Tag: international humanitarian law

Call for Chapters: The Laws of Yesterday’s Wars

Editors Articles

Brill Nijhoff is calling for Chapters for Volume 4 and 5 of an edited series, looking to address how international is international humanitarian law. 

Volume 1 of The Laws of Yesterday’s Wars was just published, with Volumes 2 and 3 forthcoming in 2022. The editor, Samuel White, is currently seeking expressions of interest for submissions. In order to see just how international IHL is, it is hoped to collate a large variety of case studies from a wide spectrum of cultures. No case study can be too obscure! 

If this is something that might interest you, please contact Samuel White directly on [email protected] with a brief CV (200 words) and brief summary of a possible culture you would wish to write on (200 words).

Opportunity Lost: The ECtHR’s Restrictive Approach Re-ignites Vacuum between Human Rights and Humanitarian Law – Alessandro Silvestri

Editors Analysis, Articles

In Georgia v Russia (II), the European Court of Human Rights (‘ECtHR’ or ‘Court’) was asked to decide on numerous alleged breaches of human rights by the Russian Federation (‘Russia’) during a five-day armed conflict between Georgia and Russia. Despite the legal trend favouring the complementarity between International Human Rights Law (‘IHRL’) and International Humanitarian Law (‘IHL’), the Court ultimately held that Russia lacked jurisdiction over extraterritorial breaches of human rights under art 1 of the European Convention on Human Rights (‘ECHR’ or ‘Convention’), signalling a regrettable turnaround from recent case-law.

The ECtHR was handed the perfect opportunity to move past, as rightly underscored by Judge Chanturia, the legally ‘lifeless’ Bankovićdecision and enrich the interplay between IHRL and IHL in Georgia v Russia (II),but ultimately failed to do so. 

For legal purposes, the events under scrutiny may be divided in two parts. The first part concerned the armed conflict between Georgia and Russia, with South Ossetians and Abkhaz forces also playing an important role. Hostilities started on the night of 7 to 8 August 2008 and lasted for about five days, resulting in significant losses, including an alarming number of civilian casualties. Secondly, following a ceasefire, Georgia submitted that Russia perpetrated a number of human rights abuses, including the killings and displacement of civilians, the degrading treatment of civilians and prisoners of war, lootings and destruction of civilian objects, which would constitute significant violations of the ECHR. The scope of this written work is to assess the ECtHR’s approach to the first part and assess whether said approach adequately grasped the interplay between IHRL and IHL, as the latter comprises the body of international law applicable to armed conflicts.

The interplay between IHRL and IHL has been subject to much scrutiny in international law. It is internationally recognised that the two bodies of international law are mutually complementary, thus meaning that the protection of certain human rights, in particular, as the International Court of Justice in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons argued at § 25, the ‘right not arbitrarily to be deprived of one’s life’, does not cease during armed conflict (see also Orakhelashvili and the ICTY in Prosecutor v Kunarac et al§ 467). On the other hand, the ‘intricate legal issues of interplay that sometimes arise’ have arguably posed practical challenges in the way the interplay is to be understood, such as matters of derogation, jurisdiction, discretion, accountability, etc. (see also Bethlehem, 180– 82). The opportunity Georgia v Russia (II) presented for furthering the interpretation of applicable human rights norms in situations of armed conflict was therefore invaluable.

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Developing an approach to the legal review of Autonomous Weapon Systems – Lauren Sanders and Damian Copeland

Editors Analysis, Articles

A fundamental question driving the international debate concerning the regulation of Autonomous Weapon Systems (AWS) (AWS definitions here and here) is whether they can be used in compliance with international law. While state legal reviews of new weapons are important tools to ensure the lawful use of AWS, their utility is challenged by limited state practice and the absence of standard review methods and protocols.  However, done properly, state legal reviews are a critical mechanism to prevent the use of inherently unlawful AWS, or, where necessary, restricting their use in circumstances where they cannot predictably and reliably comply with international humanitarian law (IHL). 

All states are required to undertake legal reviews of new weapons either because of an express obligation under Article 36 of the Additional Protocol I to the Geneva Conventions, or to give effect to a broader IHL requirement to ensure the lawful use of weapons in armed conflict. While international law does not require a particular review methodology to be used, the rapid changes to technology that enable autonomy—such as Artificial Intelligence and machine learning—raise the question of how states can practically conduct legal reviews of weapons that are enhanced by such technology.

