Category: International Humanitarian Law

Weapon System with Autonomous Functions and the Martens Clause: Are the use of these weapons in line with the principles of humanity and the dictates of public conscience?

Posted in International Humanitarian Law, International Law and Technology, Public International Law, UncategorizedTagged , , , Leave a comment

By Clea Strydom

[Clea Strydom completed her B.A. Law and LL.B at Stellenbosch University, South Africa, before writing her LL.M dissertation on the International Humanitarian Law implications of weapon systems with autonomous functions through the University of Johannesburg, South Africa.]

Introduction

States are increasingly implementing artificial intelligence (AI) to pursue autonomy in weapon systems for armed conflict for various reasons, including, faster reaction time, faster data collection and processing, and being able to use robots instead of risking human combatants’ lives. There are, however, concerns that weapon systems with autonomous functions cannot be used in compliance with International Humanitarian Law (IHL), that it is unethical for machines to lethally target humans, and that their use could lead to an accountability gap.  Therefore, there has been an ongoing debate about whether to ban the development of these weapon systems. The mere fact that these systems have autonomy is not the issue the ongoing legal debate is focused on; rather it is the delegation of critical functions i.e., acquiring, tracking, selecting, and attacking targets, to weapon systems, that is of concern. The ICRC has correctly identified that “ethics, humanity and the dictates of the public conscience are at the heart of the debate about the acceptability of autonomous weapon systems.” 

Weapon Systems with Autonomous Functions

Autonomy in weapon systems should not be seen as a mere development of conventional weapons, instead, it is a paradigm shift in weapons technology that could change warfare drastically. Autonomy in weapon systems does not denote a specific new weapon but rather a shift in the level of human control over critical functions to weapon systems. This concerns a change in how warfare is conducted. While the most widely used terms are Lethal Autonomous Weapon Systems (LAWS) or Autonomous Weapon Systems (AWS), ascribing autonomy to the whole system is problematic.  It should be kept in mind that autonomy is not a type of technology, but rather a characteristic of technology, related to certain functions, instead of being attached to the object itself. Due to the problems with ascribing autonomy to the system, Andrew Williams suggests referring to “autonomous functioning in a system” in general, or “systems with autonomous functions” when referring to a specific platform or system. Therefore, the author has adopted the term weapon systems with autonomous functions (WSAF), as it indicates that the whole machine is not autonomous, but instead that it can perform certain functions with varying degrees of human interference, which will depend on various factors such as the system’s design or intelligence, the external environmental conditions in which the systems will be required to operate, the nature and complexity of the mission, as well as policy and legal regulations. It must be kept in mind that while autonomy in weapon systems is being pursued by several States, weapon systems that can perform critical functions autonomously are still a thing of the future. Therefore, the debate, including the advantages and disadvantages of autonomy in weapon systems, is at this stage still speculative.

The Martens Clause

The Martens Clause made its first appearance in the 1899 Hague Convention II and has since been included in Additional Protocol to the Geneva Conventions, Article 1(2): 

“In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience”.

The International Court of Justice in the Legality of the Threat or Use of Nuclear Weapons Advisory Opinion confirmed the principle contained in the Marten Clause as customary IHL and held that it “proved to be an effective means of addressing rapid evolution of military technology”. Concerning WSAF, the crux is whether the delegation of life and death decisions to a robot would be in line with the dictates of public conscience and principles of humanity.

Professor Michel Veuthy highlighted the importance of public conscience in IHL and identified that it can trigger the codification of IHL principles, be an impetus for the implementation and enforcement of IHL, and provide a safeguard for all situations not provided for or considered in the law. On the other side of the argument, Michael Schmitt argues that the Martens Clause only applies in the absence of applicable law in the Geneva Convention and Additional Protocols or international agreements such as treaties; and that since 1899, when the Martens Clause first appeared, the law relating to weapons has developed to such an extent that it covers all existing and future weapons. As a result, the role of the Martens Clause has been diminished. He argues that it is unlikely that any weapons would be found to be in contravention of the Martens Clause if it has been found to comply with IHL and applicable treaties. However, Robin Geiss points out that the IHL principles applicable to weapons are framed in a human-centric manner and might not sufficiently be able to deal with autonomy in weapon systems; therefore the Martens Clause could be used to create new laws or act as a safety net, as Veuthy suggests.

