Treaty on non-international armed conflicts still collecting Senate dust

October 9, 2013 / Diane Marie Amann / Leave a comment

Whatever happened to AP II?

As international humanitarian lawyers well know, “AP II” refers to Protocol II Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, a treaty that clarifies legal rules in conflicts that present something other than the classic country v. country scenario. Put another way, AP II is the treaty that details the laws of today’s wars. It enjoys 167 parties. The United States is one of 3 countries (the others are Iran and Pakistan) that signed on December 12, 1977, but never ratified.

On that last point, a passage on page 365 of Jess Bravin’s Terror Courts (2013) piques interest. Bravin reports that in mid-2009 Secretary of State Hillary Clinton and her Legal Adviser, Harold Hongju Koh, lost their bid to stop the Guantánamo military commissions:

‘The State Department would have to make do with a couple of consolation prizes; to mollify Koh, the administration agreed to ask the Senate to ratify agreements expanding protections under the Geneva Conventions, including one that had been collecting dust since President Reagan signed it in 1987. “Joining the treaty would not only assist us in continuing to exercise leadership in the international community in developing the law of armed conflict, but would also allow us to reaffirm our commitment to humane treatment in, and compliance with legal standards for, the conduct of armed conflict,” a White House fact sheet said.’

The treaty mentioned is AP II: according to State’s current list of treaties pending in the Senate, Reagan submitted it to that upper house of Congress on January 29, 1987. Yet today, more than a quarter-century later, and four years after the promised “consolation,” AP II remains in the Senate’s dustbin. AP II is No. 10 on a list of 37 treaties, a list that includes some treaties about which I posted here. The most recent was submitted earlier this year, the oldest, ‘way back in 1949.

AP II’s sibling, Protocol I Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, is not pending at all. (It has 173 states parties, and the same 3 state signatories.) (image credit) Villanova Law Professor John F. Murphy’s chapter in a 2012 book indicates that the March 2011 fact sheet said only that the White House intended to apply the first protocol’s fair-trial provisions (provisions that a plurality of the Supreme Court deemed “indisputably part of the customary international law” in Part IV-D-iv of Hamdan v. Rumsfeld (2006)) – not that the White House wished to submit that treaty as a whole.

(Cross-posted from Diane Marie Amann)

Go On! Student International Humanitarian Law Workshop

September 30, 2013 / Marte Ingvildsdatter Jervan / Leave a comment

Berkeley Law and the International Committee of the Red Cross will be sponsoring a Student International Humanitarian Law Workshop from 17-20 Jan 2014, in Berkeley, CA. Applications are open today until 31 October, but it is competitive and spaces are limited, so students should not delay.

This workshop combines lectures and hands-on exercises that guide U.S. law students through an intensive workshop on international humanitarian law (IHL), or the law of war. The workshop will be led by legal professionals from the International Committee of the Red Cross (ICRC), lawyers for the U.S. Armed Forces, and law professors who specialize in IHL.

Topics will include:

Introduction to International Humanitarian Law
When Does IHL Apply
Human Rights and IHL
Protected Persons
Internment/Detention
Armed Conflicts of a Non-International Character
The IHL/Terrorism Interface
Implementation and Enforcement of IHL

The fee for the workshop is $50. This includes course materials and breakfast, lunch, and light refreshments during the day. The only other costs for students will be for travel, lodging, and dinners.

The workshop is open only to students matriculated at a U.S. law school. Registration is limited and competitive. Students are encouraged to apply early, as the workshop does fill up. A maximum of 40 students may attend.

The workshop was founded by IntLawGrrls co-founder Beth van Schaack, and is currently organized by IntLawGrrls contributor Kate Jastram, with the International Committee of the Red Cross.

Visit the website for more information and an application.

On the Job! British Red Cross Research Fellow – International Humanitarian Law

September 6, 2013 / Marte Ingvildsdatter Jervan / Leave a comment

The British Red Cross invites applications for the post of British Red Cross Research Fellow – International Humanitarian Law based at the Lauterpacht Centre for International Law.

The British Red Cross works to disseminate knowledge of and to encourage respect for international humanitarian law. It co-operates closely with the International Committee of the Red Cross in these areas.

The British Red Cross is seeking to hire an international law researcher to update the collection of practice supporting the ICRC Study on Customary International Humanitarian Law.

Working as a member of a five-person research team based at the Lauterpacht Centre for International Law at the University of Cambridge, the post-holder will analyse documents concerning world-wide practice in the area of international humanitarian law from a variety of sources and will incorporate the relevant parts of the documents into a database.

The ideal candidate will hold an LL.M. with a focus on international law or have the equivalent professional experience. A demonstrated understanding of relevant areas of international law, in particular of international humanitarian law, excellent analytical skills and the capability to work in a precise, structured and detailed manner are essential, as well as excellent written English and a good knowledge of French or Spanish.

