[Jeffrey Biller, Lt Col, USAF, is the Associate Director for the Law of Air, Space and Cyber Operations at the Stockton Center for the Study of International Law, US Naval War College.]

On 27 May 1941, the British battleships King George V and Rodney engaged the German battleship Bismarck, which had been previously disabled by a torpedo attack from aircraft belonging to the British carrier Ark Royal. After almost two hours of fighting, the Bismarck and her 2200 man crew were sunk. As the Bismarck’s escort ship, the Prinz Eugen, had previously detached, the shipwrecked crew was entirely dependent on the Royal Navy for rescue. The British ships Dorsetshire and Maori, acting in accordance with Article 16 of the Convention (X) for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention, began rescue of the German crew. However, after 110 sailors were rescued a U-boat alarm was sounded, forcing the Royal Navy to break off the rescue. All but five of the remaining German crew were lost at sea.

The obligation under which the British acted to rescue the crew of the Bismarck was expanded in Article 18 the Second Geneva Convention (GCII). In an earlier post, Lt Cdr Peter Barker, RN, analyzed the extent of the obligation placed upon warship commanders to search for and collect the shipwrecked, sick, and wounded following a naval engagement. He correctly identified that the law, contained primarily in Article 18 of GCII, is ambiguous and in need of clarification. This post, the third in a series (see here and here) examining the impact of cyber on the law of naval warfare through the lens of the updated commentary to GCII, examines how the advent of cyber operations introduces an additional element of ambiguity.

Article 18 requires “[a]fter each engagement, Parties to the conflict shall, without delay, take all possible measures to search for and collect the shipwrecked, wounded and sick, to protect them against pillage and ill-treatment, to ensure their adequate care, and to search for the dead and prevent their being despoiled.” Para 1617 of the updated commentary to GCII rightly recognizes that “Article 18(1) is among the most important provisions in the Second Convention,” and that it sets out the obligations flowing from the protections accorded in Article 12. Therefore, a detailed understanding of each element in this article is key to a proper understanding of the entire convention. Here, we look solely at the first element in the light of cyber operations.

The first element makes plain that, unlike land operations, the requirement to tend to the sick and wounded does not arise until following the engagement. This is understandable in the naval context given the increased risk of harm a commander would endure by breaking off an engagement to collect the shipwrecked, wounded and sick. Keep in mind this obligation applies “without discriminating between their own and enemy personnel.” (Para 1618) Furthermore, at the time of GCII’s drafting, naval engagements tended to be very violent, but short-lived affairs. In the case of the Bismarck, the engagement was clearly ended when the ship, her ensign never struck, went under the sea after two hours of fighting. However, for modern navies equipped with advanced long-range weapon systems, including cyber capabilities, the end of the engagement may be more difficult to discern.

In the updated commentary, para 1648 discusses the article’s post-engagement limitation, stating that “unlike in land warfare, there is no requirement to undertake search and rescue activities during an engagement.” The commentary then argues that whereas this element may limit the obligation temporally, it may expand the obligation’s material scope. It reasons that “since the particular engagement will have ceased, this may limit the extent to which a Party to the conflict may invoke security or military considerations as a justification for not undertaking search and rescue activities.” Thus, determining the exact scope of the temporal requirement is vital.

Fortunately, the updated commentary provides guidance on interpreting the temporal clause of Article 18. Para 1655 provides that “the term ‘engagement’ is ‘a battle between armed forces’, i.e. involving the use of methods and means of warfare between military units of the Parties to the conflict.” Pre-empting the question of whether the methods and means are limited to the naval forces, the commentary suggests it “covers any kind of engagement, including from the air or from land but inflicting casualties at sea.” Cyber operations are not explicitly mentioned here, so it is worth discussing whether the cessation of cyber operations, in addition to the conclusion of more traditional kinetic operations, is required to “end the engagement” and initiate potential Article 18 obligations.

First, the commentary’s suggestion that “inflicting casualties at sea” is required for an engagement is most likely poorly worded. It is easy to imagine that ships may be engaged prior to actually inflicting casualties. Prior to her own sinking, the Bismarck sunk the HMS Hood in large part by achieving the “weather gage,” gaining an advantageous position in relation to the enemy prior to opening fire. Therefore, simply because a cyber-operation does not inflict casualties, this should not signal that operations is not part of the overall engagement.

Although the commentary to Article 18 does not refer to cyber operations, they are discussed in relation to the scope of application provisions of Article 2. Specifically, the question asked is whether cyber operations alone can constitute “armed force,” making the Geneva Conventions applicable. Para 277 states that “[i]t is generally accepted that cyber operations having similar effects to classic kinetic operations” would suffice. However, para 278 recognizes the current reality that cyber operations falling beneath this threshold are legally unsettled. It is safe to say that cyber operations achieving a kinetic effect, therefore, would continue the engagement. But what of those cyber operations that effect network systems without achieving kinetic effects?

Until such time as the jus in bello develops more fully in this area, it may be necessary to leave the legal reasoning to a good faith assessment by the ship’s commander. Although this seems initially unsatisfying, it is consistent with the new commentary’s understanding of Article 18. Para 1655 states that “[w]hat constitutes an engagement in any given case will remain context-specific,” and that “those acting on behalf of the Party to the conflict, each at his or her own level of decision-making, will need to make a good-faith assessment as to the moment it becomes possible to take one or more of the measures referred to in Article 18.” Such “good faith assessments” are a common and necessary part of IHL, even if open to occasional abuse.