Even if it is accepted that a weapon could be banned based on the Martens Clause, several questions with no clear answers arise: first, how does one determine what the public conscience is, and secondly, which public? It is unlikely that the global public will share a common ‘conscience’. The public conscience and principles of humanity are not timeless or universal.  Several individuals have conducted surveys to try and determine public opinion on the weapon systems in question. Political scientist and current Inspector General of the United States Department of Justice, Michael Horowitz found that public opinions depend on context. In the first round of questions, Horowitz’s survey found that 48% of participants were opposed to “autonomous weapons”. However, once he put the use of the weapons in context and highlighted their benefits, opposition to them dropped to 27%. In American roboticist and robo-ethicist, Ronald Arkin’s survey participants acknowledged that “autonomous weapon systems” do have a role to play, but the majority felt that they should not be allowed to use force. IPSOS, a global market research, and public opinion specialist company has done various surveys on the views of “killer robots” for Human Rights Watch and the Campaign to Stop Killer Robots (who have called for a ban of “weapon systems that can perform critical functions autonomously). Interestingly the latest survey, conducted between November 2020 and January 2021 across 28 countries, shows that there is a correlation between opposition and the age of the respondents; with a 54% opposition average for those under 35 years of age, and 69% among those ages 50-74. This can be indicative of several factors, including that the younger generation is more accepting of technology and that the older population is more likely to have had first-hand experiences of the horrors of war. 

HRW believes that States should be considering these views when reviewing “autonomous weapons”. The perspectives do not create binding rules but may influence treaties and decisions to deploy the weapons. It is important to keep in mind that opinions change over time. While 50 years ago we could not imagine the possibility of unmanned remote-controlled systems being an integral part of military arsenals as they are today, we have come to accept them to a large extent. Surveys need to be seen in the context of the time, the way the questions are framed, and in this case, advancement in technology. As autonomy in weapon systems develop and the technology becomes more advanced, views on them will change. Armin Krishnan notes, in his book titled Killer Robots: Legality and Ethicality of Autonomous Weapons, that with “social conditioning” views on WSAF will evolve. 

Regarding the principles of humanity, there is a concern about the importance of human agency in life and death decisions. A lot of anxiety exists about losing human control over weapon systems and war in general, which raises questions beyond compliance with laws and also considers whether the deployment of such weapon systems is in line with our values.  Delegating decisions about life and death may dehumanize armed conflict even further. The concern is that allowing weapon systems to lethally target humans means they are not treated as unique human beings which is an afront on human dignity; late Professor Heyns referred to this as “death by algorithm”. It has also been argued that the anthropocentric formulation of IHL principles implicitly requires human judgment over decisions regarding force.

Conclusion

To date, the Martens Clause has never been used to ban a weapon. It must be kept in mind that at this stage the debate is still very speculative. Weapon systems that can perform critical functions autonomously, however, offer numerous advantages and it is unlikely that States will refrain from developing and deploying weapons that would give them the upper hand based on personally held views. What the Martens Clause does do is to remind us that in deciding on whether and how to design, develop and use WSAF we must do so in a way that safeguards our values instead of rendering them unsustainable. 

Views expressed in this article are the author’s own and are not representative of the official views of Jus Cogens Blog or any other institute or organization that the author may be affiliated with.

The Israel-Palestine Investigation

Posted in International Humanitarian Law, Public International LawLeave a comment

By Ali Imtinan

[Ali Imtinan completed his LL.B. from University of London (International Programme) and is currently practicing law in Lahore, Pakistan]

“To both Palestinian and Israeli victims and affected communities, we urge patience. The ICC is  not a panacea, but only seeks to discharge the responsibility that the international community has  entrusted to it, which is to promote accountability for Rome Statute crimes, regardless of the  perpetrator, in an effort to deter such crimes.” 

Fatou Bensouda  

Introduction 

On the 3rd of March this year, the International Criminal Court (‘ICC’) Prosecutor Fatou Bensouda announced the initiation of an investigation into alleged war crimes committed in the occupied Palestinian territory. The announcement came after the Pre-Trial Chamber’s (‘Chamber’) decision in February, ruling that the ICC’s jurisdiction extended to territories occupied by Israel during the 1967 Six-Day War — Gaza, the West Bank, and East Jerusalem. In January 2015, Palestine acceded to the Rome Statute, and along with it lodged a declaration under Article 12(3) of the Statute, thereby initiating the case. 

