 of Additional Protocol I, so there is no need to repeat it. It suffices to refer the reader to the above remarks. However, Jelena Pejic adds that the fact that consent of the State Party is required does not mean that such a consent can be denied arbitrarily, hence this rule should be interpreted analogously to the one applicable in international armed conflicts. Consequently, if the survival of the civilian population is under threat and there is an impartial and competent humanitarian organization, relief operations must be conducted. The authorities that control the civilian population and are responsible for their safety and survival cannot refuse such assistance without valid reasons as it would amount to a breach of the prohibition of starvation of civilians used as a method of warfare.81 In this context, a question on the consent of non-State armed groups arises. Article 18 of Additional Protocol II mentions only consent of the State Party (Common Article 3 is silent in this regard). Opinions differ as to whether consent from a State that is a party to an armed conflict is necessary for operations bringing humanitarian relief to civilians in territories controlled by organized armed groups if such areas can be reached by routes outside the State-controlled territory.82 However, the Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict made a suggestion that such humanitarian relief operations in the State territory remaining under actual control of an organized armed group are a “concern” of that State that is a party to a non-international armed conflict; consequently, the State Party’s consent is a requirement only if relief operations involve passing through State-controlled territory; if the area effectively controlled by an 78 Common

Article 3 of the Geneva Conventions. 2014, p 19. 80 Henckaerts and Doswald-Beck 2005, p 188. 81 Peijc 2001, p 1108. 82 Akande and Gillard 2016, para 24. 79 Watts

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organized armed group is directly accessible from another country, such consent is not necessary. However, there are several reasons why such interpretation of Article 18(2) of Additional Protocol II is questionable. Primarily, the basic considerations of State’s sovereignty in its territory are contradicted by the suggestion that the State might not be “concerned” by humanitarian relief operations within its borders, even if the State has no effective control in that area. Furthermore, such interpretation would implicate that in specific circumstances no High Contracting Party would be concerned by such a relief operation, which would make the reference in Article 18(2) of Additional Protocol II that expressly refers to the consent of “the” High Contracting Party redundant. Considering this specific reference as well as the fact that Common Article 3(2) of the Geneva Conventions is silent on this topic, an opinion that would properly encompass the general international law rules related to territorial sovereignty of a State and a State’s responsibility towards its civilian population is that in such cases it is always necessary to obtain the consent of the State to which the target area of humanitarian relief operations belongs. However, the grounds for the State withholding such consent are more limited whenever the beneficiary of such relief is the civilian population of a territory effectively controlled by armed opposition.83 Contrary to the prohibition of starvation being listed as a war crime in international armed conflicts, the Statute of the International Criminal Court does not qualify the same acts but committed in non-international armed conflicts as a war crime. Hence, starvation of civilians in non-international armed conflicts is an ordinary breach of international humanitarian law. According to Peijc and Rottensteiner, even though in the Statute of the International Criminal Court there is no analogous category of a war crime of starvation of civilians in a non-international armed conflict, such act still constitutes a war crime in accordance with customary international law.84 However, it constitutes a war crime under the laws of several States only,85 which puts in question its customary character. To conclude this section, it should be stated that siege warfare as such is not prohibited in both types of armed conflicts but is heavily restricted, in particular by the prohibition of starvation of the civilian population, the latter commonly considered as customary in character.

1.3 United Nations Security Council Resolutions’ Impact on the Legal Regulation of Sieges Current or very recent examples of siege operations in Syria have drawn widespread criticism and condemnation. The UN Secretary General in his Report on the Implementation of Security Council Resolution 2139 (2018) observed that as of April 83 Ibid.,

paras 28–30. 2001, p 1100. In the same way Rottensteiner 1999. 85 Henckaerts and Doswald-Beck 2005, Rule 53, p 187. 84 Peijc

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2018, overall about two million people lived in besieged locations or areas difficult to access, and all this in Syria (compared with 2.3 million in February 2018). This enormous number included 11,100 living in three besieged regions of Yarmouk, Fu’ah and Kafraya, and about two million people in hard-to-reach areas.86 The UN Security Council adopted numerous Resolutions dealing with sieges. Only some of them, the most relevant ones, will be briefly examined. For example, in Resolution 2139 (2014) the Council expressed great concern for the humanitarian situation of civilians in besieged areas and called upon the parties to the conflict to immediately stop the sieges of populated locations, such as the Old City of Homs, Nubl and Zahra (Aleppo), Madamiyet Elsham (Rural Damascus), Yarmouk (Damascus), Eastern Ghouta (Rural Damascus) and Darayya (Rural Damascus), and demanded that all parties permit deliveries of relief assistance, including medical assistance, as well as stop preventing civilians’ access to food and medicines essential to their survival.87 The same alarm was expressed in Resolution 2165 (2014), with additional concern over the “continued, arbitrary and unjustified withholding of consent to relief operations and the persistence of conditions that impede the delivery of humanitarian supplies to destinations within Syria, in particular to besieged and hard-to-reach areas.”88 In Resolution 2258 (2015), the Security Council voiced its concern at the lack of implementation of the previous Resolutions, including Resolutions 2139 (2014) and 2165 (2014), and at problems and disturbances in the effective delivery of humanitarian and relief assistance.89 The earlier Resolutions 2042 (2012) and 2043 (2012) on Syria called upon the Syrian Government to agree to immediate, full and unhindered access of relief workers to all inhabitants in need and to fully comply with international law obligations and principles of humanitarian aid operations. The Security Council also urged all parties in Syria to cooperate with the United Nations and appropriate humanitarian organizations in order to further the delivery of relief assistance.90 Taking into account the provisions of international humanitarian law identified above, some words of comment should be devoted to the demand of the Security 86 UN Security Council (2018) Implementation of Security Council resolutions 2139 (2014), 2165 (2014), 2191 (2014), 2258 (2015), 2332 (2016), 2393 (2017) and 2401 (2018). Report of the Secretary-General, UN Doc. S/2018/484, Box 2 Humanitarian Access, Key Points. According to this report: “[a]n area is considered by the United Nations to be besieged when it is surrounded by armed actors, with the sustained effect that civilians, including the sick and the wounded, cannot exit it on a regular basis and humanitarian assistance cannot regularly enter it” (p 9). The report does not define a hard-to-reach area but it is a broader category and includes areas with difficult access yet nor militarily surrounded. Beth Van Schaack adds that that the term hard-to-reach areas “is a euphemism that some argue is employed to avoid using the “S” word (“siege”), given its potential war crimes implications” (Van Schaack 2016). 87 UN Security Council (2014) Resolution 2139 (2014), UN DOC. S/RES/2139, Preamble, p 2 and Section 5. 88 UN Security Council (2014) Resolution 2165 (2014), UN DOC. S/RES/2165, Preamble, p 2. 89 UN Security Council (2015) Resolution 2258 (2015), UN DOC. S/RES/2258, Preamble, p 3. 90 UN Security Council (2012), Resolution 2042 (2012), UN Doc. S/RES/2042, Section 10; UN Security Council (2012), Resolution 2043 (2012), UN doc. S/RES/2043, Section 11.

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Council that “all parties allow the delivery of humanitarian assistance”, reiterated in Resolution 2139 (2014). International humanitarian law requires in such a case (here we are dealing with a non-international armed conflict) a consent of the party to the conflict; in the context of a siege, it is the consent of the besieging party. Security Council’s Resolution seems to do away with this requirement and does not leave the Syrian Government much choice. Sean Watts draws attention to a possible intervention in internal affairs of Syria prohibited by Article 2(7) of the UN Charter,91 only to quickly argue that the best interpretation is that the Council considered the humanitarian conditions in these areas as being no longer within domestic jurisdiction of Syria, apparently concluding that—as the parties of the conflict caused civilian population to suffer deplorably—the humanitarian situation in the besieged Syrian territories warranted making this an international issue.92 The humanitarian situation, or rather the humanitarian catastrophe in many besieged areas definitely is not an internal matter but calls for international attention. It is worth adding that even if the besieging party is a non-State armed group, a consent to the delivery of humanitarian assistance sometimes would be necessary to carry it out or would strongly facilitate the delivery of such assistance. Still, request for such a consent would not constitute recognition nor confer any legal status upon a non-State armed group.93 As is seen from the above Resolutions, the UN Security Council imposes obligations on parties to non-international armed conflicts. When the Security Council does that, it acts as an agent for all UN Member States as according to Article 24(1) of the UN Charter, Member States “confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.”94 Hence, the Security Council acts on behalf of the Member States, and its Resolutions may be a form of State practice giving rise to a new customary international law of siege warfare in non-international armed conflicts, most of all in the sphere of doing away with the requirement of consent for the access of deliveries of humanitarian assistance when such a consent is arbitrarily denied. The Security Council Resolution demanding such access may be regarded as a sufficient authorization for such deliveries. UN Security Council Resolutions in a way bridge the gap in the protection of civilians in the context of Syria by requiring all besieging parties to facilitate relief activities as the Council actually authorized the delivery of relief without express permission through certain identified border crossings.95 In the light of the decisions made recently by the UN Security Council, it is possible that from a legal as well as operational point of view, traditional siege operations will soon become impracticable.96 91 Charter of the United Nations, opened for signature 26 June 1945, 1 UTS XVI (entered into force 24 October 1945). 92 Watts 2014, p 21. 93 Schwendimann 2011, p 1001. 94 Fox 2018. 95 Van Schaack 2016; Power 2016, p 15. 96 Watts 2014, p 1.

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UN Security Council Resolution 2139 (2014) is a reflection of the appeal to observe the already existing obligations with regard to siege operations; it can also be seen as reflecting the application of heightened obligations, going over and above those more general provisions of international humanitarian law that pertain to siege operations. Sean Watts concludes that Resolution 2139 is very unlikely to reflect changes to or amendments of international humanitarian law that apply to every State. It is certain that the Resolution must not be read as a general prohibition or outlawing of sieges nor as a mandate for the access of humanitarian help exceeding what is described by current international humanitarian law. The Resolution demands in no uncertain terms that both Syria and the rebels end siege operations, which mirrors the consensus formulated by the Security Council members who stated that deliberate flouting or disregarding of humanitarian obligations under existing international humanitarian law by parties to armed conflicts during siege operations, which inevitably leads to human suffering connected with unchecked urban siege warfare, will be met with increasing intolerance by the international society.97 Moreover, the recently announced decisions of the UN Security Council regarding Syria state unequivocally that the political opinion of the international society grows progressively impatient at least with certain aspects of urban sieges, i.e. human suffering and deprivation.98 Hence, the UN Security Council Resolutions rather reinforce the already binding obligations. The only element in excess of the generally applicable legal obligations may be the one pertaining to the requirement of consent of the parties to an armed conflict. Exceptionally, when such a consent is arbitrarily denied, the Security Council may authorize the deliveries of relief assistance.

1.4 Concluding Remarks This chapter attempted to define siege and then examine the question of its legality. The common element enumerated in the definitions of siege includes a complete isolation of the besieged area (encircling element) which may also involve electronic isolation, significant in the context of today’s technological progress and reliance on many electronic systems and devices. It was stressed that a siege may be regarded as a tactic or a strategy aimed at bringing about the surrender of the enemy. Very often, or in a great majority of today’s cases, it is the civilians that suffer most as a result of sieges, even though the justifiable intent of a siege is to starve the besieged military forces and not the civilians. The international regulations on siege warfare evolved from leniency to more and more restrictions, both with reference to the conduct of hostilities as well as humanitarian assistance to victims of war: from the legality of starving civilians in the Lieber Code through the Hague Conventions’ restrictions on sieges to the current state of the law prohibiting starvation of civilians and attacking, destroying, removing 97 Watts 98 Ibid.,

2014, pp 21–22. p 22.

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and rendering useless objects indispensable to the survival of civilian population. Prohibition of starvation is the most pertinent with reference to siege warfare. Siege warfare as such is not prohibited in both types of armed conflicts but is heavily restricted, in particular by the prohibition of starvation of the civilian population, the latter commonly considered as customary in character. Together with the evolution of international humanitarian law, the evolution of armed conflicts once fought on battlefields and now increasingly in urban areas and among civilians resulted in sieges being a now lawful method of warfare only when directed against combatants. The purpose of such a siege may not be to starve the civilian population. In other words, currently a siege is prohibited if it leaves the civilian population without objects necessary to sustain life.99 The above considerations also suggest a subtle paradox that the rules against the direct targeting of civilians and the civilian infrastructure coupled with the rise of non-international armed conflicts and urban warfare and the imperative of force protection have all worked together to underscore the utility of siege tactics. Other provisions applicable in the case of a siege include precautions against the effects of hostilities and an obligation to evacuate the civilians, in particular the most vulnerable ones, from the besieged areas. Hence, even though in all probability a siege will be a tactic used in future armed conflicts, the possibility and legality of its use will be heavily limited. Another conclusion coming from the above considerations is that more and more cohesion between international humanitarian law of international and noninternational armed conflicts is visible. Customary humanitarian law fills the gaps in this regard and makes these two boxes or divisions of law similar. The series of UN Security Council Resolutions calling for lifting sieges altogether may impact the further evolution of international humanitarian law or practice of parties to armed conflicts, causing siege operations to become even less morally and legally acceptable.

References Articles, Books and Other Documents Akande D, Gillard E-C (2016) Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict. https://www.unocha.org/sites/dms/Documents/Oxf ord%20Guidance%20pdf.pdf. Accessed 16 April 2019 Blank LR (2019) Joint Blog Series: Sieges, Evacuations and Urban Warfare: Thoughts from the Transatlantic Workshop on International Law and Armed Conflict. EJIL: Talk! https://www.ejiltalk.org/joint-blog-series-sieges-evacuations-and-urban-warfare-thoughtsfrom-the-transatlantic-workshop-on-international-law-and-armed-conflict/. Accessed 16 April 2019

99 Gaggioli

2019.

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Campbell DB (2005) Ancient Siege Warfare: Persians, Greeks, Carthaginians and Romans 546–146 BC. Osprey Publishing, Oxford Dinstein Y (2004) The Conduct of Hostilities under the Law of International Armed Conflict. Cambridge University Press, Cambridge Forczyk R (2009) Leningrad 1941–44: The Epic Siege. Osprey Publishing, Oxford Fox G (2018) Security Council Resolutions as Evidence of Customary International Law. EJIL: Talk! https://www.ejiltalk.org/security-council-resolutions-as-evidence-of-customary-int ernational-law/. Accessed 12 November 2019 Gaggioli G (2019) Joint Blog Series on International Law and Armed Conflict: Are Sieges Prohibited under Contemporary IHL? EJIL: Talk! https://www.ejiltalk.org/joint-blog-series-on-internati onal-law-and-armed-conflict-are-sieges-prohibited-under-contemporary-ihl/. Accessed 16 April 2019 Glantz DM (2001) The Siege of Leningrad 1941–1944: 900 Days of Terror. Spellmount, Staplehurst Gravett C (1990) Medieval Siege Warfare. Osprey Publishing, Oxford Henckaerts J-M, Doswald-Beck L (2005) Customary International Humanitarian Law, Volume I: Rules. Cambridge University Press, Cambridge Hills A (2004) Future War in Cities: Rethinking a Liberal Dilemma. Frank Cass, London/Portland ICTY (2019) Gali´c (IT-98-29). http://www.icty.org/cases/party/690/4. Accessed 16 April 2019 International Institute of Humanitarian Law (1994) San Remo Manual on International Law Applicable to Armed Conflicts at Sea. Oxford University Press, Oxford John-Hopkins M (2010) Regulating the conduct of urban warfare: lessons from contemporary asymmetric armed conflicts. International Review of the Red Cross 92(878):469–493 Kalshoven F, Zegveld L (2001) Constraints on the Waging of War. An Introduction to International Humanitarian Law. Cambridge University Press, Cambridge Kraska J (2009) Siege. Max Planck Encyclopedia of Public International Law. http://opil.ouplaw. com/view/10.1093/law:epil/9780199231690/law-9780199231690-e407. Accessed 16 April 2019 Lieber F (1863) Instructions for the Government of Armies of the United States in the Field (Lieber Code). 24 April 1863. ICRC. https://ihl-databases.icrc.org/ihl/INTRO/110. Accessed 16 April 2019 Mikos-Skuza E (2018) Siege Warfare in the 21st Century from the Perspective of International Humanitarian Law. Wroclaw Review of Law, Administration & Economics 8(2):319–330 Peijc J (2001) The right to food in situations of armed conflict: The legal framework. International Review of the Red Cross 83(844):1097–1109 Power S (2016) Siege Warfare in Syria: Prosecuting the Starvation of Civilians. Amsterdam Law Forum 8(2):1–22 Program on Humanitarian Policy and Conflict Research (2009) Manual on International Law Applicable to Air and Missile Warfare. https://www.cambridge.org/core/books/hpcr-manual-oninternational-law-applicable-to-air-and-missile-warfare/EB28F7A1701637CA2390B25FB48 40629. Accessed 16 April 2019 Rottensteiner C (1999) The denial of humanitarian assistance as a crime under international law. International Review of the Red Cross 81(835):555–582 Sandoz Y, Swinarski C, Zimmermann B (1987) Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949. Martinus Nijhoff Publishers/ICRC, Geneva Schwendimann F (2011) The legal framework of humanitarian access in armed conflict. International Review of the Red Cross 93(884):993–1008 The Institute of International Law (1880) The Oxford Manual on the Laws of War on Land. ICRC. https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp?documentId=403712575 07EBB71C12563CD002D6676&action=openDocument. Accessed 16 April 2019 UK Joint Doctrine and Concepts Centre (2004) The Joint Service Manual of the Law of Armed Conflict. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/ attachment_data/file/27874/JSP3832004Edition.pdf. Accessed 16 April 2019 UN Security Council (2012) Resolution 2042 (2012), UN Doc. S/RES/2042 UN Security Council (2012) Resolution 2043 (2012), UN Doc. S/RES/2043

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UN Security Council (2014) Resolution 2139 (2014), UN Doc. S/RES/2139 UN Security Council (2014) Resolution 2165 (2014), UN Doc. S/RES/2165 UN Security Council (2015) Resolution 2258 (2015), UN Doc. S/RES/2258 UN Security Council (2018) Implementation of Security Council resolutions 2139 (2014), 2165 (2014), 2191 (2014), 2258 (2015), 2332 (2016), 2393 (2017) and 2401 (2018). Report of the Secretary-General, UN Doc. S/2018/484 US Department of Defense (2015) Law of War Manual, June 2015 (updated December 2016). http:// archive.defense.gov/pubs/law-of-war-manual-june-2015.pdf. Accessed 16 April 2019 US Department of the Army (1956) Field Manual: The Law of Land Warfare (FM 27-10). https:// www.loc.gov/rr/frd/Military_Law/pdf/law_warfare-1956.pdf. Accessed 16 April 2019 Van den Boogaard JC, Vermeer A (2019) Precautions in Attack and Urban and Siege Warfare. Yearbook of International Humanitarian Law 20:163–198 Van Schaack B (2016) Siege Warfare and the Starvation of Civilians as a Weapon of War and War Crime. Just Security. https://www.justsecurity.org/29157/siege-warfare-starvation-civilians-warcrime/. Accessed 16 April 2019 Watts S (2014) Under Siege: International Humanitarian Law and Security Council Practice concerning Urban Siege Operations. Counterterrorism and Humanitarian Engagement Project. http://blogs.harvard.edu/cheproject/files/2013/10/CHE-Project-IHL-and-SC-Pra ctice-concerning-Urban-Siege-Operations.pdf. Accessed 16 April 2019

Cases ICTY, Prosecutor v Zoran Kupreški´c et al., Judgment, 14 January 2000, Case No. IT-95-16-T

Treaties Charter of the United Nations, opened for signature 26 June 1945, 1 UTS XVI (entered into force 24 October 1945) Convention (II) with Respect to the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, opened for signature 29 July 1899, 87 CTS 227 (entered into force 4 September 1900) Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, opened for signature 18 October 1907, International Peace Conference, The Hague, Official Record 631 (entered into force 26 January 1910) Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, opened for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950) Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, opened for signature 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950) Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War, opened for signature 8 August 1949, 75 UNTS 287 (entered into force 21 October 1950) Project of an International Declaration concerning the Laws and Customs of War, opened for signature 27 August 1874, https://ihl-databases.icrc.org/ihl/INTRO/135 (not yet entered into force)

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Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), opened for signature 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978) Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), opened for signature 8 June 1977, 1125 UNTS 609 (entered into force 7 December 1978) Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002)

Agnieszka Szpak is Associate Professor at the Department of International Security, Faculty of Political Science and Security Studies, Nicolaus Copernicus University, Toru´n, Poland.

Chapter 2

Towards a Better Understanding of the Concept of ‘Indiscriminate Attack’—How International Criminal Law Can Be of Assistance Harmen van der Wilt

Contents 2.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 Attacking Civilians as a War Crime in International Humanitarian Law and International Criminal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3 Prosecutions of Attacks Against Civilians Before the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Court . . . . . . . . . . . . . . . . . . . . 2.3.1 International Criminal Tribunal for the Former Yugoslavia . . . . . . . . . . . . . . . . . . 2.3.2 International Criminal Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4 Transition from International Humanitarian Law to International Criminal Law . . . . . . 2.5 Final Reflections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

30 32 33 33 36 37 40 41

Abstract The concept of ‘indiscriminate attack’ is directly related to the principle of distinction and therefore serves an important function in international humanitarian law. For the purpose of attributing individual criminal responsibility, however, the concept is insufficiently precise, as it covers a wide array of mens reae, ranging from direct (malicious) intent to kill civilians, via callous disregard for civilian lives, to an intent to target military objects, while knowing that they will demand an excessive toll. International criminal law can thus assist in explaining how the rather elusive concept of indiscriminate attack can be understood in terms of human intents and purposes. In its turn, the determination that an attack is indiscriminate can inform the (international) criminal courts why the waste of civilian lives is clearly excessive to the anticipated military advantage, which is classified as a war crime under the Rome Statute. This chapter seeks to demonstrate how international humanitarian law and (international) criminal law can be complementary and mutually beneficial in elucidating this fascinating concept.

H. van der Wilt (B) Faculty of Law, University of Amsterdam, Amsterdam, The Netherlands e-mail: [email protected] © t.m.c. asser press and the authors 2021 T. D. Gill et al. (eds.), Yearbook of International Humanitarian Law 2019, Yearbook of International Humanitarian Law 22, https://doi.org/10.1007/978-94-6265-399-3_2

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Keywords Indiscriminate attack · Principle of distinction · Attacks on civilians · War crimes · Proportionality · Rome Statute

2.1 Introduction Despite its grandiloquent title—Convention Relative to the Protection of Civilian Persons in Time of War—, the Fourth Geneva Convention1 has a rather limited scope of application: Article 4 of this Convention provides that only those are protected by the Convention “who […] find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.” Part II of the Convention which primarily deals with the special care for extra vulnerable civilians (sick, wounded, infirm, elderly people, children, expectant mothers) has a wider purview. Article 13 stipulates that this part covers the whole of the populations in conflict, without any adverse distinction based on race, nationality or political opinion.2 Nonetheless, the Convention does not heed civilians who become the victims of aerial bombardments or other military operations. The 1949 Geneva Conventions do not address prohibited methods and means of warfare, because that would have overloaded the Convention and would have reduced the chance of ratification by the States.3 The Additional Protocols of 1977 have largely plugged the gap. Article 51 of the First Additional Protocol (AP I)4 and Article 13 of the Second Additional Protocol (AP II)5 proclaim the principle of distinction where they hold that the civilian population and individual civilians shall enjoy general protection against dangers arising from military operations. Both provisions reiterate the background philosophy of separation between combatants and civilians by clarifying that civilians only enjoy protection if they do not directly participate in hostilities.6 Consequently, Article 51(2) AP I prohibits the (direct) attack against the civilian population and

1 Geneva Convention (IV) relative to the Protection of Civilian Persons in Times of War, opened for

signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950). 2000, p 230. 3 Compare International Committee of the Red Cross 1958, p 10: “[…] the main object of the Convention is to protect a strictly defined category of civilians from arbitrary action on the part of the enemy, and not from the dangers due to the military operations themselves. Anything tending to provide such protection was systematically removed from the Convention.” 4 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), opened for signature 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978) (AP I). 5 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), opened for signature 8 June 1977, 1125 UNTS 609 (entered into force 7 December 1978) (AP II). 6 AP I, above n 4, Article 51(3); AP II, above n 5, Article 13(3). On the problems of drawing the line between ‘direct participation in hostilities’ and civilians who are entitled to protection, see Schmitt 2010. 2 Green

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civilian objects, a provision that is echoed in Article 13(2) AP II.7 Article 85(3) AP I qualifies the direct attack against civilians as a ‘grave breach’ which implies that the violation gives rise to criminal prosecution before national and international criminal courts. Article 51 AP I continues with the prohibition of ‘indiscriminate attacks’ which is the logical consequence of the principle of distinction and a further clarification of that concept. Apart from identifying those attacks which would qualify as ‘indiscriminate’ (Article 51(4)), the provision singles out two types of attack which “[a]mong others” are to be “considered as indiscriminate”. These attacks comprise area bombardments and the (in)famous ‘incidental, excessive damage’ clause: “an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.”8 Although the attack on civilians during an armed conflict is a war crime, several authors have observed that prosecutions before national and international criminal courts and tribunals have been sparse and arduous.9 Partially, this can be attributed to the difficulty of reconstructing—in hindsight—decisions which have to balance the (anticipated) military advantage against the incidental loss of civilian lives, all this during the fog of war, and often taken at the spur of the moment. But this evidential burden is aggravated by a complex legal framework that acknowledges several shades of responsibility, depending on differences in mens rea. This chapter focuses on the latter aspect. It aspires to explore whether the fascinating but, for criminal lawyers, sometimes arcane landscape of international humanitarian law (IHL) provisions governing this area can be elucidated by borrowing from (international) criminal law doctrine that clearly distinguishes between several categories of mens rea, ranging from direct intent to recklessness (in common law), or from dolus directus to dolus eventualis (in civil law). To that purpose, Sect. 2.2 starts with a brief survey, indicating how the IHL provisions, featuring in the Additional Protocols, are translated into specific war crimes in the Rome Statute of the International Criminal Court (Rome Statute)10 and the Statute for the International Criminal Tribunal for the former Yugoslavia (ICTY Statute).11 Section 2.3 follows with a discussion of some judgments of the International Criminal Tribunal for the former Yugoslavia (ICTY) and—more recently—case law of the International Criminal Court (ICC) in which legal standards requiring different mens reae have been confounded or lumped together. Section 2.4 seeks to clarify the confusion by applying the more rigid normative framework of criminal law that differentiates between distinct states 7 In

a similar vein, the attack on civilian objects is prohibited in AP I, above n 4, Article 52(1). Civilian objects are, negatively, defined as “objects which are not military objects as defined in paragraph 2”. 8 AP I, above n 4, Article 51(5)(b). 9 See, in particular, Fenrick 2004 and Wuerzner 2008. 10 Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) (Rome Statute). 11 UN Security Council (1993) Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY), UN Doc. S/25704 (adopted through UN Security Council (1993) Resolution 827 (1993), UN Doc. S/RES/827).

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of mind in the realm of cognition and volition. Section 2.5 rounds up with some final reflections. It bears emphasis that the limited scope of this chapter does not allow for an indepth analysis of the relationship between IHL and international criminal law (ICL). At least as far as (serious) violations of IHL and war crimes are concerned, the latter has emanated from the former and should, in the opinion of the author, therefore serve an auxiliary function. However, in view of both fields of law having distinct focus and objectives, this is by no means easily accomplished, as will appear from this chapter.12

2.2 Attacking Civilians as a War Crime in International Humanitarian Law and International Criminal Law In his interesting contribution on the prosecution of unlawful attacks before the ICTY, William Fenrick defines an unlawful attack by distinguishing between three configurations: “attacks that are directed against civilians or civilian objects, attacks that are indiscriminate, or attacks that are directed against military objectives in circumstances where it can be reasonably anticipated that excessive (disproportionate) death or injury will be inflicted on civilians and/or excessive (disproportionate) damage will be caused to civilian objects.”13 The classification is apparently inspired by the legal framework of Article 51 AP I as expounded in the introduction. Whereas the differentiation enables a better understanding of the different shades of mens rea in criminal law, as I will demonstrate below, it is reduced to a binary one in the Rome Statute. Article 8(2)(b)(i) that applies to international armed conflicts criminalizes “[i]ntentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities”, while Article 8(2)(b)(iv) qualifies as a war crime the “[i]ntentional launching of an attack in the knowledge that such attack will cause incidental loss of life to civilians […] which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated”.14 The Rome Statute is thus silent on the concept of ‘indiscriminate attack’. The legal regime governing non-international armed conflicts has no counterpart to Article 8(2)(b)(iv) of the Rome Statute and only considers as a war crime the “[i]ntentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities” (Article 8(2)(b)(iv)). Referring to the “serious violations of the laws and customs applicable in armed conflicts not of an international character”, the provision mirrors Article 13 of AP II. 12 In

a similar vein, Bartels 2013, p 278. See also Corn 2014, p 191 observing that ‘”[u]ltimately, criminal accountability must validate and complement the LOAC regulatory regime, not contradict or confuse.” 13 Fenrick 2004, p 157. 14 Emphasis added. On the meaning of the higher threshold in ICL when compared with IHL (clearly excessive versus excessive), see van den Boogaard 2019, pp 345-347.

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Article 3 of the ICTY Statute that covers the “[v]iolations of the laws or customs of war” does not even mention the intentional attack against civilians, although it includes destruction, attack and bombardment of civilian objects.15 It is interesting to note that the direct attack of civilians surfaces in the Statute of the Special Court for Sierra Leone16 (Article 4(a)), while the Statute of the International Tribunal for Rwanda17 contains no references to direct attacks on civilians or civilian objects. In all likelihood, such subtle differences between the statutes reflect the nature of the conflicts and the predominant atrocities committed during these conflicts. As the provisions on violations of the laws or customs of war in the statutes of the ad hoc tribunals were not meant to be exhaustive,18 the ICTY in particular has taken the opportunity to extract the attack on civilians from the normative framework of the Additional Protocols and qualify it as a war crime under its jurisdiction, irrespective of whether the attack was launched during an international or a non-international armed conflict.19 It is to this case law that we now will turn.

2.3 Prosecutions of Attacks Against Civilians Before the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Court 2.3.1 International Criminal Tribunal for the Former Yugoslavia The judgments of the ICTY in respect of attacks on civilians and civilian objects hailed from the shelling of Sarajevo, bombardments of Dubrovnik, attacks against Serbian villages during Operation Storm and military operations against Muslim dwellings and villages within the framework of the policy of ethnic cleansing. An extensive account of these events would clearly exceed the limited scope of this chapter. What all these cases have in common is that defendants moved to justify their actions by pointing out that their targets were not civilian or at least not exclusively civilian in nature. Whether the Chambers could easily refute such claims or 15 Compare Article 3(b) (“wanton destruction of cities, towns or villages, or devastation not justified by military necessity”) and Article 3(c) (“attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings”). 16 Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, opened for signature 16 January 2002, 2178 UNTS 137 (entered into force 12 April 2002). 17 UN Security Council (1994) Statute of the International Tribunal for Rwanda, UN Doc. S/RES/995. 18 Compare the findings of the Appeals Chamber in ICTY, Prosecutor v Duško Tadi´ c, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, Case No. IT-94-1-AR72, para 87. 19 Ibid., para 137.

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encountered more difficulties in assessing them obviously depended on the specific circumstances of the situation. The Trial Chambers in the Kordi´c case and Blaski´c case had indicated the standard mens rea for the offence of attacks on civilians and civilian objects as actions that were “conducted intentionally in the knowledge, or when it was impossible not to know, that civilians or civilian property were being targeted not through military necessity.”20 The Blaski´c Appeals Chamber overturned the Trial Chamber’s finding that military necessity might justify a direct attack on civilians, holding that there is an absolute prohibition on the targeting of civilians and civilian objects in customary international law.21 However, it left the rest of the definition unaltered. The mens rea standard is a very narrow one, which can be used in ‘easy’ cases where blatant attacks on civilians occur and any claim of military advantage is far-fetched, if not made in bad faith. Accordingly, in the Strugar case which addressed the shelling of the Old Town of Dubrovnik, which was clearly demarcated by its medieval walls, the Trial Chamber could quickly dismiss defences that the attack also served a military purpose. It applied the narrow reading of mens rea by holding that “such an attack must have been conducted with the intent of making the civilian population or individual civilians, or civilian objects, the object of the attack”, adding that “[…] the issue whether a standard lower than that of a direct intent may also be sufficient does not arise in the present case.”22 Such an approach does not suffice in more complicated scenario’s where civilians and military (objects) intermingle and are therefore difficult to distinguish, for instance in case of ‘dual-use’ objects. In the Kupreski´c case, the Defence had challenged the civilian character of the Muslim population of the village of Ahmi´ci that had been attacked by Croatian forces by alleging that the village of Ahmi´ci was not an undefended village and questioning the non-combatant status of the inhabitants. The Trial Chamber responded by recalling the crucial relevance of the principle of proportionality, “whereby any incidental (and unintentional) damage to civilians must not be out of proportion to the direct military advantage gained by the military attack”, adding that “attacks even when they are directed against legitimate military targets, are unlawful if conducted using indiscriminate means or methods of warfare, or in such a way as to cause indiscriminate damage to civilians.”23 The Trial Chamber applied the concept of ‘indiscriminate attack’, crucial in IHL, but largely unknown in ICL, in order to expand the mens rea for attacks against civilians, suggesting that it could be considered on the same par as direct intent. This line of reasoning was followed and made explicit by the Trial Chamber in the Gali´c case which concerned the attacks on Sarajevo from surrounding hills by Bosnian 20 ICTY,

Prosecutor v Tihomir Blaski´c, Judgment, 3 March 2000, Case No. IT-95-14-T, para 180; ˇ ICTY, Prosecutor v Dario Kordi´c and Mario Cerkez, Judgment, 26 February 2001, Case No. IT95-14/2, para 328. 21 ICTY, Prosecutor v Tihomir Blaski´ c, Judgment, 29 July 2004, Case No. IT-95-14-A, para 109. 22 ICTY, Prosecutor v Pavle Strugar, Judgment, 31 January 2005, Case No. IT-01-42-T, para 283 (emphasis added). 23 ICTY, Prosecutor v Zoran Kupreški´ c et al., Judgment, 14 January 2000, Case No. IT-95-16-T, para 524.

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Serb forces, including the shelling of a soccer-stadium during a match followed by a mixed audience of civilians and military. Agreeing with previous Trial Chambers, the Chamber held that “indiscriminate attacks, that is to say, attacks which strike civilians or civilian objects and military objects without distinction, may qualify as direct attacks against civilians”.24 This point of view may not appear to be very startling, as it tallies with earlier holdings that seek to deduce evidence of direct intent from the indiscriminate character of the attack.25 The Trial Chamber continued by finding that “one type of indiscriminate attack violates the principle of proportionality”, an opinion that was again not very sensational as it hails from AP I that considers the incidental loss of civilian lives which is excessive to military advantage as a species of indiscriminate attacks.26 In the Gotovina case,27 which concerned the attack by Croatian forces on four Serbian towns that harboured enemy artillery, the Trial Chamber had ventured to demarcate the line between lawful and indiscriminate attacks in case of remote shelling of targets of opportunity.28 The Chamber consistently employed a distance of 200 metres between a given impact site and one of the artillery targets as a benchmark, indicating that impact sites within 200 metres would be evidence of a lawful attack, while sites beyond 200 metres were evidence of an indiscriminate attack.29 The impact analysis was predicated on expert witnesses’ testimony on the accuracy of weaponry, from which the 200 metre radius was deduced as margin of error. The Appeals Chamber was not convinced by the Trial Chamber’s findings and held that the Chamber had “failed to provide a reasoned opinion in deriving the 200-meter Standard”. It concluded that “absent an established range of error, […] it cannot exclude the possibility that all of the impact sites considered in the Trial Judgment were the result of shelling aimed at targets that the Trial Chamber considered to be legitimate.”30 It is no coincidence that the concept of indiscriminate attack looms large in the case law of the ICTY. In the absence of a specific provision, qualifying attacks on civilians as a war crime, in the ICTY Statute, the Tribunal had to mould the elements of the crime from customary international law and it naturally resorted to the Geneva Conventions and the Additional Protocols, in which the concept holds great prominence. However, as ‘indiscriminate attack’ covers conduct with diverging 24 ICTY,

Prosecutor v Stanislav Gali´c, Judgment, 5 December 2003, Case No. IT-98-29-T (Gali´c), para 57. 25 Compare ICTY, Prosecutor v Milan Marti´ c, Judgment, 12 June 2007, Case No. IT-95-11-T (Gali´c), para 69 finding that “[…] a direct attack against civilians can be inferred from the indiscriminate character of the weapons used.” And see also ICJ, Legality of the Use by a State of Nuclear Weapons in Armed Conflicts, Advisory Opinion, 8 July 1996, [1996] ICJ Rep 225, para 78 equating the use of indiscriminate weapons with a deliberate attack on civilians. 26 Gali´ c, above n 24, para 58. 27 For an extensive analysis of this case, see Bartels 2013, pp 286-292. 28 ICTY, Prosecutor v Ante Gotovina, Judgment, 15 April 2011, Case No. IT-06-90-T. 29 Ibid., paras 1898-1945. 30 ICTY, Prosecutor v Ante Gotovina & Mladen Marka´ c, Judgment, 16 November 2012, Case No. IT-06-90-A, paras 64-65.

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mens reae, it is difficult to translate it into the more rigid conceptual framework of (international) criminal law.

2.3.2 International Criminal Court Judgements of Trial Chambers of the ICC do not display spectacular new legal insights in respect of the mens rea for attacks against civilians, but they are interesting because of the fact pattern they were called to address. Both the Katanga case and the Ntaganda case concerned the armed attacks by militias against villages comprising a mixture of civilians and military from an enemy tribe. In the Ntaganda case, the Lendu fighters were the attackers and the Hema tribe were the victims, while in the Katanga case it was exactly the other way round. In the Ntaganda case, the Trial Chamber observed in particular the random character of killings, noting that “during the assault, the UPC/FPLC soldiers [under the command of Ntaganda] fired at everyone in Mongbwalu, including the “civilian population”.”31 Commenting on the shooting of civilians who attempted to escape death by fleeing to nearby forest environments, the Chamber held that “no reasonable person could have believed that they were directly participating in hostilities and thereby targetable.”32 In Katanga, the Trial Chamber moved cautiously, mindful that the attack on the village of Bogoro took place within the context of a non-international armed conflict and Article 8(2)(e) of the Rome Statute does not provide the backstop of incidental loss of civilian lives (as explained above). The Trial Chamber correctly held that Article 8(2)(e) requires the civilian population (or individual civilians) to be the primary object of the attack.33 It continued by confirming prior findings of ICTY Chambers that “indiscriminate attacks […] may qualify as intentional attacks against the civilian population or individual civilians, especially where the damage caused to civilians is so great that it appears to the Chamber that the perpetrator meant to target civilian objectives.”34 The language is reminiscent of the reasoning in the Marti´c Trial Judgement, but (far) more explicit than the Gali´c Trial Judgement, as the Trial Chamber suggests that only those ‘indiscriminate attacks’ that betray the intent to strike at civilians in particular, would meet the elements of Article 8(2)(e)(iv) of the Rome Statute. The Chamber corroborated this point of view by adding that “an indiscriminate attack does not […] automatically constitute an attack against the

31 ICC, Prosecutor v Bosco Ntaganda, Judgment Pursuant to Article 74 of the Statute, 8 July 2019, Case No. ICC-01/04-02/06, para 922. 32 Ibid., para 927. 33 ICC, Prosecutor v Germain Katanga, Judgment Pursuant to Article 74 of the Statute, 7 March 2014, Case No. ICC-01/04-01/07 (Katanga), para 802 (emphasis added). 34 Ibid. (emphasis added).

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civilian population under article 8(2)(e)(i), as the subjective element is decisive in respect of the second case.”35 In the factual assessment of the attack, the Trial Chamber sometimes distinguished between killings with machetes, which obviously revealed the intent of the perpetrators to target civilians,36 and killings by fire guns. In the latter case, civilians might have been killed during a cross-fire between the rivalling militias. In considering the killing of civilians who, together with soldiers, tried to escape, the Chamber’s reasoning took a peculiar turn. Acknowledging that the soldiers might at that time have been a legitimate target, the Chamber continued that “the loss of human life ensuing from the shots fired at the group of fleeing persons was excessive in relation to the military advantage […] anticipated.”37 Apparently, the Chamber had forgotten that the incidental loss of civilians would not constitute a war crime in non-international armed conflicts (at least not under the Rome Statute).38 More to the point was the Chamber’s observation that the Lendu and Ngiti, by indiscriminate shooting at fleeing persons “showed scant regard for the fate of the civilians among the soldiers in the melée and knew that their death would occur in the ordinary course of events.”39 Compelled by the criminal law framework of the Rome Statute, Trial Chambers of the ICC have made some progress in discovering the relationship between indiscriminate attack and the requisite mens rea of provisions of the Rome Statute. However, the final findings in the Katanga case reveal that not all complexities have been perceived and clarified. The confusion comes particularly to the fore in the Trial Chamber’s confounding intentional attacks on civilians with intentional attacks causing incidental but foreseeable loss of life amongst civilians, the latter not constituting a war crime in non-international armed conflicts under the Rome Statute.

2.4 Transition from International Humanitarian Law to International Criminal Law The concept of ‘indiscriminate attack’ is of paramount importance in IHL. That makes sense, because it is the very antithesis of the principle of distinction. As was elucidated in the previous sections, indiscriminate attacks may encompass both 35 Ibid. 36 See, for instance, ibid., para 858: “[…] the Chamber notes that the children were killed with machetes and that the nature of this weapon and the necessary proximity it entails with the victim unequivocally show the intentional character of the act.” 37 Katanga, above n 33, para 865. 38 See on this issue also Bartels 2013, pp 296 who acutely observes that the fact that the Rome Statute created separate provisions for intentionally directing an attack against civilians (Article 8(2)(b)(i)) and for intentionally launching a disproportionate attack (Article 8(2)(b)(iv)) in international armed conflicts disallowed the Court to surreptitiously expand the notion of the latter, in order to bring it under the heading of Article 8(2)(e)(i). 39 Katanga, above n 33, para 865.

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direct, ‘malicious’ intent as well as incidental loss of civilian lives. However, the mens rea is secondary; what counts is that the principle of distinction has been flouted. As will be explained in more detail below, mens reae are lumped together and become blurred. Criminal law converts the opaque concept of indiscriminate attack in a clearcut, binary system, which is predicated on knowledge and volition. Civilians are either directly and intentionally attacked, or they are—perhaps to the regret of the attackers—sacrificed to the anticipated military advantage. To be sure, the paradigmatic cases in both distinct crimes do not reveal ‘indiscriminacy’. On the contrary, Article 8(2)(b)(i) of the Rome Statute (in international armed conflicts) and Article 8(2)(e)(i) (in non-international armed conflicts) take for granted that civilians are targeted on purpose. Reversely, Article 8(2)(b)(iv) of the Rome Statute—which has no counterpart in the war crimes provision governing non-international armed conflicts—suggests that the attack is primarily launched against a military target. The provision owes its existence to the Catholic doctrine of ‘double effect’.40 The psychological-social connotation of both (sets of) provisions in the Rome Statute is that of operational control, implying the capability to choose specific targets and to abide by the principle of distinction. Prima facie, the concept of ‘indiscriminate attack’ seems hard to reconcile with the presumption of determined action. It rather connotes either wanton and callous disregard for civilian lives or the incapacity to engage in surgical operations that only target military objects. In the absence of evidence of clear intentions, the criminal law framework of the Rome Statute compels courts to ‘chop up’ indiscriminate attacks in either direct attacks on civilians or the launching of attacks, causing incidental loss of civilian lives that would be clearly excessive to the direct military advantage anticipated. Different from what the Trial Chamber suggested in the Katanga case, the first category would not necessarily be limited to purposeful attacks on civilians. Both Article 8(2)(b)(i) and Article 30(2)(b) of the Rome Statute accommodate the common law concept of oblique intent, in which the perpetrator, though not specifically desiring the outcome, is virtually certain about the consequences of his actions.41 More difficult is the assessment of the precise relationship between indiscriminate attack and incidental loss of civilian lives. The crucial difference between Article 8(2)(b)(i) and Article 8(2)(b)(iv), as indicated before, is the intent on the primary target. Fletcher criticizes the easy assumption that direct attacks on civilians are more blameworthy than intentional attacks on military targets with civilian casualties as side effect, claiming that the sentiment is apparently predicated on an unproven 40 On the doctrine of ‘double effect’ as a source of inspiration for IHL, see Ohlin 2013, pp 116-119.

Ohlin explains how the doctrine was presented by Thomas Aquinas, in order to cope with the moral dilemma of self-defence involving lethal force. The person who acted in self-defence could reason that his intention was on saving his life, while the death of his assaulter was merely foreseen. 41 Rome Statute, above n 10, Article 30(2)(b) defines intent in terms of consequences as the situation that the person means to cause that consequence or is aware that it will occur in the ordinary course of events (emphasis added). The final part reflects oblique intent. In House of Lords (United Kingdom), R. v Woollin, Judgment, 22 July 1998, [1998] 4 All E.R. 103 the House of Lords introduced the ‘virtual certainty’ test. See also Williams 1987.

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difference in the degree of control over the outcome.42 Although I share Fletcher’s criticism on this misapprehension, the true reason for the distinction between the two crimes lies elsewhere, to wit the necessity to fence off criminal excesses from legitimate ‘collateral damage’. The modern law of warfare accepts the incidental loss of civilian lives as a deplorable but inevitable fact of life. It draws the line at the point where the civilian casualties are excessive, compared to the anticipated military interests.43 Article 8(2)(b)(i) and Article 8(2)(b)(iv) do not differ as to the requisite knowledge of prospective civilian losses. After all, the latter (also) requires that the accused has knowledge that the attack will cause incidental loss of life or injury to civilians. According to Article 30(3) of the Rome Statute, knowledge implies that a consequence will occur in the ordinary course of events. Mere recklessness or dolus eventualis would not suffice.44 The military commander who ‘reconciles himself’ with the potential negative outcome that civilians will perish as a consequence of an attack (dolus eventualis), or ‘consciously disregards a substantial and unjustifiable risk’ that civilians will be killed (recklessness) is not guilty of a violation of Article 8(2)(b)(iv).45 The question whether the commander must also have possessed positive knowledge that the loss of civilian lives was ‘clearly disproportionate’ compared with the military advantage is more difficult to answer, as it involves a balancing exercise of interests which has an inherently subjective component. However, in order to weed out too much subjectivism that would make the application of the provision unmanageable, courts tend to gauge the performance of the accused against the actions and judgments that the proverbial ‘reasonable commander’ would take in a similar position.46 An indiscriminate attack can yield useful information that may buttress the evidence against the accused.47 Lack of precautionary measures that are meant 42 Fletcher 2007, p 315. In footnote 50, Fletcher asserts that “everyone seems to think that intention-

ally attacking innocent civilians is worse than doing so as a side effect of a military mission. Compare Rome Statute Article 8(2)(b)(1) with Article 8(2)(b)(4). But the distinction is not adequately theorized in the literature of international criminal law.” 43 As indicated earlier, ICL even raises the bar by requiring that the losses are clearly excessive, see n 14 and accompanying text. 44 Compare Werle and Jessberger 2005, pp 51-55. The authors contend that it is “subject to dispute whether recklessness or dolus eventualis are sufficient to establish criminal responsibility under the provisions of the Statute”, but confirm later on that (unless otherwise provided) “the Statute leaves no room for dolus eventualis or recklessness.” 45 Compare for the definition of recklessness, American Law Institute 1962, § 2.02(2)(c). Fletcher 2007, pp 317-318, footnote 28 acutely points out that dolus eventualis and recklessness are often confused, adding that the former refers to the negative attitude toward causing harm, while the latter puts the emphasis on the knowledge. 46 For a discussion of the assessment by the ‘reasonable commander’ as an appropriate yardstick in case of collateral damage, see Corn 2014, pp 198-200. 47 I am obliged to Rogier Bartels who drew my attention to an observation of Professor Corn who, acting as an expert in the Gotovina case, seems to corroborate this line of reasoning (Bartels 2013, p 298 (footnotes omitted; emphasis added)): In his expert report in the Gotovina case, Corn suggested that the criminal application of the proportionality rule could be compared to the common law concept of implied malice in murder.

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to minimize collateral damage does not only reveal callousness towards the fate of civilians but is also an infringement of IHL.48 Even if the primary objective of an attack is a military target, the forbearance of the principle of distinction is of decisive importance, because it demonstrates that the accused has not paid heed to the value of civilian lives in the first place.

2.5 Final Reflections While they ultimately pursue the same objectives, the perspective and emphasis of IHL and ICL are different. The principle of distinction and the concomitant prohibition of indiscriminate attacks are a direct outgrowth of the protective function of IHL. ICL’s essence is to hold individuals responsible for their actions and if found guilty to punish them. Because the consequences are grave, criminal law enforcement is guided by the principles of legality, strict construction and individual culpability. IHL’s concepts must therefore be translated into more concrete and precise categories of actus reus and mens rea. To put it succinctly: the concept of indiscriminate attacks is not sufficiently discriminate for criminal law purposes. It actually covers a wider array of mens reae, ranging from direct (malicious) intent to kill civilians, via callous disregard for civilian lives, to an intent to target military objects, while knowing that they will demand an excessive toll. The latter category borders on, but probably does not encompass recklessness or dolus eventualis. ICL can thus assist in explaining how the rather elusive concept of indiscriminate attack can be understood in terms of human intents and purposes. In its turn, the determination that an attack is indiscriminate can inform the (international) criminal courts why the waste of civilian lives is clearly excessive to the anticipated military advantage. IHL and (international) criminal law are therefore complementary and mutually beneficial. There is yet another way in which IHL can inspire developments in ICL, in particular the regime applicable in non-international armed conflicts. While Additional Protocol II has no prohibitive provision on disproportionate attacks, the rule has been incorporated in other treaties that are applicable in non-international armed conflicts.49 It is high time that ICL follows suit by Common law allows for the imputation of malice to a defendant who acts without the (express) intent to kill, but whose actions show a wanton disregard for the lives of others as the result of the risk created. Similarly, the proportionality rule attributes an improper purpose to an otherwise lawful attack based on the commander’s disregards for the consequences of the risk created by the attack: the law imputes to the commander (implied) intent to engage in an indiscriminate attack. 48 AP I, above n 4, Articles 57 and 58. 49 See Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, opened for signature 10 April 1981, 1342 UNTS 137 (entered into force 2 December 1983), Articles 3 and 8(c). Compare also Sivakumaran 2012, p 349 who adds that its applicability in non-international armed conflicts is considered a rule of customary international law.

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incorporating the counterpart of Article 8(2)(b)(iv) in sub-paragraph 8(2)(e) of the Rome Statute. There is no good reason why the launching of indiscriminate attacks during international and non-international armed conflicts should produce different outcomes in the realm of ICL. Acknowledgements The author is indebted to Rogier Bartels and Jeroen van den Boogaard for making valuable comments. He also appreciates some of the comments engendered by the anonymous peer review system.

References Articles, Books and Other Documents American Law Institute (1962) Model Penal Code Bartels R (2013) Dealing with the Principle of Proportionality in Armed Conflict in Retrospect: The Application of the Principle in International Criminal Tribunals. Israel Law Review 46(2):271– 315 Corn G (2014) Ensuring Experience Remains the Life of the Law: Incorporating Military Realities into the Process of War Crimes Accountability. The Global Community Yearbook of International Law & Jurisprudence 1:189–211 Fenrick W (2004) The Prosecution of Unlawful Attack Cases before the ICTY. Yearbook of International Humanitarian Law 7:153–189 Fletcher G (2007) The Grammar of Criminal Law: American, Comparative and International. Volume One: Foundations. Oxford University Press, Oxford Green L (2000) The Contemporary Law of Armed Conflict, 2nd edn. Manchester University Press, Manchester International Committee of the Red Cross (1958) Commentary on the Fourth Geneva Convention. Cambridge University Press, Cambridge Ohlin J (2013) Targeting and the Concept of Intent. Michigan Journal of International Law 35(1):79– 130 Schmitt M (2010 The Interpretive Guideline on the Notion of Direct Participation in Hostilities: A Critical Analysis. Harvard National Security Journal 1:5–44 Sivakumaran S (2012) The Law of Non-International Armed Conflict. Oxford University Press, Oxford UN Security Council (1993) Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY), UN Doc. S/25704 (adopted through UN Security Council (1993) Resolution 827 (1993), UN Doc. S/RES/827) UN Security Council (1994) Statute of the International Tribunal for Rwanda, UN Doc. S/RES/995 Van den Boogaard J (2019) Proportionality in International Humanitarian Law; Principle, Rule and Practice. PhD Thesis, University of Amsterdam Werle G, Jessberger F (2005) ‘Unless Otherwise Provided’: Article 30 of the ICC Statute and the Mental Element of Crimes under International Criminal Law. Journal of International Criminal Justice 3(1):35–55 Williams G (1987) Oblique Intention. The Cambridge Law Journal 46(3):417–438 Wuerzner C (2008) Mission impossible? Bringing charges for the crime of attacking civilians or civilian objects before international criminal tribunals. International Review of the Red Cross 90(872):907–930

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Cases House of Lords (United Kingdom), R. v Woollin, Judgment, 22 July 1998, [1998] 4 All E.R. 103 ICC, Prosecutor v Germain Katanga, Judgment Pursuant to Article 74 of the Statute, 7 March 2014, Case No. ICC-01/04-01/07 ICC, Prosecutor v Bosco Ntaganda, Judgment Pursuant to Article 74 of the Statute, 8 July 2019, Case No. ICC-01/04-02/06 ICJ, Legality of the Use by a State of Nuclear Weapons in Armed Conflicts, Advisory Opinion, 8 July 1996, [1996] ICJ Rep 225 ICTY, Prosecutor v Duško Tadi´c, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, Case No. IT-94-1-AR72 ICTY, Prosecutor v Zoran Kupreški´c et al., Judgment, 14 January 2000, Case No. IT-95-16-T ICTY, Prosecutor v Tihomir Blaski´c, Judgment, 3 March 2000, Case No. IT-95-14-T ˇ ICTY, Prosecutor v Dario Kordi´c and Mario Cerkez, Judgment, 26 February 2001, Case No. IT95-14/2 ICTY, Prosecutor v Stanislav Gali´c, Judgment, 5 December 2003, Case No. IT-98-29-T ICTY, Prosecutor v Tihomir Blaski´c, Judgment, 29 July 2004, Case No. IT-95-14-A ICTY, Prosecutor v Pavle Strugar, Judgment, 31 January 2005, Case No. IT-01-42-T ICTY, Prosecutor v Milan Marti´c, Judgment, 12 June 2007, Case No. IT-95-11-T ICTY, Prosecutor v Ante Gotovina, Judgment, 15 April 2011, Case No. IT-06-90-T ICTY, Prosecutor v Ante Gotovina & Mladen Marka´c, Judgment, 16 November 2012, Case No. IT-06-90-A

Treaties Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, opened for signature 16 January 2002, 2178 UNTS 137 (entered into force 12 April 2002) Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, opened for signature 10 April 1981, 1342 UNTS 137 (entered into force 2 December 1983) Geneva Convention (IV) relative to the Protection of Civilian Persons in Times of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), opened for signature 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978) Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), opened for signature 8 June 1977, 1125 UNTS 609 (entered into force 7 December 1978) Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002)

Harmen van der Wilt is Professor of International Criminal Law at the University of Amsterdam, Amsterdam, The Netherlands.

Chapter 3

Double Trouble: The ‘Cumulative Approach’ and the ‘Support-Based Approach’ in the Relationship Between Non-State Armed Groups Marten Zwanenburg

Contents 3.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 Traditional Criteria for the Determination of Whether There Is a Non-international Armed Conflict and Which Actors Are Parties to that Conflict . . . . . . . . . . . . . . . . . . . . . 3.3 Cumulative Approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4 The Support-Based Approach in Non-international Armed Conflicts . . . . . . . . . . . . . . . . 3.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

44 45 47 53 57 59

Abstract This chapter analyzes two approaches to determining whether a noninternational armed conflict exists and who are the parties to such a conflict. These approaches were put forward by the International Committee of the Red Cross in its 2019 Challenges Report. The first is referred to as the ‘cumulative approach’. It consists of aggregating the armed violence in which two or more armed groups that cooperate and coordinate as part of an alliance or coalition are involved for the purpose of assessing the level of intensity of armed violence that is required for the existence of a non-international armed conflict. The chapter submits that this approach deserves broad acceptance. Three adaptations to the approach are however proposed for reasons of logic and to avoid over-application of international humanitarian law. The other approach is referred to as the ‘support-based approach’. Under this approach, an armed group that provides certain support to another armed group that is party to a pre-existing non-international armed conflict becomes a party to that conflict as a consequence of that support. This chapter argues that the application of the support-based approach to armed groups inter se is problematic for a number of reasons and should be rejected. Keywords International humanitarian law · Alliance · Armed groups · Non-international armed conflict · Support · Cooperation M. Zwanenburg (B) Netherlands Defence Academy, Breda, The Netherlands e-mail: [email protected] © t.m.c. asser press and the authors 2021 T. D. Gill et al. (eds.), Yearbook of International Humanitarian Law 2019, Yearbook of International Humanitarian Law 22, https://doi.org/10.1007/978-94-6265-399-3_3

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3.1 Introduction In 2019, the International Committee of the Red Cross (ICRC) published its report on International Humanitarian Law and the Challenges of Contemporary Armed Conflict (Challenges Report).1 Since 2003, it is customary for the ICRC to prepare such a report for International Conferences of the Red Cross and Red Crescent. This fifth report of its kind provided information for the International Conference that took place on 5–7 December 2019. Chapter 4 of the report is devoted to the topic of international humanitarian law (IHL) and non-State armed groups. This chapter notes that a central feature of the changing geopolitical landscape of the last decade has been the proliferation of non-State armed groups.2 In some of the most complex recent conflicts, analysts observed hundreds, if not thousands, of groups engaging in armed violence.3 Chapter 4 of the ICRC Challenges Report discusses some of the legal challenges arising in relation to the evolving operations of non-State armed groups. One of these is the applicability of IHL to ‘alliances’ or ‘coalitions’ of nonState armed groups. In that context, one of the questions discussed is if the level of intensity that is required for the existence of a non-international armed conflict is to be determined by looking at each of the armed groups individually, or whether the intensity of the armed violence in which the armed groups are involved can be aggregated. The ICRC suggests that the latter approach is the better one: “When several organized armed groups display a form of coordination and cooperation, it might be more realistic to examine the intensity criterion collectively by considering the sum of the military actions carried out by all of them fighting together.”4 This refers to a situation in which one of the armed groups concerned is not already a party to a pre-existing armed conflict. It may also be the case that there is such a preexisting non-international armed conflict. With respect to such a situation in which additional groups join forces with groups already engaged in a conflict the report states that [i]n a pre-existing non-international armed conflict in which several organized armed groups are coordinating and collaborating in an alliance or coalition, the nature of the military support provided by the additional group will be key to determining whether that group qualifies as a party to the armed conflict.5

The report does not elaborate further on this statement. It does not set out the legal basis for the approach set forward, nor what its possible advantages and disadvantages are. This chapter aims to provide a more in-depth discussion of the two abovementioned situations described by the ICRC. It will critically analyze the claims that a cumulative approach can be taken to establishing whether the minimum threshold 1 International 2 Ibid.,

p 50.

3 Ibid. 4 Ibid., 5 Ibid.

p 51.

Committee of the Red Cross 2019.

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of intensity of armed violence that is required for the existence of a non-international armed conflict has been met, and that the nature of the military support determines whether an armed group that starts to coordinate and collaborate with one or more other armed groups qualifies as a party to the conflict. To this end, Sect. 3.2 will first set out the traditional criteria for the determination of whether there is a non-international armed conflict and which actors are parties to that conflict. These criteria have primarily been developed by the ad hoc international criminal tribunals, in particular by the International Criminal Tribunal for the former Yugoslavia (ICTY), and subsequently taken up by the International Criminal Court (ICC). In Sect. 3.3, the ‘cumulative approach’ to determining the intensity of armed violence will be analyzed. Section 3.4 will discuss the approach proposed by the ICRC, according to which the nature of the support provided by an additional group to an armed group that is already engaged in a pre-existing non-international armed conflict will determine whether the former qualifies as a party to the armed conflict. The chapter will conclude with some final observations.

3.2 Traditional Criteria for the Determination of Whether There Is a Non-international Armed Conflict and Which Actors Are Parties to that Conflict In the situations described in the ICRC Challenges Report, the question is whether an armed group qualifies as a party to a non-international armed conflict. For an armed group to be able to be a party to a non-international armed conflict, it needs to be determined whether there is such a conflict. As will be seen, these two questions are closely interlinked. For an armed group to be a party to a non-international armed conflict that group must be organized, and such organization is an element that is required for there to be a non-international armed conflict.6 As is well-known, conventional IHL does not contain a definition of a noninternational armed conflict.7 Common Article 3 to the Geneva Conventions8 does not offer such a definition, but merely clarifies what non-international armed conflicts must not be, i.e. international in character.9 The Appeals Chamber of the ICTY in its interlocutory decision on jurisdiction in the Tadi´c case set out a definition, namely that a non-international armed conflict exists when there is “a situation of protracted armed violence between governmental authorities and organized armed groups or

6 Moir

2002, p 36. 2014, p 155. 8 E.g. Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, opened for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950). 9 Moir 2002, p 32. 7 Grignon

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between such groups within a State.”10 This has since become an authoritative statement on the threshold for the existence of a non-international armed conflict.11 This holding reflects two criteria that have become widely accepted as being relevant for determining whether a non-international armed conflict exists.12 The first criterion is that the violence needs to have reached a certain intensity. The second is that the parties must be sufficiently organized. These two criteria are reflected in State practice as well as in the case law of domestic and international courts and tribunals. It is in particular the jurisprudence of the ad hoc international criminal tribunals and the ICC that has further clarified these criteria. With regard to the intensity criterion, they made it clear that the temporal element that is implied by the word “protracted” is but one aspect of intensity.13 In the words of the ICTY Trial Chamber in its judgment in the Haradinaj case: “the criterion of protracted armed violence has been interpreted in practice, including by the Tadi´c Trial Chamber itself, as referring more to the intensity of the armed violence than to its duration.”14 The ICTY has developed a number of factors that can be used to assess the intensity of the violence, including the seriousness of attacks and whether there has been an increase in armed clashes, the spread of clashes over territory and over a period of time, any increase in the number of government forces and mobilisation and the distribution of weapons among both parties to the conflict, as well as whether the conflict has attracted the attention of the United Nations Security Council, and whether any resolutions on the matter have been passed. […] the number of civilians forced to flee from the combat zones; the type of weapons used, in particular the use of heavy weapons, and other military equipment, such as tanks and other heavy vehicles; the blocking or besieging of towns and the heavy shelling of these towns; the extent of destruction and the number of casualties caused by shelling or fighting; the quantity of troops and units deployed; existence and change of front lines between the parties; the occupation of territory, and towns and villages; the deployment of government forces to the crisis area; the closure of roads; fire orders and agreements, and the attempt of representatives from international organisations to broker and enforce cease fire agreements.15

These are merely indicative factors. They need not all be present in a particular case in order to conclude that the intensity requirement has been met.16 The second criterion is that of sufficient organization of the parties. Also with regard to this criterion, international case law has suggested a number of indicators. As with the factors used to establish whether the intensity criterion has been met, these are only “indicative factors, none of which are, in themselves, essential to establish 10 ICTY,

Prosecutor v Duško Tadi´c, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, Case No. IT-94-1-AR72, para 70. 11 Cullen 2010, p 120. 12 See International Committee of the Red Cross 2017, p 162. 13 See below n 40–45 and accompanying text. 14 ICTY, Prosecutor v Ramush Haradinaj et al., Judgment, 3 April 2008, Case No. IT-04-84-T (Haradinaj), para 49. 15 Ibid.; ICTY, Prosecutor v Ljube Boškoski and Johan Tarˇ culovski, Judgment, 10 July 2008, Case No. IT-04-82-T (Boškoski and Tarˇculovski), para 177. 16 International Committee of the Red Cross 2017, p 166.

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whether the ‘organization’ criterion is fulfilled.”17 The factors can be categorized in five groups: (a) the presence of a command structure, (b) the ability to carry out operations in an organized manner, (c) the group’s level of logistics, (d) the group’s “level of discipline and its ability to implement the basic obligations of Common Article 3”, and (e) the group’s ability to speak with one voice.18 Some of the same elements have been applied by the ICC.19 The traditional approach to the above criteria is to assess them in the relationship between each individual entity.20 In a situation in which armed groups are coordinating and collaborating in an alliance or coalition, however, the ICRC report suggests that the intensity criterion must be applied to the cumulative hostilities between the groups that are allied and their opponent, rather than to the hostilities between each individual group and that opponent separately. This approach, which will be referred to as the ‘cumulative approach’ to assessing the intensity of armed violence, will be examined in the next section.

3.3 Cumulative Approach As was remarked above, the two criteria for determining whether there is a noninternational armed conflict are traditionally assessed in terms of the bilateral fighting relationship between each party to the conflict. In other words, if there are two groups on one side and a State on the other side, the assessment is made between each individual group and the State. If such a bilateral approach is applied strictly to the intensity criterion for the existence of a non-international conflict, the consequence is that that criterion must be met for each individual group involved in hostilities.21 The ICRC Challenges Report proposes a less strict application. It states that when several organized armed groups display a form of coordination and cooperation, it might be more realistic to examine the intensity criterion collectively by considering the sum of the military actions carried out by all of them fighting together.22 The reason given by the ICRC for adopting this approach is that it would be unrealistic to expect States to operate under different paradigms—either the law-enforcement or the conduct-of-hostilities paradigm—to respond to the different groups that operate together.23 17 Haradinaj,

above n 14, para 60. 2016, p 7. 19 See, inter alia, ICC, Prosecutor v Jean-Pierre Bemba Gombo, Judgment Pursuant to Article 74 of the Statute, 21 March 2016, Case No. ICC-01/05-01/08 (Bemba), para 134; ICC, Prosecutor v Bosco Ntaganda, Judgment Pursuant to Article 74 of the Statute, 8 July 2019, Case No. ICC-01/04-02/06, para 704. 20 Bradley 2017, p 29. 21 See in this sense Moir 2015, p 406. 22 International Committee of the Red Cross 2019, p 51. 23 Ibid. 18 Rodenhäuser

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The ICRC is not the first to propose such an approach in which the intensity of hostilities between different groups is aggregated. Kleffner has previously argued that there is sound reason for accepting that it may not be appropriate to use this same test for determining the entry of a new party into a pre-existing non-international armed conflict, since the overall level of prevailing violence has already surpassed the required threshold.24 He considers that where a situation of violence in a given area during a given period is characterized by a high fluctuation in the number and strength of organized armed groups, including shifting alliances, hastily assembled coalitions, and their break-up, a bilateral approach runs the risk of defeating the purpose of the law of armed conflict: to ensure a proper balance between considerations of military necessity and humanity. Although like the ICRC he refers to situations in which there is cooperation and coordination between armed groups,25 unlike the ICRC he does not limit the application of the cumulative approach to situations in which there is such cooperation and coordination. Instead, he proposes to limit its application to “complex situations of violence”, giving the situations in the eastern Democratic Republic of the Congo (DRC) and Syria as examples.26 The cumulative approach has not only been discussed in literature and by the ICRC, but it has also been applied in practice. In fact, one possible reading of the ICTY Trial Chamber judgment in the Tadi´c case is that the Chamber already applied the cumulative approach, taking into account the definition of an armed conflict given by the Appeals Chamber in its decision on jurisdiction. In its discussion on the existence of an armed conflict in the sense of common Article 3, the Trial Chamber found that the parties to the conflict in the area of Prijedor and the main parties to the conflict in Bosnia and Herzegovina as a whole were the Government of the Republic of Bosnia and Herzegovina and the Bosnian Serb Forces, the latter supported by or under the command of the Yugoslav National Army.27 The Trial Chamber also recalled however that the Government of Bosnia and Herzegovina was in conflict with various Bosnian Croat forces supported by the Government of Croatia.28 It is true that the Chamber then continued to refer to the “ongoing conflict between the Government of the Republic of Bosnia and Herzegovina and the Bosnian Serb Forces in its entirety” and the “ongoing conflicts […] between the Government of Bosnia and Herzegovina on the one hand, and, on the other hand, the Bosnian Serb forces, elements of the [Armed Forces of Yugoslavia] operating from time to time in the territory of Bosnia and Herzegovina, and various paramilitary groups.”29 Overall, however, there is little indication that the Trial Chamber made a clear distinction between hostilities between different parties for the purpose of establishing whether the intensity criterion had been fulfilled. This is also suggested by the invocation by the Chamber of the fact that the United Nations (UN) Security Council was continuously involved since 24 Kleffner

2019, p 175. refers to “alliances” and “coalitions”. 26 Kleffner 2019, pp 175–176. 27 ICTY, Prosecutor v Duško Tadi´ c, Judgment, 7 May 1997, Case No. IT-94-1-T, para 563. 28 Ibid. 29 Ibid., para 566. 25 He

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the outbreak of fighting in the former Yugoslavia.30 The Chamber referenced two Resolutions of the Security Council in particular, Resolutions 713 (1991) and 757 (1992).31 In both Resolutions, the Council addressed the situation in the former Socialist Federal Republic of Yugoslavia as a whole, not exclusively the conflict between the Government of Bosnia and Herzegovina and the Bosnian Serbs. A less equivocal adoption of the cumulative approach to the intensity criterion can be found in judgments by Trial Chambers of the ICC. Trial Chamber II in its judgment in the Katanga case adopted such a cumulative approach to the intensity criterion in determining whether there was an armed conflict in Ituri, Democratic Republic of Congo, in the period January–May 2003.32 The Chamber found that during that period there was a non-international armed conflict in Ituri between armed groups that included the Ngiti militia and the Union of Congolese Patriots.33 The words “that included” underlines that there were more parties to the conflict than the two explicitly mentioned by the Chamber. The Trial Chamber’s conclusion that a non-international armed conflict existed was based inter alia on its finding that the intensity criterion had been met. In this context, the Trial Chamber found that the armed conflict was both protracted and intense owing, inter alia, to its duration and the volume of attacks perpetrated throughout the territory of Ituri from January 2002 to May 2003. Thus, in the Chamber’s view, the evidence before it suffices to fulfil the intensity of the conflict requirement. It further notes that the United Nations Security Council recognised the existence of this armed conflict and adopted numerous resolutions on the matter. The armed conflict between the aforementioned groups was, as noted immediately above, a protracted armed conflict between organised armed groups and therefore fully meets the criteria of a non-international armed conflict.34

Trial Chamber III of the ICC in its judgment in the Bemba case also adopted the cumulative approach to the intensity requirement. The conflict at issue in that case was fought between the Central African Republic (CAR) governmental authorities, supported by forces including the Movement for the Liberation of the Congo (MLC), an organized armed group, on the one hand, and, on the other, the organized armed group of General Bozizé’s rebels.35 In assessing whether the hostilities met the requisite intensity threshold, the Trial Chamber considered that the armed conflict commenced with hostilities between General Bozizé’s rebels and the forces supporting President Patassé. President Patassé’s forces responded with a bombing campaign against General Bozizé’s rebels, before the phased deployment of MLC troops to the CAR, in support of President Patassé, beginning on 26 October 2002. More MLC reinforcements were sent to the CAR in late January or early February 2003. Throughout the armed conflict, the forces supporting President Patassé, including the MLC, mobilised 30 Ibid.,

para 567. Security Council (1991) Resolution 713 (1991), UN Doc. S/RES/713; UN Security Council (1992) Resolution 757 (1992), UN Doc. S/RES/757. 32 ICC, Prosecutor v Germain Katanga, Judgment Pursuant to Article 74 of the Statute, 7 March 2014, Case No. ICC-01/04-01/07, para 1196. 33 Ibid., para 1229. 34 Ibid., paras 1217–1218. 35 Bemba, above n 19, para 661. 31 UN

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The above makes clear that there is some support for the cumulative approach in, at a minimum, the case law of the ICC and possibly the ICTY. This case law does not provide clear indications concerning the situations in which the approach may be applied, however. To recall, the ICRC has proposed that it can be used when organized armed groups display a form of coordination and cooperation. Kleffner links its application to “complex situations of violence.” Although situations in which organized armed groups cooperate and coordinate will often constitute complex situations of violence, the two are not coterminous. It is no exaggeration to qualify the situations in the former Yugoslavia with which the ICTY was concerned in the Tadi´c case and the situation in eastern DRC and the CAR with which the ICC Trial Chambers were concerned in Katanga and Bemba as complex situations of violence. Out of these three situations, only in eastern DRC was there a case of armed groups cooperating and coordinating. However, if cooperation and coordination between government forces and armed groups is also taken into account, the situations in Bosnia and Herzegovina and the CAR are also included. One possible way to apply the cumulative approach is to allow its application to all low-intensity situations that have arisen among multiple armed groups on a single territory.37 Kleffner has warned against such a broad application. In his view, the approach entails significant risks if applied in such a broad manner. Taken to its extreme, he argues, such an approach could be misunderstood to allow for the determination that a NIAC has come into existence because sporadic acts of violence of one or several organized armed groups that occur over an extended period of time and across a wide geographical area satisfy the requisite level of intensity.38 The outcome in this example seems due to a lowering of the intensity required, however, rather than to the application of the cumulative approach. Nevertheless, a very broad application of that approach may have the undesirable effect of bringing too broad a range of situations within the scope of IHL. It is true that the ICRC commentary to Common Article 3 encourages a broad application of IHL, suggesting that this would strengthen protection. It states that “[w]e think, on the contrary, that the scope of application of the Article must be as wide as possible.”39 This exhortation was however made before the adoption of the major human rights instruments. In the present situation, the application of IHL might actually weaken protection of individuals, by opening the way to arguments that IHL displaces human rights protections. Another possible position is to limit the application of the cumulative approach to situations of complex violence as proposed by Kleffner. His position is that the 36 Ibid.,

para 662. discusses such an approach, but calls it speculative. Bradley 2017 p 33. 38 Kleffner 2019, pp 176–177. 39 Pictet 1960, p 36. 37 Bradley

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approach is only to be applied in complex situations where acts of violence by several organized armed groups occur on a geographical and temporal continuum. The advantage of this position is that it prevents an over-application of IHL by restricting the scope of application of the cumulative approach. This approach also has drawbacks however. One is that it is unclear what is to be understood by a ‘complex situation of violence’. Is the defining characteristic of such a situation that there is a multitude of actors involved? And if so, what is the minimum number of actors required? Or is it that the relationship between these actors is not stable, because old alliances fall apart and new ones are forged? Until a definition of ‘complex situation of violence’ is available, the exact parameters for applying the cumulative approach remain unclear, making it difficult to apply in practice. A second issue with this position is that it is linked to acts of violence that occur on a temporal continuum. The temporal element however seems to be an element that already plays a role in determining whether the intensity criterion itself is met.40 It is true that although the word “protracted” as used by the Appeals Chamber in Tadi´c has in subsequent case law of the ICTY and other international tribunals been understood as referring to the intensity of armed violence.41 Although the word “protracted” could be understood as referring to the duration of acts of violence, intensity has generally not been defined as limited to the temporal dimension of armed violence.42 ICTY Chambers developed a number of factors that are to be taken into account to assess the intensity of conflict. This does not mean however that the duration of violence is not important in that assessment. On the contrary, the spread of clashes over territory and over a period of time is one of the factors referred to by those Chambers.43 The ICTY Trial Chamber in Boškoski was more demanding, holding that [t]he element of “protracted” armed violence in the definition of internal armed conflict has not received much explicit attention in the jurisprudence of the Tribunal. It adds a temporal element to the definition of armed conflict.44

The requirement of protraction was also included in the definition of noninternational armed conflict included in the Rome Statute of the ICC. Article 8(2)(f) of the Statute refers to “armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups.”45 The question has been raised whether

40 But

see Grignon 2014, p 159 for a critical assessment of such a requirement. e.g., Haradinaj, above n 14, para 392. 42 Sivakumaran 2014, p 167. 43 Haradinaj, above n 14, para 394. 44 Boškoski and Tarˇ culovski, above n 15, para 175. 45 Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002), Article 8(2)(f). 41 See,

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the reference to “protracted armed conflict” introduced a new category of (noninternational) armed conflict.46 The better view however is that this is a reference to the term “protracted violence” as used by the ICTY Appeals Chamber in Tadi´c.47 The requirement of “acts of violence that take place on a temporal continuum” is thus already part of the intensity criterion itself. It should not be understated.48 There is thus limited room to use it as a factor to further delimit situations in which that criterion has been met. Another way of limiting the situations in which the cumulative approach is permissible is the one proposed by the ICRC. To recall, the ICRC has suggested that the approach is in order when several organized armed groups display a form of coordination and cooperation. This position is preferable to the aforementioned positions. It provides a way of preventing the over-application of IHL, but without largely duplicating one of the factors involved in assessing the intensity of armed violence. The cooperation and coordination between parties provides a logical rationale for applying the cumulative approach. This is because such cooperation and coordination establish a link between the parties concerned. This link is not necessarily strong enough to lead the parties concerned to become one single party.49 But the link does create a connection between the two that is strong enough to justify connecting the acts of violence that the two are involved in against another party. It is submitted however that three adaptations to the ICRC position are required for that position to be accepted. The first is that instead of cooperation and coordination, cooperation or coordination is sufficient to apply the cumulative approach. The dictionary meaning of cooperation and coordination does not express a clear difference between the two.50 In common parlance however “cooperation” is normally used to refer to two or more persons or entities actually undertaking common activities, whereas “coordination” refers to a situation in which there are no common activities but there is an understanding between two or more persons or entities on when, where or how they will carry out activities individually. An example of cooperation in the context of armed groups is the provision of arms by one group to another, making plans together or carrying out an attack on a common opponent together. An example of coordination is where one group informs another group that it will carry out an attack in a certain place at a certain time, which the latter can take into account in its own plans. Cooperation implies a stronger link between two entities, because it entails common activities. For this reason, it is not logical that if the stronger link between two armed groups is present—i.e. cooperation—a second, weaker link should also have to be present. It is submitted that coordination without cooperation is also sufficient to 46 Schabas

2007, p 116. and McCormack 2016, pp 60–61; Cullen 2010, pp 174–185. 48 Sivakumaran 2014, p 168. 49 On the criteria for two armed groups merging into one, see, e.g., Rodenhäuser 2016. 50 According to the Oxford English Dictionary ‘cooperate’ means “work together to achieve something”, and ‘coordinate’ means “bring together different elements of a complex activity or organization into an efficient relationship”. Waite 2012. 47 Dwyer

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apply the cumulative approach.51 Although it is weaker, there is still a link between the two armed groups that justifies also establishing a link between the hostilities in which each is involved. Secondly, the approach as presented by the ICRC on its face would allow the cumulative approach to be used when two armed groups are cooperating and coordinating, and one of the groups is not involved in hostilities at all. As long as the other armed group is engaged in armed violence that crosses the threshold of minimum intensity required for a non-international armed conflict, both groups would be parties to a non-international armed conflict. It is submitted that this would stretch the scope of application of IHL too far. It is also difficult to reconcile with the ‘support-based approach’ proposed by the ICRC and discussed below. It is true that under that theory, an armed group can become party to a non-international armed conflict without itself firing a shot. However, that theory is limited to situations where the support is for an entity that is party to a pre-existing armed conflict. In addition, it requires a particular kind of support, which is more specific than “coordination and cooperation”. To avoid over-application of IHL, it is submitted that there must be at least some armed violence between each armed group and their common opponent. The third point is that there is no reason to limit the application of the cumulative approach to armed groups inter se. The approach can equally be applied to armed groups that cooperate or coordinate with States. As became clear above, the ICC Trial Chamber in the Bemba case applied the approach to a situation in which an armed group opposed a State that was cooperating with another armed group.52

3.4 The Support-Based Approach in Non-international Armed Conflicts The ICRC Challenges Report also addresses the situation in which additional groups join forces with groups already engaged in a conflict. With respect to this kind of situation, the ICRC considers that [i]n a pre-existing non-international armed conflict in which several organized armed groups are coordinating and collaborating in an alliance or coalition, the nature of the military support provided by the additional group will be key to determining whether that group qualifies as a party to the armed conflict.53

Although the report does not elaborate further, the reference to military support as determinative of qualification as party to an armed conflict implies that the ICRC is applying the so-called ‘support-based approach’. This ‘support-based approach’ was put forward by the ICRC in its report on IHL challenges to the 2015 International

51 But

see Tahzib-Lie and Swaak-Goldman 2004, p 252. above n 19, para 661. 53 International Committee of the Red Cross 2019, p 51. 52 Bemba,

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Conference.54 In that report, its application was limited to the situation in which multinational forces become involved in a pre-existing non-international armed conflict. Under this approach, for multinational forces to become a party to such a pre-existing conflict, they do not have to meet the intensity criterion. According to the ICRC, it is not necessary to assess whether, on their own, the actions of multinational forces fulfil the criteria for determining the existence of a non-international armed conflict, as these will already have been fulfilled by the pre-existing non-international conflict. Rather, it is the nature of the support functions performed by the multinational forces that determines whether they become party to the armed conflict. The ICRC describes the conditions that need to be cumulatively met for the support-based theory to apply as follows: (1) there is a pre-existing NIAC taking place on the territory in which multinational forces are called to intervene; (2) actions related to the conduct of hostilities are undertaken by multinational forces in the context of the pre-existing conflict; (3) the military operations of multinational forces are carried out in support of a party to the pre-existing conflict; and (4) the action in question is undertaken pursuant to an official decision by the troopcontributing country or the relevant organization to support a party involved in the pre-existing conflict.55 Not every form of support is sufficient to meet the second requirement. The decisive element would be the contribution made by such forces to the collective conduct of hostilities. A clear distinction is made between the provision of support that has a direct impact on the opposing party’s ability to carry out military operations and more indirect forms of support, which would allow the beneficiary to build up its military capabilities.56 According to Ferraro, who is the intellectual author of the theory, examples of support that would fall in the former category are transporting the supported State’s armed forces to the front line or providing planes for refueling jet fighters involved in aerial operations carried out by the supported State.57 The support-based approach as proposed in the context of multinational forces has received criticism.58 It has been pointed out that the theory completely lacks any basis in law.59 There is no IHL treaty law that provides a basis for it. Neither is there practice of States or international organizations that underlies it. The deputy legal advisor of the UN has written that there are reservations to this approach.60 In conclusion, at best, it is unsettled whether it reflects lex lata.61 The updated ICRC 54 International

Committee of the Red Cross 2015, pp 22–23. p 23. 56 Ibid., pp 22–23. 57 Ferraro 2013, p 585. 58 Zwanenburg 2014; Khalil 2014. 59 Gill 2019. 60 Mathias 2017, p 7. 61 Gill et al. 2017, p 95. 55 Ibid.,

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Commentary to the second Geneva Convention, in what can only be said to be an understatement, states that “[s]ome concerns about this approach have nevertheless been expressed.”62 Having proposed the application of the support-based approach to situations in which multinational forces support a State in a non-international armed conflict, the ICRC now also advocates applying the approach in situations in which one armed group supports another armed group. This is not without further difficulties. First, as was established above, there is simply no basis in existing IHL for this approach, let alone its extension to the situation in which one armed group supports another armed group without itself using armed violence. The ICRC has not pointed to any practice supporting this approach. Even if there was such practice between armed groups, the question how such practice could contribute to the formation of a rule of customary international law is problematic. It is a widely-held view that only practice of States and, in some situations of international organizations, is relevant to the formation of customary international law. Conduct of other actors, including armed groups, is not practice that contributes to the formation of such law.63 This is confirmed in the Draft conclusions on the identification of customary international law that were adopted by the International Law Commission in 2018.64 The ICRC report does not explain why the ICRC considers the approach should be used. It has been argued elsewhere that it simply establishes a link between IHL and certain types of action undertaken by multinational forces in support of a party to a pre-existing NIAC, and draws the legal consequences of this connection in terms of IHL applicability.65 It has been argued above that a connection between two armed groups in the sense that they are cooperating or coordinating allows for a cumulative approach to determining whether the intensity criterion for establishing the existence of a non-international armed conflict has been met. It was however also argued that an entire lack of armed violence being perpetrated by one of the armed groups would not be sufficient to justify such a cumulative approach. If the support-based approach would be applied to armed groups inter se, this would have the same result. It has also been suggested that the support-based approach provides extra protection due to its broadening of the scope of application of IHL.66 A general objective of the ICRC is to ensure better protection for persons affected by armed conflict. A broad scope of application would help achieve such protection by making IHL applicable. It is argued by some that ‘support-based-approach’ also pursues this objective, especially for direct attacks committed by States (or international organizations).67

62 International

Committee of the Red Cross 2017, p 171. e.g., Kleczkowska 2019. For a contrary view, see Fortin 2017, p 383. 64 See Conclusion 4(3) of the International Law Commission Conclusions on the Identification of Customary International Law (International Law Commission 2018). 65 Ferraro 2013, p 584. 66 Van Steenberghe and Lesaffre 2019. 67 Ibid. 63 See,

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It is suggested that under the classical view, international human rights law would not be applicable to such attacks because the effective control requirement, which is a prerequisite condition for the applicability of human rights instruments, is not met.68 This may be a relevant argument in the case of multinational forces operating extraterritorially, due to the controversy over the question when human rights obligations of States contributing troops to such forces apply beyond the territory of those States.69 It is however much less relevant, if not irrelevant, in the case in which one armed group supports another group fighting against a State on that State’s own territory. States generally have obligations vis-à-vis persons who find themselves within that the State’s jurisdiction. Human rights bodies have found that jurisdiction is presumed to be exercised normally throughout the State’s territory.70 This presumption may be limited, but only in exceptional circumstances, particularly where a State is prevented from exercising its authority in part of its territory.71 In a situation of non-international armed conflict, a State may be prevented from exercising its jurisdiction, but this need not be the case. Even if that is the case, in such a situation, human rights monitoring bodies have held that a State does not cease to have jurisdiction.72 In the words of the Grand Chamber of the European Court of Human Rights in its judgment in Sargsyan v Azerbaijan: Even in exceptional circumstances, when a State is prevented from exercising authority over part of its territory, due to military occupation by the armed forces of another State, acts of war or rebellion or the installation of a separatist regime within its territory, it does not cease to have jurisdiction within the meaning of Article 1 of the [European Convention on Human Rights].73

Obligations remain even where the exercise of the State’s authority is limited in part of its territory, so that it has a duty to take all the appropriate measures which it is still within its power to take.74 Expanding the scope of application of IHL, and thereby the room for arguing that less protective IHL rules apply as lex specialis instead of human rights rules, therefore may actually lessen the protection afforded to persons. 68 Ibid. 69 See,

e.g., Gill et al. 2017, pp 76–90.

70 ECtHR, Assanidze v Georgia, Grand Chamber Judgment, 8 April 2004, Application No. 71503/01,

para 139. 71 ECtHR, Ila¸scu and Others v Moldova and Russia, Grand Chamber Judgment, 8 July 2004, Application No. 48787/99 (Ila¸scu), para 312. 72 See, inter alia, Yudkivska 2019; Milanovic and Papic 2019. 73 ECtHR, Sargsyan v Azerbaijan, Grand Chamber Judgment, 16 June 2015, Application No. 40167/06, para 130. 74 Ila¸scu, above n 71, para 313; ECtHR, Catan and Others v the Republic of Moldova and Russia, Grand Chamber Judgment, 19 October 2012, Application Nos. 43370/04, 8252/05, 18454/06, para 109.

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If the objective of the support-based approach is to ensure that support to a party to an armed conflict is not without consequences, the theory is not necessary to achieve that objective. Individuals providing the type of support implicated by the supportbased approach to an armed group that is a party to a pre-existing armed conflict would most likely qualify as directly participating in hostilities.75 As a consequence, those individuals would lose their protection from direct attack for such time as they were carrying out this support. It has been argued that the ICRC’s support-based approach offers greater protection to civilians because it would make the whole law of non-international armed conflict applicable to the intervening power as such, thus extending the applicable law beyond the mere IHL rules to which the member of its armed forces, as an individual, would have to abide by when carrying an act of hostility.76 It is not immediately clear however why support being provided by individuals belonging to an armed group should have the consequence that that entire group becomes a party to an armed conflict. This would also arguably not enhance protection, since it would make an entire group of individuals lose the protection from direct attack that they previously enjoyed.77

3.5 Conclusion Non-international armed conflicts are nowadays by far the most common form of armed conflict. In many cases, such conflicts involve a multitude of armed groups, often forming alliances and coalitions with other armed groups or governmental forces for shorter or longer periods. The situation in Syria is a notable example, but certainly not the only one.78 Such conflicts raise questions concerning their legal qualification, in particular regarding who qualifies as a party so such a conflict. This chapter has discussed two approaches relating to such questions that were advanced by the ICRC in its 2019 Challenges Report. The first is the ‘cumulative approach’ to assessing the intensity of armed violence for the purpose of establishing the existence of a non-international armed conflict. The second is the ‘supportbased approach’ to determining whether an organized armed group that is supporting another armed group has become a party to the armed conflict. The ‘cumulative approach’ is relevant in a situation involving two or more armed groups in which none of them is a party to a pre-existing conflict. Under this approach, the violence in which different groups are involved with a common opponent can be aggregated for the purpose of determining whether the requisite level of intensity required for the existence of a non-international armed conflict exists. It was found that this approach has been proposed previously in the literature, and has been applied by Trial Chambers of the ICC. An open question is in which cases it is appropriate to 75 Gill

2019. Steenberghe and Lesaffre 2019. 77 Gill 2019. 78 For a discussion of the qualification of the armed conflict in Syria, see, e.g., Gill 2016. 76 Van

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apply this approach. In the view of the ICRC, this is when several organized armed groups display a form of coordination and cooperation. It is submitted that this is in principle an appropriate limitation, because the link that is created between two armed groups by coordination and cooperation is strong enough to justify connecting the acts of violence that the two are involved in against another party. Three adaptations to the approach were however proposed to the approach as proposed by the ICRC, for reasons of logic and avoiding over-application of IHL. The first is that instead of cooperation and coordination, cooperation or coordination is sufficient to apply the cumulative approach. Second, there must be at least some armed violence between each armed group and their common opponent. Finally, there is no reason to limit the application of the cumulative approach to armed groups inter se. The approach can equally be applied to armed groups that cooperate or coordinate with States. The ‘support-based approach’ is relevant in a situation involving two or more armed groups one of which is party to a pre-existing non-international armed conflict. Under this approach, a group providing a particular kind of support to another armed group that is party to a pre-existing armed conflict becomes a party to that armed conflict even if that group does not commit any act of violence. The approach was originally developed by the ICRC in the context of multinational forces supporting a State involved in a non-international armed conflict. The ICRC now proposes to also use it in the context of one armed group supporting another armed group. This is problematic for a number of reasons. First, there is no legal basis for such an approach either in conventional IHL or customary international law. Second, if the theory is intended to strengthen protection, it is questionable whether this objective is achieved. Third, if the objective is to ensure that support to a party to an armed conflict is not without consequences, it is not necessary. The two approaches advanced in the ICRC 2019 Challenges Report discussed in this chapter constitute interpretations of IHL. The ICRC frequently puts forward such interpretations of IHL, which it sees as part of its role “to work for the understanding and dissemination of knowledge of international humanitarian law” and for its “faithful application.”79 This is done through various means, including but not limited to the publication of policy documents, making public statements, and organizing conferences.80 Another example is the publication of (updated) commentaries to the four Geneva Conventions of 1949.81 The quadrennial Challenges Reports submitted to the International Conference are yet another means. In theory, interpretations included in those reports provide material for substantive discussions during the conference. Although it is questionable that this result is achieved, in a broader sense they contribute to the discourse on the interpretation of IHL and, if accepted, to the clarification or development of IHL.82 79 International

Conference of the Red Cross 2006, Articles 5(2)(c) and (g). generally, Dörmann 2018, pp 717–724; Geiss and Zimmermann 2017. 81 On the updated commentary to the First Geneva Convention, see Cameron et al. 2015. 82 The skepticism that the reports lead to much substantive debate during the International Conferences is based on the author’s experience during several of the International Conferences. 80 See,

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Interpretations of IHL put forward by the ICRC often imply a broad scope of application of IHL or particular protective rules thereof. This is not a coincidence: It is a long-standing view of the ICRC that the scope of application of IHL should be interpreted broadly. This also applies to the two interpretations discussed in this chapter. Both have the result of lowering the threshold for the applicability of IHL. Although the objective of the ICRC to strengthen protection is understandable given its mandate, this in itself is not a reason to accept these interpretations. With respect to the two interpretations analyzed in this chapter, it is submitted that the cumulative approach to the assessment of the intensity criterion deserves broad acceptance. The application of the support-based approach to armed groups inter se on the other hand is problematic for a number of reasons and should be rejected.