Given the potential for abuse, what are nations employing cyber operations as part of naval conflicts to do? Parties to a conflict still have a vested interest in ensuring that the shipwrecked, sick, and wounded are recovered and cared for as quickly as possible. The commentary once again provides a potential solution. Para 1651 suggests that opposing commanders reach a “special agreement” on the rescue of those shipwrecked in the sense of Article 6, allowing parties to fulfill Article 18 obligations without fear of attack, adding that “such an agreement may be concluded orally, between commanders on the spot.” Alert commanders will be sure to add prohibitions on cyber-attacks as part of any such agreement.

A couple of days ago, the OTP finally announced what we all expected: that it would not reconsider its refusal to open a formal investigation into Israel’s attack on the MV Mavi Marmara. Dov Jacobs has already offered some thoughts on the lengthy document the OTP has filed with the Court explaining its reasoning — what the OTP nicely calls the Final Decision. I fully concur with Dov’s thoughts (except with his position on retroactive acceptance of jurisdiction), and I write here simply to add one of my own.

To begin with, I think this is the most impressive OTP brief I have ever read — especially given the complexity of the procedural issues that it addresses. It is exceptionally well written and argued. I don’t know who the author is, but she would have made an excellent analytic philosopher. Fatou Bensouda should promote her immediately.

That said, I strongly believe that the Final Decision’s understanding of when the OTP is required to investigate a situation is fundamentally flawed — and will almost certainly come back to haunt the OTP in future preliminary examinations. I have argued, as have most scholars, that situational gravity is a function of all the potential cases in a situation that would be admissible before the Court: the greater the number of prosecutable crimes and the greater their individual gravity, the more situationally grave the situation. To be sure, it is not an easy task to compare the situational gravity of different situations. But I don’t think there a practical alternative, given that the OTP can only investigate a very small percentage of the situations in which admissible crimes have been committed.

The Final Decision, however, appears to take a very different approach. Instead of deciding whether to open an investigation based on the gravity of all the potentially admissible cases in a situation, the OTP seems to believe that it is required to open an investigation as long as even one potential case within a situation would be sufficiently grave to prosecute. Consider the following paragraphs (emphasis mine):

11. Although the Prosecution maintains its view that no potential case arising from this situation would be admissible before this Court—which is the only issue in dispute with the Comoros—this does not excuse any crimes which may have been perpetrated.

332. Consistent with article 53(3)(a) of the Statute and rule 108(3), and based on the above reasoning and the information available on 6 November 2014, the Prosecution hereby decides to uphold the disposition of the Report. There remains 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 admissible before the Court.

I am proud of many of my former students, but the one I am most proud of is Golriz Ghahraman, who took my international criminal law course many years ago at the University of Auckland and is still a dear friend. In the years since my course, Golriz has worked on the Karadzic case, earned an MSt in human rights from Oxford, served as a prosecutor at the Cambodia tribunal, and developed a glittering legal practice representing the powerless and disenfranchised in New Zealand. Most impressive of all, though, just a few weeks ago Golriz became the first refugee MP in New Zealand history — she and her family fled Iran when she was a young girl — as a member of the Green Party.

Golriz’s success is a tribute to hard work and commitment, and I can only imagine how inspirational her story must be for refugees and women in New Zealand and elsewhere. Which is why I am furious — absolutely furious — about an attack on Golriz written by “a former Labour staffer in New Zealand and Australia” named Phil Quin that is as mendacious as it is shameless.

Golriz’s sin, in Quin’s eyes? Having the temerity to work as a defence attorney on the Nzirorera and Bikindi cases at the ICTR:

At the ICTR, a would-be New Zealand politician decided to use a year in Africa to volunteer as an intern for the defence team. Golriz Ghahraman was not one of the 200 lawyers appointed by the UN. Her presence was voluntary. The ICTR was famously cashed up — it cost more than US$2 billion to secure only 61 convictions. Since recent publicity of Ghahraman’s time in Rwanda, one argument waged at me  —  that defendants deserve a lawyer — is a shameless red herring. Nobody is disputing this, least of all me, but the notion Ghahraman’s skills were needed when there were more than three high-end, properly accredited, lawyers for each one of the accused is beyond a joke. It was work experience.

Of course, there’s nothing wrong with work experience, and internships are a good way to broaden one’s horizons. But I am deeply troubled by how Ghahraman chose to spend her time dealing with the aftermath of the genocide. The entire ICTR defence was predicated on a revisionist account of what happened in 1994 — one that posits the victims as perpetrators — and it is incredible that someone as smart as Ghahraman didn’t know that going into the role.

It’s one thing for a UN defence lawyer to be assigned to defend ratbags. It’s quite another to seek them out in a voluntary capacity. (Apparently she went on the payroll three months in).

The ignorance of Quin’s argument — here and in the rest of the article — is breathtaking. Let’s start with his basic factual errors. First, there is no such thing as a “UN” defence attorney. As the ICTR’s own website notes, “Defence counsels at the ICTR are not part of the institutional structure but rather paid as independent contractors, traveling to Arusha as necessary for their case.”

Second, 200 lawyers were not “appointed” by the UN. That number refers to the ICTR list of qualified lawyers from which defendants could choose counsel.

Third, no lawyer was ever “assigned” to a case against his or her will. Each and every lawyer who worked on a case at the ICTR “sought [the case] out in a voluntary capacity.”

