International Humanitarian Law/Text
- If the new and frightful weapons of destruction, which are now at the disposal of the nations, seem destined to abridge the duration of future wars, it appears likely, on the other hand, that future battles will only become more and more murderous." (...) "Would it not be possible, in time of peace and quiet, to form relief societies for the purpose of having care given to the wounded in wartime by zealous, devoted and thoroughly qualified volunteers?
- Henri Dunant, A Memory of Solferino (1862)
Scope of Application of IHL
Case No. 1: Kosovo
Since the early-to-mid-1990s, the Kosovo Liberation Army (KLA), a non-state actor, was involved in minor clashes against the Federal Republic of Yugoslavia (FRY, now Serbia) police. By 1997, the KLA was equipped with rifles, guns and mortars, and received many weapons from Albania. In the months of March and April of 1998, there were hundreds if not thousands of full-fledged KLA soldiers and the number of KLA volunteers grew in Kosovo villages. By the end of April 1998, a centralised command structure of the KLA had emerged. By this time, the KLA also controlled a considerable amount of territory in the Dukagjin area in Western Kosovo, KLA soldiers received at least rudimentary military training and the KLA issued communiqués in its name. In 1996 and 1997 the KLA started to confront the FRY army on various occasions. In February and March 1998, heavy fighting took place between the KLA and FRY security forces in three separate incidents, followed by a period of calm between the end of March until the end of April 1998. By the end of April 1998 the FRY army and security forces engaged in a campaign of continuous shelling of Western Kosovo villages fiercely contested by the KLA. Throughout 1998 through March 1999, there were many combat operations all over Kosovo, major offensives involving attacks on villages and police stations where heavy weapons (mortars, rocket launchers, artillery shells) were used, resulting in the departure of thousands of civilians. As is well-known, from 24 March to 10 June 1999, NATO countries intervened and conducted air strikes in what was labelled a “humanitarian intervention” against the FRY in response to massive human rights violations by Serbs under the leadership of Slobodan Milosevic against Kosovo-Albanians. This air campaign was conducted without a UN mandate.
Examine the scope of application of IHL!
Case No. 2: Bosnia
According to a last census published on 31 March 1991, Bosnia and Herzegovina (BH) as a part of the Socialist Federal Republic of Yugoslavia (SFRY) which started to break up in 1991 was divided into 44% Muslims, 31% Serbs and 17% Croats. On 29 February and 1 March 1992 a referendum was held in BH on its independence from the SFRY which was boycotted by Bosnian Serbs. Nevertheless, BH declared its independence on 6 March 1992. The Bosnian Serbs on their part had already declared the Republic of Bosnian Serbs (Republika Srpska) in the event of a declaration of independence of BH on 9 Jan. 1992. Fighting in BH broke out between especially Bosnian Muslims and Bosnian Serbs around April 1992. While BH was admitted to the United Nations as a new State on 22 May 1992 which also possessed a new national army, the Republika Srpska was never recognised as an independent State. By early 1992, there was still a substantial presence of the old SFRY army (JNA) in ethnic Serbian areas of BH which was dominated by Serbs after the independence of Slovenia and Croatia. On 15 May 1992 the Security Council demanded that all units of the JNA still present in BH be disbanded and disarmed. The JNA formally withdrew from BH on 19 May 1992 and at the same time the army of the Republika Srpska, VRS was established, comprising former Bosnian Serb officers who continued to receive their salaries from the Federal Republic of Yugoslavia (now Serbia). The command structure of the new VRS also essentially remained the same after 19 May 1992. The stated political goal of the Bosnian Serbs was the success of the overall Serb war effort and the creation of a Greater Serbia. Throughout confrontations between the VRS and the Muslims in BH (1992-95), the FRY (Serbia) made considerable military (weapons, regular communications between VRS HQ and Belgrade) and financial support available to the VRS. In July 1995, Srebrenica, an enclave in Eastern Bosnia held by Bosnian government forces was started to be subject to an intensive military offensive by Bosnian Serbs with tanks and artillery bombardments. On 12 July the town was captured by the Bosnian Serbs and 26.000 men, women and children tried to escape. The Bosnian Serbs separated the men from the women and children and loaded the women and children onto overcrowded buses which transported them into Bosnian Muslim territory. The 7000 military aged men were taken prisoner and executed.
Examine the scope of application of IHL!