References Articles, Books and Other Documents Bradley M (2017) Revisiting the Notion of ‘Intensity’ Inherent in Common Article 3: An Examination of the Minimum Threshold Which Satisfies the Notion of ‘Intensity’ and a Discussion of the Possibility of Applying a Method of Cumulative Assessment. International and Comparative Law Review 17(2):7–38 Cameron L, Demeyere B, Henckaerts J-M, La Haye E, Niebergall-Lackner H (2015) The updated commentary on the First Geneva Convention – a new tool for generating respect for international humanitarian law. International Review of the Red Cross 97(900):1209–1226 Cullen A (2010) The Concept of Non-International Armed Conflict in International Humanitarian Law. Cambridge University Press, Cambridge Dörmann K (2018) The Role of Nonstate Entities in Developing and Promoting International Humanitarian Law. Vanderbilt Journal of Transnational Law 51:713–726 Dwyer C, McCormack T (2016) Conflict Characterisation. In: Liivoja R, McCormack T (eds) Routledge Handbook of the Law of Armed Conflict. Routledge, London, pp 59–79 Ferraro T (2013) The applicability and application of international humanitarian law to multinational forces. International Review of the Red Cross 95(891/892):561–612 Fortin K (2017) The Accountability of Armed Groups under Human Rights Law. Oxford University Press, Oxford Geiss R, Zimmermann A (2017) The International Committee of the Red Cross: A Unique Actor in the Field of International Humanitarian Law Creation and Progressive Development. In: Geiss R, Zimmermann A, Haumer S (eds) Humanizing the Laws of War: The Red Cross and the Development of International Humanitarian Law. Cambridge University Press, Cambridge, pp 215–255 Gill T (2016) Classifying the Conflict in Syria. International Law Studies 92:353–380 Gill T (2019) Some thoughts on the ICRC Support Based Approach. Questions of International Law. http://www.qil-qdi.org/some-thoughts-on-the-icrc-support-based-approach/. Accessed 14 February 2020 Gill T, Fleck D, Boothby B, Vanheusden A (2017) Leuven Manual on the International Law Applicable to Peace Operations. Cambridge University Press, Cambridge Grignon J (2014) The beginning of application of international humanitarian law: A discussion of a few challenges. International Review of the Red Cross 96(893):139–162

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International Committee of the Red Cross (2015) International Humanitarian Law and the Challenges of Contemporary Armed Conflicts. 32nd International Conference of the Red Cross and Red Crescent. https://www.icrc.org/en/document/international-humanitarian-law-and-challe nges-contemporary-armed-conflicts. Accessed 19 February 2020 International Committee of the Red Cross (2017) Commentary on the Second Geneva Convention. Cambridge University Press, Cambridge International Committee of the Red Cross (2019) International Humanitarian Law and the Challenges of Contemporary Armed Conflicts: Recommitting to Protection in Armed Conflict on the 70th Anniversary of the Geneva Conventions. 33rd International Conference of the Red Cross and Red Crescent. https://rcrcconference.org/app/uploads/2019/10/33IC-IHL-Challengesreport_EN.pdf. Accessed 5 November 2019 International Conference of the Red Cross (2006) Statutes of the International Red Cross and Red Crescent Movement (adopted by the 25th International Conference of the Red Cross at Geneva in 1986, amended in 19951 and 2006). https://www.icrc.org/en/doc/assets/files/other/statutes-ena5.pdf. Accessed 17 February 2020 International Law Commission (2018) Identification of Customary International Law. In: UN General Assembly, Report of the International Law Commission, Seventieth Session (30 April–1 June and 2 July–10 August 2018), UN Doc. A/73/10, pp 117–156 Khalil M (2014) Remarks by Mona Khalil. Proceedings of the Meeting of the American Society of International Law 108:152–154 Kleczkowska A (2019) Searching for Armed Non-state Actors’ Role in the Process of Formation of Customary Law. International and Comparative Law Review 19(2):97–115 Kleffner J (2019) The Legal Fog of an Illusion: Three Reflections on “Organization” and “Intensity” as Criteria for the Temporal Scope of the Law of Non-International Armed Conflict. International Law Studies 95:161–178 Mathias S (2017) UN Peacekeeping Today: Legal Challenges and Uncertainties. Melbourne Journal of International Law 18(2):1–16 Milanovic M, Papic T (2019) The Applicability of the ECHR in Contested Territories. International and Comparative Quarterly 67(4):779–800 Moir L (2002) The Law of Internal Armed Conflict. Cambridge University Press, Cambridge Moir L (2015) The Concept of Non-International Armed Conflict. In: Clapham A, Gaeta P, Sassòli M (eds) The Geneva Conventions of 1949: A Commentary. Oxford University Press, Oxford, pp 391–414 Pictet J (1960) The Geneva Conventions of 12 August 1949. Commentary, Volume III: Third Convention relative to the Treatment of Prisoners of War. ICRC, Geneva Rodenhäuser T (2016) Armed Groups, Rebel Coalitions, and Transnational Groups: The Degree of Organization Required from Non-State Armed Groups to Become Party to a Non-International Armed Conflict. Yearbook of International Humanitarian Law 19:3–25 Schabas W (2007) An Introduction to the International Criminal Court, 3rd edn. Cambridge University Press, Cambridge Sivakumaran S (2014) The Law of Non-International Armed Conflict. Oxford University Press, Oxford Tahzib-Lie B, Swaak-Goldman O (2004) Determining the Threshold for the Application of International Humanitarian Law. In: Lijnzaad E, van Sambeek J, Tahzib-Lie B (eds) Making the Voice of Humanity Heard: Essays on Humanitarian Assistance and International Humanitarian Law in Honour of HRH Princess Margriet of the Netherlands. Martinus Nijhoff Publishers, Leiden/Boston pp 239–254 UN Security Council (1991) Resolution 713 (1991), UN Doc. S/RES/713 UN Security Council (1992) Resolution 757 (1992), UN Doc. S/RES/757 Van Steenberghe R, Lesaffre R (2019) The ICRC’s ‘support-based approach’: A suitable but incomplete theory. Questions of International Law. http://www.qil-qdi.org/the-icrcs-support-based-app roach-a-suitable-but-incomplete-theory/. Accessed 5 November 2019 Waite M (2012) Paperback Oxford English Dictionary. Oxford University Press, Oxford

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Yudkivska G (2019) Territorial Jurisdiction and Positive Obligations of an Occupied State: Some Reflections on Evolving Issues under Article 1 of the Convention. In: van Aaken A, Motoc I (eds) The European Convention on Human Rights and General International law. Oxford University Press, Oxford, pp 135–151 Zwanenburg M (2014) Remarks by Marten Zwanenburg. Proceedings of the Meeting of the American Society of International Law 108:151–152

Cases ECtHR, Assanidze v Georgia, Grand Chamber Judgment, 8 April 2004, Application No. 71503/01 ECtHR, Ila¸scu and Others v Moldova and Russia, Grand Chamber Judgment, 8 July 2004, Application No. 48787/99 ECtHR, Catan and Others v the Republic of Moldova and Russia, Grand Chamber Judgment, 19 October 2012, Application Nos. 43370/04, 8252/05, 18454/06 ECtHR, Sargsyan v Azerbaijan, Grand Chamber Judgment, 16 June 2015, Application No. 40167/06 ICC, Prosecutor v Germain Katanga, Judgment Pursuant to Article 74 of the Statute, 7 March 2014, Case No. ICC-01/04–01/07 ICC, Prosecutor v Jean-Pierre Bemba Gombo, Judgment Pursuant to Article 74 of the Statute, 21 March 2016, Case No. ICC-01/05-01/08 ICC, Prosecutor v Bosco Ntaganda, Judgment Pursuant to Article 74 of the Statute, 8 July 2019, Case No. ICC-01/04-02/06 ICTY, Prosecutor v Duško Tadi´c, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, Case No. IT-94-1-AR72 ICTY, Prosecutor v Duško Tadi´c, Judgment, 7 May 1997, Case No. IT-94-1-T ICTY, Prosecutor v Ramush Haradinaj et al. Judgment, 3 April 2008, Case No. IT-04-84-T ICTY, Prosecutor v Ljube Boškoski and Johan Tarˇculovski, Judgment, 10 July 2008, Case No. IT-04-82-T

Treaties Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, opened for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950) Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002)

Marten Zwanenburg is Professor of Military Law at the Netherlands Defence Academy, Breda, The Netherlands.

Chapter 4

The Rebel with the Magnifying Glass: Armed Non-State Actors, the Right to Life and the Requirement to Investigate in Armed Conflict Joshua Joseph Niyo

Contents 4.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2 The Right to Life in Non-International Armed Conflict: Legal Frameworks and Paradigms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3 Finding the Perfect Balance: The Conduct of Hostilities Paradigm and the Law Enforcement Paradigm in Non-International Armed Conflicts . . . . . . . . . . . . . . . . . . . . . 4.3.1 Employing Lethal Force During Non-International Armed Conflicts Under the Conduct of Hostilities Paradigm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.2 Armed Non-State Actors and the Use of Lethal Force in International Humanitarian Law During Non-International Armed Conflicts . . . . . . . . . . . . . . 4.3.3 Influence of International Human Rights Law and the Law Enforcement Paradigm on Armed Non-State Actors in Non-International Armed Conflicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4 Deceptive Narratives? Addressing Concerns on Obligations of Armed Non-State Actors, International Humanitarian Law of Non-International Armed Conflicts, and the Conduct of Hostilities Paradigmatic Framework . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4.1 Obligations of Armed Non-State Actors Under International Humanitarian Law and International Human Rights Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4.2 Equality of Parties in International Humanitarian Law and the Obligations of Armed Non-State Actors on the Protection of Life . . . . . . . . . . . . . . . . . . . . . . 4.4.3 Questioning the Extension of the Conduct of Hostilities Paradigm into Non-International Armed Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.5 The Requirement for Armed Non-State Actors to Investigate the Loss of Life During Non-International Armed Conflicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.5.1 Armed Non-State Actors and Investigating Loss of Life: The Rationale . . . . . . . 4.5.2 Implied Obligation for Armed Non-State Actors to Investigate Loss of Life . . . . . 4.5.3 The Nature of Armed Non-State Actors Investigations under International Humanitarian Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

64 67 69 69 70

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73 74 77 79 81 81 87 91

J. J. Niyo (B) Graduate Institute of International and Development Studies, Geneva, Switzerland e-mail: [email protected] Geneva Academy of International Humanitarian Law and Human Rights, Geneva, Switzerland Faculty of Law, Uganda Christian University, Mukono, Uganda © t.m.c. asser press and the authors 2021 T. D. Gill et al. (eds.), Yearbook of International Humanitarian Law 2019, Yearbook of International Humanitarian Law 22, https://doi.org/10.1007/978-94-6265-399-3_4

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4.6 International Human Rights Law Application in the Investigation of Loss of Life by Armed Non-State Actors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.6.1 International Human Rights Law’s Enforcement Paradigm and the Investigation of Loss of Life . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.6.2 Fulfilling the Requirement for an Effective Investigation of the Loss of Life by Armed Non-State Actors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.7 Conclusive Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

93 94 95 100 101

Abstract Seventy years on from the promulgation of the 1949 Geneva Conventions, the protection of the right to life remains a central theme in the context of armed conflict. Particularly, Common Article 3 of the Conventions has been a pivotal gateway into the regulation of the conduct of armed non-State actors during military operations. Furthermore, the increasing prosecutions of their members for war crimes has prompted the requirement for them to review their own behaviour, especially with regard to alleged unlawful killings during military operations. This chapter, therefore, analyses the scope of the legal obligations of armed non-State actors with regard to the protection of the right to life in armed conflict, and it explores the existence and application of an obligation for these actors to investigate credible allegations of the unlawful loss of life, arising from their military conduct during non-international armed conflicts. As armed non-State actors can be considered to bear obligations under both international humanitarian law and human rights law, the chapter explores whether there exists an obligation to investigate under the international humanitarian law framework, as well as the impact of the international human rights law framework on the possible investigative obligation of armed non-State actors. Keywords Right to life · Obligation to investigate · International humanitarian law · International human rights law · Armed non-State actors · Non-international armed conflict · Conduct of hostilities · Law enforcement · Lethal force · Effective investigation

4.1 Introduction Reflecting on 70 years of the 1949 Geneva Conventions, one would agree that the bold step taken with the introduction of Article 3 Common to the Conventions (CA 3),1 has since been vindicated. The insertion of what was considered at the onset a convention

1 See,

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

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in miniature,2 CA 3 has taken a life of its own, and emerged as a pivotal legal framework for governing broad categories of non-international armed conflicts (NIACs).3 In formally introducing this category of armed conflicts into the international humanitarian law (IHL) regime,4 the Conventions effectively transported armed non-State actors (ANSAs) into formal consideration as parties to armed conflict.5 Arguably, ANSAs became formally bound by particular obligations under IHL specifically, and international law more broadly.6 Alongside the introduction of CA 3, Common Article 1 to the Conventions (CA 1) provides for the obligation of the High Contracting Parties to ensure respect of the Conventions.7 However, although CA 1 is generally considered applicable only to the State Party, ANSAs are frequently urged to ensure respect for IHL, particularly by the United Nations (UN) Security Council.8 Generally, both CA 3 and CA 1 can be considered as pivotal in ensuring that all parties respect IHL in NIACs.9 Indeed, the obligations under CA 3 and in NIACs more broadly, are not to be considered less normative in force, in comparison to the obligations of parties in international armed conflicts (IACs).10 In this regard, NIACs benefit from an even broader legal regime beyond CA 3 (though fairly rudimentary), which includes the Second Protocol Additional to the 1949 Geneva Conventions (AP II)—depending on the threshold of the conflict,11 as well as customary IHL.12 Embedded in CA 3, and the customary IHL of NIACs, is the prohibition of murder and violence to life.13 Parties to NIACs—including ANSAs—are required to adhere to this obligation, which evokes the prohibition of the arbitrary deprivation of the right to life under international human rights law (IHRL).14 This prohibition is considered 2 Dörmann

and Henckaerts 2016, para 356. As indicated in the Commentary, during the time of drafting of the 1949 Geneva Conventions, ‘Convention in Miniature’ was the expression used to point out the brevity and self-contained nature of the draft Article, which was ultimately adopted as Common Article 3. 3 Moir 2015, para 64. 4 Moir 2002, p 25; Cullen 2010, p 25. 5 Ibid., p 36. 6 Sivakumaran 2015, pp 416, 431, paras 4, 64 respectively. 7 See GC IV, above n 1, Article 1. 8 See, e.g., UN Security Council (2015) Resolution 2217 (2015), UN Doc. S/RES/2217, para 17 on the Central African Republic, in which the Security Council invoked its powers under Chapter VII of the UN Charter, and called upon ANSAs to issue clear orders prohibiting all violations against children under the applicable international law, which included IHL. 9 See, ICJ, Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America), Judgment (Merits), 27 June 1986, [1986] ICJ Rep 14, para 220. 10 See Dörmann and Henckaerts 2016, para 125. 11 See Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-international Armed Conflicts (Protocol II), opened for signature 8 June 1977, 1125 UNTS 609 (entered into force 7 December 1978) (AP II), Article 1. 12 See Henckaerts 2005, p 197. 13 See Henckaerts and Doswald-Beck 2005, pp 311–314, Rule 89. 14 See, specifically, ibid., pp 313–314.

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to “[underline] the all-encompassing importance of respect for the lives of persons benefiting from the protection” of CA 3 and the IHL of NIACs.15 Therefore, the need to ensure the protection of life is important, and all parties to a NIAC should be considered to bear this obligation, as part of the broader obligation to ensure respect for the IHL of NIACs.16 Importantly, this indicates the further obligation—essentially on States—to investigate incidents of violence to life in NIACs—in the form of serious violations of CA 3 (war crimes),17 which recalls similar requirements under IHRL and the obligation to investigate alleged or suspected violations of the right to life.18 However, it is still controversial in several circles, whether indeed ANSAs should be considered to bear the obligation to investigate loss of life occurring during NIACs.19 Alternatively: Do ‘rebels’ have the basis and duty to hold out the iconic ‘Holmesian’ magnifying glass, and scrutinise suspected murderous conduct? The focus of this chapter is essentially two-fold; it analyses the scope of the legal obligations of ANSAs with regard to the right to life in armed conflict, and it explores the existence and application of a requirement for ANSAs to investigate the loss of life arising from NIACs. With a specific emphasis on the latter, the chapter works towards establishing whether or not, 70 years on from the promulgation of the 1949 Geneva Conventions, ANSAs can be considered to possess the obligation to investigate under the IHL framework. In this regard, the paper primarily focuses on fleshing out the two broad areas of analysis from the perspective of the IHL framework. However, it includes the IHRL perspective for comprehensiveness, as IHRL is pivotal to the application of IHL, especially in the area of protection of life and the investigative obligation. The analysis begins in Sect. 4.2 with an assessment of the relevant legal frameworks and paradigms necessary for understanding the scope of obligations of ANSAs with regard to protection of life. Section 4.3 then delves further into the interplay between IHL and IHRL, especially the potential relevance of the interaction between the two paradigms of the conduct of hostilities and law enforcement, regarding the use of lethal force by ANSAs. Consequently, Sect. 4.4 takes a step back to address the critiques and concerns regarding the obligations of ANSAs, and application of these frameworks and paradigms—particularly under IHL. Based on the foregoing 15 Dörmann

and Henckaerts 2016, para 589. commentary on Rule 189 (on respecting and ensuring respect for IHL) in Henckaerts and Doswald-Beck 2005, p 498. 17 See Dörmann and Henckaerts 2016, paras 879, 896 on investigating and prosecuting violence to life as a serious violation of CA 3. See also, Henckaerts and Doswald-Beck 2005, pp 607–608, Rule 158 on investigating war crimes, which includes serious violations of CA 3. 18 See, UN Human Rights Committee (2018) General comment No. 36 (2018) on article 6 of the International Covenant on Civil and Political Rights, on the right to life, UN Doc. CCPR/C/GC/36, paras 27, 64. 19 For example, the ICRC Customary IHL Study unmistakably omits ANSAs when referring to the obligation to investigate, even if it admits that the obligation subsists in NIAC situations. See Henckaerts and Doswald-Beck 2005, p 608. 16 See

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sections, Sect. 4.5 opens up the specific discussion of the requirement to investigate loss of life, seeking to establish whether an obligation exists in law for ANSAs, and drawing out what the nature of such an obligation would entail. Section 4.6 picks up the discussion of the nature of the obligation to investigate and shows how IHRL and the law enforcement paradigm are critical in providing content to the application of the obligation for ANSAs in IHL. Section 4.7 concludes the analysis with the main issues drawn from the examination of the scope of the right to life for ANSAs, and requirement to investigate in NIACs.

4.2 The Right to Life in Non-International Armed Conflict: Legal Frameworks and Paradigms The right to life is generally considered the prerequisite for the enjoyment of all other rights. It is regarded as the “supreme right” from which no derogation is admitted.20 The protection from the arbitrary deprivation of life is a norm of jus cogens, and is protected by international and regional treaties, as well as customary international law.21 Essentially, the right continues to exist in the context of armed conflict.22 In the situation of an armed conflict therefore, matters of the protection of life revolve primarily around the use of lethal force, both from an IHL as well as an IHRL perspective.23 Under the IHRL framework, lethal force is typically used either for policing or for law-enforcement operations (especially in times of peace).24 IHRL, therefore, regulates the use of lethal force by a State in areas subject to its jurisdiction, and applies the same criteria for the use of force to all persons—irrespective of any form of status.25 IHL on the other hand, regulates the use of lethal force only in the context of an armed conflict, which in IACs is usually the use of lethal force directed at another State’s armed forces and enemy nationals.26 In the conduct of hostilities therefore, targeting and the use of lethal force against persons is status-based, with different categories of persons being designated as non-targetable.27 20 ECtHR, McCann and Others v The United Kingdom, Judgment, 27 September 1995, Application

No. 18984/91, para 147: “one of the basic values of the democratic societies”; UN Human Rights Committee (2018) General comment No. 36 (2018) on article 6 of the International Covenant on Civil and Political Rights, on the right to life, UN Doc. CCPR/C/GC/36, para 2. 21 See UN High Commissioner for Human Rights 2016, p 3. 22 ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, [1996] ICJ Rep 226, para 25; African Commission on Human and Peoples’ Rights 2015, paras 13, 32–35. 23 UN Human Rights Committee (2018) General comment No. 36 (2018) on article 6 of the International Covenant on Civil and Political Rights, on the right to life, UN Doc. CCPR/C/GC/36, para 64; Quénivet 2008. 24 Office of the UN High Commissioner for Human Rights 2011, p 62. 25 International Committee of the Red Cross 2013, p 7. 26 Ibid., p 6. 27 See International Committee of the Red Cross 1987, p 599, para 1871; Park 2018, p 104.

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Consequently, the ‘conduct of hostilities paradigm’ will usually be considered appropriate to assess matters concerning the use of force in the IHL framework; and the ‘law enforcement paradigm’ (also referred to as the ‘security operations framework’) will usually be evaluated through the prism of the IHRL framework.28 Therefore, in NIACs, it is suggested here that both the ‘conduct of hostilities paradigm’ and the ‘law enforcement paradigm’ are applicable.29 There is no explicit status upon which a basis of targeting can be established under the IHL of NIACs; all individuals prima facie are protected from direct attack, “unless and for such time as they take a direct part in hostilities”.30 It has been therefore argued, that the juxtaposition of these two paradigms in NIACs can be premised on the following considerations: the fact that armed forces increasingly conduct law enforcement operations in armed conflicts; the multiplication of NIACs, which are generally governed by a rudimentary IHL framework; and the increasing occurrence of military operations conducted amongst the population, with the blurring of lines between hostilities and civilian unrest.31 Thus, it can be unclear on the onset, as to which paradigm would apply, during the different scenarios in armed conflict—especially during NIACs. Indeed, the fragmentation of the law in armed conflict, with regard to the right to life, provides the platform for making such difficult decisions.32 Nevertheless, it is critical to determine the appropriate legal paradigm when lethal force is used in armed conflicts. This could include a blend of both paradigms, producing a framework that best addresses the challenges in the protection of life by ANSAs during NIACs.33 During armed conflict—arguably including NIACs—it has been suggested that the State’s obligation to ensure compliance with the right to life requires an evaluation of: (1) the positive and negative aspects, as well as the substantive and procedural features of the right to life; (2) how the protection from arbitrary deprivation of life applies during armed conflict (including an assessment of the extraterritorial application of IHRL)34 and how the right to life obligations interrelate with IHL obligations; and (3) the extent to which military doctrine (manuals) and other tactical procedures seek to foster compliance with these obligations.35 Certainly, the scope of the right during armed conflict is comprehensive, and therefore adherence must reflect all aspects—not just refraining from conduct constituting the arbitrary deprivation of life. Compliance includes positive and procedural features, which give effectiveness

28 Murray

2017, p 112, para 5.01. p 113, para 5.08. 30 AP II, above n 11, Article 13(3). See, generally, Murray 2017, p 114, para 5.09; Sassòli 2019, pp 276–277, paras 8.120–8.122. 31 Doswald-Beck 2011, pp 163–165. 32 Sassòli and Olson 2008, pp 613–616. 33 Quénivet 2008, pp 352–353. 34 See, Milanovic 2015, p 31, para 13 on how extra-territorial NIACs challenge the IAC/NIAC binary. Indeed, extraterritoriality can also be a matter for consideration in NIACs. 35 For a general position on the three points for evaluation, see Park 2018, p 211. 29 Ibid.,

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to the protection of life.36 This, combined with the proper appreciation of the substantive, paradigmatic and (sometimes) territorial scope of the protection of life, is all relevant during armed conflict. This should be instructive as well, for the assessment of ANSA obligations, with regard to the effective protection of the right to life in armed conflict. Hence, it is suggested in this chapter, that ANSAs ought to view the protection of life from the perspective of the nature of obligations (whether positive or negative); they should equally balance the interrelated nature of their obligations under IHL and IHRL—including potential challenges related to legal fragmentation. Furthermore, ANSAs should reflect the protection of life in their internal procedures, especially on investigation, based on acceptable standards recognised internationally. These considerations undergird the analysis in this paper, on both whether and how ANSAs can investigate the loss of life during armed conflict.

4.3 Finding the Perfect Balance: The Conduct of Hostilities Paradigm and the Law Enforcement Paradigm in Non-International Armed Conflicts 4.3.1 Employing Lethal Force During Non-International Armed Conflicts Under the Conduct of Hostilities Paradigm During NIACs, the ‘conduct of hostilities paradigm’ contains the following rules during targeting, which are expressed in the applicable customary IHL: the principles of distinction, proportionality and precautions.37 Generally, the basic rule is that in order to ensure respect for the civilian population, as well as their protection and that of civilian objects, parties—including ANSAs—to the NIAC shall at all times distinguish between civilian population and objects on the one hand, and fighters (or ‘combatants’) and military objectives on the other. In this regard, military operations are to be directed only against military objectives.38 Civilians, therefore, enjoy such protection afforded in IHL of NIACs, unless and for such a time as they directly participate in hostilities.39 With regard to legitimate targets in NIACs, the use of means and methods of warfare that are of the nature to cause superfluous injury or unnecessary suffering are prohibited.40 Since 1949, as well as from 1977, both CA 3 of the Geneva Conventions and AP II respectively, have sought to appropriate these core principles of IHL—to protect 36 Doswald-Beck

2006, p 887. 2005, pp 198–200. 38 Henckaerts and Doswald-Beck 2005, pp 3, 25, Rules 1 and 7. 39 Ibid., p 19, Rule 6; AP II, above n 11, Article 13(3). 40 Henckaerts and Doswald-Beck 2005, pp 237, 239, Rule 70. 37 Henckaerts

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‘inoffensive persons’; whereas, at the same time, ducking any possible reference to a ‘combatant’ status. Consequently, such manoeuvring has been considered to be both confusing and controversial.41 Naturally, the rules governing the use of lethal force during IACs cannot be automatically transposed into NIACs; for a number of potential differences are claimed to exist that should be addressed.42 Within this understanding, it is therefore asserted that a difference lies in a “considerable debate concerning when individuals may be targeted in NIAC”. This is considered to be a “lack of specificity” that can afford difficulties in ascertaining the applicable IHL to be considered, particularly in view of a State’s obligation to protect life during NIACs.43 Subsequently, the question to be asked would be whether or not the “lack of specificity” is real, or merely academic—in view of the practice of parties to NIACs in following existing rules. Is there any merit in this controversy, which has seemed to follow the NIAC treaty framework for the most part of the 70 years of the 1949 Geneva Conventions?

4.3.2 Armed Non-State Actors and the Use of Lethal Force in International Humanitarian Law During Non-International Armed Conflicts Doswald-Beck suggests a rejoinder—that an interpretation to consider is the reference to “armed forces” and “armed groups” in CA 3 and AP II respectively, as meaning “that force can automatically be used against them [ANSAs]”;44 for these instruments also refer to the importance of not using lethal force against “[p]ersons taking no active part in the hostilities” or civilians who “[do not] take a direct part in hostilities”.45 She also submits that an alternative interpretation would be that the use of lethal force depends entirely on the meaning of the phrase “direct part in hostilities” in AP II. This latter position being based on the fact that the only reference to the use of lethal force against persons in the Protocol is in Article 13(3), which protects from attack, civilians not taking a “direct part in hostilities”.46 Indeed, the International Committee of the Red Cross (ICRC) subsequently provided a much needed and helpful analysis on this, reaching the conclusion that in IHL of NIAC, the concept of organised armed group (or ANSAs) denotes non-State

41 Doswald-Beck 42 Park

2006, p 889. 2018, p 112.

43 Ibid. 44 See

GC IV, above n 1, Article 3(1); AP II, above n 11, Article 1(1). GC IV, above n 1, Article 3(1); AP II, above n 11, Article 13(3). See also International Committee of the Red Cross 1987, p 1453, para 4789 where the commentary suggests the use of force against members belonging to ANSAs at any time, without reference to any conditions. 46 Doswald-Beck 2006, p 889. 45 See

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armed forces in a “strictly functional sense”.47 The ICRC Interpretive Guidance indicates that for purposes of the principle of distinction, membership of ANSAs must depend on whether the continuous function presumed by an individual, relates to the conduct of hostilities collectively employed by the group as a whole. Consequently, under IHL, the decisive criterion for the use of lethal force against members of an ANSA, is whether such persons assume a ‘continuous combat function’—that is, as a way of lasting integration into the ANSA, they adopt a function involving the continuous direct participation in hostilities.48 Therefore within a NIAC, as a result of this ‘status-based approach’, members of an ANSA with a continuous combat function will ordinarily use lethal force during hostilities and are required to comply with the rules on the conduct of hostilities—as do State forces.49 They will have to apply the IHL principles of distinction, proportionality and precautions in their targeting and military operations. As the customary IHL rules mentioned here on the conduct of hostilities apply to parties to the conflict; members of an ANSA—who, themselves, are targetable on account of their continuous function of a direct participation in hostilities—shall direct their military operations only against enemy armed forces.50 In doing so, they are expected not to target civilians, and not to use force on the enemy forces that is excessive and unnecessary, such as to cause superfluous or unnecessary suffering.51 Certainly, in addition to civilians and members of the armed forces who are hors de combat, IHL (of NIACs) also protects the right to life of those who directly participate in hostilities. As a cardinal aspect of the principle of military necessity, those who actively participate in armed conflict should only be on the receivingend of lethal force of the kind and degree permissible, which must not exceed the necessary force to accomplish a legitimate military purpose.52 As Schabas observes, the larger question of the relationship between IHRL and IHL cannot be avoided here—in viewing these constraints to the conduct of hostilities rooted in the regard for human life and humanity.53 The intersection with IHRL is highly discernible in this regard, and tempers the use of lethal force—even by ANSAs—in the NIAC IHL ‘conduct of hostilities paradigm’.

47 Melzer

2009, p 33. pp 33–34. 49 See Sassòli 2019, p 277, para 8.122. 50 See Henckaerts and Doswald-Beck 2005, pp 5–6. 51 Ibid., pp 21, 239–240. 52 Schabas 2014, p 370; Melzer 2009, p 79. 53 Schabas 2014, p 371. 48 Ibid.,

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4.3.3 Influence of International Human Rights Law and the Law Enforcement Paradigm on Armed Non-State Actors in Non-International Armed Conflicts Indeed, with regard to IHRL’s ‘law enforcement paradigm’, the use of force is only permitted when absolutely necessary, proportional to the aim pursued (to protect life) and with due regard to strict precaution to avoid, as far as possible, the use of force as such (use less than lethal force).54 These conditions, though usually spelled out in relation to State obligations, can apply to ANSAs as well. Such application to ANSAs is premised on the fact that they too can be considered bound by IHRL—as has been argued extensively elsewhere.55 Further, it is submitted here, that ANSAs as well confront similar situations as State forces during armed conflict, where an emphasis on the ‘conduct of hostilities paradigm’ under IHL, would be extreme in view of the need to protect human life. Relatedly, ANSAs—particularly those with significant territorial control, would need to carefully balance between law enforcement/territorial administrative type activities, and their ongoing military efforts.56 It is important to clarify here at the onset, that the reference to the ‘law enforcement paradigm’ throughout this chapter is broad in scope. It is not the strict reference to the literal meaning of the enforcement of law.57 The scope adopted here, “refers to all activities connected to the exercise of authority over persons or territory”. In particular, it includes the “maintenance of public order”, but more importantly in this regard, “the suppression of criminal or subversive activity outside the conduct of hostilities”.58 This paradigm, unlike the ‘conduct of hostilities paradigm’, can occur both inside and outside the context of an armed conflict.59 The appropriateness of this broader view of the ‘law enforcement paradigm’ is hinged on the fact that the relationship between ANSAs and persons or territories under their control is one of (de facto) authority. By virtue of this relationship, ANSAs take on a role of (de facto) ‘duty bearers’ whose conduct is best interpreted through the ‘law enforcement paradigm’ under IHRL.

54 UN Human Rights Committee (2018) General comment No. 36 (2018) on article 6 of the Interna-

tional Covenant on Civil and Political Rights, on the right to life, UN Doc. CCPR/C/GC/36, paras 12–14. 55 For an extensive analysis on this matter in two recent pivotal publications on the application of IHRL to ANSAs, see Fortin 2017; Murray 2016. 56 Fortin 2017, pp 65–68. 57 See ibid., p 38. See also ibid., note 50, where she explains that “in many ways, the law enforcement paradigm is often presented as referring to all parts of the legal framework that falls outside of the conduct of hostilities paradigm”. 58 See Gill 2013, p 261. 59 Ibid.

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Certainly, within the context of the ‘law enforcement paradigm’, ANSAs with control of territory will usually administer areas where life for the inhabitants goes on,60 and matters will not always require the singular application of the IHL framework.61 IHL will not entirely capture the civilian experience of armed conflict for persons under the control of ANSAs. IHRL proves to be pivotal, especially where certain activities stray from a proper nexus to the armed conflict.62 Such remoteness can manifest itself in both the nature of conduct in question, as well as the proximity of the conduct to the actual geographical area of hostilities. A reasonable balance needs to be struck—even by ANSAs—between obligations under IHL and IHRL, to effectively protect life in all circumstances. As Gowlland-Debbas observes, there is indeed something to say about the ‘humanisation’ of IHL and the ‘humanitarisation’ of IHRL. Definitely, normative convergence does result—on the one hand—in IHL restrictions on depriving persons of their life (prohibition of murder in CA 3 for example), even if IHL allows for killing as the thrust of its framework; and on the other, in IHRL exceptions to the deprivation of life, curved out on the basis of IHL application in conflict situations (tempering the meaning of the word ‘arbitrary’).63 Thus, in view of this balancing process, the requirement to follow up on any arbitrary taking of life becomes increasingly important, even for ANSAs. Accordingly, the ‘duty’ to investigate loss of life under IHL (‘conduct of hostilities paradigm’) needs to be clarified. Furthermore, there is also an embedded inevitability to seek to understand how exactly ANSAs can balance such a duty, as it expresses itself in both the IHL and IHRL frameworks.

4.4 Deceptive Narratives? Addressing Concerns on Obligations of Armed Non-State Actors, International Humanitarian Law of Non-International Armed Conflicts, and the Conduct of Hostilities Paradigmatic Framework In view of the foregoing assertions, it is generally important to take a step back and relitigate certain issues, which should not be dismissively assumed. Three matters should not be taken for granted: first, whether or not ANSAs have to balance obligations in both IHL and IHRL; second, whether or not the IHL principle of the

60 Fortin

2016. 2017, pp 51–59. 62 Ibid., p 65. 63 Gowlland-Debbas 2010, pp 126–130. See also ICTY, Prosecutor v Dusko Tadi´ c, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, Case No. IT-94-1 (Tadi´c), para 87 in which the Appeals Chamber expounds on the impact of IHRL on the laws of armed conflict, which culminated in a comprehensive IHL framework of rules applicable in NIACs. 61 Fortin

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equality of parties has any impact on the obligations of ANSAs in NIACs—especially with regard to the right to life; and third, whether or not the ‘conduct of hostilities paradigm’ is applicable to NIACs, and ANSAs for that matter. Whereas the idea of an existence of a requirement for ANSAs to investigate loss of life, can seem like a long legal leap; foundationally, it is critical that the case is primarily made with regard to the applicable legal framework and paradigm. Simply put, in order for there to be a discussion about investigating loss of life by ANSAs, it has to first be clear that ANSAs have the obligations with regard to the protection of life, as they engage in armed conflict. This is because—unlike States—ANSAs ordinarily find themselves at the peripheral end of any legal and doctrinal clarity, in the larger context of international law.

4.4.1 Obligations of Armed Non-State Actors Under International Humanitarian Law and International Human Rights Law On the onset, it is important to distinguish between two separate but related frames of analysis that can be necessary, with regard to the understanding of whether or not ANSAs bear obligations under IHL and IHRL. On the one hand, the analysis can be purely conceptual or theoretical—where one seeks to explore how exactly ANSAs are bound by international law, be it IHL, IHRL, or even international environmental law.64 To this extent, even the tried and tested IHL, which has at least for the past 70 years been considered as applicable to ANSAs, does come into question. Whereas customary IHL, CA 3, and AP II are generally considered as applicable to ANSAs, it is still unclear how exactly that is the case—especially since ANSAs neither ratify treaties, nor does their practice contribute to the formation and crystallisation of customary law.65 One would say that this frame of analysis addresses the subjectivity (legal personality),66 and objectivity (legal applicability)67 of ANSAs more broadly under international law. On the other hand, the analysis can focus purely on the practice under international law, particularly under the auspices of international organisations like the UN, and its organs and Special Procedures. Whether or not there is doctrinal and conceptual clarity on how ANSAs are bound by IHL and IHRL, this practical prism concentrates on the fact that ANSAs are rather authoritatively

64 See this approach, generally, in Cassese 1981; Kleffner 2011; Sivakumaran 2015. The focus in this

regard revolves around the different theories on how IHL binds ANSAs, namely (1) the customary law (and general principles) theory, (2) the treaties and third parties theory, (3) the de facto control theory, (4) the prescriptive jurisdiction theory, and (5) the state ratification theory. 65 See, Sassòli 2019, p 196, para 6.68; Murray 2015, pp 101–102; Sivakumaran 2006, pp 370–371. 66 See approach in Fortin 2017, pp 118–151, 152–173 for a treatment of IHL and IHRL respectively. See also Murray 2016, pp 23–50, 59–77 for a more general approach. 67 See the approach in Murray 2016, pp 82–119.

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presumed—as a matter of course—to be bound by the two legal frameworks.68 This latter prism is of more relevance here, as the current chapter seeks to focus on the practical outworking of the obligations of ANSAs with regard to the right to life. Indeed, the practice of the UN General Assembly and the Security Council is to consistently condemn violations of IHL and IHRL, and urge ANSAs to comply with their obligations under these frameworks.69 In the case of IHRL, a few times a distinction is drawn between violations (by States) and abuses (by ANSAs) of human rights.70 However, largely the distinction could be considered to be a false one, as a review of the resolutions does not necessarily produce a consistent pattern of use of particular language. Some resolutions refer to violations,71 while others to abuses72 of human rights by ANSAs. The Special Procedures of the UN Human Rights Council, however, tend to be more consistent in referring to violations of IHL and IHRL by ANSAs, and are unequivocal about the obligations therein of these entities.73 Nevertheless, both the organs and subsidiary mechanisms of the UN will emphasise the IHRL obligations of ANSAs, especially where they exercise governmental functions or de facto control over territory and population.74 Usually in the latter situation, ANSAs would be required to move beyond negative obligations, 68 See Burniske et al. 2017; Geneva Academy of International Humanitarian Law and Human Rights

2016. Both are pivotal studies on the practice of the UN bodies with regard to the application of IHL and IHRL to ANSAs. 69 See, e.g., UN Security Council (2016) Resolution 2332 (2016), UN Doc. S/RES/2332 (Syria); UN Security Council (2016) Resolution 2274 (2016), UN Doc. S/RES/2274 (Afghanistan); UN Security Council (2016) Resolution 2265 (2016), UN Doc. S/RES/2265 (Sudan); UN Security Council (2015) Resolution 2216 (2015), UN Doc. S/RES/2216 (Yemen); UN Security Council (2015) Resolution 2211 (2015), UN Doc. S/RES/2211 (Democratic Republic of Congo). See also UN General Assembly (2013) Resolution: The situation in Afghanistan, UN Doc. A/RES/68/11; UN General Assembly (2012) Resolution: The situation in the Syrian Arab Republic, UN Doc. A/RES/66/253 B; UN General Assembly (2003) Resolution: Situation of human rights in the Democratic Republic of the Congo, UN Doc. A/RES/58/196. 70 See, e.g., UN Security Council (2017) Resolution 2340 (2017), UN Doc. S/RES/2340 (Sudan); UN Security Council (2016) Resolution 2295 (2016), UN Doc. S/RES/2295 (Mali); UN General Assembly (2016) Resolution: Extrajudicial, summary or arbitrary executions, UN Doc. A/RES/71/198; UN General Assembly (2015) Resolution: Situation of human rights in Myanmar, UN Doc A/RES/69/248. 71 See, e.g., UN Security Council (2008) Resolution 1834 (2008), UN Doc. S/RES/1834 (Central Africa Republic and Chad); UN General Assembly (2003) Resolución: Situation des droits de l’homme en République démocratique du Congo [Resolution: Situation of human rights in the Democratic Republic of the Congo], UN Doc A/RES/57/233. 72 See for example UN Security Council (2010) Resolution 1925 (2010), UN Doc. S/RES/1925 (Democratic Republic of the Congo); UN General Assembly (2015) Resolution: Situation of human rights in Myanmar, UN Doc A/RES/69/248. 73 Geneva Academy of International Humanitarian Law and Human Rights 2016, p 10. 74 See, e.g., Nowak (2008) Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak: Mission to Sri Lanka, UN Human Rights Council, UN Doc. A/HRC/7/3/Add.6; UN General Assembly (2002) Resolución: Situación de los derechos humanos en la República Democrática del Congo [Resolution: Situation of human rights in the Democratic Republic of the Congo], UN Doc. A/RES/56/173; UN Security Council (2008) Resolution 1814 (2008), UN Doc. S/RES/1814 (Somalia).

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towards protecting and fulfilling human rights towards those under their control.75 A parallel can be drawn with the IHL framework, where the distinction between CA 3 and AP II NIACs, based on territorial control, tends to avail more detailed obligations to ANSAs in control of territory.76 A related concern would therefore arise, regarding clarity on how exactly the two frameworks (IHL and IHRL) inter-operate, from the perspective of ANSAs. Would it be correct to assert that the difficulties related to the fragmentation of international law and the related obligations present challenges for ANSAs? If it is accepted that both IHL and IHRL bind ANSAs, then naturally ANSAs will find themselves with obligations under both; even as the default position is to consider that the interplay between IHL and IHRL in NIACs is only relevant to the extent that one is appraising the activity of the State(s) involved.77 Fortin explores the added value of IHRL in the context of NIACs, with regard to ANSAs. Using the two paradigmatic constructs of the conduct of hostilities and law enforcement, she is able to establish that ANSAs could find themselves with the need to assess their obligations under both IHL and IHRL.78 Consequently, a discussion on whether a lex specialis method is necessary here, or whether a systemic integration approach would be best suited, can be engaged in. However, as this debate has been explored comprehensively elsewhere,79 a slightly different approach is proposed for the current purposes. One would argue that this different method sums up these two predominant approaches to the interplay between IHL and IHRL. It has been suggested that in any situation, a “serious consideration” of the relationship between IHL and IHRL will have to—among other factors— establish at the preliminary level: (1) whether or not the situation is a NIAC; (2) which type of actor is involved, including whether or not an ANSA’s conduct is the subject of the inquiry; (3) which IHRL treaties apply; and (4) the nature of the context, including the amount of control either party (including the ANSA) enjoys.80 Relatedly, Clapham suggests that there is no ‘one-size-fits-all’ answer to questions about the relationship between IHL and IHRL, but recommends a critical assessment which returns to thinking about the purposes of the relevant branches of international law, even for ANSAs in NIACs.81

75 See,

e.g., the firm language in UN Security Council (2009) Resolution 1863 (2009), UN Doc. S/RES/1863 (Somalia), paras 15, 19, in which the Security Council grounded the Resolution in an invocation of Chapter VII authority. 76 See, AP II, above n 11, Article 1(1), which indicates that the Protocol “develops and supplements” CA 3, “without modifying” CA 3’s existing conditions of application. 77 Moir 2002, pp 193–194. 78 Fortin 2017, pp 35–39. 79 See extensive analysis in Droege 2007; Sassòli 2019, pp 433–437, paras 9.26–9.38. 80 Clapham 2015, p 735, para 88. 81 Ibid., paras 87–88.

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4.4.2 Equality of Parties in International Humanitarian Law and the Obligations of Armed Non-State Actors on the Protection of Life It has been suggested in this chapter above, that members of ANSAs with a continuous combat function will ordinarily use lethal force during hostilities, with the attendant requirement to follow the rules on the conduct of hostilities—like State armed forces do. However, this is not as obvious as it appears, for the traditional position is to consider only State forces (or combatants) to have the permission—as it were—to use lethal force during armed conflicts—including NIACs.82 This default position is not reflective of the reality, logic and application of IHL, but is based on a view of NIACs that regards these situations as primarily law enforcement operations within a State.83 This mostly State-centric view of NIACs seems to ignore the fact that the use of lethal force is inherent to waging any kind of war. The manifestation of this perspective arguably reached its full expression in the drafting of AP II, when States opted to exclude the rules on the conduct of hostilities altogether.84 In principle, lethal force directed against military targets should not be viewed as prohibited under IHL, “regardless of whether it is inflicted by a State or a non-State party to an armed conflict”.85 The fundamental logic of IHL in NIACs therefore, is that it binds both States and ANSAs and establishes an equality of rights and obligations between the State and the non-State party, for the benefit of all affected by their conduct.86 The principle of equality of belligerents, therefore, asserts that all parties to an armed conflict have the same rights and obligations, regardless of the justification of their cause.87 Premised on the distinction between jus ad bellum and jus in bello, the purpose of the principle is to ensure that IHL rules are complied with by all parties— irrespective of the reasons for resorting to armed conflict.88 Naturally therefore, the principle finds proper location in IACs, but seems unworkable in NIACs, as members of ANSAs may be prosecuted for taking part in the hostilities—since no combatant immunity exists for ANSA members who comply with IHL of NIACs.89 However, an abstract distinction can be drawn between the application of domestic and international law, which favours application of the equality principle as per IHL of NIACs, and synonymously maintains the possibility of prosecution for members 82 This is the import of the rejection of a combatant status in NIACs; rendering fighters who are not state forces punishable for taking part in hostilities, and not the state armed forces. See Crowe and Weston-Scheuber 2013, pp 49–50. See also Solis 2016, pp 252. 83 Members of ANSAs, if captured, “may be treated as criminals”—a purely law enforcementcentred approach. See Kolb and Hyde 2008, p 205. See also Quintin and Tougas 2020, p 374. 84 See Kretzmer et al. 2014, p 212. 85 See this observation in International Committee of the Red Cross 2011, p 18. 86 This was emphasised in International Committee of the Red Cross 2011, p 14. 87 Heffes and Bellal 2018, p 127; Sivakumaran 2011, p 241. 88 Somer 2007, p 659. 89 See ibid., pp 659–660; Sivakumaran 2011, p 241; Sassòli 2019, p 585, para 10.221.

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of ANSAs in accordance with domestic law.90 Sassòli even suggests that a form of jus ad bellum for NIACs exists in national legislation, where the monopoly of the use of force rests with the State;91 a violation of that monopoly should not have an impact on the equal application of rules between the State and the ANSA in the conduct of hostilities. Furthermore, it can also be argued that the principle of equality of parties is implied in both CA 3 and Article 1(1) of AP II; in the sense that the obligation for ANSAs to comply with these rules persists, notwithstanding the criminalisation of the use of force in domestic law.92 However, this should not be taken to mean general equality in subjectivity and legal personality with States under law.93 Therefore, ANSAs should be considered to bear obligations under IHL with regard to the protection of the right to life during NIACs—like States. The rules governing the ‘conduct of hostilities paradigm’—on account of the application of the equality of parties—equally govern the use of lethal force in NIACs by ANSAs.94 While IHL envisages equal rights and obligations of belligerents in the conduct of hostilities, it does not bestow legitimacy on ANSAs that are a party to a NIAC.95 States should therefore accept the logic of the application of IHL in this regard, including the possibility that their forces (and civilians) will be legally killed under international law, without sanction on the ANSAs thereunder. Members of an ANSA with a continuous combat function can legally use lethal force against State armed forces under the IHL of NIACs, just as the same can be used against them. Further, they are not prohibited from using lethal force against members of another ANSA with a continuous combat function either.96 This is critical for the proper functioning of the NIAC IHL paradigm on the conduct of hostilities, and is pivotal in inducing compliance with the protective rules on the right to life from ANSAs. It is important that ANSAs are aware of the fact that they can use lethal force under IHL within certain limits, and therefore should not resort to unlawful warfare. As the rules under the conduct of hostilities exist not only to protect civilians from lethal attack, but also to limit the amount of force used against military forces to what is required under the principle of military necessity, it is important that ANSAs operate within this very well structured paradigm—making sure that any loss of life perpetrated by them during armed conflict does not violate IHL of NIACs.

90 Sivakumaran

2011, p 241. This was also mentioned in International Committee of the Red Cross 2011, p 14. 91 Sassòli 2007, p 255. 92 Heffes and Bellal 2018, p 127. 93 Sassòli 2019, p 585, para 10.221; International Committee of the Red Cross 2011, p 14. 94 International Committee of the Red Cross 2013, p 5. 95 This was highlighted in International Committee of the Red Cross 2015, p 18. 96 See Daboné 2011, p 399.

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4.4.3 Questioning the Extension of the Conduct of Hostilities Paradigm into Non-International Armed Conflict There is an argument rooted in the historical distinction between the so-called ‘Geneva Law’ and ‘Hague Law’97 that insists on questioning the application of the rules on the conduct of hostilities in NIACs. Perhaps the clearest expression of this argument is advanced by Kretzmer, Ben-Yehuda and Furth, in an article entitled ‘Thou Shall Not Kill’: The Use of Lethal Force in Non-International Armed Conflicts.98 In an extensive critique of the claim that the ‘conduct of hostilities paradigm’ in IACs translates in a similar manner into NIACs, they make two points of interest here— among others. First, that the international regulation of NIACs, which began with the adoption of CA 3, aimed solely at subjecting the parties involved to fundamental humanitarian norms that should apply in all situations; there was no implied supposition that in NIACs, norms relating to the conduct of hostilities as expressed in IACs would apply.99 Further, that while the First Protocol Additional to the 1949 Geneva Conventions contains detailed norms relating to the conduct of hostilities, including a specific norm acknowledging the right of combatants to participate in hostilities, such norms are conspicuously absent in AP II.100 Second, that there is little—if any—evidence in State practice and opinio juris that suggests a conclusion that under customary international law, States may resort to lethal force against ANSAs—except in the actual theatre of hostilities in which the application of the ‘law enforcement paradigm’ is plainly not feasible. Consequently, to the extent an argument is made that ANSA members with a continuous combat function in NIACs may be targeted at any time and in any place, this would be premised on a simplistic (and weak) assumption that IAC norms also apply in NIACs—in view of the significant differences between both types of conflict.101 As indicated above, the basis of these two points is the idea that ‘Geneva Law’ (of which CA 3 is an integral part) dealt exclusively with humanitarian considerations and this did not change with the advent of the Protocols in 1977. The argument here seems to be that even if the Protocols are celebrated to diminish the distinction between ‘Geneva Law’ and ‘Hague Law’ (which deals with the conduct of hostilities, including some humanitarian aspects),102 AP II nevertheless indicates the persistence of the distinction between the two ‘laws’. This is because AP II omits the conduct of hostilities regime, and neglects to mention any privileged status to engage in armed hostilities.103 Accordingly, customary law, which is ordinarily contemplated

97 Kolb

and Hyde 2008, p 17. et al. 2014. 99 Ibid., p 199. 100 Ibid., pp 211–213. 101 Ibid., pp 204–205. 102 See Erickson 1978. 103 Kretzmer et al. 2014, p 214. 98 Kretzmer

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to diminish the distinction,104 is considered (in the Article in question) to actually uphold it. Kretzmer, Ben-Yehuda and Furth insist that even the ICTY jurisprudence— particularly in Tadi´c, extends the idea of humanitarian considerations into NIACs, and not necessarily the corpus of IHL dealing with the conduct of hostilities.105 Countering this formidable argumentation requires a revisiting of the premise of the distinction between humanitarian considerations and the ‘conduct of hostilities paradigm’. The argument made in this present chapter is that the distinction is a false one, especially in the context of contemporary IHL (even IHL of NIACs). First, Kretzmer, Ben-Yehuda and Furth agree that ‘Hague Law’ was not exclusively about the conduct of hostilities.106 Indeed the ‘Hague Law’ provided the substratum of the humanitarian considerations pertinent in the context of belligerent occupation.107 ‘Hague Law’ is expressive of the fact that humanitarian considerations and the conduct of hostilities cannot be viewed in isolation of each other; they “have always intersected”.108 One cannot insist that the protection of particular persons has nothing to do with the way in which parties conduct their military operations. This does not make sense, and would arguably run against the object and purposes of the IHL framework—namely, military necessity and humanity.109 The logic of the intersection—it is argued here—persists in the edifice of the 1949 Geneva Conventions, and thus in CA 3 as well.110 The protections for particular categories of persons in the 1949 Geneva Conventions cannot make sense if they are read in isolation of the conduct of hostilities. Indeed, the logic of CA 3 naturally presupposes that parties to a NIAC are actively engaging in hostilities and need to take care not to harm particular categories of people.111 This can only mean—contrary to the ICRC position in the 2016 Commentary—that the rules on the use of lethal force in the conduct of hostilities are implied in the edifice of CA 3 and the 1949 Geneva Conventions in general.112 However, this is indeed the import of the Customary IHL Study conclusions by the ICRC.113 Therefore, the ‘conduct of hostilities paradigm’ is naturally a part of NIACs as it is in IACs; this paradigm is critical for the understanding of the use of force in NIACs by both States and ANSAs. If this were not so, the sanctity of human life during NIACs would be at great peril. It is not surprising that this relevance of the ‘conduct of hostilities paradigm’ in NIACs is actually conceded to 104 Corn

2015, pp 284–285. et al. 2014, pp 219–220. 106 Ibid., p 197. 107 Dinstein 2009, pp 4–6. 108 Dinstein 2016, p 23. 109 Melzer 2009, pp 78–79. 110 See Dinstein 2016, p 23. 111 To the extent that hostilities can lead to death due to armed operations, the ICRC concedes— which is the logic expounded here. However, the ICRC insists that CA 3 “is not suited to assessing the lawfulness of the conduct of hostilities”. See Dörmann and Henckaerts 2016, para 543. 112 Boothby 2012, p 433; Cassese 1984, p 107; Bond 2016, pp 346–349. However, see opposite view in Dörmann and Henckaerts 2016, paras 540, 542. 113 Henckaerts and Doswald-Beck 2005, pp 313–314. 105 Kretzmer

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by Kretzmer, Ben-Yehuda and Furth, with regard to the theatre of hostilities. To the extent that they disagree with the extension beyond the theatre of hostilities, this is a stronger argument.114 However, there needs to be a careful balance with regard to the principle of military necessity in both IAC and NIACs, that is to say: in the conduct of hostilities in both IACs and NIACs, it will not always be militarily necessary to use (a particular kind of) lethal force—especially as the armed hostilities move further away from the so-called ‘hotspots’.115 This also, arguably, does invoke the need to reassess the use of force during hostilities—not only by States, but by ANSAs as well.

4.5 The Requirement for Armed Non-State Actors to Investigate the Loss of Life During Non-International Armed Conflicts Naturally, if it is accepted that ANSAs have obligations with regard to the protection of life—particularly under IHL, then the matter of investigations of the loss of life during NIACs becomes the next hurdle to jump. Indeed, it is suggested in this chapter that there is a requirement for ANSAs to investigate the loss of life during NIACs, which could have arisen from their use of lethal force during the conduct of hostilities. This requirement is particularly evident in IHL of NIACs compared to IHRL, but gains legal clarity from the human rights framework. In this section, the justification for the notion that ANSAs also bear an obligation to investigate the loss of life will be explored first. Subsequently, it will be important to flesh-out the legal basis of the claim that ANSAs have the obligation to investigate the loss of life through a review of CA 3, AP II, and customary IHL applicable in NIACs. Consequently, an analysis will follow concerning the nature of investigations required of ANSAs with regard to this obligation—as interpreted with the aid of IHRL’s ‘law enforcement paradigm’.

4.5.1 Armed Non-State Actors and Investigating Loss of Life: The Rationale What is the motivation for any claims that ANSAs bear the obligation to investigate the loss of life during NIACs? This is a valid question, especially since it is not obvious on the outset that beyond States, ANSAs also bear an obligation to carry out these investigations.116 It is proposed here that there are three main justifications for 114 Kretzmer

et al. 2014, pp 204-205. 2009, pp 78–79. 116 See, Somer 2007, pp 683–684. 115 Melzer

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such consideration: first, that the requirement to investigate is important in providing completeness and practical effect to the right to life obligations borne by ANSAs; second, that the criminalisation of the serious violations of CA 3 requires that parties to a NIAC—including ANSAs—investigate and sanction such prohibited conduct (particularly violations of the protection of life) in their internal processes; Third, that the impact of the rule on command responsibility on ANSAs, imposes a strict requirement to investigate potential serious violations of IHL relating to the right to life, within their ranks.

4.5.1.1

Affording Practical Effect to the Right to Life

It has been observed in the foregoing sections that ANSAs bear the obligation to protect life as they engage in hostilities. This means that ANSAs have to refrain from conduct during conflict that constitutes a violation of the right to life; particularly, they must not direct military operations towards persons taking no active part in hostilities.117 This will require strict observance of the conduct of hostilities principles of distinction, proportionality and precautions. Indeed, embedded in these principles is the requirement to cancel or suspend an attack if it is apparent that the damage to persons taking no active part in hostilities will be excessive, in relation to the concrete and direct military advantage anticipated.118 Evidently there is a negative obligation to abstain from conduct during conflict that could violate the protection of life. Beyond the negative facet, there should be an attendant positive obligation to take particular measures where prohibited conduct has nevertheless been undertaken.119 The protection from military operations that could violate the protection of life is incomplete if it merely asks ANSAs to refrain from prohibited conduct. There must be procedural provision for a review of conduct that could have violated the substantive protection of life. This is the impact of the requirement to ensure the respect of IHL and the protection of life.120 In fact, it is only through such a process of review and investigation that the ANSA would be able to verify whether indeed the principles on the conduct of hostilities were actually adhered to in any particular attack. The facet of investigation of conduct, where there has been loss of life to persons taking no active part in hostilities, provides practical effect to the general rule against the violation of the right to life in hostilities.121 Thus, if it is accepted that ANSAs have 117 Boothby

2012, p 433. Henckaerts and Doswald-Beck 2005, p 61. 119 See the importance of the procedural right to life in armed conflict discussed in Park 2018, pp 115–117. 120 To “ensure” here does not necessarily reflect the normative reference in CA 1. It is used to draw out the need for the effectiveness of protection that would come from a procedural dimension to the protection of life by ANSAs. However, Zegveld contemplates a link between CA 1 and ANSAs with regard to the obligation to ensure respect. See Zegveld 2002, p 67. 121 See UN High Commissioner for Human Rights 2016, p 4, para 8. Although the reference here to giving “practical effect” is with regard to IHRL, this makes sense for IHL as well. This is because 118 See

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the obligation under IHL to refrain from conduct that violates the protection of life in hostilities, it must also be accepted that there is a related requirement to investigate such potential violations. Furthermore, it is suggested here that such an obligation to ensure the respect for IHL and the protection of life has an external dimension. The UN Special Rapporteur on extrajudicial, summary or arbitrary executions proposed this possible reading of the obligations of ANSAs in a report on ANSAs and the right to life. Callamard indicates that in giving practical effect to the protection of life, the obligation to investigate by ANSAs can be “extended to investigating killings by third parties operating on their territories”.122 Although this position by the Special Rapporteur is expressed with regard to the operation of the IHRL framework, it finds very apt parallels in the IHL regime. The CA 1 obligation (to ensure respect) of States has been defined by the ICRC to comprise both a negative and a positive obligation. Hereunder, the ICRC indicates that the negative obligation means that States “may neither encourage nor aid or assist in violations […] by [p]arties to a conflict”.123 With regard to the positive obligation, the ICRC stresses that States “must do everything reasonably in their power to prevent and bring such violations to an end”.124 It is suggested here that a careful analogy with the IHL obligations of ANSAs can mean that, where multiple ANSAs are involved in a conflict (as is increasingly commonplace presently),125 ANSAs with relevant capacity would be required to influence others to refrain from violating the protection of life. This can include initiating investigations where an ANSA has control over territory or influence over another ANSA engaging in the prohibited conduct.

4.5.1.2

Impact of the Criminalisation of Serious Violations of CA 3

Prior to the matter being addressed by the International Criminal Tribunal for the Former Yugoslavia (ICTY) in 1995, it was generally settled that war crimes and grave breaches of IHL could only take place in the context of IACs.126 However, the Appeals Chamber of the ICTY affirmed that violations of general IHL governing NIACs entail the criminal responsibility of those committing or ordering the commission of such violations.127 The Chamber asserted that customary international law imposes criminal liability for serious violations of CA 3, including rules on the protection of there is an obligation as well with regard to life, which should be effectively complied with. It is proposed here that the logic holds in both legal frameworks. 122 See Callamard (2018) Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions on armed non-State actors: the protection of the right to life, UN Human Rights Council, UN Doc. A/HRC/38/44, para 75. 123 Dörmann and Henckaerts 2016, para 154. 124 Ibid., para 154. 125 See the discussion of the multiplicity in number and form of ‘decentralised non-state armed groups’ in International Committee of the Red Cross 2018, pp 46–47. 126 Mettraux 2005, p 130. 127 See Tadi´ c, above n 63, para 133.

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victims of NIACs; as well as for the breach of the related rules regarding the conduct of hostilities in civil strife.128 As a result, the Rome Statute of the International Criminal Court (ICC) subsequently provided for war crimes to include serious violations of CA 3 in NIACs; with the inclusion of “[v]iolence to life and person, in particular murder of all kinds”, as a war crime when committed against persons taking no active part in the hostilities.129 Such criminalisation naturally invokes an obligation for States in NIACs, to investigate war crimes allegedly committed by their nationals, armed forces, or on their territory; and to prosecute the suspects, where applicable.130 Further, it is suggested here that ANSAs, whose conduct is also under the purview of this scrutiny, equally be considered to bear an obligation to investigate conduct by their members with a continuous combat function. As argued previously in this chapter, if it is to be accepted that ANSAs being bound by IHL can legally engage in hostilities to which the IHL principles on the conduct of hostilities apply, and that based on the equality of parties, are considered bound by the same obligations as States; it therefore means that they too should be bound by the obligation to investigate war crimes allegedly committed within their ranks.131 This can be especially pivotal where they are in control of territory, and the State has little to no capacity to carry out any credible form of investigation. This interpretation bodes well with the object and purpose of the IHL framework and the related criminalisation of particular conduct under international law. Indeed, as was espoused at the Nuremberg Tribunal, “[c]rimes against international law are committed by men, not by abstract entities” and therefore, by punishing individual perpetrators, international law can be properly enforced.132 Belonging to an ANSA, should not shield members from having their conduct investigated—especially where States are unable to do so. Further, the fact that ANSA members are engaging in prohibited conduct, should be sufficient to require scrutiny, whether or not such scrutiny is done by the State or the ANSA. Violations by individual perpetrators have to be addressed regardless.133 This therefore means that ANSAs should be ready to bear the onus of carrying out such investigations, within their internal processes. However, the prohibition of violence to life and person (unlike ‘murder’), in the Rome Statute and CA 3, may still require more clarity. It is still unclear whether the contours of ‘violence’ have been clearly spelled-out, for the purposes of the

128 Ibid.,

para 134. Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002), Article 8(2)(c)(i). 130 Dörmann and Henckaerts 2016, para 879; Henckaerts and Doswald-Beck 2005, pp 607–608. 131 See a similar line of argumentation in Somer 2007, p 684. 132 See IMT (Nuremberg), France et al. v Hermann Wilhelm Göring et al., Judgement, 1 October 1946, IMT Trial Proceedings Volume 22. 133 The thrust of individual criminal responsibility in NIACs. See Meron 1995, p 561. 129 See

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criminalisation in this regard under customary law, to take full effect.134 However, the fact remains that CA 3 invokes criminal sanction for the very serious character of the violations of its rules,135 and it is only a matter of time that a court of law clarifies the contours of this prohibited conduct with regard to violence to life and person. This does not mean that the criminal sanction is non-existent, and that there is no requirement to investigate conduct during conflict by ANSAs, that allegedly violates the rules on the conduct of hostilities embedded in the CA 3 framework.136 Indeed, the clarity regarding the closely related war crime of ‘murder’ against persons taking no active part in the hostilities, occurring in the context of, and associated with a NIAC,137 confirms the need to investigate these associated serious violations of CA 3 and the IHL of NIACs.

4.5.1.3

Impact of the Rules on Command Responsibility

Also referred to as ‘Superior Responsibility’, this form of culpability for international crimes—including war crimes, imposes criminal liability on civilian and military superiors who fail to prevent or punish the criminal conduct of their subordinates. Such culpability applies in both IACs and NIACs and includes conduct of subordinates under any form of criminal liability, which is not necessarily physical perpetration.138 This responsibility is concerned with liability for omissions—with a commander’s failure to act.139 Importantly, this mode of liability applies to ANSAs, as a necessary corollary of the notion of ‘responsible command’, which is critical for the existence of an ANSA as a party in NIACs.140 Thus, the concept of ‘responsible command’ in NIACs focuses on the duties contained in the notion of command and consequently, command responsibility emphasises the liability flowing from the violation of these duties—as the features of command responsibility derive from the principles of responsible command.141 In this regard therefore, it is evident that the very existence of ANSAs under IHL is premised—among others—on the ability of the entity to ensure the compliance with CA 3 and other NIAC IHL rules. Command

134 See

Dörmann and Henckaerts 2016, paras 884–886. Haye 2008, p 121. 136 See Meron 1995, p 574, where he emphasises that “[w]ar crimes under the “Hague law,” i.e., those perpetrated in the conduct of hostilities, should also be punishable when committed in noninternational (sic) armed conflicts”. 137 See ICTY, Prosecutor v Mitar Vasiljevi´ c, Judgment, 29 November 2002, Case No. IT-98-32-T, paras 193–204, and then para 205 (for comparison). See also ICC 2011, Article 8(2)(c)(i)(1) on the elements of the war crime of murder. 138 Cassese 2013, pp 182, 187. 139 Jackson 2019, p 410. 140 See ICTY, Prosecutor v Enver Hadžihasanovi´ c, Mehmed Alagi´c and Amir Kubura, Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, 16 July 2003, Case No. IT-01-47-AR72 (Hadžihasanovi´c et al.), para 16. 141 Ibid., para 22. 135 La

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responsibility enforces this requirement for ANSAs,142 therefore highlighting the critical need for these entities to review and scrutinise the conduct of their members in armed conflict. The application of the doctrine is premised on the existence of three main elements: first, there must be a relationship of subordination between the commander (superior) and the members of the ANSA who are about to engage in or have engaged in the criminal conduct; second, the commander (superior) must have knowledge or constructive knowledge of the involvement of the subordinates in the criminal conduct; third, the commander (superior) must have failed to take the necessary and reasonable measures to prevent the commission of the criminal conduct, or to punish the subordinates.143 Importantly, the duty of the ANSA commander to punish criminal conduct by subordinates in the armed group would require investigation of the alleged prohibited conduct—at the very least. In such an undertaking, the ANSA commander is obliged to do all that is necessary and reasonable within her material ability, but not required to do the impossible.144 Furthermore, where the ANSA commander only learns of the crime subsequent (not prior) to its alleged commission, arguably the breach of the duty to punish can be imposed on her, in view of command responsibility as a crime per se.145 In this regard therefore, it is plausible to consider the requirement to investigate an alleged murder or loss of life on the basis of a failure to adhere to the rules on the conduct of hostilities, as necessary. Under CA 3, if persons taking no active part in hostilities are targeted and killed by members of the ANSA with the knowledge (constructive or otherwise) of the commander, the commander’s failure to investigate the conduct and punish it would entail her liability under international law. More broadly, under the IHL of NIACs, if members of an ANSA use means and methods that are excessive, and cause superfluous injury and unnecessary suffering— including to members of the armed forces (in violation of the principle of military necessity)—with the knowledge of the ANSA commander, the failure to reasonably investigate and sanction such violation of the protection of life would result in the commander’s culpability. It is therefore critical that ANSA commanders have processes in place to be able to investigate and punish the violation of the protection of life by ANSA members, occurring in the context of armed hostilities.146 Investigation of the loss of life would be the necessary means of an ANSA commander fulfilling the duty to punish criminal conduct during NIACs. 142 Ibid.,

para 16. 2013, p 187; Jackson 2019, p 410–411. 144 ICTY, Prosecutor v Tihomir Blaški´ c, Judgment, 29 July 2004, Case No. IT-95-14-A, para 417. See also ICC, Prosecutor v Jean-Pierre Bemba Gombo, Judgment on the appeal of Mr. Jean-Pierre Bemba Gombo against Trial Chamber III’s “Judgment pursuant to Article 74 of the Statute”, 8 June 2018, Case No. ICC-01/05-01/08 A (Bemba), paras 167–170. 145 Cassese 2013, p 192. 146 See Bemba, above n 144, para 182 in which it seems to be taken for granted by both the Trial and Appeals Chambers that Mr. Bemba as a commander should have a process in place to adequately investigate and prosecute allegations of crimes. 143 Cassese

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4.5.2 Implied Obligation for Armed Non-State Actors to Investigate Loss of Life Flowing from the establishment of some justification for ANSAs to investigate loss of life during armed hostilities above, the next step is to determine whether there could be a legal basis for such an obligation in IHL of NIACs for ANSAs. The argumentation followed here is that the rationale expounded above links with an inherent legal permissiveness in IHL; an implied legal basis for ANSAs to carry out investigations and potential punishments for the violation of the right to life by members in their ranks, during armed conflict. Seventy years on, the link between CA 1 and CA 3 of the 1949 Geneva Conventions plays a crucial role in establishing the link (between the rationale above and an inherent legal permissiveness), as well as in understanding the obligation to investigate, even for ANSAs in NIACs.

4.5.2.1

Tracing a Legal Basis for Armed Non-State Actors?

Pivotal in this regard, is the regime under IHL that deals with the obligation to ensure respect for IHL, and to suppress violations—as has been explored above in the discussion on affording practical effect to the right to life (Sect. 4.5.1.1 above). Indeed, as loss of life is part and parcel of the reality of armed conflict—a realism embedded in the rules and structure of IHL; any obligation to investigate loss of life must hinge on the requirement to sanction serious violations of the IHL of NIACs, and the importance of ensuring the compliance with IHL rules in these noninternational situations as well.147 Furthermore, drawing from the foregoing analysis on the impact of the criminalisation of serious violations of CA 3 and other IHL rules of NIACs (Sect. 4.5.1.2 above), as well as the assessment of the influence of the rules on command responsibility (Sect. 4.5.1.3 above); it is apparent, that the parameters and legal basis of any obligation to investigate, must relate to war crimes.148 Commentary on this matter more broadly, emphasises that under IHL, investigation is required only where there is reasonable suspicion, credible allegation,149 or a possibility that serious violations of IHL150 —or war crimes for that matter—have

147 See

Bassiouni 2008, pp 732–733. Hadžihasanovi´c et al., above n 140, para 13. 149 Schmitt 2011, p 83. 150 Sassòli and Olson 2008, p 615, there n 77. 148 See

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been committed.151 As observed previously, CA 1 of the 1949 Geneva Conventions enjoins the respect, and ensuring of respect, for the Conventions;152 the latter reflecting a positive facet of the obligation to respect the rules in the 1949 Geneva Conventions.153 Further, with regard to preventing and punishing violations, the 1949 Geneva Conventions establishes obligations for the penal repression of a category of war crimes referred to as grave breaches—an additional emphasis on the positive nature of the obligation for the respect of the 1949 Conventions.154 This positive obligation includes the obligation to suppress other violations, other than the grave breaches regime.155 Certainly, this latter obligation to suppress other violations could be considered to include serious violations of CA 3,156 as well as AP II—where it is applicable, in a NIAC.157 This is the current expansive reading of the obligation to suppress, that moves beyond a restrictive interpretation that emphasises a noncriminal and administrative legal approach to investigative obligations beyond grave breaches.158 Indeed, other violations of the 1949 Geneva Conventions do warrant criminal punishment.159 It has been authoritatively contended that, “[t]here can, however, be no doubt that the primary purpose of the paragraph [on suppression of other violations] is the repression of infractions other than ‘grave breaches’”.160 Consequently, it is argued that the positive obligation to investigate (the other serious violations contained in CA 3) for ANSAs may be deduced from the operation of CA 1, which has an indirect method of application in non-international armed conflicts. In this regard, Zegveld continues to suggest, that CA 1, in providing a basis for investigation and prosecution, applies equally to ANSAs involved in NIACs.161 One way to confirm this suggestion by Zegveld regarding CA 1, is to refer to the position under customary IHL. Indeed, the ICRC Customary Study has affirmed 151 See

UN Human Rights Committee (2018) General comment No. 36 (2018) on article 6 of the International Covenant on Civil and Political Rights, on the right to life, UN Doc. CCPR/C/GC/36, para 64 in which investigation is highlighted for, “alleged or suspected” violations of the right to life in situations of armed conflict. 152 This is re-emphasised in Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), opened for signature 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978), Article 1. 153 See Dörmann and Henckaerts 2016, para 145, where the positive nature of this facet of respect for the Conventions can be deduced from the fact that “States are thus required to take appropriate measures”. 154 See, e.g., GC IV, above n 1, Article 146(1) where it is required that states “undertake to enact” legislation, which provides “effective penal sanctions” for grave breaches. 155 See GC IV, above n 1, Article 146(3). 156 See argument in Margalit 2018, p 86. 157 See Dörmann and Henckaerts 2016, paras 2896–2897, particularly with regard to the impact of the Rome Statute of the ICC (which includes serious violations of AP II) on State practice. 158 See detailed discussion of this expansive approach in Tan 2016, pp 204–206. See also Cohen and Shany 2011, pp 42–44. 159 See Gaeta 2015, p 741, para 10. 160 Pictet 1952, p 367. 161 Zegveld 2002, p 67.

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that State practice establishes this rule of investigation as a norm of customary international law in both IACs and NIACs.162 Notably, the ICRC Study indicates that an obligation to investigate and prosecute is stated explicitly in a variety of military manuals and agreements163 —including the Agreement on the Application of International Humanitarian Law between the Parties to the Conflict in Bosnia and Herzegovina. This latter example of practice is critical because it involved ANSAs committing alongside States to open prompt enquiries and take necessary steps to put an end to alleged IHL violations, including a pledge to prevent the recurrence of such violations, and to punish the individuals responsible.164 Another example of practice mentioned, that is pivotal in this regard, is UN Security Council Resolution 1193 on Afghanistan, where the Council condemned armed attacks against UN personnel in Taliban-controlled territories. In this conflict in Afghanistan, the Security Council called upon the Taliban (an ANSA) “to investigate urgently [the] heinous crimes and to keep the [UN] informed about the results of the investigation”.165 In this regard therefore, it would seem that the treaty framework, commentary, and State practice more broadly, support the existence of a duty to report and perform some form of investigation in all cases of suspected violations—including for ANSAs.

4.5.2.2

Implicit Basis for Armed Non-State Actors in the International Humanitarian Law Framework for Non-International Armed Conflicts

Therefore, it can be plausibly submitted that where there is a suspicion or an allegation of a violation of the right to life in a NIAC, an ANSA should investigate the loss of life, if it implicates its members. This position is implied in a purposive reading and review of both CA 3 and AP II—from the vantage point of the non-State parties to NIACs. Notably, both CA 3 and Article 6 of AP II make inferences to penal prosecutions by the non-State entity, pointing out certain requirements and standards of these processes.166 Indeed, both provisions—at the very least—expect ANSAs to: first, have a regularly constituted court affording judicial guarantees; second, possess some sort of system in which they are able to establish the guilt or innocence of the persons they subject to these ‘judicial systems’; and third, have the capacity to effectively prosecute “offences related to the armed conflict”,167 on the basis of individual criminal responsibility. Generally, it appears that States intuitively did not 162 Henckaerts

and Doswald-Beck 2005, pp 608, 618, Rules 158, 161. p 608. 164 See Agreement on the Application of International Humanitarian Law between the Parties to the Conflict in Bosnia and Herzegovina, Republic of Bosnia and Herzegovina, Serbian Democratic Party, Croatian Democratic Community, concluded 22 May 1992, Article 5(2). 165 See UN Security Council (1998) Resolution 1193 (1998), UN Doc. S/RES/1193 (Afghanistan), para 6. 166 See, particularly, AP II, above n 11, Article 6(2). One of the requirements mentioned is the centrality of individual criminal (penal) responsibility. 167 See, AP II, above n 11, Article 6(1). 163 Ibid.,

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entirely consider it inconceivable that ANSAs could have some sort of internal system that engages in investigation to prove the guilt or innocence of persons subjected to ANSA ‘courts’. Ostensibly, investigation with a view to having persons tried—fairly, does not seem to be removed from the thrust of these provisions in CA 3 and AP II.168 Consequently, it is clearly not a stretch to expect ANSAs to carry out some sort of investigation for the loss of life. Article 6(1) AP II actually indicates that the provision “applies to the prosecution and punishment” of offences related to the NIAC, by the parties—including ANSAs.169 As the law presumes ANSAs to be able to investigate and carry out ‘trials’ within their systems; then in light of the “supreme” nature of the right to life, which continues to apply in armed conflicts, ANSAs should be able to investigate the loss of life linked to suspected serious IHL violations allegedly perpetrated by their members.170 Certainly, such investigation and punishment has been stated to be critical for ANSAs, to the extent that they could ‘extradite’ the accused persons to third States, if they (ANSAs) are unable to punish violators of IHL in fair and regular trials.171 Indeed, what is suggested in this chapter is—at the very least, that there exists an implied obligation to investigate the loss of life. Even if not explicitly stated in CA 3 or AP II, the general legal framework in these instruments seems to suggest so—otherwise the legal framework would be functionally impossible. ANSAs need to have the basis to investigate; otherwise it would be impossible to effectively carry out trials (and prosecutions and punishments) as it is suggested they can, under CA 3 and Article 6 of AP II.172 Moreover, these provisions should not be looked at in a vacuum: this implied obligation to investigate finds location in the existence of obligations under IHL for ANSAs regarding the right to life, and in the impact of the criminalisation of the serious violations of IHL of NIACs, as well as in the duties attached to the operation of the doctrine of command responsibility to ANSAs in NIACs. The position above under customary IHL (as suggested in Sect. 4.5.2.1) provides some perspective to this suggestion (of an implied obligation), including the evidence of practice involving commitment by ANSAs to carry out such investigations of serious violations of IHL. Besides, it has been emphasised that if an IHL obligation to investigate loss of life exists only for the State, the consequence would be an inequality of belligerents, due to the heavier IHL burden resting on the State.173

168 Somer

2007, pp 670–671. AP II, above n 11, Article 6(1). 170 See, Somer 2007, p 684 where Somer addresses the implication of a requirement on ANSAs to prosecute war crimes, particularly in light of the principle of equality of parties. 171 Henckaerts 2003, p 133. 172 See the object and purpose rule in Vienna Convention on the Law of Treaties, opened for signature 23 May, 1155 UNTS 331 (entered into force 27 January 1980), Article 31(1). It is suggested that the object and purpose of the criminal trials suggested in CA 3 and Article 6 AP II would not be achieved unless there is the presumption that investigations take place to fulfil these requirements. 173 Somer 2007, p 684. This rehashes the point emphasised throughout the chapter about the centrality of the equality of belligerents in understanding IHL obligations, even in NIACs. Somer roots his analysis in a similar way. 169 See,

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4.5.3 The Nature of Armed Non-State Actors Investigations under International Humanitarian Law Based on the requirement in the 1949 Geneva Conventions for parties (States) to “undertake to enact any legislation necessary to provide effective penal sanctions”,174 it is submitted that investigations carried out in the repression and suppression of grave breaches and other serious violations, should be effective.175 Arguably this position is strengthened by the consideration that CA 1—with regard to the standard to “ensure”—requires that parties (States) “make certain that something will occur” or “inversely make sure that (a problem) does not occur”.176 The requirement for effectiveness and certainty with regard to the enforcement of the IHL rules makes it pivotal that processes are efficient in achieving the object and purpose of the legal framework. Additionally, the fact that the protection of life as a “supreme” right, is guaranteed in both the grave breaches and serious violations of the 1949 Geneva Conventions regimes, it seems apparent that investigation of the loss of life or a suspected war crime, ought to be effective.177 It is conceded here that in referring to the effectiveness of penal sanction, the 1949 Geneva Conventions were addressing the character of the legislation instituted to sanction the violations of the IHL rules in the domestic context.178 Indeed the 2016 ICRC Commentary buttresses this tenor of the Conventions, by exploring the characteristics of what an effective penal sanction would look like. It mentions that the domestic implementing legislation ought to provide for penal sanctions that are appropriate and strictly applied; ought to be sufficiently dissuasive; should have sanctions imposed quickly after the prohibited act has occurred—that is, significantly deterrent; ought to be foreseeable, and publicly disseminated; should be applicable without discrimination; ought to respect the individualisation of the criminal sentence, as well as the proportionality between the severity of punishment and gravity of the offence; and should contain or reflect some general principles of international law.179 However, these characteristics—though focusing on the quality of legislation—have a bearing on the processes that implement the penal sanction. The effectiveness of the legal sanction should influence the effectiveness of the process,

174 Emphasis

added. See, e.g., GC IV, above n 1, Article 146(1). et al. 2019, p 7, para 31. 176 Dörmann and Henckaerts 2016, para 145. 177 See GC IV, above n 1, Articles 3(1)(a), 147 referring to “murder of all kinds” and “wilful killing” respectively. See also Dörmann and Henckaerts 2016, para 2819, where the object and purpose of this obligation is pointed out with regard to both grave breaches and other serious violations of the Conventions. 178 Dörmann and Henckaerts 2016, para 2840. 179 See ibid., paras 2841, 2842, 2843, and 2845 respectively. 175 Lubell

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and should reflect the seriousness with which the obligation is translated into practice for Parties (States). Simply put, the effectiveness in applicability of the criminal sanction requires the process of investigation to be effective as well.180 The Geneva Academy and ICRC Guidelines on Investigating Violations of IHL insist that an investigation needs to be effective; that is, the “process must be appropriate and undertaken in good faith, with all feasible means employed to achieve its goal”.181 Importantly, the Guidelines draw the link of effectiveness between “effective penal sanctions”, “effective remedies”, and “effective investigations”.182 Indeed, investigating conduct suspected to reflect the commission of war crimes or serious violations of CA 3 must serve the purposes inherent in the pertinent criminalisation of such conduct under international law.183 In NIACs, where persons taking no active part in hostilities are very susceptible to being targeted and killed, it is pivotal that investigations are effective, and the legal frameworks for such investigations are appropriate to protect these persons and provide accountability.184 In this regard the Geneva Academy and ICRC Guidelines on Investigating Violations of IHL stress that the effective investigation should be capable of enabling a determination of the existence of a violation of IHL; be able to identify the individual and systemic factors causing or contributing to the incident; and be capable of laying the ground for any required remedial action.185 In view of the potential application of these standards by States to serious violations of IHL within the purview of CA 3, it is suggested here that these standards should, to a great extent, be required of ANSAs as well. Beyond the argument of the equality of belligerents (parties), it is important that ANSAs have guidance on the nature of investigations that they ought to carry out to comply with their IHL obligations on the right to life. Understanding the character of investigations to be carried out, goes a long way in providing practical effect to their right to life obligations, as they engage in the conduct of hostilities and plan their military operations. They can plan their operations in such a way that they are able to easily and effectively carry out investigations of a loss of life, where it becomes apparent that their members have committed a war crime or serious violation of CA 3. The application of these standards to ANSAs has to be sensitive to the realities of their capacity, especially in the context of ongoing hostilities. Such sensitivity is not new, as it is generally

180 See Schmitt 2011, p 55, where he indicates quite emphatically that “[e]ffectiveness is an implicit

characteristic of all investigations”. et al. 2019, p 7, para 30. 182 Ibid., para 31. 183 See Gaggioli 2017, pp 27, 30 where she emphasises that “[i]t would indeed be impossible to prosecute alleged war criminals without having previously conducted an effective criminal investigation”. 184 See Gaggioli 2017, p 41. Gaggioli indicates the unfortunate reality in NIAC practice that murders of civilians are sometimes disguised as deaths in combat. She then makes the case for the need to clearly understand and verify what took place and whether the killing of civilians actually amounts to serious IHL violations. 185 Lubell et al. 2019, p 7, para 32. 181 Lubell

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proposed with regard to applying these standards in the context of armed conflict and actual battlefield conditions.186

4.6 International Human Rights Law Application in the Investigation of Loss of Life by Armed Non-State Actors It has hitherto been established in this analysis that in any situation of armed conflict, the matters of the protection of life revolve primarily around the use of lethal force, governed by both IHL, as well as IHRL. It has been suggested in this chapter, that if it is accepted that both IHL and IHRL bind ANSAs, then naturally ANSAs will find themselves with obligations under both regimes, which would need to be balanced in their military operations. In this regard, it has been clarified that the two paradigmatic constructs of conduct of hostilities and law enforcement, governed by IHL and IHRL respectively, can inter-operate to provide a framework that effectively protects life in all circumstances during conflict.187 In this section, the discussion turns to an analysis of the impact of IHRL and the ‘law enforcement paradigm’ in providing clarity to the nature of investigation required to fulfil the obligation to investigate under IHL. It does not address the legal basis under IHRL for ANSAs to investigate the loss of life—as this would go beyond the scope of this chapter. This is because the focus of the chapter is the exploration of the IHL framework on the legal basis for ANSAs to investigate loss of life primarily with regard to the conduct of hostilities in NIACs. However, it is critical to note on the onset that depending on the capacity of an ANSA, the ‘law enforcement paradigm’ can be leaned on more, to provide clarity to the obligation to investigate. Simply put, where an ANSA has effective control of territory—for example—the ‘law enforcement paradigm’ can become even more relevant in shaping the nature of investigations for loss of life by the non-State actor.188 The example of the Taliban in Afghanistan mentioned earlier, who exercised territorial control, demonstrates one of the situations where the ‘law enforcement paradigm’ would be relevant in providing content to investigations resulting from military operations. In this regard, the UN Security Council, while calling upon the Taliban to investigate the killings of particular persons,189 emphasised the importance 186 Cohen

and Shany 2011, p 59; Schmitt 2011, p 55; Margalit 2018, p 68–69. generally, Gaggioli 2017. 188 See conclusions in Fortin 2017, pp 281–282 where she explains the rationale in viewing ANSAs with control of territory as de facto states for purposes of examining conduct that is impersonal and relates to the community. 189 UN Security Council (1998) Resolution 1193 (1998), UN Doc. S/RES/1193 (Afghanistan), para 6. 187 See,

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of the ANSA to comply with its obligations under IHL,190 and to put an end to human rights violations (not ‘abuses’)—as it adheres to internationally accepted norms and standards.191 The internationally accepted norms and standards for investigation of the use of lethal force, under IHRL in a ‘law enforcement paradigm’, would be applicable in such a situation where there is control of territory by the Taliban. The control of territory (and of populations) places the ANSA in a position where the balance between the law enforcement and conduct of hostilities paradigms becomes more apparent and necessary, due to the impact of its operations.

4.6.1 International Human Rights Law’s Enforcement Paradigm and the Investigation of Loss of Life Generally, under IHRL’s ‘law enforcement paradigm’ and the protection of the right to life, there exists a clear duty to investigate each time lethal force is used. This has been emphasised by—among others—UN Special Procedures Mandates, the African Commission on Human and Peoples’ Rights, and the Human Rights Committee.192 Relatedly, the pivotal IHRL document concerning the protection of life during law enforcement operations is the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, which recognises that “law enforcement officials have a vital role in the protection of the right to life” as guaranteed in pivotal IHRL treaties.193 Importantly, it emphasises that circumstances such as “internal political instability” (NIACs) “may not be invoked to justify any departure” from the principles on the use of force in law enforcement.194 Within the purview of these Basic Principles, it is emphasised that during law enforcement, officials carrying out their duty, must apply non-violent means before resorting to the use of lethal force.195 Lethal force therefore, can only be employed “if other means remain ineffective or without any promise of achieving the intended result”.196 In such situations where the use of lethal force is unavoidable, any injury or death occasioned by the use of lethal force during law enforcement must be

190 Ibid.,

para 12. para 14. 192 Alston (2006) Report of the Special Rapporteur, Philip Alston: Civil and Political Rights, Including the Questions of Disappearances and Summary Executions. UN Commission on Human Rights, UN Doc. E/CN.4/2006/53, para 36; African Commission on Human and Peoples’ Rights (2015), para 20; UN Human Rights Committee (2018) General comment No. 36 (2018) on article 6 of the International Covenant on Civil and Political Rights, on the right to life, UN Doc. CCPR/C/GC/36, para 64. 193 United Nations 1990, preambular para 3. 194 See ibid., Principle 8. 195 Ibid., Principle 4. 196 Ibid. 191 Ibid.,

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reported promptly to superior persons.197 Such reporting is guaranteed by the additional requirement in the Basic Principles, that a system be provided for where reporting of any use of lethal force by law enforcement persons can be directed.198 Indeed, investigation of any use of force is inevitable and must always be reported for such a process to be activated. Consequently, it is required that governments and law enforcement agencies establish effective reporting and review processes for all incidents of the use of lethal force during law enforcement operations.199 Additionally, States must ensure that an effective review process is available, with independent prosecutorial authorities; and that a report in this regard is detailed and prompt with the attendant judicial control.200 Put differently, any use of lethal force during law enforcement must be subjected to an effective investigation in order to properly safeguard the right to life.201 The process for review of such use of force is equally important, and must be appropriate to provide practical effect to the protection of the right to life, even during internal political instability and armed conflict.202 Therefore, since the investigation of the loss of life is imperative whenever force is used in law enforcement, IHRL has very well developed parameters for the nature of such investigations.203 Beyond calling for an effective investigation to adequately preserve the protection of the right to life, IHRL also spells out the key qualities of what amounts to an effective investigation of loss of life occasioned by the use of lethal force. This is where IHRL becomes essential in providing substance to the effective investigation obligation invoked within the IHL framework.204

4.6.2 Fulfilling the Requirement for an Effective Investigation of the Loss of Life by Armed Non-State Actors It has been rightly asserted elsewhere, that the obligation to investigate war crimes or serious violations of IHL, and the obligation to investigate the loss of life established

197 See

ibid., Principle 6. ibid., Principle 11(f). 199 Ibid., Principle 22. 200 Ibid. 201 Indeed, in Cohen and Shany 2011, p 62 it is noted that “the most important component of a proper investigation is its effectiveness”. 202 See UN High Commissioner for Human Rights 2016, p 4; Callamard (2018) Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions on armed non-State actors: the protection of the right to life, UN Human Rights Council, UN Doc. A/HRC/38/44, para 75. 203 See Cohen and Shany 2011, p 59; Tan 2016, p 220. 204 Margalit 2018, p 67; Murray 2017, p 334, para 17.28. 198 See

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under IHRL are complementary. However, while IHRL determines the primary principles regulating the conduct of an investigation, IHL is largely silent in this regard.205 This puts in perspective the need for an effective balancing process of the obligations under both regimes. In this regard, as IHRL provides clarity to the substance of an effective investigation, the balancing act will favour the elaboration of principles contained in the ‘law enforcement paradigm’ that address the review and scrutiny of the use of lethal force.206 However, the balancing act will at the same time reflect the realities of the conduct of hostilities as embedded in the IHL framework.207 Though these standards are mostly discussed in the context of the obligations of States, it is considered here that these principles provide guidance for potential investigations by ANSAs. The reason for this position—rooted in the logic already raised in this chapter—is four-fold: first, if it is accepted that ANSAs have obligations with regard to the right to life during armed conflict, then the guaranteeing of its (right to life) protection is incomplete in the absence of clear guidelines on how to investigate serious violations of the right;208 second, if States involved in NIACs are making use of the same IHRL principles in their fulfilment of the obligations under IHL, then the equality of parties in armed conflict would require a measure of adherence to similar principles on the part of the ANSA;209 third, the standards for the effective investigation of loss of life during an armed conflict, should—as much as possible—not be compromised or downgraded, on account of the State being unable to effectively carry them out;210 and fourth, the ‘law enforcement paradigm’ presents the most appropriate paradigm for analogy to ANSAs since it deals with the use of lethal force by persons exercising a form of authority over territory (and persons).211 In situations—particularly where ANSAs have effective control of territory, and find themselves carrying out more law enforcement-type operations during conflict— the standard for the effective protection of the right to life should largely remain consistent to fulfil the objectives of the protective frameworks under both IHL of NIACs and IHRL.212 205 See,

Murray 2017, p 334, para 17.28. See also Tan 2016, pp 213–220 for an extensive critique of the lack of standards for reporting and investigation in the IHL framework. 206 Tan 2016, p 223. 207 See Gaggioli 2017, p 50. 208 This is inferred from carrying the argument of the need to provide practical effect mentioned by Callamard to its logical conclusion. See argument in Callamard (2018) Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions on armed non-State actors: the protection of the right to life, UN Human Rights Council, UN Doc. A/HRC/38/44, p 16, para 75. 209 See Callamard’s argument regarding restricting ANSAs to IHL establishing inequality of obligations in Callamard (2018) Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions on armed non-State actors: the protection of the right to life, UN Human Rights Council, UN Doc. A/HRC/38/44, p 7–8, para 28. See also Somer 2007, p 688 where he argues for an analogous application of IHRL, rather than importation of IHRL qua human rights law in order to respect the equality of belligerents. 210 See the import of the principle of effectiveness in Fortin 2017, p 274. 211 Ibid., pp 37–38. 212 See argument in ibid., p 243.