Fourth, there is no such thing as an “ICTR defence,” much less one that was “entirely” about blaming the Tutsi for bringing on the genocide themselves. Each defendant had his own argument for why he or she should be acquitted.

Bikindi’s argument, which Golriz helped develop as one of his lawyers, was that he did not conspire to commit genocide, that he did not commit genocide, that he was not complicit in genocide, that he did not incite genocide, that he did not kill as a crime against humanity, and that he did not persecute as a crime against humanity. And guess what? The Trial Chamber unanimously acquitted Bikindi on every charge other than incitement.

Quin conveniently fails to mention that the Trial Chamber agreed with Bikindi that the other charges had no merit. So when he says — with regard to the genocide deniers’ “twisted view of history” — that “[w]ittingly or not, Ghahraman jumped on that bandwagon. As a public figure, she ought to be judged by such choices,” he is indicting the Trial Chamber no less than Golriz.

Golriz is not a genocide denier, of course. Golriz is a lawyer who defended an individual accused of committing horrible crimes, a necessary role for anyone who takes due process and natural justice seriously. Quin might not care about whether ICTR defendants receive fair trials, but the Tribunal itself does. As it notes on its website, “[a]s with other tribunals and courts of law, the Defence has been playing a crucial role in ICTR proceedings, upholding the principle of equality of arms and ensuring the fairness of proceedings.”

Quin’s argument, therefore, is not simply factually challenged. It is offensive. Attacking a lawyer for being willing to take on an unpopular client is beneath contempt. I expect such lawyer-baiting from the right wing, which has repeatedly attacked lawyers who defend accused terrorists at Guantanamo Bay. I didn’t expect it from someone who has supposedly worked for the Labour Party in Australia and New Zealand.

And, of course, I didn’t expect the attack to target Golriz, one of literally dozens of defence lawyers who have worked at the ICTR — and one who also happened to prosecute genocide in Cambodia. (An inconvenient fact Quin also somehow failed to mention.) For some reason, of all those attorneys — which include more than a few Aussies and Kiwis — Quin finds only one worthy of attack: the female refugee MP from the Green Party. I wonder why that is?

I am furious. If you are too, let Newsroom know what you think of its decision to print Quin’s baseless attacks. Newsroom’s Facebook page is here, and its twitter handle is @NewsroomNZ.

UPDATE: Stuff.co.nz published another attack on Golriz written by Quin. It’s basically Quin plagiarizing himself, but you can read it if you have a tough stomach.

[Jennifer Trahan is an Associate Clinical Professor at the Center for Global Affairs at New York University.]

As Jens Ohlin has written, a highly awaited verdict came out Wednesday, November 22, sentencing Ratko Mladic, former commander of the Main Staff of the Bosnian Serb Army (VRS), to life in prison for genocide, war crimes and crimes against humanity committed from 1992-1995.

The verdict was not unexpected given Mladić’s lengthy trial, and that his involvement as commander of the troops who committed the Srebrenica massacre was recorded on well–known news footage.  Wire intercepts of his communications were until recently hanging on display on the walls of the Potočari memorial near Srebrenica, in the former battery factory that had also housed UN peacekeepers.

This high-level verdict is an extremely significant one for the ICTY.  Mladić was convicted of:

• genocide and persecution, extermination, murder, and the inhumane act of forcible transfer in the area of Srebrenica in 1995;
• persecution, extermination, murder, deportation and inhumane act of forcible transfer in municipalities throughout Bosnia;
• murder, terror and unlawful attacks on civilians in Sarajevo; and
• hostage-taking of UN personnel.

The only count of which he was acquitted was the “greater genocide” theory—genocide in additional municipalities in Bosnia in 1992.  The verdict is subject to appeal, as is the sentence.

These were extremely brutal crimes with large numbers of victims—over 8,300 alone in and around Srebrenica, over 13,000 in Sarajevo, after a multi-year campaign of sniping and shelling its citizens.  The ICTY’s proceedings were extensive, thorough, (and lengthy).  Trial commenced in May 2012, and according to the ICTY, there were 530 trial days, 592 witnesses, and nearly 10,000 exhibits introduced into evidence.

While the verdict is coming late in the day no doubt for some victims and their families (for example, 22 years after the Srebrenica massacre), this is not entirely the ICTY’s fault.  Mladić spent nearly 16 years on the run, and was only captured and sent to The Hague in 2011.

Well-done trials of international tribunals also take time, particularly when so many victims and so many crimes are involved.  Funder states often complain about the high costs of international trials, but these costs pale in comparison to peacekeeping expenditures that might have been required had high-level perpetrators not been indicted and apprehended.  And, if one measures the number of crime scenes involved or number of victims whose crimes were adjudicated, then costs seem not nearly as high.  States’ representatives and tribunal critics who make these cost arguments should reflect:  would they really like to argue to remaining family members that justice for their loved ones is not worth it?

Victims may or may not feel some “closure” at this verdict.  Complete closure is of course impossible, as no one can restore their loved ones.  But hopefully surviving victims and family members of those who did not survive will take some measure of solace from the verdict.

As Marko Milanovic has written, denial of crimes and partial denial of crimes is still a pervasive problem among certain communities in the former Yugoslavia (particularly in Repŭblika Srpska and Serbia), and today’s verdict is not anticipated to change that.  Yet, establishing the facts, hearing witness testimonies, and introducing documentary evidence is extremely significant in its own right, and helps create a solid record that makes denial harder, and perhaps will make it gradually less and less plausible.