Case No. 3: Libya
On 15 February 2011 approximately 500 people demonstrated in front of the police HQ in Benghazi, eastern Libya, following the arrest of a human rights activist. When the protests continued on the next two days, government security personnel responded with sniper fire and gunfire from helicopters. However, the numbers of protesters increased to several thousands in Benghazi, and also extended to other Libyan cities, including Al Bayda (east), Tobruk (east) and Misurata (west). The government responded with artillery, helicopter gunships and antiaircraft missile launchers to put an end to the protests. On 20 February, the protesters were reported to be in control of the city of Benghazi, and on the same day, clashes escalated in the capital Tripoli, with government snipers firing into the crowds. When protests continued in Tripoli, government armed forces began bombarding residential areas with navy warships. In Benghazi, Libyan Air Force warplanes and attack helicopters launched airstrikes on protesters. Within a week, there were at least several hundred dead. The international community started to react to the violence: On 22 February, the Arab League suspended Libyan participation in its meeetings, the EU agreed in principle to impose sanctions, and the African Union held an emergency meeting. Several Libyan towns were now under the control of the opposition. In some towns in the east, Army units defected to join the protesters. The civilian protesters and defected and reorganized military units armed themselves for a "Battle of Tripoli". Many of the volunteers of the opposition force, such as attorneys, doctors, engineers or students, are inexperienced militarily. In many cases, they use improvised weaponry but it was also reported that they looted army bases to equip themselves with heavier weapons. Between 24 and 28 February, there was heavy fighting between the government and the opposition in Misurata where government forces attacked with rocket-propelled grenades, mortars and airplanes. The opposition managed to seize an anti-aircraft gun to counter-attack, and shot down a government plane. On 26 February, the UN Security Council adopted Res 1970 where it imposed sanctions against the Libyan government, and referred the Libyan situation since 15 February to the ICC. On 27 February, a National Libyan Council was formed, not as a provisional government, but a political face of the uprising. On 5 March, Omar Hariri, one former Libyan army officer who was later jailed by the Gaddafi regime, was nominated Head of military operations for the opposition. The opposition force has established its seat in Benghazi while the government army is no longer present there. The civilian opposition authorities administer essential services for the population there. Heavy fighting has continued between both sides at the beginning of March in both the west and the east of the country on a daily basis. The fighting has caused a major humanitarian crisis, with tens of thousands of people trying to flee the country. Libya is party to the Geneva Conventions, to Additional Protocols I and II, as well as to the ICCPR and the ICESCR.
Examine the applicable legal regime(s)!
Case No. 4: Afghanistan and U.S. “War on Terror”
On 11 Sept. 2001, nineteen persons of non-U.S. nationality boarded four U.S. civilian aircraft, hijacked them, and crashed them into the World Trade Centre in New York, the Pentagon in northern Virginia, and in Pennsylvania. In the “9/11” attacks, some 3000 persons were killed, the worst casualties experienced in the United States in a single day since the American Civil War. In response, Pres. Bush declared a national emergency and called to active duty reserves of U.S. armed forces. In a speech to Congress on 20 Sept. 2001, Pres. Bush said, “On Sept. 11, enemies of freedom committed an act of war against our country.” He demanded that the Taliban, the de facto rulers of Afghanistan, discontinue to harbour Al Qaida with Osama Bin Laden at their head, the suspected mastermind behind the “9/11” attacks and hand over the terrorists immediately. After rejection of demands by the Taliban, US and other allies, including the UK, began air strikes against Afghanistan on 7 Oct. 2001, invoking right to self-defence, of which the UNSC was notified. The Taliban and Al Qaida fought alongside each other against U.S. troops. On 13 Nov. 2001, Pres. Bush issued the “Military Order on the Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism” which stated, inter alia in Section 1 (a): “International terrorists, including members of al Qaeda, have carried out attacks on United States diplomatic and military personnel and facilities abroad and on citizens and property within the United States on a scale that has created a state of armed conflict that requires the use of the United States armed forces.” This armed conflict was regarded as a novel type of international armed conflict not regulated by c. Art. 2 GC. During the hostilities hundreds of individuals, among them Salim Ahmed Hamdan, were detained and transferred to Guantanamo Bay. Hamdan faced trial by military commission pursuant to the presidential order whose legality he contested before US civil courts. After contrary decisions in a Federal district and a Court of Appeals, the US Supreme Court in June 2006 decided that common Article 3 GCs was applicable to the relationship between the US armed forces and al Qaida and that the military commission did not comply with the standards of common Article 3. However, the Military Commissions Act adopted in autumn 2006 implicitly assumed that there is a new type of international armed conflict between the US and al Qaida in the same way as the executive. The Obama administration, however, followed the position of the U.S. Supreme Court. Meanwhile in Afghanistan, in December of 2001, an interim administration was envisaged by the Bonn Agreement which also specified that the new Afghan transitional government should be assisted by an International Security Force in creating and maintaining a secure environment. As a result, the International Security Assistance Force (ISAF, consisting of 42 troop contributing states) was established and continues to operate in Afghanistan alonside the original U.S.-led international coalition of the willing (Operation Enduring Freedom: OEF) in support of the Afghan interim, then the elected government. Since 2006, the reinforced Taliban have increasingly engaged the newly formed Afghan armed forces, ISAF and OEF troops in heavy combat. 2010 has witnessed the heaviest combat activities between these actors since the initial U.S.-led intervention in 2001.
Examine the applicability of IHL with respect to the relationship between:
- The United States and allies v. Taliban in Afghanistan until December 2001,
- The United States and allies v. al Qaida in Afghanistan until December 2001?
- The United States v. Al Qaida/international terrorists generally; how do you assess (1) the Bush administration´s and the U.S. legislative, (2) the Obama administration´s position?