Closing date for receipt of completed application forms is 22 September 2013.

Full job description and details on how to apply, available at the British Red Cross website.

Military Intervention in Syria: The International Law Framework

August 27, 2013 / Milena Sterio / 3 Comments

Amid reports that Syrian President Bashar al-Assad used chemical weapons against civilians in a recent attack, the United States government has been leaning toward the likelihood of a military intervention in Syria. Secretary of State John Kerry stated on Monday that there was “undeniable evidence” that Syrian government had used chemical weapons against its own people. Kerry called for “accountability” in light of this type of attack, which he called a “moral obscenity.” Secretary of Defense Chuck Hagel told the BBC that U.S. forces were ready to carry out a strike against Syria, and that such a strike could take place within several days. Senior U.S. officials also stated that strikes could be carried out as early as Thursday (August 29). Finally, President Obama held telephone talks with the Australian Prime Minister Kevin Rudd and the French President Francois Hollande, in order to potentially lay out the groundwork for a near-future military strike. In addition to the United States’ government’s recent assertions that a military strike against Syria may be in the works, other countries followed suit and expressed similar sentiments, highlighting the possibility of a joint military action against Syria by the United States and some of its allies, namely Great Britain and France. David Cameron, the British Prime Minister, recalled members of Parliament from vacation and announced that lawmakers would vote on Thursday on any proposal for action. Cameron characterized the alleged attacks as “absolutely abhorrent,” called for action from the international community, and stated that Great Britain was considering a proportionate response. Both the UK Foreign Minister and the French Foreign Minister Laurent Fabius hinted that a military action without United Nations Security Council authorization may occur, because of great humanitarian need. It is thus possible that the United States, Great Britain, and France would engage in some type of presumably limited military action against Syria without Security Council approval, in what could constitute a true humanitarian intervention (because both Russia and China seem to oppose any type of military intervention against Syria, it is highly likely that these countries would block any proposed Security Council resolution authorizing the use of force in Syria).

Does international law authorize states to use force against other states in instances other than self-defense and Security Council authorization? Some have suggested that the 1999 NATO-led military intervention in Kosovo constitutes a precedent for humanitarian intervention, and that this precedent could apply to the Syrian situation. However, Kosovo was referred to as “sui generis” by the United States’ officials, who were at the time quick to point out that Kosovo could not be used as precedent for the assertion that states may use military force against other states based on humanitarian need and without Security Council approval. In addition, scholarly opinion is at best mixed on the subject of whether humanitarian intervention has become an international norm authorizing the unilateral use of force. It is thus doubtful that the case of Kosovo can serve as strong legal precedent for the Syrian situation today. It will be interesting nonetheless to follow academic debate on this subject, and we hope that more Intlawgrrls will post on the topic in the near future.

Does the fact that Syrian authorities have likely used chemical weapons somehow change the legal analysis about the use of force? In other words, would countries such as the United States, Great Britain, and France have a better legal argument to justify their potential military intervention in Syria without Security Council authorization just because chemical weapons seem to have been used by Assad? Not necessarily. As Kevin Jon Heller pointed out on Opinio Juris:

Why is the indiscriminate slaughter of civilians with chemical weapons unacceptable, but not the indiscriminate slaughter of civilians with ordinary weapons? Why should the US be willing to intervene if chemical weapons kill 1,000 civilians, but not if ordinary weapons kill tens of thousands?

In other words, the use of chemical weapons, as well as indiscriminate attacks against civilians, are terrible and violate international humanitarian law; however, they do not influence the legal analysis about the unilateral use of force…. unless one can prove that humanitarian intervention has risen to the level of a binding customary norm, constituting thereby an exception to the ban on the use of force absent self defense and Security Council authorization.

Finally, it is interesting to highlight recent commentary on the Syrian situation by Richard Haass, president of the Council of Foreign Relations and former high-level government official. Haass had been a proponent of the so-called “involuntary sovereignty waiver” theory in the 1990’s – the idea that countries which engage in reprehensible actions, such as harboring weapons of mass destruction, promoting terrorism, or committing atrocities against their own people lose their sovereignty and thereby invite intervention by other countries (such as the United States) (Professor Michael Kelly and yours truly have written about the involuntary sovereignty wavier theory in law review articles as well as a recent book). While Haass seemed to embrace the idea that law-abiding nations could legally intervene in unilateral military fashion against “rogue” states, his response to the Syrian catastrophe seemed more nuanced. Haass stated that while military action may be needed against Syria to prevent a further use of chemical weapons, any such military action should be carefully calibrated to avoid another prolonged military conflict.

While military action may be needed and necessary in Syria, it is uncertain whether international law in its present state truly authorizes countries to engage in unilateral military action against Assad’s regime. If the United States, Great Britain and France decide to launch a military offensive, their actions may constitute the first instance of humanitarian intervention and may lead toward the development of new customary norms of international law.