Finally, the Mladić verdict can also give us hope for future prosecutions—that justice is sometimes delayed, but remains possible and one needs to remember this.  For years (when I was a junior attorney at Human Rights Watch) there was only an “arrest Mladić and Karadžić campaign,” and we had no idea if these two fugitives from justice would ever be apprehended.  It took years of concerted pressure and economic leverage from the US and the EU, but the arrests did occur, and the trials did occur.  So, as we look on as mass crimes continue today in other countries (such as Syria and Myanmar), and the geopolitical roadblocks to seeing any kind of comprehensive justice solutions, we should remember this long trajectory that the ICTY’s work took, and the need to stay the course.

Following on the heels of the much-reported e-mail scandal, FICHL has released a policy brief entitled “A Prosecutor Falls, Time for the Court to Rise” that is an utterly damning indictment of Luis Moreno-Ocampo’s tenure at the ICC. Here is a taste of the report, which picks up not long after the Court became operative:

This idyllic mood in the OTP continued through the summer of 2003, as if “the Office was embraced by the human warmth and outstanding social skills of the Prosecutor”. Among the new staff then recruited was co-author William H. Wiley, the first investigator in the Office. The situation started to change in late September 2003. The Chef de cabinet sought to hire a fourth diplomat in the OTP from one of the two Governments that had enabled the election. The Prosecutor asked the Senior Legal Adviser to legitimize the appointment. When he gently referred to the importance of following the rules on recruitment, the Prosecutor shouted: “For you, I am the law!”. To facilitate the recruitment of the diplomat, the Prosecutor asked Wiley to find dirt on the stronger candidate, as his first “investigative task”.

The mask of power fell repeatedly during the autumn of 2003 and subsequent months. The practice of vigorous peer review of important draft motions and other documents – so carefully established in the OTP of the nearby International Criminal Tribunal for the Former Yugoslavia – was not followed. A culture was established whereby even working meetings were choreographed, to ensure that the Prosecutor and his favourites would not be contradicted – soon, no one dared to. A “sense of fear” and “intimidation” set in. The idea of ‘one Court’ was undervalued. Several government officials and leaders of non-governmental organizations knew about the problems already from late 2003 onwards. Within a few years, 22 of the top staff members in the OTP left. Among those who remained were colleagues who worked on cases that collapsed, were withdrawn, and postponed again and again.

A report condemning Moreno-Ocampo comes as no surprise: supporters and critics of the Court alike agree that he was a disastrous choice for the Court’s first Prosecutor. The authors of the report are surprising, however, because three of them are among the Court’s most important initial employees: William H. Wiley, mentioned above; Morten Bergsmo, who led the preparatory team for the OTP and was its first Senior Legal Adviser; and Sam Muller, who led the ICC’s Advance Team.  If they are not credible witnesses to what went on in the early days of the Court, no one is.

Kudos to the authors — which also include Wolfgang Kaleck, the Secretary-General of the European Centre for Constitutional and Human Rights — for their willingness to go public with their grievances and recollections. They do so, of course, because they are all committed to the long-term success of the Court. We can only hope the ICC is listening.

The ICTY Trial Chamber announced today its verdict in Prosecutor v.  Ratko Mladić and has found the defendant guilty and sentenced him to life in prison. (The judgement summary, which was read aloud in court, is available here. I don’t see a link to the full judgement; if someone else has it, please provide a link in the comments below.) Although this outcome was widely expected by most court observers, the details of the decision merit some discussion.

First, the Chamber found Mladić guilty of genocide in Srebrenica but not of genocide in the other provinces. According to the court (from the oral summary):

The Chamber then examined the specific intent of the physical perpetrators. The Chamber found by majority, Judge Orie, dissenting, that the physical perpetrators in Sanski Most, Vlasenica, and Foča, and certain perpetrators in Kotor Varoš and Prijedor Municipalities intended to destroy the Bosnian Muslims in those Municipalities as a part of the protected group. The Chamber then considered whether the targeted part constituted a substantial part of the protected group, and concluded that the Bosnian Muslims targeted in each municipality formed a relatively small part of the protected group and were also in other ways not a substantial part. Consequently, the Chamber was not satisfied that the only reasonable inference was that the physical perpetrators possessed the required intent to destroy a substantial part of the protected group of Bosnian Muslims.

This finding is consistent with other cases where the ICTY has failed to conclude that the crimes committed in these municipalities amounted to genocide. But the genocide finding for Srebrenica was reaffirmed in Mladić.

As for modes of liability, Mladić was found guilty of participating in four joint criminal enterprises. As far as I can tell from the court’s oral summary, the chamber convicted Mladić in each case of JCE I, meaning that the chamber concluded that the defendant shared the intent to carry out the crimes of the JCE (its objective). There is no reference to JCE III, i.e. liability for crimes committed by other members of the enterprise that fall outside the scope of its design but which were reasonably foreseeable. It seems as if the court felt it unnecessary to rely on the controversial JCE III, preferring instead to simply rest its conclusions on the more stable and secure JCE I theory.  (If I have misread the judgement summary in this regard, please correct me in the comments.) If this is what happened, the court has preserved JCE III as a viable theory by removing an opportunity for judicial scrutiny of the doctrine at the appeal level.

The four joint criminal enterprises were described in the following manner:

First, an Overarching JCE, which had the objective of permanently removing Muslims and Croats from Serb-claimed territory in Bosnia-Herzegovina, through the commission of the crimes charged in the indictment, including Genocide, Persecutions, Extermination, Murder, the inhumane act of forcible transfer, and Deportation.