- The Afghan armed forces, ISAF, OEF v. the Taliban since 2006?
Protection of Persons in Armed Conflict
Case No. 1: OEF Detainees in Afghanistan
Persons under OEF detention are interned by the US, i.e. they are not criminally charged. In 2009, the US announced the establishment of a review procedure for internees held at the Bagram detention facility called the Detainee Review Boards (DRB). Persons who may be interned include so called unlawful enemy belligerents: a person who planned, authorized, committed, or aided the terrorist attacks that occurred on 9/11, and persons who harbored those responsible for those attacks; a person who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the US or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces. Pursuant to this review procedure, a personal representative is appointed to assist detainees in appearing before the Board. Prisoners are permitted to appear before a DRB every six months, and have the possibility to present evidence and witnesses in their favour to refute the claim that they are involved in Taliban or al-Qaida activities. However, in practice, human rights activists alleged that the personal representatives, mostly non-lawyers, did not really present evidence in favour of the detainees. The hearings lasted about half an hour and consisted of a military officer reading the charges and vaguely summarizing the evidence.
What is the legal regime governing status of these detainees and procedural safeguards?
Case No. 2: David Hicks
David Hicks, an Australian citizen, converted to Islam in Australia. In late November 1999, he travelled to Pakistan, where he joined an armed organisation whose stated goals included attacks against property and nationals of India in the Kashmir region. With assistance from that organisation, Hicks went to Afghanistan and underwent training in weapons familiarisation, tactics, topography, field movements, basic explosives, urban warfare, information gathering, and other areas, in various al-Qai´da camps throughout the spring and summer of 2001. After his return to Pakistan and the “9/11 attacks” Hicks rejoined al Qa´ida when fighting began in Afghanistan near Kandahar. Subsequently, he changed his assignment and went to Kunduz, where he fought on the frontline with a group of al Qa´ida and Taliban fighters against US forces and their allies. When the frontline was forced to retreat, Hicks decided to flee towards Pakistan but was captured by Northern Alliance troops still in Afghanistan in December 2001 and immediately handed over to the US military. For two and a half years, David Hicks was then detained without charge at the United States military base at Guantanamo Bay, Cuba. On 10 June 2004, the United States Department of Defense charged Mr. Hicks with conspiracy to commit war crimes, attempted murder by an unprivileged belligerent and aiding the enemy, subject to trial by Military Commission. These charges were amended in February 2007 because of a variety of challenges relating to the legality of the detention and the establishment of military commissions to include providing material support for terrorism and attempted murder in violation of the law of war. On 30 March 2007, a US military commission at Guantanamo Bay recommended sentencing him to seven years in prison but all but nine months of that were effectively suspended by a military judge under the terms of a plea agreement. Under the plea agreement, Hicks was required to state that he "has never been illegally treated" while being held as an enemy combatant by the United States and that his detention was lawful pursuant to the IHL. On 20 May 2007, Hicks was repatriated to Australia where he was kept in solitary confinement in Adelaide. Finally, he was released on 29 December 2007 under a control order pursuant to which he was not to leave Australia. That control order expired in December 2008.
What was Mr. Hicks´s status under IHL?
Case No. 3: Mullah Baradar
Shortly after 9/11, Mullah Baradar assumed overall command of Taliban forces in northern Afghanistan. In that capacity, he oversaw a large number of Taliban fighters in Kunduz and Mazar-i-Sharif. After he was captured by Northern Alliance troops aligned with U.S. troops, Pakistani intelligence operatives intervened whereupon he was released. Since then, Baradar has been regarded as one of the leading figures behind the reinforced Taliban in Afghanistan, overseeing military operations against Afghan government, ISAF and OEF troops in southern and western Afghanistan. At the beginning of 2010, a growing number of Taliban leaders like Mullah Baradar were believed to hide in Karachi in southern Pakistan, hundreds of miles from the theater of operations in Afghanistan. In February 2010, Baradar was captured by Pakistani and U.S. intelligence operatives in Karachi. Until today, in the North West of Pakistan, there are armed confrontations between various armed opposition groups under responsible command which control certain territory there against the Pakistani government forces. The US has also been targeting members of the Pakistani armed opposition groups in support of the Pakistani government through drone attacks
Which legal regime was applicable to Mullah Baradar´s capture in 2001? Which legal regime was applicable to Mullah Baradar´s capture in 2010?
Case No. 4: Bosnian Muslim detainees
During July 1992 when an armed conflict was raging in Bosnia, a group of Bosnian Serbs, including Dusko Tadic severely beat numerous non-combatant Bosnian Muslim detainees of Omarska in northwestern Bosnia. Tadic was indicted before the International Criminal Tribunal for the former Yugoslavia for these acts and faced prosecution for “grave breaches” that can only be committed in international armed conflicts.
Assuming that there was an international armed conflict, what was the status of the Bosnian Muslim detainees under IHL?