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Therefore, to ensure the effectiveness of an investigation the following principles should be adhered to: the persons conducting the investigation must be independent and impartial; the investigation must be thorough in nature, and not a sham process; the investigation should be prompt, and carried out without unreasonable delay; and the investigation should be as transparent as possible in view of the prevailing circumstances.213 These principles should be adhered to—as far as possible—by ANSAs carrying out the investigations of serious violations of IHL of NIACs related to the loss of life, resulting from their conduct of hostilities and military operations. Notable in this regard is the fact that within the framework of IHL rules applicable to ANSAs, some of these requirements of an effective investigation are invoked with regard to the penal prosecutorial process. AP II indicates that prosecution and punishment by ANSAs of criminal offences related to the armed conflict shall be effected by their ‘courts’ “offering the essential guarantees of independence and impartiality”.214 There is therefore a consistency in the application of these principles borrowed from IHRL standards usual for States in the investigative process to be carried out by ANSAs, where there is an allegation of a serious violation of the right to life.

4.6.2.1

Independence and Impartiality

It is critical that an independent and impartial investigative authority carries out the investigation215 where there are reasonable grounds to suspect that a member of the ANSA has committed a war crime. This means the investigative authority should be able to conduct investigations of the loss of life without interference from other parts of the group other than the one performing the investigative and oftentimes judicial function.216 The ANSA investigative authority should not have a personal bias or conflict of interest in relation to the matter being investigated.217 Therefore, the investigative entity or person within the ANSA should not have been implicated or exposed in the incident in question. If this were so, it would be important to declare an interest and preferably extract themselves from the process.218 Persons independent of those with a continuous combat function would be best suited to fulfil the independence requirement. This necessarily implies that the ANSA should ensure it has a separate entity within its structure to deal with the accountability for violations within the ranks 213 See

Lubell et al. 2019, p 7, para 32. See also Murray 2017, pp 333–335, paras 17.25, 17.30 respectively; Tan 2016, p 220. 214 See AP II, above n 11, Article 6(2) (emphasis added). 215 See Lubell et al. 2019, p 24, Guideline 7 ‘Independence and Impartiality’. 216 Consider the implication in ANSAs of the standard in ibid., para 123. See also, Murray 2017, p 335, para 17.33. 217 This would be the import for ANSAs of the principle stated in UN High Commissioner for Human Rights 2016, p 8, para 31. 218 Lubell et al. 2019, p 24, para 125. See also Margalit 2018, p 54.

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of the group. Such separation would ordinarily guarantee the independence and impartiality of the investigative process. This entity would need to be outside the regular chain of command that carries out the hostilities and military operations.219

4.6.2.2

Thoroughness

The ANSA should endeavour to be thorough in the investigations, taking all necessary and feasible steps to collect, analyse, preserve, and store evidence relating to the use of force during military operations.220 Gaps in information should be accounted for and explained, especially where inquiries have not been conducted into critical members of the fighting force who were involved in a particular problematic military operation.221 This necessarily means that an ANSA should ensure that it can task a person and/or section with collecting and documenting such information, even as the fighting wing of an ANSA (persons with a continuous combat function) carries on the military operations.222 As thoroughness would require the ANSA to carry out an investigation carefully, to achieve the intended purpose of uncovering the facts regarding particular military operations, it is critical, that the internal process details clear steps that would guarantee that the facts are properly discovered and evaluated.223 An ANSA would need to preserve the sanctity of information and evidence gathered, providing effective ways of storing the same—including through use of modern technologies (this refers to the relative technological sophistication of contemporary ANSAs—including some that recruit members electronically).224 As such processes take on a strong criminal justice character, it is critical that attention is paid to ensuring that the process is comprehensive.225 In light of an ANSA not being a State actor with the benefit of a properly established criminal justice system, flexibility would be inevitable. However, an ANSA must take care to ensure that the process is complete. Furthermore, attention must be paid to ensure that gathering of evidence does not inappropriately prejudice the subject of the investigation.226

219 See the standard in Lubell et al. 2019, pp 24–25, paras 126–128. See also UN High Commissioner

for Human Rights 2016, p 8, para 28. the general standard in Lubell et al. 2019, p 26, para 135. 221 See Gaggioli 2017, p 46 where she highlights problems in this regard as dominant in NIACs. 222 See the general position regarding the need for a separate empowered investigative team to carry out the work diligently in UN High Commissioner for Human Rights 2016, p 8, para 27. 223 See the general standard in Lubell et al. 2019, p 26, para 135. 224 This is the import for ANSAs of the position in Gaggioli 2017, p 48. 225 The Minnesota Protocol details what is necessary to be addressed in a comprehensive investigation. See UN High Commissioner for Human Rights 2016, p 7, para 25. 226 See the general position in Lubell et al. 2019, p 26, para 136. 220 See

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Promptness

The investigative process by the ANSA should be initiated promptly after it has become apparent that reasonable grounds exist to believe that a member of the fighting wing of the group has committed a war crime or serious violation of IHL during hostilities.227 This means that any delay must be reasonable and justified in the circumstances.228 Indeed, in some instances, proximity to the battlefield could justify a delay.229 However, an investigation should be prompted as soon as possible because it becomes increasingly difficult to collect evidence when the incident in question becomes more distant and remote with the passing of time.230 Furthermore, once the investigation has been instituted, the necessary subsequent action should be taken without unreasonable delay. This does not necessarily imply speediness (although this would constitute an indication of the timeliness of the investigation) of the results, but rather that there must be continuous investigative activity and proper justification for delay when that is not the case.231 As there are no time limitations in respect to bringing the perpetrators of war crimes to justice under international law, lapse of time should not be used as a pretext not to institute investigations at all.232 Although such an investigation (opened long after the incidents in question) would more than likely face particular obstacles as regards the thoroughness of the process and complexity of the case, the scope and mandate could be carefully determined to provide as effective an investigative process as possible in the circumstances.233

4.6.2.4

Transparency

It is critical that an investigation into the loss of life during military operations be as transparent as possible taking into account the circumstances. In this sense, transparency may include the need for an open investigation process, communication, as well as clarity of the procedure and method for accountability.234 Critically, information on what procedures are in place for carrying out such investigations should be made readily available to the general public.235 Further, the 227 See

Lubell et al. 2019, p 28, Guideline 9 ‘Promptness’. Consider also the standard in Tan 2016, p 222. 228 UN High Commissioner for Human Rights 2016, p 7, para 23. 229 See Lubell et al. 2019, p 28, para 143 for a general position on the principle. 230 See the discussion in Gaggioli 2017, p 47 on the importance of time in preserving the evidence in an investigation. 231 See Lubell et al. 2019, p 28, para 144. 232 See ibid., para 145. 233 See ibid., para 145. See also Murray 2017, p 337, para 17.39. 234 See Lubell et al. 2019, p 28, Guideline 10 ‘Transparency’. See also UN High Commissioner for Human Rights 2016, p 8, para 32. See also Tan 2016, p 222. 235 Lubell et al. 2019, p 29, para 147.

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ANSA should endeavour to communicate the outcome of an investigation, including whether or not further measures are going to be undertaken.236 These latter features of transparency are critical for an ANSA for three particular reasons: first, the ANSA is able to show the international community that it takes violations of IHL—particularly with regard to the protection of life—very seriously and subjects such conduct to internal review and scrutiny; second, the ANSA is able to build confidence within its own ranks, that the investigative process is not vindictive, but is credible and seeks to maintain discipline within fighting members (with a continuous combat function); and third, the ANSA is able to demonstrate that IHL is being complied with, and that it has the capacity to adhere to international legal provisions and standards. Indeed this can aid the delisting of an ANSA from the UN Security Council Monitoring and Reporting Mechanism, where ANSAs can find themselves in the Annex of the Secretary General’s Report for violations against children in armed conflict.237

4.7 Conclusive Remarks The protection of the right to life remains a central theme—even in the context of armed conflict. Indeed, 70 years on from the promulgation of the 1949 Geneva Conventions, the need to protect persons not taking an active part in hostilities against violations of their right to life, has only increased in prominence and normative clarity. With particular regard to the usually rather rudimentary regime of the law applicable in NIACs, the subsequent expansion of the legal regime has made it possible to contemplate an increased scope of obligations for ANSAs. ANSAs can now be considered to possess obligations under IHL and IHRL as they relate to the protection of life, and can be contemplated to operate within the respective conduct of hostilities and law enforcement paradigms. Consequently, they are called upon to effectively balance their obligations in both regimes to ensure that the right to life is effectively protected when they engage in armed hostilities. With a specific focus on the IHL regime applicable in NIACs—with CA 3 as the inevitable starting point—this chapter has attempted to expound on the applicability of the ‘conduct of hostilities paradigm’ to ANSAs during armed conflict. It has suggested that ANSAs are bound by the principles of the conduct of hostilities and therefore can legally use lethal force during armed conflict. Consequently, it has been suggested that since the rules under the ‘conduct of hostilities paradigm’ exist not only to protect civilians from lethal attack, but also to limit the amount of force used 236 See,

ibid., paras 150–151 as would be applicable here to ANSAs. UN Security Council (2005) Resolution 1612 (2005), UN Doc. S/RES/1612 in which the Security Council established a Monitoring and Reporting Mechanism on grave violations committed against children in times of armed conflict. Previously, only parties that recruit and use children were included in the lists annexed to the annual report. With subsequent practice, the UN Security Council now endorses lists of armed forces and groups who kill and maim children, commit sexual violence against children, attack schools and hospitals, and abduct children. Compliance with internal investigations by an ANSA would go a long way in influencing its delisting.

237 See

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against military forces to what is required under the principle of military necessity, it is imperative that ANSAs function properly within the well-structured ‘conduct of hostilities paradigm’—guaranteeing that any loss of life perpetrated by them during NIACs does not violate the applicable IHL. Therefore, it has been submitted in this chapter that there is a requirement for ANSAs to investigate the loss of life during NIACs, on account of their use of lethal force in the conduct during hostilities. Such investigations provide practical effect to the general rule against the violation of the right to life in hostilities, reflect the impact of the criminalisation of serious violations of IHL in NIACs in relation to the protection of life, and emphasise the importance of responsible command in ANSAs to ensure the compliance of ANSAs with IHL rules—particularly those rules related to the conduct of hostilities and the protection of life. Consequently, it has been proposed in this chapter that there exists an implied obligation in IHL for ANSAs to investigate the loss of life during NIACs. Even if not explicitly stated in CA 3 or AP II, the general legal framework in these instruments seems to suggest so, and it is arguably complemented by customary IHL given the evidence of practice involving commitments by ANSAs to carry out such investigations of serious violations of IHL. This obligation is also considered to be an outworking of the equality of belligerents, which would require both the State and ANSA to investigate any war crimes being perpetrated by their members in NIACs. Thus, in performing this implied obligation, ANSAs are required to conduct effective investigations of any suspected war crimes or serious violations of IHL. The manifestation of the content of an effective investigation is provided by the interplay between IHL and IHRL—with IHRL and the ‘law enforcement paradigm’ providing details as to how ANSAs should conduct such investigations. Accordingly, 70 years down the road from the advent of the 1949 Geneva Conventions, it can be tentatively agreed that ‘rebels’ can hold out the iconic ‘Holmesian’ magnifying glass, and scrutinise suspected murderous conduct; interestingly, perhaps unlike Sherlock, with a little more introspection to bring their own behaviour to the light of the law.

References Articles, Books and Other Documents African Commission on Human and Peoples’ Rights (2015) General Comment No. 3 on the African Charter on Human and Peoples’ Rights: The Right to Life (Article 4) Alston P (2006) Report of the Special Rapporteur, Philip Alston: Civil and Political Rights, Including the Questions of Disappearances and Summary Executions. UN Commission on Human Rights, UN Doc. E/CN.4/2006/53 Bassiouni M (2008) The New Wars and the Crisis of Compliance with the Law of Armed Conflict by Non-State Actors. Journal of Criminal Law and Criminology 98(3):711–810 Bond J (2016) Application of the Law of War to Internal Conflicts. Georgia Journal of International & Comparative Law 3:345–384 Boothby W (2012) The Law of Targeting. Oxford University Press, Oxford

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Burniske J, Modirzadeh N, Lewis D (2017) Armed Non-State Actors and International Human Rights Law: An Analysis of the Practice of the U.N. Security Council and U.N. General Assembly. Harvard Law School Program on International Law and Armed Conflict. https://dash.harvard.edu/ handle/1/33117816. Accessed 12 June 2020 Callamard A (2018) Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions on armed non-State actors: the protection of the right to life, UN Human Rights Council, UN Doc. A/HRC/38/44 Cassese A (1981) The Status of Rebels under the 1977 Geneva Protocol on Non-International Armed Conflicts. International and Comparative Law Quarterly 30(2):416–439 Cassese A (1984) The Geneva Protocols of 1977 on the Humanitarian Law of Armed Conflict and Customary International Law. UCLA Pacific Basin Law Journal 3:55–118 Cassese A (2013) Cassese’s International Criminal Law, 3rd edn. Oxford University Press. Oxford Clapham A (2015) The Complex Relationship Between the Geneva Conventions and International Human Rights Law. In: Clapham A, Gaeta P, Sassòli M (eds) The 1949 Geneva Conventions: A Commentary. Oxford University Press, Oxford, pp 701–735 Cohen A, Shany Y (2011) Beyond the Grave Breaches Regime: The Duty to Investigate Alleged Violations of International Law Governing Armed Conflicts. Yearbook of International Humanitarian Law 14:37–84 Corn G (2015) Regulating Hostilities in Non-International Armed Conflicts: Thoughts on Bridging the Divide between the Tadi´c Aspiration and Conflict Realities. International Law Studies 91:281– 322 Crowe J, Weston-Scheuber K (2013) Principles of International Humanitarian Law. Edward Elgar Publishing, Cheltenham Cullen A (2010) The Concept of Non-International Armed Conflict in International Humanitarian Law. Cambridge University Press, Cambridge Daboné Z (2011) International law: armed groups in a state-centric system. International Review of the Red Cross 93(882):395–424 Dinstein Y (2009) The International Law of Belligerent Occupation. Cambridge University Press, Cambridge Dinstein Y (2016) The Conduct of Hostilities under the Law of International Armed Conflict, 3rd edn. Cambridge University Press, Cambridge Dörmann K, Henckaerts J-M (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. Cambridge University Press/ICRC, Geneva Doswald-Beck L (2006) The right to life in armed conflict: does international humanitarian law provide all the answers? International Review of the Red Cross 88(864):881–904 Doswald-Beck L (2011) Human Rights in Times of Conflict and Terrorism. Oxford University Press, Oxford Droege C (2007) The Interplay between International Humanitarian Law and International Human Rights Law in Situations of Armed Conflict. Israel Law Review 40(2):310–355 Erickson R (1978) Protocol I: A Merging of the Hague and Geneva Law of Armed Conflict. Virginia Journal of International Law 19(3):557–594 Fortin K (2016) The Application of Human Rights Law to Everyday Civilian Life Under Rebel Control. Netherlands International Law Review 63:161–181 Fortin K (2017) The Accountability of Armed Groups under Human Rights Law. Oxford University Press, Oxford Gaeta P (2015) The Interplay Between the Geneva Conventions and International Criminal Law. In: Clapham A, Gaeta P, Sassòli M (eds) The 1949 Geneva Conventions: A Commentary. Oxford University Press, Oxford, pp 737–753 Gaggioli G (2017) A legal approach to investigations of arbitrary deprivations of life in armed conflicts: The need for a dynamic understanding of the interplay between IHL and HRL. Questions of International Law. http://www.qil-qdi.org/legal-approach-investigations-arbitrary-dep

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rivations-life-armed-conflicts-need-dynamic-understanding-interplay-ihl-hrl/. Accessed 12 June 2020 Geneva Academy of International Humanitarian Law and Human Rights (2016) Human Rights Obligations of Armed Non-State Actors: An Exploration of the Practice of the UN Human Rights Council. Academy In-Brief No. 7. https://www.geneva-academy.ch/joomlatools-files/doc man-files/InBrief7_web.pdf. Accessed 12 June 2020 Gill T (2013) Some Thoughts on the Relationship Between International Humanitarian Law and International Human Rights Law: A Plea for Mutual Respect and a Common-Sense Approach. Yearbook of International Humanitarian Law 16:251–266 Gowlland-Debbas V (2010) The Right to Life and the Relationship between Human Rights and Humanitarian Law. In: Tomuschat C, Lagrange E, Oeter S (eds) The Right to Life. Martinus Nijhoff Publishers, Leiden/Boston, pp 123–150 Heffes E, Bellal A (2018) “Yes I Do”: Binding Armed Non-State Actors to IHL and Human Rights Norms through Their Consent. Human Rights & International Legal Discourse 12(1):120–136 Henckaerts J-M (2003) Binding Armed Opposition Groups through Humanitarian Treaty Law and Customary Law. In: College of Europe/International Committee of the Red Cross (2003) Proceedings of the Bruges Colloquium: Relevance of International Humanitarian Law to NonState Actors, 25th-26th October 2002. https://www.coleurope.eu/content/publications/pdf/Colleg ium27.pdf. Accessed 12 June 2020 Henckaerts J-M (2005) Study on customary international humanitarian law: A contribution to the understanding and respect for the rule of law in armed conflict. International Review of the Red Cross 87(857):175–212 Henckaerts J-M, Doswald-Beck L (2005) Customary International Humanitarian Law, Volume I: Rules. Cambridge University Press, Cambridge ICC (2011) Elements of Crimes. https://www.icc-cpi.int/NR/rdonlyres/336923D8-A6AD-40ECAD7B-45BF9DE73D56/0/ElementsOfCrimesEng.pdf. Accessed 12 June 2020 International Committee of the Red Cross (1987) Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949. Martinus Nijhoff Publishers/ICRC, Geneva International Committee of the Red Cross (2011) International Humanitarian Law and the Challenges of Contemporary Armed Conflicts. 31st International Conference of the Red Cross and Red Crescent. https://www.icrc.org/en/doc/resources/documents/report/31-international-conferenceihl-challenges-report-2011–10-31.htm. Accessed 12 June 2020 International Committee of the Red Cross (2013) Expert Meeting: The Use of Force in Armed Conflicts. https://shop.icrc.org/the-use-of-force-in-armed-conflicts-expert-meeting. html?___store=default. Accessed 12 June 2020 International Committee of the Red Cross (2015) International Humanitarian Law and the Challenges of Contemporary Armed Conflicts. 32nd International Conference of the Red Cross and Red Crescent. https://www.icrc.org/en/document/international-humanitarian-law-and-challe nges-contemporary-armed-conflicts. Accessed 12 June 2020 International Committee of the Red Cross (2018) The Roots of Restraint in War. ICRC, Geneva Jackson M (2019) Command Responsibility. In: de Hemptinne J, Roth R, Van Sliedregt E (eds) Modes of Liability in International Criminal Law. Cambridge University Press, Cambridge, pp 409–432 Kleffner J (2011) The applicability of international humanitarian law to organized armed groups. International Review of the Red Cross 93(882):443–461 Kolb R, Hyde R (2008) An Introduction to the International Law of Armed Conflicts. Hart Publishing, Oxford Kretzmer D, Ben-Yehuda A, Furth M (2014) ‘Thou Shall Not Kill’: The Use of Lethal Force in Non-International Armed Conflicts. Israel Law Review47(2):191–224 La Haye E (2008) War Crimes in Internal Armed Conflicts. Cambridge University Press, Cambridge Lubell N, Pejic J, Simmons C (2019) Guidelines on Investigating Violations of International Humanitarian Law: Law, Policy, and Good Practice. Geneva Academy of International Humanitarian

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Law and Human Rights/ICRC. https://www.icrc.org/en/download/file/104871/guidelines-invest igating-violations-ihl_policy_good-practice.pdf. Accessed 12 June 2020 Margalit A (2018) Investigating Civilian Casualties in Time of Armed Conflict and Belligerent Occupation: Manoeuvring between Legal Regimes and Paradigms for the Use of Force. Brill/Martinus Nijhoff Publishers, Leiden/Boston Melzer N (2009) Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law. ICRC, Geneva Meron T (1995) International Criminalization of Internal Atrocities. The American Journal of International Law 89(3):554–577 Mettraux G (2005) International Crimes and the Ad Hoc Tribunals. Oxford University Press, Oxford Milanovic M (2015) The Applicability of the Conventions to ‘Transnational’ and ‘Mixed’ Conflicts. In: Clapham A, Gaeta P, Sassòli M (eds) The 1949 Geneva Conventions: A Commentary. Oxford University Press, Oxford, pp 27–50 Moir L (2002) The Law of Internal Armed Conflict. Cambridge University Press, Cambridge Moir L (2015) The Concept of Non-International Armed Conflict. In: Clapham A, Gaeta P, Sassòli M (eds) The 1949 Geneva Conventions: A Commentary. Oxford University Press, Oxford, pp 391–414 Murray D (2015) How International Humanitarian Law Treaties Bind Non-State Armed Groups. Journal of Conflict and Security Law 20(1):101–131 Murray D (2016) Human Rights Obligations of Non-State Armed Groups. Hart Publishing, Oxford Murray D (2017) Practitioners’ Guide to Human Rights Law in Armed Conflict. Oxford University Press, Oxford Nowak M (2008) Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak: Mission to Sri Lanka, UN Human Rights Council, UN Doc. A/HRC/7/3/Add.6 Office of the UN High Commissioner for Human Rights (2011) International Legal Protection of Human Rights in Armed Conflict. https://www.ohchr.org/Documents/Publications/HR_in_ armed_conflict.pdf. Accessed 12 June 2020 Park I (2018) The Right to Life in Armed Conflict. Oxford University Press, Oxford Pictet J (1952) Commentary on the Geneva Conventions of August 12 1949. Volume I: Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. ICRC, Geneva Quénivet N (2008) The Right to Life in International Humanitarian Law and Human Rights Law. In: Arnold R, Quénivet N (eds) International Humanitarian Law and Human Rights Law: Towards a New Merger in International Law. Martinus Nijhoff Publishers, Leiden/Boston, pp 331–353 Quintin A, Tougas M-L (2020) Generating Respect for the Law by Non-State Armed Groups: The ICRC’s Role and Activities. In: Heffes E, Kotlik M, Ventura M (eds) International Humanitarian Law and Non-State Actors: Debates, Law and Practice. Asser Press/Springer, The Hague/Berlin, pp 353–386 Sassòli M (2007) Ius Ad Bellum and Ius in Bello—The Separation between the Legality of the Use of Force and Humanitarian Rules to Be Respected in Warfare: Crucial or Outdated? In: Schmitt M, Pejic J (eds) International Law and Armed Conflict: Exploring the Faultlines—Essays in Honour of Yoram Dinstein. Martinus Nijhoff Publishers, Leiden/Boston, pp 241–264 Sassòli M (2019) International Humanitarian Law: Rules, Solutions to Problems Arising in Warfare and Controversies. Edward Elgar Publishing, Cheltenham Sassòli M, Olson L (2008) The relationship between international humanitarian and human rights law where it matters: admissible killing and internment of fighters in non-international armed conflicts. International Review of the Red Cross 90(871):599–627 Schabas W (2014) The Right to Life. In: Clapham A, Gaeta P (eds) The Oxford Handbook of International Law in Armed Conflict. Oxford University Press, Oxford, pp 365–386 Schmitt M (2011) Investigating Violations of International Law in Armed Conflict. Harvard National Security Journal 2:31–84

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Sivakumaran S (2006) Binding Armed Opposition Groups. International & Comparative Law Quarterly 55(2):369–394 Sivakumaran S (2011) Re-envisaging the International Law of Internal Armed Conflict. European Journal of International Law 22(1):219–264 Sivakumaran S (2015) The Addressees of Common Article 3. Clapham A, Gaeta P, Sassòli M (eds) The 1949 Geneva Conventions: A Commentary. Oxford University Press, Oxford, pp 415–432 Solis G (2016) The Law of Armed Conflict: International Humanitarian Law in War. Cambridge University Press, Cambridge Somer J (2007) Jungle justice: passing sentence on the equality of belligerents in non-international armed conflict. International Review of the Red Cross 89(867):655–690 Tan A (2016) The Duty to Investigate Alleged Violations of International Humanitarian Law: Outdated Deference to an International Accountability Problem. New York University Journal of International Law and Politics 49(1):181–238 UN General Assembly (2002) Resolución: Situación de los derechos humanos en la República Democrática del Congo [Resolution: Situation of human rights in the Democratic Republic of the Congo] (2002), UN Doc. A/RES/56/173 UN General Assembly (2003) Resolución: Situation des droits de l’homme en République démocratique du Congo [Resolution: Situation of human rights in the Democratic Republic of the Congo], UN Doc A/RES/57/233 UN General Assembly (2003) Resolution: Situation of human rights in the Democratic Republic of the Congo, UN Doc. A/RES/58/196 UN General Assembly (2012) Resolution: The situation in the Syrian Arab Republic, UN Doc. A/RES/66/253 B UN General Assembly (2013) Resolution: The situation in Afghanistan, UN Doc. A/RES/68/11 UN General Assembly (2015) Resolution: Situation of human rights in Myanmar, UN Doc A/RES/69/248 UN General Assembly (2016) Resolution: Extrajudicial, summary or arbitrary executions, UN Doc. A/RES/71/198 UN High Commissioner for Human Rights (2016) The Minnesota Protocol on the Investigation of Potentially Unlawful Death. https://www.ohchr.org/Documents/Publications/Minnesota Protocol.pdf. Accessed 12 June 2020 UN Human Rights Committee (2018) General comment No. 36 (2018) on article 6 of the International Covenant on Civil and Political Rights, on the right to life, UN Doc. CCPR/C/GC/36 UN Security Council (1998) Resolution 1193 (1998), UN Doc. S/RES/1193 UN Security Council (2005) Resolution 1612 (2005), UN Doc. S/RES/1612 UN Security Council (2008) Resolution 1814 (2008), UN Doc. S/RES/1814 UN Security Council (2008) Resolution 1834 (2008), UN Doc. S/RES/1834 UN Security Council (2009) Resolution 1863 (2009), UN Doc. S/RES/1863 UN Security Council (2010) Resolution 1925 (2010), UN Doc. S/RES/1925 UN Security Council (2015) Resolution 2211 (2015), UN Doc. S/RES/2211 UN Security Council (2015) Resolution 2216 (2015), UN Doc. S/RES/2216 UN Security Council (2015) Resolution 2217 (2015), UN Doc. S/RES/2217 UN Security Council (2016) Resolution 2265 (2016), UN Doc. S/RES/2265 UN Security Council (2016) Resolution 2274 (2016), UN Doc. S/RES/2274 UN Security Council (2016) Resolution 2295 (2016), UN Doc. S/RES/2295 UN Security Council (2016) Resolution 2332 (2016), UN Doc. S/RES/2332 UN Security Council (2017) Resolution 2340 (2017), UN Doc. S/RES/2340 United Nations (1990) Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. https://www.un.org/ruleoflaw/files/BASICP~3.PDF. Accessed 12 June 2020 Zegveld L (2002) Accountability of Armed Opposition Groups in International Law. Cambridge University Press, Cambridge

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Cases ECtHR, McCann and Others v The United Kingdom, Judgment, 27 September 1995, Application No. 18984/91 ICC, Prosecutor v Jean-Pierre Bemba Gombo, Judgment on the appeal of Mr. Jean-Pierre Bemba Gombo against Trial Chamber III’s “Judgment pursuant to Article 74 of the Statute”, 8 June 2018, Case No. ICC-01/05-01/08 A ICJ, Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America), Judgment (Merits), 27 June 1986, [1986] ICJ Rep 14 ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, [1996] ICJ Rep 226 ICTY, Prosecutor v Dusko Tadi´c, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, Case No. IT-94-1 ICTY, Prosecutor v Mitar Vasiljevi´c, Judgment, 29 November 2002, Case No. IT-98-32-T ICTY, Prosecutor v Enver Hadžihasanovi´c, Mehmed Alagi´c and Amir Kubura, Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, 16 July 2003, Case No. IT-01-47-AR72 ICTY, Prosecutor v Tihomir Blaški´c, Judgment, 29 July 2004, Case No. IT-95-14-A IMT (Nuremberg), France et al. v Hermann Wilhelm Göring et al., Judgement, 1 October 1946, IMT Trial Proceedings Volume 22

Treaties Agreement on the Application of International Humanitarian Law between the Parties to the Conflict in Bosnia and Herzegovina, Republic of Bosnia and Herzegovina, Serbian Democratic Party, Croatian Democratic Community, concluded 22 May 1992 Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), opened for signature 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978) Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), opened for signature 8 June 1977, 1125 UNTS 609 (entered into force 7 December 1978) Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002) Vienna Convention on the Law of Treaties, opened for signature 23 May, 1155 UNTS 331 (entered into force 27 January 1980)

Joshua Joseph Niyo is a PhD Candidate at the Graduate Institute of International and Development Studies, Geneva, Switzerland; Teaching Assistant at the Geneva Academy of International Humanitarian Law and Human Rights, Geneva, Switzerland; and Assistant Lecturer at the Faculty of Law, Uganda Christian University, Mukono, Uganda.

Chapter 5

A Bird’s-Eye View on Compliance with the Law of Armed Conflict 70 Years After the Adoption of the Geneva Conventions Jann K. Kleffner

Contents 5.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2 Stocktaking of Compliance Mechanisms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3 Managing Expectations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4 Non-International Armed Conflicts’ Blind Spots and Challenges . . . . . . . . . . . . . . . . . . . 5.5 Repression Versus Prevention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.6 Individualization of Compliance Mechanisms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.7 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract Against the background of a significant number of compliance mechanisms that the law of armed conflict (LoAC) provides for, on the one hand, and the fact that violations remain a pervasive feature of contemporary armed conflict, on the other, the present chapter examines five distinct compliance-related clusters. It begins by a reminder of the various existent compliance mechanisms and a plea for an honest, inter-disciplinary stocktaking of their efficacy. This is followed by another plea, namely for contextualizing compliance and compliance mechanisms and for moderating the expectations as to what they can achieve as counterweights to the myriad of factors that are prevalent in armed conflicts and that cause violations of the LoAC. The chapter then proceeds with addressing three particular trends that pose particular challenges in relation to compliance: the prevalence of non-international armed conflicts; that the current discourse about compliance is dominated by a culture of repression rather than prevention; and that compliance is increasingly individualized at the expense of addressing the collective nature of the violence inherent in armed conflict as the context in which violations occur.

J. K. Kleffner (B) Centre for International and Operational Law, Swedish Defence University, Stockholm, Sweden e-mail: [email protected] Faculty of Law, University of Pretoria, Pretoria, South Africa © t.m.c. asser press and the authors 2021 T. D. Gill et al. (eds.), Yearbook of International Humanitarian Law 2019, Yearbook of International Humanitarian Law 22, https://doi.org/10.1007/978-94-6265-399-3_5

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Keywords Compliance · Efficacy of compliance mechanisms · Managing expectations · Non-international armed conflicts · Prevention · Individualization of compliance

5.1 Introduction Seventy years after the adoption of the Geneva Conventions, there is no shortage of compliance mechanisms under the law of armed conflict—understood broadly here as all those means, measures and processes (institutionalized or otherwise) that are intended to induce norm-conforming behavior by individuals and collective entities, including parties to armed conflicts, be they States, organized armed groups or international organizations. At the same time, we are surrounded by a myriad of reports of law of armed conflict (LoAC) violations; incidents of non-compliance in other words. Indeed, more often than not, these violations occur on a widespread and systematic scale, by way of institutionalized and rationalized strategies devised by parties to an armed conflict in the quest to further their aims. Findings by governmental and inter-governmental inquiries and by human rights mechanisms, the jurisprudence of domestic and international criminal tribunals and other (quasi-) judicial bodies, reports by the International Committee of the Red Cross (ICRC), civil-society organizations and the media, suggest that violations of the LoAC are ripe. One has to be cautious, however, to conclude from all or any of the LoAC violations that surround us, as pervasive as they may appear to be, that the law is never respected or that violations are, quantitatively speaking, on the increase. Several factors, not the least media reporting and the instrumentalization of actions by the opponent side in a strategy of lawfare, are changing the ways in which LoAC violations are being perceived. It may very well be that increased information about (alleged) violations have led to a negative spiral downwards towards a negative, sometimes cynical, view on the relevance of the LoAC as a meaningful restraint to moderate the horrors of armed conflict. Indeed, this discernible trend has informed the ICRC’s quest to build a counternarrative that focuses on instances of compliance instead.1 Meanwhile, however, diverse studies suggest that the quality and nature of, and motivations for, violations have been changing since the adoption of the Geneva Conventions.2 Against this background, the 70th anniversary of their adoption is an opportune moment to revisit the eternal question of compliance with the LoAC. The present chapter will do so with a broad brush and examines five distinct compliance-related clusters. It begins by a reminder of the various existent compliance mechanisms and a plea for an honest, inter-disciplinary stocktaking of their efficacy (Sect. 5.2). This is followed by another plea, namely for contextualizing compliance and compliance mechanisms 1 See,

e.g., International Committee of the Red Cross (2020) IHL in Action. https://ihl-in-action. icrc.org/. Accessed 5 May 2020; Ravel and Bernard 2017. 2 See, e.g., Kaldor 2013; Meron 2000; Bassiouni 2007; United Nations (2001) Report of the Secretary-General on the Protection of Civilians in Armed Conflicts, UN Doc. S/2001/331; Wood 2015.

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and for moderating the expectations as to what they can achieve as counter-weights to the myriad of factors that are prevalent in armed conflicts and that cause violations of the LoAC (Sect. 5.3). The chapter then proceeds with addressing three trends that pose particular challenges in relation to compliance: the prevalence of noninternational armed conflicts (Sect. 5.4); that the current discourse about compliance is dominated by a culture of repression rather than prevention (Sect. 5.5); and that compliance is increasingly individualized at the expense of addressing the collective nature of the violence inherent in armed conflict as the context in which violations occur (Sect. 5.6).

5.2 Stocktaking of Compliance Mechanisms Existing compliance mechanisms can broadly be grouped into the following categories. First, the law prescribes a number of preventive measures designed to ensure that violations do not occur. These include translating the texts of the Conventions and Protocols,3 dissemination,4 training of the armed forces and providing instructions to them,5 appointing legal advisors in the armed forces,6 weapons reviews,7 and adopting legislative provisions to ensure compliance with the LoAC.8 Secondly, the law provides for a number of monitoring, inquiry, and fact-finding mechanisms, including the institute of the Protecting Powers9 and their substitute, chiefly the

3 See,

e.g., Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, opened for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950) (GC I), Article 48; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), opened for signature 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978) (AP I), Article 84. 4 See, e.g., GC I, above n 3, Article 47; AP I, above n 3, Article 83. 5 GC I, above n 3, Article 47; Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, opened for signature 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950) (GC II), Article 48; Geneva Convention (III) relative to the Treatment of Prisoners of War, opened for signature 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950) (GC III), Article 127; Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) (GC IV), Article 144; AP I, above n 3, Article 82. 6 AP I, above n 3, Article 82. 7 Ibid., Article 36. 8 See, e.g., GC I, above n 3, Chapter IX; GC II, above n 5, Chapter VIII; GC III, above n 5, Part VI, Section I; GC IV, above n 5, Articles 145–148; AP I, above n 3, Article 80. 9 GC I, above n 3, Article 8; GC II, above n 5, Article 8; GC III, above n 5, Article 8; GC IV, above n 5, Article 9; AP I, above n 3, Article 5.

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ICRC,10 the enquiry procedure foreseen in the Geneva Conventions,11 the International Fact-Finding Commission,12 and ad hoc commissions of inquiry.13 One may also count in certain human rights procedures, such as country and thematic Rapporteurs, here, as they regularly monitor compliance, either by directly applying rules and principles of the LoAC or by applying human rights to armed conflict situations.14 Thirdly, a number of rules, processes and institutes pertain to the responsibility and accountability for violations of the LoAC. Some of them are addressed to collective entities, chiefly States,15 international organizations,16 and, to some limited extent, organized armed groups.17 Others are addressed to individuals, chiefly in the form of criminal sanctions imposed by national,18 internationalized,19 and international criminal courts and tribunals,20 but also disciplinary21 sanctions and occasionally civil/tort claims.22 One may also include here the institute of belligerent reprisals, to the limited extent to which they remain lawful.23 Fourthly, pressure to comply is generated through public opinion, the ICRC and civil society engagement, media reporting and diplomatic efforts. The diversity in compliance mechanisms is readily apparent from the aforementioned overview. It may also be stating the obvious that the aforementioned categorization into four different types of compliance mechanisms is ideal-typical. Several of the mechanisms are assigned preventive and repressive qualities; for instance, individual criminal responsibility as a repressive mechanism has, according to some, 10 See,

e.g., GC I, above n 3, Article 10; AP I, above n 3, Article 5(4). e.g., GC I, above n 3, Article 52. 12 AP I, above n 3, Article 90. 13 See, e.g., the Independent International Commission of Inquiry on the Syrian Arab Republic and International Commission of Inquiry on Darfur. 14 On regional bodies, see, e.g., Viljoen 2014; Oellers-Frahm 2014; Shelton 2014. On the UN, see, e.g., Hampson 1992. More specifically on the Universal Periodic Review of the UN Human Rights Council, see Zhu 2014. See also for the International Court of Justice (ICJ) as an organ that applies human rights in armed conflict and its approach to the interplay with LoAC, e.g., Zyberi 2014. 15 International Law Commission 2001. 16 International Law Commission 2011. 17 Although not formalized. See Kleffner 2009. 18 AP I, above n 3, Article 85(5); Henckaerts and Doswald-Beck 2005, Rule 156. On the role of national courts, see, e.g., Weill 2014. 19 Romano et al. 2004. 20 These include the ad hoc tribunals for the former Yugoslavia (ICTY) and for Rwanda (ICTR) as well as the permanent International Criminal Court (ICC). 21 Geneva Convention I, above n 3, Article 49(3); Geneva Convention II, above n 5, Article 50(3); Geneva Convention III, above n 5, Article 129(3); Geneva Convention IV, above n 5, Article 146(3); Additional Protocol I, above n 3, Article 85(1). 22 District Court of Columbia (United States of America), Doe v Islamic Salvation Front, Memorandum Opinion, 3 February 1998, 993 F.Supp. 3 (D.D.C.1998). See, generally, international mass claims processes in Holtzmann and Kristjánsdóttir 2007. 23 As to the limitations, see GC I, above n 3, Article 46; GC II, above n 5, Article 47; GC IV, above n 5, Article 33; AP I, above n 3, Article 20. See also Henckaerts and Doswald-Beck 2005, Rule 145-148. 11 See,

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a certain preventative potential.24 The processes for determining responsibility and accountability are closely intertwined with monitoring compliance and fact-finding. Pressure generated by civil society engagement and media reporting can in turn inform fact-finding, responsibility and accountability processes, and so forth. Furthermore, the overview brings to the fore that compliance mechanisms differ considerably. They do so in as much as the degree of institutionalization is concerned, whether they are implemented by States individually, collectively, or by external actors (such as international governmental organizations, including the United Nations (UN) and the International Criminal Court (ICC)) and in as much as their actual application in practice is concerned. Indeed, several of the aforementioned mechanisms have hardly been tested and applied. This is not only true for the ‘sleeping beauty’—or perhaps rather ‘sleepy beauty’ after its cautious awakening25 — of the International Fact-Finding Commission, but also for mechanisms with a longstanding historical pedigree, such as Protecting Powers, and others such as the enquiry procedure. Other mechanisms have evolved over time without a clear basis in the LoAC (such as ad hoc commissions of inquiry) at times in an attempt to fill the void left by inactive or inactivated mechanisms that LoAC provides for, at other times as a response to gaps in the LoAC, such as in the case of claims procedures against States26 and mechanisms that are specifically addressed to non-State organized armed groups.27 Against the background of persistent, and oftentimes widespread and systematic, violations of the LoAC, the question looms large: do the aforementioned compliance mechanisms generate a pull towards compliance with the LoAC, and if so, to what extent? The apparent disconnect between the quantity of compliance mechanisms, on the one hand, and the number and type of violations of the LoAC, on the other hand, warrants us to raise the—perhaps uncomfortable—question whether and to what extent existing compliance mechanisms can effectively prevent or respond to violations of the LoAC by providing counter-weights to those factors that induce non-compliance. An answer to that question requires us to also delve deeper into the ways in which the various compliance mechanisms have been implemented. Given the generic nature of the pertinent rules of LoAC and the resulting margin of appreciation as to how to implement them, States have adopted different approaches. 24 See, e.g., Nemitz 2001, p 95. See also, for instance, on prevention and other sentencing rationales

ICTY case law including: retribution: ICTY, Prosecutor v Zlatko Aleksovski, Judgment, 24 March 2000, Case No. IT-95-14/1, para 185; deterrence: ICTY, Prosecutor v Duško Tadi´c, Judgment, 26 January 2000, Case No. IT-94-1, para 48; rehabilitation: ICTY, Prosecutor v Dražen Erdemovi´c, Judgment, 5 March 1998, Case No. IT-96-22, para 16; denunciation and adjuration: ICTY, Prosecutor v Dario Kordi´c and Mario Cerkez, Judgment, 17 December 2004, Case No. IT-95-14/2, paras 1080–1081; justice for victims: ICTY, Prosecutor v Momir Nikolic, Judgment, 2 December 2003, Case No. IT-02-60/1, para 86; post-conflict reconciliation: ICTY, Prosecutor v Momir Nikolic, Judgment, 2 December 2003, Case No. IT-02-60/1, para 60. See, generally for sentencing practice of the ICTY and ICTR, Hola 2014. 25 Azzarello and Niederhauser 2017. 26 See, e.g., the Ethiopia-Eritrea Claims Commission. 27 See, e.g., the monitoring and verification measures built into the Deeds of Commitment made by organized armed groups. See for this Geneva Call 2020.

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The differences in the ways in which States conduct weapons reviews,28 which role they assign to legal advisors in their armed forces,29 and how they train their armed forces in the LoAC30 are only a few areas that serve to illustrative these variances. A meaningful answer to the cardinal question of effectiveness of compliance mechanisms and the ways in which they are implemented, in turn, is only possible by moving from compartmentalized, mono-disciplinary legal research to a research agenda that is informed by the insights of other scientific disciplines, which examine factors that induce norm-compliance and non-compliance, including (military) sociology and psychology. Projects such as those of the ICRC that produced the reports on Roots of Behaviour in War 31 and Roots of Restraint in War 32 are very useful in that regard. They provide the socio-psychological background against which existing compliance mechanisms and their implementation need to be measured and against which best practices and new mechanisms would need to be devised. Cautious first steps in that direction have been initiated,33 but a systematic and in-depth examination of LoAC compliance mechanisms remains to be conducted. Accordingly, it is submitted that scholarship on this issue should be recalibrated towards a sincere engagement with answers to the elementary question: why do actors in armed conflicts comply with the LoAC and why do they violate it?

5.3 Managing Expectations Research delving into the aforementioned question of causes for violations of the LoAC suggests a number of pertinent factors. Armed conflict in and of itself is conducive to criminal behavior. It is characterized by strong group conformity and pressure, by obedience to authority, by processes of moral disengagement, including the dehumanization of the ‘enemy’ and justifications of disregarding the law, and by a spiral of violations and negative reciprocity as cause and consequence of further violations.34 In fact, beyond these features inherent in all armed conflicts, it is not uncommon that the very aim of (one of) the parties to an armed conflict is incompatible with complying with the most basic precepts of the LoAC, such as in the case of armed conflicts of ethnic cleansing and ‘genocidal wars’. In these cases, 28 McClelland

2011, p 403. generally, Rogers and Stewart 2015. 30 See the summery accompanying Henckaerts and Doswald-Beck 2005, Rule 142 and the supporting practice referred to. 31 International Committee of the Red Cross 2004. 32 International Committee of the Red Cross 2018. 33 See, e.g., International Committee of the Red Cross 2004, p 11 in relation to spreading knowledge. See also International Committee of the Red Cross 2018 which extrapolate from the conducted research some implications for ICRC engagement with (different types of) organized armed groups. See, more broadly, the various contributions to issues 895/896 (2015) of the International Review of the Red Cross on ‘Generating Respect for the Law’. 34 International Committee of the Red Cross 2004, pp 5–10. 29 See,

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compliance becomes the proverbial impossible that takes a little longer, as distinct from the difficult that is done at once. If one adds to such an already bleak picture other factors inducing non-compliance, such as ignorance about the law, a lack of, or deficiencies in, training of armed forces, a lack of political will to comply, weak military leadership and a lack of discipline, and the asymmetry between parties, an intuitive reaction may be to be more surprised by instances of compliance with the LoAC, than by violations of it. One needs to be conscious and not shy away from these challenges to compliance that are inherent in the very situation of armed conflict, or at least certain types of armed conflicts. The point here is not to be defeatist, resign and abandon the quest for better compliance. The point is rather one of managing expectations. Purporting that armed conflicts constitute an environment in which total compliance with the LoAC is achievable, is bound to lead to disappointment, frustration, and outright cynicism once we realize that that goal is out of reach. Indeed, professing unrealistic expectations on compliance in disregard of the aforementioned inherent features of armed conflicts exacerbates the detrimental effects on the credibility of the LoAC that result from the un-nuanced expansion of legal obligations applicable to non-State organized armed groups in an exercise of normative overreach.35 A better approach is to start the conversation about compliance from a much more modest point of departure and to be frank and open about the fact that some violations of the LoAC will in all likelihood occur in any armed conflict and that we can realistically expect systematic violations to occur in at least some. As much as the LoAC as a whole evolves around the idea of moderating rather than preventing in its totality the death, injury, and destruction that armed conflict entails, compliance mechanisms should be understood as moderating the forces of non-compliance that are inherent in, or a common feature of, armed conflict. They are, however, not the holy grail of ensuring complete and full compliance with the LoAC. Their potential to generate compliance pulls need to be understood in the context of countering forces and their own imperfections. Against this background, the focus of efforts should be on the use and improvement of existing mechanisms and on the establishment of new mechanisms that can reasonably be expected to generate such a pull, but the articulated aim of these efforts should be the amelioration of a dire situation rather than unrealistic promises that are bound to be broken and undermine the credibility of the LoAC as a whole. To manage expectations also includes to put the law and legal compliance mechanisms into perspective and consider extra-legal factors that have an impact on compliance. International lawyers have at times a tendency of overstating the significance of the law at the expense of factors such as cultural and religious values, doctrine and ideology, humanitarian engagement, professional (military) ethics and a sense of honor,36 effective and virtuous leadership within military organizations and military

35 On

the latter, see Sassòli 2019, pp 584–585. See also the debate between Sassòli and Shany in Sassòli and Shany 2011. 36 Stephens 2015.

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efficiency more broadly,37 all of which are impacting significantly on compliance. It can be painful for ‘true believers’ in the law to admit that the law may be somewhat extraneous if compared to the significance of these factors. However, understanding the latter bears at the same time the potential of devising mutually reinforcing synergies between the law and extra-legal factors in the quest to improve compliance with the LoAC.

5.4 Non-International Armed Conflicts’ Blind Spots and Challenges The compliance mechanisms envisaged by the Geneva Conventions are State-centric and designed for international armed conflict (IAC). Much of what has evolved in the conventional LoAC since 1949 has followed the same path, with the amnesty provision in Additional Protocol II (AP II)38 as a notable exception that confirms the rule, in as much as it reflects an idiosyncrasy of non-international armed conflicts (NIACs) (namely the absence of combatant status and privilege). Otherwise, the general reflex in the realm of compliance mechanisms has been identical to the one in the realm of primary norms, namely to fill the regulatory void by extending the law of IAC into the law of NIAC. There are at least two points that deserve mentioning here. First, the extension of those mechanisms into NIACs has remained incomplete. Examples of IAC mechanisms that have not been extended include the compulsory role of the ICRC to monitor compliance with the law relating to all persons deprived of their liberty39 —in contrast to the facultative role, the ‘right’, to offer its services in NIACs;40 the institute of Protecting Powers and their substitutes;41 the enquiry procedure concerning alleged violations;42 and the aut dedere aut judicare obligation

37 Corn

2015.

38 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection

of Victims of Non-international Armed Conflicts (Protocol II), opened for signature 8 June 1977, 1125 UNTS 609 (entered into force 7 December 1978) (AP II), Article 6(5). 39 GC III, above n 5, Article 126; GC IV, above n 5, Articles 76(6) and 143. 40 Henckaerts and Doswald-Beck 2005, Rule 124 B. 41 GC I, above n 3, Article 8; GC II, above n 5, Article 8; GC III, above n 5, Article 8; GC IV, above n 5, Article 9. Although these common provisions stipulate that “[t]he present Convention [i.e. the relevant Geneva Convention in its entirety, thus including Common Article 3] shall be applied with the cooperation and under the scrutiny of the Protecting Powers”, it is understood that the institute of Protecting Powers is only applicable in international armed conflicts. See D¨ormann and Henckaerts 2016, p 372, para 1015. This is also confirmed by the relevant provision in AP I (Article 5) and the absence of the institute of Protecting Powers from AP II. 42 GC I, above n 3, Article 52; GC II, above n 5, Article 50; GC III, above n 5, Article 129; GC IV, above n 5, Article 146.

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enshrined in the Geneva Conventions in relation to grave breaches.43 Secondly, some of those compliance mechanisms that have been extended into NIACs only address States. Examples from the ICRC Customary Law Study, which contains probably the most far-reaching assertions as far as compliance mechanisms in NIACs are concerned, include the requirement to make legal advisers available,44 the obligation “to encourage the teaching” of the LoAC to the civilian population,45 and the obligation of a State responsible for LoAC violations to make full reparation for the loss or injury caused.46 Both sets of examples illustrate that a simple transposition of IAC mechanisms to NIACs does not necessarily do justice to the inherent structural differences between the two types of armed conflicts, most notably as far as the nature of the respective parties to them is concerned. Indeed, these structural differences do not only include the generic distinction between States and non-State organized armed groups, but also the significant differences that exists between different types of non-State organized armed groups. Compliance mechanisms developed for States may be fitting to some degree for an organized armed group that can be described as a de facto regime or quasi-State, such as the Liberation Tigers of Tamil Eelam in North-Eastern Sri Lanka or Da’esh in Syria at the height of their reign. The same does not hold true for organized armed groups whose features differ significantly from those commonly displayed by States, most pertinently territorial control and quasi-governmental structures, such as organized armed groups composed of community-embedded fighters with a relatively flat hierarchical structure whose mobilization is interrupted by periods of return to other roles, such as the Mai-Mai militias in the Democratic Republic of the Congo.47 The foregoing suggests a need to revisit compliance mechanisms in NIACs from at least the following angles. First, in light of the fundamental differences between States and organized armed groups, it needs to be determined whether those that have been developed for States can, in principle, be transposed to organized armed groups. An answer in the negative would not necessarily mean, in my view, that they should not be applied only to States, in case of which an imbalance in compliance mechanisms between States and organized armed groups would ensue. Yet, it is at least arguable that the notion of belligerent equality—to the extent that it is held to apply as a matter of principle in the context of NIACs48 —is first and foremost concerned with equality in the realm of primary norms of the LoAC that binds belligerent parties. Secondly, the infinite variety of organized armed groups and the varying degree to which they differ from States calls for a more nuanced approach to the transposition 43 GC I, above n 3, Article 49; GC II, above n 5, Article 53; GC III, above n 5, Article 132; GC IV, above n 5, Article 149. 44 Henckaerts and Doswald-Beck 2005, Rule 141. 45 Ibid., Rule 143. 46 Ibid., Rule 150. 47 For this type of organized armed groups, see International Committee of the Red Cross 2018, Chapter 5. 48 On that point, see International Committee of the Red Cross 2004.

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of compliance mechanisms that have been devised for States to organized armed groups. Such an approach may mean that existing compliance mechanisms need to be adapted so as to fit a specific (type of) organized armed group with a view to generate a meaningful compliance pull. For instance, it is conceivable that a certain (type of) organized armed group, such as quasi-States at the high end of organization and stability, may very well possess the capacity to appoint legal advisors to provide advice to military commanders on the LoAC. Similarly, such organized armed groups may possess the capacity to make reparation for the loss or injury caused by violations of the LoAC for which they are responsible. Other (types of) organized armed groups may lack that capacity and imposing on them obligations that suggest otherwise would result in a normative overreach with the negative consequences already referred to.49 Thirdly, and beyond an exercise of transposition, whether as a matter of principle or in a nuanced fashion, the feature of non-State organized armed groups inherent in NIACs invites us to think about idiosyncratic compliance mechanisms that are specifically developed to address (certain types of) organized armed groups, rather than States. The verification and monitoring measures that Geneva Call takes to supervise, the ‘Deeds of Commitments’ that organized armed groups have agreed to, are instructive examples in that respect. These include visits and inspections in all areas where a committed organized armed group operates, the right to interview its members, possible victims and their family members without witnesses, and the provision of necessary information and reports by the group.50

5.5 Repression Versus Prevention Over the past decades, much of the debate about compliance with the LoAC has centered around the repression of violations, especially through the prosecution of war crimes, rather than their prevention. Broadly speaking, at least since the inception of the ad hoc international criminal tribunals for the former Yugoslavia and Rwanda in the first half of the 1990s, considerable efforts and resources—both material and intellectual—have been invested in the development of an increasingly dense web of norms and institutions in the field of international criminal law. The extension of the notion of war crimes into NIACs, the adoption of the Rome Statute of the International Criminal Court in 1998, the establishment of internationalized criminal courts and tribunals, and the quantitative increase in domestic criminal proceedings, all of which accompanied by an exponential increase in scientific research and legal doctrine, are but some of the most notable hallmarks of that development.

49 Ibid.

and accompanying text. e.g., the model Deed of Commitment under Geneva Call for the Prohibition of Sexual Violence in Situations of Armed Conflict and towards the Elimination of Gender Discrimination, available at https://www.genevacall.org/wp-content/uploads/2019/07/DoC-Prohibiting-sexual-vio lence-and-gender-discrimination.pdf.

50 See,

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Surely, war crimes prosecutions have not evolved as the only means to ensure compliance51 to the exclusion of other mechanisms. The latter continue to be available52 and some of them are applied. The Geneva Conventions specifically and the LoAC more broadly, does provide for preventive compliance mechanism, for instance in the form of training, dissemination, appointment of legal advisors, etc.; and States, the ICRC and other organizations are taking preventive steps to ensure compliance with the LoAC. However, a significant imbalance exists between the attention that is paid to, and efforts and resources spent on, repressive mechanisms, and these other mechanisms. Compliance discourse is, in other words, reflecting a tangible dominance of a culture of repression. By and large, much of the developments since the adoption of the Geneva Conventions that have been hailed as progress are concerned with responses to violations that have occurred, rather than their prevention. The differences are striking between the efforts to streamline and to some extent institutionalize repressive compliance mechanisms and the concerns with their quality, on the one hand, and those efforts and concerns in the realm of preventive measures, on the other. The question whether a State takes appropriate measures to repress war crimes seems to be much more commonly and thoroughly examined than the question whether appropriate measures are taken to train armed forces, disseminate LoAC, and whether appointed legal advisors are assigned roles that create effective means to prevent violations. It is submitted that a certain shift in focus is long overdue to ask the harder questions in relation to preventive measures, including: how do we assess the quality, and follow up on, training armed forces? How do we train armed forces so as to ensure that compliance with the LoAC becomes a reflexive, automated response by individual soldiers in the heat of the battle, as much as by commanders and other decision-makers?53 To be clear, the point here is not whether some training or dissemination occurs or whether legal advisors are being appointed. The point is whether and how the effectiveness of these preventive measures is assessed from a compliance perspective.

5.6 Individualization of Compliance Mechanisms One of the most discernible trends in LoAC compliance mechanisms is a trend towards individualization. That individualizations manifests itself both in the realm of those who stand accused of having violated the law (individualization of perpetration) 51 In this sense, the view that “[c]rimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced” (emphasis added), which the International Military Tribunal in Nuremberg expressed in IMT (Nuremberg), France et al. v Hermann Wilhelm Göring et al., Trial Proceedings, 30 September 1946 and 1 October 1946, IMT Trial Proceedings Volume 22 only three years before the adoption of the GC’s, has not been confirmed by States. 52 See above n 3-22 and accompanying text for an overview. 53 On some of these questions, see Bernard 2015; Stubbins Bates 2015.

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and in the realm of those who allege to be victims of violations (individualization of victimhood). As to the former, the proliferation of international criminal justice mechanisms (broadly perceived to include domestic, international, and hybrid criminal courts and tribunals) and an increase in war crimes trials are part and parcel of that development. There is no shortage of expectations that are projected onto these processes designed to determine the individual criminal responsibility of the accused, including establishing the truth and a historical record, rule confirmation, a remedy for victims, deterrence and prevention.54 A first issue that arises in this context is whether any or all of these expectations are actually met and are borne out by empirical evidence.55 A second issue is that the individualization of perpetration bears the risk of decontextualizing responsibility for war crimes. More often than not, war crimes and other violations of the LoAC occur in the broader context of a ‘system’, namely parties to an armed conflict, whether States or organized armed groups,56 but war crimes trials fail to capture the collective responsibility of these systems. Admittedly, war crimes trials—certainly those conducted by international and hybrid criminal courts and tribunals—tend to provide a contextual narrative, usually referred to in judgments as ‘factual overview’ or ‘factual background’ and also provide some information on the collective dimension of war crimes, for instance by examining the role of the individual accused in the military structure of a party to an armed conflict. However, these narratives are entirely divorced from a determination of the legal responsibility of the collective entity concerned. Indeed, as far as States are concerned, attempts to effectuate their responsibility through processes to make that determination have taken the back-seat, with the important exception of human rights mechanisms that provide avenues for individual victims to submit complaints against States, and the occasional inter-State dispute settlement on LoAC questions, such as contentious cases before the International Court of Justice57 or inter-State claims commissions such as the Ethiopia-Eritrea Claims Commission. And as far as organized armed groups are concerned, a framework for collective legal responsibility is by and large absent.58 The implication of this trend towards an individualization of perpetration is that the legal framework for responsibility for war crimes remains incomplete, if individualization comes at the expense of developing and effectuating compliance mechanisms that are designed to address the legal responsibility of States and organized armed groups qua collective entities. As to the individualization of victimhood, the compliance landscape has changed considerably since the adoption of the Geneva Conventions. Increasingly, the law 54 See

above n 23. on this point in relation to deterrence, e.g., Jenks and Acquaviva 2015. 56 See, generally, Kelman 2009. 57 E.g., ICJ, Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America), Judgment (Merits), 27 June 1986, [1986] ICJ Rep 14; ICJ, Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v Rwanda), Judgment (Jurisdiction of the Court and Admissibility of the Application), 3 February 2006, [2006] ICJ Rep 6. 58 See Kleffner 2009; Bellal 2015. 55 See

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of armed conflict is re-couched in terms of ‘rights’ that individuals seek to ‘invoke’ before domestic courts and international (quasi-)judicial bodies. While the success rate of domestic (tort) claims based on rules of LoAC is limited,59 the increase in the use of international human rights machinery to bring individual claims for (alleged) violations of LoAC is probably the most glaring manifestation of that trend and both cause and consequence of an ever-increasing interplay between human rights law and the LoAC. Among the many issues that this trend raises, the following come to the fore as particularly noteworthy. First, as far as developments in the substantive law that informs processes for the individualization of victimhood is concerned, one cannot fail to note that LoAC is coming under pressure as the governing legal framework as lex specialis. There is a tangible tendency to frame the legal issues at hand in terms of ‘human rights applicable in armed conflict’ rather than the law of armed conflict. This tendency may partially be attributable to the mandate of the legal institution in question, e.g. if a given human rights court or supervisory body considers itself to be limited to apply a given human rights treaty to the exclusion of potentially applicable rules of the LoAC. Another reason is that human rights bodies do not necessarily always possess (or at least do not display) the required expertise to analyze a given legal claim from the perspective of the LoAC. The resulting steady process of ‘human-rights-ization’ of the LoAC entails that a focus on individual rights replaces the considered and delicate balance between humanitarian considerations and military necessity that informs LoAC in its entirety. Secondly, to rely on human rights as the dominant legal framework for examining individual claims and on the human rights machinery to process these claims entails the risk of leaving claims against non-State organized armed groups unaddressed. This is so because of the continuous controversy surrounding the applicability of human rights to such groups, as much as because of the jurisdictional limitations of at least human rights bodies to address non-State organized armed groups directly. Thirdly, the individualization of victimhood by using human rights processes mirrors to some extent the problem of the individualization of perpetration if and to the extent that these processes are ill-equipped to address victimhood in armed conflict that is collective in nature. When violations of the LoAC occur systematically, on a large scale or in a widespread manner, individualized claims processes are subject to significant limitations. They are cumbersome, run the risk of overburdening the institution in question and of providing remedies, and award reparations that may fail to capture the needs of victimized groups and communities as opposed to victimized individuals. Forms of remedies that reach beyond individuals, such as those within the context of human rights mechanisms that grant standing to groups and collective

59 Examples

include claims brought in accordance with the US Alien Tort Claims Act and Torture Victim Protection Act such as District Court of Columbia (United States of America), Doe v Islamic Salvation Front, Memorandum Opinion, 3 February 1998, 993 F.Supp. 3 (D.D.C.1998) and cases adjudicated in the Netherlands such as District Court The Hague (Netherlands), Prosecutor v Frans Cornelis Adrianus van Anraat, Sentencing, 24 April 2013, Case No. 09/751003-04. For a database of reparation cases in national courts, see http://www.nuhanovicfoundation.org/en/reparations-cases/.

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entities,60 may provide some guidance in addressing the issue. Similarly, certain human rights bodies and the ICCs Trust Fund for Victims could serve as examples as to how the collective dimension of victimization may inform compliance mechanisms in the realm of reparations.61 These and other issues that arise in the context of the individualization of victimhood invites us to reflect on the desirability and possibility of claims processes that apply LoAC to both States and non-State organized armed groups and that reach beyond individual victims to include victimized groups.

5.7 Conclusion Seventy years after the adoption of the Geneva Conventions, the compliance landscape has evolved considerably. Some of the compliance mechanisms that the Geneva Conventions foresaw, such as the regime of Protecting Powers, have hardly been effectuated at all, while others, such as the regime for the criminal repression of grave breaches, remained largely a dead—or at least comatose—letter until its resuscitation at the end of the Cold War when it was absorbed into the evolving scheme of international criminal justice. Yet others, such as training and dissemination, have lived a silent life, largely under the radar of scientific research and media attention. By 1977 and the adoption of Additional Protocol I (AP I), States took some steps towards further updating compliance mechanisms, with the introduction of the obligation to appoint legal advisors and conduct weapons reviews, and the further refinement and development of existing compliance mechanisms, not the least in the area of criminal repression of grave breaches. Significantly at the time, AP I also envisaged for the first time an international institution tasked with fact-finding, the International Humanitarian Fact-Finding Commission. These developments contrast starkly with the virtual absence of compliance mechanisms in the law of non-international armed conflicts, with AP II failing to go beyond the granting of amnesties and dissemination. Since then, new compliance mechanisms that were neither foreseen in the Geneva Conventions, nor the Additional Protocols, have seen the light of day, such as ad hoc commissions of inquiry, human rights machinery, international and internationalized criminal courts and tribunals and sanctions, either by the UN and other international organizations, or by individual States.

60 See, e.g., the Collective Complaints Procedure introduced by the Additional Protocol providing for a system of collective complaints (1995) before the European Committee of Social Rights. See also American Convention on Human Rights, opened for signature 22 November 1969, 1144 UNTS 144 (entered into force 18 July 1978), Article 44 granting “[a]ny person or group of persons, or any nongovernmental entity legally recognized in one or more member states of the Organization” the right to lodge petitions with the Commission. 61 See, for instance, the collective reparation orders of the Trust Fund for Victims, summarized at https://www.trustfundforvictims.org/en/what-we-do/reparation-orders. See, generally, Rosenfeld 2010; Odier-Contreras Garduno 2018.

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Yet, there is no reason to be complacent about compliance. Violations of the LoAC are pervasive, notwithstanding the equally undisputable fact that the law is being complied with on numerous occasions. In light of the chequered record of compliance, I have argued that we need to gain more profound insights into the potential and pitfalls of existing compliance mechanisms. We need to know more about whether and how violations are in any meaningful way attributable to the non-existence of compliance mechanisms and the ineffectiveness of existing ones, and, conversely, about whether norm-compliant behavior is attributable to the existence and effectiveness of compliance mechanisms. With that lack of knowledge comes the dual risk of overstating and underestimating the potential of compliance mechanisms and a precarious disregard for extraneous factors that induce violations and compliance. These extraneous factors, in turn, need to inform the quest for improving compliance as much as the management of expectations in regard to norm-compliant behavior. A sincere and impassive engagement with the question whether and which compliance mechanisms are generating tangible compliance pulls, and with the question what expectations are reasonable, will provide a sense of direction in confronting the challenges to compliance, amongst which the prevalence of NIACs, an only embryonic culture of prevention, and a failure to adequately capture the collective dimension of compliance feature prominently. Acknowledgements The research assistance of Isak Malm is gratefully acknowledged. The author would also like to thank the participants in the Seventh Transatlantic Workshop on International Law and Armed Conflict held at the Lieber Institute for Law and Land Warfare at West Point in June 2019 for their valuable comments on a discussion paper that formed the basis for the present chapter.

References Articles, Books and Other Documents Azzarello C, Niederhauser M (2017) The Independent Humanitarian Fact-Finding Commission: Has the ‘Sleeping Beauty’ Awoken? ICRC. https://blogs.icrc.org/law-and-policy/2018/01/09/the-ind ependent-humanitarian-fact-finding-commission-has-the-sleeping-beauty-awoken/. Accessed 5 May 2020 Bassiouni C (2007) The New Wars and the Crisis of Compliance with the Law of Armed Conflict by Non-State Actors. The Journal of Criminal Law & Criminology 98(3):711–810 Bellal A (2015) Establishing the Direct Responsibility of Non-State Armed Groups for Violations of International Humanitarian Law: Issues of Attribution. In: Gal-Or N, Ryngaert C, Noortman M (eds) Responsibilities of the Non-State Actor in Armed Conflict and the Market Place. Brill Publishers, Leiden, pp 304–322 Bernard V (2015) Time to take prevention seriously. International Review of the Red Cross 96(895/896):689–696 Corn G (2015) Contemplating the true nature of the notion of “responsibility” in responsible command. International Review of the Red Cross 96(895/896):901–917

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Dörmann K, Henckaerts J-M (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. Cambridge University Press/ICRC, Geneva Geneva Call (2020) Deeds. https://www.genevacall.org/?s=deed. Accessed 6 May 2020 Hampson F (1992) Using international human rights machinery to enforce the international law of armed conflicts. Military Law and the Law of War Review 31:117–147 Henckaerts J-M, Doswald-Beck L (2005) Customary International Humanitarian Law, Volume I: Rules. Cambridge University Press, Cambridge Hola B (2014) Consistency and Pluralism of International Sentencing: An Empirical Assessment of the ICTY and ICTR Practice. In: Sliedregt E, Vasiliev S (eds) Pluralism in International Criminal Law. Oxford University Press, Oxford, pp 187–207 Holtzmann H, Kristjánsdóttir E (2007) International Mass Claims Processes: Legal and Practical Perspectives. Oxford University Press, Oxford International Committee of the Red Cross (2004) The Roots of Behavior in War: Understanding and Preventing IHL Violations. ICRC, Geneva International Committee of the Red Cross (2018) The Roots of Restraint in War. ICRC, Geneva International Law Commission (2001) Articles on Responsibility of States for Internationally Wrongful Acts. Yearbook of the International Law Commission 2001 2(2):31–143 International Law Commission (2011) Draft Articles on the Responsibility of International Organizations. Yearbook of the International Law Commission 2001 2(2):46–105 Jenks C, Acquaviva G (2015) Debate: The role of international criminal justice in fostering compliance with international humanitarian law. International Review of the Red Cross 96(895/896):775–794 Kaldor M (2013) New and Old Wars: Organised Violence in a Global Era, 2nd edn. John Wiley & Sons, Hoboken Kelman H (2009) The Policy Context of International Crimes. In: Nollkaemper A, van der Wilt H (eds) System Criminality in International Law. Cambridge University Press, Cambridge, pp 26–41 Kleffner J (2009) The Collective Accountability of Organised Armed Groups for System Crimes. In: Nollkaemper A, van der Wilt H (eds) System Criminality in International Law. Cambridge University Press, Cambridge, pp 238–269 McClelland (2011) The review of weapons in accordance with Article 36 of Additional Protocol I. International Review of the Red Cross 85(850):397–420 Meron T (2000) The Humanization of Humanitarian Law. American Journal of International Law 94(2):239–278 Nemitz J (2001) The Law of Sentencing in International Criminal Law: The Purposes of Sentencing and the Applicable Method for the Determination of the Sentence. Yearbook of International Humanitarian Law 4:87–127 Odier-Contreras Garduno D (2018) Collective Reparations. Intersentia, Mortsel Oellers-Frahm K (2014) A Regional Perspective on the Convergence and Conflicts of Human Rights and International Humanitarian Law in Military Operations: The European Court of Human Rights. In: de Wet E, Kleffner J (eds) Convergence and Conflicts of Human Rights and International Humanitarian Law in Military Operations. Pretoria University Law Press, Pretoria, pp 333–364 Ravel J, Bernard V (2017) Changing the narrative on international humanitarian law. ICRC. https:// blogs.icrc.org/law-and-policy/2017/11/24/changing-the-narrative-on-international-humanitar ian-law/. Accessed 5 May 2020 Rogers A, Stewart D (2015) The Role of the Military Legal Advisor. In: Gill T, Fleck D (eds) The Handbook of the International Law of Military Operations, 2nd edn. Oxford University Press, Oxford, pp 537–564 Romano C, Nollkaemper A, Kleffner J (2004) Internationalized Criminal Courts: Sierra Leone, East Timor, Kosovo, and Cambodia. Oxford University Press, Oxford

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Rosenfeld F (2010) Collective reparation for victims of armed conflict. International Review of the Red Cross 92(879):731–746 Sassòli M (2019) International Humanitarian Law: Rules, Controversies, and Solutions to Problems Arising in Warfare. Edward Elgar Publishing, Cheltenham Sassòli M, Shany Y (2011) Debate: Should the obligations of states and armed groups under international humanitarian law really be equal? International Review of the Red Cross 93(882):425–442 Shelton D (2014) Humanitarian law in the Inter-American human rights system. In: de Wet E, Kleffner J (eds) Convergence and Conflicts of Human Rights and International Humanitarian Law in Military Operations. Pretoria University Law Press, Pretoria, pp 365–394 Stephens D (2015) Behaviour in war: The place of law, moral inquiry and self-identity. International Review of the Red Cross 96(895/896):751–773 Stubbins Bates E (2015) Towards effective military training in international humanitarian law. International Review of the Red Cross 96(895/896):795–816 United Nations (2001) Report of the Secretary-General on the Protection of Civilians in Armed Conflicts, UN Doc. S/2001/331 Viljoen F (2014) The Relationship between International Human Rights and Humanitarian Law in the African Human Rights System: An Institutional Approach. In: de Wet E, Kleffner J (eds) Convergence and Conflicts of Human Rights and International Humanitarian Law in Military Operations. Pretoria University Law Press, Pretoria, pp 303–332 Weill S (2014) The Role of National Courts in Applying International Humanitarian Law. Oxford University Press, Oxford Wood R (2015) Understanding Strategic Motives for Violence against Civilians during Civil Conflict. In: Krieger H (ed) Inducing Compliance with International Humanitarian Law: Lessons from the African Great Lakes Region. Cambridge University Press, Cambridge, pp 13–43 Zhu L (2014) International Humanitarian Law in the Universal Periodic Review of the UN Human Rights Council: An Empirical Survey. Journal of International Humanitarian Legal Studies 5(1– 2):186–212 Zyberi G (2014) The Jurisprudence of the International Court of Justice and International Criminal Courts and Tribunals. In: de Wet E, Kleffner J (eds) Convergence and Conflicts of Human Rights and International Humanitarian Law in Military Operations. Pretoria University Law Press, Pretoria, pp 395–416

Cases District Court of Columbia (United States of America), Doe v Islamic Salvation Front, Memorandum Opinion, 3 February 1998, 993 F.Supp. 3 (D.D.C.1998) District Court The Hague (Netherlands), Prosecutor v Frans Cornelis Adrianus van Anraat, Sentencing, 24 April 2013, Case No. 09/751003-04 ICJ, Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America), Judgment (Merits), 27 June 1986, [1986] ICJ Rep 14 ICJ, Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v Rwanda), Judgment (Jurisdiction of the Court and Admissibility of the Application), 3 February 2006, [2006] ICJ Rep 6 ICTY, Prosecutor v Dražen Erdemovi´c, Judgment, 5 March 1998, Case No. IT-96-22 ICTY, Prosecutor v Duško Tadi´c, Judgment, 26 January 2000, Case No. IT-94-1 ICTY, Prosecutor v Zlatko Aleksovski, Judgment, 24 March 2000, Case No. IT-95-14/1 ICTY, Prosecutor v Momir Nikolic, Judgment, 2 December 2003, Case No. IT-02-60/1 ICTY, Prosecutor v Dario Kordi´c and Mario Cerkez, Judgment, 17 December 2004, Case No. IT-95-14/2 IMT (Nuremberg), France et al. v Hermann Wilhelm Göring et al., Trial Proceedings, 30 September 1946 and 1 October 1946, IMT Trial Proceedings Volume 22

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Treaties American Convention on Human Rights, opened for signature 22 November 1969, 1144 UNTS 144 (entered into force 18 July 1978) Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, opened for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950) Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, opened for signature 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950) Geneva Convention (III) relative to the Treatment of Prisoners of War, opened for signature 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950) Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), opened for signature 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978) Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), opened for signature 8 June 1977, 1125 UNTS 609 (entered into force 7 December 1978)

Jann K. Kleffner is Professor of International Law at the Centre for International and Operational Law, Swedish Defence University, Stockholm, Sweden; and Extraordinary Professor at the Faculty of Law, University of Pretoria, Pretoria, South Africa.

Chapter 6

Not the Usual Suspects: Religious Leaders as Influencers of International Humanitarian Law Compliance Ioana Cismas and Ezequiel Heffes

Contents 6.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2 Compliance with International Humanitarian Law: Setting the Scene . . . . . . . . . . . . . . . 6.3 Religious Leaders: Interpreters and Influencers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3.1 Do Religious Leaders ‘Speak’ About International Humanitarian Law? . . . . . . . 6.3.2 Why Might States and Non-State Armed Groups Follow Religious Leaders’ Interpretations on International Humanitarian Law? . . . . . . . . . . . . . . . . . . . . . . . 6.4 The Humanitarian Sector: Reasons for Engagement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.5 Conclusion: An Agenda for Further Research . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract It is undeniable that the effectiveness of international humanitarian law (IHL) faces challenges from different quarters. To address these, humanitarian organizations have, in the main, pursued a direct engagement strategy with the parties to a conflict. Although this has remained the dominant strategy to date, in the last two decades the humanitarian sector has, on an ad hoc basis and without the benefit of a solid evidence base, engaged other societal actors identified as having the potential to influence parties to armed conflict, and among them religious leaders. This chapter addresses the role of these leaders in influencing compliance (or lack thereof) with IHL by States and non-State armed groups. In particular, two issues are explored: (1) what makes religious leaders influential among their constituencies, and (2) how can they be useful actors to increase respect for IHL in armed conflict? Keywords Religious leaders · Compliance · International humanitarian law · Legitimacy · Humanitarian engagement I. Cismas (B) York Law School and Centre for Applied Human Rights, University of York, York, UK e-mail: [email protected] E. Heffes Geneva Call, Geneva, Switzerland e-mail: [email protected] © t.m.c. asser press and the authors 2021 T. D. Gill et al. (eds.), Yearbook of International Humanitarian Law 2019, Yearbook of International Humanitarian Law 22, https://doi.org/10.1007/978-94-6265-399-3_6

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6.1 Introduction That the effectiveness of international humanitarian law (IHL) faces challenges from different quarters is not news. Seventy years after the adoption of the 1949 Geneva Conventions, the enforcement and, more generally, compliance with treaty and customary IHL remain the Achilles heel of this legal regime.1 Difficulties related to respect for IHL can be linked to a number of circumstances, such as the unwillingness of States to acknowledge that a situation of violence amounts to an armed conflict,2 the absence of an incentive for the parties to abide by humanitarian rules,3 or non-State armed groups’ (NSAGs) lack of an appropriate structure and resources allowing them to acknowledge, understand, and implement some of their obligations.4 Moreover, despite the proliferation of international criminal tribunals and United Nations (UN) commissions of inquiry, IHL relies on relatively weak enforcement mechanisms, which may not induce the parties to comply with the applicable legal framework.5 Whilst violations of IHL occur on a daily basis, enforcement mechanisms are rarely known by fighters on the ground,6 and they largely depend on the parties’ capacity and willingness to implement them.7 These features are a tall order in many of the current conflict settings, which are characterized by fragmented NSAGs fighting each other or governmental forces representing the ‘remainders of collapsed State structures’.8 These realities disclose the importance of implementing strategies specifically aimed at generating respect for the law. The humanitarian sector—an umbrella term covering a variety of actors such as the International Committee of the Red Cross 1 Krieger

2015, p 1. Committee of the Red Cross 2003, p 20; Clapham 2006, p 12. 3 Krieger 2015, pp 4–5 (affirming that “[a]ctual decisions to obey a legal norm result from a complex mixture of diverse motivations. Power relations as well as historical, political, social and anthropological conditions determine these motivations so that compliance is context-dependent”). 4 Bangerter 2011; International Committee of the Red Cross 2003, pp 20–21; Heffes 2018. 5 States acknowledged this weakness during the 31st International Conference of the Red Cross and Red Crescent, emphasizing in a resolution “the importance of exploring ways of enhancing and ensuring the effectiveness of mechanisms of compliance with IHL, with a view to strengthening legal protection for all victims of armed conflict”. International Committee of the Red Cross 2011, p 2. 6 Geneva Academy of International Humanitarian Law and Human Rights 2014, p 22 (affirming that in the context of a study in which the reaction to international norms of more than thirty groups were explored, some NSAGs “were not aware of the prohibition of child recruitment and their potential exposure to prosecution by the International Criminal Court and other tribunals”). 7 As Weinstein has correctly identified when dealing with NSAGs, international criminal tribunals, as mechanisms of deterrence of IHL violations, depend “on the fact that individuals care about the future”. Weinstein 2007, p 350. For discussions related to the deterrent effect of international criminal justice, see Cryer 2015; Jenks and Acquaviva 2014. 8 Krieger 2015, p 1. See also Chinkin and Kaldor 2017, p 11 (noting that while “[o]ld wars were fought by regular armed forces wearing uniforms and those recruited by the state through conscription or payment […] the participants in the new wars are often loose and fluid networks of state and non-state actors that cross borders”). 2 International

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(ICRC), Geneva Call and other non-governmental (NGO) humanitarian organizations, and the UN through its different agencies and bodies—are engaging with State and non-State parties to armed conflicts in an attempt to positively influence their behavior and to generate greater compliance with IHL and international human rights law (IHRL). These interactions, which are multi-layered and take place both formally and informally, have mainly relied on the direct humanitarian engagement with those participating in hostilities. Despite some success, violations of IHL persist,9 showcasing the importance of reflecting on novel approaches to increase the respect for this legal regime. A complementary strategy to the one undertaken by the abovementioned organizations focuses on the engagement of powerful societal actors that might influence the parties’ behaviors. It is in this context that the chapter examines one aspect that has remained largely underexplored: the role of religious leaders in influencing compliance with IHL. In particular, two issues are addressed: (1) what makes religious leaders influential, and (2) how can they be useful actors to increase the level of respect of IHL in armed conflict? These are not theoretical queries—they respond to specific gaps identified by the ICRC in a recent study, when underscoring the acute need for a solid knowledge base to inform the humanitarian engagement of societal actors, including religious leaders.10 The study’s findings posit that some of these entities are capable of significantly influencing the behavior of States and NSAGs in as far as the humanitarian norms receive “greater traction” by “[l]inking the law to local norms and values”.11 This scenario, indeed, allows for individual members of the parties to a conflict to better internalize the standards, which in turn promotes restraint in war in a more durable manner.12 It is at this juncture where this chapter takes shape. It intends to enhance the understanding of the role(s) of religious leaders in armed conflict.

9 This was explicitly confirmed by the UN Special Representative of the Secretary General for Chil-

dren in Armed Conflict in 2018 who noted that despite “[d]irect engagement with both government forces and armed groups has brought significant commitment and results to better protect conflict affected children”, grave violations against them continue “in every conflict situation—from the Central African Republic to Iraq, Somalia and Yemen”. UN Office of the Special Representative of the Secretary General for Children and Armed Conflict 2018. 10 International Committee of the Red Cross 2018. 11 Ibid., p 9. 12 Ibid.

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6.2 Compliance with International Humanitarian Law: Setting the Scene Generally, compliance has been defined as “behavioural conformity with existing norms and regulations.”13 For States and NSAGs, this implies that their behaviors are in accordance with IHL.14 It is important to complexify our understanding of compliance: parties to an armed conflict should not be seen as entities that either violate or respect IHL in toto, without exception. Instead, they often follow certain rules while disregarding others.15 For instance, a NSAG may respect the prohibition on hostage-taking, while violating the prohibition on using and recruiting children in hostilities.16 Similarly, a State may deliberately attack health care facilities and transports in breach of IHL, while avoiding the forcible displacement of civilians. Parties also often modify their behaviors during an armed conflict, reflecting an increase or decrease in their level of compliance with humanitarian provisions. This variation is evident, for instance, during peace processes, when NSAGs or States seek political recognition before local or international constituencies. They might adopt a very different attitude when they are actively engaged in hostilities, a moment in which they may attempt to show their military strength.17

13 Jo

2017, p 65. ICRC has defined compliance as the observance and implementation of IHL. International Committee of the Red Cross 2015a. This, of course, does not deny in any way the application of IHRL in times of armed conflict, which has been recognized by the International Court of Justice (ICJ) on several occasions. See ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, [1996] ICJ Rep 226; ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, [2004] ICJ Rep 136. The ICJ also confirmed that IHRL is applicable in situations of armed conflict in a case concerning armed activities in the territory of the Congo. ICJ, Case concerning Armed Activities on the territory of the Congo (Democratic Republic of the Congo v Uganda), Judgment, 19 December 2005, [2005] ICJ Rep 168. The application of IHRL to NSAGs has also gained a momentum in the last few years. See in this sense Clapham 2006; Murray 2016; Fortin 2017; Rodenhäuser 2018. 15 Gross 2015, p 74 for this analysis with respect to NSAGs. 16 Different explanations have been provided by NSAGs for their refusal to uphold the prohibition of recruiting and using child soldiers: children may be seen as an important resource for NSAGs’ survival; the fact that international standards do not match with local custom and norms about adulthood; and that children are seen as easily influenced and recruited. Other explanations are related to NSAGs’ lack of capacity to actually determine when an individual is a child or an adult, at least according to international law, and the lack of socio-economic alternatives for children. Furthermore, international law includes different standards for this prohibition. While IHL refers to 15 years old as the minimum age for recruitment, the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict affirms that “[a]rmed groups that are distinct from the armed forces of a State should not, under any circumstances, recruit or use in hostilities persons under the age of 18 years”. 17 This was clearly seen during the peace negotiations between the Colombian government and the Revolutionary Armed Forces of Colombia (FARC-EP), when the latter agreed to release children from its ranks at the final stage of the conflict. Casey N (2016) Colombia and FARC Rebels Reach a 14 The

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Compliance, therefore, should be understood as a spectrum, rather than an on/off switch.18 States and NSAGs’ behaviors in armed conflict are better conceptualized as “a matter of degree varying with the circumstances of the case.”19 Parties should be conceived as dynamic actors, weighing the costs against the benefits of complying with international law. In turn, the costs and benefits analyses involve an evaluation of material facts as well as ideatic aspects. In this sense, the results will vary depending on the parties’ goals and the moment when the behavior takes place.20 Understanding such a variation is crucial for humanitarian actors when determining a strategy of direct engagement with the parties and of engagement with their possible influencers, including religious leaders. The above-discussed behavioral variation ties into, and needs to be considered in association with, systemic and institutional challenges to the effectiveness of IHL. Systemic challenges include the unwillingness of States to acknowledge that a situation of violence amounts to an armed conflict which therefore triggers the application of IHL.21 A related problem is the rejection of IHL by NSAGs because they were not involved in the international law-making process and regard domestic law (incorporating IHL norms) as belonging to the opponent and thus not something that they wish to obey.22 Some NSAGs identify international law “as biased and privileging States”.23 In a similar vein, these non-State entities may perceive some humanitarian norms as prohibiting actions that “often serve the strategic interests of rebel groups—the sort of actions that may, at times, give them a competitive advantage over government forces.”24 Institutional challenges stem from the lack of appropriate organizational structures and resources allowing States and NSAGs alike to acknowledge, understand, and implement their humanitarian obligations.25 This challenge is faced particularly in those conflicts occurring in areas where the State has limited control over territory and the rule of law system is very fragile.26 The increasing fragmentation of NSAGs, which has contributed to conflicts that are “more violent, longer lasting and harder to resolve”,27 is a reflection of acute institutional challenges. Furthermore, non-State entities may not be aware of their international obligations. As Bangerter correctly Deal to Free Child Soldiers. https://www.nytimes.com/2016/05/16/world/americas/colombia-andfarc-rebels-reach-a-deal-to-free-child-soldiers.html. Accessed 23 September 2019. 18 Falk 1964, p 5. See also Chayes and Chayes 1995, p 17. 19 Falk 1964, p 5. 20 Fazal 2018, p 59. 21 International Committee of the Red Cross 2003, pp 20–21. 22 Jo 2015, p 256. See also Heffes and Kotlik 2014, p 1202 (arguing that “[f]rom a practical point of view, it seems unlikely that [NSAGs] will accept any set of rules merely by the fact that it has been previously agreed upon by States, be it customary or treaty law”); Henckaerts 2003. 23 Geneva Call 2016, p 25. 24 Jo 2015, p 6. For further reasons, see Bangerter 2011; Jo 2017. 25 Cismas and Heffes 2017. 26 Krieger 2015. 27 Blakke et al. 2015.

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notes, “only a relatively small circle of persons are aware of legal concepts in any given society, and it is unlikely that leaders of armed groups will be recruited in this particular circle.”28 NSAGs may not know, for instance, what medical ethics and triage imply or how to deal with humanitarian access, key principles for the delivery of health care by humanitarian organizations.29 In a recent study, Geneva Call found that several NSAGs felt that they did not have a complete understanding of the rules governing some of these issues and consequently were “not able to elaborate on what they entail”.30 These difficulties reinforce the importance of developing and implementing strategies aimed at generating respect for IHL. Key humanitarian organizations have traditionally relied on direct engagement with the parties to a conflict to generate compliance.31 This approach prioritizes the incorporation of humanitarian norms in the parties’ internal rules, in their training and accountability mechanisms, and excludes—in the main—reliance on underlying values to underpin humanitarian norms.32 While this has remained the dominant strategy, in the last two decades the humanitarian sector has, on an ad hoc basis, engaged other societal actors that have the potential to influence parties to armed conflict, and among them religious leaders.33 Certain ICRC initiatives have sought to build the capacity of religious leaders and faith-based organizations with the aim to achieve greater understanding of IHL.34 28 Bangerter

2015, p 113. 2019, p 234. 30 Geneva Call 2016, p 14. 31 Schneckener and Hofmann 2015; Quintin and Tougas 2020. In the last few years, there has also been an increasing intervention of UN bodies on issues related to compliance for IHL and IHRL. For instance, through its child protection framework, States and NSAGs can engage with UN agencies and sign ‘action plans’, which could lead to delisting them from the UN SecretaryGeneral’s list of actors that commit one or more of the five grave violations of children’s rights. For more information, see UN Office of the Special Representative of the Secretary-General for Children and Armed Conflict (https://childrenandarmedconflict.un.org/) and Kotlik 2020. For the reference to both IHL and IHRL, see UN Office of the Special Representative of the Secretary-General for Children and Armed Conflict 2013, p 10. 32 International Committee of the Red Cross 2004. Recently, the ICRC has begun a process of reflection indicating a greater openness to less formal mechanisms of influence. Following the 2004 study Roots of Behaviour in War, the ICRC asserted that “legal arguments were more durable than moral arguments when seeking to convince combatants to respect humanitarian norms during warfare”. In contrast, the 2018 Roots of Restraint in War study explores the formal and informal sources of influence on the development of norms of restraint in State armed forces and NSAGs. Terry and McQuinn 2018. 33 Quintin and Tougas 2020, p 371. Interestingly, this is seen with caution by the authors, who explain that engaging other societal actors “may also mean opening a Pandora’s box of sensitive issues for a neutral organization […]. [L]ooking at sources of influence will include examining not only the role played by local communities and cultural or religious leaders, but also the role played by donors, economic partners, political powers, etc.”. Quintin and Tougas 2020, pp 370–371. 34 International Committee of the Red Cross 2015a. See also International Committee of the Red Cross 2019b (stating that “[t]he crucial role of religious leaders and faith-based organisations and in times of conflict and humanitarian crisis is now increasingly appreciated, and the ICRC has striven over recent years to engage influential religious circles more systematically”). 29 Heffes

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Recent reflection within the ICRC has led to greater concern on how different mechanisms—beyond legal norms and direct engagement—can “influence—or at least generate gradual changes in—the behavior of NSAGs”.35 The Roots of Restraint in War study, for example, seeks to understand the impact of formal processes on vertically-organized NSAGs and the formation and impact of informal processes on more horizontally-structured groups.36 The engagement of religious leaders has attracted attention in UN fora as well. For example, UN bodies with a development remit have established strategy frameworks and guidelines on engaging with faith-based organizations and religious leaders in recognition of the roles that these entities play in development work in various countries.37 The UN Development Programme notes that “[i]n addition to providing spiritual and traditional guidance, [faith-based organizations] and [religious leaders] are part of the social fabric of communities and some may have greater access, scale and legitimacy than local governments. In fragile states, [faith-based organizations] and [religious leaders] may be the only actors offering basic social services.”38 Engagement in the development context is geared less towards influencing respect for norms—whether IHL or IHRL norms—and more towards establishing “partnerships in the context of humanitarian aid projects, development programmes, public education activities, and interreligious dialogue initiatives”.39 A common denominator, largely flowing from the mandates of these organizations, seems to be the insistence on “shared values, objectives and commitments”.40 Closer to the aim of this chapter, that of exploring modalities for inducing normcompliance, is the Fez Process, and the Plan of Action for Religious Leaders and Actors to Prevent Incitement to Violence that Could Lead to Atrocity Crimes released in 2017 by the UN Office on Genocide Prevention and the Responsibility to Protect.41 Another important initiative which seeks to advance freedom of religion and other human rights through inter-faith dialogue and cooperation is the Faith for Rights framework.42 These instruments reflect an acknowledgment of the strong potential of religious leaders to influence followers of their faith towards compliance with international law.