Second, a Sarajevo JCE, which had the objective of spreading terror among the civilian population through a campaign of sniping and shelling as charged in the indictment including through murder, acts of violence the primary purpose of which is to spread terror among the civilian population and Unlawful Attacks on Civilians.

Third, a Srebrenica JCE, the objective of which was the elimination of Bosnian Muslims in Srebrenica through the crimes charged in the indictment, including Genocide, Persecutions, Extermination, Murder, the inhumane act of forcible transfer, and Deportation.

Fourth, a Hostage-taking JCE, the objective of which was taking UN personnel hostage to prevent NATO from conducting air strikes against Bosnian-Serb military targets through the crime of Taking of Hostages, as a war crime.

One question I have is the relationship between the “Overarching JCE” and the other JCE. This isn’t exactly spelled out in the summary and it will be interesting to read the full judgement to understand their exact relationship. Are the second, third, and fourth JCEs merely sub-components of the overarching JCE? Or are these overlapping JCEs? How should we understand their geometric inter-relation? Furthermore, does describing one of the JCEs as “overarching” have some consequence for the application of the doctrine to the facts of this case? I would welcome thoughts from readers on this point.

Finally, with regard to the hostage-taking JCE, it is interesting to read the chamber’s conclusion that the defendant “intended the objective of the hostage-taking joint criminal enterprise, to capture UN personnel and detain them in strategic military locations to prevent NATO from launching further air strikes. The Chamber found that the Accused’s statements, in particular with regard to the fate of UNPROFOR personnel, were tantamount to having issued threats to continue to detain or to kill UN personnel, and that these threats were meant to end the air strikes.”

I also found it interesting that the chamber declined to give the defendant a reduction from a life sentence just because the defendant was acquitted on one count (genocide in the municipalities). Rather than looking at the significance of that acquittal for purposes of determining the appropriate sentence, the chamber looked to the significance of the convictions to determine Mladić’s blameworthiness.

The appeal in the case will be heard by the Mechanism (MICT).

[Jeffrey Biller, Lt Col, USAF, is the Associate Director for the Law of Air, Space and Cyber Operations at the Stockton Center for the Study of International Law, US Naval War College.]

Those familiar with Patrick O’Brian’s Aubry-Maturin series of novels (brought to film in Master and Commander starring Russel Crowe) will know that the boarding and seizure of ships was a common feature of naval warfare in the Age of Sail. However, modern naval conflicts rely more on the sinking of ships than their capture. Although the standoff range of most modern weapons weighs against an imminent change of this feature, there is one modern method of warfare that raises the question of capture once again: cyber warfare. This post is the second in a series examining the impact of cyber on the law of naval warfare through the lens of the updated commentary to the Second Geneva Convention (GCII). This first of this series examined the question of whether a crew can be “shipwrecked” within the meaning of GCII for purposes of Article 12 protections. This post takes that scenario one-step further and examines the status of a crew on a ship commandeered by cyber means.

Although indeed more difficult from a technical standpoint, it stands to reason that if a ship could be completely disabled through an offensive cyber operation, those same networked systems could also be controlled by an outside entity. With a high enough level of control, it would functionally turn the ship into a remotely operated vessel, similar to other drone-type vehicles. The first question to ask is whether the analysis differs from a ship disabled by cyber means. This could simply be a situation where the crew is “in peril” and, if they refrain from hostilities, must be afforded Article 12 protections. However, if someone is in control of the ship and could choose to pilot the crew to safety, is it really in peril?

Assuming the crew, for whatever reasons, chooses to stay onboard the ship and not disable it through mechanical means, it is fair to ask if they must be afforded Article 16 protections as prisoners of war (POW), which states that “…the wounded, sick and shipwrecked of a belligerent who fall into enemy hands shall be prisoners of war, and the provisions of international law concerning prisoners of war shall apply to them.” Breaking that article down into its parts, we first examine the phrase “wounded, sick and shipwrecked of a belligerent.” It may be tempting to suggest that, at this point, the crew is not wounded, sick or shipwrecked, so Article 16 would not apply. However, para 1575 of the updated commentary states that:

Although in setting down who is a prisoner of war Article 16 uses the looser formulation ‘the wounded, sick and shipwrecked of a belligerent’ rather than the more technical terms used in Article 13, the definition of prisoners of war in the Second Convention is not meant to diverge from that in the Third Convention.

The Third Geneva Convention (GCIII), Article 4, clearly states that “[p]risoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy,” and covers those “soldiers who became prisoners without fighting.” Essentially, this means that in whatever manner the sailor comes into the power of the enemy, regardless of being wounded, sick, or shipwrecked, they are now a POW.

The next element is the crux of the analysis, the phrase “who fall into enemy hands.” The obvious difficulty is deciding whether this is possible when the enemy is not physically present. The updated commentary, in para 1568, states that “the phrase ‘fall into enemy hands’ is sufficiently broad to cover capture or surrender.” Here, let us assume the crew has neither chosen to leave the ship nor made an affirmative action of surrender. Although para 1571 of the updated commentary suggests “[n]o active ‘capture’ is necessary,” the enemy certainly seems to have captured the ship, and if the crew is unwilling or unable to abandon the captured ship, are they also captured? The updated commentary makes no further definition, which is understandable. Capture without the physical presence of the enemy is a novel concept with few, if any, analogies.