The Chamber gave the jurisdictional requirement of the Rome Statute a liberal construction, which could have far-reaching effects for the extension of the ICC’s protection to the people living under occupation. This writing will critically examine the Chamber’s ruling regarding the jurisdiction of the ICC, analyse the nature of crimes being investigated, with a specific focus on the Israeli settlements in the West Bank, and deliberate upon whether the investigation can — by promoting accountability — contribute to the resolution of one of the more long-standing conflicts in recent history. 

Jurisdiction of the ICC 

Under Article 12(2) of the Rome Statute, the Court can investigate crimes committed on the territory or by nationals of a State Party, or in a State that has accepted the jurisdiction of the ICC. Since Israel is not a party to the Rome Statute, the Chamber had to determine whether Palestine could be considered a State for the purpose of the Statute. Palestine’s case is unique insofar that its status as a sovereign state is a subject of dispute, as it ostensibly does not meet the criteria for statehood under international law, including effective control.

Although there is no established definition of a state under international law, the most accepted formulation of the basic criteria for statehood is provided by the 1933 Montevideo Convention (Crawford, 2006), which requires states to possess a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with the other states. Sovereignty under international law, on the other hand, is best understood as the exclusive right to exercise supreme authority/control over a defined territory. 

The issue in Palestine’s case is that the Israeli occupation of East Jerusalem and more than half of the West Bank — either through military control or through the settlement activities — prevents the Palestinian government from exercising effective control over its territory and as a result, negates the satisfaction of the Montevideo criteria. A strict adherence to the Montevideo criteria, therefore, entails that occupied territories are incapable of claiming statehood as people living under occupation are, by definition, unable to exercise effective control over their territory. Furthermore, the non-member observer status granted to Palestine through the UN General Assembly Resolution 67/19 did not conclusively establish Palestinian statehood either. The said resolution was limited in its effect to the UN, as evident from the Report of the Secretary-General, which states that the change in Palestine’s status “does not apply to organizations and bodies outside of the United Nations” (para 1 of the report), an argument adopted by the Attorney General of Israel as well.

In deciding whether Palestine could then be considered a State for the purpose of the Statute, the Chamber distinguished between a ‘State’ under international law and a ‘State Party’ to the Rome Statute. The Chamber held that ‘State’ under Article 12(2)(a) of the Statute, is in fact a reference to a ‘State Party to statute’; whether such state party met the requirements of statehood under international law was immaterial (para 93 of the decision). Palestine’s accession to the Statute meant that it was now a State Party to the Rome Statute and consequently a ‘State’ for the purposes of Article 12(2)(a). Its status as that of a state under international law was irrelevant.

This distinction is of importance as by adopting such liberal approach, the Chamber remedied the inherent wrong with the restrictive interpretation of a ‘State’, which perpetuated “a colonial premise under which only those accorded the status of statehood can be actors who count in the international legal arena” (Gross, 2021, para 2).  

The problem with the restrictive interpretation — that ICC’s jurisdiction extends only to states that satisfy the normative criteria of statehood under international law — is that this recognises sovereignty as the sole determinant of statehood. This, in turn, only benefits the Occupying Power which can circumvent the investigation of its nationals by simply opting to not be a party to the Rome Statute. On the other hand, the people living under occupation are denied the protection of the ICC because of the very fact that they are occupied, i.e. they do not have effective control over their territory (Gross, 2021). Thus, such a view would only legitimise colonialism. 

A practical example of this can be seen in Israel voting against the adoption of the Rome Statute due to its apprehension of being prosecuted under Article 8(2)(b)(viii) for the settlement activities in the Palestinian territory. Article 8(2)(b)(viii) of the Statute criminalises the transfer of an Occupying Power’s civilian population into the occupied territory. In 2004, The International Court of Justice, while exercising its advisory jurisdiction, had also concluded that Israeli settlements were in breach of Article 49(6) of the Fourth Geneva Convention. Despite the settlement project being illegal under international law, the responsible Israeli authorities had thus far evaded accountability because of the ICC not having jurisdiction over Israel, on account of it not being a party to the Rome Statute. Neither did the ICC have jurisdiction over occupied Palestinian territory as it did not meet the criteria for a sovereign state capable of being a party to the Rome Statute. 