Prohibited Means and Methods of Combat
Case No. 1: Cluster Munition Use by NATO countries in Kosovo in 1999
From 24 March to 10 June 1999, NATO countries, including the United States, the UK, Germany, France, Italy and Turkey, conducted air strikes in what was labelled a “humanitarian intervention” in Kosovo and Serbia in response to massive human rights violations by Serbs under the leadership of Slobodan Milosevic against Kosovo-Albanians. This air campaign was conducted without a UN mandate. During this campaign, the United States, the UK and the Netherlands used a total of 1392 cluster bombs containing around 300.000 bomblets. Among the types used was again the CBU-87 (202 submunitions each called BLU-97) as well as the M118 “Rockeye” (also bomblets with anti-armour and fragmentation effects, one bomb contains 247 submunitions) and the RBL755 (with anti-armour, fragmentation and incendiary effects, one bomb contains 147 submunitions). The use of cluster munitions in Kosovo was justified by NATO Major General Gertz in the following way: “They [cluster munitions] are being used when talking about area targets such as airfields so we use cluster bombs on soft targets like aircraft and trucks when they are on the airfield and we can detect them, and when we can make sure there is no collateral damage, and we also use those cluster munitions in areas where we know there are valid military targets which we cannot see because they are under wood. Of course we know where they are but they cannot be attacked accurately by precise weapons so we use cluster bombs against those targets.” Geoff Hoon, the UK Secretary of Defence, asserted regarding cluster munitions in a hearing before the House of Commons Defence Committee that: “They are the most effective weapons against armoured and certain kinds of soft skinned vehicles and, frankly, if we did not use the most effective weapon available to us we would be putting our armed forces at risk.” In fact, cluster munitions were used against a wide array of targets, including air defence radar installations, airfield runways, buildings, as well as fielded weapons, concealed armoured vehicles or troops. Despite these and similar claims, the average failure rate of cluster submunitions was between eight and fifteen percent which suggests that the number of failed cluster submunitions was around 20.000-30.000. It was confirmed that hundreds of civilians were killed or injured during cluster munition strikes and post-conflict when carrying out livelihood activities or deliberately handling duds. According to casualty information, young boys are particularly at risk of becoming casualties, since the bomblets of the CBU-87, by far the most-widely used type of cluster bomb, arouses the curiosity of children because of their bright yellow colour and size not larger than a soda can. The extent to which the military targets against which cluster munitions were principally aimed were successfully neutralised or weakened has also been much debated.
For determining the legality of cluster munition use does it matter that the NATO coalition acted without a UN mandate in Kosovo as opposed to the coalition in Iraq in 1991?
How do you assess the NATO Major-Generals claim that with cluster munition use it can be ensured that there is no collateral damage?
Can the need to protect one´s own forces provide a justification for cluster munition use, as transpires from the UK Secretary of Defence´s statement?
Case No. 2: Cluster Munition Use by the United States and the United Kingdom in Iraq in 2003
During the 2003 invasion of Iraq, both the United States and the United Kingdom used a vast array of both air-dropped and ground-launched cluster munitions. Among the types used by the United States was the air-dropped CBU-103 which accounted for 68% of the total of cluster munitions used by the United States. The CBU-103 constitutes a technically improved cluster bomb version from the CBU-87 predominantly used in Kosovo in 1999 and Afghanistan in 2001 and also has 202 submunitions per bomb. Compared to the CBU-87, the CBU-103 adds a so-called “Wind Corrected Munitions Dispenser” (WCMD), control fins to the rear of the bomb container which is designed to steer the cluster bomb container to correct launch errors and compensate for wind during the fall of the container. Thus, with the CBU-103 it is less likely that wind would cause the cluster bomb container to stray far from the intended target area. Moreover, the dispersal pattern of the bomblets is thereby reduced. However, the CBU-103 is still not a precision-guided weapon, as the individual bomblets remain unguided and sometimes strikes in residential areas occurred, causing civilian harm. In addition to using the CBU-103 with the WCMD the US Air Force for the first and only time in combat used the CBU-97B/105, a so-called “Sensor Fused Weapon”. This weapon system contains 10 submunitions with 4 further hockey-sized skeets each, thus altogether 40 submunitions and has a WCMD. Most importantly, the 40 BLU-108 submunitions are each equipped with an infrared sensor. These infrared sensors are to detect armoured vehicles by sensing the heat of the engine of the vehicle. If they find a target, the submunitions are directed towards it and explode. If not, each submunition is equipped with a self-destruct or self-deactivation mechanism. There is no conclusive evidence about the performance of the CBU-105 but it appears that no civilian casualties resulted from its use. However, one humanitarian clearance organisation found BLU-108 duds around Mosul. The UK ground forces used an artillery projectile which contains 49 M85 submunitions. The individual submunitions have a so-called self-destruct mechanism, i.e. a second fuse that is designed for detonating the submunition when it has not exploded upon impact. This technical innovation is intended to reduce the dud rate to 1% or less as claimed by producers, thus ensuring that virtually no duds after cluster munition use are left behind. However, while the actual failure rate of this cluster munition type could not be determined, duds from submunitions with self-destruct mechanism were still found in civilian areas. Moreover, research found that UK troops were overconfident about self-destruct mechanisms which prompted them to use those munitions in greater number.