One analogy is the case of unmanned combat systems, such as drones. If the operator of an attack drone witnesses a group of enemy combatants with weapons dropped and waving a white flag, should those soldiers be considered hors de combat and no longer subject to attack? The lack of ground forces to process as POWs those who surrender has made this question a matter of some debate due to the potential for misuse. The difference in the current situation is the greater potential degree of control exercised over those aboard a ship at sea as opposed to soldiers on the ground. The crew of a ship for which they no longer have effective control is subject to the whims of their controllers while they remain onboard the ship. The crew could potentially be driven into a perilous situation or perhaps even internally detonated if the weapon systems have been accessed.

Given the difficulty of defining what is required for capture without the presence of enemy soldiers, it may be instructive to turn a separate, but related, body of law: international human rights law (IHRL) for assistance. Although unlikely to apply in the current scenario, IHRL can offer a useful insight into what level of control is required for certain protective obligations to attach under international law. For example, the European Convention of Human Rights held in Al Skeini, paras 133 – 140, that the Convention applies extra-territorially either through the exercise of effective control over an area or through the exercise of control over a person by a State agent. In an earlier case, the Court had also held that human rights obligations attach to civilians on board a ship when military forces placed the crew under guard and gained control of the ship’s navigation, thereby exercising “full and effective” control. In Al-Skeini, the court ruled that the “exercise of physical power and control over the person in question” was critical in establishing jurisdiction.

Although “full and effective control” is a human rights concept, it illustrates that physical power and operational control of a ship’s navigational functions are potential factors in determining what level of power is required by enemy forces before obligations are placed upon them under that legal regime. It may be that this level of control can be obtained by the use of cyber means and if it is, then the crew should be considered as POWs with the attendant protections. This brings us to the third element of Article 16: “the provisions of international law concerning prisoners of war shall apply to them.”

What would be the obligations towards a crew on a warship over which they no longer have control? Although these requirements are primarily contained in GCIII, the updated commentary to GCII does spell out certain provisions. Of note, it states in para 1579 that “the time a person is held on board is limited to the absolutely necessary.”

If the potential for POWs to be taken under such circumstances exists, what must navies do to prepare? First, navies looking to employ cyber operations involving gaining control over ships should formulate a plan of what to do with the crew if they remain onboard. The Geneva Conventions place certain obligations on how they are to be treated and States must understand how they will transfer that crew to a more appropriate facility. Second, navies that employ networked systems would be wise to ensure there is a mechanism to revert to mechanical control or formulate clear plans as to their operating procedures in the event of a successful cyber-attack.

Just a reminder that the deadline is fast approaching for the workshop I am organising with Ingo Venzke, “Contingency in the Course of International Law: How International Law Could Have Been.” The workshop, which will feature an opening address by Fleur Johns (UNSW) and a closing address by Sam Moyn (Yale), will be held over two half days and one full day from June 14-16, 2018. Here is the concept:

The workshop will ask a question that is deceptive in its simplicity: How might international law have been otherwise? The overarching aim will be to expose the contingencies of international law’s development by inquiring into international law’s past. Such inquiries may be of systematic purport – asking, for example, how a different conception of the sources of international law could have emerged. Or they may focus on specific areas of the law, asking questions like whether the idea of state crimes could have taken hold or whether the NIEO could have achieved greater success. International law’s past is almost certainly ripe with possibilities that we have forgotten. The workshop will seek to reveal and remember them.

The workshop will focus on trying to tell compelling stories about international law’s contingency. To be sure, those attempts may fail and claims to contingency may well turn out to be false. Either way, though, we will question the present state of international law by challenging its pretense to necessity and by better understanding the forces that have shaped it. Put simply with Robert Musil: ‘If there is a sense of reality, there must also be a sense for possibility’.

While the operation of the law is bound to gloss over any contingency in its course, we wish to draw out those contingencies to learn what could (not) have been. Some contributions will focus on the operation of international law itself, exploring the differential developments that could have taken place concerning seminal judicial decisions (eg, what if France had won the Lotus case?), key treaties (eg, what if states had failed to conclude the Second Additional Protocol in 1977?), or important institutions (eg, what if the International Clearing Union had been established in 1949?). Another set of inquiries will question the development of international law in light of more general historical events that might not have happened or might have happened differently, such as the outbreak of World War I, the processes of decolonization, or the terrorist attacks of 9/11. And yet other angles are welcome.

In the course of concrete inquiries into international law’s past, there are numerous opportunities for theoretical reflection about the nature of contingency itself, ranging from philosophies of legal history to questions about the narrator’s perspective. How should actor- and structure-centered accounts of the past be combined in probing the contingency of past events? How should we cope with possible tensions between pursuing interests in the present while avoiding undue anachronisms? And how can we contextualize legal developments without reducing law to its context only? Not the least, the question of how it could have been provides a renewed take on perennial questions of international law’s relationship with power, culture, and justice.

The deadline for abstracts is December 1. You can download the full Call for Papers here. If you have any questions, please don’t hesitate to email me.

The American Society of International Law’s Lieber Society on the Law of Armed Conflict awards the Francis Lieber Prize to the authors of publications that the judges consider to be outstanding in the field of law and armed conflict.  Both monographs and articles (including chapters in books of essays) are eligible for consideration — the prize is awarded to the best submission in each of these two categories.