Thus, had the Chamber adopted the view that ‘State’ for the purpose of the Rome Statute, meant the same as a state defined under international law, a strict application of the Montevideo criteria would have led to the conclusion that Palestine did not meet the conditions for statehood and consequently the ICC did not have territorial jurisdiction; thereby further granting impunity to the concerned Israeli authorities.

By distinguishing between a state for the purpose of the Rome Statute and a state under international law, the Chamber’s decision affirmed the ICC’s jurisdiction over the occupied Palestinian territory without having to determine Palestine’s status as a sovereign state in accordance with the Montevideo criteria — a far more contentious and political consideration. In doing so, the decision sets a precedent for the extension of international legal protection to the people living under occupation, who are for the time being unable to claim statehood.

Crimes being investigated  

As discussed earlier, besides investigating the alleged war crimes committed by members of Israel Defense Forces, Hamas, and Palestinian armed groups, the ICC can now probe into the Israeli authorities’ promotion of settlements in the West Bank pursuant to Article 8(2)(b)(viii) of the Statute. 

In prosecuting the officials responsible, the ICC may treat the crime of transfer of civilians into occupied Palestinian territory as a continuing crime, i.e. a crime that continues even after an initial illegal act is consummated. Continuing crimes can be further understood by distinguishing them from instantaneous crimes. The former refers to a crime that has been committed and then maintained. Conversely, the latter relates to a crime that is completed through a single act. The instantaneous crime of murder, for instance, is concluded with the death of the victim. Whereas, the crime of enforced disappearance of persons is committed when the victim is abducted, but the crime continues for as long as the abductee remains unaccounted for (Nissel, 2004).

In Palestine’s context, the crime of transfer of civilians does not cease with the initial illegal act of dispossessing the Palestinian people of their land and settling therein; instead, it continues until the illegal settlements are maintained. The Court’s current jurisdiction in the Situation in Palestine is limited to crimes committed after June 2014. Adjudging the crime of transfer of civilians as a continuing crime would extend the ICC’s jurisdiction to those crimes of transfer as well which commenced prior to June 2014, provided that these were maintained until June 2014 (Kearney, 2017).

In Prosecutor v Thomas Lubanga Dyilo, the Chamber recognised the rationale of treating certain war crimes as continuing crimes by ruling that the crime of enlisting and conscripting of child soldiers was an offence of a continuing nature; the offence is committed when a child under the age of fifteen is enrolled into the armed forces and continues until the child reaches fifteen years of age. The ICC can then rely on its decision in Lubanga, and draw a parallel between the crimes of enlistment and conscription of children and the crime of transfer of civilians into occupied territory (Kearney, 2017).

In addition, it is of significance to state that Article 8(2)(b)(viii) of the Statute criminalises the conduct of the ‘Occupying Power’ which has transferred its population into the occupied territory (Poissonnier et al., 2019). Hence, it must be proven that the Israeli government sanctioned and supported the settlements in the West Bank. While there is evidence of this — as acknowledged by the ICC Prosecutor in para 68 of the Report on Preliminary Examination Activities (2015) — it is important to remember that the ICC can only prosecute individuals, not governments or States. Therefore, the ICC will aim for investigating government officials responsible for the implementation of the settlement project. 

Furthermore, whilst the Chamber’s decision did not explicitly reflect on the refusal of the Palestinians’ right of return, such refusal is a potential crime against humanity (‘CAH’). In its 2018 decision on the Situation in Bangladesh/Myanmar, the Pre-Trial Chamber held that preventing people from returning to their country causes them “great suffering, or serious injury […] to mental […] health’’ (para 77 of the decision), and thus constitutes a CAH under Article 7(1)(k) and 7(2)(g) of the Statute (Kearney, 2020). On that account, the ICC may consider prosecuting responsible members of Israeli authorities for denying Palestinians their right of return, as it certainly has reasonable grounds to do so. 

What to expect? 