35 Quintin

and Tougas 2020, p 370.

36 Ibid. 37 UN

Population Fund 2009; UN Aids 2009; UN Development Programme 2014; UN High Commissioner for Refugees 2014; UN Environment Programme 2018. 38 UN Development Programme 2014, p 5. 39 Wiener 2012, p 37. 40 See UN Development Programme 2014, pp 3, 6, 12. See also a discussion in Wiener 2012. 41 UN Office on Genocide Prevention and the Responsibility to Protect 2017. 42 See, generally, UN Office of the High Commissioner for Human Rights 2017.

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6.3 Religious Leaders: Interpreters and Influencers The analytical category of religious actors can be empirically delineated to include those States and non-State entities that grant religion a central place in their functioning by means of adopting a religious organizational structure, religious doctrine, religious motivations, or by espousing a predominantly religious discourse.43 Whereas their religions, goals, and indeed the forms they take differ—and therefore we can distinguish between individual religious leaders, non-State religious associations, NSAGs, religious States of various denominations and even an intergovernmental organization44 —what unites religious actors is a common claim that they are legitimate interpreters of religion. It is evident that an empirical method which offers indicia as to whether an actor can be considered to be a religious one relies on observation and social perception. The process involves prior experience, motivations, expectations, and the filtering of information through such lenses.45 In the case at hand, this may entail that the definition of a leader as a religious actor will be affected by an assessment of what a specific religion is understood to be, or should be. Such an outcome goes against the intention of this chapter, and the use of religious leaders as an analytical category. In this sense, the examples enumerated in the following pages have been chosen intentionally so as to expound different religions. The intention was therefore not to pass value judgement in relation to religion(s) but instead to “operationalize an analytical category of actors with certain common functional or operational characteristics of which shared values are not one”.46 Based on this empirical approach, this chapter will further argue that religious leaders are individuals who assume the role of interpreters of religion and in doing so they sometimes ‘speak’ about IHL (Sect. 6.3.1). In putting forward their interpretations, they draw on a ‘special’ legitimacy which demands obedience from their followers and may influence the parties’ compliance—or lack thereof—with IHL (Sect. 6.3.2). Two further caveats should be addressed. First, whilst the examples of religious leaders examined in this chapter concern in the main individual religious leaders, we recognize that these individuals can, and often do, act as part of wider networks or formalized institutional structures or, indeed, that religious leadership can be

43 Cismas

2014, pp 50–55. argued that the intergovernmental Organization of Islamic Cooperation falls within the analytical category of religious actors. Cismas 2014, pp 239–304. 45 Ibid., p 52. 46 Ibid. 44 Cismas

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exercised by an informal/formal group47 or institution.48 Second, the term religious leaders may overlap with ‘religious personnel’ as defined in IHL, but is not restricted to the latter, as the study is also concerned with actors that may not be stricto sensu “attached to a party to the conflict, to its medical units or transports or to a civil defence organization”.49

6.3.1 Do Religious Leaders ‘Speak’ About International Humanitarian Law? Over the past decades, on numerous occasions, priests, ministers, imams or rabbis have ‘spoken’ about international rules and have attempted to influence the behaviors of parties to an armed conflict.50 This section will provide four examples of religious leadership reflecting different armed conflicts, religions, and relationships to armed actors. The rationale of the section is twofold. On the one hand, the empirical reality of religious actors’ involvement in armed conflict, whilst non-uniform, will emerge as a key reason why religious actors as interpreters of humanitarian norms should be studied by researchers and considered by the humanitarian sector. On the other hand, the illustrations will allow us to preliminary point to some factors that may shape the influence of religious leaders in times of conflict. Israel offers the first example of religious leadership, which we shall explore here. Rabbi Shlomo Goren, the first Chief Rabbi of the Israel Defense Forces (IDF), is said to be the architect of “the modern corpus of Jewish law and ethics relating to war and the military” by both shaping the role of the IDF Rabbinate and issuing a number of halakhic (religious) rulings on military conduct.51 Some rabbis have transferred principles that were not originally intended for the military context to the latter to account for the fact that references in the Bible to ‘collateral damage’ 47 For an example of women exercising religious leadership collectively through a church group in an effort to mediate between the parties to the Solomon Islands conflict, see discussion in Cismas 2017, pp 317–318; Snyder 2009. Note that the ‘Generating Respect for Humanitarian Norms’ project seeks to explore a larger spectrum of religious leadership (individual, collective, institutionalized) informed by the realities of our case study countries: Colombia, Libya, Mali, Myanmar. For more information about the project, see https://gtr.ukri.org/projects?ref=ES%2FT000376%2F1. 48 The IDF Rabbinate and Islamic State (IS) examples, respectively, which are developed infra, offer illustrations of institutional religious leadership. 49 Henckaerts and Doswald-Beck 2005, p 90, Rule 27. 50 The role of religious leaders as interpreters of humanitarian values should not be seen to exclude other potential roles that these individuals may have in conflict settings. For instance, they have been related to faith-based diplomacy and the full panoply of transitional justice mechanisms. See Brudholm and Cushman 2009; Vinjamuri and Boesnecker 2008; Cismas 2017. Furthermore, while in the Central African Republic, priests, imams and missionaries worked to reduce tensions between armed actors, sheltered people fleeing violence in their compounds, and aided, in Myanmar they created ‘zones of tranquility’ and gave protection for their followers. Fast 2018, pp 9–10. 51 Edrei 2006, p 255.

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and the prohibition of use of certain types of weapons were missing altogether.52 As a result of subsequent military rabbis’ interpretations of religion, and specifically the establishment of institutional arrangements that enabled the service of religious soldiers—to the point that they now represent a significant number in multiple combat units53 —“[r]eligion does not exist as a segmented subculture within the overall Israeli military fabric. Rather, it constitutes one of the IDF’s integral components”.54 Cohen, writing in 1999, argued that what had been achieved was “a symbiosis between religion and military service that, even if not altogether unique, is certainly more pervasive than that experienced in other modern armed forces”.55 Over a decade later, Levy describes the Israeli military’s “theocratization”,56 despite the formal control retained by civilian authorities. His study shows that military rules gradually conformed to principles of religious doctrine as can be inferred from the empowerment of the military rabbinate, restrictions imposed on women’s service and the manner by which the military deployed its troops to deal with religious commands; and most importantly […] religious authorities operated in tandem with the civil-sanctioned military system, whose opinions and jurisprudence carried a notable symbolic weight.57

A second illustration comes from the Philippines. In 2017, Sheikh Abuhuraira Abulrahman Udasan, the Bangsamoro mufti, issued a fatwa against radical extremism in the context of clashes between the government and certain groups that had pledged allegiance to the Islamic State (IS).58 This document was later endorsed by the Moro Islamic Liberation Front (MILF), which “supported such edict without fear and reservation”.59 The fatwa is reported to have eroded support for the Maute group, including among members’ of the leader’s family.60 The close relationship between the Muslim legal expert and the MILF can be observed from previous interactions; in 2015, Sheikh Abuhuraira Abulrahman Udasan is reported to have headed a MILF delegation welcoming Pope Francis on his visit to the Philippines.61 The above examples reveal two relevant aspects. First, shared religion, religious affinity, or religious alignment between a religious leader and an armed actor appear

52 Cohen

2007, p 19. 2014, pp 277–279. See also Kornalian and Zaim 2011, pp 9–13. 54 Cohen 1999, p 389. 55 Ibid. 56 Levy 2014. 57 Specifically, Levy describes the refusal of some religious soldiers, supported or encouraged by religious institutions to carry out orders to evacuate illegal settlements in the West Bank. Ibid., pp 285–286. 58 Fonbuena C (2017) MILF commits to implement fatwa versus radical extremism. https://www. rappler.com/nation/174775-milf-support-fatwa-radical-extremism. Accessed 18 January 2020. 59 Ibid. 60 International Crisis Group 2019, pp 15–16. 61 Pangco Panares J (2015) Muslim leaders unite for Pope, seek blessing. https://manilastandard. net/news/-main-stories/168243/muslim-leaders-unite-for-pope-seek-blessing.html. Accessed 17 January 2019. 53 Levy

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to translate into a certain influence of the former upon the later. Second, the embedding of the religious entity within the structure of the armed actor, or a very close relationship between the two, may further potentiate the former’s influence. A third case to examine here is the IS, which is active (predominantly) in parts of Iraq and Syria and notoriously co-founds religious leadership and armed structures. In 2014 and 2015, the IS Research and Fatwa Department and Dabiq, the IS English language propaganda magazine, published several manuals and articles seeking to justify enslavement, sexual slavery and rape of girls and women62 “as religiously meritorious: not just acceptable but a positive good. Rather than grudgingly grant its permissibility, or merely matter-of-factly assume its legality as most premodern texts do, IS proclaims enslavement a triumphalist reflection of its own legitimacy.”63 The manual titled Questions and Answers on Taking Captives and Slaves stipulates that taking “unbelieving women”, such as “[women from among the People of the Book, i.e. Jews and Christians] and polytheists’ captive is permissible due to their ‘unbelief’” and that “[i]t is permissible to have sexual intercourse with the female captive”, citing in support a verse from the Koran.64 It permits the buying, selling or gifting of “female captives and slaves, for they are merely property, which can be disposed of as long as that doesn’t cause [the Muslim ummah] any harm or damage” and lays down a number of rules governing “intercourse”, including with minors, and beating.65 Yazidi girls who had escaped IS, reported that fighters engaged in prayer before and after raping them and justified the rape along the lines laid out in the IS manual.66 In response, 126 (male) religious leaders and scholars from around the world— subsequently joined by others67 —published an open letter to Abu Bakr Al-Baghdadi and fighters and followers of IS,68 providing a different reading of koranic verses and asserting that “[t]he re-introduction of slavery is forbidden in Islam. It was abolished by universal consensus”.69 Interestingly, they note that Muslim states are parties to anti-slavery conventions and cite Al-Isra’, 17:34 (“And fulfil the covenant.

62 On the international crimes committed by ISIS against Yazidis girls and women, see UN Human Rights Council (2016) International Independent Commission of Inquiry on the Syrian Arab Republic: “They Came to Destroy”: ISIS Crimes Against the Yazidis, UN Doc. A/HRC/32/CRP.2. See also Cetorelli and Ashraph 2019. 63 Ali 2016, p 6. 64 IS Research and Fatwa Department, ‘Questions and Answers on Taking Captives and Slaves’, cited in Roth 2015. See also Chertoff 2017, p 1062. 65 IS Research and Fatwa Department, ‘Questions and Answers on Taking Captives and Slaves’, cited in Roth 2015. 66 Callimachi 2015. 67 For an overview of all signatories, see http://www.lettertobaghdadi.com/new-signatories/. 68 Letter to Baghdadi 2015. 69 Ibid., pp 1 and 12. For a comparative analysis of the IS publications and the Open Letter focusing on their respective interpretation of history and the relevance of notions of authority, see Ali 2016.

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Indeed the covenant will be enquired into.”) to insist that Muslims must uphold their obligations.70 The IS example serves to portray what one reviewer of this chapter has aptly termed “the elephant in the room”: religious leaders may and do also put forward religious interpretations which justify and encourage the breach of parties’ humanitarian obligations. The enslavement, sexual slavery and rape perpetrated by IS fighters are particularly horrific and their justification by appeal to religious interpretation is chilling to the bone; yet, they are by no means unique, nor are they the apanage of any one religion. Suffice to recall here that the International Criminal Tribunal for Rwanda had convicted clerics of various Christian denominations for committing or aiding and abetting genocide and crimes against humanity.71 The example invites reflection on another ‘elephant’. Ali has observed that both the IS interpretations and the counter-narrative put forward in the Open Letter raise questions about gendered authority, because in all these documents “women are absent as authorities: the scholars, whether religious authorities or Western secular academics, are all male. Girls and women appear instead as objects of enslavement or of rescue.”72 Her observation can be extended to all the illustrations of this chapter, in as far as the religious leaders discussed here are men in authority. Two other reflections are in order. First, the IS example reinforces our previous observation that the enmeshment of the religious and military structures holds great potential for the former to influence—in this case negatively—the latter. Second, religious narratives may be put forward that seek to counter negative—or indeed positive—influence on parties to a conflict; whether these achieve their goal may depend less on the accuracy of the religious interpretation, and more on the perceived legitimacy among fighters of the interpreter, or on external factors unrelated or only marginally related to religion.73 The final example draws on Pope Francis’ recent reassurance of the Holy See’s support for IHL.74 While noting the relevance of the Additional Protocols to the Geneva Conventions of 1977 and the importance which the Holy See attaches to these treaties, the Pope observed that “humanitarian law presents hesitations and omissions”.75 He has encouraged combatants and humanitarian aid workers to find a place in their conscience to “acknowledge the moral duty to respect and protect the dignity of the human person in every circumstance, especially in those situations 70 Letter

to Baghdadi 2015, p 12. ICTR, Prosecutor v Elizaphan Ntakirutimana and G´erard Ntakirutimana, Judgment and Sentence, 21 February 2003, Case Nos. ICTR-96-10, ICTR-96-17-T; ICTR, Prosecutor v Elizaphan Ntakirutimana and G´erard Ntakirutimana, Judgment, 13 December 2004, Case Nos. ICTR-96-10-A, ICTR-96-17-A; ICTR, Prosecutor v Athanase Seromba, Judgment, 12 March 2008, Case No. ICTR-2001-66-A; ICTR, Prosecutor v Athanase Seromba, Judgment, 13 December 2006, Case No. ICTR-2001-66-I. See also Fast 2018, p 11; Cismas 2017, pp 314–316. 72 Ali 2016, p 12. 73 On the issue of foreign fighters, see Borum and Fein 2016. 74 Holy See 2017. 75 Ibid. 71 See

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where it is most endangered”.76 This is, by all accounts, a religious leader’s attempt to enhance compliance with IHL and supplement the law’s shortcomings by appeal to moral sources. The papal message finds strong echoes in—or possibly reflects—the repeated calls for a ‘respeto a la vida’ (respect for life) espoused by numerous religious leaders throughout the hierarchy of the Catholic Church in Colombia and addressed to all parties to (previous and current) armed conflicts in the country.77 In Colombia, we find several examples of priests acting as mediators in hostage-situations and the Government’s explicit claim that the Catholic Church was “the only valid intermediary”.78 It is also worth noting that in the past numerous religious leaders were killed in relation to the various Colombian conflicts.79 Whilst it goes beyond the ambit of this chapter to unpack the complex relations between the Catholic Church, the Government, armed groups such as the Revolutionary Armed Forces of Colombia (Fuerzas Armadas Revolucionarias de Colombia–Ejército del Pueblo; FARC-EP), the National Liberation Army (Ejército de Liberación Nacional; ELN), and paramilitaries over the past five decades, preliminary research suggests that a shared religion or religious affinity is, on its own, insufficient in some contexts to ensure a religious leader’s influence on parties to conflict. The parties’ perception of the religious entity—of partisanship, for example, or aspects which are entirely extraneous, such as the goals of the armed actors themselves which, as we argued previously, are mutable during the course of a long conflict—are factors that may increase or decrease a religious leader’s influence in times of armed conflict. The above illustrations provide an emphatic answer to this section’s question: religious leaders have indeed put forward interpretations of religion which have a bearing on humanitarian norms. Not only have they had an effect on the parties’ (non-) compliance with these same rules, but religious leaders’ roles have been publicly recognized in the internal decision-making processes of States and NSAGs—such as in the cases of Israel and the IS. While an in-depth, critical assessment of the interpretations themselves goes beyond the scope of this chapter, we recognize that

76 Ibid. 77 Zaragoza

2020.

78 ForumLibertas

(2007) Rehenes de las FARC: la Iglesia, único intermediario válido para el Gobierno colombian [Hostages of FARC: the Church, the only valid intermediary for the Colombian Government]. https://www.forumlibertas.com/hemeroteca/rehenes-de-las-farc-la-iglesia-unico-int ermediario-valido-para-el-gobierno-colombiano/. Accessed 23 September 2019. See also Patterson 2013; Zaragoza 2020. 79 El Universal (2013) Desde 1984 han sido asesinados 83 sacerdotes en Colombia [Since 1984, 83 priests have been murdered in Colombia]. https://www.eluniversal.com.co/mundo/desde-1984han-sido-asesinados-83-sacerdotes-en-colombia-107440-MYEU193690. Accessed 23 September 2019.

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whether a religious interpretation seeks to reinforce, contradict or modify humanitarian norms is certainly not inconsequential.80 The answer may have very real implications for understanding the direction of the influence of religious leaders on parties’ IHL compliance, as well as on whether and how a humanitarian organization may wish to engage with a certain religious actor. Before discussing these aspects, we shall first explore what makes religious actors societally influential.

6.3.2 Why Might States and Non-State Armed Groups Follow Religious Leaders’ Interpretations on International Humanitarian Law? Identifying an individual as a religious leader is related to the underlining question as to why followers, including members of NSAGs and States’ armed forces, might obey their interpretations. Why would and do they act upon legal norms advocated or otherwise shaped by these leaders? Sociological insights may shed light on what it is about religious leaders’ claims to have the legitimate authority to interpret religion that sets them apart from similar claims by non-religious leaders and institutions. To begin with, the relationship between religious leaders and their adherents can be identified as one of command-obedience between an authority and individuals, that is, between a power-holder and a power-subject.81 Authorities, whether they take the form of religious or non-religious actors, seek to convince power-subjects that their commands are legitimate or ‘rightful’ so that the latter will obey them; in doing so, authorities appeal to various sources of legitimation.82 Before addressing those sources, however, it should be recalled that legitimate authority is not the only form of command. It is, however, a less ‘costly’ form of authority than either coercive or reward-based authority. In the case of coercive authority, only constant surveillance and supervision can ensure that subordinates completely comply with commands, for subordinates will comply only when they face the prospect of punishment for non-compliance. In the case of reward-based authority, obedience has to be ‘purchased’ through the offer of rewards for compliance. Legitimate authority obviates the need for surveillance and rewards, since subordinates feel obliged to obey no matter whether there is a ‘reward’ for compliance or not.83

Dogan observes that reality can rarely be described in terms of legitimacy or illegitimacy and concludes that it must come in degrees.84 This is an observation 80 A number of works engage in-depth with the study of religion(s) and IHL, and how substantive interpretations of the former can reinforce, or on the contrary frustrate, the latter. For an important recent study, see Al-Dawoody 2011. See also Evans 2006; Cockayne 2002. 81 Cismas 2014, p 55. 82 Matheson 1987, 200. 83 Ibid. 84 Dogan 2004, p 114.

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shared by legal scholars in relation to norms of international law.85 Nevertheless, there seems to be an agreement that a rule is illegitimate if a majority believes it to be so.86 What needs to be recalled is that any authority, including religious leaders when they issue religious interpretations on IHL, strives to justify or to legitimate its commands. As such, legitimacy provides a sense of duty or an ‘oughtness’ towards rules or legal norms issued by an authority.87 The power-subjects, either States or NSAGs, feel obliged to obey these rules or legal norms because of the legitimate character of the command-obedience relation, and their ‘belief’ that the authority’s conduct is rightful.88 Of interest for this chapter are the sources of legitimacy on which religious leaders draw to legitimate their authoritative interpretations. Drawing on Max Weber’s work—but adapting it according to the scope of this research—scholars have highlighted the legitimacy of the law, or of the authority enforcing the law, as the central aspect which determines compliance.89 This observation does not negate that individuals follow commands for a variety of complex reasons determined, for example, by historical, social, and political conditions,90 and that rewards or coercion may play a role in their decision to comply with a rule. To clarify this complex reality, we refer to a religious leader’s ‘claim to legitimacy’ or ‘claim to be a legitimate authority’ to interpret religion. These expressions suggest that the claim of religious leaders may or may not be validated by power-subjects. When followers validate such claims to legitimacy, they obey the religious interpretations. In the absence of a validation by power-subjects, the commands may still be followed because of fear of punishment or interest in rewards.91 When reviewing the different sources of legitimacy, it shall be noted that religious leaders draw primarily on traditional and charismatic sources. Rational-legal features, while certainly present, are not primarily emphasized for the purpose of convincing power-subjects to follow religious interpretations.92 The relation between religious leaders and their adherents is no different than the one between a secular (as in non-religious) democratic parliament and citizens. However, whereas in the latter case it is the legal-rational aspect of the law that confers legitimacy and generates compliance, in the former case, the legitimate authority of religious leaders is predominantly grounded in tradition and/or charisma. This entails that adherents will follow a specific command, including one relating to IHL, not primarily because it has been derived in a legal-rational way and is fair, or because they participated (indirectly) through democratic processes in creating that rule, but because the religious leader is perceived to have the authority by virtue of tradition or charisma to 85 Franck

1990, Chapter 3. 2004, p 117. 87 Spencer 1970, p 126. 88 Dogan 2004, pp 116–117. 89 Jo 2015, p 27. 90 Krieger 2015, pp 4–5. 91 Cismas 2014, p 57. 92 Ibid. 86 Dogan

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issue that command. In other words, the special legitimacy of religious leaders may address—to a certain extent—some of the systemic challenges to the effectiveness of IHL outlined earlier.

6.4 The Humanitarian Sector: Reasons for Engagement Humanitarian actors have engaged with religious leaders, as noted earlier, on an ad hoc basis. Their primer motivations—although not fully articulated—appear to center around three interrelated aspects: raising awareness about humanitarian norms among religious leaders themselves and their communities, strengthening the legitimacy of IHL in various local contexts, and facilitating the delivery of humanitarian assistance and access to those affected by armed conflict. When engaging with States and NSAGs in a humanitarian dialogue, it is generally difficult to pinpoint their incentives for complying with IHL. Interpretations of religious leaders, as explained, do not draw their legitimacy primarily from rationallegal processes, as do laws adopted by parliaments or international fora. The former, instead, are grounded in tradition or charisma, and it is these sources which make them particularly relevant influencers in contexts where IHL remains largely unknown or is perceived as foreign or belonging to the opponent. Religious leaders, therefore, can be messengers of IHL’s values, using local religious texts and interpretations as a basis for the parties’ obligations.93 They can raise awareness of the importance of respecting humanitarian norms and mobilizing their communities and others.94 The specific role that religious actors can play in facilitating the delivery of humanitarian assistance and in accessing those affected by armed conflict “by addressing misconceptions about international humanitarian organizations and building understanding for their work and mandate”95 should be emphasized. Effectively, what is sought through the engagement with religious leaders is a transfer of their special legitimacy onto humanitarian norms and organizations. With the above-considerations in mind, we note that the ICRC has engaged with religious leaders in respect to specific humanitarian activities. For example, when Islamist NSAGs took control of northern Mali in 2011, limiting access for humanitarian organizations, the ICRC had already established a relationship with Muslim scholars, including the High Islamic Council. It has been reported that through that dialogue, two groups “discussed access, humanitarian ethics and protection issues, 93 International Committee of the Red Cross 2015b. See also Aly 2014a (arguing that “aid and advocacy agencies have increasingly tried to understand Islamic law in order to use its humanitarian provisions as tools of negotiation with armed groups in the Muslim world”). 94 International Committee of the Red Cross 2016, p 36. Interestingly, the ICRC institutionalized this by creating in 2004 a specific unit tasked with developing its relations with, and understanding of, the Muslim world. Its work has focused on “forging links and interactions with Muslim scholars and on initiating a dialogue with them on the commonalities between IHL and the relevant rules of Islamic law and jurisprudence”. Quintin and Tougas 2020, pp 372–373. 95 International Committee of the Red Cross 2019a.

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and the ICRC was able to work with the Council at times as a go-between with the armed groups”.96 Ultimately, the Council issued a paper on the rules of engagement in jihad and the application of Sharia law. There, it advised against the use of corporal punishment.97 In Gaza, the ICRC involved imams in workshops organized together with the Ministry of Health to address the overcrowding of emergency departments, a serious problem under the usual circumstances and an acute one during conflicts when medical personnel find themselves unable to provide timely and effective care. As a result of the workshops, religious leaders used key messages during their sermons and promoted them on regular radio spots on the Al Quraan Al Kareem station, which has hundreds of thousands of listeners.98 More recently, experts in Islamic Law have provided the ICRC with a set of recommendations which envisage a more systematic engagement with religious leaders and scholars.99 These recommendations, and the flurry of humanitarian engagement with actors of various religions, may reflect the ICRCs more general openness for exploring less or informal mechanisms of influence, an openness signaled by the Roots of Restraint in War study. It is noteworthy that in September 2019, the ICRC gathered 120 individuals, including religious leaders, to discuss about the interface between Buddhism and IHL. The Head of the ICRC delegation in Sri Lanka noted that “dialogue between humanitarian organizations and religious leaders and academics can build solid common ground and can pass powerful messages to communities, arms carriers, and decision-makers”.100 In December 2019, experts in Islamic studies and IHL participated in a workshop jointly organized by the Al-Azhar University in Cairo and the ICRC, which aimed “at reinforcing universal acceptance of IHL and highlighting the humanitarian values and provisions of protection enshrined in Islamic jurisprudence”.101 These and other events appear to place the engagement of religious leaders as a humanitarian priority on the ICRC agenda.102 96 Aly

2014b.

97 Ibid. 98 International

Committee of the Red Cross 2016, p 36. Committee of the Red Cross 2019c, p 76 (The ICRC was asked to “[i]ncrease cooperation and coordination with influential religious scholars/leaders during armed conflict”, to include “front-line negotiators and influential religious leaders” in IHL discussions, and to “[u]se all the forums academics and religious leaders have to communicate pertinent messages to the general public”). 100 International Committee of the Red Cross 2019b. 101 International Committee of the Red Cross 2019d. 102 Other recent examples include Iran, where in 2016 the ICRC gathered 500 Islamic scholars, representatives of other faiths, and IHL experts from over 20 countries to discuss “humanitarian values common to world religions; the protection due to civilians, including patients and medical workers; the plight of missing persons and their families; proper human remains management; and environmental conservation and management”. International Committee of the Red Cross 2017, p 466. For similar examples in Mali, p 160; in Niger, p 173; in Uganda, p 209; in Burkina Faso, p 214; in Tunisia, p 248; in Afghanistan, p 317; in Bangladesh, p 323; in Pakistan, p 340; in Indonesia, p 357; in Jordan, p 485. 99 International

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Geneva Call has undertaken a similar approach. In 2014, for instance, it discussed issues related to the protection of civilians in conflict settings with 10 senior Sunni leaders in Lebanon, including the five muftis and the Head of the Higher Islamic Shari’a Council.103 The aim of the meeting was to secure support for the organization’s work in engaging NSAGs in the region on humanitarian norms.104 The leaders “welcomed Geneva Call’s initiatives and expressed their readiness to facilitate the organization’s humanitarian work in Lebanon”.105 In 2019, Shia religious leaders from Iraq, Lebanon, Iran, Yemen, and Bahrain convened in Najaf (Iraq) under the auspices of Geneva Call, and committed to certain rules regarding the prohibition of forced displacement under IHL.106 These include, among others, the prohibition to forcibly displace civilians, to launch indiscriminate attacks on internally displaced people (IDP) or against their camps, the use of displaced people as human shields or as hostages, and the use of IDP camps for military purposes.107 They also affirmed their commitment “to provide the greatest protection to the displaced” in terms of “health, hygiene and nutrition”, by providing and facilitating the delivery of humanitarian assistance to IDPs.108 The fundamental advantage of engaging with religious leaders may appear theoretical at first, but can prove to be of great practical relevance. By highlighting that religious interpretations supporting IHL exist (or can be crafted) and that they can be relied upon to induce the parties’ compliance with the law, religious leaders, and those actors engaging with them, dispel the myth of an unavoidable conflict between religion and law. Clearly, religious interpretations can and do conflict with humanitarian norms—but engagement with these actors can highlight areas of tension and incrementally, over time, may contribute to changes in interpretation. The effectiveness of this engagement—the measure of which is ultimately the generation of greater compliance with humanitarian norms—will largely depend on articulating and pursuing a future agenda of research that provides an empirical evidence base for understanding: which religious actors should be engaged, under what circumstances, and how. We propose the contours of such an agenda in the concluding section of this chapter.

6.5 Conclusion: An Agenda for Further Research The theoretical and analytical framework which this chapter begins to outline draws on the existing body of literature devoted to understanding the reasons why subjects obey domestic or international law, including the factors that may generate or limit 103 Geneva

Call 2014.

104 Ibid. 105 Ibid. 106 Geneva 107 Ibid. 108 Ibid.

Call 2019.

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compliance. Traditionally, theories of compliance largely adopted an instrumental perspective, emphasizing the influence of deterrence or coercive measures, such as the imposition of sanctions for violations of the law109 or the risk of reputational damage that would result from non-compliance.110 However, the relevance and effectiveness of these factors for IHL (and to a certain extent IHRL in armed conflict), is limited by the regime’s weak enforcement mechanisms. The normative perspective, on the other hand, emphasizes the importance of factors that generate voluntary compliance, such as the perceived legitimacy of relevant laws,111 or the interpreter of the laws, and the sense of ownership for norms generated by acculturation/internalization processes.112 Drawing on Max Weber’s work, scholars have highlighted the importance of legitimacy as a mechanism for generating compliance. In line with this view, where there is a lack of compliance-inducing mechanisms, voluntary compliance with the law may be generated by the perceived legitimacy of the law itself or the emitter/interpreter.113 Franck posits that the perceived legitimacy of a norm of international law may be generated by factors such as the symbolic validation of a rule or of a rule-making institution.114 In the vernacularization paradigm—developed by Sally Merry in the context of human rights ideas115 —religious leaders can be seen to assume the role of ‘brokers’ that negotiate and adapt humanitarian norms to specific cultural settings and therefore act towards the symbolic validation of the rule. Two main questions arise which need to be addressed by future research endeavors. First, what motivates religious leaders to put forward interpretations of religion which seek to further the compliance with humanitarian norms? Acculturation theories suggest that subjects of the law can individually or collectively internalize a norm, therefore generating a sense of ownership of the norm.116 Norm acculturation or internalization may occur as a result of the participation of actors in making, interpreting, and enforcing law. Their role as ‘brokers’ may lead religious actors to feel a sense of ownership over these norms (or the underlying values), and in turn transfer the special legitimacy which they enjoy onto the norms. Those factors that can engender this sense of ownership among religious leaders may include religious values, local laws—including but not restricted to religious law—, norms and custom, protections entailed by IHL in respect to religious personnel, religious sites, and the right to religious freedom. Second, there are factors that may maximize the special legitimacy of religious leaders in times of armed conflict and therefore their influence on generating compliance with—or, as the IS case study revealed, violations of—humanitarian norms. Relevant factors may include the type of armed conflict, the organization of the armed 109 Tyler

2006. and Chayes 1995. 111 Franck 1988. 112 Koh 1997; Goodman and Jinks 2013. 113 Franck 1988. 114 Ibid. 115 Merry 2006. 116 Koh 1997; Goodman and Jinks 2013. 110 Chayes

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actor (integrated State’s armed forces; centralized NSAG; decentralized NSAG; or community-embedded NSAG),117 the proximity, relationship and role of the religious leader with or within the structure of the armed actor, the armed actors’ perception of the religious leader, the latter’s societal position/perception, the shared (or not) religion, religious alignment or affinity with the parties, the security situation faced by the religious leader, their means of accessing parties and affected communities (e.g. direct, mediated through media), their participation (or readiness to participate) in interfaith dialogue and forums. Whilst the examples of religious leaders discussed in this chapter provided some preliminary information on some of these factors, (comparative) case studies, combining desk-based research with more qualitative methods, such as interviews with relevant stakeholders, are needed for an in-depth exploration. A caveat revealed by transitional justice scholarship refers to the position of a religious leader during conflict as victim, accomplice or perpetrator of violations, which presents very different opportunities for the actor’s engagement in post-conflict justice mechanisms and initiatives.118 A variable that will have to be considered by humanitarian organizations when evaluating whether the involvement of religious leaders can result in a transfer of legitimacy onto humanitarian norms is the religious leaders’ own record of compliance with IHL and their accountability. Be that as it may, one can very well envisage situations where a religious leader that had put forward interpretations of religion, which conflict with IHL norms, nonetheless, retains influence among followers. Unlike UN bodies operating in the field of development, which seek to partner with religious actors in order to ensure access to local communities on the basis of shared values, humanitarian organizations are mandated to engage with all parties to a conflict, compliant and non-compliant ones. Indeed, their interest may lay precisely in engaging the influencers of non-compliant parties seeking thereby to establish a humanitarian dialogue. Finally, an agenda for research on the role of religious leaders in generating compliance with IHL must also address the behavior of humanitarian organizations while engaging these actors. Considerations must include aspects relating to the separation of law and religion and specifically the impartiality/neutrality of humanitarian organizations, to the stark—if the examples discussed in this chapter are in any way indicative—possibility that humanitarian engagement may reinforce gendered structures, roles and narratives, and to the necessary means to ensure genuinely participatory parameters of engagement. Acknowledgements Research for this chapter was conducted as part of the project ‘Generating Respect for Humanitarian Norms: The Influence of Religious Leaders on Parties to Armed Conflict’. The authors gratefully acknowledge the support of the Economic and Social Research Council (UK). The opinions expressed in this publication are those of the authors. They do not purport to reflect the opinions or views of the organizations with which the authors are affiliated or of the funder. The authors are grateful to the two anonymous reviewers for their constructive comments.

117 International 118 Cismas

Committee of the Red Cross 2018. 2017.

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Cases ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, [1996] ICJ Rep 226 ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, [2004] ICJ Rep 136 ICJ, Case concerning Armed Activities on the territory of the Congo (Democratic Republic of the Congo v Uganda), Judgment, 19 December 2005, [2005] ICJ Rep 168 ICTR, Prosecutor v Elizaphan Ntakirutimana and Gérard Ntakirutimana, Judgment and Sentence, 21 February 2003, Case Nos. ICTR-96-10, ICTR-96-17-T ICTR, Prosecutor v Elizaphan Ntakirutimana and Gérard Ntakirutimana, Judgment, 13 December 2004, Case Nos. ICTR-96-10-A, ICTR-96-17-A ICTR, Prosecutor v Athanase Seromba, Judgment, 13 December 2006, Case No. ICTR-2001-66-I ICTR, Prosecutor v Athanase Seromba, Judgment, 12 March 2008, Case No. ICTR-2001-66-A

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Ioana Cismas is Senior Lecturer at the York Law School and Centre for Applied Human Rights, University of York, United Kingdom. Ezequiel Heffes is a Thematic Legal Advisor at Geneva Call, Geneva, Switzerland.

Part II

Other Articles

Chapter 7

Appellate Deference Versus the De Novo Analysis of Evidence: The Decision of the Appeals Chamber in Prosecutor v Jean-Pierre Bemba Gombo Aniel de Beer and Martha Bradley

Contents 7.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2 Interpretation of Relevant Articles of the Rome Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3 Appellate Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3.1 Grounds for Appellate Review Under the Rome Statute . . . . . . . . . . . . . . . . . . . . 7.3.2 The Principle of Appellate Deference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4 Application to the Bemba Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4.1 Approach to the Evaluation of the Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4.2 The Findings of the Trial Chamber and the Review by the Appeals Chamber . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract This chapter discusses the acquittal on appeal on 8 June 2018 of JeanPierre Bemba Gombo by the International Criminal Court on the basis of command responsibility for war crimes committed by troops under his command in the Central African Republic between October 2002 and March 2003. In terms of the traditional standard of appellate deference the Appeals Chamber displays a margin of deference in relation to the factual findings of the Trial Chamber and does not interfere with these findings unless it cannot discern how the Trial Chamber reasonably could have reached its conclusion on the basis of the evidence before it. The chapter analyses A. de Beer (B) South African Research Chair in International Law, University of Johannesburg, Johannesburg, South Africa e-mail: [email protected] A. de Beer · M. Bradley Centre for International Humanitarian and Operational Law, Department of International and European Law, Palacký University, Olomouc, Czech Republic e-mail: [email protected] M. Bradley Department of Public Law, University of Pretoria, Pretoria, South Africa © t.m.c. asser press and the authors 2021 T. D. Gill et al. (eds.), Yearbook of International Humanitarian Law 2019, Yearbook of International Humanitarian Law 22, https://doi.org/10.1007/978-94-6265-399-3_7

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whether there are grounds to conclude that no reasonable trier of fact could have reached the conclusion of the Trial Chamber to convict Bemba on the evidence before it and considers whether it was justifiable for the Appeals Chamber to analyse the evidence de novo and arrive at a different conclusion. It argues that the Vienna Convention on the Law of Treaties is the correct instrument to interpret the provisions of the Rome Statute and that the Appeals Chamber erroneously applied Article 22(2) of the Rome Statute of the International Criminal Court, which deals with the strict interpretation of the definition of crimes, in order to interpret Article 28 which deals with command responsibility. This affected its approach and consideration of the evidence led before the Trial Chamber. Finally, it offers observations on the effect of the deviation from the standard of appellate deference in Bemba on the future prosecution of sexual and gender-based crimes. Keywords Bemba · Appellate review · Appellate deference · De novo review · Article 81 Rome Statute · Article 83 Rome Statute · Articles 31–33 Vienna Convention on the Law of Treaties

7.1 Introduction On 21 March 2016 Jean-Pierre Bemba Gombo (Bemba), a former Vice President of the Transitional Government of the Democratic Republic of the Congo (DRC) and President of the Movement for the Liberation of the Congo (MLC), was convicted unanimously by Trial Chamber III (Trial Chamber) of the International Criminal Court (ICC) for crimes against humanity and war crimes committed by troops under his command in the Central African Republic (CAR) from 2002 to 2003.1 The Trial Chamber held that Bemba had failed to discharge his duty to take “all necessary and reasonable measures” to prevent and repress the commission of war crimes by troops under his command2 as contemplated in Article 28(a)(ii) of the Rome Statute of the International Criminal Court (Rome Statute).3 This is the first judgment to find an individual guilty of the commission of crimes on the basis of command responsibility.4 In particular, the Appeals Chamber has been criticised for a unilateral reframing of the standard of appellate review applicable to alleged errors of fact. In this regard it deviated from the traditional standard of appellate deference in terms of which the Appeals Chamber shows a margin of deference to the factual findings of the 1 ICC,

Prosecutor v Jean-Pierre Bemba Gombo, Judgment Pursuant to Article 74 of the Statute, 21 March 2016, Case No. ICC-01/05-01/08 (Bemba 2016), paras 575, 679, 752. 2 Ibid., para 752. For a detailed analysis of the meaning, content and application of the phrase “all necessary and reasonable measures” in the context of command responsibility and an opinion as to whether the conduct of Bemba met this threshold, see Bradley and De Beer 2020, pp 1–51. 3 Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) (Rome Statute). 4 Sadat 2018.

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Trial Chamber and does not address these findings unless it cannot discern how the Trial Chamber reasonably could have arrived at its conclusion on the basis of the evidence before it.5 This is the standard position in light thereof that the Trial Chamber generally is best placed to evaluate the evidence before it.6 In this chapter, we show that in the Bemba case the Appeals Chamber effectively changed the standard of review from evaluating whether the Trial Chamber reasonably could have reached the conclusion that it did based on the evidence to one in which other interpretations and conclusions were possible on the basis of the evidence before the Trial Chamber.7 In considering whether the ICC Appeals Chamber in the Bemba matter was justified in deviating from the traditional standard of appellate deference in respect of the factual findings of the Trial Chamber and undertaking a de novo analysis of the evidence, this chapter uses the interpretative provisions of the Vienna Convention on the Law of Treaties (Vienna Convention)8 to interpret the provisions of the Rome Statute. In Sect. 7.2 we discuss why the sources of international criminal law listed in Article 21(1)(a) of the Rome Statute are the starting point for the ICC in any legal analysis and explain that the primary source, the Rome Statute, should be interpreted in accordance with the interpretative provisions of the Vienna Convention. We propose to illustrate that the Appeals Chamber failed to use the provisions of the Vienna Convention to interpret the Rome Statute and erroneously employed Article 22(2) of the Rome Statute which requires a strict definition of core crimes, to interpret Article 28 of the Rome Statute which deals with command responsibility. We argue that this application of Article 22(2) skewed the approach of the Appeals Chamber to the findings of fact of the Trial Chamber and resulted in the Appeals Chamber deviating from the traditional principle of appellate deference by undertaking a de novo review of the evidence. In Sect. 7.3 we discuss the grounds for appellate review. In this regard, we evaluate Articles 81 and 83 of the Rome Statute. Although we discuss errors of law and procedural errors as grounds of review, our focus is on errors of fact allegedly affecting the reliability of the decision of the Trial Chamber in Bemba. We use the interpretative provisions of the Vienna Convention to give content to the ground of review that the proceedings appealed from were unfair in a way that affected the reliability of the decision. We further consider the principle of appellate deference as it relates to the Appeals Chamber’s consideration of the assessment of evidence and findings of fact by the Trial Chamber. We also consider the effect of previous decisions by the ICC Chambers and whether the Appeals Chamber should follow such previous decisions. 5 Powderly

2018, Introduction. See further Sadat 2018. 7 This chapter will not consider the argument by the Defence made to Trial Chamber III that the Prosecution’s case theory was radically altered when the alleged mode of liability changed from Article 25(3)(a) to Article 28(a) of the Rome Statute, and that such alteration violated the rights of the accused to be informed of the charges. 8 Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331(entered into force 27 January 1980) (VCLT). 6 Ibid.

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In Sect. 7.4 we analyse the decision by the Appeals Chamber in the Bemba case. First, we evaluate the approach by the Trial Chamber and the Appeals Chamber to the evidence led in the Bemba matter. We consider the fact that the Appeals Chamber took a strict approach to the analysis of the evidence by the Trial Chamber, viewing the evidence as weak, based on hearsay and of low probative value. We consider how this approach of the Appeals Chamber was affected by its application of Article 22 to interpret Article 28 of the Rome Statute. In order to consider the evidence leading to a conviction on the basis of command responsibility, we give content to the threshold of command responsibility using the interpretative provisions of the Vienna Convention. We then consider the evaluation of the evidence by the Trial Chamber and whether the conclusion of the Trial Chamber was reasonable in light of the facts. We discuss the focus of the Appeals Chamber on the status of Bemba as a remote commander, the measures he took, including the appointment of investigative commissions, and whether the Trial Chamber improperly took into account the motivation of Bemba to protect the reputation of the MLC in taking certain measures. Based on our findings, we reach a conclusion with regard to the deviation by the Appeals Chamber from the traditional standard of appellate review in the Bemba matter and offer some observations on its broader implications for the prosecution of war criminals for the most serious crimes criminalised under the Rome Statute.

7.2 Interpretation of Relevant Articles of the Rome Statute In this section we review the hierarchy of sources provided for in Article 21(1)(a) of the Rome Statute and justify the use of Articles 31 and 32 of the Vienna Convention to interpret Article 21(1)(a) of the Rome Statute. At the outset a brief discussion of the sources of international law is apposite. Article 38 of the Statute of the International Court of Justice (ICJ Statute) lists the three primary sources of international law and two additional subsidiary sources for the purpose of determining legal rules,9 but it is Article 21 of the Rome Statute that for the first time codifies the sources applicable to international criminal law specifically.10 There is no similar codification of sources 9 Statute of the International Court of Justice, opened for signature 26 June 1945, USTS 993 (entered

into force 24 October 1945), Article 38(1). Article 38(1) reads as follows: The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply (a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; (b) international custom, as evidence of a general practice accepted as law; (c) the general principles of law recognized by civilized nations; (d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. 10 Rome

Statute, above n 3, Article 21 (“Applicable Law”):

(1) The Court shall apply (a) in the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence; (b) in the second place, where appropriate, applicable treaties

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in the statutes of the ad hoc tribunals.11 Article 21 of the Rome Statute departs from Article 38 of the ICJ Statute by introducing a ‘ranking’ of sources or a three-step approach in relation to the applicable law. The Triffterer Commentaries assert that this hierarchy of sources imposed by Article 21 of the Rome Statute is modelled on the sources provided for in Article 38 of the ICJ Statute and the modifications serve to account for “the particularities of criminal law”, especially as there is a need for clarity and specificity.12 A textual interpretation of Articles 21(1)(a), 21(1)(b) and 21(1)(c) of the Rome Statute in terms of Article 31(1) of the Vienna Convention13 confirms this hierarchy of sources. Article 21(1)(a) of the Rome Statute states that in the “first place” the court shall apply the Rome Statute, Elements of Crimes and its Rules of Procedure and Evidence. The Collins English Thesaurus offers the following synonyms for the term ‘in the first place’, namely “to begin with”; “at the outset”; “to start with”; “before all else”.14 The inclusion of “in the first place” in the wording of Article 21(1)(a) of the Rome Statute therefore declares that the starting point for the ICC are the sources listed under this provision, which are the Rome Statute itself, its Elements of Crimes and the Rules of Procedure and Evidence, and that any legal analysis should begin specifically with these sources. Article 21(1)(b) of the Rome Statute provides that the ICC shall apply “[i]n the second place, where appropriate, applicable treaties and the principles and rules and the principles and rules of international law, including the established principles of the international law of armed conflict; (c) failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards. (2) The Court may apply principles and rules of law as interpreted in its previous decisions. (3) The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender as defined in article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status. For a detailed discussion of Article 21 of the Rome Statute, see DeGuzman 2016; Schabas 2016, pp 514–535. 11 Compare the Statute of the International Criminal Tribunal for the Former Yugoslavia (UN Security Council (1993) Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY), UN Doc. S/25704 (adopted through UN Security Council (1993) Resolution 827 (1993), UN Doc. S/RES/827)). See also Statute of the Special Court for Sierra Leone (Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, opened for signature 16 January 2002, 2178 UNTS 137 (entered into force 12 April 2002)) where equally no provision is made for specific sources applicable before the Courts. 12 DeGuzman 2016, p 933. 13 The general rules of treaty interpretation are codified in Articles 31–33 of the VCLT. Article 31(1) provides: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” 14 O’Neill and Summers 2015, p 335.

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of international law, including the established principles of the international law of armed conflict”. Simply, the term ‘second’ means “next”, “following”, “additional”.15 The wording “in the second place” thus confirms that there is a hierarchy of sources inherent in Article 21 of the Rome Statute. The term “where appropriate” further reinforces the fact that these sources are secondary in significance to those listed under Article 21(1)(a). Article 21(1)(c) of the Rome Statute states that “failing that” the Court shall apply general principles of law.16 The ordinary meaning of ‘failing that’ is “in the absence of”, “lacking”, or “in default of”.17 The inclusion of the term “failing that” clearly indicates that the sources listed in Article 21(1)(c) should be consulted only after the sources listed in Articles 21(1)(a) and 21(1)(b) of the Rome Statute have been addressed in sequence and have not provided the ICC with legal certainty.18 The Triffterer Commentaries and the Schabas Commentaries to the Rome Statute confirm our understanding of the hierarchical approach presented in Article 21(1)(a). The commentaries require a first resort to the interpretative clauses of the Vienna Convention to address lacunae or to clarify the meaning of the sources in Article 21(1)(a) before employing the other sources listed in Articles 21(1)(b) and (c) of the Rome Statute.19 This order of approach has also been confirmed in case law.20 In Prosecutor v Al Bashir, the ICC Pre-Trial Chamber I stated that those other sources of law provided for in paragraphs 1(b) and 1(c) of article 21 of the Statute, can only be applied when the following two conditions are met: (i) there is a lacuna in the written law contained in the Statute, the Elements of Crimes and the Rules; and (ii) such 15 Ibid.,

p 765. Statute, above n 3, Article 21(1)(c):

16 Rome

Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards. 17 O’Neill

and Summers 2015, p 314. Rome Statute, above n 3, Articles 21(1)(a), 21(1)(b) and 21(1)(c) read in sequence. 19 DeGuzman 2016, p 936; Schabas 2016, p 515. The commentaries on the Rome Statute support our interpretation. 20 The ICC Trial Chamber confirmed that Article 21 of the Rome Statute, establishes a hierarchy of sources, obliging the Chamber to apply, first, the relevant provisions of the Rome Statute, the Elements of Crimes, and Rules of Procedure and Evidence listed in Article 21(1)(a). See Bemba 2016, above n 1, para 66; ICC, Prosecutor v Germain Katanga, Judgment Pursuant to Article 74 of the Statute, 7 March 2014, Case No. ICC-01/04-01/07 (Katanga 2014), para 39; ICC, Prosecutor v Germain Katanga, Judgment on the Appeal of Mr Germain Katanga Against the Decision of Pre-Trial Chamber I Entitled “Decision on the Defence Request Concerning Languages”, 27 May 2008, Case No. ICC-01/04-01/07-52 (Katanga 2008), para 39. Although Article 21(1)(a) does not expressly establish a hierarchy for the application of the three relevant sources, it follows from Articles 9(3) and 51(5) of the Rome Statute that the Statute always prevails. Article 9(3) requires that the Elements of Crimes and amendments thereto shall be consistent with the Rome Statute, and Article 51(5) states that in the event of conflict between the Statute and the Rules of Procedure and Evidence the Statute shall prevail. See Bemba 2016, above n 1, para 66. 18 Compare

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lacuna cannot be filled by the application of the criteria provided for in articles 31 and 32 of the Vienna Convention on the Law of Treaties and article 21(3) of the Statute.21

The ICC Pre-Trial and Appeals Chambers have also held that the Rome Statute as a multilateral treaty is governed first and foremost by the principles of treaty interpretation set out in Articles 31 and 32 of the Vienna Convention.22 We recognise that it may be argued that Article 21(1)(a) of the Rome Statute does not mention the Vienna Convention and that, therefore, the interpretative provisions of the Vienna Convention do not apply. Further, Article 21(1)(b) might be interpreted to mean that the Vienna Convention belongs under the heading of “applicable treaties” as a secondary source before the ICC.23 However, the Vienna Convention applies to treaties between States.24 The Rome Statute qualifies as a treaty as defined in the Vienna Convention. Accordingly, the interpretative provisions of the Vienna Convention in our view should be used to interpret the provisions of the Rome Statute,25 including its Articles 28 and 22(1).26 In the Katanga case the Trial Chamber supported the argument that Article 22(2) of the Rome Statute does not from the outset take precedence 21 See ICC, Prosecutor v Omar Hassan Ahmad Al Bashir, Decision on the Prosecution’s Application

for a Warrant of Arrest Against Omar Hassan Ahmad Al Bashir, 4 March 2009, Case No. ICC02/05-01/09, para 126 (italics in original). See further Bemba 2016, above n 1, para 69: Articles 21(1)(b) and 21(1)(c) of the Rome Statute provide for “subsidiary sources of law”, which may be resorted to when there is a lacuna in the written law contained in the sources included in Article 21(1)(a). 22 ICC, Prosecutor v Jean-Pierre Bemba Gombo, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, Case No. ICC-01/05-01/08-424, para 361; ICC, Situation in the Democratic Republic of the Congo, Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal, 24 July 2006, Case No. ICC-01/04-168, para 33: “The interpretation of treaties, and the Rome Statute is no exception, is governed by the [VCLT], specifically the provisions of articles 31 and 32”. See further Katanga 2008, above n 20, para 38; Katanga 2014, above n 20, paras 43–45; ICC, Prosecutor v Thomas Lubanga Dyilo, Judgment Pursuant to Article 74 of the Statute, 14 March 2012, Case No. ICC-01/04-01/06-2842 (Lubanga 2012), para 601. 23 “Interpretative provisions” refers to Articles 31–33 of the VCLT. 24 VCLT, above n 8, Article 21(1)(a). A treaty is defined as an international agreement concluded between States in written form and governed by international law. 25 The principal rule of interpretation is set out in VCLT, above n 8, Article 31(1) which reads as follows: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” See Bemba 2016, above n 1, para 77: The “ICC Trial Chamber II has furthermore considered that the various elements referred to in this provision—i.e., ordinary meaning, context, object, and purpose—must be applied together and simultaneously, rather than individually and in a hierarchical or chronological order”. See further Katanga 2014, above n 20, para 45. This method of interpretation prescribes that the various ingredients—the ordinary meaning, the context, and the object and purpose—be considered together in good faith. 26 Article 22(1) of the Rome Statute, above n 3, provides for the nullum crimen sine lege principle— that no person shall be criminally responsible unless the conduct constituted a crime within the jurisdiction of the ICC at the time it took place. Article 22(2) provides that “[t]he definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted.”.

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over the conventional method of treaty interpretation, and limited the application of Article 22(2) to cases where doubt is cast by an equivocal term or phrase as to the exact meaning of a provision which cannot be clarified by the ordinary means of interpretation.27 An interpretation of Article 22(2) of the Rome Statute in accordance with its ordinary meaning as contemplated in Article 31 of the Vienna Convention and a consideration of the travaux préparatoires of the drafters of the Rome Statute demonstrate that it is only the definition of crimes in the Rome Statute that is subject to a strict construction and that only in case of ambiguity should the definition be interpreted in favour of the accused.28 Notwithstanding, in its consideration of the question whether a superior should be held responsible for the conduct of his troops under the principle of command responsibility as contemplated in Article 28 of the Rome Statute, it appears that the ICC Appeals Chamber applied the rule of strict interpretation contemplated in Article 22(1), and where it felt that there was an element of ambiguity it erred in favour of the accused. In the Separate Opinion, Judge van den Wyngaert stated that “the language of articles 28 and 30 of the [Rome] Statute requires that the commander is virtually certain of the guilt of his or subordinates and article 22(2) of the Statute obliges us to interpret substantive criminal law provisions strictly”.29 We are of the view that in adopting this attitude the Court is incorrect—the application of Article 22(2) is 27 Katanga

2014, above n 20, para 53:

It should therefore not be considered that article 22(2) of the Statute from the outset takes precedence over the conventional method of treaty interpretation or only a part of the method. Were this to be so, rather than being in a position to take the requisite open and neutral approach, the bench would be compelled automatically to apply the provisions of the Statute in favour of the accused, thereby excluding any attempt to interpret in good faith, whether in favour of or against the accused. For an examination of Article 22 of the Rome Statute, see Lind 2016. Commentaries to the Rome Statute and ICC jurisprudence further confirm the approach first to resort to the interpretative clauses of the Vienna Convention to address lacunae or to clarify the meaning of certain provisions before employing the sources listed in Articles 21(1)(b) and (c) of the Rome Statute. See DeGuzman 2016, p 936; Schabas 2016, p 515. 28 Emphasis added. See Bradley and De Beer 2020. Article 31 of the VCLT, which concerns the general rules of treaty interpretation, determines that the ordinary meaning of words must be read in their context. The context of Article 22(2) of the Rome Statute is the nullum crimen sine lege rule. For an overview of the nullum crimen sine lege rule, see Schabas 2016, pp 439–546; Staker and Eckelmans 2016, pp 1915–1953; Broomhall 2016. Akande, furthermore, employed Article 31 of the VCLT to interpret Article 8(2)(b) of the Rome Statute (Akande 2013). See further United Nations (1998) Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. Rome, 15 June-17 July 1998, Official Records, Volume III, UN Doc. A/CONF.183/13, pp 21, 30, 102; United Nations (1998) Chairman’s Suggestion for Articles 21, 26 and 28, UN Doc. A/CONF.183/C.1/WGGP/L.1; Cherif Bassiouni 1998, pp 244, 480–481. 29 See ICC, Prosecutor v Jean-Pierre Bemba Gombo, Separate Opinion of Judge Christine van den Wyngaert and Judge Howard Morrison, 8 June 2018, Case No. ICC-01/05-01/08-3636-Anx2 (Bemba Separate Opinion 2018), para 46. See Bradley and De Beer 2020, p 7. Judges van den Wyngaert and Morrison were of the view that Article 28 of the Rome Statute does not—and should not—require that the commander’s failure caused his or her subordinates to commit crimes, and

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circumscribed and is limited in application only to the definitions of core crimes contemplated in the Rome Statute. The Trial Chamber, correctly in our view, applied the principle of strict legality to the substantive provisions with regard to the definition of a crime under Articles 6 to 8, and to the relevant elements of crimes.30 The Chamber further applied Article 21 of the Rome Statute in combination with Articles 31 and 32 of the Vienna Convention.31 The approach by the Appeals Chamber influenced its approach to the evidence in the Bemba matter, as will be discussed further in Sect. 7.4. The next section considers the grounds for appellate review under the Rome Statute and interprets the grounds of appeal in Articles 81(1)(b) and 83 of the Rome Statute based on the Vienna Convention as well as the commentaries to the Rome Statute.

7.3 Appellate Review 7.3.1 Grounds for Appellate Review Under the Rome Statute 7.3.1.1

Errors of Fact and Errors of Law

Articles 81 to 83 of the Rome Statute deal with appeals before the ICC. The Bemba Appeals Decision32 is a final decision under Article 74 of the Rome Statute and our analysis is limited to Articles 81(1)(a), 81(1)(b) and 83(2) of the Rome Statute. Article 83(2) provides that the Appeals Chamber may reverse a judgment by the Trial Chamber “[i]f the Appeals Chamber finds that the proceedings appealed from were unfair in a way that affected the reliability of the decision or sentence, or that the decision or sentence appealed from was materially affected by error of fact or law or procedural error.”33 These grounds of appeal are mirrored in Article 81(1)(b).34 The noted that this view is in line with the principle of strict interpretation enshrined in Article 22(2) of the Statute. 30 Bemba 2016, above n 1, para 83. 31 Ibid., para 86: Therefore, for the purpose of this Judgment, the Chamber applies Article 21 of the Statute, in combination with Articles 31 and 32 of the VCLT. In this context, the Chamber bases its findings on the applicable law set out in Article 21(1)(a) to (c), in accordance with the principles outlined above, and in full respect of the limitations provided for in Articles 21(3) and 22(2). 32 ICC, Prosecutor v Jean-Pierre Bemba Gombo, Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against Trial Chamber III’s “Judgment pursuant to Article 74 of the Statute”, 8 June 2018, Case No. ICC-01/05-01/08 (Bemba 2018). 33 Emphasis added. See further Staker and Eckelmans 2016, p 1924. 34 Rome Statute, above n 3, Article 81(1)(b) provides as follows: “The convicted person, or the Prosecutor on that person’s behalf, may make an appeal on any of the following grounds: (i) procedural error, (ii) error of fact, (iii) error of law, or (iv) any other ground that affects the fairness or reliability of the proceedings or decision.”

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only difference between Article 81(1)(b) and Article 83(1) is that Article 81(1)(b) deals with the grounds upon which a convicted person may appeal a decision of the Trial Chamber, whereas Article 83(1) deals with the rights of the Appeals Chamber to set a decision aside on the grounds set out in Article 81(1)(b). Article 83(1)(a) provides that for the purposes of proceedings under Articles 81 and 83 the Appeals Chamber shall have all the powers of the Trial Chamber. With regard to errors of fact, the Schabas Commentaries on Article 83 of the Rome Statute anticipate that the Appeals Chamber will not intervene with respect to factual errors unless it is revealed that the Trial Chamber made a clear error in that it incorrectly valued the facts or assessed irrelevant facts or failed to consider relevant facts.35 The Triffterer Commentaries interpret case law from the International Criminal Tribunal for the Former Yugoslavia (ICTY)36 and the International Criminal Tribunal for Rwanda (ICTR)37 as implying deference being paid to the Trial Chamber.38 The commentaries are of the view that although the Appeals Chamber within self-imposed limits may re-assess the evidence and may “to a degree step into the shoes of the Trial Chamber”, the assessment of the evidence as well as entering findings beyond reasonable doubt usually are in the primary competencies of a Trial Chamber.39 With regard to errors of law the threshold that is required to trigger appeal proceedings is that the error needs to “materially affect” the impugned decision as set out in Article 83(2) of the Rome Statute.40 There is a degree of interaction between the review grounds of errors of fact and errors of law and that the proceedings appealed from were “unfair in a way that affected the reliability of the decision”.41 Article 25 of the Statute of the ICTY and Article 25 of the Statute of the ICTR provide that appeals may be heard on the grounds of an error of fact that has occasioned a miscarriage of justice or an error on 35 Schabas

2016, p 1214. Staker and Eckelmans 2016, p 1929 citing the relevant cases at note 91. These ICTY cases include ICTY, Prosecutor v Zlatko Aleksovski, Judgment, 24 March 2000, Case No. IT-95-14/l-A (Aleksovski 2000), paras 51–56; ICTY, Prosecutor v Blagoje Simic, Judgment, 28 November 2006, Case No. IT-95-9-A, para 25. 37 See Staker and Eckelmans 2016, p 1929, note 91. These ICTR cases include ICTR, Jean de Dieu Kamuhanda v Prosecutor, Judgment, 19 September 2005, Case No. ICTR-99-54A-A, paras 21– 23; ICTR, Jean Bosco Barayagwiza v Prosecutor, Decision on Prosecutor’s Request for Review or Reconsideration, Separate Opinion of Judge Shahabuddeen, 31 March 2000, Case No. ICTR-97-19AR72, para 52; ICTR, Prosecutor v Bagosora et al., Decision on Aloys Ntabakuze v Interlocutory Appeal on Questions of Law Raised by the 29 June 2006 Trial Chamber I Decision on Motion for Exclusion of Evidence, 18 September 2006, Case No. ICTR 98-41-AR-73, para 42. 38 See Staker and Eckelmans 2016, p 1930. 39 Ibid. 40 Ibid. We focus in this chapter on errors of fact. For more on errors of law, see Schabas 2016, pp 1213, 1219–1930. See Staker and Eckelmans 2016, p 1930. The Schabas Commentaries provide that with regard to errors of law the Appeals Chamber needs not to show any deference to the Trial Chamber but reaches its own conclusions, albeit based on the interpretation of the law and the application of the law by the Trial Chamber. 41 See Rome Statute, above n 3, Articles 81(1)(b) and 83. 36 See

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a question of law invalidating the decision.42 Although the value of the jurisprudence of the ICTY and ICTR on the standard of review arguably is limited as the wording of the appellate proceeding provisions differs (in that it requires that an error of fact resulting in a miscarriage of justice or an error on a question of law invalidating the decision),43 in our view at least it provides support for an argument in favour of a higher standard of appellate review with regard to alleged errors of fact.

7.3.1.2

The Proceedings Appealed from Were Unfair in a Way that Affected the Reliability of the Decision

In order to establish when the proceedings appealed from are “unfair in a way that affected the reliability of the decision” as contemplated in Articles 81 and 83 of the Rome Statute, we will use the provisions of the Vienna Convention to give content to the review ground. The Collins English Dictionary defines the term ‘unfair’ as “unequal or unjust”44 and the Collins English Thesaurus offers the synonyms “biased” and “arbitrary”.45 The term ‘reliability’ refers to the decision being “sound”, “certain” or “trustworthy”.46 The adverb ‘materially’ as used in the construct “materially affected”, therefore, can be replaced by the terms “considerably”, “significantly” or “substantially”.47 In our view, a literal interpretation of the benchmark inherent in Article 82(3) of the Rome Statute therefore means that the proceedings appealed from were “unfair”, “arbitrary” or “unjust” to the extent that what took place influenced, altered or changed the trustworthiness or certainty of the decision or sentence or that the decision or sentence appealed from was considerably, significantly or substantially changed or influenced by the error of law, fact or procedure. This finding should be tested on the facts of each case. As the above wording still may be open to interpretation, we had regard to the drafting history of Article 83 to give further content to the grounds of appellate review in Articles 81 and 83 of the Rome Statute. Regrettably, the Official Records 42 Emphasis added. Article 25(1) of the ICTY Statute (UN Security Council (1993) Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY), UN Doc. S/25704 (adopted through UN Security Council (1993) Resolution 827 (1993), UN Doc. S/RES/827)) concerns appellate proceedings before the Appeals Chambers of the ICTY. The article reads: “The Appeals Chamber shall hear appeals from persons convicted by the Trial Chambers or from the Prosecutor on the following grounds: (a) an error on a question of law invalidating the decision; or (b) an error of fact which has occasioned a miscarriage of justice.” Art 25(1) of the ICTR Statute (UN Security Council (1994) Statute of the International Tribunal for Rwanda, UN Doc. S/RES/995) merely duplicates Article 25 of the ICTY Statute. It determines that “[t]he Appeals Chamber shall hear appeals from persons convicted by the Trial Chambers or from the Prosecutor on the following grounds: (a) an error on a question of law invalidating the decision; or (b) an error of fact which has occasioned a miscarriage of justice.” 43 See Schabas 2016, p 1212. 44 O’Neill and Summers 2015, p 886. 45 Ibid., p 904. 46 Ibid., p 716. 47 Ibid., p 534.

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give little insight into the formulation of Articles 81 and 83.48 The text of Article 83(2) (previously Article 82(2)) was not amended or a subject of debate during the 1998 meetings in Rome.49 The State parties mostly were concerned with the revision of a conviction or sentence or appeal against interlocutory decisions.50 However, the International Law Commission’s 1994 Draft Statute for an International Criminal Court with Commentaries (Draft Statute) is insightful in that Draft Article 49 of this Draft Statute informed Article 83(2) of the Rome Statute.51 Article 49(2) of the Draft Statute read that the Appeals Chamber may review a decision if it finds “that the proceedings appealed from were unfair or that the decision is vitiated by error of fact or law”.52 The commentaries to Draft Article 49(2) of the Draft Statute elaborated on the standard of review imposed by the wording “unfair” or “vitiated by error”: it stated that “[n]ot every error at the trial need lead to reversal or annulment: the error had to be a significant element in the decision taken […] the proceedings must have been, overall, procedurally unfair or the decision must be vitiated by the error.”53 The term ‘vitiate’ is defined as “to destroy the legal effect of”,54 and the literal interpretation of ‘vitiate’ means that this wording employed in Article 49(2) suggested that a stricter benchmark is applicable if the Appeals Chamber on review sets aside a judgment of the Trial Chamber. The wording of Article 83(2) of the Rome Statute, however, replaced the wording that “the decision is vitiated by error of fact or law” with wording to the effect that the Appeals Chamber may review if it “finds that the proceedings appealed from were unfair in a way that affected the reliability of the decision or sentence, or that the decision or sentence appealed from was materially affected by error of fact or law or procedural error”55 This in our view lowered the standard for review in light of the meaning of “vitiated” discussed above. The official records and the commentaries to the Draft Statute offer no insight as to why the ICC later deviated from the initial

48 United Nations (1998) Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. Rome, 15 June-17 July 1998, Official Records, Volume III, UN Doc. A/CONF.183/13. 49 Compare Preparatory Committee on the Establishment of an International Criminal Court 1998c, pp 65, 122, 169. 50 See Netherlands (1998) Proposal Submitted by the Netherlands, UN Doc. A/CONF.183/C.1/WGPM/L.44; Japan (1998) Proposal Submitted by Japan, UN Doc. A/CONF.183/C.1/WGPM/L.45; Kenya (1998) Proposal Submitted by Kenya, UN Doc. A/CONF.183/C.1/WGPM/L.46; Canada (1998) Proposal Submitted by Canada, UN Doc. A/CONF.183/C.1/WGPM/L.47; United States (1998) Proposal Submitted by the United States of America, UN Doc. A/CONF.183/C.1/WGPM/L.48. 51 International Law Commission 1994, p 61. 52 Ibid. (emphasis added). 53 Ibid. 54 O’Neill and Summers 2015, p 909. 55 Emphases added. Compare Draft Article 49(2) of the ILC Draft Statute (International Law Commission 1994, p 61) and Article 83(2) of the Rome Statute.

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wording in Article 49(2) of the ILC Draft Statute, which is also reflected in Article 25 of the ICTY Statute and the ICTR Statute.56 In light of the above we are of the view that there is an argument in favour of a high benchmark for appellate review of a decision of the Trial Chamber. In the next section we consider the principle of appellate deference with regard to factual findings by the Trial Chamber.

7.3.2 The Principle of Appellate Deference Although there is no reference to ‘appellate deference’ in the Rome Statute, it appears that this principle is equated with the standard of review in respect of factual errors.57 The ICTY Appeals Chamber previously commented that the Appeals Chamber should afford a “margin of deference” to the Trial Chamber’s evaluation of the evidence presented at the trial concerned as “Trial Chambers are best placed to hear, assess and weigh the evidence, including witness testimonies, presented at trial”.58 Therefore, in terms of the traditional model, the Appeals Chamber must defer to the assessment of evidence made by the Trial Chamber unless it is demonstrated that the Trial Chamber could not reasonably have reached the factual conclusions it did on the evidence before it.59 The Appeals Chamber therefore needs to determine whether, based on the evidence before it, the Trial Chamber could have made the finding in question beyond a reasonable doubt.60 Various ICC judgments seem to support the principle that the Appeals Chamber should not interfere with the factual findings of the Trial Chamber unless it is shown that the Trial Chamber “misappreciated” the facts before it or took into account 56 Compare

International Law Commission 1994, p 61 and United Nations (1998) Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. Rome, 15 June-17 July 1998, Official Records, Volume III, UN Doc. A/CONF.183/13. 57 In respect of appeals on the basis of errors of fact it is suggested that two different categories of error of fact exist. The first category is where it is alleged that the Trial Chamber erred in reaching reasonable conclusions on the facts presented before it. The second category concerns situations where the Trial Chamber correctly assessed the evidence presented during the trial phase, but additional facts were offered during the appeals phase that suggest that the previous findings are unreliable. See Staker and Eckelmans 2016, p 1935. 58 Aleksovski 2000, above n 36, para 63. 59 Compare ibid. 60 Bemba 2018, above n 32, paras 38, 42. See ICC, Prosecutor v Thomas Lubanga Dyilo, Judgment on the Appeal of Mr Thomas Lubanga Dyilo Against his Conviction, 1 December 2014, Case No. ICC-01/04-01/06 A 4 A 6 (Lubanga 2014), para 27: Accordingly, when a factual error is alleged, the Appeals Chamber will determine whether a reasonable Trial Chamber could have been satisfied beyond reasonable doubt as to the finding in question. The Appeals Chamber will not assess the evidence de novo with a view to determining whether it would have reached the same factual conclusion as the Trial Chamber.

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irrelevant facts or ignored relevant facts.61 This dictum is set out as follows in the Lubanga Appeal Judgment and is referred to in the Triffterer Commentaries:62 Having regard to the similarity between the Court’s legal framework and those under which the ad hoc tribunals operate, the Appeals Chamber considers it appropriate to apply the same standard. Accordingly, when a factual error is alleged, the Appeals Chamber will determine whether a reasonable Trial Chamber could have been satisfied beyond reasonable doubt as to the finding in question. The Appeals Chamber will not assess the evidence de novo with a view to determining whether it would have reached the same factual conclusion as the Trial Chamber.63

The Triffterer Commentaries further interpret the ICTY and ICTR case law to suggest that the Appeals Chambers of these ad hoc tribunals held that they will not reassess evidence admitted to trial independently or undertake a de novo review of evidence.64 The commentaries suggest that in an appeal against a conviction, the ICTY and ICTR Appeals Chambers do not “determine whether it is itself satisfied beyond a reasonable doubt of the guilt of the accused”.65 The Appeals Chambers instead apply a “deferential standard” of review in accordance with which it must determine whether a reasonable Trial Chamber could have been persuaded beyond a reasonable doubt as to the finding in question.66 At this juncture, it should be noted even though it may be the practice of the ICC to follow its own jurisprudence,67 Article 21(2) of the Rome Statute makes it clear that the ICC is not bound by its prior decisions but “may” follow previous decisions.68 The ICC, therefore, can deviate from the traditional standard of appellate deference applied in previous ICC and criminal law tribunals. In Aleksovski, the Appeals Chamber considered the stare decisis principle as it relates to previous decisions by ICC Chambers.69 It concluded that a proper construction of the Rome Statute in light of its text and purpose supported the conclusion that the Appeals Chamber should follow its previous decisions in the interests of certainty and predictability, but should be free to depart from them “for cogent reasons in the interests of justice” such as where a previous decision has been decided on the basis of a wrong legal principle.70 The principle of the continuity of judicial decisions 61 Bemba

2018, above n 32, para 39; Lubanga 2014, above n 60, para 21 (footnotes omitted). See also ICC, Prosecutor v Mathieu Ngudjolo Chui, Judgment on the Prosecutor’s Appeal Against the Decision of Trial Chamber II Entitled “Judgment Pursuant to Article 74 of the Statute”, 7 April 2015, Case No. ICC-01/04-02/12-271-Corr (Ngudjolo 2015), para 22. 62 Staker and Eckelmans 2016, p 1936. 63 Ibid., citing Lubanga 2014, above n 60, para 27. 64 Staker and Eckelmans 2016, p 1936. Staker and Eckelmans offer ICTY, Prosecutor v Zejnil Delalic et al., Judgment, 20 February 2001, Case No. IT-96-21-A, paras 203–204 as an example. 65 Staker and Eckelmans 2016, p 1936 (emphasis in original). 66 Ibid. 67 E.g. ibid., p 1947. 68 Compare Rome Statute, above n 3, Article 21(2), which states that the ICC “may” apply principles and rules of law interpreted from its prior judgments. 69 Aleksovski, above n 36, para 107. 70 Ibid.

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must therefore be balanced by a residual principle that ensures that justice is done in all cases.71 We consider below the approach by the Trial Chamber and the Appeals Chamber respectively to the evaluation of evidence, and offer an opinion as to whether the Trial Chamber could reasonably have made the decision on the basis of the facts before it.

7.4 Application to the Bemba Case 7.4.1 Approach to the Evaluation of the Evidence We are of the view that the approach by the Appeals Chamber in Bemba to the evidence and the findings of fact by the Trial Chamber was coloured by the perception that command responsibility should be strictly interpreted under Article 22 of the Rome Statute,72 with a focus on not prejudicing the accused. The Appeals Chamber found that the evidence before the Trial Chamber did not allow it to enter a finding beyond reasonable doubt that Bemba had knowledge of criminal conduct by MLC troops.73 It was of the view that the Trial Chamber had relied on unreliable witness statements and “dubious” circumstantial evidence, and the evidence was for the most part weak, based on hearsay, and had low probative value.74 In light of the weak 71 Ibid.,

para 102. Separate Opinion 2018, above n 29. As discussed earlier, Article 22 does not apply to modes of liability (command responsibility). 73 See Bemba Separate Opinion 2018, above n 29, para 50: “Whatever the case may be, we are clearly of the view that the available evidence did not allow the Trial Chamber to enter a finding beyond reasonable doubt that Mr Bemba had knowledge of alleged criminal conduct by MLC troops.” See further Bemba 2018, above n 32, para 10: 72 Bemba

I am not persuaded that the evidence indicated in the Trial Judgment could have satisfied a reasonable Trial Chamber beyond reasonable doubt that the Appellant deserved to be convicted of crimes against humanity and war crimes in the manner of the charges against him. I could therefore find no convincing basis to uphold the judgment of the Trial Chamber. The finding of guilt—or its sustainment on appeal—beyond reasonable doubt must result from a view of evidence that is naturally compelling: in the sense of pointing to guilt with unstrained confidence. It does not result from giving bloated significance to available evidence, in ingenious ways; nor, from an analysis of the evidence that suggests purposeful tropism in the light of the indictment. In these things, the mind can begin to ‘see’ what is not there. These should be general caveats in every criminal case. But, they are more exacting when the charge concerns criminal responsibility of a commander for the crimes of subordinates. 74 ICC, Prosecutor v Jean-Pierre Bemba Gombo, Concurring Separate Opinion of Judge EboeOsuji, 14 June 2018, Case No. ICC-01/05-01/08-3636-Anx3 (Bemba Concurring Separate Opinion 2018), para 91. See also Bemba Separate Opinion, above n 29, para 67 referring to “the opacity of the reasoning, the reliance on (anonymous) hearsay evidence and the findings beyond a reasonable doubt based on dubious circumstantial evidence”.

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underlying evidence, the Appeals Chamber was of the view that the Trial Chamber should have provided a more comprehensive level of reasoning in arriving at their factual conclusions,75 and this lack of sufficient reasoning amounted to errors of law and/or fact on the part of the Trial Chamber.76 The presence of these errors in turn displaced the customary standard of deference and entailed the application of a much higher level of appellate scrutiny to the factual findings in the instant case.77 While the Appeals Chamber was of the view that the Trial Chamber failed to properly take into account certain relevant evidence or relied on unreliable evidence, the Trial Chamber set out in detail its approach to assessing the weight of verbal, written and circumstantial evidence presented in the matter.78 The Trial Chamber referred to its mandate to determine the truth,79 and confirmed that it was required it to perform “a holistic evaluation and weighing of all the evidence taken together in relation to the fact at issue”80 and that it is under no obligation “to refer to the testimony of every witness or every piece of evidence on the trial record”.81 With regard to documentary and other non-oral evidence, it stated that the statutory framework provides it with a considerable degree of flexibility in weighing the evidence brought before it.82 Notwithstanding, the Trial Chamber confirmed that it assessed the weight to be accorded to each of the particular items of evidence admitted.83 With regard to

75 Bemba

2018, above n 32, para 43. para 49. Also, it stressed that Rome Statute, above n 3, Article 74(5), requires the Trial Chamber to provide “a full and reasoned statement of [its] findings on the evidence and conclusions”, and that if a decision under Article 74 of the Statute does not comply completely with this requirement, this amounts to a procedural error. 77 Bemba 2018, above n 32, para 68. 78 The Trial Chamber decided whether the submitted materials are relevant to the trial, have probative value, and are sufficiently relevant and probative to outweigh any prejudicial effect that could be caused by their admission notwithstanding the exculpatory evidence submitted. Bemba 2018, above n 32, para 513. 79 See Rome Statute, above n 3, Article 69(3). See also Ngudjolo 2015, above n 61, para 256, finding that “[t]he establishment of the truth is one of the principal objectives of the Statute, to which the Trial Chamber must actively contribute”. 80 Lubanga 2014, above n 60, para 22. 81 Bemba 2016, above n 1, paras 218, 225. 82 Ibid., para 235; Lubanga 2012, above n 22, para 107; Katanga 2014, above n 20, para 88; ICC, Prosecutor v Mathieu Ngudjolo Chui, Judgment Pursuant to Article 74 of the Statute, 18 December 2012, Case No. ICC-01/04-02/12, para 54. See also ICC, Prosecutor v Francis Kirimi Muthaura et al., Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, 23 January 2012, Case No. ICC-01/09-02/11, para 76 recalling that “neither the Statute nor the Rules provide that a certain type of evidence is per se inadmissible”. 83 See Lubanga 2014, above n 60, para 22 finding that “when determining whether [the standard of proof beyond reasonable doubt] has been met, the Trial Chamber is required to carry out a holistic evaluation and weighing of all the evidence taken together in relation to the fact at issue”. 76 Ibid.,

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oral evidence,84 in assessing a witness’s credibility, the Chamber considered the individual circumstances of each witness85 and with regard to reliability, it considered the entirety of their testimony, having regard, in particular, to the capacity and quality of their recollection86 as well as the witnesses’ conduct during their testimony.87 It further assessed the contents of a particular item of documentary evidence, its provenance, source or author, their role in the relevant events and the chain of custody from the time of the item’s creation until its submission to the Chamber.88 It also took a cautious approach in assessing evidence originating from hearsay: It did not rule out such evidence ab initio, instead assessing the weight to be accorded to it, taking into account the context and conditions in which such evidence was obtained, and with due consideration of the impossibility of questioning the information source in court.89 We consider below whether, on the basis of the evidence, the (reasonable) Trial Chamber in reality could reach the finding on the basis of Article 28 of the Rome Statute that Bemba was responsible for the crimes of his troops based on the evidence before it90 or whether the Appeals Chamber was justified in reviewing the decision. We start by giving content to the threshold in order to make a finding of command responsibility in terms of Article 28 of the Rome Statute, followed by an evaluation of the findings of the Trial Chamber and the Appeals Chamber.

84 The Trial Chamber referred to the Appeals’ Chamber’s findings in Lubanga 2014, above n 60, para 239: “In assessing the weight to be given to the testimony of a witness, a Trial Chamber needs to assess the credibility of the witness and the reliability of his or her testimony.”. 85 “[I]ncluding their relationship to the accused, age, vulnerability, any involvement in the events under consideration, the risk of self-incrimination, possible bias towards or against the accused, and/or motives for telling the truth or providing false testimony”. See Bemba 2016, above n 1, para 230. 86 Bemba 2016, above n 1, para 230. In this respect the Chamber took into account, inter alia, (i) the consistency and precision of the accounts; (ii) whether the information provided was plausible; and (iii) whether the evidence conflicted with a witness’s prior statements. 87 The Trial Chamber agrees with the jurisprudence of the ICTY that there is “no recognised rule of evidence, however, that traumatic circumstances necessarily render a witness’s evidence unreliable”. See Bemba 2016, above n 1, para 241. See further ICTY, Prosecutor v Dragoljub Kunarac et al., Judgment, 12 June 2002, Case Nos. IT-96-23, IT-96-23/1-A, para 324. See also ICTY, Prosecutor v Milan Lukic and Sredoje Lukic, Judgment, 20 July 2009, Case No. IT-98-32/1-T, paras 136 and 142–143; ICTY, Prosecutor v Kupreskic et al., Judgment, 23 October 2001, Case No. IT-95-16-A, para 135. 88 Bemba 2016, above n 1, para 237. 89 Ibid., para 238. 90 Bemba 2018, above n 32, para 42.

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7.4.2 The Findings of the Trial Chamber and the Review by the Appeals Chamber 7.4.2.1

Command Responsibility

Article 28 of the Rome Statute provides that command responsibility is triggered where “[t]he military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution”. In order to clarify the legal obligation a military commander incurs in terms of Article 28(a)(ii) the notions “necessary” and “reasonable” in the wording “failed to take all necessary and reasonable measures within his or her power” are analysed in accordance with Article 31(1) of the Vienna Convention. The adjective ‘necessary’ means “needed in order to obtain the desired result”.91 The adjective ‘reasonable’ refers to “sensible” or “not making unfair demands”.92 A literal interpretation of the phrase means that the measures taken by the military commander should be those measures in his or her power needed to prevent or repress the commission of war crimes or to submit violations for adjudication subject to the proviso that it is sensible to do so or that the necessary measures cannot impose an unfair burden on the commander. As the literal meaning remains open to interpretation, the drafting history of the Rome Statute is consulted so as to reach greater clarity.93 The drafting history reveals that the first draft of the command responsibility provision originally contained only the words “necessary measures”94 and the phrase “reasonable” arguably was adopted later from

91 O’Neill

and Summers 2015, p 525. p 662. 93 VCLT, above n 8, Article 32. 94 Proposal Submitted by the United Kingdom of Great Britain and Northern Ireland (United Kingdom 1996). The draft provision reads (emphasis added): 92 Ibid.,

In addition to other (types of complicity) (modes of participation) in crimes under this Statute, a commander is also criminally responsible (as an aider or abettor) for such crimes committed by forces under his command as a result of his failure to exercise proper control where (a) he either knew or, due to the widespread commission of the offences, should have known that they were committing or intending to commit the offences, and (b) he did not take all necessary measures within his power to prevent or repress their commission.

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the text of Article 7(3) of the ICTY Statute.95 The inclusion of the term “reasonable” was accepted without contention.96 Owing to the fact that the wording of Article 7(3) of the ICTY Statute informed the threshold requirement for “all necessary and reasonable measures” as adopted in Article 28(a)(ii) of the Rome Statute, recourse further may be had to the relevant judicial decisions of the ICTY. The Delalic,97 Blaški´c,98 Halilovi´c,99 Ori´c100 and Strugar 101 cases state that an evaluation of whether or not the steps taken by a military commander discharges the ‘necessary and reasonable’ standard should take into account that a commander’s powers are inseparable from the facts and the battlefield

95 UN Security Council (1993) Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY), UN Doc. S/25704 (adopted through UN Security Council (1993) Resolution 827 (1993), UN Doc. S/RES/827), Article 7(3). The provision reads (emphasis added):

The fact that any of the acts referred to in Articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof. 96 Compare drafting history: Preparatory Committee on the Establishment of an International Criminal Court (1996) Summary of the Proceedings of the Preparatory Committee During the Period 25 March-12 April 1996, UN Doc. A/AC-249/1; Preparatory Committee on the Establishment of an International Criminal Court (1998c) Report of the Committee of the Whole and Report of the Drafting Committee. In: United Nations (1998)Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. Rome, 15 June-17 July 1998, Official Records, Volume III, UN Doc. A/CONF.183/13; Preparatory Committee on the Establishment of an International Criminal Court (1997) Working Group on General Principles of Criminal Law and Penalties, UN Doc. A/AC.249/1997/WG.2/CPR.3; Preparatory Committee on the Establishment of an International Criminal Court (1998a) Report of the Inter-Sessional Meeting, UN Doc A/AC.249/1998/L.13; Preparatory Committee on the Establishment of an International Criminal Court (1998b) Report of the Preparatory Committee, UN Doc. A/CONF.183/2/Add.1; United States (1998) Proposal Submitted by the United States of America, UN Doc. A/CONF.183/C.1/L.2. 97 ICTY, Prosecutor v Zdravko Mucic et al., Judgment, 16 November 1998, Case No. IT-96-21-T (Delalic 1998), paras 394–395. 98 ICTY, Prosecutor v Tihomir Blaški´ c, Judgment, 29 July 2004, Case No. IT-95-14-A (Blaški´c 2004), paras 70–72. 99 ICTY, Prosecutor v Sefer Halilovic, Judgment, 16 November 2005, Case No. IT-01-48-T (Halilovic 2005). 100 ICTY, Prosecutor v Naser Ori´ c, Judgment, 30 June 2006, Case No. IT-03-68-T (Ori´c 2006), paras 325–336. 101 ICTY, Prosecutor v Pavle Strugar, Judgment, 31 January 2005, Case No. IT-01-42-T, paras 373–378.

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reality unique to a particular conflict situation102 and whether his or her actions meet the threshold thus should be assessed on a case-by-case basis.103 In the Delalic Trial Judgment the Trial Chamber affirmed that “any evaluation of the action taken by a superior to determine whether this duty has been met is so inextricably linked to the facts of each particular situation that any attempt to formulate a general standard in abstracto would not be meaningful”.104 In Ori´c, Trial Chamber II summarised the benchmark test inherent in the wording “necessary and reasonable” as “[w]hat is required is a finding that the superior, in view of the factual circumstances of the case, failed to do what would have been necessary, reasonable and possible to prevent [punish] the criminal activities of his subordinates”.105 In the Bagosora and Nsengiumva cases the ICTR Appeals Chamber106 explained that if a commander is found to have the material ability to prevent and punish crimes, then his or her failure to act is not excused because at the time he had assumed key responsibility or was dealing with a critical situation as serious as a conflict or the collapse of an institution.107

102 Delalic

1998, above n 97, para 394 (emphasis added):

The legal duty which rests upon all individuals in positions of superior authority requires them to take all necessary and reasonable measures to prevent the commission of offences by their subordinates or, if such crimes have been committed, to punish the perpetrators thereof. It is the view of the Trial Chamber that any evaluation of the action taken by a superior to determine whether this duty has been met is so inextricably linked to the facts of each particular situation that any attempt to formulate a general standard in abstracto would not be meaningful. Blaški´c 2004, above n 98, para 121: “What constitutes such measures is not a matter of substantive law but of evidence, whereas the effect of such measures can be defined by law”. 103 Delalic 1998, above n 97, paras 394–395; Blaški´ c 2004, above n 98, para 72; Halilovic 2005, above n 99, para 74 (emphasis added): “The determination of what constitutes ‘necessary and reasonable measures’ to prevent the commission of crimes or to punish the perpetrators is not a matter of substantive law but of evidence […]. It is well established these measures may vary from case to case”. Ori´c 2006, above n 100, para 329 (emphasis added): The type of measures a superior must take in order to prevent the crimes of his subordinates has been described as a matter of evidence rather than of substantive law. This characterization is correct in the sense that the appropriate measures to be taken may vary from case to case depending upon the particular circumstances. 104 Delalic

1998, above n 97, paras 394–395. 2006, above n 100, para 330 (emphasis added). 106 ICTR, Theoneste Bagosora and Natole Nsengiyumva v Prosecutor, Judgment, 14 December 2011, Case No. ICTR-98-41-A. Article 6(3) of the ICTR Statute (UN Security Council (1994) Statute of the International Tribunal for Rwanda, UN Doc. S/RES/995) is a duplication of Article 6(3) of the ICTY Statute (UN Security Council (1993) Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY), UN Doc. S/25704 (adopted through UN Security Council (1993) Resolution 827 (1993), UN Doc. S/RES/827)). 107 Compare Article 6(3) of the ICTR Statute (UN Security Council (1994) Statute of the International Tribunal for Rwanda, UN Doc. S/RES/995). 105 Ori´ c

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The commentaries confirm that the wording “take all necessary and reasonable measures” obliges a superior to take only measures that are “necessary, reasonable, and within his powers” in a specific case and that he cannot be expected to do the impossible.108 “Necessary” in the context of the threshold requirement for command responsibility means that as soon as a superior learns of the commission or likely commission of crimes by his subordinates he is expected to adopt measures that, taking into account the information at his disposal at the time and all relevant factual circumstances, discharge his obligations as a commander.109 The investigative powers of the commander further include the duty of the commander to take all necessary and reasonable measures to punish. In Ori´c, Trial Chamber II of the ICTY explained that the duty to punish is triggered once a superior learns of the crime of a subordinate.110 The commander must immediately execute appropriate sanctions or, if not able to do so, at a minimum he must launch an investigation in order to establish the facts so that the offenders under his effective control are brought to justice.111 The commander needs not to execute the duty to investigate, but he must ensure that an investigation is conducted.112 The commentaries elaborate that the commander can punish his subordinates himself or, if it is not in his capacity or if the situation does not allow him to do so, he may refer the matter to the competent authorities who can take action in this regard.113

7.4.2.2

Conclusions by the Trial Chamber and the Appeals Chamber Based on the Evidence in Bemba

In light of the discussion above, it will be evaluated whether it was reasonable for the Appeals Chamber to reach a conclusion on the evidence before it that the Trial Chamber had erred in finding that Bemba failed to take all measures that were necessary and reasonable to prevent or repress the crimes committed by MLC forces, or to submit the matter to the competent authorities.114 While the Appeals Chamber 108 Schabas

2016, p 618:

The identification of what constitutes necessary and reasonable measures is to be made in light of what is within the ‘material possibility’ of the commander, bearing in mind ‘the superior’s degree of effective control over his forces at the time his duty arises’. This suggests that what constitutes a reasonable and necessary measure will be assessed on the basis of the commander’s de jure power. 109 Mettraux

2008. above n 100, paras 330–331. 111 Ibid., paras 330–331. 112 Ibid., para 331. 113 Broomhall 2016. 114 Bemba makes five submissions: (i) that the Trial Chamber failed to apply the correct legal standard; (ii) that it misappreciated the limitations of the MLC’s jurisdiction and competence to investigate; (iii) that it ignored that Mr Bemba had asked the CAR Prime Minister to investigate the allegations; (iv) that it erred by taking into account irrelevant considerations; and (v) that the Trial 110 Ori´ c,

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accused the Trial Chamber of taking an “unreasonably strict approach” in interpreting the measures taken by Bemba as not meeting the standard of “all necessary and reasonable measures” in Article 28(a)(ii) of the Rome Statute,115 we are of the view that the preference of the Appeals Chamber for a strict interpretation under Article 22 and its application of Article 22 to the mode of liability in Article 28 influenced its generous interpretation of the measures taken by Bemba. It also contributed to its failure to focus on whether the measures taken indeed were aimed at repressing or punishing the crimes in question. Although the Appeals Chamber argued that it had reviewed exactly the same forensic evidence as the Trial Chamber,116 in reassessing the measures Bemba took the Appeals Chamber seemed to undertake a limited review of the evidence. It focused on three issues to support its finding that Bemba was not responsible for the conduct of the MLC forces in the CAR during 2002–2003, namely his status as a remote commander, the fact that he took certain measures to address the crimes in the CAR, specifically that he authorised certain commissions of inquiry to investigate the alleged crimes being committed in the CAR and corresponded with various officials in the CAR and the UN,117 and that the Trial Chamber improperly considered Bemba’s motivation to protect the image of the MLC when taking certain measures in relation to the crimes in the CAR.118 Firstly, we consider the Appeals Chamber’s view regarding the failure of the Trial Chamber to give sufficient weight to the fact that Bemba’s status as a ‘remote’ commander with troops in a foreign country limited his ability to initiate investigations.119 The Appeals Chamber referred to Bemba’s contention that the Trial Chamber did not appreciate fully witness testimony that indicated that any investigation carried out in the CAR was limited and dependant on the cooperation of

Chamber’s findings on the measures taken were unreasonable, misstated the evidence and ignored relevant evidence. See Bemba 2018, above n 32, para 138. 115 Bemba 2018, above n 32, para 176. 116 See Bemba Concurring Separate Opinion, above n 74, para 6: I am bound to stress at this juncture that what divides the majority and the minority of judges in this appeal is not that one side had fully considered the forensic data that the Trial Chamber had relied on, while the other side did not […] in the course of deliberations lasting about two years, all the appeal judges in the case had done extensive review of precisely the same forensic information indicated in the Trial Judgment. Having done so, the majority considered that they were not satisfied that a Trial Chamber properly directing itself as to the standard of proof beyond reasonable doubt could have convicted. The minority took the opposite view. authorised two commissions of inquiry, namely, the Mondonga Inquiry and the Zongo Commission in order to investigate certain crimes. Bemba 2018, above n 32, paras 171, 181. 118 Bemba contends that the motivation of a commander in taking measures is irrelevant to the question of whether they were necessary and reasonable. Bemba 2018, above n 32, para 151. 119 Bemba 2018, above n 32, para 138. Bemba argued that command responsibility was only appropriate in situations where the commander took no action whatsoever or actually was participating or present when the crimes were committed. See Bemba 2018, above n 32, para 145. 117 Bemba

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the CAR authorities,120 and that this influenced the Trial Chamber’s finding that he failed to initiate genuine and full investigations into the commission of crimes and to support investigative efforts.121 It is unclear whether Bemba’s status as a remote commander constituted a significant impediment to the measures he was able to take as contemplated under Article 28 of the Rome Statute.122 The Trial Chamber analysed the scope of Bemba’s concrete powers to discipline his forces.123 Bemba was the commander-in-chief and held ultimate authority over all primary aspects of the MLC,124 and Bemba and not the CAR authorities had the primary authority to investigate and punish MLC troops for their activities in the CAR.125 The Trial Chamber pointed out that it was well within the power of a high-ranking military officer to take further steps in order to ensure an outcome as contemplated in Article 28 of the Rome Statute,126 including basic measures recommended by the guidelines formulated in case law.127 Bemba held ultimate authority over the sanctioning, arresting and dismissing of senior political leaders and military officers, as well as soldiers, in the MLC.128 He could directly contact commanders in the field in the DRC by using a longrange, high-frequency radio communication system (“phonie”) in his residence or in the transmissions centre next to his residence,129 and evidence was led that military and civilian intelligence services provided reports to Bemba, including reports of murder, rape and pillaging by MLC troops.130 Thus, we are of the view that his

120 Bemba

2018, above n 32, para 146.