 

Criteria:         Any work in the English language published during 2017 or whose publication is in final proof at the time of submission may be nominated for this prize.  Works that have already been considered for this prize may not be re-submitted.  Entries may address topics such as the use of force in international law, the conduct of hostilities during international and non‑international armed conflicts, protected persons and objects under the law of armed conflict, the law of weapons, operational law, rules of engagement, occupation law, peace operations, counter‑terrorist operations, and humanitarian assistance. Other topics bearing on the application of international law during armed conflict or other military operations are also appropriate.

 

Eligibility:       Anyone may apply for the article or book prize.  For those in academia or research institutions, the prize is open to those who are up to 8 years post-PhD or JD or those with up to 8 years in an academic teaching or research position. Membership in the American Society of International Law is not required.  Multi-authored works may be submitted if all the authors are eligible to enter the competition.  Submissions from outside the United States are welcomed.

 

Submission:     Submissions, including a letter or message of nomination, must be received by 10 January 2018.  Three copies of books must be submitted.  Electronic submission of articles is encouraged. Authors may submit their own work.  All submissions must include contact information (e‑mail, fax, phone, address) and relevant information demonstrating compliance with eligibility criteria.  The Prize Committee will acknowledge receipt of the submission by e‑mail. 

 

Printed submissions must be sent to:

 

Professor Laurie Blank

Emory University School of Law

1301 Clifton Road

Atlanta, Georgia  30322

USA

 

Electronic submissions must be sent to:

 

 Lblank[at]emory.edu

 

Please indicate clearly in the subject line that the email concerns a submission for the Lieber Prize.

 

Prize:   The Selection Committee will select one submission for the award of the Francis Lieber Prize in the book category and one in the article category. The Prize consists of a certificate of recognition and a year’s membership in the American Society of International Law.  The winner of the Lieber Prize in both categories will be announced at the American Society of International Law’s Annual Meeting in April 2018. 

 

In 2017, the winners were:

 

Book prize:
— Kenneth Watkin, “Fighting at the Legal Boundaries: Controlling the Use of Force in Contemporary Conflict” (OUP 2016)

Article prize:
— Tom Dannenbaum, “Why Have We Criminalized Aggressive War?,” 126 Yale Law Journal (2017)

[Alonso Gurmendi is Professor of International Law at Universidad del Pacífico, in Peru.]

As seen in Part I, Colombian transitional justice mechanisms have played a key role in the evolution of the Inter-American Court’s jurisprudence on proportionality of punishment. In this second part, I will analyze whether the Court’s Colombian case-law can influence Peru’s discussion regarding a hypothetical humanitarian pardon for former autocratic President Alberto Fujimori. In particular, my objective is to analyze whether, in the same vein as peace negotiations, poor health can constitute a viable reason to mitigate the proportionality of punishment principle.

In this discussion, health in old age provides an interesting test for the La Rochela standard, and could potentially be a determining factor with significant impact in the Court’s future. After all, can early release still be considered an irrisory punishment leading to impunity when the individual in question suffers from serious illness or infirmity? And if so, how sick must he or she be before a pardon can be granted? This is not an easy question to answer. Humanitarianism is just as much a part of international criminal law as retribution, and it will likely constitute another crossroads for the Court in the near future.

In 2012, the United Nations High Commissioner for Human Rights (E/2012/51) explored “whether the continued incarceration of older persons is a disproportionately severe punishment”, stating that “[c]onsidering the purposes of punishment –retribution, incapacitation, deterrence, and rehabilitation- there may be little justification for many older persons’ continued incarceration in the prison system in certain instances” and that “alternative forms of punishment may be preferable based on the financial, practical, and human rights considerations involved” (¶61). That same year, Human Rights Watch arrived at similar conclusions, claiming that “while a prison term may have been proportionate at the time imposed, increasing age and infirmity may change the calculus against continued incarceration and in favor of some form of conditional release”, even in cases of acceptable conditions of confinement. These arguments indicate that health may very well be another “clearly identifiable objective compatible with the American Convention” that may warrant a softening of proportionality. The Court, however, has never said so.

In any case, it will be very difficult for the Court to maintain its silence for much longer. Fujimori is not the only aging human rights violator in the region and discussions of this sort will only increase with media attention. The Court will need a standard that allows it to keep its reputation as both an enemy of impunity and a custodian of human rights, while at the same time keeping a consistent and fair-minded jurisprudence. The Court is, after all, not the only one analyzing the Colombian Peace Agreement. Some very respectable sources have criticized it, expressing, as Human Rights Watch does, “very serious concerns that the justice provisions of the accord could result in confessed war criminals not receiving meaningful punishment for the grave crimes for which they were responsible”.

If, as available evidence seems to suggest, the Court wishes to side with the agreement, it will need to address the legitimate complaints of Fujimori’s supporters who raise the question of why should a FARC war criminal receive an 8-year limited mobility sentence, while their cancer-prone leader is already serving his 11^th year of jail-time. Moreover, since Peru never needed a peace agreement, but rather defeated the Shining Path through military means, there are genuine concerns that the Court’s findings may end up producing a system where it is more convenient to settle wars than to actually win them. In other words, if the Court is willing to balance peace and justice, it should take a concrete stance on whether health and justice can be balanced in a similar fashion. And at least from the Court’s own jurisprudence, it seems the question is not so much if health can soften proportionality, but rather when.

One good place to seek guidance for the formulation of a standard is the experience of international tribunals with early release of prisoners. This, of course, does not mean that the Inter-American Court would have to follow the same rules as the ICTY or the ICC (especially considering some of their limitations), but it does offer a good starting point for the Court to build upon its own standard.