In response to the ICC investigation in Afghanistan, the US imposed financial sanctions and a travel ban on the ICC Prosecutor. It would be reasonable to assume that Israel, having already refused to cooperate, will adopt similar tactics against the ICC officials. An illustration of this was seen when the erstwhile Israeli Prime Minister, Benjamin Netanyahu derided the Chamber’s decision affirming the ICC’s jurisdiction in occupied Palestinian territory as “pure anti-Semitism”. It is pertinent to note that the Court relies on the cooperation of the State Parties for enforcement of its decisions; the accused Israeli officials could therefore avoid trial simply by not leaving the country or restricting travel to countries that do not cooperate with the ICC.

Moreover, if one is to go by the outcome of the previous investigative commissions established to probe potential commission of crimes in the occupied Palestinian territory, there is little to hope for. Consider the example of the 2009 UN Goldstone Mission, which found that “some of the actions of the Government of Israel might justify a competent court finding that crimes against humanity have been committed” (para 75 of the report), yet its recommendations were never implemented (Allen, 2021). Notwithstanding the outcome of past commissions, the ICC investigation may prove to be an anomaly as the Court has certain enforcement mechanisms at its disposal and has also tried and convicted perpetrators of war crimes in the past. 

Despite the criticism that the ICC investigates ‘easy targets’, and regarding its controversial culture; there has apparently been a change of attitude. This is evidenced by the Chamber — in the past three years alone — authorising investigations into alleged crimes committed in Afghanistan, Bangladesh/Myanmar, and Palestine. The ICC now, besides being seemingly more willing to investigate contentious cases which involve powerful states, is also not deterred by the political nature of these issues, as long as there is ‘a reasonable basis’ to believe that crimes falling within its jurisdiction have been committed.  

However, taking into account the prolonged nature of the ICC investigations, the non-cooperation of Israel and its allies, the ICC’s limited resources, and the highly political nature of the situation, one can readily conclude that it may be a fair few years before we see any notable accountability. Nevertheless, the ICC investigation holds significance as it challenges the status quo and the impunity of perpetrators of crimes, even if only theoretically. 

If War Were To Doom Us All Tomorrow, The ICJ Would Still Plant A Tree

Posted in International Environmental Law, International Humanitarian LawTagged , , , , , , 1 Comment

By Moises A Montiel M

Moisés Montiel is a Venezuelan lawyer advising individuals and governments in matters of International Law at Lotus Soluciones Legales. He holds an LLM from the Fletcher School of Law and Diplomacy at Tufts University and teaches IHL and Treaty Law at Universidad Panamericana and Universidad Iberoamericana in Mexico.

The ICJ is no stranger to the growing concern about the environment. In fact, the existence (albeit brief) of an Environmental Chamber credits the importance attributed by the Court to this global common good. Directly or indirectly, the bench has been faced with opportunities to deal with the subject and has done its share to advance the cause of environmental protection, even during armed conflict as exceptional situations.

Before any further comments are made, it should be recalled that article 59 of the Court’s Statute contains a prohibition to generate binding precedent. However, these are not any 15 Johns and Janes Doe issuing a sentence, the compliance pull emitted by any ruling of the ICJ (or its legitimacy, if the New Haven School is brought to bear) demands attention and even persuades into compliance.

In this intelligence, this piece aims to highlight relevant dicta of the ICJ in asserting that there exists, without need for juggling or licentious interpretation, international obligations protecting the environment (almost) completely applicable during armed conflicts. 

The ICJ has advanced the conversation to a point where it is not unreasonable to assert that environmental protections during armed conflict should not be a by-product of the respect owed to protected categories, but an end in and of itself.

The Nuclear Weapons Opinion

In parallel to the main goal of the opinion, the Court drew attention to the impact that nuclear weapons could have on the environment and how their use is brutally incompatible with the protections stemming from the principles of precaution, military necessity, and distinction not just towards people, but to the environment itself (see paras. 27-33).

The Court acknowledged that a number of States expressed their conviction that the use of nuclear weapons both in armed conflict and outside of violates existing regulations. It reasserted the existence of a general obligation (untouched in the context of IHL) of States to make sure that activities within their jurisdiction respect the environmental rights of other States and the environment itself. A conclusion later supported by the Paper Mills case ruling.

In the Nuclear Weapons Opinion, the Court took note of the objections of some States which claimed that, for instance, obligations arising out of the ENMOD Convention would become inapplicable during armed conflicts. The Court answered by rephrasing the question and assumed from the start that the obligations were binding during conflict and, instead, analyzed whether they were absolute restrictions.