121 Ibid. 122 Ibid,

para 171.

123 The Trial Chamber concluded that Bemba had “ultimate disciplinary authority over MLC troops

in the CAR” and was thus “the competent authority to investigate the crimes and to establish courts-martials.” Bemba 2018, above n 32, para 147. 124 Bemba 2018, above n 32, para 160. 125 Ibid., para 56. 126 With regard to the purported steps taken by Bemba and his interaction with the President of the CAR, which could have led to a possible investigation or other measures to address the crimes, the reasoning of the Appeals Chamber in this matter neglects the evidence presented before the Trial Chamber that General Cissé offered his support to Bemba who did not follow up on General Cissé’s offer to assist in the investigation of war crimes allegedly committed by MLC soldiers in the CAR. Bemba 2016, above n 1, para 723. 127 Bemba 2016, above n 1, paras 729–734. 128 Ibid., para 403. 129 Ibid., paras 397, 394. A transmissions centre in Gbadolite managed the network and units in the field had the necessary apparatus and operators. Messages from the units in the field were sent to the transmissions centre, were decoded and transcribed in the logbooks, and the logbooks were immediately taken to Bemba. Bemba 2016, above n 1, para 345. 130 Bemba 2016, above n 1, para 164. A FIDH report in 2003 included a detailed account of murder, rape and pillaging by MLC troops, and in a letter to the FIDH President, Bemba specifically referenced this report, indicating that he had received it. See Bemba 2018, above n 32, para 167. In addition to remote communication, Bemba also visited the CAR on a number of occasions, and met with the MLC troops. Bemba 2018, above n 32, paras 424–426.

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status as remote commander reasonably should not have carried greater weight when assessing command responsibility under article 28(ii)(a) of the Rome Statute. Secondly, with regard to the measures taken by Bemba, the Appeals Chamber referred to various submissions by Bemba. Bemba emphasised that he communicated with the United Nations (UN) representative in the CAR, the President of the CAR and the President of the International Federation for Human Rights (FIDH) regarding the allegations of crimes in the CAR committed by MLC troops.131 He contended that the Trial Chamber failed to refer to the agreement between Chad and the CAR to create an international commission of inquiry to investigate allegations of crimes during the 2002–2003 intervention and that he was entitled to wait for the outcome of this investigation.132 He further argued that the Trial Chamber misstated the evidence in finding that the commissions of inquiry authorised by Bemba (the Mondonga Inquiry and Zongo Commission) were limited in scope and duration and that in fact two witnesses confirmed the duration and scope of the enquiries,133 and distorted the evidence of the Sibut Commission.134 The Trial Chamber found that Bemba’s actions did not amount to concrete measures.135 It argued that Bemba was not simply allowed to wait for the outcome of a foreign investigation and that there was no evidence of any concrete measures taken as a result of their correspondence with the FIDH.136 This is also in light thereof that Bemba—and not the CAR authorities—held and exercised primary disciplinary authority over the MLC contingent in the CAR.137 After analysing the evidence, it also found that the commissions were “limited in mandate, execution, and/or results”.138 The Mondonga Inquiry did not address the responsibility of commanders, and the investigators did not question the suspects about the crime of murder and did not pursue reports of rape.139 The inquiry’s only result was the trial of seven low-level soldiers for pillaging small sums of money and goods.140 The Sibut Inquiry was not an investigation; the reporters only spoke to a narrow selection of interviewees and the interviews occurred in a coercive atmosphere with armed MLC soldiers moving among the interviewees.141 The Zongo Commission was limited to investigations in Zongo, only concerned allegations of pillaging142 and all members of the commission

131 Bemba

2018, above n 32, para 148, 160. para 159. 133 Ibid., para 161. 134 Ibid., para 162. Bemba denied that MLC soldiers interviewed public officials and that armed MLC troops created a ‘coercive atmosphere’ during the interviews. 135 Bemba 2018, above n 32, para 164. 136 Ibid., para 185. 137 Ibid., para 163. 138 Ibid., para 181. Bemba 2016, above n 1, para 582. 139 Bemba 2016, above n 1, para 689. 140 Ibid. 141 Ibid. 142 Bemba 2018, above n 32, para 153. 132 Ibid.,

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were MLC officials.143 No action was taken even in regard to pillaging uncovered by the commission.144 This commission also based its report only on interviews with eight Zongo inhabitants who either exercised public functions or directly worked for the MLC. The Appeals Chamber further criticised the Trial Chamber for its failure to assess in concreto what measures should have been taken—but itself failed to undertake such an analysis.145 Further, the Trial Chamber in fact conducted an assessment of the measures available to Bemba and listed them in concreto.146 It is not clear what the Appeals Chamber required, as it stated that these measures were “hypothetical” and did not constitute in concreto measures that Bemba should have taken.147 The Trial Chamber also listed various independent actions identified by the Pre-Trial Chamber in clarifying what suffices as necessary and reasonable measures, namely, ensuring that the forces are adequately trained in international humanitarian law; securing reports that military actions were carried out in accordance with international law; issuing orders aimed at bringing the relevant practices into accord with the rules of war; taking disciplinary measures to prevent the commission of atrocities by the troops under the commander’s command; issuing orders specifically meant to prevent the crimes, as opposed to merely issuing routine orders; protesting against or criticising criminal conduct; insisting before a superior authority that immediate action be taken; postponing military operations; suspending, excluding or redeploying violent subordinates; and conducting military operations in such a way as to lower the risk of specific crimes or to remove opportunities for their commission.148 These actions were within the capability of Bemba to implement and would serve to prevent or repress the crimes committed by MLC troops, indicating his failure to take all reasonable and necessary measures.149

143 Ibid.,

para 602.

144 Ibid. 145 Ibid.,

para 7: Juxtaposing the fact that certain crimes were committed by the subordinates of a commander with a list of measures that the commander could hypothetically have taken does not, in and of itself, show that the commander acted unreasonably at the time. The Trial Chamber must specifically identify in concreto what a commander should have done. 146 Bemba 2018, above n 32, para 729. 147 Ibid., para 7. 148 Ibid., paras 206–207. 149 Bemba 2016, above n 1, para 739: Further, clear training, orders, and hierarchical examples indicating that the soldiers should respect and not mistreat the civilian population would have reduced, if not eliminated, crimes motivated by a distrust of the civilian population, as enemies or enemy sympathisers. Recalling Mr Bemba’s position of high authority as President of the MLC and Commanderin-Chief of the ALC, as well as of his effective authority and control, the Chamber finds that Mr Bemba’s position obligated him to take such measures, both personally and through the hierarchical chain of command the Chamber finds that Mr Bemba’s position obligated him to take such measures, both personally and through the hierarchical chain of command.

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Finally, the Appeals Chamber stated that the Trial Chamber incorrectly took into account the motivation of Bemba to protect the reputation of the MLC in considering whether he had discharged his obligations under Article 28 of the Rome Statute.150 While it admits that the motives of an accused commander are not always irrelevant to the assessment of “necessary and reasonable measures” as a commander is required to act in good faith and to show that he “genuinely” tried to prevent or repress the crimes in question, it nevertheless held that the Trial Chamber took an unreasonably strict approach151 and placed too great an emphasis on Bemba’s motivation, allowing it to “colour its entire assessment of the measures he took”.152 The Appeals Chamber again cites as examples of measures where Bemba’s motivation was taken into account, the establishment of the Mondoga Inquiry, his correspondence with the UN representative in the CAR and the withdrawal of the MLC troops from the CAR.153 It stated that the Trial Chamber concluded that all of the measures that Bemba had taken in response to allegations of crimes were driven by a motivation to counter public allegations and rehabilitate the public image of the MLC.154 Accordingly, it was of the view that the Trial Chamber’s preoccupation with Bemba’s motivation had a material impact on the entirety of its findings on necessary and reasonable measures.155 Was the Trial Chamber in fact preoccupied with Bemba’s motives to the extent that it influenced its entire finding on command responsibility? Whereas the Trial Chamber stated that these motivations were a factor “aggravating” the failure to exercise his duties, in effect the Trial Chamber appears to not have treated the motives as determinative, in and of themselves, of the adequacy or otherwise of the measures. While the reference to the Trial Chamber of Bemba’s motivations was perhaps unfortunate as it was then used by the Appeals Chamber as a point to discredit the Trial Chamber’s evaluation of the evidence, the impression created by the Appeals Chamber that the Trial Chamber’s evaluation of the adequacy of the measures taken by Bemba was tainted by what it considered Bemba’s motivations to be, is in our view incorrect. 150 See

Bemba 2018, above n 32, para 176:

The Appeals Chamber also considers that the Trial Chamber inappropriately took Mr Bemba’s motives into consideration when determining whether the measures the had taken were necessary and reasonable. While the Appeals Chamber rejects Mr Bemba’s submission that the motives of an accused commander are always irrelevant to the assessment of ‘necessary and reasonable measures’ because a commander is required to act in good faith in adopting such measures and must show that he ‘genuinely’ tried to prevent or repress the crimes in question or submit the matter to the competent authorities, it finds that the Trial Chamber took an unreasonably strict approach. 151 Bemba

2018, above n 32, para 176. para 177. 153 Ibid., para 178. 154 Ibid. 155 Ibid. 152 Ibid.,

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In re-evaluating the evidence the Appeals Chamber did not have the advantages of the Trial Chamber. The Trial Chamber heard 77 witnesses and admitted 733 items of evidence.156 The Appeals Chamber could not attain the same level of familiarity with the matter as the Trial Chamber.157 In these circumstances it would make sense for the Appeals Chamber to give a margin of deference to the findings of the Trial Chamber, as it is important to take into account the entire context as well as the verbal testimony of witnesses. Moreover, the Trial Chamber had not dismissed the measures taken by Bemba simply because of shortfalls in their execution.158 The evidence considered by the Trial Chamber consisted of testimony by various witnesses, corroborated by media articles, reports by non-governmental organizations and oral recordings of victims’ statements submitted to the Bangui Court of Appeals. The Trial Chamber considered the notoriety of the crimes, Bemba’s position, the available channels of communication, the regular contact between Bemba and the MLC officials in the CAR, general sources of information of crimes committed by MLC soldiers as well as Bemba’s direct knowledge of the allegations of murder, rape and pillaging by MLC soldiers at specific times throughout the 2002–2003 CAR operation.159 This evidence supported the Trial Chamber’s finding beyond a reasonable doubt that Bemba knew that MLC forces under his effective authority or control were committing or were about to commit the crimes in question and that he failed to discharge his obligation under Article 28(a)(ii) of the Rome Statute to take all necessary and reasonable measures within his power to prevent and repress the commission of these crimes, and submit the matter to the competent authorities.160 156 ICC,

Prosecutor v Jean-Pierre Bemba Gombo, Dissenting Opinion of Judge Sanji Mmasenono Monageng and Judge Piotr Hofma´nski, 8 June 2018, Case No. ICC-01/05-01/08-3636-Anx1-Red (Bemba Dissenting Opinion 2018), para 7. It was pointed out by Judges Monageng and Hofma´nski in the dissenting judgment that although the Appeals Chamber had access to the trial record, transcripts of the witnesses’ testimony, documentary evidence and submissions, “this does not replace the specific familiarity with the evidential record that the trial chamber enjoyed, resulting from its hearing of all witnesses and seeing the case unfold”. 157 See Bemba Dissenting Opinion 2018, above n 156, para 197: While the Appeals Chamber in an appeal against a conviction has access to the trial record and can therefore consult the transcripts of the witnesses’ testimony and documentary evidence and study the parties’ and participants’ submissions before a trial chamber, this does not replace the specific familiarity with the evidential record that the trial chamber enjoyed, resulting from its hearing of all witnesses and seeing the case unfold. The Appeals Chamber does not benefit from such extensive exposure to the evidence and the parties’ and participants’ arguments and it is unlikely that the Appeals Chamber, by merely reading the trial record, could ever attain the same level of familiarity with the case as the trial chamber. In our view, it is therefore natural for the Appeals Chamber to give a margin of deference to the findings of the Trial Chamber. 158 Bemba

Dissenting Opinion 2018, above n 156, para 136. 2016, above n 1, paras 710, 717, 735. 160 Ibid., para 735: 159 Bemba

[…] Mr Bemba, throughout the 2002–2003 CAR Operation, (i) had effective authority and control over the MLC troops in the CAR; (ii) knew that the forces under his authority and

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7.5 Conclusion This chapter considered whether the Appeals Chamber in the Bemba case was justified in deviating from the principle of appellate deference and undertaking a de novo analysis of the evidence. We considered that the Vienna Convention should be used to interpret the provisions of the Rome Statute and that the Appeals Chamber erroneously applied Article 22(2) of the Rome Statute, which deals with the strict interpretation of the definition of crimes, in order to interpret Article 28, which deals with command responsibility. This affected its approach and consideration of the evidence led before the Trial Chamber. We further discussed the grounds for appellate review using the interpretative provisions of the Vienna Convention to give content to same, as well as the principle of appellate deference. We interpreted the threshold to establish command responsibility and evaluated the approach by the Trial Chamber and the Appeals Chamber to the evidence presented in the Bemba case in order to reach their respective conclusions with regard to Bemba’s command responsibility under Article 28 of the Rome Statute. We are of the view that the Appeals Chamber did not meet the standard of review contemplated in Article 83 of the Rome Statute. Article 83 allows the Appeals Chamber to review a decision of the Trial Chamber if it finds that the proceedings appealed from were unfair in a way that affected the reliability of the decision or sentence, or that the decision or sentence appealed from was materially affected by error of fact or law or procedural error.161 The Appeals Chamber failed to show that the Trial Chamber’s decision was unfair in a way that affected the reliability of the decision or that the decision was materially affected, in this case, by errors of fact. Moreover, the Appeals Chamber itself stated that the threshold for review, after conducting a comprehensive review of the record, is to determine whether a reasonable Trial Chamber could have reached the same conclusion as the Trial Chamber on the basis of the evidence before it.162 The majority decision of the Appeals Chamber does not demonstrate that the Trial Chamber could not reasonably have reached the decision that it did based on the evidence before it, only that another conclusion is possible and that the Trial Chamber did not reach the same conclusion as the Appeals Chamber.163 Deference is shown to Trial Chamber findings typically because the Trial Chamber is best suited to make findings of fact in that it is able to review the entire factual

control were committing or about to commit the crimes of murder, rape, and pillaging; and (iii) failed to take all necessary and reasonable measures within his power to prevent and repress the commission of the crimes, and submit the matter to the competent authorities. In light of the factual findings, the Trial Chamber found it unnecessary to consider the alternate ‘should have known’ knowledge standard set out in Rome Statute, above n 3, Article 28(a)(i). See further Bemba 2016, above n 1, para 196. 161 See Staker and Eckelmans 2016, p 1924. 162 Bemba Dissenting Opinion 2018, above n 156, paras 42, 46. 163 Trahan 2018.

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record.164 We are of the view that a departure by the Appeals Chamber from the principle of appellate deference and the continuity of judicial decisions must be balanced by a residual principle that ensures that justice is done in all cases.165 There were in our opinion no cogent reasons in the interest of justice to depart from the principle of appellate deference in the Bemba case. We argue that in a 364-page judgment, the Trial Chamber considered and weighed the evidence and reached reasonable conclusions. The Appeals Chamber then undertook a limited reevaluation of certain items of evidence166 and dismissed the Trial Chamber’s findings in 80 pages, in a “significant and unexplained departure” from the traditional standard of appellate deference and the Court’s previous jurisprudence and its replacement by a new, uncertain and untested standard.167 Moreover, if the comprehensive evidence and evaluation thereof by the Trial Chamber in the Bemba case failed to meet the requisite standard, it may affect the legitimacy of the ICC in the eyes of victims of these heinous crimes. This in turn will thwart their willingness to testify against their

164 Ibid. 165 The

Bemba Dissenting Opinion 2018, above n 156, para 47, noted:

The Majority appears to have considered that, given its modification of the standard of review, it was not required to review the evidentiary record comprehensively and should simply overturn the factual findings of the Trial Chamber in case of doubt. The implementation of this modified standard in practice demonstrates that it produces results that are incompatible with the aims of achieving justice. 166 The

Bemba Dissenting Opinion 2018, above n 156, para 7 found that the majority overturned the Trial Chamber’s factual findings based on its assessment of a small fraction of the evidence. Presiding Judge Monageng and Judge Hofma´nski noted that the Appeals Chamber could never attain the same level of familiarity with the case as the Trial Chamber simply by reading the trial record as it did not benefit from the same extensive exposure to the evidence and arguments. They were of the view that the majority decision did not evaluate the reasonableness of the Trial Chamber’s conclusions in light of the wealth of evidence relied upon by it but seemed to accept Bemba’s discrete arguments at face value. However, see Bemba Concurring Separate Opinion 2018, above n 74, para 6: I am bound to stress at this juncture that what divides the majority and the minority of judges in this appeal is not that one side had fully considered the forensic data that the Trial Chamber had relied on, while the other side did not […] in the course of deliberations lasting about two years, all the appeal judges in the case had done extensive review of precisely the same forensic information indicated in the Trial Judgment. Having done so, the majority considered that they were not satisfied that a Trial Chamber properly directing itself as to the standard of proof beyond reasonable doubt could have convicted. The minority took the opposite view.

167 Bemba

Dissenting Opinion 2018, above n 156. See also Bensouda 2018:

It is unfortunate that this “significant and unexplained departure” from the Court’s previous jurisprudence, as the dissenting judges described it, and its replacement with new, uncertain and untested standards, has taken place in the most serious case of sexual and gender-based

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perpetrators and the purpose of the ICC Statute, which is to ensure that “the most serious crimes of concern to the international community must not go unpunished”.168

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Preparatory Committee on the Establishment of an International Criminal Court (1997) Working Group on General Principles of Criminal Law and Penalties, UN Doc. A/AC.249/1997/WG.2/CPR.3 Preparatory Committee on the Establishment of an International Criminal Court (1998a) Report of the Inter-Sessional Meeting, UN Doc A/AC.249/1998/L.13 Preparatory Committee on the Establishment of an International Criminal Court (1998b) Report of the Preparatory Committee, UN Doc. A/CONF.183/2/Add.1 Preparatory Committee on the Establishment of an International Criminal Court (1998c) Report of the Committee of the Whole and Report of the Drafting Committee. In: United Nations (1998) Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. Rome, 15 June-17 July 1998, Official Records, Volume III, UN Doc. A/CONF.183/13 Sadat L (2018) Fiddling While Rome Burns? The Appeals Chamber’s Curious Decision in Prosecutor v Jean-Pierre Bemba Gombo. EJIL:Talk!https://www.ejiltalk.org/fiddling-whilerome-burns-the-appeals-chambers-curious-decision-in-prosecutor-v-jean-pierre-bemba-gombo/ Sadat. Accessed 9 March 2020 Schabas W (2016) The International Criminal Court: A Commentary on the Rome Statute, 2nd edn. Oxford University Press, Oxford Staker C, Eckelmans F (2016) Article 81: Appeal and Revision. In: Triffterer O, Ambos K (eds) Rome Statute of the International Criminal Court: A Commentary, 3rd edn. Hart Publishing, Munich, pp 1915–1953 Trahan J (2018) Bemba Acquittal Rests on Erroneous Application of Appellate Review Standard. OpinioJuris. http://opiniojuris.org/2018/06/25/bemba-acquittal-rests-on-erroneous-applic ation-of-appellate-review-standard/. Accessed 4 March 2020 United Kingdom (1996) Proposal Submitted by the United Kingdom of Great Britain and Northern Ireland. In: Preparatory Committee on the Establishment of an International Criminal Court (1996) Summary of the Proceedings of the Preparatory Committee During the Period 25 March-12 April 1996, UN Doc. A/AC-249/1 United Nations (1998) Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. Rome, 15 June-17 July 1998, Official Records, Volume III, UN Doc. A/CONF.183/13 United Nations (1998) Chairman’s Suggestion for Articles 21, 26 and 28, UN Doc. A/CONF.183/C.1/WGGP/L.1 United States (1998) Proposal Submitted by the United States of America, UN Doc. A/CONF.183/C.1/WGPM/L.48 UN Security Council (1993) Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY), UN Doc. S/25704 (adopted through UN Security Council (1993) Resolution 827 (1993), UN Doc. S/RES/827) UN Security Council (1994) Statute of the International Tribunal for Rwanda, UN Doc. S/RES/995

Cases ICC, Situation in the Democratic Republic of the Congo, Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal, 24 July 2006, Case No. ICC-01/04-168 ICC, Prosecutor v Germain Katanga, Judgment on the Appeal of Mr Germain Katanga Against the Decision of Pre-Trial Chamber I Entitled “Decision on the Defence Request Concerning Languages”, 27 May 2008, Case No. ICC-01/04-01/07-52 ICC, Prosecutor v Omar Hassan Ahmad Al Bashir, Decision on the Prosecution’s Application for a Warrant of Arrest Against Omar Hassan Ahmad Al Bashir, 4 March 2009, Case No. ICC-02/0501/09

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ICC, Prosecutor v Jean-Pierre Bemba Gombo, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, Case No. ICC-01/05-01/08-424 ICC, The Prosecutor v Omar Hassan Ahmad Al Bashir, Judgment on the Appeal of the Prosecutor Against the “Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir”, 3 February 2010, Case No. ICC-02/05-01/09 ICC, Prosecutor v Francis Kirimi Muthaura et al., Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, 23 January 2012, Case No. ICC-01/09-02/11 ICC, Prosecutor v Thomas Lubanga Dyilo, Judgment Pursuant to Article 74 of the Statute, 14 March 2012, Case No. ICC-01/04-01/06-2842 ICC, Prosecutor v Mathieu Ngudjolo Chui, Judgment Pursuant to Article 74 of the Statute, 18 December 2012, Case No. ICC-01/04-02/12 ICC, Prosecutor v Germain Katanga, Judgment Pursuant to Article 74 of the Statute, 7 March 2014, Case No. ICC-01/04-01/07 ICC, Prosecutor v Thomas Lubanga Dyilo, Judgment on the Appeal of Mr Thomas Lubanga Dyilo Against his Conviction, 1 December 2014, Case No. ICC-01/04-01/06 A 4 A 6 ICC, Prosecutor v Mathieu Ngudjolo Chui, Judgment on the Prosecutor’s Appeal Against the Decision of Trial Chamber II Entitled “Judgment Pursuant to Article 74 of the Statute”, 7 April 2015, Case No. CC-01/04-02/12-271-Corr ICC, Prosecutor v Jean-Pierre Bemba Gombo, Judgment Pursuant to Article 74 of the Statute, 21 March 2016, Case No. ICC-01/05-01/08 ICC, Prosecutor v Jean-Pierre Bemba Gombo, Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against Trial Chamber III’s “Judgment pursuant to Article 74 of the Statute”, 8 June 2018, Case No. ICC-01/05-01/08 ICC, Prosecutor v Jean-Pierre Bemba Gombo, Dissenting Opinion of Judge Sanji Mmasenono Monageng and Judge Piotr Hofma´nski, 8 June 2018, Case No. ICC-01/05-01/08-3636-Anx1-Red ICC, Prosecutor v Jean-Pierre Bemba Gombo, Separate Opinion of Judge Christine van den Wyngaert and Judge Howard Morrison, 8 June 2018, Case No. ICC-01/05-01/08-3636-Anx2 ICC, Prosecutor v Jean-Pierre Bemba Gombo, Concurring Separate Opinion of Judge Eboe-Osuji, 14 June 2018, Case No. ICC-01/05-01/08-3636-Anx3 ICTR, Jean Bosco Barayagwiza v Prosecutor, Decision on Prosecutor’s Request for Review or Reconsideration, Separate Opinion of Judge Shahabuddeen, 31 March 2000, Case No. ICTR-9719-AR72 ICTR, Jean de Dieu Kamuhanda v Prosecutor, Judgment, 19 September 2005, Case No. ICTR-9954A-A ICTR, Prosecutor v Bagosora et al., Decision on Aloys Ntabakuze v Interlocutory Appeal on Questions of Law Raised by the 29 June 2006 Trial Chamber I Decision on Motion for Exclusion of Evidence, 18 September 2006, Case No. ICTR 98-41-AR-73 ICTR, Theoneste Bagosora and Natole Nsengiyumva v Prosecutor, Judgment, 14 December 2011, Case No. ICTR-98-41-A ICTY, Prosecutor v Zdravko Mucic et al., Judgment, 16 November 1998, Case No. IT-96-21-T ICTY, Prosecutor v Zlatko Aleksovski, Judgment, 24 March 2000, Case No. IT-95-14/l-A ICTY, Prosecutor v Zejnil Delalic et al., Judgment, 20 February 2001, Case No. IT-96-21-A ICTY, Prosecutor v Kupreskic et al., Judgment, 23 October 2001, Case No. IT-95-16-A ICTY, Prosecutor v Dragoljub Kunarac et al., Judgment, 12 June 2002, Case Nos. IT-96-23, IT-9623/1-A ICTY, Prosecutor v Tihomir Blaški´c, Judgment, 29 July 2004, Case No. IT-95-14-A ICTY, Prosecutor v Pavle Strugar, Judgment, 31 January 2005, Case No. IT-01-42-T ICTY, Prosecutor v Sefer Halilovic, Judgment, 16 November 2005, Case No. IT-01-48-T ICTY, Prosecutor v Naser Ori´c, Judgment, 30 June 2006, Case No. IT-03-68-T ICTY, Prosecutor v Blagoje Simic, Judgment, 28 November 2006, Case No. IT-95-9-A ICTY, Prosecutor v Milan Lukic and Sredoje Lukic, Judgment, 20 July 2009, Case No. IT-98-32/1-T

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Treaties Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, opened for signature 16 January 2002, 2178 UNTS 137 (entered into force 12 April 2002) Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) Statute of the International Court of Justice, opened for signature 26 June 1945, USTS 993 (entered into force 24 October 1945) Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980)

Aniel de Beer is a Research Associate at the South African Research Chair in International Law, University of Johannesburg, South Africa; and External Expert for the Centre for International Humanitarian and Operational Law, affiliated to the Department of International and European Law, Palacký University, Olomouc, Czech Republic. Martha Bradley is a Lecturer at the Department of Public Law, University of Pretoria, South Africa; and External Expert for the Centre for International Humanitarian and Operational Law, affiliated to the Department of International and European Law, Palacký University, Olomouc, Czech Republic.

Chapter 8

Year in Review 2019 Kilian Roithmaier, Taylor Woodcock and Eve Dima

Contents 8.1 Ongoing Conflicts and Other Developments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1.1 Afghanistan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1.2 Central African Republic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1.3 Iran . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1.4 Iraq . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1.5 Israel/Palestine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1.6 Libya . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1.7 Mali . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1.8 Myanmar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1.9 Nigeria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1.10 Somalia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1.11 South Sudan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1.12 Sri Lanka . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1.13 Syria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1.14 Ukraine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1.15 Yemen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2 Tribunals and Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2.1 International Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2.2 Hybrid Tribunals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2.3 National Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.3 Arms Control and Disarmament . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.3.1 Arms Trade . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.3.2 Conventional Weapons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.3.3 Non-conventional Weapons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.3.4 Outer Space . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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K. Roithmaier (B) · T. Woodcock · E. Dima T.M.C. Asser Instituut, The Hague, The Netherlands e-mail: [email protected] T. Woodcock e-mail: [email protected] E. Dima e-mail: [email protected] © t.m.c. asser press and the authors 2021 T. D. Gill et al. (eds.), Yearbook of International Humanitarian Law 2019, Yearbook of International Humanitarian Law 22, https://doi.org/10.1007/978-94-6265-399-3_8

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Abstract Throughout 2019, a number of noteworthy events with relevance to international humanitarian law (IHL) and international criminal law (ICL) took place. This chapter addresses the most relevant developments that occurred in 2019. It provides a background to and an overview of armed conflicts that took place in 2019 as well as of connected developments. It further contains a summary of proceedings and decisions by international courts and tribunals, hybrid tribunals as well national courts and institutions that are relevant to IHL and the prosecution of war crimes, crimes against humanity, genocide, and terrorism. The last section contains an overview of developments regarding conventional and non-conventional arms control and disarmament, including the status of relevant treaties, as well as the weaponisation of outer space. The Year in Review is not intended to be a comprehensive summary of all events that occurred in 2019, but rather a sampling of the most noteworthy events with particular relevance to IHL and ICL. Keywords International humanitarian law · Armed conflict · Armed groups · Terrorism · International criminal law · International tribunals · War crimes · Crimes against humanity · Genocide · Arms control · Conventional weapons · Landmines · Cluster munitions · Lethal autonomous weapons · Chemical weapons · Biological weapons · Nuclear weapons · Weaponisation of outer space

8.1 Ongoing Conflicts and Other Developments 8.1.1 Afghanistan The year 2019 was marked by intensified efforts to reach a peace agreement for Afghanistan. In January, representatives from the United States (US) and the Taliban announced that they agreed on a general peace framework.1 In August, eight rounds of talks between the US and the Taliban were held. While the US demanded assurances that Afghanistan would not become a safe haven for terrorist groups, the Taliban insisted on a withdrawal of US personnel within a timeframe of two years.2 Despite substantive progress, an agreement that would lead to a general ceasefire and negotiations between the Afghan government and the Taliban was not reached in 20193 and strikes by US forces and the Taliban took place throughout the whole year.4 1 Mashal

M (2019) U.S. and Taliban Agree in Principle to Peace Framework, Envoy Says. https://www.nytimes.com/2019/01/28/world/asia/taliban-peace-deal-afghanistan.html. Accessed 30 October 2019. 2 Mashal M (2019) The U.S. and the Taliban Are Near a Deal. Here’s What It Could Look Like. https://www.nytimes.com/2019/08/13/world/asia/us-taliban-peace-deal-details.html. Accessed 30 October 2019. 3 Council on Foreign Relations 2020a. 4 Mashal M (2019) As U.S. And Taliban Resume Talks, More Deadly Attacks in Afghanistan. https:// www.nytimes.com/2019/06/29/world/asia/afghanistan-taliban-peace-talks-doha.html. Accessed 30 October 2019.

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Until September, 8,000 civilian casualties have been reported.5 While the majority of civilian casualties have been the result of attacks by non-State armed groups (NSAGs), notably the Taliban and the Islamic State of Khorasan Province, the Afghan branch of the Islamic State (IS),6 strikes by Afghan and US forces were responsible for the majority of civilian deaths in 2019,7 a first since the outbreak of the conflict.8

8.1.2 Central African Republic In February, the government of the Central African Republic (CAR) signed a renewed peace agreement, the seventh since the outbreak of violence in 2012, with 14 NSAGs active in the country.9 The agreement included a power-sharing agreement and the formation of a new government that would also include members of the armed groups.10 However, less than a month later, two NSAGs abandoned the deal.11 Subsequently, violence and attacks against civilians, including humanitarian workers,12 commenced again.13 In September, the United Nations (UN) Security Council eased their arms embargo for the CAR and extended a modified sanctions regime.14 The Multidimensional Integrated Stabilization Mission in the Central African Republic, the UN’s peacekeeping mission to the CAR, deployed a total of 12,870 uniformed personnel, including 11,650 military personnel, to the country.15 A number of 600,000 persons remain internally displaced, whereas the conflict has led to more than 600,000 refugees.16

5 UN

Assistance Mission in Afghanistan 2019b. Rights Watch 2020a. 7 UN Assistance Mission in Afghanistan 2019a. 8 Human Rights Watch 2020a. 9 France24 (2019) Central African Republic inks peace deal with armed groups. https://www. france24.com/en/20190205-central-african-republic-peace-deal-armed-groups-conflict. Accessed 5 March 2020. 10 Human Rights Watch 2020b. 11 France24 (2019) C.Africa peace deal under strain as militias quit. https://www.france24.com/en/ 20190304-cafrica-peace-deal-under-strain-militias-quit. Accessed 5 March 2020. 12 Human Rights Watch 2020b. 13 Al Jazeera (2019) At least 50 killed in armed group attack on villages in CAR: UN. https://www.aljazeera.com/news/2019/05/50-killed-armed-group-attack-villages-car-190524 193707718.html. Accessed 5 March 2020; Agence France-Presse (2019) UN: Armed Group Kills More Than 30 in Central African Republic. https://www.voanews.com/africa/un-armed-group-killsmore-30-central-african-republic. Accessed 5 March 2020; Agence France-Presse (2019) Clashes in CAR Capital Leave at Least 30 Dead. https://www.voanews.com/africa/clashes-car-capital-leaveleast-30-dead. Accessed 5 March 2020. 14 UN Security Council (2019) Resolution 2488 (2019), UN Doc. S/RES/2488. 15 UN Peacekeeping 2020. 16 Human Rights Watch 2020b. 6 Human

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8.1.3 Iran Following the 2018 US withdrawal from the Joint Comprehensive Plan of Action (JCPOA), the Iran nuclear deal,17 tensions between Iran and the US, in particular in the Strait of Hormuz, increased in 2019. In May, US intelligence warned that Iran would equip small boats with fully assembled missiles.18 In the following months, six oil tankers were attacked in or near the Strait. The US accused Iran of being behind these attacks and urged “an international response”, but Iran denied any involvement.19 Following the attacks, the US announced it would deploy an additional 1,000 troops to the Middle East.20 Amid fears of a major confrontation,21 Iran shot down a US surveillance drone in June.22 In response, US President Trump approved a retaliatory strike, but abandoned it soon after and instead carried out a cyber-attack against Iranian missile control systems and a spy network.23 In July, the US shot down an Iranian drone, though the incident was dismissed by Iran.24 Iran also seized an oil tanker under British flag in the Persian Gulf, accusing it of violating maritime regulations.25 The United Kingdom (UK) subsequently joined a US naval 17 For

the withdrawal of the US from the JCPOA, see Roithmaier et al. 2019, p 248 ff.

18 Barnes J, Schmitt E, Fandos N, Wong E (2019) Iran Threat Debate Is Set Off by Images of Missiles

at Sea. https://www.nytimes.com/2019/05/15/world/middleeast/iran-war-usa.html. Accessed 28 April 2020. 19 Meredith S (2019) Oil tanker attacks in the Strait of Hormuz requires an ‘international response,’ US envoy to Iran says. https://www.cnbc.com/2019/06/22/oil-tanker-attacks-in-the-strait-of-hor muz-requires-an-international-response-us-envoy-to-iran-says.html. Accessed 28 April 2020; Starr B, Cole D, Mackintosh E, Kosinski M (2019) US releases video it claims shows Iran removing unexploded mine from Gulf tanker. https://edition.cnn.com/2019/06/13/politics/us-images-iranian-boatremoving-mine/index.html. Accessed 28 April 2020; Wintour P, Borger J (2019) Two oil tankers attacked in Gulf of Oman. https://www.theguardian.com/world/2019/jun/13/oil-tankers-blasts-rep orts-gulf-of-oman-us-navy. Accessed 28 April 2020. 20 Bender B (2019) Pentagon sending 1,000 more troops as tensions with Iran grow. https://www. politico.com/story/2019/06/17/iran-troops-defense-shanahan-trump-1366737. Accessed 28 April 2020. 21 France24 (2019) World cannot afford major confrontation in the Gulf: UN chief. https://www. france24.com/en/20190613-world-cannot-afford-major-confrontation-gulf-un-chief. Accessed 28 April 2020. 22 Karimi N, Gambrell J (2019) Iran shoots down US surveillance drone, heightening tensions. htps://apnews.com/e4316eb989d5499c9828350de8524963. Accessed 28 April 2020. 23 Deutsche Welle (2019) US hits Iran with cyberattack: reports. https://www.dw.com/en/us-hitsiran-with-cyberattack-reports/a-49316935. Accessed 28 April 2020; Council on Foreign Relations 2020d. 24 Mangan D, Macias A (2019) Trump says US Navy destroys Iranian drone in ‘defensive action,’ Iran dismissed the report. https://www.cnbc.com/2019/07/18/trump-says-us-navy-shot-down-ira nian-drone.html. Accessed 28 April 2020. 25 The New York Times (2019) Iran Tried to Block British Tanker in Persian Gulf, U.K. Says. https:// www.nytimes.com/2019/07/11/world/middleeast/iran-british-tanker.html. Accessed 28 April 2020; Reuters (2019) Detained British-flagged tanker must go through legal process: Iran foreign minister. https://www.reuters.com/article/us-mideast-iran-tanker-zarif/detained-british-flagged-tan ker-must-go-through-legal-process-iran-foreign-minister-idUSKCN1UF0F4. Accessed 28 April 2020.

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security mission aimed at escorting vessels through the Strait of Hormuz.26 Iran was also accused of being behind a September attack on oil facilities in Saudi Arabia.27 In response, the US again carried out cyber-attacks against Iran.28 In October an Iranian oil tanker was hit by a rocket. Iran labelled it a “terrorist attack”, while not providing details on who was suspected of being responsible.29 After Iran accelerated its enrichment of uranium,30 it exceeded the limits set by the JCPOA in July.31 Both the US and Iran expressed their openness to renegotiate the terms of a nuclear deal, but, by the end of 2019, no substantive progress was made in this regard.32 While European States increased their efforts to save the JCPOA, they also accused Iran of developing nuclear-capable missiles in violation of UN Security Council Resolutions.33 In November, Iran briefly seized the travel documents of an inspector of the International Atomic Energy Agency, prevented her from leaving the country and barred her from entering a nuclear facility, as it claimed that she was carrying “suspicious material”.34 In April, the US designated Iran’s Islamic Revolutionary Guard Corps a terrorist organisation. This is the first time the US designated a body of another government 26 Vahdat A, Lawless J (2019) UK joins US Strait of Hormuz mission; Iran slams sanctions. https:// apnews.com/843f075cdebd441fa0f0f60305fb77de. Accessed 28 April 2020. 27 Momtaz R, Herszenhorn D (2019) Macron, Merkel and Johnson blame Iran for Saudi oil attack. https://www.politico.eu/article/european-powerhouses-point-finger-at-iran-in-attack-onsaudi-oil-assets/. Accessed 28 April 2020. 28 Ali I, Stewart P (2019) Exclusive: U.S. carried out secret cyber strike on Iran in wake of Saudi oil attack: officials. https://www.reuters.com/article/us-usa-iran-military-cyber-exclusive/exclusive-us-carried-out-secret-cyber-strike-on-iran-in-wake-of-saudi-oil-attack-officials-say-idUSKBN1W V0EK. Accessed 28 April 2020. 29 Al Jazeera (2019) Explosions on Iranian oil tanker off Jeddah’s coast cause spill. https://www.alj azeera.com/news/2019/10/explosion-sets-iranian-oil-tanker-ablaze-red-sea-report-191011053301 991.html. Accessed 28 April 2020. 30 Siebold S, Murphy F (2019) Iran has accelerated enrichment of uranium, IAEA says. https:// www.reuters.com/article/us-iran-nuclear-eu/iran-has-accelerated-enrichment-of-uranium-iaeasays-idUSKCN1TB0IT. Accessed 28 April 2020. 31 Hafezi P, Murphy F (2019) Trump says Iran ‘playing with fire’ with uranium enrichment. https:// www.reuters.com/article/us-mideast-iran-usa/iran-breaches-2015-nuclear-deals-stockpile-limitsources-idUSKCN1TW1ML. Accessed 28 April 2020. 32 Borger J (2019) Iran makes ‘substantial’ nuclear offer in return for US lifting sanctions. https:// www.theguardian.com/world/2019/jul/18/iran-nuclear-deal-trump-mohammad-javad-zarif-sancti ons?utm_source=newsletter&utm_medium=email&utm_campaign=newsletter_axiosworld&str eam=world. Accessed 28 April 2020; VOA (2019) Trump Says He Could Ease Sanctions if Iran Wants to Talk. https://www.voanews.com/middle-east/trump-says-he-could-ease-sanctions-if-iranwants-talk. Accessed 28 April 2020. 33 Al Jazeera (2019) Europeans warn Iran over nuclear-capable missile development. https://www. aljazeera.com/news/2019/12/europeans-warn-iran-nuclear-capable-missiles-development-191205 070418122.html. Accessed 28 April 2020. 34 BBC News (2019) Iran cancels accreditation of IAEA nuclear inspector. https://www.bbc.com/ news/world-middle-east-50329647. Accessed 28 April 2020; Murphy F, Irish J (2019) Exclusive: Iran briefly held IAEA inspector, seized travel documents – diplomats. https://www.reuters.com/ article/us-iran-nuclear-inspector-exclusive-idUSKBN1XG1XM. Accessed 28 April 2020.

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as such.35 The US also announced new sanctions against Iran and its political and military leaders.36 In December, protesters stormed the US embassy in Iraq, fuelling fears of a US-Iran confrontation amid US accusations of Iranian incitement of the protestors.37

8.1.4 Iraq The security situation in Iraq remained fragile throughout 2019. While Iraqi forces continued their operations against the remains of IS, the latter ramped up an insurgency campaign throughout the country38 and conducted several suicide attacks against civilians.39 In August, Turkey announced the commencement of the third phase of its Operation Claw targeting pro-Kurdistan Workers’ Party (PKK) NSAGs in the Iraqi Kurdistan Region.40 Moreover, the US repeatedly targeted Iranian-backed Hezbollah elements on Iraqi territory.41 In 2019, the Iraqi government took a more critical stance towards the US presence in the country42 and denied US forces that were about to withdraw from Syria permission to be stationed on Iraqi territory.43

35 Council

on Foreign Relations 2020d. (2019) Trump Announces New Iran Sanctions. https://www.voanews.com/usa/trump-ann ounces-new-iran-sanctions. Accessed 28 April 2020. 37 Damon A Diamond J, Brown P, Browne R (2020) Trump threatens Iran after protesters attack US embassy in Baghdad. https://edition.cnn.com/2019/12/31/middleeast/iraq-protests-us-embassyintl/index.html. Accessed 5 March 2020. 38 Associated Press (2019) Iraqi Forces Begin Operation Against IS Along Syrian Border. https://www.voanews.com/middle-east/iraqi-forces-begin-operation-against-along-syrianborder. Accessed 5 March 2020. 39 Reuters (2019) Friday blast at Shi’ite mosque in Baghdad wounds several: police sources. https:// www.reuters.com/article/us-iraq-blast/friday-blast-at-shiite-mosque-in-baghdad-wounds-severalpolice-sources-idUSKCN1TM1FA. Accessed 5 March 2020; Rubin A, Hassan F (2019) Bus Bomb Kills 12 Iraqis Near Major Pilgrimage Site. https://www.nytimes.com/2019/09/21/world/middle east/islamic-state-bus-bomb-iraq.html. Accessed 5 March 2020; Reuters (2019) Mortar attack kills three people in northern Iraq: police. https://www.reuters.com/article/us-iraq-security/mortar-att ack-kills-three-people-in-northern-iraq-police-idUSKCN1U4127. Accessed 5 March 2020. 40 Faidhi Dri K (2019) Turkey launches third phase of anti-PKK operation in Kurdistan Region. https://www.rudaw.net/english/kurdistan/240820191. Accessed 5 March 2020. 41 Gordon M, Youssef N, Coles I (2019) U.S. Strikes Shiite Militia Targets in Iraq and Syria. https:// www.wsj.com/articles/u-s-strikes-shiamilitia-targets-in-iraq-and-syria-11577642168. Accessed 5 March 2020. 42 Matar 2019, p 5. 43 Rasheed A, Ali I (2019) Iraq says U.S. forces withdrawing from Syria have no approval to stay. https://www.reuters.com/article/us-syria-security-iraq/iraq-says-u-s-forces-withdrawingfrom-syria-have-no-approval-to-stay-idUSKBN1X10RE. Accessed 9 March 2020. 36 VOA

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8.1.5 Israel/Palestine The border between Israel and the Gaza Strip remained closed throughout the whole year; 80% of Gaza’s two million inhabitants continued to rely on humanitarian aid.44 Beginning in May, the conflict at the border flared up, with Hamas and the Islamic Jihad group launching hundreds of incendiary balloons as well as indiscriminately firing more than 600 mortars and rockets into Israel.45 Israel responded with air strikes. The hostilities killed at least 25 Palestinians and four Israelis before Israel and Hamas agreed on a ceasefire.46 After relatively calm months and following the killing of an Islamic Jihad commander in Gaza by Israeli forces, Islamic Jihad elements responded by indiscriminately firing rockets into Israel reaching the borders of Tel Aviv47 until a truce was concluded.48 By the end of November, more than 1,900 rockets had been fired into Israel, killing six civilians and wounding 123.49 Israel also targeted Hezbollah elements on Lebanese territory as well as Syrian and Iranian assets on Syrian territory.50 In May, the US announced that it would recognise Israeli sovereignty over the disputed Golan Heights in the border region to Syria.51 Israel’s current Prime Minister

44 Human

Rights Watch 2020c. H (2019) Israeli Air Force strikes Gaza in response to incendiary balloons, rockets. https://www.jpost.com/Israel-News/IAF-carries-out-strikes-in-Gaza-Strip-on-HolocaustMemorial-Day-588462. Accessed 9 March 2020; Romo M (2019) Netanyahu Orders Continued Pounding In Gaza As 600 Rockets Fired Into Israel. https://www.npr.org/2019/05/05/720452125/ netanyahu-orders-continued-pounding-in-gaza-as-600-rockets-fired-into-israel. Accessed 9 March 2020. 46 Morris L, Eglash R, Balousha H (2019) Israel and Gaza militants agree to cease-fire after weekend of violence. https://www.washingtonpost.com//israel-and-gaza-militants-agree-to-ceasefire-after-weekend-of-violence/2019/05/06/255f9b6a-6f89-11e9-9f06-5fc2ee80027a_story.html? utm_term=.c8256f1ebb76. Accessed 9 March 2020. 47 Kershner I, Abuheweila I, Halbfinger D (2019) Israel Kills Senior Islamic Jihad Commander in Gaza. https://www.nytimes.com/2019/11/12/world/middleeast/israel-gaza-islamic-jihad.html. Accessed 9 March 2020; Al-Mughrabi N, Williams D (2019) Islamic Jihad offers Israel truce as Gaza toll hits 26. https://www.reuters.com/article/us-israel-palestinians-violence/israel-kills-ninegazans-say-palestinians-as-islamic-jihad-launches-rockets-idUSKBN1XN0FR. Accessed 9 March 2020. 48 Akram F, Federman J (2019) Amid Gaza fighting, Israel could face questions on tactics. https:// apnews.com/3609c737a22e4c3a95cda6c2eb411a59. Accessed 9 March 2020. 49 Human Rights Watch 2020c. 50 Holmes O (2019) UN calls for ‘maximum restraint’ after alleged Israeli strike in Lebanon. https://www.theguardian.com/world/2019/aug/26/israel-accused-of-targeting-iran-all ies-in-lebanon-bombing. Accessed 9 March 2020; Al Jazeera (2019) Israel says it bombed Iranian, Syrian targets inside Syria. https://www.aljazeera.com/news/2019/11/israel-attacks-syria-militarytargets-rocket-launches-191120020349674.html. Accessed 5 March 2020. 51 Reuters (2019) Israel says Trump to sign Golan sovereignty decree on Monday. https://www.reu ters.com/article/us-usa-israel-golan/israel-says-trump-to-sign-golan-sovereignty-decree-on-mon day-idUSKCN1R50JX. Accessed 9 March 2020. 45 Hacohen

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Benjamin Netanyahu also promised to annex parts of the West Bank if he got reelected.52 Israel further announced that it would continue building settlements in the occupied West Bank in violation of international law.53 Despite international condemnation, Israel also continued to demolish Palestinian houses in the West Bank that it regards as illegal and incompatible to its security interests.54 As the first part of a comprehensive US-sponsored peace plan, to be presented in 2020, the US put forward an economic framework for Israel and Palestine in June. The plan was the result of several conferences in Bahrain that were boycotted by Palestinian officials and to which subsequently no Israeli officials were invited.55 The framework was quickly rejected by the Palestinian leadership.56

8.1.6 Libya The conflict between the internationally recognized Government of National Accord (GNA) and the Interim Government, supported by the NSAG Libyan National Army (LNA), continued throughout 2019. The violence brought an end to the political peace process. A referendum about a new constitution, already postponed to January 2019,57 did not take place.58 In April, fighting for control over the capitol Tripoli broke out and soon escalated.59 In August, a three-day truce for the Muslim holiday of Eid al-Adha was 52 Landau N, Berger Y (2019) Netanyahu Says Israel Will Annex Jordan Valley if Reelected. https://www.haaretz.com/israel-news/.premium-election-netanyahu-israel-annexationwest-bank-jordan-valley-1.7829604. Accessed 9 March 2020. 53 Williams D (2019) Israel announces new homes for settlers, Palestinians in West Bank ahead of Kushner visit. https://www.reuters.com/article/us-israel-palestinians-westbank/israel-announcesnew-homes-for-settlers-palestinians-in-west-bank-ahead-of-kushner-visit-idUSKCN1UQ0SX. Accessed 9 March 2020; Human Rights Watch 2020c. 54 Sawafta A (2019) Israel demolishes Palestinian homes near West Bank barrier. https://www. reuters.com/article/us-israel-palestinians-jerusalem-demolit/israel-demolishes-palestinian-homesnear-west-bank-barrier-idUSKCN1UH07N. Accessed 9 March 2020. 55 Ravid B (2019) White House will not invite Israeli officials to Bahrain conference. https:// www.axios.com/white-house-peace-plan-israeli-officials-bahrain-conference-3435b4cd-b9ee4b4a-b30c-6d97913c2e27.html. Accessed 9 March 2020. 56 Al-Mughrabi N (2019) Palestinians reject Kushner ‘economy first’ approach to Mideast peace. https://www.reuters.com/article/us-israel-palestinians-plan-reaction/palestinians-reject-kus hner-economy-first-approach-to-mideast-peace-idUSKCN1TN0KS. Accessed 9 March 2020. 57 On the postponement of the referendum to 2019 amid violence, see Roithmaier et al. 2019, p 177. 58 Human Rights Watch 2020d. 59 Al Jazeera (2019) ‘Brief skirmish’ near Libya’s Tripoli as Haftar’s LNA heads west. https:// www.aljazeera.com/news/2019/04/libyan-strongman-khalifa-haftar-orders-forces-advance-west190403155045917.html. Accessed 5 March 2020; Amara H, Laessing U (2019) Tripoli forces push opponents back slightly south of Libyan capital-witnesses. https://www.reuters.com/article/ us-libya-security/tripoli-forces-push-opponents-back-slightly-south-of-libyan-capital-witnessesidUSKCN1RX0NK. Accessed 10 March 2020.

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concluded,60 only to be immediately followed by a car bomb attack on the UN Support Mission in Libya (UNSMIL) by unidentified perpetrators, killing three UN staff members.61 The fighting subsequently continued with the LNA refusing to abandon its plan to capture Tripoli.62 Just before the end of the year, Turkey announced that it would send troops in support of the GNA.63 At least 284 civilian deaths and 363 injuries were reported in 2019;64 the entire conflict has resulted in 343,000 internally displaced persons and 149,000 refugees.65 The LNA attacked Mitiga airport, Tripoli’s only functioning civilian airport, which was condemned by UNSMIL as a “serious violation of international humanitarian law”.66 It was also accused of attacking a government-run hospital, killing five doctors and eight medical personnel.67 In total, “37 attacks on medical facilities during the Tripoli clashes, which killed 11 health workers and injured 33 health workers and patients,” were reported.68 Both parties to the conflict agreed that parliamentary elections should be held by the end of the year.69 However, these plans did not come to fruition amid the violence. While no longer holding significant territory, “IS factions remain in parts of the country and finance their operations through robbery, kidnap for ransom, extortion

60 BBC News (2019) Libya conflict: Fighters agree a truce during Eid al-Adha. https://www.bbc. com/news/world-africa-49310728. Accessed 10 March 2020. 61 Associated Press (2019) Car Bomb Kills 3 U.N. Staff Members Outside a Benghazi Mall. https://www.nytimes.com/2019/08/11/world/africa/benghazi-united-nations-libya.html. Accessed 10 March 2020. 62 Al Jazeera (2019) Libya’s Haftar announces ‘decisive battle’ to capture Tripoli. https://www.alj azeera.com/news/2019/12/libya-haftar-announces-decisive-battle-capture-tripoli-191212205130 743.html. Accessed 10 March 2020; Mourad M, Elumami A (2019) Libya parliament chief allied to Haftar rules out talks before Tripoli captured. https://www.reuters.com/article/us-libya-security/ libya-parliament-chief-allied-to-haftar-rules-out-talks-before-tripoli-captured-idUSKCN1TE269. Accessed 10 March 2020. 63 Toksabay E, Elumami A (2019) Turkey to send troops to Libya at Tripoli’s request: Erdogan. https://www.reuters.com/article/us-turkey-libya-erdogan/turkey-to-send-troops-to-libyaat-tripolis-request-erdogan-idUSKBN1YU0EZ. Accessed 10 March 2020. 64 OHCHR (2019) Press briefing on Libya. https://www.ohchr.org/EN/NewsEvents/Pages/Displa yNews.aspx?NewsID=25445&LangID=E. Accessed 10 March 2020. 65 UN Office for the Coordination of Humanitarian Affairs 2020, p 9; Middle East Monitor (2019) UN: At least 284 civilian deaths in Libya this year. https://www.middleeastmonitor.com/20191220un-at-least-284-civilian-deaths-in-libya-this-year/. Accessed 10 March 2020. 66 Zaptia S (2019) UNSMIL head condemns LNA airstrike on Mitiga airport. https://www.libyah erald.com/2019/04/08/unsmil-head-condemns-lna-airstrike-on-mitiga-airport/. Accessed 10 March 2020. 67 Reuters (2019) Five killed in air strike on government-backed Libyan hospital. https://www.reu ters.com/article/us-libya-security/five-killed-in-air-strike-on-goverment-backed-libyan-hospitalidUSKCN1UN0OY. Accessed 5 March 2020. 68 Human Rights Watch 2020d. 69 VOA (2019) Tripoli PM: Libya to Hold Elections By Year End. https://www.voanews.com/worldnews/middle-east-dont-use/tripoli-pm-libya-hold-elections-year-end. Accessed 9 March 2020.

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and smuggling”.70 The US repeatedly carried out airstrikes against IS in coordination with the GNA, killing 43 IS members.71 US missiles originally sold to France were found in camps of the LNA. France dismissed that it had sold the weapons to the LNA, which would be a violation of a UN arms embargo.72 A UN report singled out Jordan, Turkey and the United Arab Emirates (UAE) as having “routinely and sometimes blatantly supplied weapons with little effort to disguise the source”.73

8.1.7 Mali Violence by NSAGs, in particular Islamist groups, and intercommunal violence continued and worsened the security situation in Mali in 2019. The local Al Qaeda branch, the Group for Support of Islam and Muslims, claimed a series of attacks on military and civilian targets,74 including an attack on UN peacekeepers in the country.75 After a bus carrying Malian civilians hit a landmine, killing 14 people and injuring 15, Al Qaeda publicly apologised for the deaths of “our brothers and sons” while claiming that the landmine was intended to hit the “French occupier and its acolytes.”76 The West-African IS affiliate also conducted attacks on military

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Office for the Coordination of Humanitarian Affairs 2020, p 10. A (2019) U.S. launches strike in southern Libya as U.N. warns of escalation. https://www.reuters.com/article/us-libya-security/u-s-launches-strike-in-southern-libya-as-un-warns-of-escalation-idUSKBN1WA0XW. Accessed 10 March 2020; Babb C (2019) Another US Airstrike in Libya Targets IS Fighters. https://www.voanews.com/africa/another-us-airstrike-libyatargets-fighters. Accessed 10 March 2020; Human Rights Watch 2020d. 72 Schmitt E, Walsh D (2019) U.S. Missiles Found in Libyan Rebel Camp Were First Sold to France. https://www.nytimes.com/2019/07/09/world/middleeast/us-missiles-libya-france.html. Accessed 10 March 2020. 73 Wintour P (2019) Libya arms embargo being systematically violated by UN states. https:// www.theguardian.com/world/2019/dec/09/un-says-member-states-violating-libya-arms-embargo. Accessed 10 March 2020. 74 See, e.g., Weiss C (2019) Al Qaeda group claims series of attacks across Sahel. https://www. longwarjournal.org/archives/2019/01/al-qaeda-group-claims-series-of-attacks-across-sahel.php. Accessed 10 March 2020; Reuters (2019) Al Qaeda affiliate claims deadly attack on Malian army. https://www.reuters.com/article/us-mali-security/al-qaeda-affiliate-claims-deadly-attack-on-mal ian-army-idUSKBN1WN20N. Accessed 10 March 2020. 75 Callimachi R (2019) Al Qaeda Claims U.N. Peacekeeper Attack That Killed 10 in Mali. https://www.nytimes.com/2019/01/20/world/africa/united-nations-peacekeepers-killed-mali. html. Accessed 10 March 2020. 76 Hoije K (2019) Al-Qaeda Issues Rare Apology After Land Mine Kills Bus Riders. https://www. bloomberg.com/news/articles/2019-09-12/al-qaeda-issues-rare-apology-after-landmine-kills-buspassengers?srnd=politics-vp. Accessed 10 March 2020. 71 Lewis

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and civilian targets.77 Both groups are responsible for the death of more than 150 civilians and 16 UN peacekeepers.78 After the Dan Nan Ambassagou Association, an ethnic militia, massacred 130 civilians amid growing ethnic violence,79 Prime Minister Soumeylou Boubeye Maiga dismissed the Chief of General Staff of the armed forces and ordered the dissolution of the Dan Nan Ambassagou Association.80 The entire government resigned shortly after.81 Inter-community violence continued throughout the whole year, killing at least 400 civilians.82 In December, Malian President Ibrahim Boubacar Keita initiated a “national inclusive dialogue” with representatives of political and armed groups as well as civil society.83 France continued its efforts, together with the Malian government, to disarm and dissolute NSAGs and terrorist groups.84 In a February operation, French forces killed Yahya Abou El Hamame, a commander of Al-Qaeda in the Islamic Maghreb,85 while in a November operation a high commander of the Islamist Group

77 Reuters (2019) Islamic State claims responsibility for killing 30 Malian soldiers. https://www. reuters.com/article/us-mali-security/islamic-state-claims-responsibility-for-killing-30-malian-sol diers-idUSKBN1XU2GR. Accessed 10 March 2020. 78 Human Rights Watch 2020e. 79 Reuters (2019) Massacre of 157 villagers in Mali spurs U.N. investigation. https://www.nbc news.com/news/world/massacre-157-villagers-mali-spurs-u-n-investigation-n988176. Accessed 10 March 2020. 80 France 24 (2019) Mali sacks military chiefs after massacre. https://www.france24.com/en/201 90325-mali-sacks-military-chiefs-militia-after-fulani-massacre. Accessed 10 March 2020. 81 France 24 (2019) Mali prime minister, whole government resigns after spike in violence. https:// www.france24.com/en/20190419-mali-prime-minister-whole-government-resign-after-spike-vio lence. Accessed 10 March 2020. 82 See, e.g., Reuters (2019) Ethnic attacks in Mali killed 18 civilians this week - peacekeeping mission. https://news.trust.org/item/20190504130540-7vcbn. Accessed 10 March 2020; BBC News (2019) Mali attack: ‘100 killed’ in ethnic Dogon village. https://www.bbc.com/news/world-africa48579475. Accessed 10 March 2020; Al Jazeera (2019) Attack on Fulani village in central Mali kills 23: Local mayor. https://www.aljazeera.com/news/2019/07/attack-fulani-village-central-malikills-23-local-mayor-190701183633647.html. Accessed 10 March 2020; Human Rights Watch 2020e. 83 Al Jazeera (2019) Mali: President Keita holds crisis talks amid unrest in the north. https://www. aljazeera.com/news/2019/12/mali-president-keita-holds-crisis-talks-unrest-north-191214152320 760.html. Accessed 10 March 2020. 84 The Defense Post (2019) Joint Mali-France commando operation kills 20 ‘terrorists’ in Menaka. https://thedefensepost.com/2019/06/17/mali-france-operation-kills-20-menakabarkhane/. Accessed 10 March 2020. 85 Agence France-Presse (2019) France says kills top Al-Qaeda commander in Sahel. https://news. yahoo.com/france-says-kills-top-al-qaeda-commander-sahel-135331303.html?guccounter=1. Accessed 10 March 2020.

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for Support of Islam and Muslims was targeted.86 In July the UK announced that it would deploy 250 personnel for peacekeeping efforts to the country.87

8.1.8 Myanmar Ethnically motivated violence between the Myanmar armed forces and NSAGs in Rakhine as well as Kachin and Chin States continued throughout 2019.88 The violence resulted in civilian casualties, including health workers,89 and between 130,000 and 160,000 internally displaced people.90 More than 900,000 Rohingya refugees remain in Bangladesh.91 While Myanmar continued its efforts to return the Rohingyas,92 the refugees were not willing to cooperate and return to Myanmar amid the risk of discriminatory and potential genocidal measures.93 In fact, attacks on Rohingya civilians continued to occur in 2019.94 In March, the Myanmar army announced that it would set up a military court to investigate its own conduct during the crackdown on the Rohingya minority in 2017, but this move was denounced by Amnesty International as a “bad faith manoeuvre”.95 In its 86 Deutsche Welle (2019) French forces in Mali kill extremist leader. https://www.dw.com/en/fre nch-forces-in-mali-kill-extremist-leader/a-51127586. Accessed 10 March 2020. 87 Reuters (2019) UK to send 250 troops to Mali for peacekeeping operations. https://www.reuters. com/article/us-britain-mali-peacekeeping/uk-to-send-250-troops-to-mali-for-peacekeeping-operat ions-idUSKCN1UH0ZO. Accessed 10 March 2020. 88 Human Rights Watch 2020f. 89 Naing S (2019) Rescue worker killed in attack on ambulance in northern Myanmar - army. https://in.reuters.com/article/myanmar-politics/rescue-worker-killed-in-attack-on-ambula nce-in-northern-myanmar-army-idINKCN1V7090. Accessed 25 March 2020. 90 BNI International (2019) Civilians killed by Shelling in Myanmar’s Shan State as Gov. and Armed Groups Meet. https://www.bnionline.net/en/news/civilians-killed-shelling-myanmarsshan-state-gov-and-armed-groups-meet. Accessed 25 March 2020; UNICEF 2019, p 2; Special Rapporteur on the situation of human rights in Myanmar (2019) Oral update to the Human Rights Council. https://yangon.sites.unicnetwork.org/2019/09/16/special-rapporteur-on-the-situat ion-of-human-rights-in-myanmar-oral-update-to-the-human-rights-council/. Accessed 25 March 2020. 91 Human Rights Watch 2020f. 92 Ganguly M (2019) Rohingya Refugees Disappointed Again. https://www.hrw.org/news/2019/07/ 31/rohingya-refugees-disappointed-again. Accessed 25 March 2020. 93 Rahman T (2019) Rohingya repatriation attempt fails again. https://www.dhakatribune.com/ban gladesh/rohingya-crisis/2019/08/23/rohingya-repatriation-attempt-fails-again. Accessed 26 March 2020; Human Rights Watch 2020f. 94 Reuters (2019) Myanmar villagers, lawmaker say ‘helicopter attack’ kills five Rohingya, wounds 13. https://www.reuters.com/article/us-myanmar-rohingya/myanmar-villagers-lawmakersay-helicopter-attack-kills-five-rohingya-wounds-13-idUSKCN1RG16C. Accessed 26 March 2020. 95 Reuters (2019) Myanmar military court to probe Rohingya atrocity allegations. https://uk.reuters. com/article/uk-myanmar-rohingya-military/myanmar-military-court-to-probe-rohingya-atrocityallegations-idUKKCN1QZ11O. Accessed 26 March 2020.

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final September 2019 report, the UN Independent International Fact-Finding Mission on Myanmar (IIFFMM) concluded that there was sufficient reason to believe that identified senior generals of the Myanmar armed forces possessed genocidal intent during their crackdown on the Rohingya in 2017 and called for international investigation and prosecution “in an international criminal tribunal for genocide, crimes against humanity and war crimes.”96 The UN also urged States to impose targeted sanctions against companies linked to the Myanmar military.97 The mandate of the IIFFMM came to an end in September and was conceded by the Independent Investigative Mechanism for Myanmar, a new investigatory mechanism mandated by the UN Human Rights Council.98 On 11 November, The Gambia brought a case against Myanmar before the International Court of Justice (ICJ) that alleges a violation of the Convention on the Prevention and Punishment of the Crime of Genocide.99 This marked the first time a third State attempted to hold another State accountable under the Genocide Convention. The International Criminal Court (ICC) also announced it would start to investigate alleged crimes against humanity against the Rohingyas.100 The European Union (EU) extended its arms embargo against Myanmar until 2020.101 Two Reuter journalists, jailed after reporting on the killing of ten Rohingya men and boys, were freed in May after spending more than 500 days in jail.102

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General Assembly (2019) Human Rights Council: Report of the independent international fact-finding mission on Myanmar, UN Doc. A/HRC/39/64; UN Human Rights Council (2019) Statement by Mr. Marzuki Darusman, Chairperson of the United Nations Independent International Fact-Finding Mission on Myanmar, at the Security Council. https://www.ohchr.org/EN/HRBodies/ HRC/Pages/NewsDetail.aspx?NewsID=23778&LangID=E. Accessed 25 March 2020. 97 Teo A, McPherson P (2019) U.N. urges sanctions on Myanmar army businesses, says foreign partners could be complicit. https://www.reuters.com/article/us-myanmar-military/u-n-urgessanctions-on-myanmar-army-businesses-says-foreign-partners-could-be-complicit-idUSKCN1U V0EG. Accessed 26 March 2020. 98 OHCHR (2019) Independent International Fact-Finding Mission on Myanmar. https://www. ohchr.org/EN/HRBodies/HRC/MyanmarFFM/Pages/Index.aspx. Accessed 30 April 2020. 99 ICJ 2019; Bowcott O (2019) Aung San Suu Kyi impassive as genocide hearing begins. https:// www.theguardian.com/world/2019/dec/10/aung-san-suu-kyi-court-hague-genocide-hearing-mya nmar-rohingya. Accessed 26 March 2020. 100 For more information on the proceedings, see below Sect. 8.2.1.1, Preliminary Examinations and Investigations, Bangladesh/Myanmar. 101 Al Jazeera (2019) EU extends ban on arms sales to Myanmar over Rohingya crisis. https://www. aljazeera.com/news/2019/04/eu-extends-ban-arms-sales-myanmar-rohingya-crisis-190430005224 768.html. Accessed 26 March 2020. 102 Lewis S, Naing S (2019) Two Reuters reporters freed in Myanmar after more than 500 days in jail. https://www.reuters.com/article/us-myanmar-journalists/two-reuters-reportersfreed-in-myanmar-after-more-than-500-days-in-jail-idUSKCN1SD056. Accessed 26 March 2020. For background on their imprisonment, see Roithmaier et al. 2019, p 182.

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8.1.9 Nigeria The security situation in Nigeria remained critical. Despite a decrease in violence, Boko Haram continued to attack military103 as well as civilian targets, including through abductions of civilians and suicide attacks.104 In July, Boko Haram attacked staff of the international aid group Action Against Hunger, killing one and abducting six.105 In January, 700 captives of Boko Haram escaped,106 while 244 Boko Haram suspects were released after completing a de-radicalisation programme.107 The Nigerian offshoot of IS also gained hold on parts of the country’s northeast due to the fragile security situation.108 Inter-communal violence, banditry, and abductions continued throughout 2019, killing more than 1,400 people in the first quarter of 2019 alone.109 The Multinational Joint Task Force, a military coalition of Nigeria and bordering countries, continued their efforts to defeat Boko Haram.110 Fighting between armed forces and Boko Haram elements caused an estimated 640 civilian deaths, including

103 Aksar M (2019) Suspected Boko Haram attack in Niger kills at least four soldiers. https://www. reuters.com/article/us-nigeria-security/suspected-boko-haram-attack-in-niger-kills-at-least-foursoldiers-idUSKBN1F726X. Accessed 26 March 2020. 104 Reuters (2019) Boko Haram school attack: two girls killed and 76 rescued, official says. https:// www.theguardian.com/world/2018/feb/21/scores-of-girls-missing-after-new-boko-haram-schoolattack. Accessed 26 March 2020; Al Jazeera (2019) Eight killed in Boko Haram attack in Nigeria. https://www.aljazeera.com/news/2019/02/killed-boko-haram-attack-nigeria-190216120448266. html. Accessed 15 April 2020; Al Jazeera (2019) Nigeria: Toll in suspected Boko Haram funeral attack rises to 65. https://www.aljazeera.com/news/2019/07/nigeria-death-toll-boko-haram-fun eral-attack-rises-65-190728195337691.html. Accessed 15 April 2020. 105 Human Rights Watch 2020g. 106 BBC News (2019) Nigerian army says 700 Boko Haram captives have escaped. https://www. bbc.com/news/world-africa-42536065. Accessed 26 March 2020. 107 VOA (2019) Nigeria Army Releases 244 Boko Haram Suspects. https://www.voanews.com/afr ica/nigeria-army-releases-244-boko-haram-suspects. Accessed 26 March 2020. 108 Carsten P (2019) Islamic State fills the void in Nigeria as soldiers retreat to ‘super camps’. https://www.reuters.com/article/us-nigeria-security-insurgency/islamic-state-fillsthe-void-in-nigeria-as-soldiers-retreat-to-super-camps-idUSKBN1W10FU. Accessed 15 April 2020. For an in-depth analysis of the Islamic State in West Africa Province’s efforts to extend its networks in the country and its attempts to build a proto State, see International Crisis Group 2019a. 109 Human Rights Watch 2020g; Tukur S (2019) Death toll in Kajuru killings rises to 130—El-Rufai. https://www.premiumtimesng.com/news/headlines/313807-breaking-death-tollin-kajuru-killings-rises-to-130-el-rufai.html. Accessed 15 April 2020; BBC News (2019) Zamfara: Are banditry killings in Nigeria getting worse? https://www.bbc.com/news/world-africa-47883308. Accessed 15 April 2020; Toromade S (2019) IGP says 1,071 people killed, 685 kidnapped in Nigeria in 2019. https://www.pulse.ng/news/local/igp-says-1071-people-killed-685-kidnapped-in-nigeriain-2019/681pntp. Accessed 15 April 2020. 110 Premium Times (2019) 39 terrorists killed as Boko Haram attacks troops – Official. https:// www.premiumtimesng.com/news/headlines/325924-39-terrorists-killed-as-boko-haram-attackstroops-official.html. Accessed 15 April 2020.

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37 aid workers, bringing the total death toll to more than 27,000 people since the onset of the conflict in 2009.111

8.1.10 Somalia The armed conflict in Somalia between government forces and its allies, in particular the US Africa Command (AFRICOM), and Al Shabab continued throughout 2019. In January, Al Shabab conducted a sophisticated attack against a hotel complex in Nairobi, Kenya, that killed more than 20 people after a 20-hour siege.112 Al Shabab continuously attacked civilians113 as well as military targets.114 In July, a suicide attack killed the Mayor of the capital Mogadishu in his own office.115 The US conducted 51 airstrikes against Al Shabab and, to a lesser extent, IS elements in the country, the highest number of yearly airstrikes since the commencement of their engagement in the country.116 In April, US President Donald Trump extended AFRICOM’s engagement in Somalia for another year.117 111 Human

Rights Watch 2020g. Jazeera (2019) Kenya attack death toll rises to 21 as suspects hunted down. https://www.alj azeera.com/news/2019/01/kenya-president-attackers-hotel-attack-killed-190116062350181.html. Accessed 15 April 2020. 113 See, e.g., Reuters (2019) Attack at Somali Port Kills Manager at Dubai-Owned Operation. https://www.nytimes.com/2019/02/04/world/africa/somalia-port-attack-dubai-paul-ant hony-formosa.html. Accessed 15 April 2020; Maruf H (2019) Al-Shabab Attack Claims 9 Lives in Somalia. https://www.voanews.com/africa/al-shabab-attack-claims-9-lives-somalia. Accessed 15 April 2020; Reuters (2019) Somali militant siege ends, at least 29 civilians dead. https://www.reuters.com/article/us-somalia-security/gun-battle-rages-between-al-sha baab-and-somali-troops-after-hotel-attack-idUSKCN1QI3K4. Accessed 15 April 2020. 114 Sheikh A, Omar F (2019) Somalia’s al Shabaab hits military base, deaths on both sides. https://www.reuters.com/article/us-somalia-security/car-bombs-shake-somali-military-basedeaths-reported-idUSKCN1V40ZJ. Accessed 15 April 2020. For an overview of the various attacks in 2019, see Council on Foreign Relations 2020b, Alerts. 115 BBC News (2019) Abdirahman Omar Osman, Mogadishu mayor, dies after suicide bombing. https://www.bbc.com/news/world-africa-49197036. Accessed 15 April 2020. 116 Long War Journal 2020, US Airstrikes in Somalia. See, e.g., AFRICOM (2019) Al-Shabaab Degraded by U.S., Federal Government of Somalia. https://www.africom.mil/media-room/pre ssrelease/31458/al-shabaab-degraded-by-u-s-federal-government-of-somalia. Accessed 15 April 2020; AFRICOM (2019) Al-Shabaab Degraded by U.S., Federal Government of Somalia. https:// www.africom.mil/media-room/pressrelease/31469/al-shabaab-degraded-by-u-s-federal-govern ment-of-somalia. Accessed 15 April 2020. For strikes against IS elements, see, e.g., Hassan A (2019) Air strike kills Islamic State deputy in Somali region. https://www.reuters.com/article/ussomalia-islamic-state/air-strike-kills-islamic-state-deputy-in-somali-region-idUSKCN1RQ0NF. Accessed 15 April 2020; AFRICOM (2019) Somali Forces & U.S. Africa Command Conduct Airstrike Targeting ISIS-Somalia. https://www.africom.mil/media-room/pressrelease/31834/som ali-forces-u-s-africa-command-conduct-airstrike-targeting-isis-somalia. Accessed 15 April 2020. 117 CNN (2019) US military mission in Somalia could take seven years to complete. https://edition. cnn.com/2019/04/13/politics/us-military-somalia-mission/index.html. Accessed 15 April 2020. 112 Al

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AFRICOM is alleged to have caused civilian casualties, potentially in violation of IHL, and impairing independent and transparent investigations.118 While AFRICOM initially denied that any civilian casualties occurred as a result of its operations,119 it later acknowledged that two civilians had been killed in an April 2018 airstrike.120 The Somali government continued to execute the death penalty against Al Shabab members.121

8.1.11 South Sudan Following the signing of a peace agreement in September 2018,122 the fighting in South Sudan decreased significantly. However, sporadic fighting with severe humanitarian consequences continued to occur between government forces and NSAGs that are not part of the agreement.123 Rebel groups were responsible for attacks against civilians and UN peacekeepers.124 While the peace agreement foresaw the formation of a transitional unity government for a period of 36 months,125 its establishment was delayed, first in May,126

118 Amnesty International 2019a; Amnesty International (2019) USA/Somalia: Shroud of secrecy around civilian deaths masks possible war crimes. https://www.amnesty.org/en/latest/news/2019/ 03/usa-somalia-shroud-of-secrecy-around-civilian-deaths-masks-possible-war-crimes/. Accessed 15 April 2020. 119 Babb C (2019) US Military Denies Rights Group Allegations of Civilian Casualties in Somalia. https://www.voanews.com/africa/us-military-denies-rights-group-allegations-civiliancasualties-somalia. Accessed 15 April 2020. 120 AFRICOM (2019) U.S. Africa Command commander-directed review reveals civilian casualties. https://www.africom.mil/media-room/pressrelease/31697/u-s-africa-command-commanderdirected-review-reveals-civilian-casualties. Accessed 15 April 2020. 121 Ahmed M (2019) Somalia Executes Two Al-Shabaab Militants for Mogadishu Attack. https:// www.bloomberg.com/news/articles/2019-08-05/somalia-executes-two-al-shabaab-militants-formogadishu-attack. Accessed 15 April 2020. 122 See Roithmaier et al. 2019, pp 185 ff. 123 See, e.g., VOA (2019) Thousands of Displaced South Sudanese ‘Suffering’ Without Food, Water. https://www.voanews.com/africa/thousands-displaced-south-sudanese-suffering-wit hout-food-water. Accessed 16 April 2020; Francis O (2019) UN Says 100 Killed in Clashes Involving South Sudanese Army. https://www.bloomberg.com/news/articles/2019-07-03/un-says100-killed-in-clashes-involving-south-sudanese-army. Accessed 16 April 2020. 124 Reuters (2019) U.N. peacekeeper, 6 civilians killed in Sudan/South Sudan border area. https:// www.reuters.com/article/us-southsudan-security/un-peacekeeper-6-civilians-killed-in-sudansouth-sudan-border-area-idUSKCN1UC1FG. Accessed 16 April 2020. 125 See Roithmaier et al. 2019, pp 185 ff. 126 SABC News (2019) South Sudan rivals meet in bid to salvage stalled peace deal. https://www. sabcnews.com/sabcnews/south-sudan-rivals-meet-in-bid-to-salvage-stalled-peace-deal/. Accessed 16 April 2020; Al Jazeera (2019) South Sudan rivals agree to delay forming government. https:// www.aljazeera.com/news/2019/05/south-sudan-rivals-agree-delay-forming-government-190503 183006336.html. Accessed 16 April 2020.

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and again in September.127 In November the deadline was extended for another six months.128 The formation of a unity government is now foreseen for February 2020.129 In December, the South Sudan government announced the creation of a special tribunal to hold accountable “the members of the National Security Service […] for all criminal acts and breaches of the National Security Act and any other laws and regulations [including] human rights abuses”.130 The UN Security Council renewed its sanctions regime, including an arms embargo, for the country for another year in May.131

8.1.12 Sri Lanka On 21 April, Easter Sunday, three Christian churches and three hotels were hit in a series of suicide bombings in Colombo, the country’s biggest city. The assaults were described as sophisticated and as the “worst attacks in Sri Lanka since the end of the civil war 10 years ago.”132 The attacks killed at least 253 people and injured more than 500.133 An attack on a fourth hotel failed.134 During a high number of raids in

127 Reuters (2019) South Sudan parties agree to form interim govt by Nov 12. https://af.reuters.com/

article/topNews/idAFKCN1VW1H7-OZATP. Accessed 16 April 2020; Magdy S (2019) Sudan’s government, rebels start peace talks in Juba. https://apnews.com/5f97a363f73f400aa01abac65d9 665dc. Accessed 16 April 2020. 128 France24 (2019) South Sudan rival leaders given 100 days to form unity government. https:// www.france24.com/en/20191107-south-sudan-rival-leaders-given-100-days-to-form-unity-govern ment. Accessed 16 April 2020. 129 Wudu W (2019) South Sudan’s Kiir, Machar Agree (Again) to Form Unity Government. https://www.voanews.com/africa/south-sudan-focus/south-sudans-kiir-machar-agree-againform-unity-government. Accessed 26 April 2020. 130 Aurelio D (2019) South Sudan Creates Tribunal to Try Security Operatives. https://www.voa news.com/africa/south-sudan-creates-tribunal-try-security-operatives. Accessed 16 April 2020. 131 UN Security Council (2019) Resolution 2478 (2019), UN Doc. S/RES/2471; Besheer M (2019) UN Renews South Sudan Arms Embargo. https://www.voanews.com/africa/un-renewssouth-sudan-arms-embargo. Accessed 16 April 2020. 132 Al Jazeera (2019) Sri Lanka Easter bombings: Mass casualties in churches and hotels. https://www.aljazeera.com/news/2019/04/multiple-blasts-hit-sri-lanka-churches-hotels-eas ter-sunday-190421050357452.html. Accessed 16 April 2020. 133 BBC News (2019) Sri Lanka attacks: What we know about the Easter bombings. https://www. bbc.com/news/world-asia-48010697. Accessed 16 April 2020. 134 Ibid.

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the following days that led to the arrest of more than 80 suspects, three police officers and two civilians were killed.135 It is suspected that the attackers had ties to IS.136

8.1.13 Syria The Syrian civil war continued throughout 2019. In particular, the northwest region around Idlib province, one of the last strongholds of rebel forces, saw an escalation of violence. Though the Syrian forces, supported by Russia, gained only slow territorial gains,137 forcing rebels to withdraw from formerly held cities and causing residents to flee their homes,138 the military assaults caused extensive human losses.139 A shortlived ceasefire agreement in August became invalid only days after its conclusion, with both sides accusing each other of violating the agreement.140 Amid the military assaults, the UN World Food Programme (WFP) stopped its aid deliveries for more

135 Independent (2019) Sri Lanka blast news: Eighth explosion kills police officers as death toll from

Easter Sunday bomb attacks rises to more than 200. https://www.independent.co.uk/news/world/ asia/sri-lanka-blast-news-latest-bombing-death-toll-attack-colombo-a8879796.html. Accessed 16 April 2020. 136 Long War Journal 2019. 137 Reuters (2019) Syrian government forces recover area in northwest. https://www.reuters.com/ article/us-syria-security/syrian-government-forces-recover-area-in-northwest-idUSKCN1UO16I. Accessed 21 April 2020; Reuters (2019) Syrian army resumes military operations against rebels in northwest Syria. https://www.reuters.com/article/us-syria-security-truce/syrian-army-resumes-mil itary-operations-against-rebels-in-northwest-syria-idUSKCN1UV1FF. Accessed 21 April 2020. 138 Perry T, Bassam L (2019) Syrian army poised to take key town after rebel withdrawals. https:// www.reuters.com/article/us-syria-security/syrian-army-tightens-grip-on-key-town-after-rebel-wit hdrawal-idUSKCN1VA0G8. Accessed 21 April 2020; Al-Khalidi S (2019) Tens of thousands flee Russia-led attack on Syrian opposition enclave. https://www.reuters.com/article/us-syriasecurity/tens-of-thousands-flee-russian-led-onslaught-on-opposition-enclave-idUSKCN1VB15Q. Accessed 21 April 2020. 139 Gupta P (2019) Syria: At least 13 civilians including 5 children killed in Idlib. https://www. aljazeera.com/news/2019/07/syria-13-civilians-including-5-children-killed-idlib-190728084504 747.html. Accessed 21 April 2020; Deutsche Welle (2019) Syrian rebel town Ariha pounded in airstrike, causing civilian casualties. https://www.dw.com/en/syrian-rebel-town-ariha-pounded-inairstrike-causing-civilian-casualties/a-49772742. Accessed 21 April 2020; Reuters (2019) Syrian air strikes on Idlib markets kill at least 11: civil defense. https://www.reuters.com/article/ussyria-security-idlib/syrian-air-strikes-on-idlib-markets-kill-at-least-11-civil-defense-idUSKBN1Y 61PM. Accessed 21 April 2020. 140 Reuters (2019) Syrian army resumes military operations against rebels in northwest Syria. https://www.reuters.com/article/us-syria-security-truce/syrian-army-resumes-militaryoperations-against-rebels-in-northwest-syria-idUSKCN1UV1FF. Accessed 21 April 2020.

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than 7,000 individuals.141 The fighting also involved incidents between Turkish and Syrian troops.142 The Syrian government has been accused of severe forms of mistreatment and torture.143 It has also repeatedly attacked medical facilities as well as schools.144 It continually used prohibited weapons, engaged in indiscriminate attacks, demolitions of homes, arbitrary detentions, and displacement of persons.145 The Organisation for the Prohibition of Chemical Weapons (OPCW) in March published its Report of the Fact-Finding Mission Regarding the Incident of Alleged Use of Toxic Chemicals as a Weapon in Douma, Syrian Arab Republic, on 7 April 2018 that was set up to investigate the alleged use of chemical weapons by Syrian armed forces.146 It stated that there are “reasonable grounds [to conclude] that the use of a toxic chemical as a weapon took place. This toxic chemical contained reactive chlorine. The toxic chemical was likely molecular chlorine.”147 A study by the Global Public Policy Institute in February 2019 concluded that “there have been at least 336 chemical weapons attacks over the course of the Syrian civil war […]. Around 98% of these attacks can be attributed to the Assad regime, with the Islamic State group responsible for the rest.”148 141 Al Jazeera (2019) Syria escalation hampers food delivery to affected areas: WFP. https://www. aljazeera.com/news/2019/06/syria-escalation-hampers-food-delivery-affected-areas-wfp-190611 141441589.htm. Accessed 20 April 2020; Al-Khalidi S (2019) Russian-led assault in Syria leaves over 500 civilians dead: rights groups, rescuers. https://www.reuters.com/article/us-syria-securitycasualties/russian-led-assault-in-syria-leaves-over-500-civilians-dead-rights-groups-rescuers-idU SKCN1U200Q. Accessed 20 April 2020; Reuters (2019) Syrian air strike on village market kill at least 12: rescuers. https://www.reuters.com/article/us-syria-security-idlib/syrian-air-strike-on-vil lage-market-kill-at-least-12-rescuers-idUSKCN1UB2HU. Accessed 20 April 2020. 142 Butler D (2019) Turkish outpost in Syria shelled from Syrian government forces area: ministry. https://www.reuters.com/article/us-syria-security-turkey/turkish-outpost-in-syriashelled-from-syrian-government-forces-area-ministry-idUSKCN1TH05W. Accessed 20 April 2020. 143 Syrian Network for Human Rights 2019. 144 UN General Assembly (2019) Human Rights Council: Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, UN Doc. A/HRC/42/51, para 44; New York Times (2019) 12 Hours. 4 Syrian Hospitals Bombed. One Culprit: Russia. https://www.nytimes. com/2019/10/13/world/middleeast/russia-bombing-syrian-hospitals.html. Accessed 21 April 2020; New York Times (2019) Hospitals and Schools Are Being Bombed in Syria. A U.N. Inquiry Is Limited. We Take a Deeper Look. https://www.nytimes.com/interactive/2019/12/31/world/middle east/syria-united-nations-investigation.html. Accessed 21 April 2020; Al-Ahmad R (2019) Who is bombing hospitals in Syria? https://www.aljazeera.com/indepth/opinion/bombing-hospitals-syria190616204404558.html. Accessed 21 April 2020. 145 Human Rights Watch 2020h. 146 BBC News (2019) Syria war: What we know about Douma ‘chemical attack’. https://www. bbc.com/news/world-middle-east-43697084. Accessed 21 April 2020. For a background on the incidents, including the obstruction of the investigations, see Roithmaier et al. 2019, pp 189–190. 147 OPCW 2019a, para 2.17. For developments regarding chemical weapons in 2019 generally, see below Sect. 8.3.3.1. 148 Schneider and Lütkefend 2019. For a visualisation of the report, see the project’s website: https:// chemicalweapons.gppi.net/.