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Ensuring Respect for International Humanitarian Law: what it looks like in practice – Eve Massingham and Annabel McConnachie

Editors Analysis, Articles

It would be reasonable to expect that the very first article of the most widely accepted of international legal treaties – Common Article 1 to the four Geneva Conventions of August 1949 (CA1) – had been extensively studied. Yet, as a small number of commentators have noted, this is not the case, and indeed, this article has perhaps always attracted less attention than it arguably should have (see for example, Kalshoven at p.16, 27-28). When the ICRC embarked on its now published (2016) Geneva Convention Commentary update project, it was clear that some renewed interest in CA1 would ensue. And indeed it has. Sparking some healthy debate.  

CA1 asserts that the High Contracting Parties must respect the Conventions ‘in all circumstances’. This requires States to implement the law within the Conventions domestically and adhere to the rules in good faith, in times of war and peace. In addition, States must also ‘ensure respect’ for the Conventions – and it is this obligation which is the most interesting to examine.  

We began our own exploration of the concept of ensuring respect for IHL by focusing on how States approach the laws pertaining to weapons regulation. Following on from this body of work, we began considering what ensuring respect might look like across a range of different areas of IHL (such as targeting, detention and the actions of private actors or foreign fighters). To this end we approached a number of experts with areas of interest where we felt it might be possible to observe whether, and how, States fulfil this obligation – indeed, whether they consider it to be a legal obligation at all. The results of those considerations are contained in Ensuring Respect for International Humanitarian Law published by Routledge in August 2020.

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With Open Arms: Could Australia’s weapons exports be at odds with its responsibilities under international law? – Suzanne Varrall

Editors Articles

This piece explores the link between international arms transfers and serious violations of international humanitarian law and human rights, and how Australia’s arms exports strategy may be at odds with its obligation to respect international humanitarian law and abide by the Arms Trade Treaty.

Introduction

In Yemen, the Arab world’s poorest country is currently experiencing what the UN has labelled the world’s worst humanitarian crisis. Numerous violations of international humanitarian law and human rights have been documented since March 2015, when Saudi Arabia and the United Arab Emirates (UAE) initiated an international intervention in support of ousted President Hadi. Yet, four years after the conflict began, and with the benefit of significant evidence linking arms supplied by Western countries to indiscriminate civilian attacks in Yemen, the Australian government issued 42 licences to export military or dual-use equipment to Saudi Arabia and the UAE in 2019. The authorisation of these arms transfers comes after the announcement by the government of an ambitious defence export strategy in 2018, aimed at moving Australia into the top ten arms supplying countries in the world and pledging a A$3.8 billion fund to help local arms exporters enter the international market. This post reflects on whether such a strategy is at odds with Australia’s obligations in respect of international humanitarian law and human rights, and whether it could ultimately undermine Australia’s reputation as a global leader on arms control. 

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ICC Appeals Chamber resurrects controversial customary international law argument to find Al-Bashir has no immunity before international courts – Keilin Anderson

Editors Analysis, Articles 1 Comment

Last Monday the Appeals Chamber (AC) of the International Criminal Court (ICC) delivered its judgment on the question of Omar Al-Bashir’s immunity from prosecution for international crimes. In addition to the majority judgment, four Judges penned a Joint Concurring Opinion. A joint dissenting opinion from two Judges is yet to be published.

The decision has already been described in early commentary as ‘stunning’ ‘deeply misguided’ and ‘extremely controversial’.

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The Nuclear Weapon Prohibition Treaty – Prof. Ramesh Thakur

Editors Analysis, Articles, Opinion

For half a century, the normative anchor of the global nuclear order has been the Nuclear Non-Proliferation Treaty (NPT). On 27 October 2016, the First Committee of the United Nations General Assembly adopted, by a landslide 123-38 vote (with 16 abstentions), Resolution A/C.1/71/L.41 that called for negotiations on a ‘legally binding instrument to prohibit nuclear weapons, leading towards their total elimination’. This was followed by a vote in the full General Assembly on 23 December passed by an equally solid 113-35 majority. The resolution fulfilled the 127-nation humanitarian pledge ‘to stigmatise, prohibit and eliminate nuclear weapons’. The UN-mandated conference met in New York on 27–31 March and 15 June–7 July 2017. On 7 July, 122 states voted to adopt a new Nuclear-Weapon Prohibition Treaty (NWPT). It was opened for signature in the UN General Assembly on 20 September 2017. The treaty will come into effect 90 days after fifty states have ratified it. As of 30 September 2018, 19 countries had ratified the treaty and 60 had signed it.

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2016 – Year in Review

Editors Articles, News

The past year has been incredibly tumultuous, having reset the international stage and delivering incredibly unexpected political outcomes. From an international legal perspective, while events such as Brexit, Donald Trump’s election, and the crisis in Syria have undoubtedly raised important legal questions and will likely change international law in the future, there have been numerous other significant developments.