Is the technological advance in the CBU-103 sufficient to ensure respect for IHL in all circumstances of its use?
Same question as above in respect of the M85 submunitions with self-destruct mechanism?
Is the “Sensor Fused Weapon” the technological solution to problems associated with cluster munitions?
Case No. 3: Cluster Munition Use by Israel in Lebanon in 2006
In the course of the armed hostilities from 12 July to 14 August 2006 between the Israeli Defence Forces and Hezbollah, both parties used cluster munitions. Israel is estimated to have used altogether around 4 Mio. air and ground-delivered submunitions, some of them dating back to the Vietnam war era (BLU-63), Multiple Launch rockets with 12 tubes where each tube contains 644 submunitions, as well as two types of M-85, one with, the other one without a self-destruct mechanism while Hezbollah appears to have fired about 4.600 Chinese submunitions. Hezbollah was also found to have employed rockets indiscriminately, resulting in civilian casualties in northern Israel. Most of the cluster munitions were used by Israel during the last 72 hours of the conflict when a ceasefire was already imminent. The principal justification of its cluster munition use put forward by Israel was that Hezbollah employed civilian areas, e.g. banana and citrus orchards in South Lebanon as a cover to fire missiles into Northern Israel and that it was necessary to stop these missile attacks. However, statements by members of the Israeli Defence Forces after the conflict revealed that during the last 72 hours of the conflict their order was not to strike specific targets but “saturate” whole areas of Lebanon. It was also found by a Commission of Inquiry established by the Human Rights Council that Israel had launched cluster munition attacks against areas north of the Litani River where no Hezbollah strongholds were located. In contrast, the Israeli army´s Advocate General Mendelbilt tasked with investigating the conduct of hostilities by the defence forces concluded that the majority of cluster munitions were fired at open and uninhabited areas where no civilians were present. Where they were used in populated areas it was only an immediate response to Hezbollah rocket attacks launched from within these areas. Moreover, villages were only targeted when they had been evacuated by the civilian population. As a result of the conflict an excessive number of duds was littering the landscape of southern Lebanon and triggered a humanitarian crisis; duds of submunitions were on the rooftops of and gardens of houses, in schools, hanging in trees, on roads, in banana and citrus orchards or stuck in irrigation canals. In response to this grave humanitarian situation, clearance NGOs under the overall coordination of the UN Mine Action Coordination Centre almost immediately after the ceasefire began to clear areas contaminated by cluster munitions. However, these efforts are impaired by the failure of Israel to hand over to the Lebanese authorities or the UN strike data which would facilitate the location of unexploded submunitions. As of March 2008, there were around 250 civilian casualties in Lebanon despite ongoing clearance efforts as a result of the 2006 hostilities alone. Failure rates of many of the cluster munitions used are estimated to be as high as 40%. Even the one type with self-destruct mechanism used has displayed a failure rate between 6-10% on the ground which is between six and ten times higher as the 1% claimed by producers and users of the weapon. Moreover, cluster munition remnants make large areas of agricultural lands inaccessible; with the loss of income from harvests, many south Lebanese farmers became heavily indebted as they usually repay their debts during harvest to secure credit for the next season. Also many irrigation canals were contaminated by duds.
Was the use of cluster munitions by Israel in conformity with IHL?
Does the fact that Hezbollah violated its own obligations under IHL matter?
What are the human rights problems relating to the presence of cluster munition remnants post-conflict for the Lebanese population? Who is bound by human rights law post-conflict?
Case No. 4: Cluster munition use by Georgia and Russia in Georgia in 2008
After heavy fighting broke out between Georgian government forces and South Ossetian separatist forces, on 8 August 2008, Russian armed forces intervened on the side of the South Ossetian armed group. Both Russia and Georgia used cluster munitions in or near towns and villages in the Gori-Tskhinvali corridor south of the South Ossetian administrative border. While Russia outright denied to have used cluster munitions, Georgia admitted cluster munition use exclusively against heavily armored vehicles and equipment moving into the territory of Georgia. In Georgia´s view, cluster munition attacks impeded the advance of the Russian Army into Georgian territory for several hours, thus giving the Georgian Army, which in numbers was several times less than the advancing Russian troops, a military advantage which created the opportunity to facilitate the safe evacuation of civilians from the theatre of war. However, due to the death of a Dutch cameraman in Gori by what was believed a cluster munition, the Dutch government investigated the incident and came to the conclusion that the weapon used was an Iskander missile which carries 20 submunitions, a weapon that only Russia, not Georgia has in its arsenal. Consistent with this finding, NGO researchers found different parts of such a missile in the vicinity of the strike area identified by the Dutch government. In addition, in or near other villages, unexploded submunitions, pieces of detonated submunitions, and carrier bombs and rockets were found and confirmed by witness statements. As regards Georgia, despite its claims, civilians were killed and injured in or near populated areas as confirmed by witnesses. On both sides, when the respective submunitions landed in populated areas, no armed forces of the other party were present there. The Georgian side stated that it was unclear to them why their cluster munitions used ended up in populated areas south of the South Ossetian border and not north. Presumably, this result was due to a massive failure of Georgian cluster munitions used. Unexploded sub-munitions continued to pose a post-conflict threat for lives, limbs and livelihoods in the whole region throughout 2009. Duds stemming from Georgian cluster munitions killed several civilians.