It answered the new question by subordinating the absolute prohibition to the logic of military necessity and the balancing act it demands. It concluded that the environment is an element to be weighed in assessing if the principles of necessity and proportionality permit attack. In supporting this conclusion, the Court recalled principle 24 of the 1992 Rio Declaration which recalled the duty of States to comply with the seminal principles of IHL with due regard to the environment and the effect of hostilities on it. 

In its Opinion, the Court also recalled UNGA Resolution 47/37 concerning the protection of the environment during armed conflicts. This instrument reaffirms the duty to consider the impact of military operations on the environment. It could be assumed that the Court found an indication of opinio juris under customary IHL in this document.

Nuclear Weapons is the most important jurisprudential contribution towards the goal of demonstrating the existence of a solid normative regime protecting the environment during armed conflict and, also, the necessary starting point for any proposition grounded in blackletter law about responsibility for crimes against the environment during armed conflicts.

Gabcikovo-Nagymaros Project (Hungary/Slovakia)

In the ‘pocket guide for the casual conventional delinquent’, also dubbed by the Court as the Gabcikovo-Nagymaros Project case the bench held that the ‘ecological state of necessity’ would theoretically justify the failure to comply with conventional obligations, only that it was not satisfied that such a state of necessity existed in this case. Moreover, the Court entertained the notion that environmental concerns constitute an essential interest of the State, thus opening the door for it to give way to the invocation of rebus sic stantibus (the doctrine of the fundamental change of circumstances). Both of these substantially raise the entity of the environment as an object of special protection under general international law.

The Court also found that the deviation of the waters of the Danube by Slovakia was in breach of international obligations, a conclusion which warrants no further explanation if extrapolated to the realm of IHL, especially if understood in line with protections of basic essential goods for human populations.

While it is true that this case did not directly touch upon environmental protection during armed conflict, it is no less valuable a contribution since it highlights the importance of the environment and furthers the notion that it constitutes a global common good, both protected by general international law and (consequentially) by IHL.

This ruling also serves as a reminder that the control and enjoyment of natural resources is a direct function of the right to self-determination under both the ICCPR and the ICESCR. The conclusion being that no attempt against it is legal if not warranted by strict military necessity.

Pulp Mills on the River Uruguay Case (Argentina v. Uruguay)

The fundamental holding of this case is that environmental damage is equivalent to patrimonial damage under the law of international responsibility, and in acknowledging it the Court confirms an expansion of the jus standi (judicial standing) of States to demand reparation for environmental damages. 

The takeaway for IHL, even if the Court did not point it out explicitly, is that in assessing damages derived from armed conflict, environmental damage can and should be taken into account when not strictly justified by necessity and proportionality, otherwise, the delinquent State or party will incur in responsibility and subsequent duty to repair.

This case is also relevant because it advanced and consolidated the notion that there is an international obligation to abstain from carrying out activities that may have an adverse impact on the environment. This obligation, naturally, cannot be held as extraneous to IHL because it does not forcibly, automatically, or singlehandedly hinder the legal conduct of hostilities. 

The arguments on sustainable economic development considered in this case also have major implications for environmental protection during armed conflict. The Court noted that there can be no development without environmental protection. Consequentially, it would not elicit any blushing to consider that the obligation to respect the environment/development duo would still hold during armed conflict, even if terms and conditions do apply. 

This rings even truer when the ILC Draft Articles on State Responsibility are brought in the mix, since -as codified by the articles- the existence of a state of war between States does not suspend duties owed, except when directly affected by hostilities. Since environmental protection in this context is mostly a duty of abstention, it stands to reason that unwarranted environmental damage not allowed by strict military necessity would suddenly become permissible without the need to prove that compliance with the obligation is directly affected by the state of hostilities.

Whaling in the Antarctic case (Australia v. Japan)

In this case, the Court availed itself of both the CITES and the Convention on Biological Diversity, among other treaties, in assessing the legality of Japanese whaling activities. Even if it is not directly concerned with IHL, some conclusions are worth noting.

The foremost takeaway is that both of these conventions entail duties of the State to be observed mainly within its territory. If the duty to honour obligations is not disrupted by a state of war, it seems plausible to suggest that the environmental duties incumbent upon the State in its own territory should not be suspended in the context of armed conflict not of an international character.