The ICTY Rules of Procedure and Evidence include provisions stating that “in determining whether pardon or commutation is appropriate, the President shall take into account, inter alia, the gravity of the crime or crimes for which the prisoner was convicted, the treatment of similarly-situated prisoners, the prisoner’s demonstration of rehabilitation, as well as any substantial cooperation of the prisoner with the Prosecutor” (Rule 125). Article 110 of the Rome Statute, in turn, incorporates a 2/3 of time served trigger for initiation of early release proceedings, which require the ICC to review similar factors, related to collaboration with justice, disassociation with the crimes, reparations, and lack of health or advanced age.

The ICC tested this standard in 2015, denying early release to Thomas Lubanga. The Panel concluded that Lubanga only satisfied the requirement of possible resocialization (¶53) and considered that there was no justification for his release (¶77), particularly given the fact that Lubanga showed no indication of any remorse for his crimes and had provided no significant assistance to the Court (¶64).

Upon these findings, a humanitarian pardon could potentially be consistent with the American Convention on Human Rights, so long as some specific requirements are met. For one, infirmity due to old age or illness needs to have rendered the purposes of punishment impossible, as seen above. As per La Rochela, some general rehabilitative or even transitional purpose needs to be advanced as well. For example, the inmate must have disassociated from his crime and accepted his culpability. The pardon could also be tied to a requirement of collaboration with justice and an offering of full truth. In this sense, if reclusion in a prison can no longer serve any purpose given the individual’s health problems and he or she is no longer defending his crimes, a humanitarian pardon could be consistent with Inter-American human rights law.

These considerations would also need to be evaluated taking into account time served and domestic law. Indeed, a pardon for an individual that has served 2/3 of his or her sentence is more likely to be accepted than one for someone who has only served 1/3. Likewise, even if all of these requirements are present, domestic law would still need to regulate such pardoning, since it is by definition a discretionary prerogative of the Government.

Now, while this change in its approach to proportionality is born out of the Court’s own findings, it may nevertheless be poorly received by the Latin American human rights community, very much used to working from an expanded understanding of Barrios Altos, that leaves little chance for the early release of jailed international criminals. It will be important for human rights advocates to understand that the process started by La Rochela is a direct response to the human rights challenges of the 21^st century, just as much as Barrios Altos was a response to the challenges of the 20^th. A strong proportionality principle will still be the rule, but once one exception is allowed, it is to be expected that others will follow. One cannot give a blessing to lenient punishment in some exceptional circumstances, while at the same time barring any lenity in punishment in other equally exceptional circumstances.

Moreover, it is still unlikely that this new approach would benefit Alberto Fujimori, who not only remains un-repented of his crimes, but does not seem to be in any form of terminal or extremely ill state that could render his sentence useless. Not to mention the many domestic legal hurdles his proposed pardon would need to face. If anything, other less media sensitive inmates may be benefited, in more justifiable circumstances. After all, one very significant risk Peru’s human rights community needs to avoid in these difficult transitional times is that of the black swan approach to justice, where rules are designed inductively, from a very specific case, and then applied generally. It is justice and humanitarian values -not keeping a specific autocrat in jail- that should inform progressive development of human rights.

Spreading the Jam has a guest post today from Santiago Vargas Niño criticising my argument that the OTP was required to notify Burundi as soon as it decided to ask the OTP to authorize the investigation. Here is what he says:

Professor Heller cites Article 15(6) to argue that, by receiving information under articles 15(1) and 15(2) of the Statute, the Prosecution has initiated an investigation. An equally plain reading of Article 18 would suggest that a parallel duty to notify concerned States would arise as soon as a situation caught the Prosecutor’s eye. Yet he acknowledges that “notification cannot be required every time the OTP decides to advance a preliminary examination (…) The better interpretation of Art. 18 is that notification is required once the OTP has decided to ask the PTC to authorize an investigation.”

Not only is that moment different to the “initiation” of an investigation, both under articles 15 and 18, thus rendering any claims of “natural” interpretation of the Statute inane, but professor Heller’s amalgamation of preliminary examination and investigation flies in the face of Article 15(3). This provision orders the Prosecution to submit a request for authorisation if it concludes that there is a reasonable basis to proceed with an investigation. Years of unchallenged practice have led to the understanding that such conclusion can only be reached through the preliminary examination, a stage that precedes the opening of an investigation and that is described by Article 15(2) – not by Article 15(1). Professor Heller’s argument also discounts the significance of Article 15(4), which squarely attributes the power to authorise the “commencement” (i.e. “initiation”) of an investigation to the PTC, and which conditions it upon the Prosecution’s demonstration that there is a reasonable basis to proceed under Article 53(1).

Furthermore, equating the launch of a preliminary examination with the artificial “initiation” of an investigation under Article 15(1) is extremely risky. If that were the case, the Prosecution should not have rushed to apply for authorisation to commence an investigation in Burundi before 25 October 2017 because its preliminary examination would have constituted a “criminal [investigation] (…) which [was] commenced prior to the date on which the withdrawal became effective” under Article 127. Such interpretation would also allow the Prosecution to exercise its powers under Article 54, as professor Jacobs puts it, since the moment: “an OTP investigator sitting in front of his computer in The Hague [starts] downloading HRW and Amnesty International reports.”

According to Vargas Niño, my argument “stems solely from [my] peculiar approach to Article 15.” Alas, it is his approach that is peculiar. And not just peculiar — wrong…