Were Russian and Georgian cluster munition attacks in conformity with IHL? What are Georgia´s and Russia´s international obligations, considering that Russia ratified Protocol V to the CCW on 21 July 2008, and Georgia on 22 December 2008?
Implementation and Enforcement of IHL
Case No. 1: Bosnia
In July 1995, Srebrenica, an enclave in Eastern Bosnia held by Bosnian government forces started to be subject to an intensive military offensive by Bosnian Serbs with tanks and artillery bombardments. At the time, the size of the Bosnian Muslims in Eastern Bosnia was approximately 40.000. On 12 July the town was captured by the Bosnian Serbs and 26.000 men, women and children tried to escape. The Bosnian Serbs separated the men from the women and children and loaded the women and children onto overcrowded buses which transported them into Bosnian Muslim territory. The 7000 military aged men were taken prisoner and executed, the women displaced. Throughout the period of 1992-95, in other parts of Bosnia, widespread killings and acts of rapes and severe beatings were widespread, especially in the notorious detention camps. Sarajevo was continually shelled by the Bosnian Serbs and generally, humanitarian aid to Bosnian Muslims denied. It was also alleged that the cultural heritage of Bosnian Muslims was purposefully attacked to destroy their culture. Cases of “ethnic cleansing” were also a common phenomenon, the ethnically motivated forced displacement of Bosnian Muslims from their homes.
Do any of the acts by the Bosnian Serbs constitute genocide?
Case No. 2: Darfur
The Darfur region of Sudan is made up of many dozens of tribal groups which share a common language (Arabic) and religion (Muslim). Among these tribes are on the one hand, sedentary farmers such as the Fur, the Zaghawa and the Masalit and on the other hand, nomads, but there is also a large degree of intermarriage between those groups. Increased desertification and drought resulted in significant movements of people, with nomadic groups entering areas they had not traditionally passed through. This resulted in increasingly tense relations and by the end of the 1980s most conflict was mainly between the Fur and nomadic tribes. In addition, Darfur has been a region marginalized by the central government of Sudan for decades. When fighting between tribal groups intensified by the end of the 1990s the Government began its recruitment of militias, further aggravating conflict. Two rebel groups began to organize in 2001/2, the Sudan Liberation Movement (SLM) and the Justice and Equality Movement (JEM). Most rebels were from the Fur, Zaghawa and Masalit tribes. Those rebel groups commenced attacking government targets in late 2002 and early 2003. Since there was a shortage of government armed forces to respond to the rebels´ attacks, the government started to recruit proxy militias from among the nomadic tribes to fight in government-backed counterinsurgency operations against the rebels. These operations which reached their peak in 2003/4 but which continue unabated until today, typically involved combined attacks of government forces and proxy militias, armed nomadic proxy militias on a horse or camel (Janjaweed) on villages in the residential areas of the farmer tribes. These attacks have been accompanied by large-scale killings, rapes and torture of civilians belonging to the Fur, Zaghawa and Masalit tribes, deliberate destruction and torching of a large number of their villages, as well as the widespread looting of property and lifestock. This resulted in an estimated 2 million displaced persons in Darfur and over 200,000 refugees in neighbouring Chad. When attacks against civilians belonging to farmer tribes are carried out by the Janjaweed, they were often reported to have used derogatory language linked to ethnicity of the victim. In some cases, it appears that attackers refrained from exterminating the whole population that had not fled a village but instead selectively killed young men. In other instances, villages of mixed composition (both farmers and nomads) were not attacked.
Do the acts by the Sudanese government and the Janjaweed amount to genocide?
Case No. 3: Belgium
A former Belgian Law concerning the Repression of International Crimes (including war crimes, genocide and crimes against humanity) allowed foreign victims of such crimes to initiate a criminal complaint and prosecution irrespective of any link between Belgium and the accused, the victims, or the territory in which the crimes had been allegedly committed. Upon initiation of criminal proceedings, the accused also did not have to be present in Belgium. Under this law, an international arrest warrant was issued by a Belgian investigating judge against the then acting Minister of Foreign Affairs of the Democratic Republic of Congo, Yerodia Ndambasi for war crimes and crimes against humanity allegedly committed in the Congolese armed conflict.
On which ground did Belgium exercise jurisdiction? Was this exercise of jurisdiction lawful?