Most revealing in this particular case are – as they tend to be – the separate and dissenting opinions. Judge Yusuf’s dissent points toward the need to consider the shift in attitudes and societal values towards the interpretation of duties of preservation of environmental goods  (paras. 25-26). Could the same necessity be derived from the increasing societal concern about the protection of the environment? And more so in contexts of armed conflict? There seems to be nothing barring an answer in the affirmative. Also enlightening – and in abundant detail, as is his custom- is judge Cançado Trindade’s opinion, in it, he insists in the need to understand the increasing multilateralization of environmental protection regimes as a function of a desire for more robust protections for the environment (paras. 7, 12, 22-24). This would come to support the notion of the environment as a global common good.

As hinted at the beginning of this piece, the Court is no stranger to the concern for the protection of the environment (during hostilities or outside of them) and it has time after time reaffirmed its place of honour among internationally protected common goods. Therefore, to say that environmental protection becomes secondary when the clash of swords is heard is to make the effet utile (effectiveness) of environmental protection treaties the first casualty of war, and the Court’s jurisprudence certainly seems to support this conclusion.

[None of the views and opinions represented in this article are necessarily representative of the official views and opinions of Jus Cogens Blog, or any institutes the author may be affiliated with.]

The Inapplicability of the Geneva Conventions to Self Determination Movements

Posted in International Humanitarian Law, Public International LawTagged , , Leave a comment

By Shayan Ahmed Khan

(This is a modified version of a post/article that was first published on the Cambridge International Law Journal (CILJ) Blog. It is reproduced here with the permission of the CILJ Editors)

The International Court of Justice (ICJ) has recognised the right to self-determination as an obligation erga omnes and an essential principle of contemporary international law. The sanctity of this right is also preserved and explicitly recognised under Art. 1(4) of the Additional Protocol I (API) wherein the struggles of people ‘fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination…’ are recognised as international armed conflicts. This is supplemented by Art. 96(3) of API whereby an authority representing a people may unilaterally declare their intention to be bound by the Geneva Conventions of 1949 (GCs) and API. Consequently, the rights and obligations thereto apply equally between the authority and the High Contracting Party.

The Need for the Applicability of the GCs to Self-Determination Movements after the API

With the API nearing universal ratifications (174 States) the right to self-determination seems firmly grounded under the IHL regime. However, this is not entirely the case as there is potential of such conflicts occurring between Non-State Actors (NSAs) and Non-State Parties of API as well as State Parties of API which have construed the aforementioned provisions narrowly. (See for example the Declaration of France and the Understanding of the Philippines vis-à-vis the instrument of ratification). Naturally, States resisting such an armed struggle may be reluctant to accord the extended protection of IHL to what they may deem ‘rebels’ or ‘terrorists’. At the same time, such an extended protection would also entail the legitimization of the struggle – something which the State in question may want to avoid.

As universally ratified instruments, this is where the GCs come into play. Although there is no explicit provision within the GCs, arguments have been advanced to extend it in a similar manner to the API by distinguished authors such as Schindler, Abi-Saab and Kussbach. These arguments hinge on either the provisions relating to accession codified in Arts. 60 GCI, 59 GCII, 139 GCIII and 155 GCIV or the application of the GCs on an ad-hoc basis as enshrined in Common Article 2(3) of the GCs.

Limits on the Construction of GC Accession Provisions and Common Article 2 

Their arguments rest on the use of the word ‘power’ instead of ‘State’ or ‘High Contracting Parties’, which in their opinion is a more expansive term. This argument is furthered owing to the exclusive usage of the term ‘power’ in the paragraph (3) when the rest of the Common Article 2 uses the term ‘High Contracting Parties’. Thus they argue that such a use was deliberate on the part of the drafters and was either intended, explicitly, to cater to self-determination movements, or can now be interpreted in such a manner. The latter is argued on the basis of subsequent developments in international law, which have been discussed at length below. However, even at the outset, this seems to be inconsistent with the intent of the drafters. For instance, in relation to Art. 2(3), when the ‘Special Committee of the Joint Committee’ adopted the text, the Rapporteur explained it to be applicable ‘to the non-Contracting adverse State’(emphasis added). Similarly, the Commentary to the accession provision is also among the same lines. It states that the ‘invitation is addressed to all States…’ (emphasis added). This is also consistent with the intent of the drafters at the time which deemed wars of liberation as non-international armed conflicts.