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Rebel forces equally continued their military assaults against Syrian and Russian forces.149 They also indiscriminately attacked civilians, including hospitals.150 Russia, for the thirteenth time since the beginning of the conflict,151 together with China, vetoed a UN Security Council Resolution calling for a truce in conflict-affected areas.152 In February, US President Donald Trump declared that “[t]he United States military, [its] coalition partners and the Syrian Democratic forces have liberated virtually all of the territory previously held by [IS] in Syria and Iraq”,153 which was confirmed some weeks later by the Syrian Democratic Forces (SDF).154 While declaring a general withdrawal of US troops from Syria, the US announced that a “small peacekeeping group” of 200 US personnel were to stay in the country.155 In October, the US commenced with withdrawing its troops from northwest Syria, causing Turkey to prepare an assault on Kurdish forces in the region.156 Turkey quickly advanced,

149 See, e.g., Radio Free Europe (2019) Three Russian Soldiers Killed In Syria. https://www. rferl.org/a/russia-syria-assad/29842284.html. Accessed 20 April 2020; France24 (2019) Russian air strike on Syria market kills 19: monitor. https://www.france24.com/en/20190722-russian-airstrike-syria-market-kills-19-monitor. Accessed 21 April 2020; Mroue B (2019) Syrian troops advance in northwest amid intense bombardment. https://apnews.com/5ceee9b2972c4568bd5e0 91cc9a15000. Accessed 21 April 2020; Al-Khalidi S (2019) Syrian rebels push back against army advances in Idlib. https://www.reuters.com/article/us-syria-security-idlib/syrian-rebels-push-backagainst-army-advances-in-idlib-idUSKCN1VH1QG. Accessed 21 April 2020. 150 See, e.g., AFP (2019) Rockets kill 11 in Syria’s Aleppo: state media. https://news.yahoo. com/rockets-kill-11-syrias-aleppo-state-media-183348576.html?guccounter=1. Accessed 20 April 2020; UN Independent International Commission of Inquiry on the Syrian Arab Republic (2019) Escalating violence and waves of displacement continue to torment civilians during eighth year of Syrian conflict. https://www.ohchr.org/EN/HRBodies/HRC/Pages/NewsDetail.aspx?NewsID= 24972&LangID=E. Accessed 21 April 2020; UN General Assembly (2019) Human Rights Council: Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, UN Doc. A/HRC/42/51, para 41. 151 Human Rights Watch 2020h. 152 Nichols M (2019) Russia casts 13th veto of U.N. Security Council action during Syrian war. https://www.reuters.com/article/us-syria-security-un/russia-casts-13th-veto-of-un-sec urity-council-action-during-syrian-war-idUSKBN1W42CJ. Accessed 21 April 2020. 153 Morin R (2019) Trump set to announce ‘100 percent’ of ISIS caliphate liberated. https://www. politico.com/story/2019/02/06/trumps-says-isis-liberated-1153101. Accessed 16 April 2020. 154 Al Jazeera (2019) ISIL defeated in final Syria victory: SDF. https://www.aljazeera.com/ news/2019/03/isil-defeated-syria-sdf-announces-final-victory-190323061233685.html. Accessed 16 April 2020. 155 Schwartz K (2019) White House: 200 US Troops to Remain in Syria. https://www.voanews.com/ usa/white-house-200-us-troops-remain-syria. https://www.aljazeera.com/news/2019/03/syria-sdfmilitia-predicts-isil-fight-imminently-190313031611626.html. Accessed 16 April 2020. 156 Coskun O, Butler D (2019) Ahead of offensive, Turkey says it strikes Syria-Iraq border. https://www.reuters.com/article/us-syria-security-turkey-usa/turkey-says-syria-attack-plans-com plete-trump-delivers-threat-idUSKBN1WN0KO. Accessed 21 April 2020; Fahim K, Dadouch S, Khattab A (2019) Turkey launches offensive against U.S.-allied Kurdish forces in northern

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killing more than a hundred persons in the first days.157 After the US announced sanctions against the Turkish government until a halt of Turkish operations in Syria,158 Turkey agreed on a five-day truce to give Kurdish forces the opportunity to leave the area159 that it intended to use as a so-called ‘safe zone’ for up to three million Syrian refugees.160 Upon expiration of the truce, Turkey and Russia concluded an agreement giving Turkey the sole control over border areas captured during its offensive and shared control of the rest of the border region.161 At the end of the year, the US indicated that, contrary to its initial announcement, up to 600 troops would remain in Syria.162 Throughout 2019, IS engaged in suicide attacks against the US-led coalition, Syrian troops, and civilians.163 In October, US forces killed the leader of IS, Abu Bakr al-Baghdadi, and its spokesperson, Abu al-Hassan al-Muhajir.164

Syria. https://www.washingtonpost.com/world/middle_east/with-turkish-offensive-looming-syr ian-kurds-mobilize-civilian-defense/2019/10/09/4efca794-ea02-11e9-a329-7378fbfa1b63_story. html?wpisrc=al_news__alert-world--alert-national&wpmk=1. Accessed 21 April 2020. 157 Butler D, Francis E (2019) Turkey intensifies Syria campaign as Islamic State strikes Kurds. https://www.reuters.com/article/us-syria-security-turkey-usa/turkey-intensifies-syria-campaignwashington-warns-of-serious-consequences-idUSKBN1WQ0O2. Accessed 21 April 2020; Al Jazeera (2019) Turkey’s military operation in Syria: All the latest updates. https://www.aljaze era.com/news/2019/10/turkey-military-operation-syria-latest-updates-191016063442043.html. Accessed 21 April 2020. 158 US Department of State (2019) Sanctioning the Government of Turkey in Response to the Ongoing Military Offensive in Northeast Syria. https://www.state.gov/sanctioning-the-gov ernment-of-turkey-in-response-to-the-ongoing-military-offensive-in-northeast-syria/. Accessed 21 April 2020. 159 Al Jazeera (2019) Full text of Turkey, US statement on northeast Syria. https://www.aljazeera. com/news/2019/10/full-text-turkey-statement-northeast-syria-191017191203481.html. Accessed 21 April 2020. 160 Coskun O (2019) Turkey plans presence across northeast Syria, Erdogan says. https://www.reu ters.com/article/us-syria-security-turkey-usa/shells-still-fall-in-northeast-syria-despite-pause-agr eement-idUSKBN1WX0GT. Accessed 21 April 2020. 161 Fraser S, Isachenkov V (2019) Russia, Turkey seal power in northeast Syria with new accord. https://apnews.com/185d5d93b4d747dfbd63e60f296d4b1e. Accessed 21 April 2020. 162 Williams K (2019) About 600 US Troops to Remain in Syria, Esper Says. https://www.def enseone.com/threats/2019/11/six-hundred-us-troops-remain-syria-esper-says/161294/?oref=def ense_one_breaking_nl. Accessed 21 April 2020. 163 DeYoung K (2019) Killing of 4 Americans in Syria throws spotlight on Trump’s policy. https:// www.washingtonpost.com/world/national-security/killing-of-4-americans-in-syria-throws-spotli ght-on-trumps-policy/2019/01/16/7a55d92c-19cb-11e9-88fe-f9f77a3bcb6c_story.html. Accessed 20 April 2020; Reuters (2019) Car bomb hits security force in northeastern Syria, at least one killed. https://www.reuters.com/article/us-syria-security-northeast-blast/car-bomb-hits-securityforce-in-northeastern-syria-at-least-one-killed-idUSKCN1V808X. Accessed 21 April 2020. 164 Coles I, Osseiran N, Donati J (2019) Islamic State Spokesman Killed in U.S. Airstrike. https:// www.wsj.com/articles/islamic-state-spokesman-targeted-in-u-s-airstrike-say-kurds-11572268364. Accessed 21 April 2020.

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The formation of a UN-backed Syrian constitutional drafting committee, composed of the Syrian government, opposition representatives, and civil society,165 made progress in 2019.166 In October the committee met for the first time, though by the end of the year substantive progress is yet to be made.167 To date, the Syrian civil war has resulted in more than 116,000 civilian deaths, 6.2 million internally displaced persons, and 6.7 million refugees.168 A report by Amnesty International revealed that military operations by the US-led coalition claimed more civilian casualties than it had acknowledged.169

8.1.14 Ukraine The hostilities in eastern Ukraine saw a decrease in 2019 and civilian casualties dropped significantly.170 After sporadic fighting in the Donbass region, despite a ceasefire agreement,171 Ukrainian President Volodymyr Zelensky urged Russian President Vladimir Putin to join renewed peace talks.172 Talks took place in Paris in December. As a result of these talks, Ukraine and Russia agreed to implement a ceasefire agreement and to reopen a Russia-Europe gas pipeline leading through Ukraine.

165 Lederer E (2019) UN says deal reached on committee for new Syria constitution. https://apnews.

com/d523bc8cba6849028b0c04a99d9956b0. Accessed 21 April 2020. Press (2019) UN Envoy Speaks of ‘Solid Progress’ After Meetings in Syria. https://www.voanews.com/middle-east/un-envoy-speaks-solid-progress-after-meetingssyria. Accessed 21 April 2020; UN News (2019) UN chief announces progress on committee to shape Syria’s political future. https://news.un.org/en/story/2019/09/1047092. Accessed 21 April 2020. 167 Bibbo B (2019) Long-awaited Syria constitutional committee meets for first time. https://www. aljazeera.com/news/2019/10/long-awaited-syrian-constitutional-committee-meets-time-191030 151424363.html. Accessed 21 April 2020. 168 UN General Assembly (2019) Human Rights Council: Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, UN Doc. A/HRC/42/51, para 21; Syrian Observatory for Human Rights 2020. 169 Amnesty International 2019b. 170 Human Rights Watch 2020i. 171 Reuters (2019) Ukraine calls for more peace talks after four die in eastern Donbass. https:// www.reuters.com/article/us-ukraine-crisis-casualties/shelling-kills-four-ukrainian-soldiers-in-eas tern-donbass-idUSKCN1UW15D. Accessed 23 April 2020. 172 Polityuk P, Rodionov M (2019) Resume peace talks, Ukraine’s Zelenskiy urges Putin after four soldiers killed. https://www.reuters.com/article/us-ukraine-crisis-russia-zelenskiy/ukraines-zelens kiy-says-called-putin-after-four-soldiers-killed-idUSKCN1UX0UU?il=0. Accessed 23 April 2020. 166 Associated

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However, no agreement could be reached about a complete withdrawal of Russianbacked troops from eastern Ukraine and local elections in the region.173 Russia also returned three Ukrainian vessels that it had seized off the coast of Crimea.174 In October, Ukraine signed an agreement with pro-Russian separatists that provided for a withdrawal of troops and local elections under the supervision of the Organization for Security and Co-operation in Europe. The agreement also grants the region a special constitutional status once Ukraine regains control of its borders with Russia.175 Following the agreement, both sides commenced their withdrawal, which was completed in November.176 In September, Ukraine and Russia exchanged 35 prisoners each,177 and in December Ukraine and pro-Russian NSAGs exchanged another 200 prisoners.178 Russia continued to build up military infrastructure, including troops, aircraft and weapons in Crimea, which was annexed by Russia in 2014.179 Between January and May, attacks on schools tripled compared to the same period in 2018.180 Against this background, Ukraine signed the Safe Schools Declaration,181 “[a]n inter-governmental political commitment to protect students, teachers, schools, and universities from the worst effects of armed conflict”.182 In March, Ukraine imposed sanctions on 294 legal entities and 848 individuals connected to the construction of the Kerch Strait bridge between Russia and Crimea, as well as to the detention of two Ukrainian naval vessels and their crew

173 BBC News (2019) Ukraine and Russia agree to implement ceasefire. https://www.bbc.com/news/ world-europe-50713647. Accessed 23 April 2020. 174 Kiselyova M, Zinets N (2019) Russia hands back captured naval ships to Ukraine before summit. https://www.reuters.com/article/us-ukraine-crisis-russia/russia-hands-back-captured-naval-shipsto-ukraine-before-summit-idUSKBN1XS13Z. Accessed 23 April 2020. 175 Deutsche Welle (2019) Ukraine signs key agreement with pro-Russia separatists. https:// www.dw.com/en/ukraine-signs-key-agreement-with-pro-russia-separatists/a-50669547. Accessed 23 April 2020. 176 Radio Free Europe (2019) Ukrainian Forces, Separatists Complete Pullback From Frontline Area. https://www.rferl.org/a/ukrainian-forces-separatists-complete-pullback-from-frontline-area/ 30264971.html. Accessed 23 April 2020. 177 Gershkovich E (2019) Signalling Readiness for Thaw, Russia and Ukraine Swap Prisoners. https://www.themoscowtimes.com/2019/09/07/signaling-readiness-for-thaw-russia-and-ukr aine-swap-prisoners-a67090. Accessed 23 April 2020. 178 Human Rights Watch 2020i; Radio Free Europe (2019) Ukraine, Russia-Backed Separatists Complete Prisoner Swap. https://www.rferl.org/a/ukraine-separatists-prisoner-swap-zelenskiy-moc sow/30349771.html. Accessed 23 April 2020. 179 Tucker P (2019) EXCLUSIVE: US Intelligence Officials and Satellite Photos Detail Russian Military Buildup on Crimea. https://www.defenseone.com/threats/2019/06/exclusive-satellite-pho tos-detail-russian-military-buildup-crimea/157642/. Accessed 23 April 2020. 180 Human Rights Watch 2020i. 181 Ibid. 182 Global Coalition to Protect Education from Attack 2020.

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by Russia near the Kerch Strait in November 2018.183 Russian President Vladimir Putin signed a series of decrees that would allow residents of annexed Crimea, rebelcontrolled Donetsk and Luhansk regions as well as citizens of Iraq, Yemen, Syria and Afghanistan who were born in Russia during the Soviet era, to obtain a Russian passport in a simplified procedure.184 A total of 44,898 passports were issued to Ukrainians in the first half of 2019.185 These decisions were criticised as “highly provocative” and an “assault on Ukraine’s sovereignty and territorial integrity” by the US,186 and a move that “goes against the spirit and aims of the Minsk agreement” by the EU.187 Ukraine also offered to issue Ukrainian citizenship to Russians in danger of political persecution and individuals who fought on Ukraine’s side in the conflict in eastern Ukraine.188 Russia continued to apply its laws in Crimea in violation of IHL.189 In response to the downing of Malaysia Airline flight MH17 in 2014, Dutch prosecutors announced that they had gathered sufficient evidence to prove “that Russia provided the missile launcher.”190 In June, they also announced that they will charge four suspects before a Dutch court for “transporting the missile system used

183 Radio Free Europe (2019) Ukraine Imposes Sanctions On Russians Over Kerch Bridge, Seizure

Of Naval Vessels. https://www.rferl.org/a/ukraine-imposes-sanctions-on-russians-over-kerch-bri dge-seizure-of-naval-vessels/29832844.html. Accessed 23 April 2020. 184 Soldatkin V (2019) Putin expands list of Ukrainians, others eligible for fast-track Russian passports. https://www.reuters.com/article/us-ukraine-crisis-putin-passports/putin-expands-list-ofon-fast-tracked-russian-passports-for-ukrainians-idUSKCN1S73KO. Accessed 23 April 2020. 185 UNIAN (2019) Russia issues almost 45,000 passports to Ukrainians in H1 2019. https://www. unian.info/world/10633995-russia-issues-almost-45-000-passports-to-ukrainians-in-h1-2019. html. Accessed 23 April 2020. 186 UNIAN (2019) U.S. condemns Putin’s decree on Russian passports in Donbas. https://www. unian.info/politics/10530225-u-s-condemns-putin-s-decree-on-russian-passports-in-donbas.html. Accessed 23 April 2020. 187 Cook L (2019) EU slams Russia’s citizenship move as new attack on Ukraine’s sovereignty. https://www.theglobeandmail.com/world/article-eu-slams-russias-citizenship-moveas-new-attack-on-ukraines/. Accessed 23 April 2020. 188 Reuters (2019) Ukraine’s president offers citizenship to Russian political refugees. https://www. reuters.com/article/us-ukraine-russia-citizenship/ukraines-president-offers-citizenship-to-russianpolitical-refugees-idUSKCN1V310G. Accessed 23 April 2020. 189 Human Rights Watch 2020i. 190 Reuters (2019) Evidence shows Russia supplied missile used to shoot down MH17: investigator. https://www.reuters.com/article/us-ukraine-crisis-mh17-russia/evidence-shows-russia-sup plied-missile-used-to-shoot-down-mh17-investigator-idUSKCN1TK1ID. Accessed 23 April 2020. For open-source investigations on the downing of MH17, see reports on https://www.bellingcat. com/tag/mh17/.

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to down the Malaysia Airlines flight.”191 The trial is set to commence in March 2020 before a high security chamber of the Hague District Court.192

8.1.15 Yemen The conflict in Yemen did not come to an end in 2019. A 2018 ceasefire agreement that foresaw troop withdrawals and the opening of humanitarian corridors193 stalled and was violated at times.194 In one instance, members of the Houthi rebel group, backed by Iran, attacked a convoy carrying UN representatives, Yemeni government officials, and an engineering team responsible for surveying the ceasefire and for demining areas.195 To move forward, representatives of the Yemeni government and the Houthi rebels met on a UN ship in the Red Sea to discuss the stalled agreement.196 The talks concluded with an agreement under which Houthi forces agreed to withdraw from the two harbour cities Saleef and Ras Isa. In a second step, the Houthis agreed to withdraw from Hodeidah port once government forces were to remove their posts outside Hodeidah city.197 However, amid alleged preparations for an assault on Hodeidah, air strikes in the Hajjah province, and a military take-over of parts of the formerly rebelcontrolled Saada province,198 only one month later the Houthi group announced that it would be ready to strike Saudi Arabia and the UAE, the backers of the internationally

191 NL Times (2019) Four Suspects to be Prosecuted for MH 17 in Netherlands Next Year. https:// nltimes.nl/2019/06/19/four-suspects-prosecuted-mh17-netherlands-next-year. Accessed 23 April 2020. The four suspects indicted, three Russian citizens and one Ukrainian, are Sergey Dubinskiy, at the time of the downing head of the intelligence service of the so-called Donetsk People’s Republic (DNR), Oleg Pulatov, his deputy, Igor Girkin, the DNR ‘Minister of Defense’, and Leonid Kharchenko, head of a battalion active in the area from where the missile was fired. For more information, see below Sect. 8.2.3.22. 192 For an overview of the trial, including recent developments and a live stream of the hearings, see https://www.courtmh17.com/en. 193 See Roithmaier et al. 2019, p 197. 194 Al Jazeera (2019) Yemen government, Houthi rebels meet on UN ship to discuss truce. https:// www.aljazeera.com/news/2019/02/yemen-government-houthi-rebels-meet-ship-discuss-truce-190 203140748595.html. Accessed 24 April 2020. 195 Arab News (2019) Houthis open fire on UN bomb safety team in Yemen. https://www.arabnews. com/node/1444231/middle-east. Accessed 24 April 2020. 196 Al Jazeera (2019) Yemen government, Houthi rebels meet on UN ship to discuss truce. https:// www.aljazeera.com/news/2019/02/yemen-government-houthi-rebels-meet-ship-discuss-truce-190 203140748595.html. Accessed 24 April 2020. 197 El Yaakoubi A (2019) Yemen’s Houthis to quit two ports Monday under peace deal: sources. https://www.reuters.com/article/us-yemen-security/yemens-houthis-to-quit-two-ports-mondayunder-peace-deal-sources-idUSKCN1QD0FG. Accessed 24 April 2020. 198 Middle East Monitor (2019) Yemen army controls areas in Houthi stronghold of Saada. https://www.middleeastmonitor.com/20190318-yemen-army-controls-areas-in-houthi-strongholdof-saada/. Accessed 24 April 2020.

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recognised government.199 Despite the threat, the Houthi rebels commenced their withdrawal from all three cities as agreed.200 A new round of talks on the withdrawal from Hodeidah was held in July and concluded with a general agreement to enforce the ceasefire agreement.201 Nonetheless, fighting continued throughout the year. The Saudi-led coalition in support of the internationally recognised government targeted Houthi elements202 as well as elements of the Yemeni branch of IS.203 The Houthi rebels repeatedly targeted civilian and military airports as well as other targets, including civilians, in Saudi Arabia and Yemen, at times with the use of drones.204

199 Reuters

(2019) Yemen’s Houthis say ready to strike Riyadh, Abu Dhabi if coalition moves on Hodeidah. https://www.reuters.com/article/us-yemen-security/yemens-houthis-say-ready-tostrike-riyadh-abu-dhabi-if-coalition-moves-on-hodeidah-idUSKCN1QY0IM. Accessed 24 April 2020. 200 Al Jazeera (2019) Houthi withdrawal from Yemen ports going according to plan: UN. https:// www.aljazeera.com/news/2019/05/houthi-withdrawal-yemen-ports-plan-190512182217520.html. Accessed 24 April 2020; UN News (2019) UN monitoring team in Yemen verifies pullout of armed forces from crucial port zones. https://news.un.org/en/story/2019/05/1038461. Accessed 24 April 2020. 201 Al Jazeera (2019) Yemen rivals meet on board vessel for talks on Hodeidah pullback. https://www.aljazeera.com/news/2019/07/yemen-rivals-meet-onboard-vessel-talks-hod eidah-pullback-190715081112596.html. Accessed 24 April 2020; United Nations (2019) Daily Press Briefing by the Office of the Spokesperson for the Secretary-General. https://www.un.org/ press/en/2019/db190715.doc.htm. Accessed 24 April 2020. 202 Al Jazeera (2019) Saudi-UAE coalition carries out deadly air raids on Yemen’s Sanaa. https:// www.aljazeera.com/news/2019/05/saudi-uae-coalition-carries-deadly-air-raids-yemen-sanaa-190 516072613862.html. Accessed 24 April 2020; Reuters (2019) Saudi-led coalition starts operation to target military positions in Sanaa. https://www.reuters.com/article/us-yemen-security-saudi/saudiled-coalition-starts-operation-to-target-military-positions-in-sanaa-idUSKCN1UF00Y. Accessed 24 April 2020; Al Jazeera (2019) At least five killed in blast targeting military parade in Yemen. https://www.aljazeera.com/news/2019/12/killed-blast-targeting-military-parade-yemen-191229 090453294.html. Accessed 24 April 2020. 203 Fahim K, Ryan M (2019) Saudi Arabia announces capture of an ISIS leader in Yemen in U.S.-backed raid. https://www.washingtonpost.com/world/saudi-arabia-announces-capture-of-isl amic-state-leader-in-yemen-in-us-backed-raid-backed/2019/06/25/79734ca2-976a-11e9-9a16-dc5 51ea5a43b_story.html. Accessed 24 April 2020. 204 See, e.g., BBC News (2020) Yemen war: Death toll in attack on military base rises to 111. https://www.bbc.com/news/world-middle-east-51166943. Accessed 24 April 2020; El Sirgany (2019) Houthi rebels show video of alleged attack on Saudi and Yemeni forces. https://edition. cnn.com/2019/09/29/middleeast/houthi-attack-video-allegations-intl-hnk/index.html. Accessed 24 April 2020; Al Jazeera (2019) Yemen’s Houthis claim new attack on Saudi Arabia’s Abha airport. https://www.aljazeera.com/news/2019/06/yemen-houthis-claim-attack-saudi-arabia-abhaairport-190617012821518.html. Accessed 24 April 2020; Reuters (2019) Yemen’s Houthis hit

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In July, the UAE announced that it would reduce the number of troops present in the country.205 However, in August, the Southern Transitional Council (STC), a coalition member opposed to the Houthi rebels but attempting to establish self-rule for Southern Yemen, took control of military camps and the presidential palace in Aden with the support of the UAE.206 This move fuelled concerns of tensions within the coalition and an multiplications of conflicts.207 Though a ceasefire agreement was quickly reached,208 intensive fighting continued and the rupture between Saudi Arabia and the UAE persisted.209 In October, a power-sharing deal was reached,

Saudi airport, killing one, wounding 21: Saudi-led coalition. https://www.reuters.com/article/usyemen-security/yemens-houthis-say-they-launched-drone-attacks-on-two-saudi-airports-idUSKC N1TO0SH. Accessed 24 April 2020; Reuters (2019) Yemen’s Houthis attack military positions at Saudi Abha and Jizan airports: TV. https://www.reuters.com/article/us-yemen-security-saudi-att acks/yemens-houthis-attack-military-positions-at-saudi-abha-and-jizan-airports-tv-idUSKCN1T Q2OS. Accessed 24 April 2020; Reuters (2019) Saudi-led coalition intercepted Houthi drone launched toward residential area. https://www.reuters.com/article/us-yemen-security-saudi-hou this/saudi-led-coalition-intercepted-houthi-drone-launched-toward-residential-area-idUSKCN1T Q2UG. Accessed 24 April 2020; Raghavan S (2019) Yemeni drone strikes Saudi airport, injuring 9. https://www.washingtonpost.com/world/middle_east/yemeni-drone-strikes-saudi-airport-injuring9/2019/07/02/a9cf1c3e-9c9a-11e9-a1fc-7337aeb9179e_story.html?utm_term=.5f2823ac66f5. Accessed 24 April 2020; Michael M, Al-Haj A (2019) Rebel missile, suicide attack kill dozens in Yemen’s port. https://apnews.com/6f1e4bc9e50d47458ba067b4cfea6d77. Accessed 24 April 2020. For a comprehensive overview of drone attacks by the Houthi rebels on Saudi Arabia, see Council on Foreign Relations 2020c, Alerts. 205 Nissenbaum D (2019) U.A.E. Moves to Extricate Itself From Saudi-Led War in Yemen. https://www.wsj.com/articles/u-a-e-moves-to-extricate-itself-from-saudi-led-war-in-yemen-115 62094272. Accessed 24 April 2020. 206 Al Jazeera (2019) Yemeni official: UAE won in Aden, Saudi silent over ‘slaughter’. https:// www.aljazeera.com/news/2019/08/yemeni-official-uae-won-aden-saudi-silent-slaughter-190811 144214211.html. Accessed 20 April 2020. 207 International Crisis Group 2019b. 208 Reuters (2019) Yemen’s southern separatists agree to Saudi call for ceasefire in Aden. https://www.reuters.com/article/us-yemen-security-ceasefire/yemens-southern-separatistsagree-to-saudi-call-for-ceasefire-in-aden-idUSKCN1V00T4. Accessed 24 April 2020. 209 Beaumont P (2019) ‘Scores’ killed in Yemen as UAE-backed fighters seize parts of Aden. https:// www.theguardian.com/global-development/2019/aug/14/scores-killed-in-yemen-as-uae-backedfighters-seize-parts-of-aden. Accessed 24 April 2020; Faulconbridge G (2019) Southern Yemeni separatists tell Saudi Arabia: evict Islah or lose the war. https://www.reuters.com/article/us-yemensecurity-south/southern-yemeni-separatists-tell-saudi-arabia-evict-islah-or-lose-the-war-idUSKC N1V417X. Accessed 24 April 2020; Reuters (2019) Yemeni separatists extend control in south, Saudi-led forces strike capital. https://www.reuters.com/article/us-yemen-security-sanaa/clasheshit-yemens-south-saudi-led-forces-strike-capital-idUSKCN1V91UG. Accessed 24 April 2020; Al

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returning control of government buildings in Aden to the internationally recognised government and integrating STC forces into the government armed forces.210 Al Qaeda remained a threat in Yemen, targeting military as well as civilian targets.211 The UN concluded that various parties to the conflict may have committed several war crimes, “including through airstrikes, indiscriminate shelling, snipers, landmines, as well as arbitrary killings and detention, torture, sexual and gender-based violence, and the impeding of access to humanitarian aid”.212 An Amnesty International report detailed how in particular the UAE “illicitly diverted [weapons] to unaccounted militias in Yemen.213 In September, the Houthi rebels released a total of 300 detainees.214 In November, the Saudi-led coalition also released 200 prisoners.215 The ongoing conflict worsened the humanitarian situation in Yemen in 2019. The Houthi rebels have been accused of limiting access to critical food reserves and diverting international aid.216 In June, the WFP announced that it would therefore suspend its activities in Yemen, which affected more than 850,000 people.217 After an agreement was reached between the WFP and Houthi rebel representatives, the Jazeera (2019) UAE: ‘Terrorist militias’ targeted as fractures with Saudi grow. https://www.alj azeera.com/news/2019/08/uae-targets-terrorist-militias-fractures-saudi-grow-190830080042582. html. Accessed 24 April 2020; Middle East Eye (2019) Yemeni secessionists seize momentum and push back Hadi’s forces. https://www.middleeasteye.net/news/south-yemen-secessionists-seizemomentum-push-back-hadi-forces-aden. Accessed 24 April 2020; Mukhashaf M (2019) Yemen government forces storm Aden, seize airport: residents, officials. https://www.reuters.com/article/ us-yemen-security/fighting-between-yemen-government-forces-separatists-restarts-in-aden-reside nts-idUSKCN1VI109. Accessed 24 April 2020. 210 France24 (2019) Yemen govt strikes power-sharing deal with southern separatists. https:// www.france24.com/en/20191025-yemen-govt-strikes-power-sharing-deal-with-southern-separa tists. Accessed 24 April 2020. 211 Al-Haj A (2019) Yemen officials: Al-Qaida kills at least 20 at military camp. https://apnews. com/9e13d75246714948aae733b67b92af98. Accessed 24 April 2020. 212 UN Human Rights Council (2019) Yemen: Collective failure, collective responsibility – UN expert report. https://www.ohchr.org/EN/HRBodies/HRC/Pages/NewsDetail.aspx?NewsID= 24937&LangID=E. Accessed 24 April 2020. See also Amnesty International 2019c. 213 Amnesty International 2019c. 214 UN News (2019) Yemen prisoner release boosts hopes of peace at last for war-weary civilians. https://news.un.org/en/story/2019/09/1048132. Accessed 24 April 2020. 215 Reuters (2019) Saudi-led coalition says it freed 200 Houthi prisoners. https://www.reuters.com/ article/us-yemen-security/saudi-led-coalition-says-it-freed-200-houthi-prisoners-idUSKBN1Y 01NX. Accessed 24 April 2020. 216 Al Jazeera (2019) Yemen food aid to feed millions at risk of rotting: UN. https://www.aljazeera. com/news/2019/02/yemen-food-aid-risk-rotting-190211174419940.html. Accessed 24 April 2020; BBC News (2019) Yemen war: UN appeals to Houthi rebels over aid. https://www.bbc.com/news/ world-middle-east-48360912. Accessed 24 April 2020; Al Jazeera (2019) UN: Yemen’s Houthi rebels blocking food for tens of thousands. https://www.aljazeera.com/news/2019/06/yemen-hou thi-rebels-block-food-tens-thousands-190625072632971.html. Accessed 24 April 2020. 217 Al Jazeera (2019) World Food Programme announces partial suspension of Yemen aid. https:// www.aljazeera.com/news/2019/06/world-food-programme-announces-partial-suspension-yemenaid-190621023229667.html. Accessed 24 April 2020.

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programme could be restarted.218 Despite a pledge of donors, mainly Saudi Arabia, the UAE, and the EU to contribute US Dollars (USD) 2.6 billion for humanitarian help,219 the UN in November announced it would have to close several humanitarian aid programmes as funding had “failed to materialize”.220 A UN Developments Programme study in April concluded that the war has reversed development in Yemen by 21 years.221 A total of 20 million people in Yemen are experiencing food insecurity, with ten million of them being at risk of famine.222 In the country, two million children are unable to attend school, with 3.7 million more at risk.223 More than 91,600 people, including more than 8,600 civilians, have been killed in the conflict since its outbreak in 2015.224

8.2 Tribunals and Courts 8.2.1 International Courts 8.2.1.1

International Criminal Court

The year 2019 proved an eventful year for the ICC. Much discussion about the Court concerned how to improve its operations moving forward into the future. This was particularly highlighted when in April four former Presidents of the Assembly of States Parties (ASP) to the Rome Statute of the International Criminal Court (Rome

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(2019) World Food Programme to resume food aid in Yemen’s Sanaa. https://www.reu ters.com/article/us-yemen-security-wfp/world-food-programme-to-resume-food-aid-in-yemenssanaa-idUSKCN1UZ0UM. Accessed 24 April 2020. 219 Deutsche Welle (2019) Yemen: Donors pledge $2.6 billion in humanitarian aid. https://www. dw.com/en/yemen-donors-pledge-26-billion-in-humanitarian-aid/a-47699966. Accessed 24 April 2020. 220 UN News (2019) Lack of funds forces UN to close down life-saving aid programmes in Yemen. https://news.un.org/en/story/2019/08/1044681. Accessed 24 April 2020. 221 UN Developments Programme (2019) Prolonged conflict would make Yemen the poorest country in the world, UNDP study says. https://www.undp.org/content/undp/en/home/news-cen tre/news/2019/Prolonged_conflict_would_make_Yemen_poorest_country_in_world_UNDP.html. Accessed 24 April 2020. 222 Human Rights Watch 2020j. 223 Al Jazeera (2019) UNICEF says two million children out of school in Yemen. https://www.aljaze era.com/news/2019/09/unicef-million-children-school-yemen-190925084526786.html. Accessed 24 April 2020. 224 Magdy S (2019) Database says 91,600 killed in Yemen fighting since 2015. https://apnews.com/ b28a2bdb1b01413689e05a7204e6ea90. Accessed 24 April 2020; Yemen Data Project 2020.

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Statute)225 called for an independent assessment of the Court’s functioning.226 They expressed concern about the “growing gap between the unique vision captured in the Rome Statute […] and some of the daily work of the Court”, claiming that “the powerful impact of the Court’s central message is too often not matched by its performance as a judicial institution.”227 On 17 March, the withdrawal of the Republic of the Philippines from the Rome Statute came into effect.228 President Duterte announced the withdrawal one month after the Prosecutor of the ICC announced the opening of a preliminary examination into the situation in the Philippines in early 2018.229 The President of the ASP, O-Gon Kwon, expressed regret at the withdrawal of the Philippines, noting that “[e]ncouraging universal adherence to the Rome Statute is key in strengthening our collective efforts to promote accountability for atrocity crimes and the rule of law”.230 On 4 May, Malaysia deposited its instrument of accession to the Rome Statute.231 However, on 5 April the Malaysian Prime Minister, Tun Dr Mahathir Mohamad, announced Malaysia’s intention to withdraw this accession prior to its entry into force on 1 June, citing “political confusion” as the reason for this withdrawal.232 On 26 November the Republic of Kiribati deposited its instrument of accession to the Rome Statute, which will enter into force on 1 February 2020 making it the 123rd State Party to the Rome Statute.233 On 30 January the Defence Counsel for Germain Katanga applied to the Presidency of the ICC to reconsider its authorisation for new domestic proceedings to take place against Katanga in the Democratic Republic of the Congo (DRC).234 After serving the sentence of 12 years’ imprisonment ordered by the ICC for war crimes and a crime against humanity,235 Katanga has remained imprisoned in the DRC and 225 Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS

3 (entered into force 1 July 2002). Hussein P, Ugarte B, Wenaweser C, Intelman T (2019) The International Criminal Court needs fixing. https://www.atlanticcouncil.org/blogs/new-atlanticist/the-international-cri minal-court-needs-fixing/#.XMDuqVv0rDo.twitter. Accessed 1 April 2020. 227 Ibid. 228 Coalition for the ICC (2019) The Philippines’ membership in the ICC comes to an end. http:// www.coalitionfortheicc.org/news/20190315/philippines-leaves-icc. Accessed 1 April 2020. 229 Ibid. 230 ICC (2019) President of the Assembly of States Parties regrets withdrawal from the Rome Statute by the Philippines. https://www.icc-cpi.int/Pages/item.aspx?name=pr1443. Accessed 1 April 2020. 231 ICC (2019) President of the Assembly of States Parties welcomes Malaysia’s accession to the Rome Statute. https://www.icc-cpi.int/Pages/item.aspx?name=pr1440. Accessed 1 April 2020. 232 Prime Minister’s Office of Malaysia (2019) Malaysia to Withdraw from Rome Statute. https:// www.pmo.gov.my/2019/04/malaysia-to-withdraw-from-rome-statute/. Accessed 1 April 2020. 233 Coalition for the ICC (2019) Kiribati accedes to the Rome Statute, on route to become the 123rd member of the ICC. http://www.coalitionfortheicc.org/news/20191128/kiribati-accedes-rome-sta tute. Accessed 1 April 2020. 234 ICC, Prosecutor v Germain Katanga, Defence Application for Reconsideration of the Presidency Decision pursuant to article 108(1) of the Rome Statute, 30 January 2019, Case No. ICC-01/0401/07. 235 ICC 2017. 226 Al

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faces trial there.236 In April 2016, the Presidency authorised the commencement of these proceedings.237 The Presidency issued a decision on 26 June rejecting the request to revoke its authorisation, finding that its approval of the prosecution of Katanga in the DRC could only be reconsidered when new arguments or facts show that it “undermines certain fundamental principles or procedures of the Rome Statute or otherwise affects the integrity of the Court.”238 In July the Office of the Prosecutor (OTP) issued its Strategic Plan for 2019–2021, with Prosecutor Fatou Bensouda stating that “[t]his Strategic Plan charts a promising and forward looking course for the Office in the next strategic period, and represents our ongoing commitment to the effective and efficient discharge of our mandate under the Rome Statute and to continuous improvement”.239 The plan identifies six strategic goals related to: (1) success in court; (2) speed, efficacy and effectiveness; (3) enhanced strategies for cooperation on arrests; (4) a refined approach to victims with a particular focus on victims of sexual and gender-based violence and children; (5) effective, responsible and accountable resource management; and (6) strengthening its ability to close the impunity gap.240 The eighteenth session of the ASP was held from 2–6 December 2019. At this session, the ASP adopted seven resolutions by consensus on the topics of amendments to Article 8 of the Rome Statute, cooperation, the nomination and election of judges, the proposed programme budget for 2020, the remuneration of judges, review of the ICC and the Rome Statute system, and strengthening the ICC and the ASP.241 Notably, the ASP approved a Swiss proposal enabling the ICC to prosecute the war crime of intentional starvation of civilians in non-international armed conflicts.242 Previously, starvation of civilians was only a war crime under the Rome Statute if committed during international armed conflicts. The amendment will only apply to States Parties who choose to ratify it.243 236 ICL

Media Review (2019) ICC Rejects Katanga’s Reconsideration Request, Refuses to Revoke Authorization for DRC Proceedings. http://www.iclmediareview.com/27-june-2019-icc-rejects-kat angas-reconsideration-request-refuses-to-revoke-authorization-for-drc-proceedings-and-un-highcommissioner-for-human-rights-says-suspected-isis-fighters-mus. Accessed 1 April 2020. 237 ICC, Prosecutor v Germain Katanga, Decision Pursuant to Article 108(1) of the Rome Statute, 7 April 2016, Case No. ICC-01/04-01/07-3679. 238 ICC, Prosecutor v Germain Katanga, Decision on ‘Defence Application for Reconsideration of the Presidency “Decision pursuant to article 108(1) of the Rome Statute”’, 26 June 2019, Case No. ICC-01/04-01/07, para 26. For more information, see below Sect. 8.2.3.10. 239 ICC (2019) The Office of the Prosecutor issues its Strategic Plan for 2019–2021. https://www. icc-cpi.int/Pages/item.aspx?name=20190726-otp-sp. Accessed 1 April 2020. 240 ICC The Office of the Prosecutor 2019b. 241 ICC (2019) Assembly of States Parties concludes its eighteenth session. https://asp.icc-cpi.int/ en_menus/asp/press%20releases/Pages/PR1505.aspx. Accessed 1 April 2020; ICC Assembly of States Parties 2019a. 242 Swiss Info (2019) Swiss proposal broadens ICC war crimes definition. https://www.swissinfo. ch/eng/intentional-starvation-of-civilians_swiss-proposal-broadens-icc-war-crimes-definition/454 19434. Accessed 1 April 2020; ICC Assembly of States Parties 2019b. 243 Heller 2019.

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Controversy ensued in 2019 with respect to the composition of some chambers of the Court due to the participation of certain judges. A number of attempts were made to disqualify judges from hearing particular cases. In January, Judge Kuniko Ozaki sent a request to the ICC Presidency seeking to resign as a full-time judge and continue in her capacity part-time.244 Following this, on 18 February, Judge Ozaki informed the Presidency of the ICC that she had been appointed as the Japanese Ambassador to Estonia.245 On 19 March, a majority of the Plenary of Judges of the ICC voted that Judge Ozaki’s request to continue part-time “was not incompatible with the requirements of judicial independence” contained in the Rome Statute.246 Nevertheless, on 18 April, the government of Japan accepted the resignation of Judge Ozaki as Japanese Ambassador to Estonia.247 On 21 May, the Defence Counsel representing Bosco Ntaganda requested the disqualification of Judge Ozaki pursuant to Article 40(2) of the Rome Statute on the basis of her appointment as Ambassador.248 In the request, it was argued that Judge Ozaki’s concurrent service as a diplomatic Ambassador for Japan “was incompatible with her judicial independence”249 and that a “Judge who is not independent cannot be reasonably perceived as being impartial”.250 The request highlighted that Judge Ozaki’s subsequent resignation from her Ambassadorial post did not restore the appearance of her independence or impartiality, given the belated timing of her resignation, her failure to acknowledge that the resignation is required by the dictates of judicial independence and the negative impact on her interests because of the resignation.251 In a decision of 20 June, the Plenary of Judges of the ICC rejected a request to disqualify Judge Ozaki from the proceedings against Bosco Ntaganda.252 The Plenary of Judges found that “the Disqualification Request fails to demonstrate that the circumstances of Judge Ozaki’s tenure as Ambassador of Japan to Estonia, which had been authorised pursuant to Article 40(4) of the Statute, satisfies the high threshold necessary to rebut the presumption of impartiality.”253 On 10 April, the Defence Counsel on behalf of Thomas Lubanga, who at that time was appealing the reparations award made against him, petitioned the Court to disqualify Judge Perrin de Brichambaut from the Chamber dealing with Lubanga’s

244 ICC

2019e, Annex 1, para 3. Annex 1, para 5. 246 Ibid., Annex 1, para 8. 247 ICC, Prosecutor v Bosco Ntaganda, Notification Concerning Judge Kuniko Ozaki, 1 May 2019, Case No. ICC-01/04-02/06, para 3. 248 ICC, Prosecutor v Bosco Ntaganda, Public Redacted Version of “Request for Disqualification of Judge Ozaki”, 21 May 2019, Case No. ICC-01/04-02/06. 249 Ibid., para 36. 250 Ibid., para 38. 251 Ibid., paras 43–51. 252 ICC, Prosecutor v Bosco Ntaganda, Notification of the Decision of the Plenary of Judges on the Defence Request for the Disqualification of Judge Kuniko Ozaki from the case of The Prosecutor v Bosco Ntaganda, 20 June 2019, Case No. ICC-01/04-02/06, para 55. 253 Ibid., para 55. 245 Ibid.,

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case.254 It was argued that Judge Perrin de Brichambaut had made definitive statements about the number of victims eligible for reparations and had demonstrated prejudgment in making statements about the methodology used to determine the number of eligible victims before all relevant material and submissions had been put before the Court, raising questions as to his impartiality.255 Moreover, it was argued that Judge Perrin de Brichambaut had asserted that Lubanga would pressure Ituri communities to prevent victims from seeking reparations, thereby allegedly demonstrating prejudice.256 In a decision of 28 June, an absolute majority of the Plenary of Judges of the ICC dismissed this application, stating that the claims made did not meet the high threshold in order to rebut the presumption that judicial officers are impartial.257 On 14 June, Defence Counsel for Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud requested the disqualification of Judge Perrin de Brichambaut on the basis that he continued to engage in a variety of professional activities aimed at advancing the political and military interests of France.258 In a notification of 2 July, the Plenary of Judges of the ICC dismissed the application,259 with a reasoned decision being issued on 8 July elaborating that Judge Perrin de Brichambaut’s activities would not “lead a reasonable fair-minded observer to consider that he has a continuing involvement in French political and military affairs such that an appearance of a lack of impartiality might arise”.260 On 11 July, the Defence Counsel also requested the disqualification of Pre-Trial Chamber I (PTC I) from Al Hassan’s case on the basis of the participation of Judge Reine Alapini-Gansou. The request highlighted concerns with Judge AlapiniGansou’s former positions as Commissioner for the African Commission on Human and People’s Rights and Head of the Human Rights Component of the Mission de l’Union africaine pour le Mali et le Sahel, allegedly affecting her impartiality in the proceedings against Al Hassan on the basis that she had previously been involved 254 ICC, Prosecutor v Thomas Lubanga Dyilo, Public Redacted Version of “Urgent Defense Motion for the Recusal of Judge Marc Perrin de Brichambaut”, 10 April 2019, Case No. ICC-01/04-01/06. 255 ICC, Prosecutor v Thomas Lubanga Dyilo, Notification of the Decision of the Plenary of Judges on the ‘Requete urgente de la Defense aux fins de recusation de M. le Juge Marc Perrin de Brichambaut’, Public Annex, 28 June 2019, Case No. ICC-01/04-01/06, paras 12–15. 256 Ibid., para 15. 257 Ibid., paras 36, 39; International Justice Monitor (2019) Two Petitions for Disqualification of Judge Perrin de Brichambaut Dismissed. https://www.ijmonitor.org/2019/07/two-petitions-for-dis qualification-of-judge-brichambaut-dismissed/. Accessed 1 April 2020. 258 ICC, Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, Public Redacted Version of the Request for Disqualification of Judge Marc Perrin de Brichambaut, 14 June 2019, Case No. ICC-01/12-01/18. 259 ICC, Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, Notification concerning the ‘Request for disqualification of Judge Mar Perrin de Brichambaut’ dated 14 June 2019, 3 July 2019, Case No. ICC-01/12-01/18. 260 ICC, Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, Notification of the Decision of the Plenary of Judges on the ‘Request for disqualification of Judge Marc Perrin de Brichambaut’ dated 14 June 2019, Public Annex I, 8 July 2019, Case No. ICC-01.12-01/18, para 50.

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in proceedings against the defendant “in an investigative and advisory capacity”.261 In a decision of 12 September, the Plenary of Judges found that “that a reasonable well-informed and fair-minded observer, taking into consideration all relevant information, would not conclude that Judge Alapini-Gansou has previously been involved in an investigative or advisory capacity in the Al Hassan case, nor would such observer conclude that her appearance of impartiality is undermined.”262

Preliminary Examinations and Investigations In 2019, the OTP continued ongoing preliminary examinations of situations in Colombia, Guinea, Iraq/UK, Nigeria, Palestine, the Philippines, Ukraine, and Venezuela.263 Afghanistan Much controversy surrounding the ICC’s activities with respect to the situation in Afghanistan arose in 2019. In April, Chief Prosecutor Fatou Bensouda’s attempts to investigate alleged war crimes committed in Afghanistan led the US to revoke her visa.264 Public outcry also ensued later in the year in response to the Pre-Trial Chamber’s decision not to allow the OTP to continue with an investigation of this situation. In November 2017, the OTP completed the preliminary investigation into the situation in Afghanistan, finding that there was a reasonable basis to proceed to a full investigation,265 and requested the Pre-Trial Chamber for authorisation to commence this investigation.266 In April 2019, Pre-Trial Chamber II (PTC II) unanimously

261 ICC,

Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, Public redacted version of Urgent Request for the Disqualification of Pre-Trial Chamber I, 11 July 2019, Case No. ICC-01/12-01/18, paras 27–32. 262 ICC, Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, Notification of the Decision of the Plenary of Judges on the ‘Urgent Request for Disqualification of PreTrial Chamber I’, 12 September 2019, Case No. ICC-01/12-01/18, para 41; International Justice Monitor (2019) Judges Oppose Defense Request to Disband Chamber Handling Al Hassan Case. https://www.ijmonitor.org/2019/08/judges-oppose-defense-request-to-disband-chamber-han dling-al-hassan-case/. Accessed 1 April 2020. 263 ICC The Office of the Prosecutor 2019a. 264 Simons M and Specia M (2019) U.S. Revokes Visa of I.C.C. Prosecutor Pursuing Afghan War Crimes. https://www.nytimes.com/2019/04/05/world/europe/us-icc-prosecutor-afghanistan. html. Accessed 1 April 2020. 265 ICC (2017) The Prosecutor of the International Criminal Court, Fatou Bensouda, requests judicial authorisation to commence an investigation into the Situation in the Islamic Republic of Afghanistan. https://www.icc-cpi.int/Pages/item.aspx?name=171120-otp-stat-afgh. Accessed 1 April 2020. 266 ICC, Situation in the Islamic Republic of Afghanistan, Public Redacted Version of “Request for authorisation of an investigation pursuant to article 15”, 20 November 2017, Case No. ICC-02/17.

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rejected this request.267 It considered the significant time that had elapsed between the crimes and the request, the “scarce cooperation” during the preliminary examination, and the likelihood of whether evidence and witnesses would be still available as all relevant to its ultimate finding that “the current circumstances of the situation in Afghanistan are such as to make the prospects for a successful investigation and prosecution extremely limited” and therefore “an investigation into the situation in Afghanistan at this stage would not serve the interests of justice”.268 PTC II also highlighted that the nature of the crimes and the context in Afghanistan mean the investigation would require significant resources which would have to be redirected from other situations with greater prospects of leading to trials.269 On 31 May, Judge Mindua released a concurring and separate opinion also rejecting the Prosecutor’s request to open an investigation into the situation in Afghanistan.270 In June, the Prosecutor sought leave to appeal this rejection.271 Notably, the Legal Representatives of Victims (LRV) also filed a notice of appeal with the Appeals Chamber,272 with one also seeking leave to appeal from PTC II.273 The Prosecutor submitted observations indicating that the Appeals Chamber should dismiss the victims’ notices of appeal and that PTC II should not consider the victims ‘parties’ to these proceedings with standing to appeal,274 and further that the decision to 267 ICC,

Situation in the Islamic Republic of Afghanistan, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan, 12 April 2019, Case No. ICC-02/17 (Afghanistan decision); ICC (2019) ICC judges reject opening of an investigation regarding Afghanistan situation. https://www.icc-cpi.int/Pages/ item.aspx?name=pr1448. Accessed 1 April 2020. 268 Afghanistan decision, above 267, paras 91, 96. 269 Ibid., para 95. 270 ICC, Situation in the Islamic Republic of Afghanistan, Concurring and Separate Opinion of Judge Antoine Kesia-Mbe Mindua, 31 May 2019, Case No. ICC-02/17. 271 ICC, Situation in the Islamic Republic of Afghanistan, Request for Leave to Appeal the “Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan”, 7 June 2019, Case No. ICC-02/17; Reuters (2019) ICC prosecutor presses for Afghanistan crimes investigation. https://www.reuters.com/article/us-icc-afghan istan/icc-prosecutor-presses-for-afghanistan-crimes-investigation-idUSKCN1T81X1. Accessed 1 April 2020. 272 ICC, Situation in the Islamic Republic of Afghanistan, Victims’ Notice of Appeal of the “Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan”, 10 June 2019, Case No. ICC-02/17-38; ICC, Situation in the Islamic Republic of Afghanistan, Victims’ Notice of Appeal of the ‘Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan’, 10 June 2019, Case No. ICC-02/17-36; ICC, Situation in the Islamic Republic of Afghanistan, Notice of Appeal against the “Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan”, 12 June 2019, Case No. ICC-02/17-40. 273 ICC, Situation in the Islamic Republic of Afghanistan, Victims’ Request for Leave to Appeal the ‘Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan’, 10 June 2019, Case No. ICC-02/17-37. 274 ICC, Situation in the Islamic Republic of Afghanistan, Observations concerning Diverging Judicial Proceedings arising from the Pre-Trial Chamber’s Decision under Article 15, 12 June 2019, Case No. ICC-02/17, para 12.

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be appealed is not a decision in respect of jurisdiction or admissibility that can be appealed under Article 82(1)(a) of the Rome Statute.275 On 17 September, PTC II partially granted the Prosecutor’s request to appeal on the issues of whether there exists a necessity or possibility for a Pre-Trial Chamber to carry out an ‘interests of justice’ assessment, and, if this is answered in the affirmative, what the proper and relevant factors are that must or may be considered for such an assessment.276 A majority of PTC II (Judge Mindua dissenting) dismissed the victims’ request for leave to appeal.277 Appeals hearings commenced on 4–6 December.278 Bangladesh/Myanmar In 2019, the preliminary examination into Bangladesh/Myanmar was completed and closed.279 On 12 June, the Prosecutor filed a notification indicating her intent to request authorisation to open a formal investigation into the situation in Bangladesh and Myanmar,280 following on from the Pre-Trial Chamber decision of September 2018 finding that the Court has jurisdiction over the situation as one element of the crime of deportation had been committed in a State Party to the Rome Statute (Bangladesh).281 Following this, on 4 July the Prosecutor submitted her request for authorisation of an investigation into the situation.282 On 14 November, Pre-Trial Chamber III authorised the Prosecutor to proceed with an investigation of alleged

275 Ibid.,

paras 22–26. Situation in the Islamic Republic of Afghanistan, Decision on the Prosecutor and Victims’ Requests for Leave to Appeal the ‘Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan’, 17 September 2019, Case No. ICC-02/17, paras 36–39; ICC (2019) Afghanistan: ICC Pre-Trial Chamber II authorises Prosecutor to Appeal Decision Refusing Investigation. https://www.icc-cpi.int/Pages/item. aspx?name=pr1479. Accessed 1 April 2020. 277 Ibid., para 20. 278 Gallagher K, Reisch N (2019) ICC Holds Historic Hearings on U.S. Torture and Other Grave Crimes in Afghanistan. https://www.justsecurity.org/67843/icc-holds-historic-hearing-on-u-s-tor ture-and-other-grave-crimes-in-afghanistan/. Accessed 1 April 2020; Al Jazeera (2019) ICC judges ‘were wrong to reject Afghan probe’: Prosecutors. https://www.aljazeera.com/news/2019/12/iccjudges-wrong-reject-afghan-probe-prosecutors-191205221420695.html. Accessed 1 April 2020. 279 ICC The Office of the Prosecutor 2019a, para 18. 280 ICC The Office of the Prosecutor 2019c. 281 ICC, Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar, Decision on the “Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute”, 6 September 2018, Case No. ICC-RoC46(3)-01/18, para 73; ICC (2019) ICC Pre-Trial Chamber I rules that the Court may exercise jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh. https://www.icc-cpi.int/Pages/item.aspx?name=pr1403. Accessed 1 April 2020. 282 ICC, Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar, Request for Authorisation of an Investigation pursuant to Article 15, 4 July 2019, Case No. ICC01/19. 276 ICC,

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crimes within the jurisdiction of the Court committed against the Rohingya.283 The Prosecutor will now move forward with this investigation, stating it “will now focus its efforts on ensuring the pursuit and success of its independent and impartial investigation”.284 Comoros/Hellenic Republic/Kingdom of Cambodia In 2019, the protracted preliminary examination into the situation referred to the ICC by the Comoros finally made substantive progress. By way of background, on 6 November 2014, the Prosecutor decided to close the preliminary examination into the situation surrounding an attack against a humanitarian aid flotilla by Israeli armed forces in May 2010 on the basis that it was not of sufficient gravity to warrant ICC proceedings.285 In its 16 July 2015 decision, PTC I found that the Prosecutor had made material errors in making this determination and ordered her to reconsider her decision not to initiate an investigation.286 The Prosecutor appealed this decision,287 which was ultimately rejected by the Appeals Chamber in November 2015 since the decision was not one “with respect to […] admissibility” which would allow appeal under Article 82(1)(a) of the Rome Statute.288 In November 2017, the Prosecutor submitted her final decision, maintaining the position that there is “no reasonable basis to proceed with an investigation, since there is no reasonable basis to conclude that any potential case arising from the situation would be of sufficient gravity to be 283 ICC,

Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar, 14 November 2019, Case No. ICC-01/19. 284 ICC The Office of the Prosecutor (2019) Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, following judicial authorisation to commence an investigation into the Situation in Bangladesh/Myanmar. https://www.icc-cpi.int/Pages/item.aspx?name=20191122-otpstatement-bangladesh-myanmar. Accessed 1 April 2020. 285 ICC The Office of the Prosecutor (2014) Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on concluding the preliminary examination of the situation referred by the Union of Comoros: “Rome Statute legal requirements have not been met”. https://www.icc-cpi.int/ Pages/item.aspx?name=otp-statement-06-11-2014. Accessed 1 April 2020. 286 ICC, Situation on the registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, Decision on the request of the Union of the Comoros to review the Prosecutor’s decision not to initiate an investigation, 16 July 2015, Case No. ICC-01/13; ICC (2015) ICC Pre-Trial Chamber I requests Prosecutor to reconsider decision not to investigate situation referred by Union of Comoros. https://www.icc-cpi.int//Pages/item.aspx?name=PR1133. Accessed 1 April 2020. 287 ICC, Situation on the registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, Notice of Appeal of “Decision on the request of the Union of the Comoros to review the Prosecutor’s decision not to initiate an investigation”, 27 July 2015, Case No. ICC-01/13-34. 288 ICC, Situation on the registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, Decision on the Admissibility of the Prosecutor’s Appeal against the “Decision on the request of the Union of the Comoros to review the Prosecutor’s decision not to initiate an investigation”, 6 November 2015, Case No. ICC-01/13 OA, para 66.

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admissible before the Court.”289 In February 2018, the Comoros filed an application for judicial review of this decision,290 which was granted by the Pre-Trial Chamber in a decision of 15 November 2018.291 This decision ordered the Prosecutor to reconsider her initial decision of 6 November 2014 in light of the errors identified by PTC I in the 16 July 2015 decision.292 The Prosecutor sought leave to appeal this decision in November 2018,293 which was granted by the Pre-Trial Chamber on 18 January 2019.294 Hearings before the Appeals Chamber took place on 1 May,295 with a final judgment being handed down on 2 September.296 In this judgment a majority of the Appeals Chamber rejected the Prosecutor’s appeal, confirming that the Prosecutor must reconsider her decision not to initiate an investigation into the situation referred by the Comoros.297 Nevertheless, the Appeals Chamber maintained that it is the Prosecutor who makes the “ultimate decision” of whether or not to initiate an investigation.298 The Prosecutor filed the final decision on 2 December,299 confirming her initial decision to close the preliminary examination and not proceed with an investigation of the attack on the basis that this situation is not of sufficient gravity to warrant further action before the ICC.300 289 ICC, Situation on the registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, Notice of Prosecutor’s Final Decision under Rule 108(3), Public Annex 1, 29 November 2017, Case No. ICC-01/13, para 332. 290 ICC, Situation on the registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, Application for Judicial Review by the Government of the Union of the Comoros, 23 February 2018, Case No. ICC-01/13. 291 ICC, Situation on the registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, Decision on the “Application for Judicial Review by the Government of the Union of the Comoros”, 15 November 2018, Case No. ICC-01/13. 292 Ibid., para 117. 293 ICC, Situation on the registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, Request for Leave to Appeal the “Decision on the ‘Application for Judicial Review by the Government of the Union of the Comoros’”, 21 November 2018, Case No. ICC-01/13. 294 ICC, Situation on the registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, Decision on the Prosecutor’s Request for Leave to Appeal the “Decision on the ‘Application for Judicial Review by the Government of the Union of the Comoros’”, 18 January 2019, Case No. ICC-01/13. 295 ICC 2019a. 296 ICC, Situation on the registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, Judgment on the Appeal of the Prosecutor against Pre-Trial Chamber I’s ‘Decision on the “Application for Judicial Review by the Government of the Union of the Comoros”’, 2 September 2019, Case No. ICC-01/13 OA 2. 297 Ibid., para 96. 298 Ibid., para 58. 299 ICC, Situation on the registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, Notice of Prosecutor’s Final Decision under Rule 108(3), as revised and refiled in accordance with the Pre-Trial Chamber’s request of 15 November 2018 and the Appeals Chamber’s judgment of 2 September 2019, 2 December 2019, Case No. ICC-01/13. 300 Ibid.

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North Korea A 2016 communication to the OTP alleged that the Supreme Leader of North Korea, Kim Jong-un, is responsible for a number of international crimes that fall within the Court’s jurisdiction, despite that North Korea is not a State Party to the Rome Statute.301 It argued that the basis of the Court’s jurisdiction was Kim Jong-un’s dual nationality with South Korea, which is a State Party.302 In response to this communication, in 2019, the OTP considered the allegations, ultimately finding that it will not open an investigation into the Supreme Leader, as North Korea is not a State Party to the Rome Statute and the Court cannot exercise personal jurisdiction over Kim Jong-un as he is only entitled to South Korean nationality, which has not been given effect.303 Palestine The preliminary examination into the Situation in Palestine has been ongoing since January 2015.304 On 20 December 2019, the Prosecutor announced the conclusion of the preliminary examination, being satisfied that there is a reasonable basis to believe that war crimes were committed in Gaza during hostilities in 2014 and demonstrations in 2018, as well as in the context of the Israeli occupation of the West Bank (including East Jerusalem).305 The OPT highlighted that as it has received a referral from the State of Palestine,306 a State Party to the Rome Statute, it can and intends to commence the investigation without the requirement of seeking authorisation from the Pre-Trial Chamber. Nevertheless, the Pre-Trial Chamber was requested by the OTP to make a ruling on the scope of the Court’s territorial jurisdiction “given the unique and highly contested legal and factual issues attaching to this situation”.307

301 ICC

The Office of the Prosecutor 2019a, para 28.

302 Ibid. 303 Ibid.,

para 35; The Korea Herald (2019) International Criminal Court says it has no jurisdiction over NK leader. http://www.koreaherald.com/view.php?ud=20191206000481. Accessed 1 April 2020. 304 ICC The Office of the Prosecutor 2019a, para 200. 305 ICC The Office of the Prosecutor (2019) Statement of ICC Prosecutor, Fatou Bensouda, on the conclusion of the preliminary examination of the Situation in Palestine, and seeking a ruling on the scope of the Court’s territorial jurisdiction. https://www.icc-cpi.int/Pages/item.aspx?name=201 91220-otp-statement-palestine. Accessed 1 April 2020; ICC, Situation in the State of Palestine, Prosecution Request Pursuant to Article 19(3) for a Ruling on the Court’s Territorial Jurisdiction in Palestine, 20 December 2019, Case No. ICC-01/18, paras 94–96. 306 ICC The Office of the Prosecutor 2019a, para 201. 307 ICC 2019b.

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Philippines (South China Sea) In 2019, the OTP received a communication alleging Chinese officials had committed crimes against humanity in parts of the South China Sea.308 The OTP concluded that as the alleged crimes were committed by Chinese nationals, and China is not a State Party to the Rome Statute, the Court lacks personal jurisdiction.309 As the exclusive economic zone and continental shelf, where the crimes allegedly occurred, cannot be equated to the territory of the State, the conduct cannot be considered to have occurred in the Philippines (a State Party), and thus the Court does not have jurisdiction based on territoriality.310 As such, the conditions for the exercise of jurisdiction by the Court have not been met and the alleged crimes did not fall within the Court’s jurisdiction.311

Arrest Warrants and Cases in the Pre-Trial Phase On 23 January 2019, Patrice-Edouard Ngaïssona was transferred by French authorities to the premises of the ICC in The Hague pursuant to an arrest warrant issued for crimes against humanity and war crimes allegedly committed in the CAR between December 2013 and December 2014.312 He appeared before the Court for the first time on 25 January.313 In a decision of 20 February, PTC II joined the cases of Alfred Yekatom and Patrice-Edouard Ngaïssona in order to “enhance the fairness and expeditiousness of the proceedings by avoiding the duplication of evidence, inconsistency in the presentation and assessment of evidence, undue impact on witnesses and victims, and unnecessary expense”.314 The confirmation of charges hearing in the case against Alfred Yekatom and Patrice-Edouard Ngaïssona was held from 19 September to 11 October.315 In December, PTC II partly confirmed the charges of war crimes and

308 ICC The Office of the Prosecutor 2019a, para 44; Associated Press (2019) Ex-Philippine officials

accuse Xi of crimes against humanity. https://apnews.com/5b128b63cbfb444ea2874047129fc882. Accessed 1 April 2020. 309 ICC The Office of the Prosecutor 2019a, para 46. 310 Ibid., paras 48–51. 311 Ibid., para 51. 312 ICC (2019) Patrice-Edouard Ngaïssona transferred to ICC for alleged crimes against humanity and war crimes. https://www.icc-cpi.int/Pages/item.aspx?name=PR1431. Accessed 1 April 2020. 313 ICC (2019) Patrice-Edouard Ngaïssona makes first appearance before the ICC. https://www.icccpi.int/Pages/item.aspx?name=pr1434. Accessed 1 April 2020. 314 ICC, Prosecutor v Alfred Yekatom, Decision on the Joinder of the Cases against Alfred Yekatom and Patrice-Edouard Ngaïssona and Other Related Matters, 20 February 2019, Case No. ICC-01/1401/18, para 13; ICC (2019) ICC Pre-Trial Chamber II joins Yekatom and Ngaïssona cases. https:// www.icc-cpi.int/Pages/item.aspx?name=PR1439. Accessed 1 April 2020. 315 ICC (2019) ICC concludes confirmation of charges hearing in Yekatom and Ngaïssona case. https://www.icc-cpi.int/Pages/item.aspx?name=pr1487. Accessed 1 April 2020.

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crimes against humanity, committing Yekatom and Ngaïssona to trial.316 PTC II unanimously decided that there was substantial grounds to believe the accused were responsible for war crimes and crimes against humanity in the CAR between 2013 and 2014. On several occasions in 2019, ICC Prosecutor Fatou Bensouda highlighted the escalating violence in Libya and called for the execution of outstanding arrest warrants in relation to the situation in Libya through the arrest and transfer to the ICC of Saif Al-Islam Gaddafi, Mahmoud Mustafa Busayf Al-Werfalli and Al-Tuhamy Mohamed Khaled.317 In an address to the UN Security Council, she stated that “[s]uch a development would send a strong and necessary message to the victims of grave crimes in Libya, that the [UN Security] Council and the international community at large are serious about pursing justice”.318 On 7 June 2018, Saif Al-Islam Gaddafi submitted an admissibility challenge on the basis that he had been convicted in Libya in July 2015 for the same conduct as is alleged in the current proceedings against him at the ICC, and was subsequently released pursuant to an amnesty law.319 In a decision of 5 April 2019, PTC I rejected this admissibility challenge on the grounds that the decision against Gaddafi before the Libyan courts could not be considered as final as it was rendered in absentia and could in principle still be subject to appeal before a higher court. Moreover, it also held that the Libyan amnesty laws were not applicable to the charges under which Gaddafi was tried in Libya due to the explicit exclusion of these crimes in the legislation as well as the grave nature of the alleged crimes under international law.320 A warrant for Gaddafi’s arrest had been issued by the Court in June 2011 for charges of the crimes against humanity of murder and persecution through indirect co-perpetration allegedly committed in Libya in February 2011.321 316 ICC (2019) Yekatom and Ngaïssona case: ICC Pre-Trial Chamber II confirms part of the charges

of war crimes and crimes against humanity and commits suspects to trial. https://www.icc-cpi.int/ Pages/item.aspx?name=PR1506. Accessed 1 April 2020. 317 ICC (2019) Statement to the United Nations Security Council on the Situation in Libya, pursuant to UNSCR 1970 (2011). https://www.icc-cpi.int/Pages/item.aspx?name=191106-stat-iccotp-UNSC-libya. Accessed 1 April 2020; ICC The Office of the Prosecutor (2019) Statement of ICC Prosecutor, Fatou Bensouda, in relation to the escalation of violence in and around Tripoli, Libya. https://www.icc-cpi.int/Pages/item.aspx?name=190416-otp-stat-libya. Accessed 1 April 2020; UN News (2019) Arrest of three Libyans wanted for grave crimes ‘would send strong and necessary message’ to victims, urges top Prosecutor. https://news.un.org/en/story/2019/05/1038171. Accessed 1 April 2020. 318 UN News (2019) Arrest of three Libyans wanted for grave crimes ‘would send strong and necessary message’ to victims, urges top Prosecutor. https://news.un.org/en/story/2019/05/1038171. Accessed 1 April 2020. 319 ICC, Prosecutor v Saif Al-Islam Gaddafi, Admissibility Challenge by Dr. Saif Al-Islam Gadafi pursuant to Articles 17(1)(c), 19 and 20(3) of the Rome Statute, 5 June 2018, Case No. ICC-01/1101/11, paras 24–26. 320 ICC, Prosecutor v Saif Al-Islam Gaddafi, Decision on the ‘Admissibility Challenge by Dr. Saif Al-Islam Gadafi pursuant to Articles 17(1)(c), 19 and 20(3) of the Rome Statute’, 5 April 2019, Case No. ICC-01/11-01/11, paras 59, 77–79. 321 ICC 2018b.

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Al Hassan Ag Abdoul Aziz faces proceedings before the ICC in relation to allegations of crimes against humanity and war crimes committed in Timbuktu between 2012 and 2013 through his membership of the group Ansar Eddine and role as de facto chief of the Islamic police.322 The confirmation of charges hearing against Al Hassan, which was scheduled to begin in May 2019, was postponed until July. Judge Péter Kovács, sitting as a single judge of the Pre-Trial Chamber, determined that a postponement from 6 May to 8 July was justified on the basis of procedural delays experienced by the OTP.323 The OTP stated that the continuing insecurity in Mali has made the collection of witness testimonies and implementing protective measures for witnesses difficult, the latter of which are required to be instituted before the identities of the witnesses can be disclosed to the Defence.324 The confirmation of charges hearing took place from 8 to 17 July, with PTC I confirming the charges in a confidential decision issued on 30 September.325 A redacted version of this decision was published in French on 13 November.326 On 18 November, Pre-Trial Chamber I rejected the Defence’s request for leave to appeal the Confirmation of Charges decision.327 On 21 November, the Presidency constituted Trial Chamber X, consisting of Judges Antoine Kesia-Mbe Mindua, Tomoko Akane, and Kimberly Prost, to hear

322 ICC

2019b. Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, Décision Fixant une Nouvelle Date pour le Dépôt du Document Contenant les Charges et pour le Début de L’audience de Confirmation des Charges [Decision Fixing a new Date for the Filing of the Document Containing the Charges and for the Start of the Confirmation of Charges Hearing], 18 April 2019, Case No. ICC-01/12-01/18; International Justice Monitor (2019) Al Hassan’s ICC Confirmation Hearing Postponed Again Due to Procedural Delays. https://www.ijmonitor.org/2019/04/al-hassans-iccconfirmation-hearing-postponed-again-due-to-procedural-delays/?utm_source=International+Jus tice+Monitor&utm_campaign=191f5ed975-related-news-rss&utm_medium=email&utm_term= 0_f42ffeffb9-191f5ed975-49527933. Accessed 1 April 2020. 324 Ibid. 325 ICC (2019) Al Hassan case: ICC Pre-Trial Chamber I confirms charges of war crimes and crimes against humanity and commits suspect to trial. https://www.icc-cpi.int/Pages/item.aspx? name=pr1483. Accessed 1 April 2020. 326 ICC, Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, Rectificatif à la Décision relative à la Confirmation des Charges Portées Contre Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud [Corrigendum to the Decision on the Confirmation of Charges brought against Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud], 13 November 2019, Case No. ICC-01/12-01/18. 327 ICC, Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, Décision relative à la Requête de la Défense aux fins D’autorisation D’interjeter Appel de la Décision relative à la Confirmation des Charges et Transmission du Dossier à la Présidence en vertu de la Règle 129 du Règlement de Procédure et de Prevue [Decision on the Request for Defense for Authorization to Appeal the Decision on the Confirmation of Charges and Transmission of the File to the Presidency under Rule 129 of the Rules of Procedure and Provision], 18 November 2019, Case No. ICC01/12-01/18; ICC (2019) Al Hassan case: ICC Pre-Trial Chamber I confirms charges of war crimes and crimes against humanity and commits suspect to trial. https://www.icc-cpi.int/Pages/item.aspx? name=pr1483. Accessed 1 April 2020. 323 ICC,

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the trial phase of the case against Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud.328 The trial is due to commence on 14 July 2020.329

Cases in the Trial Phase Democratic Republic of the Congo On 8 July, Bosco Ntaganda was convicted of 18 counts of war crimes and crimes against humanity committed in the Ituri region of the DRC between 2002 and 2003.330 Ntaganda, also known as ‘the Terminator’, was indicted by the ICC in 2006 and was transferred to the ICC in March 2013 following his surrender at the US embassy in Rwanda.331 His role at the time of the crimes was Chief of Military Operations for the rebel group Union of Congolese Patriots operating in the Ituri region under the leadership of Thomas Lubanga.332 Ntaganda played an important military function in the Union of Congolese Patriots and its military wing, the Patriotic Force for the Liberation of Congo, which acted on the basis of a preconceived strategy of targeting civilians.333 In this context he was convicted of crimes against humanity (including murder, attempted murder, rape, sexual slavery, persecution, forcible transfer and deportation) and war crimes (including murder, attempted murder, intentionally directing attacks against civilians, rape, sexual slavery, ordering the displacement of the civilian population, conscripting and enlisting children under the age of 15 years into an armed group and using them to participate actively in hostilities, intentionally directing attacks against protected objects and destroying the adversary’s property). He was found responsible as a direct perpetrator for parts of the crime against humanity and war crime of murder and the crime against humanity of persecution, and as an indirect perpetrator for the other parts of these crimes and the remaining charges.334 He is the first person to be convicted of sexual slavery before the ICC.335

328 ICC, Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, Decision Constituting

Trial Chamber X and Referring to it the Case of The Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, 21 November 2019, Case No. ICC-01/12-01/18. 329 ICC (2020) Al Hassan case: Trial to open on 14 July 2020. https://www.icc-cpi.int/Pages/item. aspx?name=PR1507. Accessed 1 April 2020. 330 ICC, Prosecutor v Bosco Ntaganda, Judgment, 8 July 2019, Case No. ICC-01/04-02/06 (Ntaganda). 331 BBC (2019) Bosco Ntaganda - the Congolese ‘Terminator’. https://www.bbc.com/news/worldafrica-17689131. Accessed 1 April 2020. 332 Ibid. 333 ICC (2019) ICC Trial Chamber VI declares Bosco Ntaganda guilty of war crimes and crimes against humanity. https://www.icc-cpi.int/Pages/item.aspx?name=pr1466. Accessed 1 April 2020. 334 Ntaganda, above n 330. 335 BBC (2019) DR Congo’s Bosco Ntaganda convicted of war crimes by ICC. https://www.bbc. com/news/world-africa-48907866. Accessed 1 April 2020.

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On 9 September, Defence Counsel for Ntaganda filed a Notice of Appeal against Ntaganda’s conviction of crimes against humanity and war crimes.336 The appeal was based on 15 grounds, relating to: the violation of Ntaganda’s fair trial rights; that he was convicted for crimes he was not charged with; failure to establish the contextual element of crimes against humanity; error in finding that ordering displacement as a war crime was committed; failure to assess evidence in a manner consistent with the relevant burden and standard of proof; error in finding that crimes had been committed during the first operation; error in establishing the age of soldiers; and errors in determining the essential elements of indirect co-perpetration.337 On 7 November, Ntaganda was sentenced to 30 years’ imprisonment, the longest sentence to be handed down by the ICC to date.338 On 9 December, the Defence Counsel filed an appeal of this decision, calling the sentence “manifestly excessive and disproportionate” and calling for the imposition of a sentence of no more than 23 years of imprisonment.339 Uganda In 2019, the trial of Dominic Ongwen, an alleged Former Brigade Commander of the Sinia Brigade of the Lord’s Resistance Army (LRA), for war crimes and crimes against humanity allegedly committed in Uganda between 2002 and 2005, was ongoing. On 1 February, the Defence Counsel for Ongwen filed the defects series, alleging that the confirmation decision contains various defects and requesting the Trial Chamber to dismiss the charges and modes of liability which are “facially deficient and violate the fundamental fair trial right of notice”.340 On 5 February, the Prosecutor submitted that the defects series should be dismissed on the grounds that the motions were manifestly out of time and repeated arguments that were already dismissed.341 On 25 February, the Prosecutor filed the remainder of her response and on 26 February the LRV filed their responses,342 all seeking the dismissal of the 336 ICC, Prosecutor v Bosco Ntaganda, Mr. Ntaganda’s Notice of Appeal against the Judgment pursuant to Article 74 of the Statute, 9 September 2019, Case No. ICC-01/04-02/06 A. 337 Ibid. 338 ICC (2019) Bosco Ntaganda sentenced to 30 years’ imprisonment. https://www.icc-cpi.int/Pages/ item.aspx?name=pr1494. Accessed 1 April 2020. 339 ICC, Prosecutor v Bosco Ntaganda, Notice of Appeal against Sentencing Judgment, 9 December 2019, Case No. ICC-01/04-02/06 A, para 58. 340 ICC, Prosecutor v Dominic Ongwen, Defence Motion on Defects in the Confirmation of Charges Decision: Defects in Notice and Violations of Fair Trial (Parts I-IV of the Defects Series), 1 February 2019, Case No. ICC-02/04-01/15. 341 ICC, Prosecutor v Dominic Ongwen, Prosecution Request for Dismissal, in Limine, of the “Defence Motion on Defects in the Confirmation of Charges Decision: Defects in Notice and Violations of Fair Trial” dated 1 February 2019, 5 February 2019, Case No. ICC-02/04-01/15. 342 ICC, Prosecutor v Dominic Ongwen, Prosecution Response the “Defence Motion on Defects in the Confirmation of Charges Decision: Defects in Notice and Violations of Fair Trial” dated 1 February 2019, 25 February 2019, Case No. ICC-02/04-01/15; ICC, Prosecutor v Dominic Ongwen, Corrigendum to the Victims’ Response to “Defence Motion on Defects in the Confirmation of Charges Decision” (Parts I-IV), 26 February 2019, Case No. ICC-02/04-01/15.

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defects series. On 7 March, Trial Chamber IX dismissed the defects series in limine on the basis that the challenges to the Confirmation Decision were untimely, without sufficient justification.343 It indicated that generally it is not the appropriate time for such a challenge after the commencement of the trial.344 On 17 July, the Appeals Chamber confirmed Trial Chamber IX’s decision, affirming that the Trial Chamber made its decision “in a manner consistent with its duty […] to ensure the fair and expeditious conduct of the proceedings.”345 On 12 December, the Presiding Judge of the trial of Dominic Ongwen declared the closure of the submission of evidence.346 Closing statements are due to commence on 10 March 2020.347

Cases in the Appeal Phase Central African Republic Following his acquittal in June 2018 from charges of war crimes and crimes against humanity, Jean-Pierre Bemba Gombo sought Euros (EUR) 69 million in compensation for his ten year detention and losses in the value of his assets that were frozen during the ICC proceedings against him.348 A hearing was held on 9 May for Bemba’s Defence and the Prosecution to make submissions on the claim, with the latter asserting that Bemba had failed to prove he had suffered a miscarriage of justice entitling him to compensation under Article 85 of the Rome Statute.349 Additionally, an appeal filed by Bemba in October 2018350 against the resentencing decision of 17 September 2018, in which Bemba was fined EUR 30,000

343 ICC,

Prosecutor v Dominic Ongwen, Decision on Defence Motions Alleging Defects in the Confirmation Decision, 7 March 2019, Case No. ICC-02/04-01/15, para 36. 344 Ibid. 345 ICC, Prosecutor v Dominic Ongwen, Judgment on the Appeal of Mr Dominic Ongwen against Trial Chamber IX’s ‘Decision on Defence Motions Alleging Defects in the Confirmation Decision’, 17 July 2019, Case No. ICC-02/04-01/15 OA4, para 163 (ix); ICC (2019) Ongwen case: ICC Appeals Chamber confirms the Trial Chamber’s decision on motions requesting dismiss of the charges. https://www.icc-cpi.int/Pages/item.aspx?name=pr1472. Accessed 1 April 2020. 346 ICC, Prosecutor v Dominic Ongwen, Declaration on the Closure of the Submission of Evidence, 12 December 2019, Case No. ICC-02/04-01/15. 347 ICC 2019c. 348 ICC, Prosecutor v Jean-Pierre Bemba Gombo, Second Public Redacted Version of “Mr. Bemba’s claim for compensation and damages”, 19 March 2019, Case No. ICC-01/05-01/08; Al Jazeera (2019) DRC’s Bemba seeks $77 m in compensation from ICC. https://www.aljazeera.com/ news/2019/03/drc-bemba-seeks-77m-compensation-icc-190311195348511.html. Accessed 1 April 2020. 349 International Justice Monitor (2019) Defense Lawyers Make the Case for Bemba’s Compensation by the ICC. https://www.ijmonitor.org/2019/05/defense-lawyers-make-the-case-for-bembascompensation-by-the-icc/ Accessed 1 April 2020. 350 ICC, Prosecutor v Jean-Pierre Bemba Gombo et al., Notice of Appeal, 18 October 2018, Case No. ICC-01/05-01/13.

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and sentenced to one year imprisonment for administration of justice offences,351 was unanimously rejected by the Appeals Chamber on 27 November 2019.352 Côte d’Ivoire In January 2019, the Pre-Trial Chamber acquitted Laurent Gbagbo and Charles Blé Goudé of charges of crimes against humanity allegedly committed in Côte d’Ivoire between 2010 and 2011 in an oral decision. This decision was made on the grounds that there was no case to answer, as the Prosecutor had failed to adduce sufficient evidence to prove the responsibility of Gbagbo and Blé Goudé for the charges.353 In particular, the majority viewed that the Prosecution had failed to demonstrate (1) that there was a ‘common plan’ to keep Gbagbo in power, (2) that there was a policy to attack the civilian population, (3) that the alleged crimes were committed “pursuant to or in furtherance of a State or Organisational policy to attack the civilian population”, and (4) that the speeches of Gbagbo and Blé Goudé amounted to “ordering, soliciting or inducing the alleged crimes”.354 In providing the oral decision, Trial Chamber I indicated that it could not “justify maintaining the accused in detention during the period necessary to fully articulate its reasoning in writing”,355 with a fully reasoned written decision being issued on 16 July.356 The Appeals Chamber ruled Gbagbo and Blé Goudé should remain in custody pending the Prosecutor’s appeal of their release.357 On 1 February, the Appeals Chamber attached conditions to the release of Gbagbo and Blé Goudé such that they agree to abide by all instructions of the Court, provide addresses and contact information, request authorisation from the Court for changes in address, do not travel 351 ICC,

Prosecutor v Jean-Pierre Bemba Gombo et al., Decision Re-sentencing Mr Jean-Pierre Bemba Gombo, Mr Aimé Kilolo Musamba and Mr Jean-Jacques Mangenda Kabongo, 17 September 2018, Case No. ICC-01/05-01/13. 352 ICC, Prosecutor v Jean-Pierre Bemba Gombo et al., Judgment on the Appeal of Mr Jean-Pierre Bemba Gombo against the Decision of Trial Chamber VII of 17 September 2018 Entitled ‘Decision Re-sentencing Mr Jean-Pierre Bemba Gombo, Mr Aimé Kilolo Musamba and Mr Jean-Jacques Mangenda Kabongo’, 27 November 2019, Case No. ICC-01/05-01/13 A10; ICC (2019) Bemba et al. case: ICC Appeals Chamber confirms re-sentencing decision. https://www.icc-cpi.int/Pages/ item.aspx?name=PR1500. Accessed 1 April 2020. 353 ICC (2019) ICC Trial Chamber I acquits Laurent Gbagbo and Charles Blé Goudé from all charges. https://www.icc-cpi.int/Pages/item.aspx?name=pr1427. Accessed 1 April 2020. 354 ICC 2019d, p 3. 355 Ibid., p 4. 356 ICC, Prosecutor v Laurent Gbagbo and Charles Blé Goudé, Reasons for Oral Decision of 15 January 2019 on the Requête de la Défense de Laurent Gbagbo afin qu’un jugement d’acquittement portant sur toutes les charges soit prononcé en faveur de Laurent Gbagbo et que sa mise en liberté immédiate soit ordonnée, and on the Blé Goudé Defence no case to answer motion, 16 July 2019, Case No. ICC-02/11-01/15; ICC (2019) Gbagbo and Blé Goudé case: ICC Trial Chamber I files the written reasons for the acquittal. https://www.icc-cpi.int/Pages/item.aspx?name=pr1470. Accessed 1 April 2020. 357 ICC (2019) ICC Appeals Chamber maintains Laurent Gbagbo and Charles Blé Goudé in custody and convenes a hearing on their detention on 1 February 2019. https://www.icc-cpi.int/Pages/item. aspx?name=pr1429. Accessed 1 April 2020.

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outside of the country that accepts them, surrender their passports, report weekly to law enforcement, have no contact with any witnesses in the case before the Court, and do not make public statements regarding the case.358 Currently, Blé Goudé remains in Belgium and Gbagbo in the Netherlands, pending a potential appeal in their case before the ICC.359 In October 2019, the Prosecutor filed an appeal against the acquittal of Gbagbo and Blé Goudé, requesting that the Appeals Chamber declare a mistrial. The appeal is based on both procedural grounds, in relation to the failure of the Trial Chamber to provide written reasons for the acquittal in its January 2019 decision, as well as substantive grounds, based on the failure to articulate and consistently apply “a clear standard of proof and/or approach to assessing the sufficiency of evidence”.360 Democratic Republic of the Congo On 18 July, the Appeals Chamber delivered a decision on the appeals by Defence Counsel for Thomas Lubanga Dyilo and the V01 group of victims against the Reparations Award decision of 15 December 2017 (a corrected version being published on 21 December 2017). In the 2017 Reparations Award decision, the Trial Chamber determined that Lubanga was liable to pay USD 10,000,000 in reparations for 425 victims if eligible and any others that could be identified.361 The Appeals Chamber unanimously confirmed this decision, subject to the amendment that victims considered ineligible for reparations could seek a new assessment of eligibility by the Trust Fund for Victims if they considered their failure to substantiate their eligibility was based on insufficient notice of the requirements.362 Sudan In 2019, the issue of non-cooperation with the arrest and surrender of suspects wanted by the ICC by State Parties to the Rome Statute continued to play out before the 358 ICC, Prosecutor v Laurent Gbagbo and Charles Blé Goudé, Judgment on the Prosecutor’s Appeal

against the Oral Decision of Trial Chamber I Pursuant to Article 81(3)(c)(i) of the Statute, 1 February 2019, Case No. ICC-02/11-01/15 OA14, para 60. 359 International Justice Monitor (2019) Gbagbo Released to Belgium, Restrictions Imposed on His Movements and Communications. https://www.ijmonitor.org/2019/02/gbagbo-released-to-bel gium-restrictions-imposed-on-his-movements-and-communications/. Accessed 1 April 2020. 360 ICC, Prosecutor v Laurent Gbagbo and Charles Blé Goudé, Public Redacted Version of “Prosecution Document in Support of Appeal”, 17 October 2019, ICC02/11-01/15; International Justice Monitor (2019) ICC Prosecutor Asks Judges to Declare a Mistrial in Gbagbo Case. https://www. ijmonitor.org/2019/10/icc-prosecutor-asks-judges-to-declare-a-mistrial-in-gbagbo-case/. Accessed 1 April 2020. 361 ICC, Prosecutor v Thomas Lubanga Dyilo, Corrected version of the “Decision Setting the Size of the Reparations Award for which Thomas Lubanga Dyilo is Liable”, 21 December 2017, Case No. ICC-01/04-01/06. 362 ICC, Prosecutor v Thomas Lubanga Dyilo, Judgment on the Appeals against Trial Chamber II’s ‘Decision Setting the Size of the Reparations Award for which Thomas Lubanga Dyilo is Liable’, 18 July 2019, Case No. ICC-01/04-01/06 A7 A8, para 332.

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Court. Back in December 2017, the Pre-Trial Chamber had ruled that Jordan had failed to comply with its obligations under the Rome Statute for failing to arrest and surrender (now former) Sudanese President Omar al-Bashir whilst he was present on its territory, referring Jordan to the ASP and the UN Security Council.363 There had been two outstanding arrest warrants issued by the Court in 2009 and 2010 against al-Bashir for suspected crimes against humanity, war crimes and genocide allegedly committed in Darfur, Sudan.364 On 6 May 2019, the Appeals Chamber confirmed the finding of the Pre-Trial Chamber in 2017 that Jordan had failed to comply with its obligation of arrest and surrender of Al Bashir, but reversed its referral of Jordan to the ASP and the UN Security Council for this failure.365

8.2.1.2

Mechanism for International Criminal Tribunals

In 2019, the appeal proceedings in the case against Radovan Karadži´c were ongoing. Karadži´c was elected President of the Serbian Republic of Bosnia and Herzegovina in May 1992 and became the President of the Serb Republic and the Supreme Commander of its armed forces in December 1992. He was convicted by the International Criminal Tribunal for the former Yugoslavia (ICTY) Trial Chamber in March 2016 for genocide relating to the 1995 Srebrenica massacre, crimes against humanity, and war crimes including persecution, extermination, murder, deportation, forcible transfer, terror, unlawful attacks of civilians, and hostage-taking and was sentenced to 40 years’ imprisonment.366 On 20 March, the International Residual Mechanism for Criminal Tribunals (IRMCT) Appeals Chamber upheld the conviction of Radovan Karadži´c and sentenced him to life imprisonment.367 The Appeals Chamber indicated that the previous prison term of 40 years “inadequately reflects” the gravity of Karadži´c’s crimes.368 One aspect of the Trial judgment that was reversed was Karadži´c’s convictions related to his involvement in a joint criminal enterprise (JCE) in the form of 363 ICC,

Prosecutor v Omar Hassan Ahmad Al Bashir, Decision under Article 87(7) of the Rome Statute on the Non-compliance by Jordan with the Request by the Court for the Arrest and Surrender of Omar Al-Bashir, 11 December 2017, Case No. ICC-02/05-01/09. 364 ICC 2018a. 365 ICC, Prosecutor v Omar Hassan Ahmad Al-Bashir, Judgment in the Jordan Referral re Al-Bashir Appeal, 6 May 2019, Case No. ICC-02/05-01/09 OA2; ICC (2019) Al-Bashir Case: ICC Appeals Chamber confirms Jordan’s non-cooperation but reverses the decision referring it to the ASP and UNSC. https://www.icc-cpi.int/Pages/item.aspx?name=pr1452. Accessed 1 April 2020. 366 ICTY, Prosecutor v Radovan Karadži´ c, Public Redacted Version of Judgment Issued on 24 March 2016, 24 March 2016, Case No. IT-95-5/18-T. 367 IRMCT, Prosecutor v Radovan Karadži´ c, Judgment, 20 March 2019, Case No. MICT-13-55-A (Karadži´c); Borger J (2019) Radovan Karadži´c war crimes sentence increased to life in prison. https://www.theguardian.com/law/2019/mar/20/radovan-karadzic-faces-final-verdict-in-bosniawar-crimes-case?fbclid=IwAR3oQwOCyflNPTz52ZdkRNngTdNs3sdQu0pyXXudbCqcrsd3H 0Egygtl0E8. Accessed 1 April 2020. 368 Karadži´ c, above n 367, para 766.

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“overarching JCE” to the extent that these convictions relied on particular incidents, as Karadži´c had been prevented from testing evidence related to these specific incidents and thus his right to examine witnesses was violated.369 On 13 May, Judge Liu Daqun revoked an order referring a contempt case to Serbia, after witnesses raised concerns about their safety.370 On 5 December 2014, a Trial Chamber of the ICTY issued an order in lieu of an indictment charging Vjerica Radeta and Petar Jojic with witness tampering in the trial of their party leader, Vojislav Seselj, which was made public on 1 December 2015.371 In June 2018, Aydin Sefa Akay, sitting as a single Judge of the IRMCT, ordered the referral of the contempt case against Vjerica Radeta and Petar Jojic to be transferred to Serbia for trial and issued arrest warrants against them.372 Despite the revocation of the order referring the case to Serbia, Radeta and Jojic refused to voluntarily return to The Hague to be tried, arguing that there is no legal basis for their extradition in light of a Serbian High Court ruling of 2016 which found that Serbia was only required to extradite suspects charged with war crimes, not those facing contempt charges.373 The Serbian Justice Ministry has also expressed its intention to appeal the order.374 On 13 June, IRMCT President Carmel Agius called on States to cooperate and relocate nine individuals acquitted of genocide who are currently stranded in Arusha.375 In a bi-annual report addressed to the UN Security Council, President Agius indicated that “the status quo presents a humanitarian crisis that profoundly affects the fundamental rights of the nine persons”, which “threatens to cast a shadow over both the Mechanism and the United Nations more broadly.”376 On 27 September, the IRMCT issued a review judgment in the case against Augustin Ngirabatware, rejecting Ngirabatware’s claim that the key witnesses in his trial had truthfully recanted their testimonies.377 Review hearings had been held from 16 to 24 September at the Arusha branch of the IRMCT, the first time this 369 Ibid.,

paras 474–475. Case Against Petar Joji´c and Vjerica Radeta, Decision Re-examining the Referral of a Case to the Republic of Serbia, 13 May 2019, Case No. MICT-17-111-R90 (Joji´c and Radeta). 371 ICTY, Case Against Petar Joji´ c, Jovo Ostoji´c and Vjerica Radeta, Order Lifting Confidentiality of Order in Lieu of Indictment and Arrest Warrants, 1 December 2015, Case No. IT-03-67-R77.5. Note that the initial order in lieu of indictment against Petar Joji´c, Jovo Ostoji´c and Vjerica Radeta was issued on 30 October 2012, and that the order in lieu of indictment was further revised on 17 August 2017, partly due to the death of Jovo Ostoji´c. See Joji´c and Radeta (above n 370), p 1, note 2. 372 IRMCT, Case Against Petar Joji´ c and Vjerica Radeta, Public Redacted Version of the 12 June 2018 Order Referring a Case to The Republic of Serbia, 12 June 2018, Case No. MICT-17-111-R90. 373 Zivanovic M (2019) Wanted Serbian Radicals Reject Hague Court Summons. https://balkan insight.com/2019/05/15/wanted-serbian-radicals-reject-hague-court-summons/. Accessed 1 April 2020. 374 Sorguc A (2019) Serbia to Challenge Extradition of Radicals to Hague. https://balkaninsight. com/2019/05/24/serbia-to-challenge-extradition-of-radicals-to-hague/. Accessed 1 April 2020. 375 Agius 2019, Annex I, para 104. 376 Ibid. 377 IRMCT, Prosecutor v Augustin Ngirabatware, Review Judgment, 27 September 2019, Case No. MICT-12-29-R; IRMCT (2019) The Appeals Chamber Renders a Review Judgment in the Case of 370 IRMCT,

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courtroom was used for evidentiary hearings.378 In 2012, Augustin Ngirabatware was convicted by the International Criminal Tribunal for Rwanda (ICTR) for direct and public incitement to commit genocide, instigating and aiding and abetting genocide, and the crime against humanity of rape through the extended form of JCE.379 In 1990, he became Minister of Planning in Rwanda, with the charges laid against him relating to speeches that he gave at roadblocks, the distribution of weapons, and the rape of a Tutsi woman by Interahamwe members.380 In its first ever decision, in December 2014 the Appeals Chamber of the IRMCT confirmed Ngirabatware’s convictions of direct and public incitement to commit genocide and instigating and aiding and abetting genocide, quashed the crimes against humanity conviction, and consequently reduced his sentence to 30 years’ imprisonment.381 The retrial of Jovica Staniši´c, former chief of the Serbian State Security Service (SDB), and Franko Simatovi´c, a former SDB intelligence officer, continued before the IRMCT in 2019. Staniši´c and Simatovi´c were acquitted of four counts of crimes against humanity (persecution, murder, deportation, and inhumane acts) and one count of the war crime of murder through a JCE in 2013.382 However, in 2015, the ICTY Appeals Chamber ordered they be retried on all counts of the indictment.383 This new trial commenced before the IRMCT on 13 June 2017,384 with the Prosecution closing its case on 21 February 2019.385 Defence Counsel for Simatovi´c filed a motion for acquittal, which was dismissed by the Trial Chamber in an oral decision of 9 April.386 Following this decision the Defence commenced presentation of its case, which remains ongoing. Concerns have been raised about the use of closed hearings throughout the trial of Staniši´c and Simatovi´c.387 Staniši´c has been on provisional Prosecutor v. Augustin Ngirabatware. https://www.irmct.org/en/news/19-10-22-appeals-chamberrenders-review-judgement-case-prosecutor-v-augustin-ngirabatware. Accessed 1 April 2020. 378 IRMCT (2019) The Appeals Chamber Renders a Review Judgement in the Case of Prosecutor v. Augustin Ngirabatware. https://www.irmct.org/en/news/19-10-22-appeals-chamber-renders-rev iew-judgement-case-prosecutor-v-augustin-ngirabatware. Accessed 1 April 2020. 379 ICTR, Prosecutor v Augustin Ngirabatware, Judgment and Sentence, 20 December 2012, Case No. ICTR-99-54-T. 380 IRMCT 2019a. 381 IRMCT, Prosecutor v Augustin Ngirabatware, Appeal Judgment, 18 December 2014, Case No. MICT-12-29-A. 382 ICTY, Prosecutor v Jovica Staniši´ c and Franko Simatovi´c, Judgment, 30 May 2013, Case No. IT-03-69-T. 383 ICTY, Prosecutor v Jovica Staniši´ c and Franko Simatovi´c, Appeal Judgment, 9 December 2015, Case No. IT-03-69-A; ICTY (2015) Appeals Chamber Orders Retrial of Jovica Staniši´c and Franko Simatovi´c. https://www.icty.org/en/press/appeals-chamber-orders-retrial-jovica-stani% C5%A1i%C4%87-and-franko-simatovi%C4%87. Accessed 1 April 2020. 384 Simons M (2017) Retrial Begins for 2 Serbs at U.N. War Crimes Tribunal. https://www.nytimes. com/2017/06/13/world/europe/serbia-war-crimes-hague-yugoslavia.html. Accessed 1 April 2020. 385 IRMCT 2019b. 386 Ibid. 387 Dizdarevic E (2019) Closed Hearings at Serbian Security Chiefs’ Trial Cause Mistrust. https:// balkaninsight.com/2019/06/27/closed-hearings-at-serbian-security-chiefs-trial-cause-mistrust/. Accessed 1 April 2020.