Case No. 1: Tablada, Argentina
On 23 January 1989, 42 armed militant members, predominantly of the Movimiento Todos por la Patria (MTP), perpetrated an attack on the military base of La Tablada, province of Buenos Aires, Argentina and invaded it. It was alleged by these armed individuals that immediately upon their incursion into the barracks the army base was surrounded by 3500 police who stayed there until special forces of the Argentine army arrived. The army forces arrived with directions from the Argentine President Alfonsin to recapture Tablada military base. The forces were equipped with heavy artillery munition, machine guns and tanks and counted on the support of helicopters. A fierce battle lasting 30 hours ensued between the invaders and the army forces before the army could recapture the military base on 24 January 1989. 29 of the attackers and various State agents were killed during the battle. The invaders claimed that the Argentine Constitution obliges citizens to take up arms in defence of the Constitution, since they feared that a new military coup after years of military dictatorship in the 1970s was imminent, and that they thus acted in defence of a just cause. It was alleged that an offer by the invaders to surrender after a few hours was not accepted by the Argentine armed forces and that this unduly prolonged the battle for 26 hours. During the battle it was alleged that the Argentine forces employed white phosphorous, a prohibited incendiary weapon. Finally, it was alleged that when surrender was finally accepted that survivors were subjected to torture and executions.
Is IHL applicable?
Case No. 2: Kosovo
Case No. 3: Sierra Leone
On 23 March 1991, an armed group of dissident Sierra Leoneans, the Revolutionary United Front (RUF), entered Sierra Leone from Liberia and started fighting the Sierra Leonean government army. The RUF fought side by side with fighters of the National Patriotic Front of Liberia (NPFL) under the overall command of Charles Taylor, later to assume the office of President of Liberia. RUF fighters soon had a notorious reputation for the brutal practice of hacking off limbs and the forced recruitment of children. Due to the weak opposition of corrupt government forces, the RUF could control substantial parts of the national territory by late 1995, especially the diamond-rich areas of the country. Largely abandoned by the international community, the government turned to private military companies, most prominently the South African Executive Outcomes (EO) for assistance against the rebels. These highly experienced fighters managed to push back the RUF in less than a year. During 1996 ongoing peace talks were conducted between the government and the RUF, resulting in a first peace agreement in November 1996. However, in May 1997 a military coup against the government was staged and the new military junta began to form an alliance with the RUF. The President of the ousted government had to go into exile and requested officially the Economic Community of West African State´s Cease-Fire Monitoring Group (ECOMOG), a regional International Organisation´s peacekeeping force, to intervene militarily and restore him to power. ECOMOG, consisting predominantly of Nigerian troops, complied with this request and after almost a year of fighting, it finally restored the president to office but could never extend its military authority beyond the capital Freetown. In June 1998, a United Nations Observer Mission to Sierra Leone was set up with the limited mandate to help with national reconciliation and the demobilisation of former soldiers. However, the security situation in the country remained unstable and prior to a major military offensive by the RUF on 6 January 1999 on Freetown, the UN left Sierra Leone, leaving only ECOMOG behind to engage the RUF militarily. Finally, ECOMOG managed to drive the RUF out of Freetown. A series of peace talks were held between the government and the rebels, culminating in a peace agreement in July 1999. Pending the withdrawal of ECOMOG troops, the UN established a peacekeeping force, UNAMSIL and gave it a mandate under Chapter VII to protect civilians under imminent threat of physical violence as well as monitoring the peace process and assist in the demobilisation of RUF and pro-government fighters. Since this mandate did not translate into a corresponding troop strength on the ground, the RUF started to attack UNAMSIL forces in May 2000 which responded by force to RUF attacks. The RUF took hundreds of UNAMSIL forces hostage throughout the latter half of 2000. Only in 2001, the setback to the peace process ended with the reinforcement of UNAMSIL troops and finally, in January 2002, hostilities were declared to be over by the government and the RUF.
Examine the scope of application of IHL!