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Recognising male victims of sexual violence in war: the UN Security Council and ad hoc tribunals – Richard Hughes

Editors Analysis, Articles, Opinion

Australia has provided steadfast support for the UN’s agenda on women, peace and security, ever since the landmark Resolution 1325. This agenda has done much to shine light on the sexual violence perpetrated against women and girls in times of war. But what about the male victims – where do they fit into the picture?

 

Resolution 1325, passed unanimously in 2000, marked the beginning of the Security Council’s direct engagement with the issues of gender and sexual violence in armed conflict and has since served as the organising framework for the UN’s agenda on women, peace and security. The Security Council has subsequently passed a number of related resolutions on sexual violence, but only one resolution makes mention of male victims. Resolution 2106 notes that sexual violence in armed conflict “disproportionately affects women and girls, as well as groups that are particularly vulnerable or may be specifically targeted, while also affecting men and boys and those secondarily traumatized as forced witnesses of sexual violence against family members”. Evidently, there is a conceptual difficulty associated with including the male experience in an agenda otherwise focused on women and girls, and it seems that the best the Security Council has been able to do is include a passing mention.

In Resolution 1820, the Security Council notes that “women and girls are particularly targeted by the use of sexual violence, including as a tactic of war to humiliate, dominate, instil fear in, disperse and/or forcibly relocate civilian members of a community or ethnic group”. But the effects of sexual violence as a weapon of war are equally devastating when men and boys are targeted. In the same resolution, the Security Council also “[d]emands that all parties to armed conflict immediately take appropriate measures to protect civilians, including women and girls, from all forms of sexual violence, which could include … debunking myths that fuel sexual violence”. It is not clear exactly what the Security Council has in mind here, which leaves the impression that it is simply making a throwaway comment. A more detailed consideration of the myths fuelling sexual violence would help to shine light on both female and male experiences of sexual violence.

From the perspective of male victims, Resolution 1888 poses another issue. It “[e]ncourages leaders at the national and local level, including traditional leaders where they exist and religious leaders, to play a more active role in sensitising communities on sexual violence to avoid marginalisation and stigmatization of victims, to assist with their social reintegration and to combat a culture of impunity for these crimes”. But traditional and religious leaders are often highly complicit in conservative attitudes, which marginalise and stigmatise male victims of sexual violence. For this reason, the implication that they simply sit back and fail to do enough may misconceive their existing role, as well as their personal attitudes to male victims of sexual violence generally. In the Secretary-General’s report to the Security Council on conflict-related sexual violence, he made a similar recommendation to Member States and regional organisations “[t]o support the engagement of religious leaders … with the objective of curbing violent extremism, preventing the justification of sexual or other violence on religious grounds and addressing the stigmatisation suffered by survivors of sexual violences”. This recommendation appears to be worded in a slightly more appropriate way.

A cynic may note that Security Council resolutions are, by their nature, typically broad in scope and worded in such a way as to secure support from a diverse number of countries and (most importantly) all five permanent members of the Security Council. At any given time, at least some member states on the Security Council are probably unwilling to discuss male victims of sexual violence in a meaningful way.

However, this has not been an insurmountable problem. The Security Council has done more for male victims of sexual violence in armed conflict through resolutions establishing ad hoc international criminal tribunals than it has through resolutions under the agenda on women, peace and security. The International Criminal Tribunal for the former Yugoslavia (“ICTY”) has led the way in handling sexual violence in armed conflict under international law, despite the fact that it is only an ad hoc tribunal with strict geographic and temporal limits. Numerous cases before the ICTY have made specific mention of sexual violence against males during the Yugoslav Wars. For example, Prosecutor v Brđanin (Judgement), Prosecutor v Krajišnik (Judgement), and Prosecutor v Martič (Judgement) all make mention of sexual violence against males, often in the context of discussing sexual abuse or rape generally. In Prosecutor v Mucić (Judgement), the Chamber also noted that an act of forced fellatio between two men could have constituted rape “for which liability could have been found if pleaded in the appropriate manner”.

These cases have undoubtedly helped to shine light on inhuman and politically inconvenient wartime events. But it has not been smooth sailing. The current Deputy Prosecutor of the ICTY, Michelle Jarvis, has recently acknowledged that the Prosecution missed some opportunities to characterise sexual violence against males as rape. This reflects a wider issue before international criminal tribunals: the comparatively easier route of treating males as victims of torture or some form of ill-treatment other than sexual violence.