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release in Belgrade due to ill health since July 2017, which has been extended on several occasions, most recently on 8 November.388

8.2.2 Hybrid Tribunals 8.2.2.1

Republic of Kosovo

European Union Rule of Law Mission in Kosovo The European Union Rule of Law Mission in Kosovo (EULEX) continued operating in 2019. Though the handover of EULEX’s case files to Kosovo authorities concluded in December 2018, the mandate of the Mission continues to involve working in partnership with Kosovo rule of law institutions by providing monitoring of select cases.389 Moreover, in 2019, EULEX continued its functions by undertaking a number of activities, including conducting medical training courses for Kosovo Correctional Service staff,390 donating equipment to the Ministry of Internal Affairs and the Civil Registration Agency,391 co-hosting a workshop on Countering Environmental Crime392 and continuing work on monitoring selected cases, “which has proven to be an effective tool for assessing the local justice system’s compliance with Kosovo law and human rights standards.”393

Kosovo Specialist Chambers and Specialist Prosecutor’s Office On 31 October and 1 November, the first Independent Representative Body of Specialist Counsel (IRB) meeting was held by the Kosovo Specialist Chambers

388 Stojanovic

M (2019) Serbian Security Chief Jovica Stanisic’s Release Extended. https://bal kaninsight.com/2019/11/08/serbian-security-chief-jovica-stanisics-release-extended/. Accessed 1 April 2020. 389 EULEX (2019) EULEX concluded the handover process of case files to Kosovo authorities. https://www.eulex-kosovo.eu/?page=2,11,916. Accessed 1 April 2020. 390 EULEX (2019) EULEX conducts medical training courses for Kosovo Correctional Service staff. https://www.eulex-kosovo.eu/?page=2,11,1003. Accessed 1 April 2020. 391 EULEX (2019) EULEX donation to the Ministry of Internal Affairs. https://www.eulex-kosovo. eu/?page=2,11,1015. Accessed 1 April 2020. 392 EULEX (2019) EULEX co-hosted workshop on Countering Environmental Crime. https://www. eulex-kosovo.eu/?page=2,11,1123. Accessed 1 April 2020. 393 EULEX (2019) EULEX presents its Kosovo Correctional Service – related work and case monitoring report findings to EU Member States’ representatives. https://www.eulex-kosovo.eu/?page= 2,11,1130. Accessed 1 April 2020.

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(KSC).394 Following this, in December, legal practitioners from the list of eligible counsel at KSC adopted the Constitution of the IRB, formalising the creation of this new body.395 The IRB may be consulted by the KSC on amendment to the latter’s legal framework, and may also independently propose changes.396 Almost four years after the commencement of its work, in 2019 the Specialist Prosecutor continued with investigations of international crimes allegedly committed by members of the Kosovo Liberation Army (KLA) during the war against Serbian forces in 1998–99 by interviewing suspects.397 In July, Kosovo’s Prime Minister Ramush Haradinaj, a former officer of the KLA, resigned after being summoned to appear for questioning before the Specialist Prosecutor.398 Haradinaj was previously acquitted of war crimes by international tribunals on multiple occasions.399 In October, the KSC Prosecutor summoned former Commander of the KLA general staff and former politician Azem Syla for questioning.400 The prosecution is currently investigating alleged war crimes committed by the KLA during and just after the Yugoslav war in Kosovo. It is not currently known whether Syla has been invited to The Hague as a witness or possible suspect. Several other Kosovo Albanians have also been invited for questioning. In December 2018, the Specialist Prosecutor’s Office served Mahir Hasani with a summons to appear for questioning and issued an order obliging him to provide certain documents and information or face a finding of contempt and enforcement measures.401 The Order also stated that there were “reasons to believe that [the Applicant] [had] been involved in the commission of a crime within the jurisdiction of the Kosovo Specialist Chambers”,402 without any further elaboration on this.403 On 15 January, Hasani lodged a referral requesting the suspension of the Specialist Prosecutor’s Order to supply documents on the basis that it violated his right to remain silent and the privilege against self-incrimination, as well as the presumption of innocence, relying on Articles 30(6) and 31(5) of the Constitution of Kosovo

394 KSC

(2019) First IRB Working Group Meeting Facilitated by KSC. https://www.scp-ks.org/en/ first-irb-working-group-meeting-facilitated-ksc. Accessed 1 April 2020. 395 KSC (2019) Specialist Counsel Establish Independent Representative Body. https://www.scpks.org/en/specialist-counsel-establish-independent-representative-body. Accessed 1 April 2020. 396 Ibid. 397 Hasani and Mjeku 2020, p 399. 398 Balkan Insight (2019) Kosovo PM Resigns after Summons from Hague Prosecutors. https://balkaninsight.com/2019/07/19/kosovo-pm-resigns-after-hague-prosecutors-call-forquestioning/. Accessed 1 April 2020. 399 Ibid. 400 Balkan Transitional Justice (2019) Hague Prosecutors Summon Former Kosovo Guerrilla Commander. https://balkaninsight.com/2019/10/22/hague-prosecutors-summon-former-kos ovo-guerrilla-commander/. Accessed 23 April 2020. 401 KSC, Pronouncement of Ruling on the Request of Mr Mahir Hasani for Interim Measures, 7 February 2019, Case No. KSC-CC-2019-05 (Hasani), p 2. 402 Ibid., p 3. 403 Hasani and Mjeku 2020, p 400.

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and Article 6(2) of the European Convention on Human Rights and Fundamental Freedoms.404 On 7 February, the Presiding Judge of the Specialist Chamber of the Constitutional Court of the KSC delivered its ruling on Mahir Hasani’s request for an interim measure pursuant to Rule 21(1) and (2) of the Rules of Procedure, unanimously granting the requested suspension of the Specialist Prosecutor’s Order. The Chamber ruled that there was a real risk of serious harm if the interim measure was not granted, as if the requirement that Hasani must produce documents at his interview was carried out, this could cause him serious harm if his status were to change from suspect to accused.405 Moreover, if not carried out Hasani would risk facing the consequences that flow from a finding of contempt.406 This decision was without prejudice to the Chamber’s determination of the referral or the Applicant’s obligation to appear for questioning pursuant to the summons issued by the Prosecutor.407 On 15 February, the Specialist Prosecutor filed a notice of withdrawal of the order and a request for dismissal of the referral.408 The Chamber reiterated that the right to remain silent and privilege against self-incrimination had been engaged in relation to the Specialist Prosecutor’s Order, as the order obligated Hasani, who was a suspect, to provide documents, with failure to do so resulting in a finding of contempt and the possibility of enforcement measures being taken.409 Nevertheless, the Chamber ruled that in light of the interim measure ordered on 7 February which preserved the rights of Hasani and the subsequent withdrawal of the order by the Specialist Prosecutor, the applicant could no longer claim to be a victim of the alleged violations, leading the referral to be declared inadmissible.410

8.2.2.2

Extraordinary African Chambers

In 2019, civil society organisations pushed for the Government of Chad to provide reparations to victims of grave crimes committed by former dictator Hissène Habré.411 In 2017, the Appeals Chamber of the Extraordinary African Chambers confirmed the conviction of Habré for crimes against humanity, war crimes and torture, and ordered the compensation of USD 145 million to victims.412 Though

404 Hasani, 405 Ibid.,

above n 401, p 1. p 4.

406 Ibid. 407 Ibid. 408 KSC,

Pronouncement of Ruling on the Referral by Mr Mahir Hasani Concerning Prosecution Order of 20 December 2018, 20 February 2019, Case No. KSC-CC-2019-05, p 2. 409 Ibid., p 9. 410 Ibid., p 10. 411 Human Rights Watch 2019. 412 Birkett 2019, p 152.

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protective measures were ordered against two bank accounts and one piece of property during the proceedings, the inability to locate Habré’s assets has been suggested as a challenge to the enforcement of the reparations award.413

8.2.2.3

Extraordinary Chambers in the Courts of Cambodia

Following the summary of the judgment in the case against Nuon Chea and Khieu Samphân being handed down by the Extraordinary Chambers in the Courts of Cambodia (ECCC) in November 2018, the Trial Chamber issued its full judgment in March 2019.414 The judgment elaborated the Trial Chamber’s findings that Chea and Samphân were guilty of genocide, grave breaches of the Geneva Conventions of 1949, and crimes against humanity committed between 1975 and 1979. Chea and Samphân were sentenced to life imprisonment.415 Both were already facing sentences of life imprisonment for convictions of crimes against humanity in 2014.416 On 9 April, Counsel for Nuon Chea filed a letter authored by Chea authorising his defence team to launch an appeal of his conviction and requested that this be added to the case file, classified as public and added to the ECCC website immediately, despite that ordinarily this would occur with the filing of his notice of appeal.417 The request emphasised that given Chea’s advanced age of 92 years and the risk of his sudden death before the filing of the formal notice of appeal upon the deadline of 1 July, it is “of the utmost importance and in the interest of justice” that his letter authorising the appeal is added immediately to the case file.418 Subsequently, following the notification of the death of Nuon Chea in August 2019,419 the ECCC terminated the appellate proceedings against him in accordance with Cambodian criminal law and its own procedural rules.420 413 Ibid.,

p 159. The Prosecutor v Samphân Khieu and Chea Nuon, Judgment, 16 November 2018, Case No. 002/02. 415 ECCC, Prosecutor v Samphân Khieu and Chea Nuon, Decision on Khieu Samphân’s Urgent Appeal Against the Summary of Judgment Pronounced on 16 November 2018, 13 February 2019, Case No. 002/19-09-2007/ECCC/TC, p 2230. 416 ECCC (2014) Nuon Chea and Khieu Samphan Sentenced to Life Imprisonment for Crimes against Humanity. https://www.eccc.gov.kh/en/articles/nuon-chea-and-khieu-samphan-sentencedlife-imprisonment-crimes-against-humanity. Accessed 1 April 2020. 417 ECCC, Prosecutor v Samphân Khieu and Chea Nuon, Nuon Chea’s Letter Authorising His Lawyers to File an Appeal Against the Case 002/02, Judgment, 9 April 2019, Case No. 002/1909-20067-ECCC/TC (Nuon Chea), para 1; Ryan H (2019) Extraordinary Chambers in the Courts of Cambodia: Developments and Completion Timeline. https://www.ijmonitor.org/2019/05/extrao rdinary-chambers-in-the-courts-of-cambodia-developments-and-completion-timeline/. Accessed 1 April 2020. 418 Nuon Chea, above n 417, para 21. 419 ECCC (2019) Accused Person Nuon Chea Dies. https://www.eccc.gov.kh/sites/default/files/ media/ECCC%20PR%20NUON%20CHEA%20English.pdf. Accessed 1 April 2020. 420 ECCC, Prosecutor v Samphân Khieu and Chea Nuon, Decision to Terminate Proceedings Against Nuon Chea, 13 August 2019, Case No. 002/19-09-20017-ECCC/SC, para 5. 414 ECCC,

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A number of appeal proceedings were conducted in the ECCC in 2019 in relation to conflicting closing orders handed down by International and Cambodian Co-Investigating Judges. Appeal proceedings against the differing closing orders issued by the International and Cambodian Investigating Judges in the case against Ao An continued. By way of background, on 16 August 2018, the International Co-Investigating Judge issued an indictment committing Ao An to trial, whilst the Cambodian Co-Investigating Judge issued a dismissal of the case.421 In late 2018, Counsel for Ao An filed appeals against the indictment,422 whilst the International Co-Prosecution and the Cambodian Co-Prosecutor filed notices of appeal against the dismissal and the indictment respectively.423 Submissions and replies were filed throughout the first half of 2019,424 with oral arguments taking place on 19–21 June.425 The main point of contention is whether Ao An meets the standard for personal jurisdiction of the ECCC, requiring the prosecution of only senior leaders or those persons most responsible for crimes committed during the period of Democratic Kampuchea. On 19 December, the Pre-Trial Chamber issued a ruling which failed to resolve whether the case will proceed to trial.426 A binding decision required a super-majority of four of the five judges in the Chamber. However, whilst the three Cambodian Judges found that the case should be dismissed,427 the two International Judges held that the case should immediately proceed to trial.428 In the joint portion of the decision, the Pre-Trial Chamber found that the Co-Investigating Judges “violated the ECCC legal framework, derogated from their highest duties and created an unprecedented legal predicament undermining the very foundations of their judicial office.”429 A similar situation unfolded in relation to cases 003 and 004. Concerning case 003, in November 2018 the International Co-Investigating Judge issued an indictment against Meas Muth, whilst the Cambodian Co-Investigating Judge issued a dismissal.430 Appeals against these closing orders were raised in April 2019, with the Cambodian Co-Prosecutor and Counsel for Meas Muth lodging appeals against the indictment, and the International Co-Prosecutor appealing the dismissal.431 The hearings were conducted from 27–29 November, with the Chamber adjourning to

421 ECCC, Prosecutor v Ao An, Considerations on Appeals Against Closing Orders, 19 December 2019, Case No. 004/2/07-09-2009-ECCC/OCIJ (PTC60) (Ao An), para 11. 422 Ibid., para 13. 423 Ibid., para 16. 424 Ibid., paras 18–22. 425 Ibid., para 23. 426 Open Society Justice Initiative 2020, p 1. 427 Ao An, above n 421, para 98. 428 Ibid., para 266. 429 Ibid., para 89. 430 ECCC, Prosecutor v Meas Muth, Report of the Case and Appeals, 27 November 2019, Case No. 003/07-09-2009-ECCC/OCIJ (PTC35), p 5. 431 Ibid., p 11.

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deliberate on whether Muth falls within the ECCC’s jurisdiction and whether there are sufficient charges to indict him.432 In relation to case 004, on 28 June, the Co-Investigating Judges also issued two separate and inconsistent closing orders in the case against Yim Tith. Similarly to the Closing Orders issued against Ao An and Meas Muth, the two Co-Investigating Judges disagreed on whether Yim Tith falls within the ECCC’s personal jurisdiction “as a senior leader or one of the persons most responsible for crimes committed during the period of Democratic Kampuchea”.433

8.2.2.4

Special Criminal Court in the Central African Republic

In 2019, the Special Criminal Court in the Central African Republic (SCC) continued steps towards the prosecution of perpetrators of serious violations of human rights and IHL, including genocide, crimes against humanity, and war crimes, committed in the CAR since 2003. The SCC was established as a hybrid court operating within the CAR’s judicial system in 2015, with its five-year mandate commencing in October 2018.434 In June, it was announced by the Court’s President Michel Louanga that the SCC is currently deciding which cases to begin hearing and that trials are tentatively set to commence by the end of 2020.435 There are currently seven investigations underway at the SCC, four of which were opened by the Special Prosecutor and three of which were transferred from CAR’s domestic courts to the SCC.436 In April, Human Rights Watch conducted research on the SCC to follow-up on its 2018 report,437 identifying a number of areas requiring improvement, including: recruiting additional staff; additional services such as witness and victim protection; legal aid and community outreach; better coordination with the UN; and funding.438 Human Rights Watch identified a USD 1 million funding gap for 2019 operations as 432 ECCC (2019) Pre-Trial Chamber Concludes Three Days of Hearings in Case 003. https:// www.eccc.gov.kh/sites/default/files/media/Press%20release%20PTC%20conclusion%20of%20H earing%20Case%20003-%20English.pdf. Accessed 1 April 2020. 433 ECCC, Prosecutor v Yim Tith, Closing Order, 28 June 2019, Case No. 004/07-09-2009-ECCCOCIJ; ECCC (2019) Co-Investigating Judges Issue Two Separate Closing Orders in the Case Against Yim Tith. https://www.eccc.gov.kh/sites/default/files/media/ECCC%20PRESS%20RELE ASE%20OCIJ%20YIM%20TITH%20English.pdf. Accessed 1 April 2020. 434 Labuda 2019. 435 RFI (2019) Central African court starts work on human rights abuse cases. http://www.rfi.fr/en/afr ica/20190621-central-african-court-starts-work-first-human-rights-abuse-cases. Accessed 1 April 2020. 436 Human Rights Watch (2019) Central African Republic: New Court Should Step Up Effort. https:// www.hrw.org/news/2019/07/24/central-african-republic-new-court-should-step-effort. Accessed 1 April 2020. 437 Human Rights Watch 2018. 438 Human Rights Watch (2019) Central African Republic: New Court Should Step Up Effort. https:// www.hrw.org/news/2019/07/24/central-african-republic-new-court-should-step-effort. Accessed 1 April 2020.

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of 10 July, with no pledges for future funding.439 It called upon more States to make financial contributions and current donors to increase financial support.440

8.2.2.5

Special Tribunal for Lebanon

Following the completion of the trial proceedings before the Special Tribunal for Lebanon (STL) in September 2018 in the Ayyash et al. case concerning the February 2005 attack that killed former Lebanese Prime Minister Rafik Hariri, the deliberations of the Trial Chamber continued in 2019.441 The proceedings in this case involved reviewing evidence presented over a 415-day period, including 3,132 exhibits and testimony provided by 323 witnesses.442 The proceedings in a case related to separate attacks that were connected to the February 2005 attack also continued before the STL in 2019. In response to the Prosecutor’s December 2018 request to confirm the indictment against Salim Jamil Ayyash, in May 2019, the Pre-Trial Judge partially confirmed the indictment and ordered the Prosecutor to submit a revised version.443 The charges confirmed against Ayyash in the indictment are conspiracy to commit a terrorist act (alternatively criminal association), committing terrorist acts, intentional homicide with premeditation, and attempted intentional homicide with premeditation.444 These charges relate to attacks against three Lebanese politicians: Marwan Hamade in October 2004,445 Georges Hawi in June 2005,446 and Elias el-Murr in July 2005.447 The Pre-Trial Judge found that the Prosecutor failed to establish prima facie that Ayyash directly detonated the explosives in each attack, also dismissing Ayyash’s alleged responsibility as an accomplice and recharacterising the applicable mode of liability for counts 3, 4, and 5 as co-perpetration.448 Following the confirmation of the revised indictment submitted by the Prosecution, the Pre-Trial Judge issued an arrest warrant

439 Ibid. 440 Ibid. 441 STL

2020a, p 8. pp 8–9. 443 STL, Prosecutor v Salim Jamil Ayyash, Order Relating to the Lifting of the Confidentiality of the Indictment of 14 June 2019 and of Other Related Documents, 16 September 2019, Case No. STL-18-10/I/PTJ (Ayyash), paras 1–2. 444 STL, Prosecutor v Salim Jamil Ayyash, Public Redacted Indictment, 14 June 2019, Case No. STL-18-10-I-PTJ, para 1. 445 Ibid., paras 25–28. 446 Ibid., paras 44–47. 447 Ibid., paras 61–64. 448 STL 2020a, p 10. 442 Ibid.,

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and international arrest warrant against Ayyash on 20 June.449 All of these developments remained confidential until an order was issued by the Pre-Trial Judge in September making them public.450 A public hearing was held on 13 December to hear arguments from the Prosecution, Defence, and Registrar on whether the STL should proceed with this case against Ayyash in absentia.451 A decision is expected on whether the case will continue to trial in early 2020.

8.2.3 National Courts 8.2.3.1

Argentina

In December, a former Argentinian police officer was extradited from France to Argentina.452 Mario Sandoval is accused of crimes against humanity, including torture and enforced disappearance, allegedly committed during the civic-military dictatorship of Argentina. Sandoval had been living in France for over 30 years. Argentina first requested his extradition in 2012 but Sandoval had continued to deny and appeal the accusations against him until France’s Supreme Administrative Court approved his extradition.

8.2.3.2

Bangladesh

January saw the arrest of a US citizen of Bangladeshi origin, Mohamed Jubair Monir, who was arrested and accused of “killings, confinement, rape, arson and looting” during the 1971 war of independence of Pakistan.453 He was to be tried by the widely criticised International Crimes Tribunal, a national court established by Bangladesh in 2010 to prosecute those accused of war crimes in 1971. In August, the Bangladesh International Crimes Tribunal sentenced former Jamate-Islami supporter Md Abdus Samad Musa to death for crimes against humanity and war crimes, including the murder of 15 people, arson attacks, looting, confinement,

449 Ayyash,

above n 443, paras 6–7. STL (2019) Indictment in the Connected Cases made public. https://www.stl-tsl.org/en/ media/press-releases/indictment-in-the-connected-cases-made-public. Accessed 1 April 2020. 451 STL 2020b, p 2. 452 New York Times (2019) France Extradites Argentine Man Suspected of Torture. https://www. nytimes.com/2019/12/15/world/americas/mario-sandoval-argentina.html. Accessed 20 April 2020. 453 Aljazeera (2019) US Citizen of Bangladeshi origin arrested for 1971 war crimes. https:// www.aljazeera.com/news/2019/01/citizen-bangladeshi-origin-arrested-1971-war-crimes-190107 075141720.html?fbclid=IwAR3kmxkS7cbVBD4FzJ_3FW_XMIWIP-Lsb-6_vTUdNEMg8aZCd 4bLW_zDWM0. Accessed 20 April 2020. 450 Ibid.;

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and torture during the Liberation War in Bangladesh in 1971.454 This decision was appealed. Until then, the Tribunal had convicted 89 people, 62 of whom have been sentenced to death.

8.2.3.3

Belgium

In November, the trial of Fabien Neretse, a former Rwandan official and alleged Hutu militia leader, commenced in Belgium.455 Neretse was accused of committing genocide in Rwanda in 1994. This was the fifth trial in Belgium in relation to the conflict in Rwanda of 1994 but the first in which the accused was charged with the crime of genocide. The charges related in particular to the killing of Belgian citizen Claire Beckers, her husband Isaïe Bucyana, a Tutsi, and their daughter Katia.

8.2.3.4

Bosnia and Herzegovina

The year began with eight individuals being charged with war crimes committed during the Yugoslav War. The charges related to the ill-treatment of twenty Serbs, which included sexual assault, severe physical and mental injuries as well as other acts, which may have amounted to torture.456 In March, Saša Cvetkovi´c, a former member of the Bosnian Serb Army, was found guilty of war crimes and convicted for the rape of two women and the murder of two civilians in a village near Srebrenica in 1992.457 He was sentenced to 12 years’ imprisonment and ordered to pay compensation of Bosnian Convertible Mark (BAM) 15,000 to one of his victims of sexual violence. This was the thirteenth case in which victims of sexual violence during armed conflict were awarded compensation before courts in Bosnia and Herzegovina. The year closed with the indictment of Milan Luki´c, a Bosnian Serb paramilitary leader, who was previously convicted of war crimes and sentenced to life imprisonment in 2012 by the ICTY. Following an interrogation of Luki´c in Estonia, where he was serving his life sentence, the Bosnian prosecutor issued an indictment for

454 Zuzana

D (2019) Bangladesh International Crimes Tribunal sentences man to death for war crimes http://www.iclmediareview.com/28-august-2019-bangladesh-international-crimes-tribunalsentences-man-to-death-for-war-crimes. Accessed 3 May 2020. 455 News 24 (2019) Rwanda official on trial in Belgium over 1994 genocide. https://www.news24. com/Africa/News/rwanda-official-on-trial-in-belgium-over-1994-genocide-20191104. Accessed 20 April 2020. 456 Sarajevo Times (2019) Eight Persons charged with having committed War Crimes against Victims of Serb Ethnicity. http://www.sarajevotimes.com/eight-persons-charged-with-having-committedwar-crimes-against-victims-of-serb-ethnicity/. Accessed 20 April 2020. 457 Trial International (2019) https://trialinternational.org/latest-post/bosnia-and-herzegovina-12years-in-prison-for-a-wartime-rapist/. Accessed 30 April 2020.

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crimes that were not covered in the ICTY case.458 This indictment included war crimes relating to the torture and execution of 20 people seized from a train passing through Bosnia in 1993 by the White Eagles paramilitary group, led by Luki´c. The indictment was sent to the Bosnian State Court for confirmation.

8.2.3.5

Brazil

In August, the testimony provided by Inês Etienne Romeu, the sole survivor of a clandestine prison known as the ‘House of Death’ in Petrópolis in the 1970s, could lead to the conviction of former Brazilian army Sergeant Antônio Waneir Pinheiro de Lima.459 De Lima had previously been found to be protected by Brazil’s amnesty laws. Two out of three Federal Tribunal Judges subsequently overturned a decision to this effect, finding that the allegations against de Lima, including rape and kidnapping, constituted crimes against humanity and were therefore not covered by the amnesty.

8.2.3.6

Canada

In March, a Canadian court ruled that the sentence of Omar Khadr, a Canadian citizen and former Guantánamo Bay detainee, had expired. Khadr was born in Canada and sent to Afghanistan by his father, a member of Al Qaeda.460 He was captured in 2002, at the age of 15, and spent the following decade at the US Guantánamo Bay detention centre. He was convicted by a US military commission in 2010 of war crimes and sentenced to eight years’ imprisonment, subsequently being transferred to a prison in Canada after striking a plea deal in 2012. He was released on bail in 2015 and has sued the Canadian government for violating his constitutional rights and being complicit in his detention at Guantánamo Bay, receiving a Canadian Dollar (CAD) 10.5 million settlement.

8.2.3.7

Central African Republic

In 2019, Colonel Abdoulaye Alkali-Saïd, described as the “number two” in one of the Seléka militant groups responsible for the Coup d’État in the CAR in 2013, was

458 Reuters (2019) Bosnia indicts convicted war criminal Milan Lukic. https://www.reuters.com/art

icle/us-bosnia-warcrimes-lukic/bosnia-indicts-convicted-war-criminal-milan-lukic-idUSKBN1Y H1TN. Accessed 20 April 2020. 459 BBC News (2019) Brazil torture victim’s testimony triggers landmark case. https://www.bbc. com/news/world-latin-america-49356677. Accessed 20 April 202. 460 BBC News (2019) Omar Khadr: Ex-Guantanamo Bay detainee’s sentence ruled expired. https:// www.bbc.com/news/world-us-canada-47700801. Accessed 23 April 2020.

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convicted on charges of criminal association. Alkali-Saïd also faced charges of war crimes and crimes against humanity, of which he was acquitted.461

8.2.3.8

Colombia

In February, Revolutionary Armed Forces of Colombia (FARC) leader Rodrigo Londoño, also known as ‘Timochenko’, testified before the Special Jurisdiction of Peace (JEP), Colombia’s newly established court to deal with war crimes that were committed during its civil war, about his involvement in mass kidnappings during the armed conflict.462 As a result of the peace process, 5,000 of the 7,000 active FARC members have been granted amnesty. The rest, including alleged war criminals like Londoño, are to stand trial before the JEP for crimes against humanity. In April, a Chamber of the JEP ordered the arrest of Hernan Velasquez, also known as ‘El Paisa’, a former commander of FARC.463 The order related to the former rebel leader’s failure to participate in reconciliation efforts mandated by the country’s peace deal, which was introduced in 2016. In particular, Velasquez was accused of failing to provide testimony in a case relating to guerrilla kidnappings, and as such was no longer protected by the benefits of the peace agreement, including avoiding jail time for war crimes. Velasquez was previously sentenced to imprisonment in relation to his involvement in a 2003 car bombing in Bogotá.464 In September, Colombian energy company EPM was called to appear before the JEP in relation to its role in flooding an area where prosecutors were looking for hundreds of missing persons.465 In 2002, the crime syndicate La Oficina de Envigado took control of the city of Medellín and hundreds of people went missing from a valley that was flooded by EPM at the site of a controversial hydroelectric dam project. EPM was to appear before the JEP to clarify its role in the flooding and preventing the search for the missing persons. The JEP also ordered the inspection of two quarries in Medellín where, according to a local court, 300 people were buried. In August, Miguel Narvaez, former deputy director of Colombia’s former intelligence agency Administrative Department of Security, was requested to submit a 461 Grilhot

G (2019) Central African Courts outpace the ICC and Special Court. https://www.justic einfo.net/en/tribunals/national-tribunals/42467-central-african-courts-outpace-icc-special-court. html. Accessed 18 May 2020. 462 Colombia Reports (2019) FARC leader Timochenko first to testify before Colombia’s war crimes tribunal. https://colombiareports.com/farc-leader-timochenko-first-to-testify-before-col ombias-war-crimes-tribunal/?fbclid=IwAR3Zio-x7v34tPa0wWz9_ZZyfeWWhMZKxoeUo9Xr DNZeOEi7iX-NntlsMhw. Accessed 20 April 2020. 463 Telesur (2019) Colombia’s JEP Orders Capture of Former FARC, ‘El Paisa’. https://www.tel esurenglish.net/amp/news/Colombias-JEP-Orders-Capture-of-Former-FARC-El-Paisa-201904270012.html. Accessed 20 April 2020. 464 Colombia Reports (2019) ‘El Paisa’. https://colombiareports.com/el-paisa-farc/. Accessed 5 May 2020. 465 Colombia Reports (2019) Medellin energy company called to appear before war crimes tribunal. https://colombiareports.com/medellin-energy-company-called-to-appear-beforewar-crimes-tribunal/. Accessed 20 April 2020.

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witness statement to the JEP.466 Narvaez was convicted in 2018 and sentenced to 26 years’ imprisonment for involvement in the murder of journalist and comedian Jaime Garzon in 1999, and a further eight years for his role in wiretapping perceived political opponents of former President Álvaro Uribe. His cooperation with the JEP could lead to an early release.

8.2.3.9

Croatia

In March, Croatia confirmed that former Bosnian Croat battalion commander Marko Radic had been released in December 2018.467 Radic was convicted of crimes against humanity by the Bosnian State Court in Sarajevo in 2011, where he was given a 21-year sentence for involvement in setting up prisons and ordering the arrest and unlawful detention of Bosniak civilians in Mostar. Radic was transferred to Croatia, where his sentence was reduced to 12.5 years by a court in Zagreb on the basis that the Croatian domestic legal system does not recognise JCE as a mode of liability.468

8.2.3.10

Democratic Republic of the Congo

In June, former Congolese leader of the Patriotic Resistance Front of Ituri militia Germain Katanga faced trial in the DRC, after serving time for his conviction by the ICC of war crimes and crimes against humanity.469 Despite being due for release in 2016 Katanga remains imprisoned, with the second trial against him commencing in February 2016 and provisional release being denied. In November, the head of the Raia Mutomboki militia group, Frederic Masudi Alimasi, was convicted and sentenced to life imprisonment by a military court.470 Alimasi was found guilty of the crimes against humanity of rape, murder, torture, sexual slavery, deprivation of liberty, looting, and destruction of property. The court 466 Colombia

Reports (2019) Former intelligence chief wants to submit to Colombia’s war crimes tribunal. https://colombiareports.com/former-intelligence-chief-wants-to-submit-to-colomb ias-war-crimes-tribunal/. Accessed 20 April 2020. 467 ICL Media Review (2019) Croatia Confirms Early Release of Former Commander Convicted of Crimes Against Humanity, and Prosecution in Stanisic & Simatovic Retrial Rests Case-inChief. http://www.iclmediareview.com/28-february-2019-croatia-confirms-early-release-of-for mer-commander-convicted-of-crimes-against-humanity-and-prosecution-in-stanisic-simatovic-ret rial-rests-case-in-chief. Accessed 2 May 2020. 468 Anja V (2019) Zagreb Frees Bosnian Croat after Controversial Sentence Cut. https://balkan insight.com/2019/02/26/zagreb-frees-bosnian-croat-after-controversial-sentence-cut/. Accessed 5 May 2020. 469 Justice Info (2019) Congo/ICC: Germain Katanga’s Double Sentence. https://www.justiceinfo. net/en/tribunals/national-tribunals/41663-congo-icc-germain-katanga-s-double-sentence.html. Accessed 30 April 2020. 470 Claude S (2019) DRC: Militia Leader Sentenced to Life for Crimes Against Humanity. https:// www.justiceinfo.net/en/tribunals/national-tribunals/42975-drc-militia-leader-sentenced-to-lifefor-crimes-against-humanity.html. Accessed 30 April 2020.

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also held that the Congolese State was responsible for failing to protect civilians and ordered it to pay damages to over 300 victims.

8.2.3.11

Ethiopia

In January, 13,200 individuals charged or convicted of treason or terrorism were pardoned in Ethiopia.471 Critics have long stated that the anti-terrorism law in that country de facto criminalised dissent or opposition.

8.2.3.12

Finland

In January, the Helsinki Court of Appeals denied a request for early release of Pastor François Bazaramba from his sentence of life imprisonment.472 Bazaramba was convicted in 2012 for his role in the 1994 genocide. The Helsinki District Court also found a corporal in the Iraqi army guilty of committing war crimes.473 He was given a 18-month suspended sentence for decapitating the corpse of an ISIS militant, which constitutes the war crime of desecrating and violating the dignity of a dead body.

8.2.3.13

France

In June, France arrested three individuals for alleged crimes against humanity committed in Chad and Sudan between 2005 and 2010.474 Amongst them was General Mahamat Nouri, who planned a failed coup against current President of Chad Idriss Deby in 2008. In September, nine Sudanese victims filed a criminal complaint in a French court relating to alleged complicity of BNP Paribas (BNPP) in crimes against humanity,

471 Reuters (2019) Abiy’s Ethiopia pardons 13,000 accused of treason or terrorism. https://www. reuters.com/article/us-ethiopia-politics/abiys-ethiopia-pardons-13000-accused-of-treason-or-ter rorism-idUSKCN1PG1IZ. Accessed 23 April 2020. 472 The New Times (2019) Finnish court denies request for early release by genocide convict Bazaramba. https://www.newtimes.co.rw/news/finnish-court-denies-request-early-release-gen ocide-convict-bazaramba?fbclid=IwAR2JvaU5BgbuINbW-a4nd1bb1IWw3cwELqBj_0Ko5OED yj18lHXRCRzPQXU. Accessed 23 April 2020. 473 Asharq Al-Awsat (2019) Finland Court Sentences Iraqi Ex-soldier for War Crimes. https:// english.aawsat.com//home/article/1542996/finland-court-sentences-iraqi-ex-soldier-war-crimes. Accessed 19 May 2020. 474 Reuters (2019) Chad opposition leader arrested in France on crime against humanity charges. https://www.reuters.com/article/us-chad-france/chad-opposition-leader-arrested-in-france-oncrime-against-humanity-charges-idUSKCN1TI1IB. Accessed 23 April 2020.

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torture and genocide in Sudan.475 The filing was supported by the International Federation for Human Rights and Project Expedite Justice. Between 2002 and 2008, the Sudanese government is alleged to have committed numerous international crimes which led to the death of more than 300,000 civilians. In proceedings in the US related to BNPP’s breach of US sanctions, the company admitted to acting as Sudan’s foreign bank during this period. Investigations are also ongoing in France relating to BNPP’s role in the 1994 genocide in Rwanda. In the same month, the lawyer representing 23 civil parties in the case relating to the 2015 Paris terrorist attacks applied to the Paris Public Prosecutor’s Office to try the defendant Salah Abdeslam for crimes against humanity instead of terrorism offences.476 Abdeslam was the only surviving perpetrator of the attacks in Paris and Saint-Denis that left 131 dead and almost 500 injured. In October, the French Court of Cassation upheld the life sentence of two Rwandans who were convicted of genocide and crimes against humanity committed in 1994 in Rwanda.477 Octavian Ngenzi and Tito Barahira, successive Mayors of the former Kabarondo Commune, were accused of participating in the massacre of Tutsi refugees at the Kabarondo Catholic Church, resulting in the death of 1,200 people. Towards the end of the year, a Paris Court of Appeal overturned the decision to prosecute the French company Lafarge for crimes against humanity, but upheld the charges of financing terrorism.478 Lafarge continued to be under investigation over allegations that a subsidiary of the company continued to operate factories during the conflict in Syria and paid money to intermediaries who negotiated with IS to transfer employees and supplies through dangerous areas in order to evacuate the country.

8.2.3.14

Gambia

In October, the Trust Fund of the Truth, Reconciliation and Reparations Commission (TRRC) in The Gambia was to receive USD 1 million from assets seized from former President Yahya Jammeh.479 The funds were to provide compensation to victims of Jammeh’s regime. The Trust Fund was unique in that the compensation was paid 475 International

Federation for Human Rights (2019) Sudanese victims ask French judges to investigate BNP Paribas’ role in atrocities. https://www.fidh.org/en/region/Africa/sudan/sudanesevictims-ask-french-judges-to-investigate-bnp-paribas-role-in?fbclid=IwAR2LzmBwDZ5n0gio ZTZhz3o-IReb_RgcfH4h-206LoW7TA5VnW7VfO3H1I4. Accessed 23 April 2020. 476 The Brussels Times (2019) Lawyer wants to try Salah Abdeslam for “crimes against humanity”, not terrorism. https://www.brusselstimes.com/all-news/belgium-all-news/66716/lawyer-wants-totry-salah-abdeslam-for-crimes-against-humanity-not-terrorism/. Accessed 23 April 2020. 477 The New Times (2019) French court upholds life sentence for two Genocide convicts. https:// www.newtimes.co.rw/news/french-court-upholds-life-sentence-two-genocide-convicts. Accessed 23 April 2020. 478 The New York Times (2019) Terrorism Financing Charge Upheld Against French Company Lafarge. https://www.nytimes.com/2019/11/07/business/lafarge-terrorism-syria.html. Accessed 5 May 2020. 479 Justice Info (2019) GAMBIA: Jammeh’s Wealth to go to his Victims. https://www.justiceinfo. net/en/reparations/42679-gambia-jammeh-wealth-victims.html. Accessed 30 April 2020.

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directly from the TRRC. The Gambia’s Justice Minister Abubacarr Tambadou stated that “former President Yahya Jammeh was a central pillar of terror and human rights abuses that were unleashed on ordinary Gambians and others under his leadership. Consequently, the government deemed it more fitting and just that reparations for his victims should be granted directly from his wealth and assets”. An investigation by the Gambian government uncovered that Jammeh stole USD 362 million from the State during his time as President.

8.2.3.15

Germany

In April, the trial of German national Jennifer W. for war crimes commenced in Munich.480 The charges against her include murder, war crimes, membership of a foreign terrorist organisation, and weapons violations, for which she faces a life sentence. The woman travelled to Iraq in 2013 to join IS and was deported back to Germany in 2016 whilst trying to renew travel documents in Turkey. In October, Taha A.-J., an Iraqi national and the alleged husband of Jennifer W., was extradited from Greece to Germany. He faces charges of genocide, crimes against humanity, war crimes, and human trafficking.481 Taha A.-J. is alleged to have been a member of IS since 2013. German prosecutors allege Taha A.-J. was married to German national Jennifer W. and that in 2015 the couple bought a five-year-old Yazidi girl and her mother as slaves. Whilst enslaved, the mother and child were forced to convert to Islam and were beaten, with the child dying of dehydration whilst chained outdoors. The Prosecution argued that this killing was part of IS’s wider plan to exterminate Yazidis and constitutes genocide.482 In August, a German court brought charges against a Syrian national for war crimes relating to his involvement in fighting with IS in Syria.483 The suspect was accused of posing with the severed head of what is presumed to be an opposition fighter and mocking the victim. If convicted, the suspect, who was imprisoned for other offences, faces an additional sentence of between one and ten years’ imprisonment.

480 The New York Times (2019) German Woman Goes on Trial in Death of 5-Year-Old Girl Held as

ISIS Slave. https://www.nytimes.com/2019/04/09/world/europe/germany-isis-trial.html. Accessed 23 April 2020. 481 Deutsche Welle (2019) Germany charges Iraqi man with genocide for killing Yazidi child. https://www.dw.com/en/germany-charges-iraqi-man-with-genocide-for-killing-yazidi-child/ a-50800811. Accessed 23 April 2020. 482 Deutsche Welle (2019) German ‘Islamic State’ wife charged with murder of 5-yearold slave. https://www.dw.com/en/german-islamic-state-wife-charged-with-murder-of-5-year-oldslave/a-46889934. Accessed 5 May 2020. 483 Portia K (2019) Syrian man charged with war crimes in Germany. http://www.iclmediareview. com/26-august-2019-syrian-man-charged-with-war-crimes-in-germany. Accessed 23 April 2020.

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In October, prosecutors in Germany charged two alleged former Syrian secret service officers with crimes against humanity.484 Anwar Raslan was alleged to have led an investigation unit that was accused of torturing detainees, and had been charged with 59 counts of murder, as well as rape and aggravated sexual assault. Eyad alGharib was accused of reporting directly to Raslan, and arresting protesters who were then delivered to the investigation unit’s prison, known as ‘Branch 251’. He was charged with abduction and torture. Raslan and Gharib sought asylum in Germany in 2014 and 2018 respectively and were arrested in February in a joint operation by German and French police. The trial is set to start in 2020.

8.2.3.16

Guatemala

Towards the beginning of the year, the Guatemalan Congress voted to reform the national reconciliation law and give absolute immunity for crimes against humanity including genocide and rape. Michelle Bachelet, the UN High Commissioner for Human Rights, stated that this move constitutes a “drastic step backwards for rule of law and victims’ rights”.485 Furthermore, Guatemalan lawmakers moved forward with a proposal to grant amnesty for war crimes committed during the country’s 36-year civil war.486 The bill would free more than 30 former army officers, soldiers and civil defence patrolmen within 24 hours and halt investigations into thousands of cases. Backers of the amnesty said they were trying to move on and promote peace, but victims and their families described the bill as a denial of justice and a negation of history. In December, a former senior military official was indicted in Guatemala on charges of genocide and crimes against humanity allegedly committed during the civil war.487 Luis Enrique Mendoza Garcia was due to be tried in March for his role in an operation in the 1980s that led to the death of at least 1,771 of the Maya Ixil indigenous group and the displacement of thousands of individuals. Mendoza Garcia was at the time the fourth military official to be indicted for genocide against the Maya Ixil community, alongside Benedicto Lucas Garcia, Manuel Callejas, and Cesar Noguera. 484 The Guardian (2019) Germany charges two Syrians with crimes against humanity. https://www. theguardian.com/law/2019/oct/29/germany-charges-two-syrians-with-crimes-against-humanity. Accessed 23 April 2020. 485 The Guardian (2019) ‘A drastic step backwards’: Guatemala considers amnesty for war crimes. https://www.theguardian.com/world/2019/feb/07/guatemala-war-criminals-crimes-against-hum anity-amnesty?fbclid=IwAR289IsxYd3Bqf5GbMWYs1IUBDjELHYoIv9DkHPQhOeUg0b1F HByASoYL_A. Accessed 23 April 2020. 486 The New York Times (2019) Vote Could Free More Than 30 Men Accused of War Crimes in Guatemala. https://www.nytimes.com/2019/03/12/world/americas/guatemala-military-amnestywar-crimes.html. Accessed 23 April 2020. 487 Reuters (2019) Guatemala to try more former top military officials for Maya genocide. https://www.reuters.com/article/us-guatemala-justice/guatemala-to-try-more-former-top-mil itary-officials-for-maya-genocide-idUSKBN1Y402K. Accessed 23 April 2020.

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Iraq

In August, the UN Special Rapporteur on extrajudicial, summary and arbitrary executions Agnes Callamard expressed concerns that fair trial standards had not been accorded to a group of French nationals convicted of terrorism offences and sentenced to death in Iraq.488 It was reported that these individuals were subject to torture and ill-treatment whilst detained. The Special Rapporteur urged the French government to enter into an extradition agreement with Iraq, stating “there are serious allegations that the sentences were handed down following unfair trials, with the accused having no adequate legal representation or effective consular assistance”.

8.2.3.18

Kosovo

In May, a Kosovo parliamentary commission approved a draft resolution accusing Serbia of committing genocide against Albanians during the Yugoslav war.489 The resolution alleged that Serbians were responsible for over 270 killings and that 1,600 people still remain missing. It also proposed a Day of Commemoration of Genocide against Albanians in Kosovo, called on Serbia to recognise that it committed genocide and crimes against humanity, and requested the introduction of laws penalising justification, minimisation, or denial of the genocide in Kosovo. In November, the Djakovica’s Office for the Collection and Documentation of War Crimes in Kosovo filed 102 new criminal complaints to the police relating to alleged war crimes committed by Serbian nationals.490 This was the thirteenth time the Djakovica’s Office had filed criminal complaints of this nature, bringing the total number of complaints to around 1,600. Its head, Shkendije Hoda, stated: “The aim of these complaints is to provide help and provide evidence about war crimes. We see that the police have the will to deal with our evidence”.491

8.2.3.19

Liberia

In September, Liberian President George Weah endorsed the creation of a war crimes court to secure justice for the atrocities committed during Liberia’s civil wars. In a letter to the legislature, President Weah wrote: “I do hereby call on the National 488 OHCHR (2019) UN expert urges efforts from France for the return of 7 nationals awaiting execu-

tion in Iraq. https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=24887& LangID=E. Accessed 30 April 2020. 489 Balkan Insight (2019) Kosovo MPs Draft Resolution Accusing Serbia of Genocide. https://balkan insight.com/2019/05/08/kosovo-mps-draft-resolution-accusing-serbia-of-genocide/. Accessed 23 April 2020. 490 Perparim I (2019) Kosovo Town Files More War Crimes Complaints Against Serbs. https://balkan insight.com/2019/10/28/kosovo-town-files-more-war-crimes-complaints-against-serbs/. Accessed 23 April 2020. 491 Ibid.

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Legislature to advise and provide guidance on all legislative and other necessary measures towards the implementation of the [Truth and Reconciliation Commission] report, including the establishment of the Economic and War Crimes Court.”492 To date, the few cases dealing with crimes committed during the Liberian civil wars have been dealt with outside of Liberia, pursuant to universal jurisdiction.

8.2.3.20

Lithuania

In March, a Lithuanian court found the Soviet Union’s last Defence Minister, Dmitry Yazov, guilty of war crimes and sentenced him to ten years’ imprisonment in absentia.493 The conviction was part of a trial of over 60 former Soviet officials for the violent suppression of Lithuania’s independence movement in January 1991 that left 14 people dead and hundreds injured.494

8.2.3.21

Montenegro

In July, the High Court in Podgorica, Montenegro, convicted former Yugoslav soldier Vlado Zmajevic of war crimes in relation to the murder of four ethnic Albanians in Zegra, Kosovo, in 1999.495 Zmajevic faces 14 years’ imprisonment for the war crime of attacking the civilian population. This was the first war crimes trial in Montenegro in recent years, with only six other cases having previously been opened. Later in the year, Montenegro’s Court of Appeal confirmed the conviction of Zmajevic of war crimes.496 This judgment was final and cannot be appealed.

8.2.3.22

Netherlands

The beginning of the year saw the preparation of four high-profile cases in the Netherlands regarding the war in Syria. Using the principle of universal jurisdiction,

492 Human

Rights Watch (2019) Liberia: President Backs War Crimes Court. https://www.hrw.org/ news/2019/09/17/liberia-president-backs-war-crimes-court. Accessed 23 April 2020. 493 Associated Press (2019) Lithuania convicts ex-USSR defense minister of war crimes. https:// apnews.com/87adc19c7b004b57a10e9116b389f050. Accessed 23 April 2020. 494 Dmitry K (2019) A former Soviet defense minister has been sentenced to 10 years in prison by a Lithuanian court. What for? Why now? https://meduza.io/en/feature/2019/04/01/a-former-sov iet-defense-minister-has-been-sentenced-to-10-years-in-prison-by-a-lithuanian-court-what-forwhy-now. Accessed 5 May 2020. 495 Samir K (2019) Montenegro Convicts Ex-Soldier of Kosovo War Crime. https://balkaninsight. com/2019/06/05/montenegro-convicts-ex-soldier-of-kosovo-war-crime/. Accessed 23 April 2020. 496 Balkan Transitional Justice (2019) Montenegro Jails Yugoslav Soldier in Rare War Crimes Verdict. https://balkaninsight.com/2019/12/11/montenegro-jails-yugoslav-soldier-in-rarewar-crimes-verdict/. Accessed 23 April 2020.

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the Syria Legal Network attempted to obtain damages on behalf of Syrian citizens for their pain and suffering.497 In June, the Dutch Public Prosecution Service announced charges against four suspects for their alleged involvement in the downing of Malaysia Airlines flight MH17 in July 2014. According to investigators of the Joint Investigation Team (JIT), the accused were allegedly responsible for bringing the anti-aircraft system used in the attack from Russia to eastern Ukraine. A trial in the District Court in The Hague was due to begin on 9 March 2020.498 Moreover, the trial of two Dutch alleged IS members commenced in July in the International Crimes Chamber of the Hague District Court.499 Oussama Achraf Akhlafa was charged with war crimes allegedly committed in Iraq and Syria, including posing with a corpse and sharing images of dead victims online, as well as membership of a terrorist organisation. The second defendant, Reda Nidalha, was accused of membership of a terrorist organisation and recruiting radical jihadists via Facebook. This was the first trial in the Netherlands dealing with war crimes committed by alleged IS members. Additionally, in September the trial of a Syrian national accused of committing war crimes in Syria commenced in the Netherlands under Dutch universal jurisdiction laws.500 It was alleged that Ahmad al Khedr was a member of the Al Nusra Front. He has been charged with membership of a terrorist organisation, as well as the war crime of murder in relation to the summary execution of a Syrian soldier. Al Khedr had been living in the Netherlands since 2014, where he had been granted temporary asylum. Finally, the Hague District Court held a hearing on a war crimes case against former Israeli Commander Benny Gantz.501 The claimant was a Dutch/Palestinian man who sought damages from the accused and a co-defendant, Amir Eshel, for their role in killing six of his relatives during the 2014 Gaza War. The Counsel for the defendants argued that a Dutch court was not the appropriate forum for the 497 Balkan Insight (2019) Lawyers Take Fight for Syrian Reparations to Dutch Courts. https://balkan insight.com/2019/01/07/lawyers-take-fight-for-syrian-reparations-to-dutch-courts-01-04-2019/? fbclid=IwAR2yBeucaMQaoU8cvW6QskpUZPRmd6c89t0Mg_kYgYEGw_yISeepERU-SZE. Accessed 23 April 2020. 498 ICL Media Review (2019) Joint Investigation Team names for suspects for the downing of flight MH17, trial to start in 2020. http://www.iclmediareview.com/19-june-2019-joint-investiga tion-team-names-for-suspects-for-the-downing-of-flight-mh17-trial-to-start-in-2020. Accessed 30 April 2020. For information on the Ukraine conflict, including the downing of MH17, see above Sect. 8.1.14. 499 Reuters (2019) Alleged Islamic State fighter on trial in Netherlands for war crimes. https:// www.reuters.com/article/us-netherlands-syria-warcrimes/alleged-islamic-state-fighter-on-trial-innetherlands-for-war-crimes-idUSKCN1U31JV. Accessed 27 April 2020. 500 Middle East Monitor (2019) Syrian war crimes suspect appears in Dutch court. https://www.mid dleeastmonitor.com/20190902-syrian-war-crimes-suspect-appears-in-dutch-court/. Accessed 27 April 2020. 501 Aljazeera (2019) Palestinian sues former Israeli commander Gantz for war crimes. https:// www.aljazeera.com/news/2019/09/palestinian-sues-israeli-commander-gantz-war-crimes-190917 143654215.html. Accessed 27 April 2020.

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matter, which should be dealt with in Israel, with the claimant’s lawyer arguing that Palestinians did not have recourse to justice in Israel. A decision as to whether the case could proceed was expected in January 2020.

8.2.3.23

New Zealand

In May, the man accused of killing 51 people in the Christchurch mosques attack in New Zealand on 15 March was charged with the offence of “engaging in a terrorist act”, in addition to facing murder and attempted murder charges.502 It is the first time anyone in New Zealand has been charged with this offence.

8.2.3.24

Norway

In November, five torture survivors from Syria filed a criminal complaint in Norway against officials from the Syrian intelligence services and military.503 The victims, supported by several human rights groups, requested Norwegian prosecutors to investigate the allegations of torture and crimes against humanity. Seventeen officials were identified as being involved in the alleged crimes committed in 14 different detention facilities.

8.2.3.25

Pakistan

In November, the Supreme Court of Pakistan released a decision on the definition of terrorism.504 The decision discussed the development of the definition of terrorism under Pakistani law, highlighting the emergence of a concept of terrorism based upon the objective and motivation of the particular crime. In particular, an act would be considered terrorism if it is intended to undermine the State, rather than based on whether it causes fear and insecurity in society. The Supreme Court indicated that this approach was more consistent with international perspectives than the previous ‘effects-based’ definition adopted in Pakistan, calling on the legislature to amend and clarify terrorism legislation to reflect the current approach.

502 BBC

News (2019) Christchurch shootings: Mosque attacker charged with terrorism. https:// www.bbc.com/news/world-asia-48346786. Accessed 23 April 2020. 503 ECCHR (2019) Norway: Syrian Torture Survivors File Criminal Complaint Against Assad’s Senior Intelligence Officers. https://www.ecchr.eu/en/case/norway-syrian-torture-survivors-file-cri minal-complaint-against-assads-senior-intelligence-officer/. Accessed 30 April 2020. 504 News 18 (2019) Pakistan Top Court Urges Parliament to Redefine ‘Terrorism’ in Line with International Perspectives. https://www.news18.com/news/world/pakistan-top-court-urges-parliamentto-redefine-terrorism-in-line-with-international-perspectives-2367937.html. Accessed 5 May 2020.

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Romania

In April, Romania’s former President Ion Iliescu was charged with crimes against humanity for his role in the revolution that overthrew the communist regime in 1989.505 Iliescu, alongside former Deputy Prime Minister Gelu Voican Voiculescu and former Air Force Commander Iosif Rus, was accused of spreading disinformation to spread terror, as well as simulating a trial to summarily convict and execute communist leader Nicolae Ceau¸sescu and his wife Elena. Approximately 862 people were killed during the revolt.

8.2.3.27

Saudi Arabia

In April, Saudi Arabia executed 37 people, 33 of whom were part of the country’s Shi’a minority, in connection with terrorism-related crimes.506 A statement by the official Saudi Press Agency indicated the men were executed “for adopting terrorist and extremist thinking and for forming terrorist cells to corrupt and destabilise security”.507 Amnesty International expressed concerns about Saudi Arabia’s escalating use of the death penalty and of sham trials violating international standards as well as allegedly using torture evidence, stating in particular that “the death penalty is being used as a political tool to crush dissent from within the country’s Shi’a minority”.508

8.2.3.28

South Africa

In November, the South African government put before the South African Parliament’s Justice and Correctional Services Committee a bill that would initiate the process for withdrawal from the Rome Statute.509 The bill is intended to criminalise genocide, crimes against humanity, and war crimes and create an alternative system to the ICC to prosecute international crimes at the domestic level. South Africa was reprimanded by the ICC in 2015 for failing to arrest then sitting President of Sudan 505 BBC

News (2019) Ion Iliescu: Romania’s ex-leader charged with crimes against humanity. https://www.bbc.com/news/world-europe-47858664. Accessed 30 April 2020. 506 The New York Times (2019) Saudi Arabia Executes 37 in One Day for Terrorism. https://www. nytimes.com/2019/04/23/world/middleeast/saudi-arabia-executions.html. Accessed 27 April 2020. 507 Aljazeera (2019) Saudi Arabia executes 37 in connection with terrorism. https://www.aljaze era.com/news/2019/04/saudi-arabia-executes-37-connection-terrorism-190423140531849.html. Accessed 27 April 2020. 508 Amnesty International (2019) Saudi Arabia: 37 put to death in shocking execution spree. https://www.amnesty.org/en/latest/news/2019/04/saudi-arabia-37-put-to-death-in-shockingexecution-spree/. Accessed 13 May 2020. 509 ICL Media Review (2019) 5 November 2019 – SA Government preparing to quit ICC, Sudan protest group has no objections to sending Al-Bashir to ICC. http://www.iclmediareview.com/5november-2019-sa-government-preparing-to-quit-icc-sudan-protest-group-has-no-objections-tosending-al-bashir-to-icc. Accessed 2 May 2020.

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Omar Al-Bashir during a visit to South Africa, in spite of a warrant for his arrest that had been issued by the ICC. In support of the bill, the South African government cited concerns that the ICC did not operate in compliance with international law by failing to respect the immunity of Heads of States. The leader of the opposition party Democratic Alliance has indicated the party was expected to oppose the bill.

8.2.3.29

Sri Lanka

In April, a delegation from the UN Subcommittee on the Prevention of Torture arrived in Sri Lanka to investigate allegations of torture, which continued since the end of the civil conflict in 2009.510 The delegation was slated to meet with government bodies, the Human Rights Commission of Sri Lanka and other civil society actors. This visit came just after the UN Human Rights Council passed a resolution granting Sri Lanka another two years to implement processes ensuring reconciliation, accountability and human rights. A report from Freedom from Torture states that “torture has continued in a context of ongoing security operations in post-conflict Sri Lanka, despite the new government’s promise of a ‘zero tolerance’ policy on torture”.511

8.2.3.30

Sudan

In April, the President of Sudan, Omar al-Bashir, was deposed by the Sudanese military.512 The Transitional Military Council that took over governance of Sudan indicated that they would not surrender al-Bashir to the ICC, which issued two warrants for his arrest in 2009 and 2010 for crimes against humanity, war crimes, and genocide. In May, Sudanese prosecutors announced that former President Omar al-Bashir had been charged in relation to the killing of protestors during demonstrations that led to his removal from government.513 It was reported that the Prosecutor’s Office indicated that al-Bashir and others had been accused of incitement and complicity in relation to these deaths. In that same month, the prosecutors ordered the interrogation of al-Bashir on charges of money laundering and financing of terrorism.514 The prosecutors indicated that other senior officials will also be investigated.

510 Varun N (2019) UN torture prevention body visits Sri Lanka. https://www.jurist.org/news/2019/ 04/un-torture-prevention-body-visits-sri-lanka/. Accessed 27 April 2020. 511 Freedom from Torture 2019, p 1. 512 BBC News (2019) Sudan crisis: Military council arrests former government members. https:// www.bbc.com/news/world-africa-47929137. Accessed 27 April 2020. 513 The New York Times (2019) Sudan’s Omar al-Bashir Charged in Connection With Killing of Protesters. https://www.nytimes.com/2019/05/13/world/africa/al-bashir-charged-sudan. html. Accessed 27 April 2020. 514 Reuters (2019) Prosecutor orders Sudan’s Bashir interrogated. https://af.reuters.com/article/top News/idAFKCN1S90JN-OZATP. Accessed 27 April 2020.

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Sweden

Early in the year, a Swedish court convicted a man who fought against IS in Iraq of war crimes related to the posting of macabre pictures and videos on Facebook.515 The asylum-seeker, who arrived in Sweden in late 2015 with his wife and two children, confessed to being in the pictures but denied committing war crimes. In November, an Iranian national was detained in Sweden pending a decision by Swedish prosecutors as to whether he would be charged with crimes against humanity.516 Hamid Nouri was arrested upon arrival at the international airport in Stockholm. He was accused of involvement in the execution of thousands of political prisoners in 1988 in his former position as Assistant Prosecutor in Iran’s prison system. This was the first time that a high-level Iranian official would be prosecuted in a foreign country for crimes committed in Iran pursuant to the principle of universal jurisdiction.

8.2.3.32

Switzerland

In February, Switzerland’s Federal Supreme Court rejected the opposition to a recently unveiled monument in Geneva commemorating the Armenian genocide.517 Opposition from Turkey also made the monument a diplomatic headache for the Swiss government. The genocide was recognised by the parliament of Geneva in 2001 and by the Swiss Federal Parliament in 2003. The month that followed saw prosecutors in Switzerland indicting a Liberian national, Alieu Kosiah, for war crimes allegedly committed during the first Liberian civil war.518 This was the first instance of an international criminal law indictment in the Swiss criminal justice system. The suspect was accused of being a former commander for the United Liberation Movement of Liberia for Democracy and of committing murders, rape, and other activities “aimed at enslaving and terrorising the population in the Lofa County between 1993 and 1995”.

515 ABS News (2019) Iraqi man convicted in Sweden of war crimes. https://abcnews.go.com/Intern

ational/wireStory/iraqi-man-convicted-sweden-war-crimes-61161483?fbclid=IwAR3DrHrDZ9 OHf8h4Rf4SP5W_ci3DJ5rrAMTOkgBg9WCw1NT2s_ashWg6vJw. Accessed 27 April 2020. 516 The Times (2019) Hamid Nouri: Iranian accused in mass purge of dissidents is arrested in Sweden. https://www.thetimes.co.uk/article/hamid-nouri-iranian-accused-in-mass-purge-of-dissid ents-is-arrested-in-sweden-88pbhrbmf. Accessed 30 April 2020. 517 Swissinfo (2019) Federal Court rejects opposition to Armenia genocide memorial. https:// www.swissinfo.ch/eng/-streetlights-of-memory-_federal-court-rejects-opposition-to-armenia-gen ocide-memorial/44765738?fbclid=IwAR3rnjVrd-v55eNKLrnDItSgMsaxH4QP_BR1QpPcshY MXB3855CiW_ytjLs. Accessed 27 April 2020. 518 Swissinfo (2019) Liberian rebel leader Alieu Kosiah to face Swiss trial. https://www.swissi nfo.ch/eng/international-crimes_liberian-rebel-leader-alieu-kosiah-to-face-swiss-trial/44851854. Accessed 27 April 2020.

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Thailand/Malaysia

In April, the Human Rights Commission of Malaysia and Thai human rights group Fortify Rights released a report accusing a transnational crime syndicate of committing crimes against humanity by trafficking Rohingya Muslims from Myanmar, as well as Bangladeshi citizens travelling to Malaysia.519 According to the report, between 2012 and 2015, approximately 170,000 people fled to Indonesia, Malaysia, and Thailand following violence in Myanmar. Traffickers were accused of murder, enslavement, imprisonment, torture, rape, starvation, and the forced displacement of victims during this period. Mass graves were discovered in both Thailand and Malaysia. Thailand convicted over 60 people for human trafficking in 2017, including nine government officials, but according to Fortify Rights such investigations did not occur in Malaysia. It has been reported that human traffickers profited from between USD 50 to 100 million each year from this trade.

8.2.3.34

Uganda

In October, the proceedings against Thomas Kwoyelo in the International Crimes Division of the Ugandan High Court were indefinitely adjourned.520 The adjournment related to a dispute between the Prosecution and Defence about the use of closed sessions. Kwoyelo was a former LRA commander who had been charged with 93 counts of war crimes and crimes against humanity allegedly committed between January 1995 and December 2005 in northern Uganda.

8.2.3.35

United Arab Emirates

In March, eight Lebanese citizens, according to their families, were charged with terrorism in the UAE.521 All were Shia Muslims, and Human Rights Watch reported that they had been subjected to prolonged solitary confinement and denied legal representation in a trial “marred with violations”.522 The charges were yet to be made public, with UAE media reporting the group had links to Hezbollah, a group that has been categorised as a terrorist organisation by the UAE. 519 Fortify

Rights (2019) Malaysia: Ensure Accountability for Mass Graves, Human Trafficking Atrocities Against Rohingya. https://www.fortifyrights.org/mly-inv-2019-03-27/. Accessed 27 April 2020. 520 Lino O (2019) Dispute over Use of Closed Sessions Postpones Kwoyelo’s Trial. https://www. ijmonitor.org/2019/10/dispute-over-use-of-closed-sessions-postpones-kwoyelos-trial/. Accessed 2 May 2020. 521 Aljazeera (2019) HRW: Eight Lebanese citizens face ‘terrorism’ trial in UAE. https://www. aljazeera.com/news/2019/03/hrw-lebanese-citizens-face-terrorism-trial-uae-190325112215201. html. Accessed 27 April 2020. 522 Human Rights Watch (2019) UAE: Eight Lebanese Face Unfair Trial. https://www.hrw.org/news/ 2019/03/25/uae-eight-lebanese-face-unfair-trial. Accessed 20 May 2020.

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United Kingdom

In October, the first person to be tried for terrorism offences in the UK for fighting against IS was convicted.523 Aidan James was found guilty of attending a terrorist training camp in Iraq. He travelled to Iraq in August 2017, where he underwent combat training with the People’s Protection Units (YPG) and had several interactions with the PKK. He arrived back in the UK in February 2018, where he was arrested upon arrival at Liverpool airport and charged with terrorism offences the following day. He was sentenced to four years’ imprisonment.524 In November, in response to a BBC Panorama/Sunday Times joint investigation which found that the UK armed forces had been involved in repeatedly covering up evidence of war crimes committed in Iraq and Afghanistan, a joint letter authored by the directors of a number of human rights organisations called on whichever political party that would form the next UK government to take action to address these allegations.525 The crimes revealed in the investigation included the murder of children, torture, and the killing of civilians. The letter called for a prompt and effective investigation by a fully independent body, where appropriate, measures leading to the domestic prosecution of those responsible, as well as cooperation with any investigation by the ICC. At the end of the year, charges against former Liberian first lady Agnes Reeves Taylor were dismissed in a UK court.526 Taylor has been charged with torture and conspiracy to commit torture allegedly committed during Liberia’s civil wars and has remained in custody since her arrest in 2017. Her ex-husband, former Liberian President Charles Taylor, is currently serving a 50-year sentence for aiding and abetting war crimes and crimes against humanity committed in Sierra Leone.

8.2.3.37

United States of America

The year commenced with the opening of the trial before a US military court in San Diego against Edward Gallagher, a US Navy SEAL who was charged with a number of war crimes related to the fatal stabbing of a 17 year old IS member in a US military hospital and the attempted murder of civilians.527 In the high-profile case, 523 BBC News (2019) British man who fought against IS guilty of terrorism charge. https://www. bbc.com/news/uk-england-merseyside-50167158. Accessed 30 April 2020. 524 BBC News (2019) British man Aidan James who fought against IS jailed. https://www.bbc.com/ news/uk-england-merseyside-50329077. Accessed 20 May 2020. 525 Human Rights Watch (2019) Joint Letter on UK War Crimes Cover-Up Allegations. https://www. hrw.org/news/2019/11/25/joint-letter-uk-war-crimes-cover-allegations. Accessed 2 May 2020. 526 Aljazeera (2019) UK judge dismisses charges against Charles Taylor’s ex-wife. https://www. aljazeera.com/news/2019/12/uk-judge-dismisses-charges-charles-taylor-wife-191206182523674. html. Accessed 30 April 2020. 527 Los Angeles Times (2019) Seven SEALs granted immunity in Iraq war crimes trial at Naval Base San Diego. https://www.latimes.com/local/lanow/la-me-ln-seals-granted-immunity-in-mur der-trial-20190126-story.html. Accessed 27 April 2020.

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Gallagher had also been charged with first-degree murder, and was acquitted on both charges.528 Gallagher was however convicted for posing and taking a photograph with a dead body. The conviction was later reversed through a pardon by US President Donald Trump. Immunity had been granted to seven Navy SEALs to testify for the prosecution during the trial on 19 February. Furthermore, the US District Court for Eastern Pennsylvania found that claims which involved war crimes and crimes against humanity that were committed within Liberia could be brought before US courts under the Alien Tort Statute.529 The plaintiffs were survivors of the St. Peter’s Lutheran Church massacre that took place in Monrovia, Liberia, in July 1990, during the first Liberian civil war. The Court found that the claims sufficiently “touch and concern” the US to “displace the presumption against extraterritorial application”.530 In March, a New York Federal Court Judge dismissed a case against Germany relating to the alleged genocide in Namibia in the early 1900s.531 The claim was brought in relation to allegations of colonial German troops killing tens of thousands of Herero and Nama people in what was then called German South West Africa under an extermination order issued by German General Lothar von Trotha. The case was dismissed as inadmissible on the basis of the principle of sovereign immunity, making prosecution of Germany impossible. Lawyers representing the plaintiffs stated that they intended to appeal the decision. In June, Libyan warlord General Khalifa Haftar was sued for alleged war crimes in a US Federal Court by four Libyan families.532 Haftar, a dual Libyan-US citizen, was accused of carrying out indiscriminate bombings in Libya, resulting in many civilian deaths. Since April, Haftar made advances towards Tripoli with the aim of seizing power from the internationally recognised government established there by a peace agreement of 2015. Later in the year, a date was set to January 2021 for the war crimes trial of the five men accused of planning and supporting the September 11 terrorist attacks.533 The trial was scheduled to take place at Guantánamo Bay where the defendants have 528 The New

York Times (2019) Navy SEAL Chief Accused of War Crimes Is Found Not Guilty of Murder. https://www.nytimes.com/2019/07/02/us/navy-seal-trial-verdict.html. Accessed 27 April 2020. 529 Just Security (2019) Liberian War Crimes Claims Survive in Alien Tort Statute Case. https:// www.justsecurity.org/62741/liberian-war-crimes-claims-survive-alien-tort-statute-case/. Accessed 27 April 2020. 530 The plaintiffs in the case are survivors of the St. Peter’s Lutheran Church Massacre on 29 July 1990 in the capital Monrovia. See ibid. 531 Deutsche Welle (2019) US judge dismisses Namibian genocide claims against Germany. https:// www.dw.com/en/us-judge-dismisses-namibian-genocide-claims-against-germany/a-47816283. Accessed 27 April 2020. 532 NBC News (2019) Libyan warlord praised by Trump is sued in U.S. for alleged rights abuses, war crimes. https://www.nbcnews.com/news/world/libyan-warlord-trump-praised-sued-u-s-alleged-rig hts-abuses-n1022001. Accessed 27 April 2020. 533 PBS (2019) Trial in 9/11 case at Guantanamo gets early 2021 start date. https://www.pbs.org/new shour/nation/trial-in-9-11-case-at-guantanamo-gets-early-2021-start-date. Accessed 27 April 2020.

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been held since 2006. The war crimes charges include terrorism, hijacking and almost 3,000 counts of murder. Two US soldiers, Lieutenant Clint Lorance and Major Mathew Golsteyn, were granted presidential pardons in relation to war crimes.534 Lorance had been convicted and sentenced to 19 years’ imprisonment for the shooting of Afghani civilians in 2013, whilst the trial of Golsteyn for allegedly executing an unarmed Afghani civilian suspected of being a Taliban bomb-maker was set to commence in February 2020.

8.2.3.38

Vietnam

In November, a court in Vietnam convicted an Australian national of the crime of ‘terrorism to oppose the people’s administration’ and sentenced him to 12 years’ imprisonment, alongside two Vietnamese citizens.535 The three men belonged to an organisation designated by the Vietnamese government as a terrorist organisation, the Viet Tan, which has been described by the UN as “a peaceful organisation advocating for democratic reform”. The group called the proceedings a “sham trial” and accused the government of “criminalizing human rights advocacy”.536

8.3 Arms Control and Disarmament 8.3.1 Arms Trade The fifth Conference of States Parties (CSP) to the Arms Trade Treaty (ATT) was held in August. Its general theme as well as the recommendations in its final report, adopted unanimously, were focused on the issue of gender equality and genderbased violence.537 The CSP committed itself to striving for gender balance in the delegations, formal sessions, and side events during the CSP.538 It also recommended increased understanding of the gender impact of armed conflict in the context of the

534 The New York Times (2019) Trump Clears Three Service Members in War Crimes Cases. https:// www.nytimes.com/2019/11/15/us/trump-pardons.html. Accessed 27 April 2020. 535 SBS News (2019) Chau Van Kham: Sydney man’s Vietnam terror trial a ‘sham’, says family. https://www.sbs.com.au/news/chau-van-kham-sydney-man-s-vietnam-terror-trial-a-shamsays-family. Accessed 27 April 2020. 536 Ibid. 537 Lainé A (2019) ATT Fifth Conference of States Parties ends in Geneva. https://controlarms.org/ blog/att-fifth-conference-of-states-parties-csp5-ends-in-geneva/. Accessed 29 April 2020. 538 Arms Trade Treaty Secretariat 2019, para 22(a).

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ATT539 and enhanced awareness and training for a better understanding of genderbased violence.540 Further, the issues of enhanced implementation and enforcement as well as financing of activities were discussed.541 The UN General Assembly welcomed the outcomes of the CSP and called upon States which have not yet done so to ratify the ATT and implement it domestically.542 During the CSP, the Control Arms Coalition also presented its ATT Monitor Report 2019.543 The Report entails a review of noteworthy developments from June 2018– May 2019, a chapter on gender and gender-based violence and the ATT, detailed assessments of countries’ 2017 annual reports, and insights from 2018. Palau and Lebanon ratified the ATT in 2019; Botswana, Canada, and the Maldives acceded in 2019.544 By the end of 2019, the ATT had 105 States Parties and 33 additional Signatories; 65 States have not yet joined the treaty.545

8.3.2 Conventional Weapons 8.3.2.1

Conventional Weapons Convention

In November, the Meeting of the High Contracting Parties to the Conventional Weapons Convention (MHCP) took place. The MHCP was used to reaffirm the aim of universal ratification, adherence, and compliance with the Convention.546 No new States ratified or acceded the Conventional Weapons Convention in 2019; the Convention has 125 States Parties and 50 Signatories.547

539 Arms

Trade Treaty, opened for signature 3 June 2013, 3013 UNTS 1 (entered into force 24 December 2014). 540 Ibid., paras 22(b), (c). 541 Ibid., paras 23–38; Lainé A (2019) ATT Fifth Conference of States Parties ends in Geneva. https://controlarms.org/blog/att-fifth-conference-of-states-parties-csp5-ends-in-geneva/. Accessed 29 April 2020. 542 UN General Assembly (2019) General and complete disarmament: the Arms Trade Treaty. Resolution adopted by the General Assembly on 12 December 2019, UN Doc. A/Res/74/49. 543 Control Arms Secretariat 2019. 544 Arms Trade Treaty 2019. 545 Arms Trade Treaty (2019) Treaty Status. https://thearmstradetreaty.org/treaty-status.html?tem plateId=209883. Accessed 29 April 2020. 546 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, opened for signature 10 April 1981, 1342 UNTS 137 (entered into force 2 December 1983). 547 See UN Treaty Collection 2020a.

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Lethal Autonomous Weapons Systems

The Group of Governmental Experts on Emerging Technologies in the Area of Lethal Autonomous Weapons Systems (LAWS GGE), during its 2019 session, adopted an updated set of their 2018 Guiding Principles regarding LAWS, affirming “that international law, in particular the United Nations Charter and International Humanitarian Law (IHL) as well as relevant ethical perspectives, should guide the continued work of the Group”.548 The LAWS GGE decided to add a new Guiding Principle: Human-machine interaction, which may take various forms and be implemented at various stages of the life cycle of a weapon, should ensure that the potential use of weapons systems based on emerging technologies in the area of lethal autonomous weapons systems is in compliance with applicable international law, in particular International Humanitarian Law (IHL). In determining the quality and extent of human-machine interaction, a range of factors should be considered including the operational context, and the characteristics and capabilities of the weapons system as a whole.549

The MHCP endorsed LAWS GGE’s Guiding Principles.550 It was also decided that the LAWS GGE shall reconvene in 2020 for a total of ten days “to explore and agree on possible recommendations on options related to emerging technologies in the area of lethal autonomous weapons systems, in the context of the objectives and purposes of the [Conventional Weapons] Convention”.551

8.3.2.3

Cluster Munitions

The Ninth Meeting of States Parties to the Convention on Cluster Munitions (Cluster Munition MSP) took place in September. In view of several countries requesting an extension of the deadline for completing the destruction of cluster munitions under Articles 3 and 4 of the Convention on Cluster Munitions,552 the Cluster Munition MSP adopted a general Methodology for requests of deadline extensions under Articles 3 and 4 of the Convention on Cluster Munitions.553 It also stressed the importance of States complying with their financial obligations under the Convention and requested the President of the Second Review Conference, to take place in 2020, to

548 Group

of Governmental Experts on Emerging Technologies in the Area of Lethal Autonomous Weapons Systems 2019, Annex IV. 549 Ibid., para 16. 550 Meeting of the High Contracting Parties to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects 2019, paras 28 ff. 551 Ibid., para 31. 552 Convention on Cluster Munitions, opened for signature 3 December 2008, 2688 UNTS 39 (entered into force 1 August 2010). 553 Meeting of States Parties to the Convention on Cluster Munitions 2019, paras 29ff, Annex I.

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explore “[p]ossible measures to address financial predictability and sustainability of the Convention on Cluster Munitions”.554 The 2019 Cluster Munition Monitor documents a total of 149 cluster munition casualties in the reported year of 2018, a significant drop compared to the previous years (289 in 2017; 971 in 2016) and the lowest number in the Monitor’s history.555 However, where assessable, 99% of the documented casualties were civilians, 52% being children.556 The casualties occurred on the territory of four States Parties (Laos, Iraq, Lebanon, Afghanistan) and five non-States Parties (Syria, Yemen, South Sudan, Ukraine, Nagorno-Karabakh557 ), mainly from cluster munition remnants. The only cluster munition attacks documented, of which there were 65 in total, occurred in Syria.558 With the Maldives acceding and the Philippines ratifying the Convention, there are now 108 States Parties and 13 Signatories, while 76 States are not Parties to the Convention.559

8.3.2.4

Landmines

The Fourth Review Conference of the States Parties to the Anti-Personnel Mine Ban Convention560 (RC) took place in November. The thematic discussions revolved around (1) mine clearance and completion deadlines; (2) new use of anti-personnel mines and national reporting; (3) risk education and protection of civilians; (4) victim assistance; (5) integration of a gender perspective in mine action; and (6) cooperation and assistance.561 The RC decided on several requests for an extension of the deadline for completing the destruction of anti-personnel mines and issues connected to funding.562 During the Fourth Annual Pledging Conference for the Implementation of the Anti-Personnel Mine Ban Convention in February, “14 States Parties made pledges to the Implementation Support Unit amounting to approximately [Swiss Francs] CHF

554 Ibid.,

para 64. Munition Coalition 2019, pp 41 ff. 556 Ibid., p 42. 557 The Nagorno-Karabakh region is a disputed territory, but is internationally recognised as part of Azerbaijan. 558 Cluster Munition Coalition 2019, p 43. 559 Cluster Convention 2020; UN Office for Disarmament Affairs 2019. 560 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction, opened for signature 3 December 1997, 2056 UNTS 211 (entered into force 1 March 1999). 561 AP Mine Ban Convention 2019a. 562 Fourth Review Conference of the States Parties to the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction 2019, paras 28 ff. 555 Cluster

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533,000 and five States Parties pledged CHF 79,000 for the Anti-Personnel Mine Ban Convention Sponsorship Programme.”563 The 2019 Landmine Monitor documents at least 3,059 killed and 3,837 injured individuals from landmines in 2018, “less than [in the] three previous years, [but] still almost double the lowest determined annual number of 3.457 casualties in 2013.”564 Most casualties occurred on the territory of seven States Parties (Afghanistan, Yemen, Ukraine, Mali, Iraq, Colombia, Nigeria) and three non-States Parties (Syria, Myanmar, Pakistan).565 No States ratified or acceded the Anti-Personnel Mine Ban Convention in 2019;566 the Convention has 164 States Parties and one Signatory State.567

8.3.3 Non-conventional Weapons 8.3.3.1

Chemical Weapons

The Conference of the States Parties to the Chemical Weapons Convention (CSP), under the auspices of the OPCW, took place in November. Regarding the state of implementation of the Chemical Weapons Convention,568 the OPCW reported on its ongoing efforts in the destruction of chemical weapons.569 Regarding Article VII of the Chemical Weapons Convention (“National Implementation Measures”), the OPCW Director-General concluded that [t]here has been steady progress in the status of implementation of Article VII of the Convention. Out of the 193 States Parties to the Convention, 160 States Parties have adopted national implementing legislation, of which 119 States Parties have legislation covering all the initial measures. Forty-one States Parties have legislation covering some of the initial measures, while 33 States Parties have yet to report on the adoption of legislation.570

The Director-General also updated the delegates about the ongoing successful cooperation with the chemical industry.571 He, moreover, discussed the International

563 AP

Mine Ban Convention 2019b. Campaign to Ban Landmines 2019, p 53. 565 Ibid., p 56. 566 AP Mine Ban Convention 2020a. 567 AP Mine Ban Convention 2020b; International Campaign to Ban Landmines 2019, p X. 568 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, opened for signature 13 January 1993, 1975 UNTS 45 (entered into force 29 April 1997). 569 For the detailed report, see OPCW 2019e. 570 OPCW 2019f, p 1. 571 OPCW 2019b. 564 International

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Support Network for Victims of Chemical Weapons that includes a voluntary trust fund.572 He called upon States Parties to support the Network by (a) providing financial contributions to the Trust Fund; (b) providing medical treatment to victims of chemical weapons in their countries; (c) organising events to raise awareness at the national level of victims of chemical weapons; (d) exchanging information on experiences related to the treatment of victims of chemical weapons, by for example providing research scholarships to the developing States Parties in the field of the treatment of victims of chemical weapons; and (e) facilitating material and equipment-related assistance to States Parties to assist and support the victims of chemical weapons.573

A joint statement by several countries to the CSP concerned the issue of chemical terrorism. The statements called upon “all States Parties to the Convention, within the framework of their national legislation, [to] prevent both natural and legal persons from engaging in any activity prohibited under the Convention, specifically by adopting appropriate criminal legislation and putting into place an effective export control system.”574 Regarding past and ongoing uses of chemical weapons in the Syrian civil war,575 the OPCW Fact-Finding Mission concluded, as mentioned in Sect. 8.1.13, that there are “reasonable grounds [that prove] that the use of a toxic chemical as a weapon took place. This toxic chemical contained reactive chlorine. The toxic chemical was likely molecular chlorine.”576 No State ratified or acceded the Chemical Weapons Convention in 2019;577 a total of 193 States are Party to the Convention, one State (Israel) remains a Signatory, and three States (Egypt, North Korea, South Sudan) are neither Party nor Signatory.578

8.3.3.2

Biological Weapons

The Biological Weapons Convention579 Meeting of the State Parties (Biological Weapons MSP) took place in December. The Biological Weapons MSP “welcomed the increase in the number of ratifications of and accessions to the Convention [and] 572 More

information about the Support Network can be found on its specially dedicated website: https://www.opcw.org/our-work/supporting-victims-chemical-weapons. 573 OPCW 2019c. 574 OPCW 2019d. 575 For developments regarding the conflict in Syria in 2019, including the use of chemical weapons, see above Sect. 8.1.13. 576 OPCW 2019a, para 2.17. For the ongoing work of the Fact-Finding Mission, see https://www. opcw.org/fact-finding-mission. For developments regarding the Syrian civil war in 2019, see above Sect. 8.1.13. 577 See UN Treaty Collection 2020b. 578 OPCW 2020. 579 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, opened for signature 10 April 1972, 1015 UNTS 163 (entered into force 26 March 1975).

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reaffirmed the particular importance of the universality of the Convention”.580 The Biological Weapons MSP also “welcomed the improvement of the financial situation, following the […] establishment of the working capital fund.”581 During the Biological Weapons MSP, observers noted a considerable increase in gender awareness.582 Tanzania ratified the Biological Weapons Convention in 2019.583 The Convention now has 183 State Parties, four Signatory States, while 10 States remain neither.584

8.3.3.3

Nuclear Weapons

In October, the UN General Assembly First Committee on Disarmament and International Security sent a Joint Course of Action to the General Assembly, emphasising “the importance for all States of taking further practical steps and effective measures towards the total elimination of nuclear weapons, in a way that promotes international stability, peace and security, and based on the principle of undiminished and increased security for all”.585 The Treaty on the Prohibition of Nuclear Weapons586 was signed and ratified by a number of States in 2019. While it now has 36 State Parties and 45 Signatory States, it is still awaiting its entry into force for which it needs 50 instruments of ratification, acceptance, approval or accession.587 Following the withdrawal from the JCPOA by the US in 2018,588 Iran recommenced its enrichment of uranium589 and exceeded the limits set by the JCPOA in July.590 China, the EU, France, Germany, Russia, the UK, and Iran, the remaining 580 Meeting of the States Parties to the Convention on the Prohibition of the Development, Production

and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction 2019a, para 19. 581 Ibid., para 23. 582 For an analysis, see Reaching Critical Will 2019. 583 Development Channel (2019) Tanzania ratifies UN Biological and Toxin Weapons Convention. https://www.developmentchannel.org/2019/09/01/tanzania-ratifies-un-biological-and-toxinweapons-convention/. Accessed 30 April 2020. 584 Meeting of the States Parties to the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction 2019b. 585 UN General Assembly (2019) First Committee: Joint courses of action and future-oriented dialogue towards a world without nuclear weapons, UN Doc. A/C.1/74/L.47/Rev.1, p 2. 586 Treaty on the Prohibition of Nuclear Weapons, opened for signature 20 September 2017, C.N.475.2017.Treaties-XXVI.9 (not yet entered into force). 587 Ibid., Article 15; UN Treaty Collection 2020c. 588 For the withdrawal from the JCPOA by the US, see Roithmaier et al. 2019, pp 248 ff. 589 Siebold S, Murphy F (2019) Iran has accelerated enrichment of uranium, IAEA says. https:// www.reuters.com/article/us-iran-nuclear-eu/iran-has-accelerated-enrichment-of-uranium-iaeasays-idUSKCN1TB0IT. Accessed 28 April 2020. 590 Hafezi P, Murphy F (2019) Trump says Iran ‘playing with fire’ with uranium enrichment. https:// www.reuters.com/article/us-mideast-iran-usa/iran-breaches-2015-nuclear-deals-stockpile-limitsources-idUSKCN1TW1ML. Accessed 28 April 2020. For more detailed developments regarding the JCPOA, see above Sect. 8.1.3.