Case No. 4: Iraq
On 20 March 2003, a US-led coalition of the willing, composed predominantly by the US, UK and to a lesser extent, Australia and Poland, started military operations against Iraq. On 1 May 2003, US President Bush announced the end of combat operations. Subsequently, the US and the UK took steps to put in place a post-conflict administration which was named Coalition Provisional Authority (CPA). In a letter addressed to the President of the Security Council dated 8 May 2003 they stated that they would strictly abide by their obligations under international law. The CPA took office by its Regulation 1 of 16 May 2003 and was vested with broad executive, legislative and judicial authority authority over Iraq. In particular, the Regulation stated that the CPA “shall exercise powers of government temporarily in order to provide for the effective administration of Iraq during the period of transitional administration.” On 22 May 2003, the UN Security Council adopted Res 1483 under Chapter VII, which reads in relevant part:
The Security Council, […] Noting the letter of 8 May 2003 from the Permanent Representatives of the United States of America and the United Kingdom of Great Britain and Northern Ireland to the President of the Security Council (S/2003/538) and recognizing the specific authorities, responsibilities, and obligations under applicable international law of these states as occupying powers under unified command (the “Authority”),
Noting further the willingness of Member States to contribute to stability and security in Iraq by contributing personnel, equipment, and other resources under the Authority, […]
Acting under Chapter VII of the Charter of the United Nations, […]
4. Calls upon the Authority, consistent with the Charter of the United Nations and other relevant international law, to promote the welfare of the Iraqi people through the effective administration of the territory, including in particular working towards the restoration of conditions of security and stability and the creation of conditions in which the Iraqi people can freely determine their own political future;
5. Calls upon all concerned to comply fully with their obligations under international law including in particular the Geneva Conventions of 1949 and the Hague Regulations of 1907; […]
8. Requests the Secretary-General to appoint a Special Representative for Iraq whose independent responsibilities shall involve reporting regularly to the Council on his activities under this resolution, coordinating activities of the United Nations in post-conflict processes in Iraq, coordinating among United Nations and international agencies engaged in humanitarian assistance and reconstruction activities in Iraq, and, in coordination with the Authority, assisting the people of Iraq through: […]
(c) working intensively with the Authority, the people of Iraq, and others concerned to advance efforts to restore and establish national and local institutions for representative governance, including by working together to facilitate a process leading to an internationally recognized, representative government of Iraq; […] (e) promoting economic reconstruction and the conditions for sustainable development, including through coordination with national and regional organizations, as appropriate, civil society, donors, and the international financial institutions;
(f) encouraging international efforts to contribute to basic civilian administrative functions; […]
(i) encouraging international efforts to promote legal and judicial reform;
The Security Council also supported the formation of an Iraqi Interim Governing Council appointed by the CPA until an internationally recognized, representative Iraqi government would be established by the Iraqi people. Pursuant to a Transitional Administrative Law enacted by the CPA an Iraqi Interim Government was appointed and it was specified that full sovereignty was to be transferred to this interim government by 30 June 2004.
In the meantime, the CPA introduced far-reaching political and economic reforms. For example, the CPA specified which categories of former Baath party members would be banned from future employment in the public sector (de-baathification), dissolved all existing Iraqi military structures and aimed at creating a free-market economy, e.g. through modifying the law on public procurement or allowing foreign investors to own Iraqi companies fully without being required to reinvest profits into the country. This latter privilege had previously only been restricted by the Iraqi constitution to citizens of Arab countries.
On 5 June 2004, the Prime Minister of the Interim Iraqi Government sent a letter to the President of the Security Council, requesting another resolution on the mandate of the Multinational Forces to contribute to security in Iraq. The request was noted by another letter of US Secretary of State Powell who promised that coalition forces would remain committed at all times to acting consistently with their obligations under the law of armed conflict, including the Geneva Conventions.
On 8 June 2004, the UN Security Council adopted Res 1546 under Chapter VII where it welcomed the end of occupation and the assumption of full authority by a fully sovereign and independent Interim Government of Iraq by 30 June 2004 as well as welcomed that the CPA would cease to exist. The Security Council also noted the Iraqi request for a continued presence of the multinational coalition troops and authorised them to take all necessary measures to contribute to the maintenance of security and stability in Iraq. The CPA was dissolved on 28 June 2004 and authority formally transferred to the Interim Iraqi Government. The first democratic elections after the 2003 invasion were held in January 2005. The Transitional National Assembly was elected with the task to build a transitional government and draft a constitution. The text of the constitution was approved by popular referendum in 2005. Pursuant to the new constitution, elections to the National Assembly were held in December 2005 for the purpose of forming a democratically elected government. Finally, the new Iraqi government was approved by the National Assembly in May 2006 whose term will expire in 2010.
Who were the Occupying Powers in Iraq? Was Res 1483 consistent with the law of occupation? When did the occupation end?
Case No. 5: Bert Nussbaumer
Bert Nussbaumer, an Austrian national, a former member of the Austrian armed forces, travelled to Iraq in July 2006 where he was employed by the US private security company Crescent Security Group. In its own words, Crescent Security Group (CSG) utilizes modified and up-armored civilian vehicles utilizing the latest technology to provide tracking and communications, ensuring total peace of mind to clients with sensitive cargo movements or VIP escorts. The firm employs professional former military and specialist law enforcement personnel many of whom have specialist courses and qualifications specific to the security business and transportation sector. The number of personnel of private security companies in Iraq has been estimated at around 30.000, the number of firms more than 60. If considered as a whole, they make up the second-largest contingent in Iraq, outnumbered only by US armed forces but outnumbering e.g. armed personnel of the British army. Their tasks range from logistics support to guard duties as well as training of new Iraqi military and police forces. On 16 November 2006, Nussbaumer and other employees of CSG was commissioned by Italian armed forces to guard a convoy consisting of 43 vehicles which was transporting foodstuffs from Kuwait to Nasiriya in southern Iraq. At a fake police check point the convoy was stopped and attacked by armed persons. 14 personnel of the security form were reportedly abducted, 9 Iraqi employees later released. However, Nussbaumer and four American colleagues remained in the hands of the abductors. After intense efforts to find out their whereabouts, the FBI reported in March 2008 that two dead bodies which were identified as two of the hostages had been found. Some days later, also the body of Nussbaumer was identified after a DNA probe. He was buried in his home town in Upper Austria on 6 May 2008.
What was Nussbaumer´s status under IHL?