That being said, international law does not remain stagnant to the developments which take place after a convention has entered into force and thus the developments that have taken place after the GCs must also be taken into account. Here, UNGA Res. 3103 (XXVIII) (1973), among many others, is very important. The resolution was approved by 83 States with 13 against and 19 abstentions. It specifically extends the protection afforded by the Third and Fourth GCs to ‘fighters’ engaged in a struggle for ‘self-determination’. Although not binding, the language adopted by the resolution seems to, prima facie, go beyond a mere urge to the parties. Paragraph 6 of the resolution deems it a violation of international law if ‘combatant status’ is not afforded to such fighters. Yet, by only emphasising the applicability of the Third and Fourth Convention as opposed to the GCs as a whole, gives rise to the inference that the resolution did not envisage an application of the GCs in their entirety. Consequently, without prejudice to the linguistics that may have been adopted, in totality, it would appear that the resolution may be construed as nothing more than a mere urge to the parties to apply the GCs. In any event, as noted by the ICJ in Nicaragua, UNGA resolutions only serve as ‘evidence’ of the existence of customary law, the corollary being that, in and of themselves, these resolutions would not be sufficient to alter the provisions in question. Indeed, as Sassoli puts it ‘there are some 500 articles in those treaties!’. Thus in the absence of an explicit provision, it would be very difficult to reconcile these resolutions with either the accession provisions or through the application of GCs on ad-hoc basis.

The Role of Treaty Interpretation in Light of Subsequent Practice

Even for the purposes of treaty interpretation, the thinking of the drafters is not a decisive factor. As the ICJ noted in the Namibian Advisory Opinion, treaty interpretation cannot remain unaffected by subsequent developments in law (See also Art. 31(3)(b) of the Vienna Convention on the Law of Treaties, 1969). Moreover, the Court also noted that there is a duty to harmonise international law with that which is prevailing at present. However, all such ‘subsequent practice’ in the application of the GCs must be ‘concordant and consistent’, such that it is capable of altering the interpretation of the aforementioned provisions.

In 1960, the Gouvernement Provisoire de la République Algérienne (Provisional Government of the Republic of Algeria), deposited an Instrument of Accession. The Swiss Government (depository of the GCs and a party) and the French government entered a reservation to their accession prior to Algeria becoming an Independent State. Similarly, on 21st June 1989, the depository received a letter from the Permanent Observer of Palestine to the United Nations to accede to the GCs and its Additional Protocols. Almost three months later, this was rejected owing to the uncertainty within the international community as to the exact status of Palestine as a State. Thus, it appears that the very few developments that do exist, seem to favour an interpretation which accords with the ‘object and purpose’ of the convention i.e.  exclusively applicable between States except Common Article 3 of GCs.

Conclusion 

These elements, coupled with the need for an explicit provision to be inserted within API, illustrate that the provisions relating to accession and Common Article 2(3) of the GCs were not tailored to fit self-determination conflicts. Additionally, there is almost a complete absence of either ‘subsequent practice’ of the GCs being applied in such a way. In such circumstances, recourse may be sought through declarations under Art. 7(4)(b) of the Convention on Certain Conventional Weapons (CCW) which allows for the applicability of the GCs alongside the CCW and its Protocols even if the authority is not a party to API. This route should also be considered by NSAs, particularly when the State in question is not a party to API but is a party to the CCW.That said, the parties are also free to deposit deeds of commitment to abide by the GCs such as the South West Africa People’s Organisation (1981) or Palestine Liberation Organisation’s undertaking in 1982. Alternatively, through the initiative of an NGO named the Geneva Call, NSAs have agreed to implement IHL with regard to the use of landmines. This is also not an uncommon occurrence, with 50 armed groups already having deposited such deeds. Even though these deeds of commitment can only serve as an urge to the State Party to apply the GCs and API inter se but they may change the perception of the international community towards NSAs, changing the language ‘rebels’ or ‘terrorists’ to an authority pursuing a legitimate right.

[None of the views and opinions represented in this article are necessarily representative of the official views and opinions of Jus Cogens, or any institutes the author may be affiliated with.]