This approach follows, as a matter of course, in the judgments. For example, in Prosecutor v Tadić (Opinion and Judgement) – the very first case before the ICTY – the indictment included charges for “persecution, inhuman treatment, cruel treatment, rape … torture [and] wilfully causing great suffering or serious injury to body and health”. The incident in which one detainee in the Omarska Camp was forced to bite off the testicles of another detainee was subsumed by the Chamber under “inhuman treatment, wilfully causing great suffering or serious injury to body and health, cruel treatment and inhumane acts”, seemingly because it could not be classified as rape (the only charge of an explicitly sexual nature in the indictment). Although the subsumption of crimes of sexual violence under different categories may provide them with an important threshold of seriousness, it will still prevent the adequate prosecution of these offences.

Sandesh Sivakumaran, one of the first legal scholars to focus in depth on male victims of sexual violence in armed conflict, has developed an insightful framework for understanding how sexual violence against men has been handled in the ad hoc tribunals. It may have been: (i) mentioned but not characterised as sexual violence, (ii) mentioned and characterised appropriately, but without any consequences attaching or (iii) mentioned and characterised appropriately, with consequences arising therefrom. The first category would include the Tadić incident explained above, as well as an incident mentioned in Prosecutor v Simić (Judgement), where a police truncheon was rammed up the anus of a detainee. The Simić incident was explained under a sub-heading of the judgment titled “Evidence relevant to other acts”, which came under a chapter of the judgment entitled “Beatings, Torture, Forced Labour and Confinement under Inhumane Conditions”. The problem with this approach is that it does nothing to show the susceptibility of males to sexual violence, clearest when males are in detention and at their most vulnerable. The second category highlights judgements which carry the risk of insinuating that the sexual violence that occurred is not overly important when compared to other harms suffered. The third category is the clearly the most appropriate. An example is the approach taken in Prosecutor v Češić (Sentencing Judgement), which included an account of two Muslim brothers detained at Luka Camp and forced at gunpoint to perform fellatio on one another in the presence of camp guards. This incident was ultimately categorised as “sexual assault, constituting a crime against humanity (rape) and a violation of the laws or customs of war (humiliating and degrading treatment)”, to which the Accused pled guilty.

How do we explain the different approaches taken when the facts of a case show incidents of sexual violence? There is probably no satisfactory answer to this. Firstly, it must be appreciated that it was only with the creation of ad hoc tribunals in the 1990s that sexual violence was prosecuted under international law for the first time since World War II (sexual violence was not prosecuted at the Nuremberg trials, but it was at the International Military Tribunal for the Far East in Tokyo, following the “Rape of Nanking”). Secondly, attitudes towards and understanding of sexual violence against males are continuing to evolve. Thirdly, there have been 86 permanent or ad litem judges appointed to the ICTY since its inception and they have come from all corners of the world and from both sides of the traditional common law-civil law jurisdictional divide. This makes consistency in the prosecution and judgment of cases very hard to expect.

Consideration of sexual violence against males within the International Criminal Tribunal for Rwanda’s (“ICTR”) jurisprudence is much more limited than that of the ICTY. This could be reflective of a lower incidence of sexual violence against males during the Rwandan Genocide than during the Yugoslav Wars, but this cannot be determined with any authority in the absence of adequate information. In Prosecutor v Niyitegeka (Judgement and Sentence), an act of castration and hanging of the victim’s genitals on a spike was not characterised as sexual violence, possibly because it was deemed unnecessary to do so (given that the victim had already been killed and decapitated). Yet when dealing with the same count of the indictment, entitled “Crimes Against Humanity (Other Inhumane Acts)”, the Chamber did make mention of “sexual violence on the body of [a] dead woman”. This peculiar difference suggests an inability to conceive of castration by a male perpetrator as sexual violence. Consider also a harrowing account of the violence that occurred in a church in Prosecutor v Bagosora (Judgement and Sentence). Castration took place yet again and men (including priests and military observers) were forced to watch as women were raped and killed, with gendarmes beating the men with rifle butts if they averted their eyes. All aspects of their mistreatment in this scenario could be considered as sexual violence, but the Chamber did not treat the male experience in the same way. Although sexual violence was suffered here by men and women alike, the sexual aspect of the violence suffered by men was evidently lost in a sea of other disturbing details.

Australia has thus far played a positive role in the fight against impunity for conflict-related sexual violence. For example, the Australian government has developed a National Action Plan on Women, Peace and Security, to be implemented at home and overseas, in support of the UN agenda to which Resolution 1325 gave birth. But perhaps Australia can now advocate for a broader response to sexual violence, inclusive of the sexual violence that also affects males in wartime. Doing so will assist the work of any future ad hoc tribunals, possibly in South Sudan or Syria, as well as the ongoing work of the International Criminal Court.

 

Richard Hughes is a Juris Doctor candidate at the University of Melbourne Law School.