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Parties to the JCPOA, nonetheless “recalled the key importance of continued full and effective implementation of the agreement by all sides. At the same time, participants recalled that the lifting of sanctions is an essential part of the agreement and reviewed their respective commitments in this regard.”591 The EU also informed Iran that the Instrument in Support of Trade Exchanges, an EU tool to facilitate non-USD transactions with Iran to avoid US sanctions “had been made operational and available to all EU Member States and that the first transactions are being processed.”592

8.3.4 Outer Space In October, the UN General Assembly First Committee on Disarmament and International Security sent a Joint Course of Action to the General Assembly, welcoming “the draft treaty on the prevention of the placement of weapons in outer space and of the threat or use of force against outer space objects, introduced by China and the Russian Federation”, reaffirming “the importance and urgency of the objective of preventing an arms race in outer space” and stressing that while “an agreement [on non-proliferation in outer space] is not yet concluded, other measures may contribute to ensuring that weapons are not placed in outer space”.593

References Articles, Books and Other Documents Agius C (2019) Letter dated 20 May 2019 from the President of the International Residual Mechanism for Criminal Tribunals addressed to the President of the Security Council. https://undocs. org/en/S/2019/417. Accessed 1 April 2020 Amnesty International (2019a) The Hidden US War in Somalia: Civilian Casualties from Air Strikes in Lower Shabelle. https://www.amnesty.org/download/Documents/AFR5299522019EN GLISH.PDF. Accessed 15 April 2020 591 EU

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ICC (2019e) Notification of the Decision of the Plenary of Judges pursuant to Article 40 of the Rome Statute, 19 March 2019, Ref No. 2019/PRES/00003-21 ICC Assembly of States Parties (2019a) ICC -2019/2020 – Eighteenth Session – Resolutions. https://asp.icc-cpi.int/en_menus/asp/resolutions/sessions/Pages/2019-18th-session.aspx. Accessed 1 April 2020 ICC Assembly of States Parties (2019b) Resolution ICC-ASP/18/Res.5. https://asp.icc-cpi.int/ iccdocs/asp_docs/ASP18/ICC-ASP-18-Res5-ENG-article-8-resolution-10Dec19-1300.cln.pdf. Accessed 1 April 2020 ICC The Office of the Prosecutor (2019a) Report on Preliminary Examination Activities 2019. https://www.icc-cpi.int/itemsDocuments/191205-rep-otp-PE.pdf. Accessed 1 April 2020 ICC The Office of the Prosecutor (2019b) Strategic Plan 2019-2021. https://www.icc-cpi.int/itemsD ocuments/20190726-strategic-plan-eng.pdf. Accessed 1 April 2020 ICC The Office of the Prosecutor (2019c) Notification pursuant to regulation 45 of the Regulations of the Court. https://www.icc-cpi.int/RelatedRecords/CR2019_03419.PDF. Accessed 1 April 2020 ICJ (2019) Application Instituting Proceedings and Request for Provisional Measures (Republic of The Gambia v Republic of the Union of Myanmar). https://www.icj-cij.org/files/case-related/ 178/178-20191111-APP-01-00-EN.pdf. Accessed 26 March 2020 International Campaign to Ban Landmines (2019) Landmine Monitor 2019. http://the-monitor.org/ media/3074086/Landmine-Monitor-2019-Report-Final.pdf. Accessed 29 April 2020 International Crisis Group (2019a) Facing the Challenge of the Islamic State in West Africa Province. Africa Report No. 273. https://d2071andvip0wj.cloudfront.net/273-facing-the-challe nge.pdf. Accessed 15 April 2020 International Crisis Group (2019b) Yemen’s Multiplying Conflicts. https://www.crisisgroup. org/middle-east-north-africa/gulf-and-arabian-peninsula/yemen/yemens-multiplying-conflicts. Accessed 24 April 2020 IRMCT (2019a) Case Information Sheet: Augustin Ngirbatware. https://www.irmct.org/sites/def ault/files/cases/public-information/cis-ngirabatware-en.pdf. Accessed 1 April 2020 IRMCT (2019b) Case Information Sheet: Jovica Staniši´c and Franko Simatovi´c. https://www. irmct.org/sites/default/files/cases/public-information/cis-stanisic-simatovic-en_1.pdf. Accessed 1 April 2020 Labuda P (2019) ‘Open for business’: The Special Criminal Court Launches Investigations in the Central African Republic. EJIL:Talk! https://www.ejiltalk.org/open-for-business-the-special-cri minal-court-launches-investigations-in-the-central-african-republic/. Accessed 1 April 2020 Long War Journal (2019) Terrorists in Sri Lanka swore allegiance to Abu Bakr alBaghdadi. https://www.longwarjournal.org/archives/2019/04/terrorists-in-sri-lanka-swore-allegi ance-to-baghdadi.php. Accessed 15 April 2020 Long War Journal (2020) US airstrikes in the Long War. https://www.longwarjournal.org/us-airstr ikes-in-the-long-war. Accessed 15 April 2020 Matar J (2019) Iraq: Any Hope for Change? Geneva Academy War Report. https://www.gen eva-academy.ch/joomlatools-files/docman-files/Iraq%20Any%20Hope%20for%20Change.pdf. Accessed 9 March 2020 Meeting of States Parties to the Convention on Cluster Munitions (2019) Final Report. CCM/MSP/2019/13 Meeting of the High Contracting Parties to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects (2019) Final Report. CCW/MSP/2019/9 Meeting of the States Parties to the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction (2019a) Report of the 2019 Meeting of States Parties. BWC/MSP/2019/7 Meeting of the States Parties to the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction (2019b) Report on universalization activities. BWC/MSP/2019/3

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OPCW (2019a) Note by the Technical Secretariat: Report of the Fact-Finding Mission Regarding the Incident of Alleged Use of Toxic Chemicals as a Weapon in Douma, Syrian republic, on 7 April 2018. S/1731/2019 OPCW (2019b) Report by the Director General: Engaging the Chemical Industry Associations. C-24/DG.17 OPCW (2019c) Report by the Director General: Status of Implementation of the International Support Network for Victims of Chemical Weapons. EC-92/DG.17, C-24/DG.14 OPCW (2019d) Conference of the States Parties: Joint Statement on Measures to Counter Chemical Terrorism. C-24/NAT.24 OPCW (2019e) Conference of the States Parties: Report of the OPCW on the Implementation of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction in 2018. C-24/4 OPCW (2019f) Report by the Director General: Overview of the Status of the Implementation of Article VII of the Chemical Weapons Convention as at 31 July 2019. EC-92/DG.9, C-24/DG.10 OPCW (2020) Evolution of the Status of Participation in the Convention. https://www.opcw.org/ evolution-status-participation-convention. Accessed 30 April 2020 Open Society Justice Initiative (2020) Recent Developments at the Extraordinary Chambers in the Courts of Cambodia: Deadlock Continues in Ao An Case. https://www.justiceinitiative.org/upl oads/54dc3814-d6c0-49ea-976c-1d4be896418f/briefing-eccc-recent-developments-20200109. pdf. Accessed 1 May 2020 Reaching Critical Will (2019) 2019 Biological Weapons Convention Meeting of States Parties. https://www.reachingcriticalwill.org/news/latest-news/14458-2019-biological-weaponsconvention-meeting-of-states-parties. Accessed 30 April 2020 Roithmaier K, Tobjasz M, Bove P (2019) Year in Review 2018. Yearbook of International Humanitarian Law 21:165-260 Schneider T, Lütkefend T (2019) Nowhere to Hide: The Logic of Chemical Weapons Use in Syria. Global Public Policy Institute. https://www.gppi.net/media/GPPi_Schneider_Luetkefend_2019_ Nowhere_to_Hide_Web.pdf. Accessed 21 April 2020 STL (2020a) Special Tribunal for Lebanon Eleventh Annual Report. https://www.stl-tsl.org/sites/def ault/files/documents/annual-reports/STL_11th_Annual_Report-EN.pdf. Accessed 1 April 2020 STL (2020b) STL Bulletin December 2019 - January 2020. https://www.stl-tsl.org/sites/default/ files/bulletin/20200330%20-%20FINAL%20STL%20Bulletin%20Dec19-Jan20%20EN.pdf. Accessed 1 April 2020 Syrian Network for Human Rights (2019) Documentation of 72 Torture Methods the Syrian Regime Continues to Practice in Its Detention Centers and Military Hospitals. http://sn4hr.org/ wp-content/pdf/english/Documentation_of_72_Torture_Methods_the_Syrian_Regime_Contin ues_to_Practice_in_Its_Detention_Centers_and_Military_Hospitals_en.pdf. Accessed 21 April 2020 Syrian Observatory for Human Rights (2020) Syrian Revolution NINE years on: 586,100 persons killed and millions of Syrians displaced and injured. https://www.syriahr.com/en/?p=157193. Accessed 12 May 2020 UN Assistance Mission in Afghanistan (2019a) Midyear Update on the Protection of Civilians in Armed Conflict: 1 January to 30 June 2019. https://unama.unmissions.org/sites/default/files/ unama_poc_midyear_update_2019_-_30_july_2019_english.pdf. Accessed 5 March 2020 UN Assistance Mission in Afghanistan (2019b) Quarterly Report on the Protection of Civilians in Armed Conflict: 1 January to 30 September 2019. https://unama.unmissions.org/sites/def ault/files/unama_protection_of_civilians_in_armed_conflict_-_3rd_quarter_update_2019.pdf. Accessed 5 March 2020 UN General Assembly (2019) First Committee: Joint courses of action and future-oriented dialogue towards a world without nuclear weapons, UN Doc. A/C.1/74/L.47/Rev.1 UN General Assembly (2019) First Committee: Prevention of an arms race in outer space: no first placement of weapons in outer space, UN Doc. A/C.1/74/L.59

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UN General Assembly (2019) General and complete disarmament: the Arms Trade Treaty. Resolution adopted by the General Assembly on 12 December 2019, UN Doc. A/Res/74/49 UN General Assembly (2019) Human Rights Council: Report of the independent international fact-finding mission on Myanmar, UN Doc. A/HRC/39/64 UN General Assembly (2019) Human Rights Council: Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, UN Doc. A/HRC/42/51 UN Office for Disarmament Affairs (2019) Convention on Cluster Munitions. http://disarmament. un.org/treaties/t/cluster_munitions. Accessed 29 April 2020 UN Office for the Coordination of Humanitarian Affairs (2020) Libya: Humanitarian Needs Overview 2020. https://www.humanitarianresponse.info/sites/www.humanitarianresponse.info/ files/documents/files/libya_hno_2020-fullen_final.pdf. Accessed 10 March 2020 UN Peacekeeping (2020) MINUSCA Fact Sheet. https://peacekeeping.un.org/en/mission/minusca. Accessed 5 March 2020 UN Security Council (2019) Resolution 2478 (2019), UN Doc. S/RES/2471 UN Security Council (2019) Resolution 2488 (2019), UN Doc. S/RES/2488 UN Treaty Collection (2020a) 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 (with Protocols I, II and III). https://treaties.un.org/pages/ViewDetails.aspx? src=TREATY&mtdsg_no=XXVI-2&chapter=26&clang=_en. Accessed 29 April 2020 UN Treaty Collection (2020b) Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction. https://treaties.un.org/ Pages/ViewDetails.aspx?src=IND&mtdsg_no=XXVI-3&chapter=26&clang=_en. Accessed 30 April 2020. UN Treaty Collection (2020c) Treaty on the Prohibition of Nuclear Weapons. https://treaties. un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVI-9&chapter=26&clang=_en. Accessed 30 April 2020 UNICEF (2019) Humanitarian Situation Report #8: Myanmar. https://www.unicef.org/appeals/mya nmar_sitreps.html. Accessed 25 March 2020 Yemen Data Project (2020) Yemen Data Project: Collating and disseminating data on the conduct of the war in Yemen with the purpose of increasing transparency and promoting accountability. https://www.yemendataproject.org/. Accessed 24 April 2020

Cases ECCC, Prosecutor v Samphân Khieu and Chea Nuon, Judgment, 16 November 2018, Case No. 002/02 ECCC, Prosecutor v Samphân Khieu and Chea Nuon, Decision on Khieu Samphân’s Urgent Appeal Against the Summary of Judgment Pronounced on 16 November 2018, 13 February 2019, Case No. 002/19-09-2007/ECCC/TC ECCC, Prosecutor v Samphân Khieu and Chea Nuon, Nuon Chea’s Letter Authorising His Lawyers to File an Appeal Against the Case 002/02, Judgment, 9 April 2019, Case No. 002/19-09-2007ECCC/TC ECCC, Prosecutor v Yim Tith, Closing Order, 28 June 2019, Case No. 004/07-09-2009-ECCC-OCIJ ECCC, Prosecutor v Samphân Khieu and Chea Nuon, Decision to Terminate Proceedings Against Nuon Chea, 13 August 2019, Case No. 002/19-09-20017-ECCC/SC ECCC, Prosecutor v Meas Muth, Report of the Case and Appeals, 27 November 2019, Case No. 003/07-09-2009-ECCC/OCIJ (PTC35) ECCC, Prosecutor v Ao An, Considerations on Appeals Against Closing Orders, 19 December 2019, Case No. 004/2/07-09-2009-ECCC/OCIJ (PTC60)

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ICC, Situation on the registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, Decision on the request of the Union of the Comoros to review the Prosecutor’s decision not to initiate an investigation, 16 July 2015, Case No. ICC-01/13 ICC, Situation on the registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, Notice of Appeal of “Decision on the request of the Union of the Comoros to review the Prosecutor’s decision not to initiate an investigation”, 27 July 2015, Case No. ICC-01/13-34 ICC, Situation on the registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, Decision on the Admissibility of the Prosecutor’s Appeal against the “Decision on the request of the Union of the Comoros to review the Prosecutor’s decision not to initiate an investigation”, 6 November 2015, Case No. ICC-01/13 OA ICC, Prosecutor v Germain Katanga, Decision Pursuant to Article 108(1) of the Rome Statute, 7 April 2016, Case No. ICC-01/04-01/07-3679 ICC, Situation in the Islamic Republic of Afghanistan, Public Redacted Version of “Request for authorisation of an investigation pursuant to article 15”, 20 November 2017, Case No. ICC-02/17 ICC, Situation on the registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, Notice of Prosecutor’s Final Decision under Rule 108(3), Public Annex 1, 29 November 2017, Case No. ICC-01/13 ICC, Situation on the registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, Application for Judicial Review by the Government of the Union of the Comoros, 23 February 2018, Case No. ICC-01/13 ICC, Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar, Decision on the “Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute”, 6 September 2018, Case No. ICC-RoC46(3)-01/18 ICC, Situation on the registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, Decision on the “Application for Judicial Review by the Government of the Union of the Comoros”, 15 November 2018, Case No. ICC-01/13 ICC, Situation on the registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, Request for Leave to Appeal the “Decision on the ‘Application for Judicial Review by the Government of the Union of the Comoros’”, 21 November 2018, Case No. ICC-01/13 ICC, Situation on the registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, Decision on the Prosecutor’s Request for Leave to Appeal the “Decision on the ‘Application for Judicial Review by the Government of the Union of the Comoros’”, 18 January 2019, Case No. ICC-01/13 ICC, Prosecutor v Germain Katanga, Defence Application for Reconsideration of the Presidency Decision pursuant to article 108(1) of the Rome Statute, 30 January 2019, Case No. ICC-01/0401/07 ICC, Prosecutor v Dominic Ongwen, Defence Motion on Defects in the Confirmation of Charges Decision: Defects in Notice and Violations of Fair Trial (Parts I-IV of the Defects Series), 1 February 2019, Case No. ICC-02/04-01/15 ICC, Prosecutor v Laurent Gbagbo and Charles Blé Goudé, Judgment on the Prosecutor’s Appeal against the Oral Decision of Trial Chamber I Pursuant to Article 81(3)(c)(i) of the Statute, 1 February 2019, Case No. ICC-02/11-01/15 OA14 ICC, Prosecutor v Dominic Ongwen, Prosecution Request for Dismissal, in Limine, of the “Defence Motion on Defects in the Confirmation of Charges Decision: Defects in Notice and Violations of Fair Trial” dated 1 February 2019, 5 February 2019, Case No. Case No. ICC-02/04-01/15 ICC, Prosecutor v Alfred Yekatom, Decision on the Joinder of the Cases against Alfred Yekatom and Patrice-Edouard Ngaïssona and Other Related Matters, 20 February 2019, Case No. ICC01/14-01/18 ICC, Prosecutor v Dominic Ongwen, Prosecution Response the “Defence Motion on Defects in the Confirmation of Charges Decision: Defects in Notice and Violations of Fair Trial” dated 1 February 2019, 25 February 2019, Case No. ICC-02/04-01/15

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ICC, Prosecutor v Dominic Ongwen, Corrigendum to the Victims’ Response to “Defence Motion on Defects in the Confirmation of Charges Decision” (Parts I-IV), 26 February 2019, Case No. ICC-02/04-01/15 ICC, Prosecutor v Dominic Ongwen, Decision on Defence Motions Alleging Defects in the Confirmation Decision, 7 March 2019, Case No. ICC-02/04-01/15 ICC, Prosecutor v Jean-Pierre Bemba Gombo, Second Public Redacted Version of “Mr. Bemba’s claim for compensation and damages”, 19 March 2019, Case No. ICC-01/05-01/08 ICC, Prosecutor v Saif Al-Islam Gaddafi, Decision on the ‘Admissibility Challenge by Dr. Saif Al-Islam Gadafi pursuant to Articles 17(1)(c), 19 and 20(3) of the Rome Statute’, 5 April 2019, Case No. ICC-01/11-01/11 ICC, Prosecutor v Thomas Lubanga Dyilo, Public Redacted Version of “Urgent Defense Motion for the Recusal of Judge Marc Perrin de Brichambaut”, 10 April 2019, Case No. ICC-01/04-01/06 ICC, Situation in the Islamic Republic of Afghanistan, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan, 12 April 2019, Case No. ICC-02/17 ICC, Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, Décision Fixant une Nouvelle Date pour le Dépôt du Document Contenant les Charges et pour le Début de L’audience de Confirmation des Charges [Decision Fixing a new Date for the Filing of the Document Containing the Charges and for the Start of the Confirmation of Charges Hearing], 18 April 2019, Case No. ICC-01/12-01/18 ICC, Prosecutor v Bosco Ntaganda, Notification Concerning Judge Kuniko Ozaki, 1 May 2019, Case No. ICC-01/04-02/06 ICC, Prosecutor v Omar Hassan Ahmad Al-Bashir, Judgment in the Jordan Referral re Al-Bashir Appeal, 6 May 2019, Case No. ICC-02/05-01/09 OA2 ICC, Prosecutor v Bosco Ntaganda, Public Redacted Version of “Request for Disqualification of Judge Ozaki”, 21 May 2019, Case No. ICC-01/04-02/06 ICC, Situation in the Islamic Republic of Afghanistan, Concurring and Separate Opinion of Judge Antoine Kesia-Mbe Mindua, 31 May 2019, Case No. ICC-02/17 ICC, Prosecutor v Saif Al-Islam Gaddafi, Admissibility Challenge by Dr. Saif Al-Islam Gadafi pursuant to Articles 17(1)(c), 19 and 20(3) of the Rome Statute, 5 June 2018, Case No. ICC01/11-01/11 ICC, Situation in the Islamic Republic of Afghanistan, Request for Leave to Appeal the “Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan”, 7 June 2019, Case No. ICC-02/17 ICC, Situation in the Islamic Republic of Afghanistan, Victims’ Notice of Appeal of the ‘Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan’, 10 June 2019, Case No. ICC-02/17-36 ICC, Situation in the Islamic Republic of Afghanistan, Victims’ Request for Leave to Appeal the ‘Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan’, 10 June 2019, Case No. ICC-02/17-37 ICC, Situation in the Islamic Republic of Afghanistan, Victims’ Notice of Appeal of the “Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan”, 10 June 2019, Case No. ICC-02/17-38 ICC, Situation in the Islamic Republic of Afghanistan, Observations concerning Diverging Judicial Proceedings arising from the Pre-Trial Chamber’s Decision under Article 15, 12 June 2019, Case No. ICC-02/17 ICC, Situation in the Islamic Republic of Afghanistan, Notice of Appeal against the “Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan”, 12 June 2019, Case No. ICC-02/17-40 ICC, Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, Public Redacted Version of the Request for Disqualification of Judge Marc Perrin de Brichambaut, 14 June 2019, Case No. ICC-01/12-01/18

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ICC, Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, Notification concerning the ‘Request for disqualification of Judge Marc Perrin de Brichambaut’ dated 14 June 2019, 3 July 2019, Case No. ICC-01/12-01/18 ICC, Prosecutor v Bosco Ntaganda, Notification of the Decision of the Plenary of Judges on the Defence Request for the Disqualification of Judge Kuniko Ozaki from the case of The Prosecutor v Bosco Ntaganda, 20 June 2019, Case No. ICC-01/04-02/06 ICC, Prosecutor v Germain Katanga, Decision on ‘Defence Application for Reconsideration of the Presidency “Decision pursuant to article 108(1) of the Rome Statute”’, 26 June 2019, Case No. ICC-01/04-01/07 ICC, Prosecutor v Thomas Lubanga Dyilo, Notification of the Decision of the Plenary of Judges on the ‘Requête urgente de la Défense aux fins de récusation de M. le Juge Marc Perrin de Brichambaut’, Public Annex, 28 June 2019, Case No. ICC-01/04-01/06 ICC, Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar, Request for Authorisation of an Investigation pursuant to Article 15, 4 July 2019, Case No. ICC-01/19 ICC, Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, Notification of the Decision of the Plenary of Judges on the ‘Request for disqualification of Judge Marc Perrin de Brichambaut’ dated 14 June 2019, Public Annex I, 8 July 2019, Case No. ICC-01.12-01/18 ICC, Prosecutor v Bosco Ntaganda, Judgment, 8 July 2019, Case No. ICC-01/04-02/06 ICC, Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, Public Redacted Version of Urgent Request for the Disqualification of Pre-Trial Chamber I, 11 July 2019, Case No. ICC-01/12-01/18 ICC, Prosecutor v Laurent Gbagbo and Charles Blé Goudé, Reasons for Oral Decision of 15 January 2019 on the Requête de la Défense de Laurent Gbagbo afin qu’un jugement d’acquittement portant sur toutes les charges soit prononcé en faveur de Laurent Gbagbo et que sa mise en liberté immédiate soit ordonnée, and on the Blé Goudé Defence no case to answer motion, 16 July 2019, Case No. ICC-02/11-01/15 ICC, Prosecutor v Dominic Ongwen, Judgment on the Appeal of Mr Dominic Ongwen against Trial Chamber IX’s ‘Decision on Defence Motions Alleging Defects in the Confirmation Decision’, 17 July 2019, Case No. ICC-02/04-01/15 OA4 ICC, Prosecutor v Thomas Lubanga Dyilo, Judgment on the Appeals against Trial Chamber II’s ‘Decision Setting the Size of the Reparations Award for which Thomas Lubanga Dyilo is Liable’, 18 July 2019, Case No. ICC-01/04-01/06 A7 A8 ICC, Situation on the registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, Judgment on the Appeal of the Prosecutor against Pre-Trial Chamber I’s ‘Decision on the “Application for Judicial Review by the Government of the Union of the Comoros”’, 2 September 2019, Case No. ICC-01/13 OA 2 ICC, Prosecutor v Bosco Ntaganda, Mr. Ntaganda’s Notice of Appeal against the Judgment pursuant to Article 74 of the Statute, 9 September 2019, Case No. ICC-01/04-02/06 A ICC, Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, Notification of the Decision of the Plenary of Judges on the ‘Urgent Request for Disqualification of Pre-Trial Chamber I’, 12 September 2019, Case No. ICC-01/12-01/18 ICC, Prosecutor v Jean-Pierre Bemba Gombo et al., Decision Re-sentencing Mr Jean-Pierre Bemba Gombo, Mr Aimé Kilolo Musamba and Mr Jean-Jacques Mangenda Kabongo, 17 September 2018, Case No. ICC-01/05-01/13 ICC, Situation in the Islamic Republic of Afghanistan, Decision on the Prosecutor and Victims’ Requests for Leave to Appeal the ‘Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan’, 17 September 2019, Case No. ICC-02/17 ICC, Prosecutor v Laurent Gbagbo and Charles Blé Goudé, Public Redacted Version of “Prosecution Document in Support of Appeal”, 17 October 2019, ICC02/11-01/15 ICC, Prosecutor v Jean-Pierre Bemba Gombo et al., Notice of Appeal, 18 October 2018, Case No. ICC-01/05-01/13

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ICC, Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, Rectificatif à la Décision relative à la Confirmation des Charges Portées Contre Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud [Corrigendum to the Decision on the Confirmation of Charges brought against Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud], 13 November 2019, Case No. ICC-01/1201/18 ICC, Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar, 14 November 2019, Case No. ICC-01/19 ICC, Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, Décision relative à la Requête de la Défense aux fins D’autorisation D’interjeter Appel de la Décision relative à la Confirmation des Charges et Transmission du Dossier à la Présidence en vertu de la Règle 129 du Règlement de Procédure et de Prevue [Decision on the Request for Defense for Authorization to Appeal the Decision on the Confirmation of Charges and Transmission of the File to the Presidency under Rule 129 of the Rules of Procedure and Provision], 18 November 2019, Case No. ICC-01/12-01/18 ICC, Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, Decision Constituting Trial Chamber X and Referring to it the Case of The Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, 21 November 2019, Case No. ICC-01/12-01/18 ICC, Prosecutor v Jean-Pierre Bemba Gombo et al., Judgment on the Appeal of Mr Jean-Pierre Bemba Gombo against the Decision of Trial Chamber VII of 17 September 2018 Entitled ‘Decision Re-sentencing Mr Jean-Pierre Bemba Gombo, Mr Aimé Kilolo Musamba and Mr Jean-Jacques Mangenda Kabongo’, 27 November 2019, Case No. ICC-01/05-01/13 A10 ICC, Situation on the registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, Notice of Prosecutor’s Final Decision under Rule 108(3), as revised and refiled in accordance with the Pre-Trial Chamber’s request of 15 November 2018 and the Appeals Chamber’s judgment of 2 September 2019, 2 December 2019, Case No. ICC-01/13 ICC, Prosecutor v Bosco Ntaganda, Notice of Appeal against Sentencing Judgment, 9 December 2019, Case No. ICC-01/04-02/06 A ICC, Prosecutor v Omar Hassan Ahmad Al Bashir, Decision under Article 87(7) of the Rome Statute on the Non-compliance by Jordan with the Request by the Court for the Arrest and Surrender of Omar Al-Bashir, 11 December 2017, Case No. ICC-02/05-01/09 ICC, Prosecutor v Dominic Ongwen, Declaration on the Closure of the Submission of Evidence, 12 December 2019, Case No. ICC-02/04-01/15 ICC, Situation in the State of Palestine, Prosecution Request Pursuant to Article 19(3) for a Ruling on the Court’s Territorial Jurisdiction in Palestine, 20 December 2019, Case No. ICC-01/18 ICC, Prosecutor v Thomas Lubanga Dyilo, Corrected version of the “Decision Setting the Size of the Reparations Award for which Thomas Lubanga Dyilo is Liable”, 21 December 2017, Case No. ICC-01/04-01/06 ICTR, Prosecutor v Augustin Ngirabatware, Judgment and Sentence, 20 December 2012, Case No. ICTR-99-54-T ICTY, Prosecutor v Jovica Staniši´c and Franko Simatovi´c, Judgment, 30 May 2013, Case No. IT-03-69-T ICTY, Case Against Petar Joji´c, Jovo Ostoji´c and Vjerica Radeta, Order Lifting Confidentiality of Order in Lieu of Indictment and Arrest Warrants, 1 December 2015, Case No. IT-03-67-R77.5 ICTY, Prosecutor v Jovica Staniši´c and Franko Simatovi´c, Appeal Judgment, 9 December 2015, Case No. IT-03-69-A ICTY, Prosecutor v Radovan Karadži´c, Public Redacted Version of Judgment Issued on 24 March 2016, 24 March 2016, Case No. IT-95-5/18-T IRMCT, Prosecutor v Augustin Ngirabatware, Appeal Judgment, 18 December 2014, Case No. MICT-12-29-A IRMCT, Case Against Petar Joji´c and Vjerica Radeta, Public Redacted Version of the 12 June 2018 Order Referring a Case to The Republic of Serbia, 12 June 2018, Case No. MICT-17-111-R90

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K. Roithmaier et al.

IRMCT, Prosecutor v Radovan Karadži´c, Judgment, 20 March 2019, Case No. MICT-13-55-A IRMCT, Case Against Petar Joji´c and Vjerica Radeta, Decision Re-examining the Referral of a Case to the Republic of Serbia, 13 May 2019, Case No. MICT-17-111-R90 IRMCT, Prosecutor v Augustin Ngirabatware, Review Judgment, 27 September 2019, Case No. MICT-12-29-R KSC, Pronouncement of Ruling on the Request of Mr Mahir Hasani for Interim Measures, 7 February 2019, Case No. KSC-CC-2019-05 KSC, Pronouncement of Ruling on the Referral by Mr Mahir Hasani Concerning Prosecution Order of 20 December 2018, 20 February 2019, Case No. KSC-CC-2019-05 STL, Prosecutor v Salim Jamil Ayyash, Public Redacted Indictment, 14 June 2019, Case No. STL18-10-I-PTJ STL, The Prosecutor v Salim Jamil Ayyash, Order Relating to the Lifting of the Confidentiality of the Indictment of 14 June 2019 and of Other Related Documents, 16 September 2019, Case No. STL-18-10/I/PTJ

Treaties Arms Trade Treaty, opened for signature 3 June 2013, 3013 UNTS 1 (entered into force 24 December 2014) Convention on Cluster Munitions, opened for signature 3 December 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, opened for signature 10 April 1981, 1342 UNTS 137 (entered into force 2 December 1983) Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, opened for signature 10 April 1972, 1015 UNTS 163 (entered into force 26 March 1975) Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, opened for signature 13 January 1993, 1975 UNTS 45 (entered into force 29 April 1997) Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction, opened for signature 3 December 1997, 2056 UNTS 211 (entered into force 1 March 1999) Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002) Treaty on the Prohibition of Nuclear Weapons, opened for signature 20 September 2017, C.N.475.2017.Treaties-XXVI.9 (not yet entered into force)

Kilian Roithmaier is a Junior Researcher at the T.M.C. Asser Instituut, The Hague, The Netherlands; and the Editorial Assistant of the Yearbook of International Humanitarian Law 2019 (Vol. 22). Taylor Woodcock is a Research Assistant at the T.M.C. Asser Instituut, The Hague, The Netherlands. Eve Dima is a Research Assistant at the T.M.C. Asser Instituut, The Hague, The Netherlands.

Table of Cases*

INTERNATIONAL European Court of Human Rights Assanidze v Georgia, Application No. 71503/01, 8 April 2004, 56n70 Catan and Others v Republic of Moldova and Russia, Application Nos. 43370/04, 8252/05, 18454/06, 19 October 2012, 56n74 Ila¸scu and Others v Moldova and Russia, Application No. 48787/99, 8 July 2004, 56n71 McCann and Others v The United Kingdom, Application No. 18984/91, 27 September 1995, 67n20 Sargsyan v Azerbaijan, Application No. 40167/06, 16 June 2015, 56 Extraordinary Chambers in the Courts of Cambodia Prosecutor v Ao An, Case No. 004/2/07 (ongoing), 238–239 Prosecutor v Meas Muth, Case No. 003/07 (ongoing), 239 Prosecutor v Samphân Khieu and Chea Nuon, Case No. 002/02, 16 November 2018, 237–238 Prosecutor v Yim Tith, Case No. 004/07 (ongoing), 239 International Court of Justice Advisory Opinions Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory, 9 July 2004, 128n14 Legality or the Threat of Use of Nuclear Weapons, 8 July 1996, 35n25, 67n22, 128n14 * The Table of Cases was compiled by Ms C.C. Diepeveen, Middelburg, The Netherlands, e-mail: [email protected]

© t.m.c. asser press and the authors 2021 T. D. Gill et al. (eds.), Yearbook of International Humanitarian Law 2019, Yearbook of International Humanitarian Law 22, https://doi.org/10.1007/978-94-6265-399-3

281

282

Table of Cases

Judgments Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Rwanda), 3 February 2006, 118n57 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), 19 December 2005, 128n14 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States), 27 June 1986, 65n9, 118n57 International Criminal Court Prosecutor v Al Bashir, Case No. ICC-02/05-01/09 4 March 2009, 158 11 December 2017, 231 6 May 2019, 231 Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, Case No. ICC-01/12-01/18 (ongoing), 216, 217, 225–226 Prosecutor v Bemba Case No. ICC-01/05-01/08 21 March 2016, 47n19, 49, 50, 53, 153, 154–156, 158n20, n21, 159n25, 168–169, 174–176 8 June 2018, ix, 86n144, n146, 153, 154, 155, 156, 160–181 19 March 2019, 228 Case No. ICC-01/05-01/13, 27 November 2019, 228 Prosecutor v Gbagbo and Blé Goudé, Case No. ICC-02/11-01/15, 1 February 2019, 229–230 Prosecutor v Katanga, Case No. ICC-01/04-01/07 7 March 2014, 36–37, 38, 49, 50, 158n20, 159, 168n82 7 April 2016, 214 30 January 2019, 214 Prosecutor v Lubanga, Case No. ICC-01/04-01/06 14 March 2012, 159n22, 168n82 1 December 2014, 165, 166n63, 168n80, n83, n84 10 April and 28 June 2019, 216, 231 Prosecutor v Muthaura, Case No. ICC-01/09-02/11, 23 January 2012, 168n82 Prosecutor v Ngudjolo, Case No. ICC-01/04-02/12 18 December 2012, 168n82 7 April 2015, 165n61, 168n79 Prosecutor v Ntaganda, Case No. ICC-01/04-02/06, 8 July 2019, 36, 215–216, 226–227 Prosecutor v Ongwen, Case No. ICC-02/04-01/15, 17 July 2019, 227–228 Prosecutor v Saif Al-Islam Gaddafi, Case No. ICC-01/11-01/11, 5 April and 5 June 2019, 225 Prosecutor v Yekatom, Case No. ICC-01/14-0/18, 20 February 2019, 224

Table of Cases

283

International Criminal Tribunal for the former Yugoslavia Case Against Joji´c, Ostoji´c and Radeta, Case No. IT-03-67-R77.5, 1 December 2015, 232 Prosecutor v Aleksovski, Case No. IT-95-14/1-A, 24 March 2000, 110n24, 162n36, 165n58, 166 Prosecutor v Blaški´c Case No. IT-95-14-T, 3 March 2000, 34 Case No. IT-95-14-A, 29 July 2004, 34, 86n144, 171 Prosecutor v Boškoski and Tarˇculovski, Case No. IT-04-82-T, 10 July 2008, 46n15, 51 Prosecutor v Delali´c, Case No. IT-96-21-A, 20 February 2001, 166n64, 171 Prosecutor v Erdemovi´c, Case No. IT-96-22, 5 March 1998, 110n24 Prosecutor v Gali´c, Case No. IT-98-29, 5 December 2003, 4n4, 34–35, 36 Prosecutor v Gotovina, Case No. IT-06-90-T, 15 April 2011, 35, 39–40n47 Prosecutor v Gotovina and Marka´c, Case No. IT-06-90-A, 16 November 2012, 35n30 Prosecutor v Hadžihasanovi´c, Alagi´c and Kubura, Case No. IT-01-47-AR72, 16 July 2003, 85n140-n142, 87n148 Prosecutor v Halilovi´c, Case No. IT-01-48-T, 16 November 2005, 171 Prosecutor v Haradinaj, Case No. IT-04-84-T, 3 April 2008, 46, 47n17, 51n41, 236 ˇ Prosecutor v Kordi´c and Cerkez, Case No. IT-95-14/2 26 February 2001, 34 17 December 2004, 110n24 Prosecutor v Kunarac et al, Case No. IT-96-23, 12 June 2002, 169n87 Prosecutor v Kupreški´c et al. Case No. IT-95-16-T, 14 January 2000, 18n76, 34 Case No. IT-95-16-A, 23 October 2001, 169n87 Prosecutor v Luki´c and Luki´c, Case No. IT-98-32/1, 20 July 2009, 169n87 Prosecutor v Marti´c, Case No. IT-95-11-T, 12 June 2007, 35n25, 36 Prosecutor v Muci´c, Case No. IT-96-21-T, 16 November 1998, 171n97 Prosecutor v Nikoli´c, Case No. IT-02-60/1, 2 December 2003, 110n24 Prosecutor v Ori´c, Case No. IT-03-68-T, 30 June 2006, 171, 172 Prosecutor v Radovan Karadži´c, Case No. IT-95-5/18-T, 24 March 2016, 232 Prosecutor v Simi´c, Case No. IT-95-9-A, 28 November 2006, 162n36 Prosecutor v Staniši´c and Simatovi´c Case No. IT-03-69-T, 30 May 2013, 234 Case No. IT-03-69-A, 9 December 2015, 234 Prosecutor v Strugar Case No. IT-94-1-AR72, 2 October 1995, 33n18, 45–46, 50, 73n63, 79, 83n127 Case No. IT-01-42-T, 31 January 2005, 34, 171 Prosecutor v Tadi´c Case No. IT-94-1-T, 7 May 1997, 48, 51, 52

284

Table of Cases

Case No. IT-94-1, 26 January 2000, 110n24 Prosecutor v Vasiljevi´c, Case No. IT-98-32-T, 29 November 2002, 85n137 International Criminal Tribunal for Rwanda Prosecutor v Bagosora et al Case No. ICTR-98-41-AR-73, 18 September 2006, 162n37 Case No. ICTR-98-41-A, 14 December 2011, 172 Prosecutor v Kamuhanda, Case No. ICTR-99-54A-A, 19 September 2005, 162n37 Prosecutor v Ngirabatware, Case No. ICTR-99-54-T, 20 December 2012, 233 Prosecutor v Ntakirutimana and Ntakirutimana Case No. ICTR-96-10, and ICTR-96-17-T, 21 February 2003, 136n71 Case No. ICTR-96-10-A and ICTR-96-17-A, 13 December 2004, 136n71 Prosecutor v Seromba Case No. ICTR-2001-66-I, 13 December 2006, 136n71 Case No. ICTR-2001-66-A, 12 March 2008, 136n71 International Residual Mechanism for Criminal Tribunals Case Against Joji´c and Radeta, Case No. MICT-17-111-R90, 13 May 2019, 232–233 Prosecutor v Ngirabatware, Case No. MICT-12-29-R, 27 September 2019, 233–234 Prosecutor v Radovan Karadži´c, Case No. MICT-13-55-A, 20 March 2019, 232 Kosovo Specialist Chambers Hasani Case, Case No. KSC-CC-2019-05 (ongoing), 236–237 Nuremberg Military Tribunal France et al. v Göring, 1 October 1946, 84n132, 116n51 High Command case, Case nr. 12, 28 November 1947, 12 Special Tribunal for Lebanon Prosecutor v Ayyash et al., Case No. STL-18-10/I/PTJ (ongoing), 240–241

National Bangladesh International Crimes Tribunal Abdus Samad Musa case, 242

Table of Cases

285

Bosnia and Herzegovina State Court Radi´c Case, 2011, 245–246 Congo Democratic Republic Military Court Alimasi Case, November 2019, 246 Croatia Zagreb Court Radi´c Case, 2019, 246 Finland Helsinki Court of Appeals Bazaramba Case, January 2019, 247 Helsinki District Court Iraqi war crimes Case, 2019, 247 France Court of Appeal Paris Lafarge Case, 2019, 248 Court of Cassation Ngenzi and Barahira Case, October 2019, 248 Germany Munich Court Jennifer W. Case (ongoing), 249 Montenegro High Court Zmajevic Case, July 2019, 252 Netherlands District Court of The Hague Akhlafa and Nidalha Case (ongoing), 253 Gantz and Eshel Case (ongoing), 253 MH17 trial (ongoing), 208, 252 Prosecutor v Van Anraat, Case No. 09/751003-04, 24 April 2003, 118n59

286

Table of Cases

Pakistan Supreme Court Terrorism Definition Case, November 2019, 254 Serbia High Court Extradition of Radeta and Joji´c, 2016, 233 Switzerland Federal Court Armenian Genocide Monument Case, February 2019, 257 Uganda High Court Kwoyelo Case, October 2019, 258 United Kingdom House of Lords R. v Woollin, 22 July 1998, 38n41 United States Federal Court German genocide in Namibia Case, March 2019, 260 Khalifa Haftar Case, June 2019, 260 District Court of Columbia Doe v Islamic Salvation Front, 3 February 1998, 110n22, 118n59 District Court for Eastern Pennsylvania Liberian war crimes Case, 2019, 260 Military Court of San Diego Gallagher Case, 2019, 259

Index*

A Abdeslam, Salah, prosecution of, 250 Acculturation theories, 143 Afghanistan ICC investigation into, 220–222 negotiations on peace agreement in, 188– 189 territorial control by Taliban in, 93 Agius, Carmel, 235 Agreement on the Application of International Humanitarian Law between the Parties to the Conflict in Bosnia and Herzegovina (1992), 89 Ahmi´ci village, attack on, 34 Air strikes, by United States, 196, 201 Akay, Judge Aydin Sefa, 235 Akhlafa, Oussama Achraf , prosecution of, 255 Al Azhar University (Cairo), 141 Al Qaeda in Mali, 196 in Yemen, 214 Al Quraan Al Kareem radio station (Gaza), 141 Al Shabab (Somalia), 201 Alapini-Gansou, Judge Reine, 219 Albanians, Serebia accused of genocide on, 253 Aleppo, siege of, 18 Ali, K., 136 Alimasi, Frederic Masudi, prosecution of, 248

Alkali-Saïd, Abdoulaye, prosecution of, 246 American Convention of Human Rights, 120n60 American Law of War Manual, om evacuation of besieged civilians, 11–12n45 Amnesties for perpetrators of international crimes in Colombia, 247 in Guatemala, 252 Amnesty International, on Saudi Arabia, 257 Amnesty provision in AP II, 114 Anti-Personnel Mine Ban Convention, 266– 267 Ao An, prosecution of, 241–242 Appellate deference standard, 153, 165–167 ICC appeals chamber’s deviation from, 154–155, 166, 179, 180 Aquinas, Thomas, 38n40 Argentina, prosecution of international crimes committed in, 244 Armed conflicts, viii children in IHL violations against, 100n237 protection of, 127n9, 130n31 gender impact of, 263 human rights law applied to, 128n14 law of see IHL (International Humanitarian Law) parties to see Parties to a conflict see also International armed conflicts; Non-international armed conflicts Armed forces

* The

Index was compiled by Ms C.C. Diepeveen, Middelburg, The Netherlands, e-mail: [email protected] © t.m.c. asser press and the authors 2021 T. D. Gill et al. (eds.), Yearbook of International Humanitarian Law 2019, Yearbook of International Humanitarian Law 22, https://doi.org/10.1007/978-94-6265-399-3

287

288 investigations into war crimes committed by, 199, 205, 224–225, 255, 261 law enforcement operations by, 68 and religion, 133–134 Armed groups see Non-State armed groups Armenian genocide, Swiss monument in commemoration of, 259 Arms embargo, of EU against Myanmar, 199 Arms race, in outer space, prevention of, 270 Arms Trade Treaty (ATT), 263–264 Arrest warrants of ICC for al-Bashir, 234, 258 for al Hassan, 228–229 for Ngaïssona, 226–227 for Saif Al-Islam Gaddafi, 227 for al-Tuhamy, 227 for al-Werfalli, 227 Arusha, IRMCT branch in, 235 ATT Monitor Report 2019 (Control Arms Coalition), 264 Attacks on civilians, IHL prohibition of, 30–31 indiscriminate, 29 IHL prohibition of, 31–33 and incidental loss of civilian lives, 38–39 prosecution of, 33–37 –mens rea concept in, 31, 34, 36, 37–38, 40 in Syrian armed conflict, 205–206 sieges as, 16 unlawful, 32 see also Air strikes; Cyber-attacks; Precautions in attack obligations; Terrorism, attacks Authority, of religious leaders, 138–140, 143–144 Autonomous weapons systems, lethal, guiding principles on, 265 Ayyash, Salim Jamil, prosecution of, 243– 244

B al-Baghdadi, Abu Bakr, killing of, 207 Bangerter, O., 129–130 Bangladesh ICC investigations into, 221–223 prosecution of international crimes committed in, 244 Rohingya refugees in, 198 Barahira, Tito, prosecution of, 250 Bartels, Rogier, 37n38, 39n47

Index al-Bashir, Omar domestic prosecution of, 258 ICC arrest warrant for, 234, 258 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (UN), 94 Bazaramba, François, early release denied for, 249 Beckers, Claire, 245 Belgium, prosecution of Rwandan genocide perpetrators in, 245 Belligerents see Parties to a conflict Bemba (Gombo), Jean-Pierre acquittal on appeal, 153–154, 160–161, 167–169, 231 command responsibility threshold, 169–173 evidence consideration, 173–179, 180–182 conviction of, 154, 179 Ben-Yehuda, A., 79–80, 81 Bensouda, Fatou, 220, 225n305, 227 Biological Weapons Convention, 268–269 Blank, Laurie, 5 Blé Goudé, Charles, prosecution of, 232– 233 BNP Paribas (BNPP), prosecution of, 249 Bogoro village, attack on, 36 Boko Haram (Nigeria), terrorist attacks by, 200 Boogaard, Jeroen C. van den, 6 Bosnia and Herzegovina, prosecution of international crimes in, 245 Bradley, Martha, 50n37 Brazil, prosecution of international crimes in, 246 Brussels Declaration (1874), 8 Bucyana, Isaïe and Katia, 245 Buddhism, and IHL, 141

C Compliance with IHL, viii–ix, 107–109, 126, 128– 131, 142–143 individualization of, 107, 117n51, 117–120 mechanisms for, 109–112, 113, 120– 121, 126 –in non-international armed conflicts, 114–116 promotion by religious leaders of, ix, 125, 127, 130–131, 137, 140–144

Index repression dominance in, 116–117 with international human rights law, mechanisms for, 118–119 Congo Democratic Republic non-international armed conflict in, 49, 50 prosecution of international crimes committed in, 216, 229–230, 234, 248 Consent to humanitarian relief actions for civilians, by parties to conflict, 13– 14, 19–20, 22–23 Consequences of actions, 38 knowledge of, 39 Contextualization, of IHL compliance, 107, 108, 118 Continuous combat function, 71 Convention on Cluster Munitions, 265–266 Convention on the Prevention and Punishment of the Crime of Genocide, alleged violations by Myanmar of, 199 Convention on the Rights of the Child, Optional Protocol, 128n16 Conventional Weapons Convention, 264 Cooperation and Coordination between armed groups, 47–48, 50, 52–53, 58 Corn, G., 32n12, 39–40n47 Côte d’Ivoire, prosecution of international crimes committed in, 232–233 Crimea, Autonomous Republic of, 210 Crimes committed by Myanmar armed forces, investigations into, 199 ICC Statute on definition of, 159n26, 160–161 see also War crimes Crimes against humanity forcible removal of civilians as, 15 prosecution of, 136, 199, 216 see also Prosecution of international crimes starvation of the civilian population as, 18 Criminal law see international criminal law Criminal responsibility collective, 118 for IHL violations, 110–111 in non-international armed conflicts, 83–86 individual attribution of, 29, 110–111 of military commanders, 85–86 –see also Command responsibility

289 Croatia, prosecution of international crimes in, 248 Cumulative approach to non-international armed conflict existence, 43, 44–45, 47–53, 57–58 Customary international law formed by State practice, 55 IHL, 65, 80 on IHL compliance in noninternational armed conflicts, 114–116 on investigation obligations, 88–89, 101 on siege warfare, 10 on starvation prohibition, 9, 10n39 Cvetkovi´c, Saša, prosecution of, 245 Cyber-attacks, by United States against Iran, 190

D Dan Nan Ambassagou Association (Mali), 197 Daqun, Judge Liu, 235 Death penalty in Saudi Arabia, 257 in Somalia, 201 Deeds of Commitments (Geneva Call), 116 Destruction, wanton, ICTY Statute on, 33n15 Development, role of religious leaders/faithbased organizations in, 131 Dinstein, Yoram, 6, 12, 15–16 Diplomacy, faith-based, 133n50 Direct participation in hostilities, 70 by members of non-State armed groups, 71 Displacement forced, IHL prohibition of, 142 and right of return, 15 Distinction principle of IHL, 7–8, 30–31, 69 and indiscriminate attacks, 29, 40 Dogan, M., 138–139 Dolus eventualis, 39n44, 40 Dörmann, K., 88n153, 91n177 Doswald-Beck, L., 70 Double effect doctrine, 38n40 Draft Conclusions on the Identification of Customary International Law (International Law Commission), 55 Draft Statute for an International Criminal Court with Commentaries (International Law Commission), 164 Dubinskiy, Sergey, indictment of, 211n191

290 Dubrovnik, shelling of, 34 Duterte, Rodrigo, 216

E Effectiveness of IHL, 125, 126, 129 compliance mechanisms, 111–112 of investigations into loss of life, 91–93, 94–95, 96–100 Electronic warfare, 5 EMP (Colombian energy company), prosecution of, 247 Enslavement of Yazidi girls, by IS, 135, 251 Equality, of parties to a conflict, 77, 90n173, 101, 115 Errors of fact, ICC appeals on, 162–163, 165–167 Bemba case, 167–168 Errors of law, ICC appeals on, 162, 164 Bemba case, 167–168 Eshel, Amir, prosecution of, 255 Ethiopia, pardon for convictions of treason or terrorism in, 249 EULEX (European Union Rule of Law Mission in Kosovo), 237 European Convention on Human Rights Art. 1, 56 Art. 6(2), 239 on State jurisdiction, 56 European Court of Human Rights, on jurisdiction of States, 56 European Union arms embargo against Myanmar by, 199 sanctions against Iran, 270 Evacuation of civilians in siege warfare obligation, 11–13, 14, 15 as precautionary measure, 17 Evidence consideration in appeals proceedings of international criminal courts, 165–167 in ICC trials, 153, 154, 155–156, 168, 173–174, 178–179, 180 appeals, 162, 167–169, 173–179, 180–182 margin of deference for, 165, 166, 180 Extra-legal factors, IHL compliance influenced by, 113 Extradition of suspects of international crimes, by France, 244 Extraordinary African Chambers, prosecutions by, 239

Index F Factual findings of OPCW on use of chemical weapons in Syrian armed conflict, 205, 268 in trials ICC appeals dealing with, 162, 165– 167 margin of deference in relation to, 153, 154, 165, 166, 179, 180 of UN on Myanmar ethnic violence, 199 Fair trial rights, of terrorism suspects in Iraq, 252 Faith for Rights, 131 FARC (Revolutionary Armed Forces of Colombia) prosecution of crimes committed by, 247–248 release of child members of, 128n17 Fenrick, William, 32 Ferraro, T., 54 Finland, prosecution of international crimes in, 249 Fletcher, G., 38–39 Force, use of IHL on, 67, 69–71 international human rights law on, 67, 72–73, 94 by non-State armed groups, 78 state monopoly of, 77 see also Violence Forced displacement prohibition, 142 Fortify Rights, report on human trafficking in Southeast Asia, 260 Fortin, K., 76, 93n188 France alleged arms support for LNA by, 196 extradition of suspects to Argentina by, 244 military activities in Mali by, 196–197 prosecution of international crimes in, 249–250 Francis (Pope), 136–137 Franck, T., 143 Freedom from Torture Report, 258 Furth, M., 79–80, 81

G Gaddafi, Saif Al-Islam, ICC arrest warrant for, 227–228 Gaggioli, Gloria, 11, 17, 92n183, 92n184, 98n221 Gali´c, Stanislav, prosecution of, 4n4

Index Gallagher, Edward, prosecution of, 261 Gambia ICJ case against Myanmar initiated by, 199 Trust Fund of the Truth, Reconciliation and Reparations Commission (TRRC) in, 250 Ganz, Bruno, prosecution of, 253 Garzon, Jaime, 248 Gaza Strip hostilities with Israel, 191, 255 ICRC involvement with Islamic leaders in, 141 Gbagbo, Laurent, prosecution of, 231–232 Gender issues, in armed conflict, 263 Generating Respect for Humanitarian Norms project, 132n47 Geneva Academy of International Humanitarian Law and Human Rights, 92, 126n6 Geneva Call, 116, 130 engagements with Islamic leaders by, 142 Geneva Conventions on the Laws of War, vii–viii, 80 Additional Protocol I, Protection of Victims of International Conflicts (1977), viii, 79 Art. 5(5), 10 Art. 35, 7 Art. 49, 16 Art. 51, 30, 31, 32 Art. 54, 10, 12–13, 15, 16, 17, 19 Art. 54(1), 9, 10 Art. 54(2), 9, 10, 16 Art. 54(3), 10 Art. 54(4), 9, 10 Art. 57-58, 17 Art. 58, 16 Art. 70, 13–14, 16, 19 Art. 85(3), 30–31 compliance mechanisms of, 120 on humanitarian relief actions, 13 on indiscriminate attacks prohibition, 30–31, 35 on starvation prohibition, 9, 16 Additional Protocol II, Protection of Victims of Non-International Conflicts (1977), viii, 65, 77, 79 application to non-State parties of, 89, 100 Art. 1(1), 76n76, 78 Art. 6, 89

291 Art. 13, 30, 32 Art. 13(3), 70 Art. 14, 19 Art. 18, 19 Art. 18(2), 20 compliance mechanisms in, 120 indiscriminate attacks not covered in, 40 on non-state armed groups, 70 starvation prohibition in, 19 Common Art. 1, 65, 82n120, 83, 87–88, 90–91 application in non-international armed conflicts of, 88 Common Art. 3, vii, 18–19, 20, 45, 48, 64, 76n76 application of, 50 to non-State parties, 89, 100 impact of, 64–65 interpretation of, 70, 77, 80 violations of, 83, 84, 86 Convention I, Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (1949), vii Art. 15, 11 on evacuation of civilians, 11 Convention II, Amelioration of the Condition of Wounded, Sick and shipwrecked Members of Armed Forces at Sea (1949), vii Art. 18, 11 on evacuation at sea, 11 Convention III, Treatment of Prisoners of War (1949), vii Convention IV, Protection of Civilian Persons in Times of War (1949), vii application of, 30 Art. 3(1)(a), 91n177 Art. 4, 30 Art. 13, 30 Art. 17, 11, 12–13, 17 Art. 49, 15 on evacuation of besieged civilians, 11, 12 violations of, 91n177, 121 ‘Geneva Law’, and ‘Hague Law’, 79–81 Genocide accusations of against Germany, of Namibians, 262 against Serbia, of Albanians, 253 of Armenians, Swiss monument in commemoration of, 259

292 Convention, alleged violations by Myanmar of, 199 prosecution of, 234 in Belgium, 245 in France, 249 in Guatemala, 252 starvation of the civilian population as, 18 Germany genocide in Namibia accusations against, 262 prosecution of international crimes in, 251 al-Gharib, Eyad, prosecution of, 252 Girkin, Igor, indictment of, 211n191 Global Public Policy Institute, on use of chemical weapons in Syrian armed conflict, 205 Golan Heights, Israeli annexation of, 193 Golsteyn, Mathew, pardon for, 263 Goren, Shlomo, 133 Gowlland-Debbas, V., 73 Guantánamo Bay, Khadr’s detention at, 246 Guatemala immunity legislation in, 252 prosecution of international crimes in, 252 Guidelines on Investigating Violations of IHL (ICRC), 92

H Habré, Hissène, prosecution of, 239 Haftar, Khalifa, prosecution of, 262 Hague Conventions Convention II, with Respect to the Laws and Customs of War on Land (1899), Art. 27, 8 Convention IV, respecting the Laws and Customs of War on Land (1907), Art. 27, 8 ‘Hague Law’, and ‘Geneva Law’, 79–81 Hague Regulations, Art. 22, 7 Hamade, Marwan, 243 el Hamame, Yahya Abou, 197 Hamas, attacks on Israel by, 193 Haradinaj, Ramush, prosecution of, 238 Hard-to-reach areas, 21n86 Hariri, Rafik, 243 Hasani, Mahir, prosecution of, 238–239 al Hassan, Ag Abdoul Aziz, ICC arrest warrant for, 228–229 Hawi, Georges, 243

Index Heffes, Ezequiel, 129n22 Henckaerts, J.-M., 88n152, 91n177 Hezbollah presence in Lebanon, Israeli attacks on, 193 as terrorist organisation, 260 High Islamic Council, ICRC engagement with, 140–141 Hoda, Shkendije, 253 Hofma´nski, Judge Piotr, 179n156, 181n166 Hostilities and civilian unrest, 68 conduct of IHL paradigm of, 79–80 –application to non-international armed conflicts, 80 direct participation in, 70 by members of non-State armed groups, 72 Houthi rebel forces (Yemen), 211–215 Human Rights Watch, 242, 260 Human shields, prohibition on use of, 16 Human trafficking, in Southeast Asia, 260 Humanitarian aid flotilla, ICC investigations into Israeli attack on, 223–224 Humanitarian relief actions for civilians in siege warfare, 13–16, 19–22 obstruction of in Syria, 20–22, 204 in Yemen, 214–215 humanitarian sector, engagements of with parties to a conflict, 125, 126–127, 130, 144 with religious leaders, 140–142

I ICRC (International Committee of the Red Cross) on application of IHL, 58–59 on compliance with IHL, 108, 112, 114– 115, 126n5, 127, 128n14, 130–131 Customary International Humanitarian Law Study of on humanitarian relief actions for civilians, 14 on IHL compliance in noninternational armed conflicts, 114–115 Rule 53, 9, 10n39 Rule 54, 9 Rule 55, 14 on siege warfare, 10n39

Index on starvation prohibition, 9, 10n39 on determination of existence of noninternational armed conflicts, 43, 44– 45 cumulative approach, 47–48, 52–53, 57–58 support-based approach, 53–54, 55, 57, 58 on effectiveness of investigations and penal sanctions, 91 engagements with religious leaders, 140–141 on Geneva Convention IV, 30n3 on humanitarian relief actions for civilians, 13 on non-State armed groups, 44, 70–71 on respect for IHL obligation, 83 IDPs (internally displaced people), IHL protection of, 142 IHL (International humanitarian law) compliance with, viii–ix, 107–109, 126, 128–131, 142–143 individualization of, 107, 117n51, 117–120 mechanisms for, 109–112, 113, 120– 121, 126 –in non-international armed conflicts, 114–116 promoted by religious leaders, ix, 125, 127, 130–131, 137, 140–144 repression dominance in, 116–117 credibility of, 113 customary, 65, 79 on IHL compliance in noninternational armed conflicts, 114–115 on investigation obligations, 88–89, 101 on siege warfare, 10 on starvation prohibition, 9, 10n39 effectiveness of, 125, 126, 129 and international criminal law, viii, 29, 31–32, 40–41 mens rea concept, 31, 37–38, 40 and international human rights law interplay, viii, 50, 119 in non-international armed conflicts, 68, 72, 76 protection of right to life, 72, 73, 95–100, 101 interpretation of by ICRC, 58–59 by religious leaders of, 133–138 obligations

293 of non-State armed groups, 70–71, 74–76, 77–78, 100 –ensurance of respect for IHL, 65, 82n120, 83, 87–88 –investigation of loss of life, 66–67, 73, 81, 84–85, 86–92, 95–99, 100–101 of States, 114–115 to suppress violations of IHL, 87–88, 91–92 principles distinction, 7–8, 30–31, 69 –and indiscriminate attacks, 29, 40 equality of belligerents, 77, 90n173, 101, 115 proportionality –ICTY on, 34 –and indiscriminate attacks, 35, 39– 40 –in siege warfare, 17 rules forced displacement prohibition, 142 indiscriminate attacks prohibition, 30, 31–33 on non-international armed conflicts, 18–20, 40–41, 56–57, 64–66, 77–78, 79–81 –compliance mechanisms in, 114– 116, 120 –right to life, 67–70 on non-state armed groups, 64 on protection of civilians from direct attacks, 30–33 recruitment of child soldiers prohibition, 128n16 on siege warfare, 3, 7–8, 23, 24 –in international armed conflicts, 8– 18 –in non-international armed conflicts, 18–20 –starvation of civilian population prohibition, 3, 9–11, 16, 18, 19, 20, 24 starvation prohibition, 217 violations of, 107, 108, 111 against children, 99–100n237, 128n16 attacks on civilians, 30–31 causes of, 112–113 criminal responsibility for, 83–86, 110 loss of life, investigation obligations, 66–67, 73, 81, 84–85, 87–93, 95–101 in non-international armed conflicts, 83–86, 205, 214

294 obligation to suppress, 87–88, 91–92 prevention of, 107, 109, 116–117 Iliescu, Ion, prosecution of, 257 Immunity from prosecution for international crimes, Guatemalan legislation on, 252 Impartiality of humanitarian organizations, 144 of investigations into loss of life, 97 of Judges at ICC, 217–219 Independence, of investigations into loss of life, 97 Indiscriminate attacks, 29 IHL prohibition of, 31–33 and incidental loss of civilian lives, 38– 39 prosecution of, 33–37 mens rea concept in, 31, 34, 36, 37–38, 40 in Syrian armed conflict, 205–206 Individual criminal responsibility, attribution of, 29, 40, 117 Individualization of IHL compliance, 108, 117n51, 117– 120 of victims of IHL violations, 117, 118– 119 Information, on IHL violations, 108 Intensity criterion for existence of noninternational armed conflicts, 46, 51 cumulative approach to, 47–53 International armed conflicts, IHL rules on, siege warfare, 8–18 International Court of Justice (ICJ), 110n14 case against Myanmar, initiated by Gambia, 199 Statute of Art. 38, 156, 157 on sources of international law, 156 International Covenant on Civil and Political Rights (ICCPR), on right to life/Art. 6, 88n151 International Criminal Court (ICC) arrest warrants, 226–229, 234, 257 Assembly of State Parties, 213, 216–217 assessment of functioning of, 216 Elements of Crimes, 158n20 evidence rules of, ix, 158n20, 162 investigations in Afghanistan, 220–222 on crimes committed by Kim Jongun, 225

Index on Israeli attack on humanitarian aid flotilla, 223–224 in Myanmar/Bangladesh, 222–223 in Philippines, 216 judgments, on attacks against civilians/indiscriminate attacks, 36–37 jurisdiction of, 226 on non-international armed conflicts, existence of, 49–50, 51 on non-State armed groups, organization of, 47 proceedings appellate review, 155, 180 Bemba –acquittal on appeal, 153–154, 160, 167–179, 179–181, 231 –conviction of, 154, 179 disqualification of judges attempts in, 218–219 evidence considerations in, 153, 154, 155–156, 167, 168, 179, 180 –appeals, 155, 165–166, 167–169, 173–179, 180–182 Gbagbo and Blé Goudé, 232–233 Judges of, disqualification attempts against, 218–220 Katanga, 216 Lubanga, 233 Ntaganda, 36, 229–230 Ongwen, 230–231 Prosecutor Office, Strategic Plan 20192021 of, 217 Rules of Procedure and Evidence, 158n20 Statute of accession to –by Kiribati, 216 –withdrawal by Malaysia of, 216 Art. 6, 161 Art. 8, 161 Art. 8(2)(b)(i), 32, 37n38, 38, 39 Art. 8(2)(b)(iv), 32, 37n38, 38, 39, 40 Art. 8(2)(e), 36, 40 Art. 8(2)(e)(i), 37n, 38 Art. 8(2)(f), 51 Art. 9(3), 158n20 Art. 21, 156–158, 161 Art. 21(1), 156, 159 Art. 21(1)(a), 156, 157, 158, 159 Art. 21(1)(b), 157–158, 159, 160n27 Art. 21(1)(c), 158, 159n21, 160n27 Art. 21(2), 166 Art. 22, 156, 167, 174

Index Art. 22(1), 160 Art. 22(2), 154, 155, 159, 160, 180 Art. 28, 154, 155, 156, 159, 160, 169, 174, 175, 178, 180 Art. 28(a)(i), 180n160 Art. 28(a)(ii), 154, 169, 170–171, 174, 176, 179 Art. 30, 160 Art. 30(2)(b), 38 Art. 30(3), 39 Art. 40(2), 218 Art. 40(4), 218 Art. 49(2) (draft), 164 Art. 51(5), 158n20 Art. 74, 161 Art. 74(5), 168n76 Art. 81, 155, 161, 162, 163 Art. 81(1)(b), 161 Art. 82(1)(a), 222, 223 Art. 82(3), 163 Art. 83, 155, 161, 162, 163, 180 Art. 83(1), 161 Art. 83(1)(a), 161–162 Art. 83(2), 162, 164 on command responsibility, 170–173 on definition of crimes, 159n26, 160– 161 on grounds for appeal, 161–164, 168n76 on IHL violations in noninternational armed conflicts, 83 interpretation of, 153–154, 155, 156– 161, 163, 170–171, 180 on nullum crimen sine lege principle, 159n26, 160n28 obligations of, Jordan’s failure to comply with, 234 on sources of international law, 156– 158 on starvation of civilian population, 18, 20, 217 on unlawful attacks, 32 withdrawals from –of Philippines, 216 –of South Africa, 257 Trust Fund for Victims, 233 International criminal courts appeals proceedings, evidence consideration in, 165–166 on attacks on civilians/indiscriminate attacks, 33–37, 38 on existence of non-international armed conflicts, 45, 48–50

295 prosecution of war crimes by, 117–118 repression of IHL violations by, 116 statutes of, on attacks on civilians, 32–33 International criminal law on criminalization of attacks on civilians, 32–37 deterrent effect of, 126n7 development of, 116 and IHL, viii, 29, 31–32, 40–41 mens rea, in application to indiscriminate attacks, 29, 31, 34, 36, 37–38, 40 International Criminal Tribunal for the former Yugoslavia (ICTY) appeals, evidence considerations in, 165, 166 on attacks on civilians, 33–35 on command responsibility, 171–172 on contempt of court, 235 on indiscriminate attacks, 34–35 on non-international armed conflicts, 73n63 existence of, 45–46, 48–49, 51, 52 violations of IHL in, 83 proceedings, 240 on proportionality principle, 34 on Sarajevo siege, 4n4 Statute of Art. 3, 32–33 Art. 3(b), 33n15 Art. 3(c), 33n15 Art. 6(3), 172n106 Art. 7(3), 171 Art. 25, 162 on attacks on civilians, 32–33 on wanton destruction, 33n15 International Criminal Tribunal for Rwanda appeals, evidence considerations in, 166 on attacks on civilians, 33 on command responsibility, 173 prosecution of Christian religious leaders by, 136 Statute of Art. 6(3), 172n106 Art. 25, 162 International Fact-Finding Commission, 111, 120 International human rights bodies/courts, increased role of, 119 International human rights law application of in armed conflicts, 128n14 and territorial control, 56, 72, 93, 96

296 compliance mechanisms of, use of, 117– 119 and IHL interplay, viii, 50, 119 in non-international armed conflicts, 68, 72, 76 in protection of right to life, 72, 73, 95–100, 101 obligations of non-State armed groups, 64, 72– 73, 74–76, 119 –investigations of loss of life, 66–67, 73, 93–100, 101 –right to life protection, 64, 65–66 right to life, 67–69 violations of by Myanmar armed forces, 199 by non-State armed groups, 75 right to life, investigation obligations for non-State armed groups, 66, 73, 93–95, 101 International Humanitarian Law and the Challenges of Contemporary Armed Conflict (ICRC), 44 International law customary, formation of, 55 enforcement of, 84 sources of, 156–158 International Law Commission on customary international law formation, 55 on ICC Statute, 164 International Residual Mechanism for Criminal Tribunals (IRMCT), proceedings, 234–237 Investigations of ICC on crimes committed by Kim Jongun, 225 on Israeli attack on humanitarian aid flotilla, 223–224 in Myanmar/Bangladesh, 222–223 in Palestine, 225 in Philippines, 226 into allegations of torture in Sri Lanka, 258 into crimes committed by Myanmar armed forces, 199 into use of chemical weapons by Syrian armed forces, 205 into war crimes allegations against British forces, 261 obligations

Index of military commanders, 172, 173, 174, 175, 176 of non-State armed groups, for loss of life, 66–67, 74, 81, 84–85, 87–100, 101 Iran ICRC engagement with Islamic leaders in, 141n102 nuclear programme of, 191, 269 prosecution of international crimes committed in, 258 sanctions against, 269–270 tensions with United States, 190–192 Iraq prosecution of international crimes in, 253 security situation in, 192 IS (Islamic State) in Afghanistan, 189 crimes committed against Yazidi girls, 135, 251 in Iraq, 192 in Libya, 195–196 in Mali, 196–197 prosecution of members of, 251, 255 in Syria, 205, 207 Islamic Jihad, attacks on Israel by, 193 Islamic leaders condemnation of Islamic radicalism by, 134 engagements of humanitarian sector with, 140–142 prohibition of slavery proclaimed by, 135–136 Islamic radicalism, condemnation by religious leaders in Philippines of, 134 Islamist armed groups, in Mali, 196–198 Israel annexation of Golan Heights and parts of West Bank by, 193–194 attack on humanitarian aid flotilla, ICC investigations into, 223–224 Defence Forces of (IDF), IHL interpretation by rabbis of, 133–134 hostilities with Gaza Strip, 193 alleged crimes committed in, 225, 255 US peace plan for, 194

J James, Aidan, prosecution of, 261–262 Jammeh, Yahya, 250

Index Jennifer W., prosecution of, 251 Jessberger, F., 39n44 Jewish law/ethics, on war and armed conflict, 133–134 John-Hopkins, Michael, 14 Joint Comprehensive Plan of Action (JCPOA), 190, 191 Joint criminal enterprise, prosecutions for, 234 Jojic, Petar, prosecution of, 235 Jordan, failure to arrest and surrender alBashir to ICC by, 234 Judges, at ICC, disqualification attempts at trials, 218–220 Jurisdiction of ECCC, 241 of ICC, 226 of states, and control of territory, 56 Jus cogens norms, protection from the arbitrary deprivation of life, 67 Justice, transitional, 144

K Kaldor, M., 126n8 Karadži´c, Radovan, prosecution of, 234 Katanga, Germain, prosecution of, 217, 248 Keita, Ibrahim Boubacar, 197 Kerch Strait bridge, sanctions against firms and individuals involved in construction of, 209 Khadr, Omar, prosecution of, 246 Kharchenko, Leonid, indictment of, 211n191 al Khedr, Ahmad, prosecution of, 255 Kim Jong-un, ICC investigations into crimes committed by, 225 KLA (Kosovo Liberation Army), crimes committed by, 238–239 Kleffner, Jann, 48, 50–51 Knowledge of consequences, 39 of IHL, by non-State armed groups, 130 Kosiah, Alieu, prosecution of, 259 Kosovo, prosecution of crimes committed in, 237–239, 251 Kotlik, M., 129n22 Kovács, Judge Péter, 228 Kraska, James, 5–6 Kretzmer, D., 78–79, 80 Krieger, H., 126n3 Kwoyelo, Thomas, prosecution of, 260

297 L Lafarge company, prosecution of, 250 Landmines, banning of, 266 Law errors of, ICC appeals dealing with, 162, 164, 167–168 internationalization of norms of, 143 overstating significance of, 113 Law enforcement by armed forces, 68 human rights law on use of force in, 94 of international law, 84 non-international armed conflicts seen as, 77–78 by non-State armed groups, 72 LAWS GGE (Lethal Autonomous Weapons Systems, Groups of Governmental Experts on), 265 Lebanon Geneva Call engagement with Islamic leaders in, 142 Hezbollah presence in, Israeli attacks on, 193 prosecution of crimes committed in, 242–244 Leeb, Field Marshal von, 12 Legitimacy of authority, 138–140 of religious leaders, 143–144 compliance generated by, 143 Lethal Autonomous Weapons Systems (LAWS), guiding principles on, 265 Levy, Y., 134 Liberia, prosecution of international crimes committed in, 253, 254, 259, 262 Libya armed conflict in, 194–196 prosecution of international crimes committed in, 226–227, 260 Lieber Code (Instructions for the Government of Armies of the United States in the Field, 1863), Art. 17 and 18/siege warfare, 8 Life loss of incidental, 37, 38–39 investigation obligations for nonState armed groups, 66–67, 73, 81, 84–85, 86–99, 100–101 unlawful, 64 see also Civilians/civilian population, casualties respect for, Catholic calls for, 137

298 right to, 67 prohibition of arbitrary deprivation of, 65, 67 protection of, 100 –in IHL, 67–70 –IHL and human rights law interplay, 71, 73, 75–76, 95–99, 101 –in international human rights law, 67–69 –obligations of non-State armed groups, 64, 65–66, 69, 82 Lithuania, prosecution of international crimes in, 254 LNA (Libya National Army), 194–196 Londoño, Rodrigo, prosecution of, 247 Lorance, Clint, pardon for, 263 Louanga, Michel, 242 LRA (Lord’s Resistance Army), crimes committed by, 230–231, 260 Lubanga, Thomas, prosecution of, 233 Luki´c, Milan, prosecution of, 245

M Maiga, Soumeylou Boubeye, 197 Malaysia accession to ICC Statute withdrawn by, 216 human trafficking to, 260 Mali armed conflict with Islamists in, 140, 196–198 prosecution of international crimes committed in, 225–226 Malice, 39–40n47 Manual on International Law Relating to Air and Missile Warfare (2009), 17 Art. 102(a), 10–11 Art. 157(a), 10–11 on starvation prohibition, 10–11 Matheson, C., 138 Meas Muth, prosecution of, 241 Medellín, atrocities committed in, 247 Media coverage, of IHL violations, 108 Mendoza Garcia, Luis Enrique, prosecution of, 252 Mens rea, viii, 29 in prosecutions of attacks on civilians, 31, 34, 36, 37–38, 40 Meron, T., 84n136 Merry, Sally, 143 MH17 flight, downing of prosecution of perpetrators of, 255

Index Russian involvement in, 211 Mikos-Skuza, El˙zbieta, 17 Military commanders investigation obligations of, 173, 174, 175, 176 reasonableness/reasonable measures of, 39–40, 177–178 remote, 175, 176 responsibilities of, 82 criminal, 85–86 –see also Command responsibility Military forces see Armed forces Military necessity as justification for attacks on civilians, 34 in non-international armed conflicts, 72, 79 Military service, and religion, in Israel, 134 Mindua, Judge Antoine Kesia-Mbe, 221 Minnesota Protocol, 98n225 Minsk agreement (between Ukraine and Russia), 209–210 MLC (Movement for the Liberation of the Congo) troops Bemba’s command of, 174–175 inquiries into misconduct by, 175–176 Monageng, Judge Sanji Mmasenono, 179n156, 181n166 Mondonga Inquiry (into misconduct of MLC troops), 176–177 Monir, Jubair Mohamed, prosecution of, 244 Monitoring of IHL compliance by ICRC, 115 of non-State armed groups, by Geneva Call, 116 Montenegro, prosecution of international crimes in, 254 Moro Islamic Liberation Front (MILF, Philippines), 134 Morrison, Judge Howard, 160n29 Motives, consideration of, 178–179 al-Muhajir, Abu al-Hassan, 207 Multinational forces, participating in noninternational armed conflicts, 54, 58 el-Murr, Elias, 243 Musa, Abdus Samed, prosecution of, 244 Myanmar, ethnic violence in, 198–199 human trafficking resulting from, 260 ICC investigations into, 221–222

N Namibia, Germany accused of committing genocide in, 262

Index Narvaez, Miguel, prosecution of, 247 Necessary measures, by military commanders, 177–178 Necessity, military as justification for attacks on civilians, 34 in non-international armed conflicts, 72, 81 Neretse, Fabien, prosecution of, 245 Netanyahu, Benjamin, 194 Netherlands, prosecution of international crimes in, 254–255 Neutrality, of humanitarian organizations, 144 New Zealand, prosecution of perpetrator of anti-Muslim terrorist attack in, 256 Ngaïssona, Patrice-Edouard, ICC arrest warrant for, 226 Ngenzi, Octavian, prosecution of, 250 Ngirabatware, Augustin, prosecution of, 236 Nidalha, Reda, prosecution of, 255 Nigeria, Boko Haram terrorist attacks in, 200 Non-compliance with IHL, viii see also Compliance, with IHL Non-international armed conflicts, 45 existence of, viii, 43, 44 cumulative approach, 43, 47–53, 57– 58, 59 support-based approach, 43, 53–57, 58, 59 traditional approaches, 45–47 IHL and international human rights law interplay, 68, 71, 75–76, 96–97, 101 IHL on, 56–57, 64–66, 68, 76–77, 78–80 compliance mechanisms for, 114– 116, 120 criminal responsibility for violations of, 83–86 indiscriminate attacks, 40–41 right to life, 67–70 siege warfare, 18–20 starvation prohibition, 217 international human rights law on, 68 parties to, viii prevalence of, viii, 107 UN Security Council Resolutions dealing with, 22 Non-State armed groups, 126n8 combatant status for members of, 77n82, 78 cumulative violence by, 43, 44–45, 47– 53, 57–58, 59 judicial systems of, 89 obligations of, 69, 100

299 of IHL, 64, 70–71, 74–76, 77–78, 100 –compliance with, 126, 128, 129–130 –investigation of loss of life, 66–67, 73, 81, 84–85, 86–92, 95–99, 100–101 of international human rights law, 64, 71–73, 74–76, 119 –investigations of loss of life, 66–67, 73, 93–99, 101 –right to life protection, 65, 66 as parties to a conflict, 45, 46–47, 65 consent for humanitarian relief actions by, 19–20, 22 proliferation of, 44 support to other non-state armed groups by, 55, 57, 58 variety of, 115–116 violations of IHL by criminal responsibility for, 85–86, 118 recruitment of child soldiers, 127n9 starvation of civilian population by, 20 in Yugoslavia wars, 48 Norms, internalization of, 143 North Korea, ICC investigations into crimes committed by Kim Jong-un, 225 Norway, prosecution of international crimes in, 256 Nouri, Hamid, prosecution of, 259 Nouri, Mahamat, prosecution of, 249 Ntaganda, Bosco, prosecution of, 36, 229– 230 Nuclear weapons, elimination of, 269 Nullum crimen sine lege principle, 159n26, 160n28 Nuremberg Military Tribunal on enforcement of international law, 84 on individual criminal responsibility, 117n51

O O-Gon Kwon, Judge, 216 Obedience, to authority, 138 Objects indispensable to survival of civilian population, 10 Oblique intent, 38 Ohlin, J., 38n40 Ongwen, Dominic, prosecution of, 230–231 OPCW (Organisation for the Prohibition of Chemical Weapons), on use of chemical weapons in Syrian armed conflict, 205, 268

300 Organization criterion, for existence of noninternational armed conflicts, 46–47 Organized armed groups see Non-State armed groups Outer space, prevention of arms race in, 270 Ownership, of norms, 143 Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict, 13, 18–20 Oxford Manual on the Laws of War on Land (1880), 8 Ozaki, Judge Kuniko, 218–220

P Pakistan, terrorism definition in, 256 Palestine ICC investigations in, 224–225 US peace plan for, 194 Parties to a conflict determination of, 48, 57 equality of, 77, 90n173, 101, 115 humanitarian sector engagements with, 125, 126–127, 130, 144 IHL compliance by, 128, 129 non-State armed groups as, 45, 46–47, 65 Peace agreements in Central African Republic, 189 in South Sudan, 202–203 Peace negotiations on Afghanistan, 188–189 on Ukraine, 208 on Yemen, 211 Peace plans, of United States for Israel/Palestine, 194 Pejic, Jelena, 19, 20 Penal sanctions, effectiveness of, 91 Perrin de Brichambaut, Judge Marc, 218– 219 Philippines condemnation of Islamic radicalism by religious leaders in, 134 ICC investigations in, 215 withdrawal from ICC Statute by, 216 Pillaging, by MLC troops, 176 Pinheiro de Lima, Antônio Waneir, prosecution of, 246 Plan of Action for Religious Leaders and 152 Actors to Prevent Incitement to Violence that Could Lead to Atrocity Crimes (UN), 131 Pope, declared support for IHL by, 136–137

Index Post-conflict justice mechanisms, 144 Powers, of military commanders, 172 Precautions in attack obligation, in siege warfare, 16–17 Prevention of arms race in outer space, 270 of IHL violations, 107, 109, 116–117 Promptness, in investigations of loss of life, 99 Proportionality principle of IHL ICTY on, 34 and indiscriminate attacks, 35, 39–40 in siege warfare, 17 Prosecution of international crimes, 92n183, 117–119, 156 attacks on civilians, 31, 33–35 immunity from, Guatemalan legislation on, 252 international by ICC, 226–234 –see also Bemba (Gombo), JeanPierre by ICTY, 236 by IRMCT, 234–236 by Special Tribunal for Lebanon, 243–244 national in Argentina, 244 in Belgium, 245 in Bosnia and Herzegovina, 245–246 in Brazil, 246 in Cambodia, 247 in Canada, 246 in Central African Republic, 242, 246–247 in Colombia, 247–248 in Congo Democratic Republic, 216, 248–249 in Croatia, 248 in France, 249–250 in Kosovo, 237–239, 253 in Liberia, 253–254 in Libya, 227 in Lithuania, 254 in Montenegro, 254 in Netherlands, 254–256 in New Zealand, 256 in Norway, 256 in Romania, 257 in Sudan, 258 in Sweden, 259 in Switzerland, 259 in Uganda, 260

Index in United Kingdom, 259 in United States, 261–263 in Vietnam, 263 and non-State armed groups crimes committed by members of non-State armed groups/in noninternational armed conflicts, 64, 216, 217 prosecution organized by non-State armed groups, 89–90, 97 role of victims in, 119 Protecting powers, 114n41 Protracted armed violence, 46 Pulatov, Oleg, indictment of, 211n191 Punishment duty, of military commanders, 172 Putin, Vladimir, 208, 210 Q Quasi-States, non-State armed groups as, 116 Questions and Answers on Taking Captives and Slaves (IS Research and Fatwa Department), 135 Quintin, A., 130n33 R Rabbis, interpretation of IHL rules by, 133– 134 Radeta, Vjerica, prosecution of, 235 Radic, Marko, prosecution of, 248 Rape, IS justifications for, 135 Raslan, Anwar, prosecution of, 252 Reasonable measures, by military commanders, 177–178 Reasonableness, of military commanders, 39–40, 177n145 Recklessness, 39n44, 45 Refugees Rohingya, in Bangladesh, 198 from Syria, 208 Religion, and military service, in Israel, 134 Religious leaders, 132–133 authority of, 138–140 IHL compliance promoted by, ix, 125, 127, 130–131, 137, 140–144 IHL interpretations of, 133–138 Remedies, for victims of IHL violations, 119–120 Reparations awards, 233, 240 for sexual violence victims, 245

301 for victims of international crimes, 250 Report of the Fact-Finding Mission Regarding the Incident of Alleged Use of Toxic Chemicals as a Weapon in Douma, Syrian Arab Republic (OPCW), 205 Repression, in IHL compliance regime, 107, 116–117 Respect for IHL obligation, by non-State armed groups, 65, 82n120, 83, 87–88 Responsibility see Criminal responsibility Reward-based authority, 138 Right to life see Life, right to Rogers, A.P.V., 10 Rohingya population, violence in Myanmar against, 198–199 human trafficking resulting from, 260 ICC investigations into, 222–223 Romania, prosecution of international crimes in, 257 Rome Statute see International Criminal Court (ICC), Statute of Romeu, Inês Etienne, 246 Roots of Behaviour in War/Roots of Restraint in War (ICRC), 112, 130n32, 131, 141 Rottensteiner, Christa, 6, 20 Rules, symbolic validation of, 143 Rus, Iosif , prosecution of, 257 Russia, involvement of in downing of flight MH17, 210 in Ukraine conflict, 208–211 Rwandan genocide, prosecution of perpetrators of in Belgium, 245 in France, 249–250

S Samphân Khieu, prosecution of, 240–241 San Remo Manual on International Law Applicable to Armed Conflicts at Sea, Art. 102(b), 17 Sanctions of EU, against Myanmar, 199 against Iran, 269–270 of Ukraine, against firms and individuals involved in construction of Kerch Strait bridge, 209 of United States, against Sudan, BNPP’s breach of, 250 Sandoval, Mario, prosecution of, 244 Sarajevo, shelling/siege of, 4n4, 34

302 Sassòli, M., 78 Saudi Arabia attack on oil facilities of, 191 death penalty in, 257 involvement in Yemen armed conflict, 211–212 Schaack, Beth van, 5, 21n86 Schabas Commentaries to the Rome Statute, 158, 162 Schabas, W., 71 Schmitt, M., 92n180 Schools, attacks in Ukraine on, 209 Schwendimann, Felix, 13 Scorched-earth policies, 10 Self-defence, 38n40 Serbia accusations of genocide on Albanians against, 253 refusal to extradite suspects in ICTY contempt case, 235 Sexual violence, reparations for victims of, 245 Shany, Y., 95n201 Shi’a Islam religious leaders of, Geneva Call’s engagement with, 142 in Saudi Arabia, 257 in United Arab Emirates, 260 Sibut Inquiry (into misconduct by MLC troops), 176 Siege warfare, 4, 5–6, 23–24 IHL on, viii, 3, 6, 7–8, 20, 23, 24 in international armed conflicts, 8–18 in non-international armed conflicts, 18–20 UN security council resolutions on, 20– 23 Sierra Leone, prosecution of international crimes committed in, 261 Simatovi´c, Franko, prosecution of, 236 Sivakumaran, S., 40n49 Slavery IS justifications for, 135 Islamic leaders on prohibition of, 135– 136 see also Enslavement Somalia, armed conflict in, 201–202 Somer, J., 90n170, 90n173 Sources of international law, 156–158 of legitimacy, 139, 140 South Africa, withdrawal from ICC Statute of, 257

Index South China Sea, alleged crimes by Chinese nationals in, 226 South Sudan, peace agreement in, 202–203 Southern Transitional Council (STC, Yemen), 213, 214 Special Court for Sierra Leone, Statute of Art. 4(a), 33 on attacks on civilians, 33 Special Tribunal for Lebanon, proceedings, 243–244 Srebrenica massacre (1995), conviction of perpetrators of, 234 Sri Lanka allegations of torture in, 258 ICRC engagements with religious leaders in, 141 terrorist attacks in, 203 Standards of appellate deference, 153, 165, 166 ICC appeals chamber’s deviation from, 154–155, 166, 179, 181 for investigations of loss of life, 95–100 Staniši´c, Jovica, prosecution of, 236 Starvation IHL prohibition of in non-international armed conflicts, 217 in siege warfare, 3, 9–11, 13, 16, 18, 20, 24 use in siege warfare of, 6, 8 by non-State parties, 19 States obligations of of IHL, 114–115 –compliance with, 128 of international human rights law, and territorial control, 56 on right to life, 68–69 practices of, customary international law formation through, 55 responsibility of, for war crimes, 118 use of force by international human rights law on, 67 monopoly of, 78 Strait of Hormuz, tensions in, 190–191 Sudan, prosecution of international crimes committed in, 233, 250 domestic prosecution of al-Bashir, 258 Suffering of civilian population, in siege warfare, 6 Support-based approach to existence of noninternational armed conflicts, 43, 44, 53–57, 58, 59

Index Sweden, prosecution of international crimes in, 259 Switzerland monument in commemoration of Armenian genocide, 259 prosecution of international crimes in, 259 Syla, Azem, prosecution of, 238 Symbolic validation, of IHL rules, 143 Syria armed conflict in, 57, 204–208 chemical weapons used, 205, 268 siege warfare in, 4, 18, 20–23 prosecution of international crimes committed in, 251, 255, 256

T Taha A.-J., prosecution of, 251 Taliban participation in peace negotiations by, 188–189 territorial control by, 93 Tambadou, Abubacarr, 251 Targeting rules of IHL, and non-State armed groups targeting, 70–71 Taylor, Agnes Reeves, prosecution of, 261 Taylor, Charles, conviction of, 261 Territorial control and human rights law obligations for non-State armed groups, 72, 76, 93 for states, 56 and IHL obligations, for non-State armed groups, 76, 84 Terror spreading prohibition of IHL, 4n4 Terrorism, 256 attacks chemical, 268 in Mali, 196 in Nigeria, 200 in Somalia, 201 in Sri Lanka, 203 prosecution of in France, 250 in Iraq, 253 in Lebanon, 244 in New Zealand, 256 in United Arab Emirates, 260 in United Kingdom, 261 in United States, 261 in Vietnam, 263 Terrorist organisations

303 Hezbollah listed as, 260 Iran’s Islamic Revolutionary Guard Corps designated by United States as, 191–192 Viet Tan listed as, 263 Terrorists, United Sates air strikes against, 197, 200 Thailand, human trafficking to, 260 Thoroughness, of investigations into loss of life, 98 ‘Thou Shall Not Kill’: The Use of Lethal Force in Non-International Armed Conflicts (article, Kretzmer et al), 79 Thresholds for appeal proceedings on errors of law, 162 for command responsibility, 156, 170, 172, 173 for existence of non-international armed conflicts, 43 Timbuktu, international crimes committed in, 228 Torture, in Sri Lanka, allegations of, 257– 258 Tougas, M.-L., 130n33 Transitional justice, 144 Transparency, in investigations of loss of life, 99 Treaties ICC Statute as, 159 interpretation of, 157n13 see also Vienna Convention of the Law of Treaties Treaty on the Prohibition of Nuclear Weapons, ratifications, 269 Triffterer Commentaries to the Rome Statute, 157, 158, 162, 166 Trotha, Lothar von, 262 Trump, Donald, 190, 201, 206, 262 al-Tuhamy, Mohamed Khaled, ICC arrest warrant for, 227 Turkey, attacks on Kurdish forces by in Iraq, 192 in Syria, 206–207 U Udasan, Abuhuraira Adbulrahman, 134 Uganda, prosecution of international crimes committed in, 230, 260 Ukraine, armed conflict in, 208–210 UNDP (UN Development Programme), on role of religious leaders/faith-based organizations, 131

304 Unfair proceedings, as ground for appeals, 163–164, 180 Union of Congolese Patriots, crimes committed by, 229 United Arab Emirates, involvement in Yemen conflict, 212 United Kingdom armed forces, investigations into war crimes committed by, 261 Joint Service Manual of the Law of Armed Conflict, 14–15 participation in naval security mission in Strait of Hormuz by, 190–191 peacekeeping operation in Mali by, 198 prosecution of international crimes in, 261 United Nations Charter, Art. 2(7), 22 General Assembly First Committee on Disarmament and International Security, on elimination of nuclear weapons, 269 Human Rights Council Independent International FactFinding Mission on Myanmar (IIFFMM), 199 Independent Investigative Mechanism for Myanmar (IIMM), 199 on Sri Lanka, 258 Office on Genocide Prevention and the Responsibility to Protect, 131 peacekeeping operations in Central African Republic, 189 in Libya (UNSMIL), 195 Security Council on Central African Republic armed conflict, 189 Monitoring and Reporting Mechanism (MRM), 100 on obligations of non-State parties, 22, 88–89, 93 Resolutions –No. 713 (1991) Yugoslavia, 49 –No. 757 (1992) Yugoslavia, 49 –No. 1193 (1998) Afghanistan, 89 –No. 1612 (2005) Monitoring and Reporting Mechanism, 100n237 –No. 2042 (2012) Syria, 21 –No. 2043 (2012) Syria, 21 –No. 2139 (2014) Syria, 21, 22, 23 –No. 2164 (2014) Syria, 21 –No. 2217 (2015) Central African Republic, 65n8

Index –No. 2258 (2015) Syria, 21 –No. 2488 (2019) Central African Republic, 187 –Syria, 21–23, 24 on respect for IHL obligation, 65n8 on Yugoslavia wars, 48–49 Special Rapporteur on extrajudicial, summary or arbitrary executions, 253 on IHL obligations of non-State armed groups, 82–83 Special Representative of the Secretary General for Children in Armed Conflict, 127n9, 130n31 Subcommittee on the Prevention of Torture, investigations in Sri Lanka, 258–259 on use force in law enforcement operations, 95 United States armed forces deployment air strikes against suspected terrorists by, 196, 201 in Somalia, 201 in Syria, 206, 208 peace plan for Israel/Palestine, 194 prosecution of international crimes in, 261–262 tensions with Iran, 190–192 visa of ICC Chief Prosecutor revoked by, 220 Unlawful attacks, 32 see also Indiscriminate attacks Urban areas warfare/armed conflicts in, 3, 4–5 see also siege warfare Uribe Álvaro, 248

V Vatican, support for IHL by, 136–137 Velasquez, Hernan, prosecution of, 247 Vermeer, Arjen, 6 Victims of IHL violations, individualization of, 118–119 of international crimes, reparations/remedies for, 120, 233, 239, 245, 250 of siege warfare, 4 Vienna Convention on the Law of Treaties Art. 31, 156, 158, 159, 160, 161 Art. 31(1), 90n172, 157, 159n25, 169 Art. 32, 156, 158, 159, 161

Index Art. 31-33, 157n13, 159n23 on conduct of criminal trials, 90n172 and ICC Statute interpretation, 153–154, 155, 156–159, 163, 169–170, 179 Viet Tan, 263 Vietnam, prosecution of international crimes in, 263 Violations of IHL, 107, 108, 111 against children, 99–100n237, 127n16 attacks on civilians, 30–31 causes of, 112–113 criminal responsibility for, 83–86, 110 loss of life, investigation obligations, 66–67, 73, 81, 84–85, 86–92, 95–99, 100–101 in non-international armed conflicts, 83–86, 205, 214 obligation to suppress, 87–88, 90–91 prevention of, 107, 109, 116–117 of international human rights law by Myanmar armed forces, 197 by non-State armed groups, 75 right to life, investigation obligations, 66–67, 73, 92–95, 101 Violence complex situations of, 51 cumulative, non-international armed conflict existence based on, 43, 44–45, 47–53, 57–58 ethnic, in Myanmar, 197, 257–260 protracted, 46, 51–52 sexual, reparations for victims of, 245 see also Force, use of Voiculescu, Gelu Voican, prosecution of, 257

W Wanton destruction, ICTY Statute on, 33n15 War crimes attacks on civilians as, 32–35 collective responsibility for, 118 in non-international armed conflicts, 84– 85 prosecution of, 92n183, 117–118, 156 committed by members of non-State armed groups, 64 in Congo Democratic Republic, 216 investigation obligations, 87–88 in Montenegro, 254 in Netherlands, 255

305 organized by non-State armed groups, 89–90, 97 role of victims in, 119 in United Kingdom, 261 in United States, 262 see also Prosecution of international crimes starvation of civilian population as, 18, 20 Watts, Sean, 4–5, 14, 15, 18, 22, 23 Weah, George, 253 Weapons biological, convention on, 268–269 chemical Convention on, 267–268 use in Syrian armed conflict of, 205, 268 conventional, Convention on, 264 lethal autonomous, guiding principles on, 265 Nuclear, elimination of, 269 in outer space of, draft treaty on prevention of, 270 Weber, Max, 139, 143 Weinstein, J., 126n7 al-Werfalli, Mahmoud Mustafa Busayf , ICC arrest warrant for, 227 Werle, G., 39n44 West Bank, Israeli annexation of parts of, 194 WFP (World Food Program), humanitarian relief efforts suspended by in Syria, 204 in Yemen, 214–215 Witnesses, reliability of, 169n87 Women absence as religious authority of, 136 non-Islamic, IS enslavement of, 135, 251 Wyngaert, Judge Christine van den, 160

Y Yazidi girls, IS crimes against, 135, 251 Yazov, Dmitry, prosecution of, 254 Yekatom, Alfred, prosecution of, 226 Yemen, armed conflict in, 211–215 Yim Tith, prosecution of, 242 Yugoslav wars, 48–49 accusations against Serbia of genocide on Albanians, 253 attacks on civilians in, 33–35 prosecution of international crimes committed in, 234, 245, 247–248, 255

306

Index see also International Criminal Tribunal for the former Yugoslavia (ICTY)

Z Zegveld, L., 82n120, 88 Zelensky, Volodymyr, 208 Zmajevi´c, Vlado, prosecution of, 254 Zongo Commission (of inquiry into misconduct by MLC troops), 176